CPL TRANSITION FUNDING LLC,
Note Issuer,
and
----------------------------,
Indenture Trustee
------------------------------
INDENTURE
Dated as of ___________, 2000
------------------------------
Issuable in Series
TABLE OF CONTENTS
Page
ARTICLE I..........Definitions and Incorporation by Reference 3
SECTION 1.01. Definitions.....................................3
SECTION 1.02. Incorporation by Reference of Trust Indenture
Act............................................................3
SECTION 1.03. Rules of Construction...........................3
ARTICLE II...........................................The Notes 4
SECTION 2.01. Form............................................4
SECTION 2.02. Denominations; Notes Issuable in Series.........4
SECTION 2.03. Execution, Authentication and Delivery..........6
SECTION 2.04. Temporary Notes.................................6
SECTION 2.05. Registration; Registration of Transfer and
Exchange of Notes..............................................7
SECTION 2.06. Mutilated, Destroyed, Lost or Stolen Notes......8
SECTION 2.07. Persons Deemed Owner............................9
SECTION 2.08. Payment of Principal, Premium, if any, and
Interest; Interest on Overdue Principal; Principal, Premium,
if any, and Interest Rights Preserved..........................9
SECTION 2.09. Cancellation....................................10
SECTION 2.10. Outstanding Amount; Authentication and
Delivery of Notes..............................................11
SECTION 2.11. Book-Entry Notes................................17
SECTION 2.12. Notices to Clearing Agency......................18
SECTION 2.13. Definitive Notes................................18
SECTION 2.14. CUSIP Number....................................19
SECTION 2.15. Letter of Representations.......................19
SECTION 2.16. Release of Note Collateral......................19
SECTION 2.17. Special Terms Applicable to Subsequent
Transfers of Certain Notes.....................................19
SECTION 2.18. Tax Treatment...................................20
SECTION 2.19. State Pledge....................................20
ARTICLE III..........................................Covenants 21
SECTION 3.01. Payment of Principal, Premium, if any, and
Interest.......................................................21
SECTION 3.02. Maintenance of Office or Agency.................21
SECTION 3.03. Money for Payments To Be Held in Trust..........21
SECTION 3.04. Existence.......................................22
SECTION 3.05. Protection of Note Collateral...................23
SECTION 3.06. Opinions as to Note Collateral..................23
SECTION 3.07. Performance of Obligations; Servicing; SEC
Filings........................................................24
SECTION 3.08. Certain Negative Covenants......................26
SECTION 3.09. Annual Statement as to Compliance...............27
SECTION 3.10. Note Issuer May Consolidate, etc., Only
on Certain Terms...............................................27
SECTION 3.11. Successor or Transferee.........................29
SECTION 3.12. No Other Business...............................29
SECTION 3.13. No Borrowing....................................29
SECTION 3.14. Servicer's Obligations..........................30
SECTION 3.15. Guarantees, Loans, Advances and Other
Liabilities....................................................30
SECTION 3.16. Capital Expenditures............................30
SECTION 3.17. Restricted Payments.............................30
SECTION 3.18. Notice of Events of Default.....................30
SECTION 3.19. Further Instruments and Acts....................30
SECTION 3.20. Purchase of Subsequent Transition Property......31
ARTICLE IV..............Satisfaction and Discharge; Defeasance 32
SECTION 4.01. Satisfaction and Discharge of Indenture;
Defeasance.....................................................32
SECTION 4.02. Conditions to Defeasance........................34
SECTION 4.03. Application of Trust Money......................35
SECTION 4.04. Repayment of Moneys Held by Paying Agent........35
ARTICLE V............................................Remedies 36
SECTION 5.01. Events of Default...............................36
SECTION 5.02. Acceleration of Maturity; Rescission and
Annulment......................................................37
SECTION 5.03. Collection of Indebtedness and Suits for
Enforcement by Indenture Trustee...............................38
SECTION 5.04. Remedies; Priorities............................40
SECTION 5.05. Optional Preservation of the Note Collateral....41
SECTION 5.06. Limitation of Suits.............................41
SECTION 5.07. Unconditional Rights of Holders To Receive
Principal, Premium,if any, and Interest........................42
SECTION 5.08. Restoration of Rights and Remedies..............42
SECTION 5.09. Rights and Remedies Cumulative..................43
SECTION 5.10. Delay or Omission Not a Waiver..................43
SECTION 5.11. Control by Holders..............................43
SECTION 5.12. Waiver of Past Defaults.........................44
SECTION 5.13. Undertaking for Costs...........................44
SECTION 5.14. Waiver of Stay or Extension Laws................44
SECTION 5.15. Action on Notes.................................45
SECTION 5.16. Performance and Enforcement of Certain
Obligations....................................................45
ARTICLE VI...............................The Indenture Trustee 45
SECTION 6.01. Duties of Indenture Trustee.....................45
SECTION 6.02. Rights of Indenture Trustee.....................47
SECTION 6.03. Individual Rights of Indenture Trustee..........47
SECTION 6.04. Indenture Trustee's Disclaimer..................48
SECTION 6.05. Notice of Defaults..............................48
SECTION 6.06. Reports by Indenture Trustee to Holders.........48
SECTION 6.07. Compensation and Indemnity......................49
SECTION 6.08. Replacement of Indenture Trustee................49
SECTION 6.09. Successor Indenture Trustee by Xxxxxx...........50
SECTION 6.10. Appointment of Co-Trustee or Separate Trustee...51
SECTION 6.11. Eligibility; Disqualification...................52
SECTION 6.12. Preferential Collection of Claims Against Note
Issuer.........................................................52
SECTION 6.13. Representations and Warranties of Indenture
Trustee.......................................................
ARTICLE VII.........................Holders' Lists and Reports 53
SECTION 7.01. Note Issuer To Furnish Indenture Trustee Names
and Addresses of Holders.......................................53
SECTION 7.02. Preservation of Information; Communications
to Holders.....................................................53
SECTION 7.03. Reports by Note Issuer..........................53
SECTION 7.04. Reports by Indenture Trustee....................54
ARTICLE VIII...............Accounts, Disbursements and Releases 54
SECTION 8.01. Collection of Money.............................54
SECTION 8.02. Collection Account..............................55
SECTION 8.03. General Provisions Regarding the Collection
Account........................................................57
SECTION 8.04. Release of Note Collateral......................58
SECTION 8.05. Opinion of Counsel..............................59
SECTION 8.06. Reports by Independent Accountants..............59
ARTICLE IX.............................Supplemental Indentures 60
SECTION 9.01. Supplemental Indentures Without Consent of
Holders........................................................60
SECTION 9.02. Supplemental Indentures with Consent of Holders.61
SECTION 9.03. Execution of Supplemental Indentures............63
SECTION 9.04. Effect of Supplemental Indenture................63
SECTION 9.05. Conformity with Trust Indenture Act.............63
SECTION 9.06. Reference in Notes to Supplemental Indentures...63
ARTICLE X.................................Redemption of Notes 63
SECTION 10.01. Optional Redemption by Note Issuer.............63
SECTION 10.02. Form of Optional Redemption Notice.............64
SECTION 10.03. Notes Payable on Optional Redemption Date......65
ARTICLE XI.......................................Miscellaneous 65
SECTION 11.01. Compliance Certificates and Opinions, etc......65
SECTION 11.02. Form of Documents Delivered to Indenture
Trustee........................................................67
SECTION 11.03. Acts of Holders................................67
SECTION 11.04. Notices, etc., to Indenture Trustee, Note
Issuer and Rating Agencies.....................................68
SECTION 11.05. Notices to Holders; Waiver.....................69
SECTION 11.06. Conflict with Trust Indenture Act..............69
SECTION 11.07. Effect of Headings and Table of Contents.......70
SECTION 11.08. Successors and Assigns.........................70
SECTION 11.09. Severability...................................70
SECTION 11.10. Benefits of Indenture..........................70
SECTION 11.11. Legal Holidays.................................70
SECTION 11.12. GOVERNING LAW..................................70
SECTION 11.13. Counterparts...................................71
SECTION 11.14. Recording of Indenture.........................71
SECTION 11.15. Trust Obligation...............................71
SECTION 11.16. No Recourse to Note Issuer.....................71
SECTION 11.17. Inspection.....................................71
SECTION 11.18. No Petition....................................72
EXHIBIT A -- Form of Notes
EXHIBIT B -- Form of Trustee's Issuance Certificate
EXHIBIT C -- Form of Series Supplement
Cross Reference Table
TIA Section Indenture Section
310 (a)(1) 6.11
(a)(2) 6.11
(a)(3) 6.10
(a)(4) N.A.
(a)(5) 6.11
(b) 6.11
(c) N.A.
311 (a) 6.12
(b) 6.12
(c) N.A.
312 (a) 7.01,7.02
(b) 7.02
(c) 7.02
313 (a) 7.04
(b)(1) 7.04
(b)(2) 7.04
(c) 7.04
(d) 7.04
314 (a) 7.03(a), 3;09
(b) 3.06
(c)(1) 2.10,4.01,11.01(a)
(c)(2) 2.10,4.01,11.01(a)
(c)(3) 2.10,4.01,11.01(a)
(d) 2.10,11.01(b)
(e) 11.01(a)
(f) 11.01(a)
315 (a) 6.01(b)
(b) 6.05
(c) 6.01(a)
(d) 6.02,6.01(c)
(e) 5.13
316 (a)last
sentence Appendix A "outstanding"
(a)(1)(A) 5.11
(a)(1)(B) 5.12
(a)(2) Ommitted
(b) 5.07
(c) Appendix A "Record Date"
317 (a)(1) 5.03(b)
(a)(2) 5.03(c)
(b) 3.03
318 (a) 11.07
N.A. means Not Applicable
Note:This cross reference table shall not, for any ppurpose, be deemed to be
part of this Indenture.
INDENTURE dated as of ___________, 2000, between CPL
TRANSITION FUNDING LLC, a Delaware limited liability company (the "Note
Issuer"), and ____________________, a ________ banking corporation, as
trustee (the "Indenture Trustee").
In consideration of the mutual agreements herein contained,
each party agrees as follows for the benefit of the other and each of the
Holders:
RECITALS OF THE NOTE ISSUER
The Note Issuer has duly authorized the execution and delivery
of this Indenture and the creation and issuance of Notes issuable in Series
hereunder, each Series to be of substantially the tenor set forth herein and in
the respective Trustee's Issuance Certificate or Series Supplement, if any,
relating to each such Series of Notes.
The Notes shall be non-recourse obligations and shall be
secured by and payable solely out of the proceeds of the Transition Property and
the other Note Collateral. If and to the extent that such proceeds of Transition
Property and the other Note Collateral are insufficient to pay all amounts owing
with respect to the Notes, then, except as otherwise expressly provided
hereunder, the Holders shall have no Claim in respect of such insufficiency
against the Note Issuer, and the Holders, by their acceptance of the Notes,
waive any such Claim.
All things necessary to (a) make the Notes, when executed by
the Note Issuer and authenticated and delivered by the Indenture Trustee
hereunder and duly issued by the Note Issuer, valid obligations, and (b) make
this Indenture a valid agreement of the Note Issuer, in each case, in accordance
with their respective terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That the Note Issuer, in consideration of the premises herein
contained and of the purchase of the Notes by the Holders and of other good and
lawful consideration, the receipt and sufficiency of which are hereby
acknowledged, and to secure, equally and ratably without prejudice, priority or
distinction, except as specifically otherwise set forth in this Indenture, the
payment of the Notes, the payment of all other amounts due under or in
connection with this Indenture and the performance and observance of all of the
covenants and conditions contained herein or in such Notes, has hereby executed
and delivered this Indenture and by these presents does hereby convey, grant and
assign, transfer and pledge, in each case, in and unto the Indenture Trustee,
its successors and assigns forever, for the benefit of the Holders, all and
singular the property hereinafter described (hereinafter referred to as the
"Note Collateral"), to wit:
GRANTING CLAUSE
The Note Issuer hereby Grants to the Indenture Trustee on the
Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes
from time to time issued and outstanding, all of the Note Issuer's right, title
and interest in and to (a) the Transition Property created under and pursuant to
the Initial Financing Order, and transferred by CPL to the Note Issuer pursuant
to the Sale Agreement (including, to the fullest extent permitted by law, all
revenues, collections, claims, rights, payments, money or proceeds of or arising
from the Transition Charges authorized in the Initial Financing Order and any
Tariffs filed pursuant thereto and any contractual rights to collect such
Transition Charges from Customers and REPs), (b) all Transition Property created
under and pursuant to any Subsequent Financing Order, and transferred by CPL to
the Note Issuer pursuant to the Sale Agreement (including, to the fullest extent
permitted by law, all revenues, collections, claims, rights, payments, money or
proceeds of or arising from the Transition Charges authorized in such Subsequent
Financing Order and any Subsequent Tariffs filed pursuant thereto and any
contractual rights to collect such Transition Charges from Customers and REPs),
(c) Transition Charges, the Sale Agreement and all property and interests in
property transferred under the Sale Agreement, (d) the Servicing Agreement, (e)
the Collection Account, all subaccounts thereof and all amounts of cash or
investment property on deposit therein or credited thereto from time to time,
(f) any Swap Agreement or other interest rate exchange agreement which is
executed in connection with the issuance of Floating Rate Notes, if any, (h) all
rights to compel the Servicer to file for and obtain adjustments to the
Transition Charges in accordance with Section 39.307 of the Securitization Law,
the Initial Financing Order or any Subsequent Financing Order or any Tariff or
Subsequent Tariff filed in connection therewith, (i) all present and future
claims, demands, causes and choses in action in respect of any or all of the
foregoing, and (j) all payments on or under, and all proceeds in respect of, any
or all of the foregoing; it being understood that the following do not
constitute Note Collateral: (i) cash that has been released pursuant to Section
8.02(d)(xiv) following retirement of all Outstanding Series of Notes, and (ii)
amounts deposited with the Note Issuer on any Series Issuance Date, including
the Closing Date, for payment of costs of issuance with respect to the related
Series (together with any interest earnings thereon), it being understood that
such amounts described in clauses (i) and (ii) above shall not be subject to
Section 3.17.
The foregoing Grant is made in trust to secure the payment of
principal of and premium, if any, interest on, and any other amounts owing in
respect of, the Notes equally and ratably without prejudice, priority or
distinction, except as expressly provided in this Indenture, and to secure
compliance with the provisions of this Indenture with respect to the Notes, all
as provided in this Indenture. This Indenture constitutes a security agreement
within the meaning of the UCC to the extent that, under Texas law, the
provisions of the UCC are applicable hereto.
The Indenture Trustee, as trustee on behalf of the Holders,
acknowledges such Xxxxx and accepts the trusts under this Indenture in
accordance with the provisions of this Indenture.
SIGNATURE PAGE
TO INDENTURE
AND IT IS HEREBY COVENANTED, DECLARED AND AGREED between the
parties hereto that all Notes are to be issued, countersigned and delivered and
that all of the Note Collateral is to be held and applied, subject to the
further covenants, conditions, releases, uses and trusts hereinafter set forth,
and the Note Issuer, for itself and any successor, does hereby covenant and
agree to and with the Indenture Trustee and its successors in said trust, for
the benefit of the Holders, as follows:
ARTICLE I
Definitions and Incorporation by Reference
SECTION 1.01. Definitions. Except as otherwise specified
herein or as the context may otherwise require, the capitalized terms used
herein shall have the respective meanings set forth in Appendix A attached
hereto and made a part hereof for all purposes of this Indenture.
SECTION 1.02. Incorporation by Reference of Trust Indenture
Act. Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Notes.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Indenture Trustee.
"obligor" on the indenture securities means the Note Issuer
and any other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by SEC rule have
the meanings assigned to them by such definitions.
SECTION 1.03. Rules of Construction. Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting
principles as in effect from time to time;
(iii) "or" is not exclusive;
(iv) "including" means including without limitation;
(v) words in the singular include the plural and words in the
plural include the singular; and
(vi) the words "herein," "hereof," "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
ARTICLE II
The Notes
SECTION 2.01. Form. The Notes and the Indenture Trustee's
certificate of authentication shall be in substantially the forms set forth in
Exhibit A, with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture or by the related
Trustee's Issuance Certificate or Series Supplement, if any, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may, consistently herewith, be determined by the
officers executing such Notes, as evidenced by their execution of such Notes.
Any portion of the text of any Note may be set forth on the reverse thereof,
with an appropriate reference thereto on the face of the Note.
The Notes shall be typewritten, printed, lithographed or
engraved or produced by any combination of these methods (with or without steel
engraved borders), all as determined by the officers executing such Notes, as
evidenced by their execution of such Notes.
Each Note shall be dated the date of its authentication. The
terms of the Notes set forth in Appendix A are part of the terms of this
Indenture.
SECTION 2.02. Denominations; Notes Issuable in Series. The
Notes shall be issuable in the Minimum Denomination specified in the applicable
Trustee's Issuance Certificate or Series Supplement, if any, and, except as
otherwise provided in such Trustee's Issuance Certificate or Series Supplement,
if any, in integral multiples thereof.
The Notes may, at the election of and as authorized by a
Responsible Officer of the Note Issuer, be issued in one or more Series (each
comprised of one or more Classes), and shall be designated generally as the
["Transition Notes"] of the Note Issuer, with such further particular
designations added or incorporated in such title for the Notes of any particular
Series or Class as a Responsible Officer of the Note Issuer may determine. Each
Note shall bear upon its face the designation so selected for the Series or
Class to which it belongs. All Notes of the same Series shall be identical in
all respects except for the denominations thereof, unless such Series is
comprised of one or more Classes, in which case all Notes of the same Class
shall be identical in all respects except for the denominations thereof. All
Notes of a particular Series or, if such Series is comprised of one or more
Classes, all Notes of a particular Class thereof, in each case issued under this
Indenture, shall be in all respects equally and ratably entitled to the benefits
hereof without preference, priority, or distinction on account of the actual
time or times of authentication and delivery, all in accordance with the terms
and provisions of this Indenture.
Each Series of Notes shall be created by a Trustee's Issuance
Certificate or Series Supplement, as the case may be, authorized by a
Responsible Officer of the Note Issuer and establishing the terms and provisions
of such Series. The several Series and Classes thereof may differ as between
Series and Classes, in respect of any of the following matters:
(1) designation of the Series and, if applicable, the Classes thereof;
(2) the principal amount;
(3) the Note Interest Rate;
(4) the Payment Dates;
(5) the Scheduled Payment Date;
(6) the Final Maturity Date;
(7) the Series Issuance Date;
(8) the place or places for the payment of interest,
principal and premium, if any;
(9) the Minimum Denominations;
(10) the Expected Amortization Schedule;
(11) provisions with respect to the definitions set forth in
Appendix A hereto;
(12) whether or not the Notes of such Series are to be
Book-Entry Notes and the extent to which Section 2.11 should apply;
(13) any redemption provisions applicable to the Notes of such Series
and the price or prices at which and the terms and conditions
upon which Notes of such Series shall be redeemed or purchased;
(14) to the extent applicable, the extent to which payments on
the Notes of the related Series are subordinate to or pari passu in
right of payment of principal and interest to other Notes; and
(15) any other provisions expressing or referring to the terms
and conditions upon which the Notes of the applicable Series or Class
are to be issued under this Indenture that are not in conflict with the
provisions of this Indenture and as to which the Rating Agency
Condition is satisfied.
SECTION 2.03. Execution, Authentication and Delivery. The Notes shall be
executed on behalf of the Note Issuer by any of its Responsible Officers.
The signature of any such Responsible Officer on the Notes may be manual or
facsimile.
Notes bearing the manual or facsimile signature of individuals
who were at any time Responsible Officers of the Note Issuer shall bind the Note
Issuer, notwithstanding that such individuals or any of them have ceased to hold
such offices prior to the authentication and delivery of such Notes or did not
hold such offices at the date of such Notes.
At any time and from time to time after the execution and
delivery of this Indenture, the Note Issuer may deliver Notes executed by the
Note Issuer to the Indenture Trustee pursuant to an Issuer Order for
authentication; and the Indenture Trustee shall authenticate and deliver such
Notes as in this Indenture provided and not otherwise.
No Note shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose, unless there appears on such Note a
certificate of authentication substantially in the form provided for therein
executed by the Indenture Trustee by the manual signature of one of its
authorized signatories, and such certificate upon any Note shall be conclusive
evidence, and the only evidence, that such Note has been duly authenticated and
delivered hereunder.
SECTION 2.04. Temporary Notes. Pending the preparation of
Definitive Notes pursuant to Section 2.13, the Note Issuer may execute, and upon
receipt of an Issuer Order the Indenture Trustee shall authenticate and deliver,
Temporary Notes which are printed, lithographed, typewritten, mimeographed or
otherwise produced, of the tenor of the Definitive Notes in lieu of which they
are issued and with such variations not inconsistent with the terms of this
Indenture as the officers executing such Notes may determine, as evidenced by
their execution of such Notes.
If Temporary Notes are issued, the Note Issuer will cause
Definitive Notes to be prepared without unreasonable delay. After the
preparation of Definitive Notes, the Temporary Notes shall be exchangeable for
Definitive Notes upon surrender of the Temporary Notes at the office or agency
of the Note Issuer to be maintained as provided in Section 3.02, without charge
to the Holder. Upon surrender for cancellation of any one or more Temporary
Notes, the Note Issuer shall execute and the Indenture Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
Definitive Notes of authorized denominations. Until so delivered in exchange,
the Temporary Notes shall in all respects be entitled to the same benefits under
this Indenture as Definitive Notes.
SECTION 2.05. Registration; Registration of Transfer and
Exchange of Notes. The Note Issuer shall cause to be kept a register (the "Note
Register") in which, subject to such reasonable regulations as it may prescribe,
the Note Issuer shall provide for the registration of Notes and the registration
of transfers of Notes. The Indenture Trustee shall be "Note Registrar" for the
purpose of registering Notes and transfers of Notes as herein provided. Upon any
resignation of any Note Registrar, the Note Issuer shall promptly appoint a
successor or, if it elects not to make such an appointment, assume the duties of
Note Registrar.
If a Person other than the Indenture Trustee is appointed by
the Note Issuer as Note Registrar, the Note Issuer will give the Indenture
Trustee prompt written notice of the appointment of such Note Registrar and of
the location, and any change in the location, of the Note Register, and the
Indenture Trustee shall have the right to inspect the Note Register at all
reasonable times and to obtain copies thereof, and the Indenture Trustee shall
have the right to rely conclusively upon a certificate executed on behalf of the
Note Registrar by a Responsible Officer thereof as to the names and addresses of
the Holders and the principal amounts and number of such Notes.
Upon surrender for registration of transfer of any Note at the
office or agency of the Note Issuer to be maintained as provided in Section
3.02, the Note Issuer shall execute, and the Indenture Trustee shall
authenticate and the Holder shall obtain from the Indenture Trustee, in the name
of the designated transferee or transferees, one or more new Notes in any
Minimum Denominations, of the same Series (and, if applicable, Class) and
aggregate principal amount.
At the option of the Holder, Notes may be exchanged for other
Notes in any Minimum Denominations, of the same Series (and, if applicable,
Class) and aggregate principal amount, upon surrender of the Notes to be
exchanged at such office or agency. Whenever any Notes are so surrendered for
exchange, the Note Issuer shall execute, and the Indenture Trustee shall
authenticate and the Holder shall obtain from the Indenture Trustee, the Notes
which the Holder making the exchange is entitled to receive.
All Notes issued upon any registration of transfer or exchange
of other Notes shall be the valid obligations of the Note Issuer, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the Notes
surrendered upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of
transfer or exchange shall be duly endorsed by, or be accompanied by (a) a
written instrument of transfer in form satisfactory to the Indenture Trustee
duly executed by the Holder thereof or such Xxxxxx's attorney duly authorized in
writing, with such signature guaranteed by an institution which is a member of
one of the following recognized Signature Guaranty Programs: (i) The Securities
Transfer Agent Medallion Program (STAMP); (ii) The New York Stock Exchange
Medallion Program (MSP); (iii) The Stock Exchange Medallion Program (SEMP); or
(iv) such other guarantee program acceptable to the Indenture Trustee, and (b)
such other documents as the Indenture Trustee may require.
No service charge shall be made to a Holder for any
registration of transfer or exchange of Notes, but the Note Issuer or Indenture
Trustee may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration of
transfer or exchange of Notes, other than exchanges pursuant to Section 2.04 or
9.06 not involving any transfer.
The preceding provisions of this Section notwithstanding, the
Note Issuer shall not be required to make, and the Note Registrar need not
register transfers or exchanges (i) of Notes that have been selected for
redemption pursuant to Article X or the terms of such Notes as set forth in the
related Trustee's Issuance Certificate or Series Supplement, as the case may be,
creating such Series of Notes, (ii) of any Note that has been submitted within
15 days preceding the due date for any payment with respect to such Note or
(iii) of Unregistered Notes unless Section 2.17 has been complied with in
connection with such transfer or exchange.
SECTION 2.06. Mutilated, Destroyed, Lost or Stolen Notes. If
(i) any mutilated Note is surrendered to the Indenture Trustee, or the Indenture
Trustee receives evidence to its satisfaction of the destruction, loss or theft
of any Note, and (ii) there is delivered to the Indenture Trustee such security
or indemnity as may be required by it to hold the Note Issuer and the Indenture
Trustee harmless, then the Note Issuer shall execute and, upon its written
request, the Indenture Trustee shall authenticate and deliver, in exchange for
or in lieu of any such mutilated, destroyed, lost or stolen Note, a replacement
Note of like Series (and, if applicable, Class), tenor and principal amount,
bearing a number not contemporaneously outstanding; provided, however, that if
any such destroyed, lost or stolen Note, but not a mutilated Note, shall have
become or within seven days shall be due and payable, or shall have been called
for redemption, instead of issuing a replacement Note, the Note Issuer may pay
such destroyed, lost or stolen Note when so due or payable or upon the Optional
Redemption Date without surrender thereof. If, after the delivery of such
replacement Note or payment of a destroyed, lost or stolen Note pursuant to the
proviso to the preceding sentence, a purchaser of the original Note in lieu of
which such replacement Note was issued presents for payment such original Note,
the Note Issuer and the Indenture Trustee shall be entitled to recover such
replacement Note (or such payment) from the Person to whom it was delivered or
any Person taking such replacement Note from such Person to whom such
replacement Note was delivered or any assignee of such Person and shall be
entitled to recover upon the security or indemnity provided therefor to the
extent of any loss, damage, cost or expense incurred by the Note Issuer or the
Indenture Trustee in connection therewith.
Upon the issuance of any replacement Note under this Section,
the Note Issuer and/or the Indenture Trustee may require the payment by the
Holder of such Note of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other reasonable expenses
(including the fees and expenses of the Indenture Trustee) connected therewith.
Every replacement Note issued pursuant to this Section in
replacement of any mutilated, destroyed, lost or stolen Note shall constitute an
original additional contractual obligation of the Note Issuer, whether or not
the mutilated, destroyed, lost or stolen Note shall be found at any time or
enforced by any Person, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Notes duly issued
hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 2.07. Persons Deemed Owner. Prior to due presentment
for registration of transfer of any Note, the Note Issuer, the Indenture Trustee
and any agent of the Note Issuer or the Indenture Trustee may treat the Person
in whose name any Note is registered (as of the day of determination) as the
owner of such Note for the purpose of receiving payments of principal of and
premium, if any, and interest on such Note and for all other purposes
whatsoever, whether or not such Note be overdue, and neither the Note Issuer,
the Indenture Trustee nor any agent of the Note Issuer or the Indenture Trustee
shall be affected by notice to the contrary.
SECTION 2.08. Payment of Principal, Premium, if any, and
Interest; Interest on Overdue Principal; Principal, Premium, if any, and
Interest Rights Preserved. (a) The Notes shall accrue interest as provided in
the related Trustee's Issuance Certificate or Series Supplement, if any, at the
applicable Note Interest Rate specified therein, and such interest shall be
payable on each Payment Date as specified therein. Any installment of interest,
principal or premium, if any, payable on any Note which is punctually paid or
duly provided for on the applicable Payment Date shall be paid to the Person in
whose name such Note (or one or more Predecessor Notes) is registered on the
Record Date for such Payment Date, by check mailed first-class, postage prepaid
to such Person's address as it appears on the Note Register on such Record Date
or in such other manner as may be provided in the related Trustee's Issuance
Certificate or Series Supplement, if any, except that (i) upon application to
the Indenture Trustee by any Holder owning Notes of any Class in the principal
amount of $10,000,000 or more not later than the applicable Record Date payment
will be made by wire transfer to an account maintained by such Holder and (ii)
with respect to Book Entry Notes payments will be made by wire transfer in
immediately available funds to the account designated by the Holder of the
applicable Global Note unless and until such Global Note is exchanged for
Definitive Notes (in which event payments shall be made as provided above) and
except for the final installment of principal and premium, if any, payable with
respect to such Note on a Payment Date which shall be payable as provided below.
The funds represented by any such checks returned undelivered shall be held in
accordance with Section 3.03.
(b) The principal of each Note of each Series (and, if
applicable, Class) shall be paid, to the extent funds are available therefor in
the Collection Account, in installments on each Payment Date specified in the
related Trustee's Issuance Certificate or Series Supplement, if any.
Notwithstanding the foregoing, the entire unpaid principal amount of the Notes
of a Series shall be due and payable, if not previously paid, on the date on
which an Event of Default shall have occurred and be continuing with respect to
such Series, if the Indenture Trustee or the Holders of the Notes representing
not less than a majority of the Outstanding Amount of the Notes of all Series
have declared the Notes to be immediately due and payable in the manner provided
in Section 5.02. All payments of principal and premium, if any, on the Notes of
any Series shall be made pro rata to the Holders entitled thereto unless
otherwise provided in the related Trustee's Issuance Certificate or Series
Supplement, if any, with respect to any Class of Notes included in such Series.
The Indenture Trustee shall notify the Person in whose name a Note is registered
at the close of business on the Record Date preceding the Payment Date on which
the Note Issuer expects that the final installment of principal of and premium,
if any, and interest on such Note will be paid. Such notice shall be mailed no
later than five days prior to such final Payment Date and shall specify that
such final installment will be payable only upon presentation and surrender of
such Note and shall specify the place where such Note may be presented and
surrendered for payment of such installment. Notices in connection with
redemptions of Notes shall be mailed to Holders as provided in Section 10.02.
(c) If interest on the Notes of any Series is not paid when
due, such defaulted interest shall be paid (plus interest on such defaulted
interest at the applicable Note Interest Rate to the extent lawful) to the
Persons who are Holders on a subsequent Special Record Date, which date shall be
at least fifteen Business Days prior to the Special Payment Date. The Note
Issuer shall fix or cause to be fixed any such Special Record Date and Special
Payment Date, and, at least 20 days before any such Special Record Date, the
Note Issuer shall mail to each affected Holder a notice that states the Special
Record Date, the Special Payment Date and the amount of defaulted interest (plus
interest on such defaulted interest) to be paid.
SECTION 2.09. Cancellation. All Notes surrendered for payment,
registration of transfer, exchange or redemption shall, if surrendered to any
Person other than the Indenture Trustee, be delivered to the Indenture Trustee
and shall be promptly canceled by the Indenture Trustee. The Note Issuer may at
any time deliver to the Indenture Trustee for cancellation any Notes previously
authenticated and delivered hereunder which the Note Issuer may have acquired in
any manner whatsoever, and all Notes so delivered shall be promptly canceled by
the Indenture Trustee. No Notes shall be authenticated in lieu of or in exchange
for any Notes canceled as provided in this Section, except as expressly
permitted by this Indenture. All canceled Notes may be held or disposed of by
the Indenture Trustee in accordance with its standard retention or disposal
policy as in effect at the time.
SECTION 2.10. Outstanding Amount; Authentication and Delivery
of Notes. The aggregate Outstanding Amount of Notes that may be authenticated
and delivered under this Indenture shall be unlimited [except as provided in the
Initial Financing Order or any Subsequent Financing Order].
Notes of each Series created and established by a Trustee's
Issuance Certificate or Series Supplement, if any, may from time to time be
executed by the Note Issuer and delivered to the Indenture Trustee for
authentication and thereupon the same shall be authenticated and delivered by
the Indenture Trustee upon Issuer Request and upon delivery by the Note Issuer
to the Indenture Trustee, and receipt by the Indenture Trustee, or the causing
to occur by the Note Issuer, of the following; provided, however, that
compliance with such conditions and delivery of such documents shall only be
required in connection with the original issuance of a Note or Notes of such
Series:
(1) Note Issuer Action. An Issuer Order authorizing and
directing the execution, authentication and delivery of the Notes by
the Indenture Trustee and specifying the principal amount of Notes to
be authenticated.
(2) Authorizations. A copy of the PUHCA Order which shall be
in full force and effect. A Financing Order related to such Series
which shall be in full force and effect and be Final.
(3) Opinions. (a) An Opinion of Counsel that the applicable
Financing Order and the PUHCA Order are each in full force and effect,
that the applicable Financing Order is Final and that no other
authorization, approval or consent of any governmental body or bodies
at the time having jurisdiction in the premises is required for the
valid issuance, authentication and delivery of such Notes, except for
such registrations as are required under the "Blue Sky" and securities
laws of any State or such authorizations, approvals or consents of
governmental bodies that have been obtained and copies of which have
been delivered with such Opinion of Counsel.
(b) An Opinion of Counsel that no authorization, approval or
consent of any governmental body or bodies at the time having
jurisdiction in the premises is required for the valid execution and
delivery by the Note Issuer of each of the Basic Documents to which the
Note Issuer is a party and that is executed and delivered in connection
with such Note issuance, except for such authorizations, approvals or
consents of governmental bodies that have been obtained and copies of
which have been delivered with such Opinion of Counsel.
(4) Authorizing Certificate. An Officer's Certificate, dated
the Series Issuance Date, of the Note Issuer certifying that (i) the
Note Issuer has duly authorized the execution and delivery of this
Indenture and the related Trustee's Issuance Certificate or Series
Supplement, as the case may be, and the execution and delivery of the
Notes of such Series and (ii) that the Trustee's Issuance Certificate
or Series Supplement, as the case may be, for such Series of Notes is
in the form attached thereto, which Trustee's Issuance Certificate or
Series Supplement, as the case may be, shall comply with the
requirements of Section 2.02.
(5) The Note Collateral. The Note Issuer shall have made or
caused to be made all filings with the PUCT and the Texas Secretary of
State pursuant to the Financing Order and the Securitization Law and
all other filings necessary to perfect the Grant of the Note Collateral
to the Indenture Trustee and the Lien of this Indenture.
(6) Certificates of the Note Issuer and CPL. (a) An Officer's
Certificate from the Note Issuer, dated as of the Series Issuance Date:
(i) to the effect that (A) the Note Issuer is not in
Default under this Indenture and that the issuance of the
Notes applied for will not result in any Default or in any
breach of any of the terms, conditions or provisions of or
constitute a default under the Financing Order relating to the
Notes applied for or any indenture, mortgage, deed of trust or
other agreement or instrument to which the Note Issuer is a
party or by which it or its property is bound or any order of
any court or administrative agency entered in any Proceeding
to which the Note Issuer is a party or by which it or its
property may be bound or to which it or its property may be
subject and (B) that all conditions precedent provided in this
Indenture relating to the execution, authentication and
delivery of the Notes applied for have been complied with;
(ii) to the effect that the Note Issuer has not
assigned any interest or participation in the Note Collateral
except for the Grant contained in this Indenture; the Note
Issuer has the power and right to Grant the Note Collateral to
the Indenture Trustee as security hereunder; and the Note
Issuer, subject to the terms of this Indenture, has Granted to
the Indenture Trustee all of its right, title and interest in
and to such Note Collateral free and clear of any Lien,
mortgage, pledge, charge, security interest, adverse claim or
other encumbrance arising as a result of actions of the Note
Issuer or through the Note Issuer, except the Lien of this
Indenture;
(iii) to the effect that the Note Issuer has
appointed the firm of Independent certified public accountants
as contemplated in Section 8.06;
(iv) to the effect that attached thereto are duly
executed, true and complete copies of the Sale Agreement and
the Servicing Agreement; and
(v) stating that all filings with the PUCT and the
Texas Secretary of State pursuant to the Securitization Law
and the Financing Order relating to the Notes applied for and
all UCC financing statements with respect to the Note
Collateral which are required to be filed by the terms of the
Financing Order, the Securitization Law and the Sale
Agreement, the Servicing Agreement and this Indenture have
been filed as required.
(b) An Officer's Certificate from CPL, dated as of the Series
Issuance Date, to the effect that, in the case of the Transition
Property, immediately prior to the conveyance thereof to the Note
Issuer pursuant to the Sale Agreement:
(i) CPL was the owner of such Transition Property,
free and clear of any Lien; CPL had not assigned any interest
or participation in such Transition Property and the proceeds
thereof other than to the Note Issuer pursuant to the Sale
Agreement; CPL has the power and right to convey such
Transition Property and the proceeds thereof to the Note
Issuer; and CPL, subject to the terms of the Sale Agreement,
has validly conveyed to the Note Issuer all of its right,
title and interest in and to such Transition Property and the
proceeds thereof, free and clear of any Lien, mortgage,
pledge, charge, security interest, adverse claim or other
encumbrance; and
(ii) the attached copy of the Financing Order
creating such Transition Property is complete and correct.
(7) Opinion of Tax Counsel. CPL shall have delivered to the
Note Issuer and the Indenture Trustee an opinion of outside tax counsel
and/or a ruling from the Internal Revenue Service (as selected by, and
in form and substance reasonably satisfactory to, CPL) to the effect
that, for federal income tax purposes, (i) such issuance of Notes will
not result in gross income to CPL and the Notes will be obligations of
CPL and (ii) in the case of a sale of subsequent Transition Property
only, such issuance will not materially adversely affect the
characterization of any then Outstanding Notes as obligations of CPL
for tax purposes.
(8) Opinion of Counsel. Unless otherwise specified in a
Trustee's Issuance Certificate or Series Supplement, if any, an Opinion
of Counsel, portions of which may be delivered by counsel for the Note
Issuer, portions of which may be delivered by counsel for the Servicer,
and portions of which may be delivered by counsel for the Indenture
Trustee, dated the Series Issuance Date, in each case subject to the
customary exceptions, qualifications and assumptions contained therein,
to the collective effect that:
(a) the Indenture has been duly qualified under the
Trust Indenture Act and either the related Trustee's Issuance
Certificate or Series Supplement, if any, has been duly
qualified under the Trust Indenture Act or no such
qualification of the Trustee's Issuance Certificate or Series
Supplement is necessary;
(b) all instruments furnished to the Indenture
Trustee pursuant to this Indenture conform to the requirements
set forth in this Indenture and constitute all of the
documents required to be delivered hereunder for the Indenture
Trustee to authenticate and deliver the Notes applied for, and
all conditions precedent provided for in this Indenture
relating to the authentication and delivery of the Notes have
been complied with;
(c) the Note Issuer has the corporate power and
authority to execute and deliver the Trustee's Issuance
Certificate, if any, the Series Supplement, if any, and this
Indenture and to issue the Notes, and each of the Trustee's
Issuance Certificate, if any, the Series Supplement, if any,
this Indenture, and the Notes have been duly authorized and
the Note Issuer is duly created and is validly existing in
good standing under the laws of the jurisdiction of its
organization;
(d) the Trustee's Issuance Certificate, if any, the
Series Supplement, if any, and the Indenture have been duly
executed and delivered by the Note Issuer;
(e) the Notes applied for have been duly authorized
and executed and, when authenticated in accordance with the
provisions of the Indenture and delivered against payment of
the purchase price therefor, will constitute valid and binding
obligations of the Note Issuer (subject to bankruptcy,
insolvency, reorganization and other similar laws affecting
the rights of creditors generally and general principles of
equity), entitled to the benefits of the Indenture and any
related Trustee's Issuance Certificate or Series Supplement;
(f) this Indenture, the Sale Agreement, the Servicing
Agreement and the related Trustee's Issuance Certificate or
Series Supplement, if any, are valid and binding agreements of
the Note Issuer, enforceable in accordance with their
respective terms, except as such enforceability may be subject
to bankruptcy, insolvency, reorganization and other similar
laws affecting the rights of creditors generally and general
principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law);
(g) [in accordance with the Securitization Law, the
Financing Order relating to the Notes applied for (A) creates
a contract right, which includes the right to impose, collect,
and receive Transition Charges authorized in the Financing
Order, which contract right becomes Transition Property at the
time that it is first transferred in connection with the
issuance of Notes; (B) approves and authorizes the sale,
transfer and assignment by CPL of such Transition Property to
the Note Issuer; (C) approves the issuance and sale by the
Note Issuer of the Notes to be issued on such Series Issuance
Date in an aggregate principal amount which equals or exceeds
the initial Outstanding Amount of the Notes referred to in (1)
above; and (D) declares and establishes that such Notes are
"Transition Bonds" within the meaning of Section 39.302(6) of
the Securitization Law];
(h) (A) at the time value is received by the Note
Issuer for the Notes the Lien of this Indenture in favor of
the Holders in the Transition Property attaches automatically;
(B) such Lien has been perfected in accordance with Section
39.309(D) of the Securitization Law and in accordance with the
Financing Order; (C) such Lien is valid and enforceable
against CPL, the Servicer, the Note Issuer, and all third
parties, including judgment Lien creditors; and (D) such Lien
ranks prior to any other Lien which subsequently attaches to
the Transition Property;
(i) with respect to the Note Collateral other than
the Transition Property, upon the giving of value by the
Indenture Trustee to the Note Issuer with respect to such Note
Collateral, (A) this Indenture, together with any related
Trustee's Issuance Certificate or Series Supplement, creates
in favor of the Indenture Trustee a Lien in the rights of the
Note Issuer in such Note Collateral, and such Lien is
enforceable against CPL, the Servicer, the Note Issuer and all
third parties, (B) such Lien is perfected, and (C) such
perfected Lien is of first priority;
(j) either (A) the registration statement covering
the Notes is effective under the Securities Act and, to such
counsel's knowledge, no stop order suspending the
effectiveness of such registration statement has been issued
under the Securities Act and no proceedings for that purpose
have been initiated or are pending or threatened by the SEC or
(B) the Notes are exempt from the registration requirements
under the Securities Act;
(k) neither the Note Issuer nor CPL is now and,
assuming that the Note Issuer uses the net proceeds of the
sale of the Notes for the purpose of acquiring Transition
Property in accordance with the terms of the Sale Agreement
following the sale of the Notes to the underwriter,
underwriters, placement agent or agents or similar Person,
neither the Note Issuer nor CPL will be required to be
registered under the Investment Company Act of 1940, as
amended;
(l) the Sale Agreement is a valid and binding
agreement of CPL enforceable against CPL in accordance with
its terms, except in each case as such enforceability may be
subject to bankruptcy, insolvency, reorganization and other
similar laws affecting the rights of creditors generally and
general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at
law);
(m) the Servicing Agreement is a valid and binding
agreement of the Servicer enforceable against the Servicer in
accordance with its terms, except as such enforceability may
be subject to bankruptcy, insolvency, reorganization and other
similar laws affecting the rights of creditors generally and
general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at
law);
(n) pursuant to the Financing Order relating to the
Notes applied for and upon the delivery of the fully executed
Sale Agreement (or, with respect to Subsequent Transition
Property, a bill of sale in the form required by the Sale
Agreement) to the Note Issuer and the payment of the purchase
price of the Transition Property by the Note Issuer to CPL
pursuant to the Sale Agreement, (i) the transfer of the
Transition Property by CPL to the Note Issuer conveys CPL's
right, title and interest in the Transition Property to the
Note Issuer and will be treated under Texas state law as a
true sale of all of CPL's title, legal and equitable, in the
Transition Property, other than for federal income and, to the
extent consistent with applicable state tax law, state income
and franchise tax purposes, (ii) such transfer of the
Transition Property is perfected, (iii) such transfer has
priority over any other assignment of the Transition Property
and (iv) the Transition Property is free and clear of all
Liens created prior to its transfer to the Note Issuer
pursuant to the Sale Agreement; and
(o) such other matters as the Indenture Trustee may
reasonably require.
(9) Accountant's Certificate or Opinion. Unless otherwise
specified in a Trustee's Issuance Certificate or a Series Supplement,
if any, a certificate or opinion, addressed to the Note Issuer and the
Indenture Trustee complying with the requirements of Section 11.01(a),
of a firm of Independent certified public accountants of recognized
national reputation to the effect that (a) such accountants are
Independent with respect to the Note Issuer within the meaning of this
Indenture, and are independent public accountants within the meaning of
the standards of The American Institute of Certified Public
Accountants, and (b) with respect to the Note Collateral, they have
made such calculations as they deemed necessary for the purpose and
determined that, based on the assumptions used in calculating the
initial Transition Charges or, if applicable, the most recent revised
Transition Charges, as of the Series Issuance Date for such Series
(after giving effect to the issuance of such Series and the application
of the proceeds therefrom) such Transition Charges are sufficient to
pay (a) Operating Expenses when incurred, plus (b) the Required
Overcollateralization Level, plus (c) interest on each Series of Notes
at their respective Note Interest Rates when due, plus (d) principal of
each Series of Notes in accordance with the Expected Amortization
Schedule.
(10) Rating Agency Condition. The Indenture Trustee shall
receive evidence reasonably satisfactory to it that the Rating Agency
Condition will be satisfied with respect to the issuance of such new
Series.
(11) Requirements of Trustee's Issuance Certificate or Series
Supplement. Such other funds, accounts, documents certificates,
agreements, instruments or opinions as may be required by the terms of
the Trustee's Issuance Certificate or Series Supplement, if any,
creating such Series.
(12) Other Requirements. Such other documents, certificates,
agreements, instruments or opinions as the Indenture Trustee may
reasonably require.
SECTION 2.11. Book-Entry Notes. Unless the applicable
Trustee's Issuance Certificate or Series Supplement, if any, provides otherwise,
all of the related Series of Notes shall be issued in Book-Entry Form, and the
Note Issuer shall execute and the Indenture Trustee shall, in accordance with
this Section and the Issuer Order with respect to such Series, authenticate and
deliver one or more Global Notes, evidencing the Notes of such Series which (i)
shall be an aggregate original principal amount equal to the aggregate original
principal amount of such Notes to be issued pursuant to the applicable Issuer
Order, (ii) shall be registered in the name of the Clearing Agency therefor or
its nominee, which shall initially be Cede & Co., as nominee for The Depository
Trust Company, the initial Clearing Agency, (iii) shall be delivered by the
Indenture Trustee to such Clearing Agency's or such nominee's instructions, and
(iv) shall bear a legend substantially to the following effect: ["Transfers of
this Global Note shall be limited to transfers in the Clearing Agency or to a
successor thereof or such successor's nominee and transfers of portions of this
Global Note shall be limited to transfers made in accordance with the
restrictions set forth in the Indenture."]
Each Clearing Agency designated pursuant to this Section 2.11
must, at the time of its designation and at all times while it serves as
Clearing Agency hereunder, be a "clearing agency" registered under the Exchange
Act and any other applicable statute or regulation.
No Holder of any such Series of Notes issued in Book-Entry
Form shall receive a Definitive Note representing such Holder's interest in any
such Notes, except as provided in Section 2.13 or in the applicable Trustee's
Issuance Certificate or Series Supplement, if any, relating to such Notes.
Unless (and until) certificated, fully registered Notes of any Series (the
"Definitive Notes") have been issued to the Holders of such Series pursuant to
Section 2.13 or pursuant to any applicable Trustee's Issuance Certificate or
Series Supplement, if any, relating thereto:
(a) the provisions of this Section 2.11 shall be
in full force and effect;
(b) the Note Issuer, the Servicer, the Paying Agent,
the Note Registrar and the Indenture Trustee may deal with the
Clearing Agency for all purposes (including the making of
distributions on the Notes of such Series) as the authorized
representatives of the Holders of such Series;
(c) to the extent that the provisions of this Section
2.11 conflict with any other provisions of this Indenture, the
provisions of this Section 2.11 shall control; and
(d) the rights of Holders of such Series shall be
exercised only through the Clearing Agency and the Clearing
Agency Participants and shall be limited to those established
by law and agreements between such Holders and the Clearing
Agency and/or the Clearing Agency Participants. Unless and
until Definitive Notes are issued pursuant to Section 2.13,
the initial Clearing Agency will make book-entry transfers
among the Clearing Agency Participants and receive and
transmit distributions of principal and interest on the
Book-Entry Notes to such Clearing Agency Participants.
SECTION 2.12. Notices to Clearing Agency. Unless and until
Definitive Notes shall have been issued to Holders of such Series pursuant to
Section 2.13 or the applicable Trustee's Issuance Certificate or Series
Supplement, if any, relating to such Notes, whenever notice, payment, or other
communication to the holders of Book-Entry Notes of any Series is required under
this Indenture, the Indenture Trustee, the Servicer and the Paying Agent shall
give all such notices and communications specified herein to be given to Holders
of such Series to the Clearing Agency.
SECTION 2.13. Definitive Notes. If (i)(A) the Note Issuer
advises the Indenture Trustee in writing that the Clearing Agency is no longer
willing or able to properly discharge its responsibilities under any Letter of
Representations and (B) the Note Issuer is unable to locate a qualified
successor Clearing Agency, (ii) the Note Issuer, at its option, advises the
Indenture Trustee in writing that, with respect to any Series, it elects to
terminate the book-entry system through the Clearing Agency or (iii) after the
occurrence of a Servicer Default, Holders holding Notes aggregating not less
than 50% of the aggregate Outstanding Amount of any Series of Notes maintained
as Book-Entry Notes advise the Indenture Trustee, CPL, the Note Issuer and the
Clearing Agency (through the Clearing Agency Participants) in writing that the
continuation of a book-entry system through the Clearing Agency is no longer in
the best interests of the Holders of such Series, CPL shall notify the Clearing
Agency, the Indenture Trustee and all such Holders of such Series in writing of
the occurrence of any such event and of the availability of Definitive Notes of
such Series to the Holders of such Series requesting the same. Upon surrender to
the Indenture Trustee of the Global Notes of such Series by the Clearing Agency
accompanied by registration instructions from such Clearing Agency for
registration, the Note Issuer shall execute, and the Indenture Trustee shall
authenticate and deliver, Definitive Notes of such Series. None of the Note
Issuer, the Note Registrar or the Indenture Trustee shall be liable for any
delay in delivery of such instructions and may conclusively rely on, and shall
be fully protected in relying on, such instructions. Upon the issuance of
Definitive Notes of any Series, all references herein to obligations with
respect to such Series imposed upon or to be performed by the Clearing Agency
shall be deemed to be imposed upon and performed by the Indenture Trustee, to
the extent applicable with respect to such Definitive Notes and the Indenture
Trustee shall recognize the Holders of the Definitive Notes as Holders
hereunder.
SECTION 2.14. CUSIP Number. The Note Issuer in issuing any
Note or Series of Notes may use a "CUSIP" number and, if so used, the Indenture
Trustee shall use the CUSIP number in any notices to the Holders thereof as a
convenience to such Holders; provided, that any such notice may state that no
representation is made as to the correctness or accuracy of the CUSIP number
printed in the notice or on the Notes and that reliance may be placed only on
the other identification numbers printed on the Notes. The Note Issuer shall
promptly notify the Indenture Trustee in writing of any change in the CUSIP
number with respect to any Note.
SECTION 2.15. Letter of Representations. Notwithstanding
anything to the contrary in this Indenture or any Series Supplement or any
Trustee's Issuance Certificate, the parties hereto shall comply with the terms
of each Letter of Representations.
SECTION 2.16. Release of Note Collateral. Subject to Section
11.01, the Indenture Trustee shall release property from the Lien of this
Indenture only as specified in Section 8.02(d) or Section 8.04 or upon receipt
of an Issuer Request accompanied by an Officer's Certificate, an Opinion of
Counsel and Independent Certificates in accordance with TIA ss.ss.314(c) and
314(d)(l) or an Opinion of Counsel in lieu of such Independent Certificates to
the effect that the TIA does not require any such Independent Certificates.
SECTION 2.17. Special Terms Applicable to Subsequent Transfers
of Certain Notes. (a) Certain Series of Notes may not be registered under the
Securities Act, or the securities laws of any other jurisdiction. Consequently,
such Unregistered Notes shall not be transferable other than pursuant to an
exemption from the registration requirements of the Securities Act and
satisfaction of certain other provisions specified herein or in the related
Trustee's Issuance Certificate or Series Supplement, if any. Unless otherwise
provided in the related Trustee's Issuance Certificate or Series Supplement, if
any, no sale, pledge or other transfer of any Unregistered Note (or interest
therein) may be made by any Person unless either (i) such sale, pledge or other
transfer is made to a "qualified institutional buyer" (as defined under Rule
144A under the Securities Act) or to an "institutional accredited investor" (as
described in Rule 501(a)(l), (2), (3) or (7) under the Securities Act) and, if
so requested by CPL or the Indenture Trustee, such proposed transferee executes
and delivers a certificate to such effect in form and substance satisfactory to
the Indenture Trustee and the Note Issuer, or (ii) such sale, pledge or other
transfer is otherwise made in a transaction exempt from, or not subject to, the
registration requirements of the Securities Act, in which case (A) the Indenture
Trustee shall require that both the prospective transferor and the prospective
transferee certify to the Indenture Trustee and the Note Issuer in writing the
facts surrounding such transfer, which certification shall be in form and
substance satisfactory to the Indenture Trustee and the Note Issuer, and (B) the
Indenture Trustee shall require a written opinion of counsel (which shall not be
at the expense of the Note Issuer, the Servicer or the Indenture Trustee)
satisfactory to the Note Issuer and the Indenture Trustee to the effect that
such transfer will not violate the Securities Act. None of CPL, the Note Issuer,
the Indenture Trustee or the Servicer shall be obligated to register any
Unregistered Notes under the Securities Act, qualify any Unregistered Notes
under the securities laws of any state or provide registration rights to any
purchaser or holder thereof.
(b) Unless otherwise provided in the related Trustee's
Issuance Certificate or Series Supplement, if any, the Unregistered Notes may
not be acquired by or for the account of a Benefit Plan and, by accepting and
holding an Unregistered Note, the Holder thereof shall be deemed to have
represented and warranted that it is not a Benefit Plan and, if requested to do
so by the Note Issuer or the Indenture Trustee, the Holder of an Unregistered
Note shall execute and deliver to the Indenture Trustee a certificate to such
effect in form and substance satisfactory to the Indenture Trustee and the Note
Issuer.
(c) Unless otherwise provided in the related Trustee's
Issuance Certificate or Series Supplement, if any, Unregistered Notes shall be
issued in the form of Definitive Notes, shall be in fully registered form and
Sections 2.11 and 2.12 of this Indenture shall not apply thereto.
(d) Each Unregistered Note shall bear legends to the effect
set forth in subsections (a) and (b) (if subsection (b) is applicable) above.
SECTION 2.18. Tax Treatment. The Note Issuer and the Indenture
Trustee, by entering into this Indenture, and the Holders and any Persons
holding a beneficial interest in any Note, by acquiring any Note or interest
therein, (i) express their intention that, for the purposes of federal taxes
and, to the extent consistent with applicable state, local and other tax law,
for the purposes of state, local and other taxes, the Notes qualify under
applicable tax law as indebtedness of CPL secured by the Note Collateral and
(ii) agree to treat the Notes as indebtedness of CPL secured by the Note
Collateral, for the purposes of federal taxes and, to the extent consistent with
applicable state, local and other tax law, for the purposes of state, local and
other taxes, unless otherwise required by appropriate taxing authorities.
SECTION 2.19. State Pledge. Under the laws of the State of
Texas in effect on the Closing Date, the State of Texas has agreed for the
benefit of the Holders, pursuant to Section 39.310 of the Securitization
Law, as follows:
"Transition bonds are not a debt or obligation of the state and are not
a charge on its full faith and credit or taxing power. The state
pledges, however, for the benefit and protection of financing parties
and the electric utility, that it will not take or permit any action
that would impair the value of transition property, or, except as
permitted by Section 39.307, reduce, alter, or impair the transition
charges to be imposed, collected, and remitted to financing parties,
until the principal, interest and premium, and any other charges
incurred and contracts to be performed in connection with the related
transition bonds have been paid and performed in full. Any party
issuing transition bonds is authorized to include this pledge in any
documentation relating to those bonds."
ARTICLE III
Covenants
SECTION 3.01. Payment of Principal, Premium, if any, and
Interest. The principal of and premium, if any, and interest on the Notes will
be duly and punctually paid in accordance with the terms of the Notes and this
Indenture. Amounts properly withheld under the Code or other tax laws by any
Person from a payment to any Holder of interest or principal or premium, if any,
shall be considered as having been paid by the Note Issuer to such Holder for
all purposes of this Indenture.
SECTION 3.02. Maintenance of Office or Agency. The Note Issuer
will maintain in the Borough of Manhattan, the City of New York, an office or
agency at _______________ _____________________________, New York, New York
_____ where Notes may be surrendered for registration of transfer or exchange.
The Note Issuer hereby initially appoints the Indenture Trustee to serve as its
agent for the foregoing purposes. The Note Issuer will give prompt written
notice to the Indenture Trustee of the location, and of any change in the
location, of any such office or agency. If at any time the Note Issuer shall
fail to maintain any such office or agency or shall fail to furnish the
Indenture Trustee with the address thereof, such surrenders may be made at the
Corporate Trust Office of the Indenture Trustee, and the Note Issuer hereby
appoints the Indenture Trustee as its agent to receive all such surrenders.
SECTION 3.03. Money for Payments To Be Held in Trust. As
provided in Section 8.02(a), all payments of amounts due and payable with
respect to any Notes that are to be made from amounts withdrawn from the
Collection Account pursuant to Section 8.02(d) shall be made on behalf of the
Note Issuer by the Indenture Trustee or by another Paying Agent, and no amounts
so withdrawn from the Collection Account for payments with respect to any Notes
shall be paid over to the Note Issuer except as provided in this Section and
Section 8.02.
The Note Issuer will cause each Paying Agent other than the
Indenture Trustee to execute and deliver to the Indenture Trustee an instrument
in which such Paying Agent shall agree with the Indenture Trustee (and if the
Indenture Trustee acts as Paying Agent, it hereby so agrees), subject to the
provisions of this Section, that such Paying Agent will:
(i) hold all sums held by it for the payment of amounts due
with respect to the Notes in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and pay such sums to such
Persons as herein provided;
(ii) give the Indenture Trustee written notice of any default
by the Note Issuer of which it has actual knowledge in the making of
any payment required to be made with respect to the Notes;
(iii) at any time during the continuance of any such default,
upon the written request of the Indenture Trustee, forthwith pay to the
Indenture Trustee all sums so held in trust by such Paying Agent;
(iv) immediately resign as a Paying Agent and forthwith pay to
the Indenture Trustee all sums held by it in trust for the payment of
Notes if at any time the Paying Agent determines that it has ceased to
meet the standards required to be met by a Paying Agent at the time of
such determination; and
(v) comply with all requirements of the Code and other tax
laws with respect to the withholding from any payments made by it on
any Notes of any applicable withholding taxes imposed thereon and with
respect to any applicable reporting requirements in connection
therewith.
The Note Issuer may at any time, for the purpose of obtaining
the satisfaction and discharge of this Indenture or for any other purpose, by
Issuer Order direct any Paying Agent to pay to the Indenture Trustee all sums
held in trust by such Paying Agent, such sums to be held by the Indenture
Trustee upon the same trusts as those upon which the sums were held by such
Paying Agent; and upon such payment by any Paying Agent to the Indenture
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Subject to applicable laws with respect to escheat of funds,
any money held by the Indenture Trustee or any Paying Agent in trust for the
payment of any amount due with respect to any Note and remaining unclaimed for
two years after such amount has become due and payable shall be discharged from
such trust and be paid to the Note Issuer on an Issuer Request; and, subject to
Section 11.16, the Holder of such Note shall thereafter, as an unsecured general
creditor, look only to the Note Issuer for payment thereof (but only to the
extent of the amounts so paid to the Note Issuer), and all liability of the
Indenture Trustee or such Paying Agent with respect to such trust money shall
thereupon cease; provided, however, that the Indenture Trustee or such Paying
Agent, before being required to make any such repayment, may at the expense of
the Note Issuer, cause to be published once, in a newspaper published in the
English language, customarily published on each Business Day and of general
circulation in the City of New York, notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days
from the date of such publication, any unclaimed balance of such money then
remaining will be repaid to the Note Issuer. The Indenture Trustee may also
adopt and employ, at the expense of the Note Issuer, any other reasonable means
of notification of such repayment (including, but not limited to, mailing notice
of such repayment to Holders whose Notes have been called but have not been
surrendered for redemption or whose right to or interest in moneys due and
payable but not claimed is determinable from the records of the Indenture
Trustee or of any Paying Agent, at the last address of record for each such
Holder).
SECTION 3.04. Existence. The Note Issuer will keep in full
effect its existence, rights and franchises as a limited liability company under
the laws of the State of Delaware (unless it becomes, or any successor Note
Issuer hereunder is or becomes, organized under the laws of any other State or
of the United States of America, in which case the Note Issuer will keep in full
effect its existence, rights and franchises under the laws of such other
jurisdiction) and will obtain and preserve its qualification to do business in
each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of this Indenture, the Notes, the Note
Collateral and each other instrument or agreement included in the Note
Collateral.
SECTION 3.05. Protection of Note Collateral The Note Issuer
will from time to time execute and deliver all such supplements and amendments
hereto and all filings with the PUCT or the Texas Secretary of State pursuant to
the Financing Order or to the Securitization Law and all financing statements,
continuation statements, instruments of further assurance and other instruments,
and will take such other action necessary or advisable to:
(i) maintain or preserve the Lien and security interest (and
the priority thereof) of this Indenture or carry out more effectively
the purposes hereof;
(ii) perfect, publish notice of or protect the validity of any
Grant made or to be made by this Indenture;
(iii) enforce any of the Note Collateral;
(iv) preserve and defend title to the Note Collateral and the
rights of the Indenture Trustee and the Holders in such Note Collateral
against the Claims of all Persons and parties, including the challenge
by any party to the validity or enforceability of any Financing Order,
any Tariff, the Transition Property or any proceeding relating thereto
and institute any action or proceeding necessary to compel performance
by the PUCT or the State of Texas of any of its obligations or duties
under the Securitization Law, the State Pledge, or any Financing Order;
or
(v) pay any and all taxes levied or assessed upon all or any
part of the Note Collateral.
The Note Issuer hereby designates the Indenture Trustee its agent and
attorney-in-fact to execute any filings with the PUCT or the Texas Secretary of
State, financing statements, continuation statements or other instrument
required by the Indenture Trustee pursuant to this Section, it being understood
that the Indenture Trustee shall have no such obligation or any duty to prepare
such documents.
SECTION 3.06. Opinions as to Note Collateral. (a) On the
Series Issuance Date for each Series (including the Closing Date), the Note
Issuer shall furnish to the Indenture Trustee an Opinion of Counsel either
stating that, in the opinion of such counsel, such action has been taken with
respect to the recording and filing of this Indenture, any indentures
supplemental hereto, and any other requisite documents, and with respect to the
execution and filing of any filings with the PUCT pursuant to the Securitization
Law and the applicable Financing Order and any financing statements and
continuation statements, as are necessary to perfect and make effective the Lien
and security interest of this Indenture and reciting the details of such action,
or stating that, in the opinion of such counsel, no such action is necessary to
make such Lien and security interest effective.
(b) On or before [September 30] in each calendar year, while
any Series is outstanding, beginning on [September 30], ____, the Note Issuer
shall furnish to the Indenture Trustee an Opinion of Counsel either stating
that, in the opinion of such counsel, such action has been taken with respect to
the recording, filing, re-recording and refiling of this Indenture, any
indentures supplemental hereto and any other requisite documents and with
respect to the execution and filing of any filings with the PUCT or the Texas
Secretary of State pursuant to the Securitization Law and the applicable
Financing Order and any financing statements and continuation statements as is
necessary to maintain the Lien created by this Indenture and reciting the
details of such action or stating that, in the opinion of such counsel, no such
action is necessary to maintain such Lien. Such Opinion of Counsel shall also
describe the recording, filing, re-recording and refiling of this Indenture, any
indentures supplemental hereto and any other requisite documents and the
execution and filing of any filings with the PUCT or the Texas Secretary of
State, financing statements and continuation statements that will, in the
opinion of such counsel, be required to maintain the Lien created by this
Indenture until [September 30] in the following calendar year.
(c) Prior to the effectiveness of any amendment to the Sale
Agreement, the Note Issuer shall furnish to the Indenture Trustee an Opinion of
Counsel either (A) stating that, in the opinion of such counsel, all filings,
including filings with the PUCT and the Texas Secretary of State pursuant to the
Securitization Law, or the applicable Financing Order, have been executed and
filed that are necessary fully to preserve and protect the interest of the Note
Issuer and the Indenture Trustee in the Transition Property and the proceeds
thereof, and reciting the details of such filings or referring to prior Opinions
of Counsel in which such details are given, or (B) stating that, in the opinion
of such counsel, no such action shall be necessary to preserve and protect such
interest.
SECTION 3.07. Performance of Obligations; Servicing; SEC
Filings. (a) The Note Issuer (i) will diligently pursue any and all actions to
enforce its rights under each instrument or agreement included in the Note
Collateral and (ii) will not take any action and will use its best efforts not
to permit any action to be taken by others that would release any Person from
any of such Person's covenants or obligations under any such instrument or
agreement or that would result in the amendment, hypothecation, subordination,
termination or discharge of, or impair the validity or effectiveness of, any
such instrument or agreement, except, in each case, as expressly provided in
this Indenture, any Trustee's Issuance Certificate, any Series Supplement, the
Sale Agreement, the Servicing Agreement or such other instrument or agreement.
(b) The Note Issuer may contract with other Persons to assist
it in performing its duties under this Indenture, and any performance of such
duties by a Person identified to the Indenture Trustee herein or in an Officer's
Certificate of the Note Issuer shall be deemed to be action taken by the Note
Issuer. Initially, the Note Issuer has contracted with the Servicer to assist
the Note Issuer in performing its duties under this Indenture.
(c) The Note Issuer will punctually perform and observe all of
its obligations and agreements contained in this Indenture, the Basic Documents
and in the instruments and agreements included in the Note Collateral,
including, but not limited to, filing or causing to be filed all filings with
the PUCT pursuant to the Securitization Law or the Financing Order, all UCC
financing statements and continuation statements required to be filed by it by
the terms of this Indenture, the Sale Agreement and the Servicing Agreement in
accordance with and within the time periods provided for herein and therein.
(d) If the Note Issuer shall have knowledge of the occurrence
of a Servicer Default under the Servicing Agreement, the Note Issuer shall
promptly give written notice thereof to the Indenture Trustee and the Rating
Agencies, and shall specify in such notice the response or action, if any, the
Note Issuer has taken or is taking with respect of such default. If a Servicer
Default shall arise from the failure of the Servicer to perform any of its
duties or obligations under the Servicing Agreement with respect to the
Transition Property or the Transition Charges, the Note Issuer shall take all
reasonable steps available to it to remedy such failure.
(e) As promptly as possible after the giving of notice of
termination to the Servicer and the Rating Agencies of the Servicer's rights and
powers pursuant to [Section 7.01] of the Servicing Agreement, the Note Issuer
shall appoint a successor Servicer (the "Successor Servicer"), and such
Successor Servicer shall accept its appointment by a written assumption in a
form acceptable to the Note Issuer and the Indenture Trustee. A Person shall
qualify as a Successor Servicer only if such Person satisfies the requirements
of the Servicing Agreement. If within 30 days after the delivery of the notice
referred to above, the Note Issuer shall not have obtained such a Successor
Servicer, the Indenture Trustee may petition the PUCT or a court of competent
jurisdiction to appoint a Successor Servicer. In connection with any such
appointment, CPL may make such arrangements for the compensation of such
Successor Servicer as it and such successor shall agree, subject to the
limitations set forth below and in the Servicing Agreement.
(f) Upon any termination of the Servicer's rights and powers
pursuant to the Servicing Agreement, the Indenture Trustee shall promptly notify
the Note Issuer, the Holders and the Rating Agencies. As soon as a Successor
Servicer is appointed, the Indenture Trustee shall notify the Note Issuer, the
Holders and the Rating Agencies of such appointment, specifying in such notice
the name and address of such Successor Servicer.
(g) Without derogating from the absolute nature of the
assignment Granted to the Indenture Trustee under this Indenture or the rights
of the Indenture Trustee hereunder, the Note Issuer agrees that it will not,
without the prior written consent of the Indenture Trustee or the Holders of at
least a majority in Outstanding Amount of the Notes of all Series, amend,
modify, waive, supplement, terminate or surrender, or agree to any amendment,
modification, supplement, termination, waiver or surrender of, the terms of any
Note Collateral or the Basic Documents, or waive timely performance or
observance by or the Servicer under the Sale Agreement or the Servicing
Agreement, respectively; provided, that no such consent shall be required if (i)
the Indenture Trustee shall have received an Officer's Certificate stating that
such waiver, amendment, modification, supplement or termination shall not
adversely affect in any material respect the interests of the Holders and (ii)
the Rating Agency Condition shall have been satisfied with respect thereto. If
any such amendment, modification, supplement or waiver shall be so consented to
by the Indenture Trustee or such Holders, the Note Issuer agrees to execute and
deliver, in its own name and at its own expense, such agreements, instruments,
consents and other documents as shall be necessary or appropriate in the
circumstances. The Note Issuer agrees that no such amendment, modification,
supplement or waiver shall adversely affect the rights of the Holders of the
Notes outstanding at the time of any such amendment, modification, supplement or
waiver.
(h) The Note Issuer shall file with the SEC such periodic
reports, if any, as are required from time to time under Section 13 or Section
15(d) of the Exchange Act.
(i) The Note Issuer shall make all filings required under the
Securitization Law relating to the transfer of the ownership or security
interest in the Transition Property other than those required to be made by CPL
pursuant to the Basic Documents.
SECTION 3.08. Certain Negative Covenants. (a) So long as
any Notes are Outstanding, the Note Issuer shall not:
(i) except as expressly permitted by this Indenture, sell,
transfer, exchange or otherwise dispose of any of the properties or
assets of the Note Issuer, including those included in the Note
Collateral, unless directed to do so by the Indenture Trustee in
accordance with Article V;
(ii) claim any credit on, or make any deduction from the
principal or premium, if any, or interest payable in respect of, the
Notes (other than amounts properly withheld from such payments under
the Code or other tax laws) or assert any claim against any present or
former Holder by reason of the payment of the taxes levied or assessed
upon any part of the Note Collateral;
(iii) terminate its existence or dissolve or liquidate in
whole or in part, except in a transaction permitted by Section 3.10; or
(iv) (A) permit the validity or effectiveness of this
Indenture to be impaired, or permit the Lien of this Indenture to be
amended, hypothecated, subordinated, terminated or discharged, or
permit any Person to be released from any covenants or obligations with
respect to the Notes under this Indenture except as may be expressly
permitted hereby, (B) permit any Lien, charge, excise, claim, security
interest, mortgage or other encumbrance (other than the Lien of this
Indenture), to be created on or extend to or otherwise arise upon or
burden the Note Collateral or any part thereof or any interest therein
or the proceeds thereof (other than tax Liens arising by operation of
law with respect to amounts not yet due) or (C) permit the Lien of this
Indenture not to constitute a valid first priority security interest in
the Note Collateral; or
(v) elect to be classified as an association taxable as a
corporation for federal income tax purposes.
SECTION 3.09. Annual Statement as to Compliance. The Note
Issuer will deliver to the Indenture Trustee and the Rating Agencies not later
than [September 30] of each year (commencing with [September 30, ____]), an
Officer's Certificate stating, as to the Responsible Officer signing such
Officer's Certificate, that
(i) a review of the activities of the Note Issuer during the
preceding twelve months ended [June 30] (or, in the case of the first
such certificate, since the Series Issuance Date) and of performance
under this Indenture has been made; and
(ii) to the best of such Responsible Officer's knowledge,
based on such review, the Note Issuer has in all material respects
complied with all conditions and covenants under this Indenture
throughout such twelve month period, or, if there has been a default in
the compliance of any such condition or covenant, specifying each such
default known to such Responsible Officer and the nature and status
thereof.
SECTION 3.10. Note Issuer May Consolidate, etc., Only on
Certain Terms. (a) The Note Issuer shall not consolidate or merge with or
into any other Person, unless
(i) the Person (if other than the Note Issuer) formed by or
surviving such consolidation or merger shall be a Person organized and
existing under the laws of the United States of America or any State
and shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Indenture Trustee, in form and substance
satisfactory to the Indenture Trustee, the performance or observance of
every agreement and covenant of this Indenture on the part of the Note
Issuer to be performed or observed, all as provided herein and in the
applicable Trustee's Issuance Certificates and Series Supplements, if
any;
(ii) immediately after giving effect to such merger or
consolidation, no Default or Event of Default shall have occurred and
be continuing;
(iii) the Rating Agency Condition shall have been satisfied
with respect to such merger or consolidation;
(iv) CPL shall have delivered to the Note Issuer and the
Indenture Trustee an opinion of outside tax counsel (as selected by,
and in form and substance reasonably satisfactory to, CPL, and which
may be based on a ruling from the Internal Revenue Service) to the
effect that such consolidation or merger will not result in a material
adverse federal income tax consequence to CPL, the Note Issuer, the
Indenture Trustee or the then existing Holders;
(v) any action as is necessary to maintain the Lien created by
this Indenture shall have been taken; and
(vi) the Note Issuer shall have delivered to the Indenture
Trustee an Officer's Certificate and an Opinion of Counsel each stating
that such consolidation or merger and such supplemental indenture
comply with this Section 3.10(a) and that all conditions precedent
herein provided for in this Section 3.10(a) with respect to such
transaction have been complied with (including any filing required by
the Exchange Act).
(b) Except as specifically provided herein, the Note Issuer shall not
sell, convey, exchange, transfer or otherwise dispose of any of its properties
or assets included in the Note Collateral, to any Person, unless
(i) the Person that acquires the properties and assets of the
Note Issuer, the conveyance or transfer of which is hereby restricted
shall (A) be a United States citizen or a Person organized and existing
under the laws of the United States of America or any State, (B)
expressly assumes, by an indenture supplemental hereto, executed and
delivered to the Indenture Trustee, in form and substance satisfactory
to the Indenture Trustee, the performance or observance of every
agreement and covenant of this Indenture on the part of the Note Issuer
to be performed or observed, all as provided herein and in the
applicable Trustee's Issuance Certificates or Series Supplements, if
any, (C) expressly agrees by means of such supplemental indenture that
all right, title and interest so sold, conveyed, exchanged, transferred
or otherwise disposed of shall be subject and subordinate to the rights
of Holders, (D) unless otherwise provided in the supplemental indenture
referred to in clause (B) above, expressly agrees to indemnify, defend
and hold harmless the Note Issuer against and from any loss, liability
or expense arising under or related to this Indenture and the Notes and
(E) expressly agrees by means of such supplemental indenture that such
Person (or if a group of Persons, then one specified Person) shall make
all filings with the SEC (and any other appropriate Person) required by
the Exchange Act in connection with the Notes;
(ii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied
with respect to such transaction;
(iv) CPL shall have delivered to the Note Issuer and the
Indenture Trustee an opinion of outside tax counsel (as selected by,
and in form and substance reasonably satisfactory to, CPL, and which
may be based on a ruling from the Internal Revenue Service) to the
effect that such transaction will not result in a material adverse
federal income tax consequence to CPL, the Note Issuer, the Indenture
Trustee or the then existing Holders;
(v) any action as is necessary to maintain the Lien and
security interest created by this Indenture pursuant to the Financing
Order or the Securitization Law shall have been taken; and
(vi) the Note Issuer shall have delivered to the Indenture
Trustee an Officer's Certificate and an Opinion of Counsel each stating
that such sale, conveyance, exchange, transfer or other disposition and
such supplemental indenture comply with this Section 3.10(b) and that
all conditions precedent herein provided for in this Section 3.10(b)
with respect to such transaction have been complied with (including any
filing required by the Exchange Act).
SECTION 3.11. Successor or Transferee. (a) Upon any
consolidation or merger of the Note Issuer in accordance with Section 3.10(a),
the Person formed by or surviving such consolidation or merger (if other than
the Note Issuer) shall succeed to, and be substituted for, and may exercise
every right and power of, the Note Issuer under this Indenture with the same
effect as if such Person had been named as the Note Issuer herein.
(b) Except as set forth in Section 6.07, upon a sale,
conveyance, exchange, transfer or other disposition of all the assets and
properties of the Note Issuer pursuant to Section 3.10(b), the Note Issuer will
be released from every covenant and agreement of this Indenture and the other
Basic Documents to be observed or performed on the part of the Note Issuer with
respect to the Notes and the Transition Property immediately upon the delivery
of written notice to the Indenture Trustee from the Person acquiring such assets
and properties stating that the Note Issuer is to be so released.
SECTION 3.12. No Other Business. The Note Issuer shall not
engage in any business other than financing, purchasing, owning and managing the
Transition Property and the other Note Collateral and the issuance of the Notes
in the manner contemplated by the Financing Order and this Indenture and the
Basic Documents and activities incidental thereto.
SECTION 3.13. No Borrowing. The Note Issuer shall not issue,
incur, assume, guarantee or otherwise become liable, directly or indirectly, for
any indebtedness except for the Notes or any Swap Agreement.
SECTION 3.14. Servicer's Obligations. The Note Issuer
shall enforce the Servicer's compliance with and performance of all of the
Servicer's material obligations under the Servicing Agreement.
SECTION 3.15. Guarantees, Loans, Advances and Other
Liabilities. Except as otherwise contemplated by the Sale Agreement, the
Servicing Agreement, any Swap Agreement or this Indenture, the Note Issuer shall
not make any loan or advance or credit to, or guarantee (directly or indirectly
or by an instrument having the effect of assuring another's payment or
performance on any obligation or capability of so doing or otherwise), endorse
or otherwise become contingently liable, directly or indirectly, in connection
with the obligations, stocks or dividends of, or own, purchase, repurchase or
acquire (or agree contingently to do so) any stock, obligations, assets or
securities of, or any other interest in, or make any capital contribution to,
any other Person.
SECTION 3.16. Capital Expenditures. Other than the purchase of
Transition Property from CPL on each Series Issuance Date and other than
expenditures made out of available funds in an aggregate amount not to exceed
$25,000 in any calendar year, the Note Issuer shall not make any expenditure (by
long-term or operating lease or otherwise) for capital assets (either realty or
personalty).
SECTION 3.17. Restricted Payments. The Note Issuer shall not,
directly or indirectly, (i) pay any dividend or make any distribution (by
reduction of capital or otherwise), whether in cash, property, securities or a
combination thereof, to any owner of a beneficial interest in the Note Issuer or
otherwise with respect to any ownership or equity interest or similar security
in or of the Note Issuer, (ii) redeem, purchase, retire or otherwise acquire for
value any such ownership or equity interest or similar security or (iii) set
aside or otherwise segregate any amounts for any such purpose; provided,
however, that, if no Event of Default shall have occurred and be continuing, the
Note Issuer may make, or cause to be made, any such distributions to any owner
of a beneficial interest in the Note Issuer or otherwise with respect to any
ownership or equity interest or similar security in or of the Note Issuer using
funds distributed to the Note Issuer pursuant to Section 8.02(d) to the extent
that such distributions would not cause the book value of the remaining equity
in the Note Issuer to decline below 0.5 percent of the original principal amount
of all Series of Notes which remain outstanding. The Note Issuer will not,
directly or indirectly, make payments to or distributions from the Collection
Account except in accordance with this Indenture and the other Basic Documents.
SECTION 3.18. Notice of Events of Default. The Note Issuer
agrees to give the Indenture Trustee and the Rating Agencies prompt written
notice of each Event of Default hereunder and each default on the part of CPL or
the Servicer of its obligations under the Sale Agreement or the Servicing
Agreement, respectively.
SECTION 3.19. Further Instruments and Acts. Upon request of
the Indenture Trustee, the Note Issuer will execute and deliver such further
instruments and do such further acts as may be reasonably necessary or proper to
carry out more effectively the purpose of this Indenture.
SECTION 3.20. Purchase of Subsequent Transition Property. (a)
The Note Issuer may from time to time purchase Subsequent Transition Property
from CPL pursuant to the Sale Agreement, subject to the conditions specified in
paragraph (b) below.
(b) The Note Issuer shall be permitted to purchase from CPL
Subsequent Transition Property and the proceeds thereof only upon the
satisfaction of each of the following conditions on or prior to the related
Subsequent Transfer Date:
(i) CPL shall have provided the Note Issuer, the Indenture
Trustee and the Rating Agencies with an Addition Notice, which shall be
given not later than 10 days prior to the related Subsequent Transfer
Date, specifying the Subsequent Transfer Date for such Subsequent
Transition Property and the aggregate amount of the Transition Charges
related to such Subsequent Transition Property, and shall have provided
any information reasonably requested by any of the foregoing Persons
with respect to the Subsequent Transition Property then being conveyed
to the Note Issuer;
(ii) the Securitization Law, the Sale Agreement and the
related Financing Order shall be in full force and effect and a filing
shall have been made pursuant to Section 39.309(D) of the
Securitization Law;
(iii) as of such Subsequent Transfer Date, CPL was not
insolvent and will not have been made insolvent by such sale and
transfer and CPL is not aware of any pending insolvency with respect to
itself;
(iv) the Rating Agency Condition shall have been satisfied
with respect to such sale and transfer;
(v) CPL shall have delivered to the Note Issuer and the
Indenture Trustee an opinion of outside tax counsel and/or a ruling
from the Internal Revenue Service (as selected by, and in form and
substance reasonably satisfactory to, CPL) to the effect that, for
federal income tax purposes (i) the PUCT's issuance of the Financing
Order authorizing the collection of the TCs will not result in gross
income to CPL and the Notes will be obligations of CPL, and (ii) the
assignment pursuant to the Sale Agreement will not adversely affect the
characterization of the then Outstanding Notes as obligations of CPL;
(vi) as of such Subsequent Transfer Date, no breach by CPL of
its representations, warranties or covenants in the Sale Agreement and
no Servicer Default shall exist;
(vii) as of such Subsequent Transfer Date, the Note Issuer
shall have sufficient funds available to pay the purchase price for the
Subsequent Transition Property to be conveyed on such date and all
conditions to the issuance of one or more Series of Notes intended to
provide such funds set forth in Section 2.10 of this Indenture shall
have been satisfied;
(viii) the Note Issuer shall have delivered to the Indenture
Trustee an Officer's Certificate confirming the satisfaction of each
condition precedent specified in this paragraph (b);
(ix) (A) the Note Issuer shall have delivered to the Rating
Agencies any Opinions of Counsel requested by the Rating Agencies and
(B) the Note Issuer shall have delivered to the Indenture Trustee the
Opinion of Counsel required by Section 3.06(c) of this Indenture; and
(x) CPL and the Note Issuer shall have taken any action
required to maintain the first perfected ownership interest of the Note
Issuer in the Subsequent Transition Property and the proceeds thereof,
and the Note Issuer shall have taken any action required to maintain
the first perfected security interest of the Indenture Trustee in the
Subsequent Transition Property and the proceeds thereof.
ARTICLE IV
Satisfaction and Discharge; Defeasance
SECTION 4.01. Satisfaction and Discharge of Indenture;
Defeasance. (a) This Indenture shall cease to be of further effect with respect
to the Notes of any Series and the Indenture Trustee, on reasonable demand of
and at the expense of the Note Issuer, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture with respect to the
Notes of such Series, when
(A) either
(1) all Notes of such Series theretofore
authenticated and delivered (other than (i) Notes that have
been destroyed, lost or stolen and that have been replaced or
paid as provided in Section 2.06 and (ii) Notes for whose
payment money has theretofore been deposited in trust or
segregated and held in trust by the Note Issuer and thereafter
repaid to the Note Issuer or discharged from such trust, as
provided in Section 3.03) have been delivered to the Indenture
Trustee for cancellation; or
(2) either (x) the Scheduled Payment Date has
occurred with respect to all Notes of such Series not
theretofore delivered to the Indenture Trustee for
cancellation, (y) such Notes will be due and payable on their
respective Scheduled Payment Dates within one year, or (z)
such Notes are to be called for redemption within one year in
accordance with the provisions of the applicable Trustee's
Issuance Certificate or Series Supplement, if any, and in any
such case, the Note Issuer has irrevocably deposited or caused
to be irrevocably deposited with the Indenture Trustee cash,
in trust for such purpose, in an amount sufficient to pay and
discharge the entire indebtedness on such Notes not
theretofore delivered to the Indenture Trustee for
cancellation when due;
(B) the Note Issuer has paid or caused to be paid all other
sums payable hereunder by the Note Issuer with respect to such Series;
and
(C) the Note Issuer has delivered to the Indenture Trustee an
Officer's Certificate, an Opinion of Counsel and (if required by the
TIA or the Indenture Trustee) an Independent Certificate from a firm of
certified public accountants, each meeting the applicable requirements
of Section 11.01(a) and each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture with respect to Notes of such Series have been complied with.
(b) Subject to Sections 4.01(c) and 4.02, the Note Issuer at
any time may terminate (i) all its obligations under this Indenture with respect
to the Notes of any Series ("Legal Defeasance Option") or (ii) its obligations
under Sections 3.04, 3.05, 3.06, 3.07, 3.08, 3.09, 3.10, 3.12, 3.13, 3.14, 3.15,
3.16, 3.17, 3.18 and 3.19 and the operation of Section 5.01(iv) ("Covenant
Defeasance Option") with respect to any Series of Notes. The Note Issuer may
exercise the Legal Defeasance Option with respect to any Series of Notes
notwithstanding its prior exercise of the Covenant Defeasance Option with
respect to such Series.
If the Note Issuer exercises the Legal Defeasance Option with
respect to any Series, the maturity of the Notes of such Series may not be
accelerated because of an Event of Default. If the Note Issuer exercises the
Covenant Defeasance Option with respect to any Series, the maturity of the Notes
of such Series may not be accelerated because of an Event of Default specified
in Section 5.01(iv).
Upon satisfaction of the conditions set forth herein to the
exercise of the Legal Defeasance Option or the Covenant Defeasance Option with
respect to any Series of Notes, the Indenture Trustee, on reasonable demand of
and at the expense of the Note Issuer, shall execute proper instruments
acknowledging satisfaction and discharge of the obligations that are terminated
pursuant to such exercise.
(c) Notwithstanding Sections 4.01(a) and 4.01(b) above, (i)
rights of registration of transfer and exchange, (ii) substitution of mutilated,
destroyed, lost or stolen Notes, (iii) rights of Holders to receive payments of
principal, premium, if any, and interest, (iv) Sections 4.03 and 4.04, (v) the
rights, obligations and immunities of the Indenture Trustee hereunder (including
the rights of the Indenture Trustee under Section 6.07 and the obligations of
the Indenture Trustee under Section 4.03) and (vi) the rights of Holders as
beneficiaries hereof with respect to the property deposited with the Indenture
Trustee payable to all or any of them, shall survive until the Notes of the
Series as to which this Indenture or certain obligations hereunder have be
satisfied and discharged pursuant to Section 4.01(a) or 4.01(b) have been paid
in full. Thereafter the obligations in Sections 6.07 and 4.04 with respect to
such Series shall survive.
SECTION 4.02. Conditions to Defeasance. The Note Issuer may
exercise the Legal Defeasance Option or the Covenant Defeasance Option with
respect to any Series of Notes only if:
(a) the Note Issuer irrevocably deposits or causes to be
deposited in trust with the Indenture Trustee cash or U.S. Government
Obligations for the payment of principal of and premium, if any, and
interest on such Notes to the Scheduled Payment Dates or Optional
Redemption Date therefor, as applicable;
(b) the Note Issuer delivers to the Indenture Trustee a
certificate from a nationally recognized firm of Independent
accountants expressing its opinion that the payments of principal and
interest when due and without reinvestment of the deposited U.S.
Government Obligations plus any deposited cash without investment will
provide cash at such times and in such amounts (but, in the case of the
Legal Defeasance Option only, not more than such amounts) as will be
sufficient to pay in respect of the Notes of such Series (i) subject to
clause (ii), principal in accordance with the Expected Amortization
Schedule therefor, (ii) if such Series is to be redeemed, the Optional
Redemption Price therefor on the Optional Redemption Date and (iii)
interest when due;
(c) in the case of the Legal Defeasance Option, 91 days pass
after the deposit is made and during the 91-day period no Default
specified in Section 5.01(vi) or (vii) occurs which is continuing at
the end of the period;
(d) no Default has occurred and is continuing on the day of
such deposit and after giving effect thereto;
(e) in the case of an exercise of the Legal Defeasance Option,
the Note Issuer shall have delivered to the Indenture Trustee an
Opinion of Counsel stating that (i) the Note Issuer has received from,
or there has been published by, the Internal Revenue Service a ruling,
or (ii) since the date of execution of this Indenture, there has been a
change in the applicable federal income tax law, in either case to the
effect that, and based thereon such opinion shall confirm that, the
Holders of the Notes of such Series will not recognize income, gain or
loss for federal income tax purposes as a result of such legal
defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such legal defeasance had not occurred;
(f) in the case of an exercise of the Covenant Defeasance
Option, the Note Issuer shall have delivered to the Indenture Trustee
an Opinion of Counsel to the effect that the Holders of the Notes of
such Series will not recognize income, gain or loss for federal income
tax purposes as a result of such covenant defeasance and will be
subject to federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such covenant
defeasance had not occurred;
(g) the Note Issuer delivers to the Indenture Trustee an
Officer's Certificate and an Opinion of Counsel, each stating that all
conditions precedent to the satisfaction and discharge of the Notes of
such Series to the extent contemplated by this Article IV have been
complied with; and
(h) the Rating Agency Condition shall have been satisfied with
respect to the exercise of any Legal Defeasance Option or Covenant
Defeasance Option.
Before or after a deposit pursuant to this Section 4.02 with
respect to any Series of Notes, the Note Issuer may make arrangements
satisfactory to the Indenture Trustee for the redemption of such Notes at a
future date in accordance with Article X.
SECTION 4.03. Application of Trust Money. All moneys or U.S.
Government Obligations deposited with the Indenture Trustee pursuant to Section
4.01 or 4.02 hereof shall be held in trust and applied by it, in accordance with
the provisions of the Notes and this Indenture, to the payment, either directly
or through any Paying Agent, as the Indenture Trustee may determine, to the
Holders of the particular Notes for the payment or redemption of which such
moneys have been deposited with the Indenture Trustee, of all sums due and to
become due thereon for principal, premium, if any, and interest; but such moneys
need not be segregated from other funds except to the extent required herein or
in the Servicing Agreement or required by law.
SECTION 4.04. Repayment of Moneys Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture or the Covenant
Defeasance Option or Legal Defeasance Option with respect to the Notes of any
Series, all moneys then held by any Paying Agent other than the Indenture
Trustee under the provisions of this Indenture with respect to such Notes shall,
upon demand of the Note Issuer, be paid to the Indenture Trustee to be held and
applied according to Section 3.03 and thereupon such Paying Agent shall be
released from all further liability with respect to such moneys.
ARTICLE V
Remedies
SECTION 5.01. Events of Default. "Event of Default" with respect to any
Series, wherever used herein, means any one of the following events (whatever
the reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(i) default in the payment of any interest on any Note when
the same becomes due and payable, and such default shall continue for a
period of five Business Days; or
(ii) default in the payment of the then unpaid principal of
any Note of any Series on the Final Maturity Date for such Series; or
(iii) default in the payment of the Optional Redemption Price
for any Note on the Optional Redemption Date therefor; or
(iv) default in the observance or performance in any material
respect of any covenant or agreement of the Note Issuer made in this
Indenture (other than defaults specified in clauses (i), (ii) or (iii)
above), and such default shall continue or not be cured, for a period
of 90 days after there shall have been given, by registered or
certified mail, to the Note Issuer by the Indenture Trustee or to the
Note Issuer and the Indenture Trustee by the Holders of at least 33
percent of the Outstanding Amount of the Notes of such Series, a
written notice specifying such default and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder; or
(v) any representation or warranty of the Note Issuer made in
this Indenture or in any certificate or other writing delivered
pursuant hereto or in connection herewith proving to have been
incorrect in any material respect as of the time when the same shall
have been made, and the circumstance or condition in respect of which
such misrepresentation or warranty was incorrect shall not have been
eliminated or otherwise cured, for a period of 90 days after there
shall have been given, by registered or certified mail, to the Note
Issuer by the Indenture Trustee or to the Note Issuer and the Indenture
Trustee by the Holders of at least 33 percent of the Outstanding Amount
of the Notes of such Series, a written notice specifying such incorrect
representation or warranty and requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder, or
(vi) the filing of a decree or order for relief by a court
having jurisdiction in the premises in respect of the Note Issuer or
any substantial part of the Note Collateral in an involuntary case
under any applicable federal or state bankruptcy, insolvency or other
similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar
official of the Note Issuer or for any substantial part of the Note
Collateral, or ordering the winding-up or liquidation of the Note
Issuer's affairs, and such decree or order shall remain unstayed and in
effect for a period of 60 consecutive days; or
(vii) the commencement by the Note Issuer of a voluntary case
under any applicable federal or state bankruptcy, insolvency or other
similar law now or hereafter in effect, or the consent by the Note
Issuer to the entry of an order for relief in an involuntary case under
any such law, or the consent by the Note Issuer to the appointment or
taking possession by a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official of the Note Issuer or for any
substantial part of the Note Collateral, or the making by the Note
Issuer of any general assignment for the benefit of creditors, or the
failure by the Note Issuer generally to pay its debts as such debts
become due, or the taking of action by the Note Issuer in furtherance
of any of the foregoing; or
(viii) any act or failure to act by the State of Texas or any
of its agencies (including the PUCT), officers or employees which
violates or is not in accordance with the State Pledge; or
(ix) any other event designated as such in a Trustee's
Issuance Certificate or Series Supplement, if any.
The Note Issuer shall deliver to a Responsible Officer of the
Indenture Trustee and to the Rating Agencies, within five days after a
Responsible Officer of the Note Issuer has knowledge of the occurrence thereof,
written notice in the form of an Officer's Certificate of any event (i) which is
an Event of Default under clauses (i), (ii), (iii), (vi), (vii), (viii) or (ix)
which with the giving of notice and the lapse of time would become an Event of
Default under clause (iv) or (v), including, in each case, the status of such
Event of Default and what action the Note Issuer is taking or proposes to take
with respect thereto.
.......SECTION 5.02. Acceleration of Maturity; Rescission and
Annulment. If an Event of Default (other than an Event of Default under clause
(viii) of Section 5.01) should occur and be continuing with respect to any
Series, then and in every such case the Indenture Trustee or the Holders
representing not less than a majority of the Outstanding Amount of the Notes of
all Series may declare all the Notes to be immediately due and payable, by a
notice in writing to the Note Issuer (and to the Indenture Trustee if given by
Holders), and upon any such declaration the unpaid principal amount of the Notes
of all Series, together with accrued and unpaid interest thereon through the
date of acceleration, shall become immediately due and payable.
At any time after such declaration of acceleration of maturity
has been made and before a judgment or decree for payment of the money due has
been obtained by the Indenture Trustee as hereinafter in this Article V
provided, the Holders representing a majority of the Outstanding Amount of the
Notes of all Series, by written notice to the Note Issuer and the Indenture
Trustee, may rescind and annul such declaration and its consequences if:
(i) the Note Issuer has paid or deposited with the Indenture
Trustee a sum sufficient to pay:
(A) all payments of principal of and premium, if any,
and interest on all Notes of all Series and all other amounts
that would then be due hereunder or upon such Notes if the
Event of Default giving rise to such acceleration had not
occurred; and
(B) all sums paid or advanced by the Indenture
Trustee hereunder and the reasonable compensation, expenses,
disbursements and advances of the Indenture Trustee and its
agents and counsel; and
(ii) all Events of Default with respect to all Series, other
than the nonpayment of the principal of the Notes of all Series that
has become due solely by such acceleration, have been cured or waived
as provided in Section 5.12.
No such rescission shall affect any subsequent default or
impair any right consequent thereto.
SECTION 5.03. Collection of Indebtedness and Suits for
Enforcement by Indenture Trustee. (a) If an Event of Default under Section
5.01(i), (ii) or (iii) has occurred and is continuing with respect to any
Series, subject to Section 11.18, the Indenture Trustee, in its own name and as
trustee of an express trust, may institute a Proceeding for the collection of
the sums so due and unpaid, and may prosecute such Proceeding to judgment or
final decree, and, subject to the limitations on recourse set forth herein, may
enforce the same and collect in the manner provided by law out of the Note
Collateral and the proceeds thereof, the whole amount then due and payable on
the Notes of such Series for principal, premium, if any, and interest, with
interest upon the overdue principal and premium, if any, and, to the extent
payment at such rate of interest shall be legally enforceable, upon overdue
installments of interest, at the respective rate borne by the Notes of such
Series or the applicable Class of such Series and in addition thereto such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Indenture Trustee and its agents and counsel.
(b) If an Event of Default (other than Event of Default under
clause (viii) of Section 5.01) occurs and is continuing with respect to any
Series, the Indenture Trustee may, as more particularly provided in Section
5.04, in its discretion, proceed to protect and enforce its rights and the
rights of the Holders of such Series, by such appropriate Proceedings as the
Indenture Trustee shall deem most effective to protect and enforce any such
rights, whether for the specific enforcement of any covenant or agreement in
this Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy or legal or equitable right vested in the
Indenture Trustee by this Indenture or by law.
(c) If an Event of Default under Section 5.01(vi) or (vii) has
occurred and is continuing, the Indenture Trustee, irrespective of whether the
principal of any Notes of any Series shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Indenture Trustee shall have made any demand pursuant to the provisions of this
Section, shall be entitled and empowered, by intervention in any Proceedings
related to such Event of Default or otherwise:
(i) to file and prove a claim or claims for the whole amount
of principal, premium, if any, and interest owing and unpaid in respect
of the Notes and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Indenture
Trustee (including any claim for reasonable compensation to the
Indenture Trustee and each predecessor Indenture Trustee, and their
respective agents, attorneys and counsel, and for reimbursement of all
expenses and liabilities incurred, and all advances made, by the
Indenture Trustee and each predecessor Indenture Trustee, except as a
result of negligence or bad faith) and of the Holders allowed in such
Proceedings;
(ii) unless prohibited by applicable law and regulations, to
vote on behalf of the Holders in any election of a trustee in
bankruptcy, a standby trustee or Person performing similar functions in
any such Proceedings; and
(iii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute all amounts
received with respect to the claims of the Holders and of the Indenture
Trustee on their behalf;
and any trustee, receiver, liquidator, custodian or other similar official in
any such Proceeding is hereby authorized by each of such Holders to make
payments to the Indenture Trustee, and, in the event that the Indenture Trustee
shall consent to the making of payments directly to such Holders, to pay to the
Indenture Trustee such amounts as shall be sufficient to cover reasonable
compensation to the Indenture Trustee, each predecessor Indenture Trustee and
their respective agents, attorneys and counsel, and all other expenses and
liabilities incurred, and all advances made, by the Indenture Trustee and each
predecessor Indenture Trustee except as a result of negligence or bad faith.
(d) Nothing herein contained shall be deemed to authorize the
Indenture Trustee to authorize or consent to or vote for or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder thereof or to
authorize the Indenture Trustee to vote in respect of the claim of any Holder in
any such proceeding except, as aforesaid, to vote for the election of a trustee
in bankruptcy or similar Person.
(e) All rights of action and of asserting claims under this
Indenture, or under any of the Notes of any Series, may be enforced by the
Indenture Trustee without the possession of any of the Notes of such Series or
the production thereof in any trial or other Proceedings relative thereto, and
any such action or proceedings instituted by the Indenture Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment, subject to the payment of the expenses, disbursements and compensation
of the Indenture Trustee, each predecessor Indenture Trustee and their
respective agents and attorneys, shall be for the ratable benefit of the Holders
of the Notes of such Series.
(f) In any Proceedings brought by the Indenture Trustee (and
also any Proceedings involving the interpretation of any provision of this
Indenture to which the Indenture Trustee shall be a party), the Indenture
Trustee shall be held to represent all the Holders of the Notes, and it shall
not be necessary to make any Holder a party to any such Proceedings.
SECTION 5.04. Remedies; Priorities. (a) If an Event of Default
(other than an Event of Default under clause (viii) of Section 5.01) shall have
occurred and be continuing with respect to a Series, the Indenture Trustee may
do one or more of the following (subject to Section 5.05):
(i) institute Proceedings in its own name and as trustee of an
express trust for the collection of all amounts then payable on the
Notes of such Series or under this Indenture with respect thereto,
whether by declaration of acceleration or otherwise, and, subject to
the limitations on recovery set forth herein, enforce any judgment
obtained, and collect moneys adjudged due upon such Notes;
(ii) institute Proceedings from time to time for the complete
or partial foreclosure of this Indenture with respect to the Note
Collateral;
(iii) exercise any remedies of a secured party under the UCC
or the Securitization Law and take any other appropriate action to
protect and enforce the rights and remedies of the Indenture Trustee
and the Holders of the Notes of such Series; and
(iv) sell the Note Collateral or any portion thereof or rights
or interest therein, at one or more public or private sales called and
conducted in any manner permitted by law;
provided, however, that the Indenture Trustee may not sell or otherwise
liquidate any portion of the Note Collateral following such an Event of Default,
other than an Event of Default described in Section 5.01(i), (ii) or (iii), with
respect to any Series unless (A) the Holders of 100 percent of the Outstanding
Amount of the Notes of all Series consent thereto, (B) the proceeds of such sale
or liquidation distributable to the Holders of all Series are sufficient to
discharge in full all amounts then due and unpaid upon such Notes for principal,
premium, if any, and interest after taking into account payment of all amounts
due prior thereto pursuant to the priorities set forth in Section 8.02(d) or (C)
the Indenture Trustee determines that the Note Collateral will not continue to
provide sufficient funds for all payments on the Notes of all Series as they
would have become due if the Notes had not been declared due and payable, and
the Indenture Trustee obtains the consent of Holders of 66-2/3 percent of the
Outstanding Amount of the Notes of all Series. In determining such sufficiency
or insufficiency with respect to clause (B) and (C), the Indenture Trustee may,
but need not, obtain and conclusively rely upon an opinion of an Independent
investment banking or accounting firm of national reputation as to the
feasibility of such proposed action and as to the sufficiency of the Note
Collateral for such purpose.
(b) If an Event of Default under clause (viii) of Section 5.01
shall have occurred and be continuing, the Indenture Trustee, for the benefit of
the Holders, shall be entitled and empowered to the extent permitted by
applicable law, to institute or participate in Proceedings reasonably necessary
to compel performance of or to enforce the State Pledge and to collect any
monetary damages incurred by the Holders or the Indenture Trustee as a result of
any such Event of Default, and may prosecute any such Proceeding to final
judgment or decree.
(c) If the Indenture Trustee collects any money pursuant to
this Article V, it shall pay out such money in accordance with the priorities
set forth in Section 8.02(d).
SECTION 5.05. Optional Preservation of the Note Collateral. If
the Notes of all Series have been declared to be due and payable under Section
5.02 following an Event of Default and such declaration and its consequences
have not been rescinded and annulled, the Indenture Trustee may, but need not,
elect to maintain possession of the Note Collateral. It is the desire of the
parties hereto and the Holders that there be at all times sufficient funds for
the payment of principal of and premium, if any, and interest on the Notes, and
the Indenture Trustee shall take such desire into account when determining
whether or not to maintain possession of the Note Collateral. In determining
whether to maintain possession of the Note Collateral, the Indenture Trustee
may, but need not, obtain and conclusively rely upon an opinion of an
Independent investment banking or accounting firm of national reputation as to
the feasibility of such proposed action and as to the sufficiency of the Note
Collateral for such purpose.
SECTION 5.06. Limitation of Suits. No Holder of any Note of
any Series shall have any right to institute any Proceeding, judicial or
otherwise, with respect to this Indenture, or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless:
(i) such Holder previously has given written notice to the
Indenture Trustee of a continuing Event of Default with respect to such
Series;
(ii) the Holders of not less than 33 percent of the
Outstanding Amount of the Notes of all Series have made written request
to the Indenture Trustee to institute such Proceeding in respect of
such Event of Default in its own name as Indenture Trustee hereunder;
(iii) such Holder or Holders have offered to the Indenture
Trustee indemnity satisfactory to it against the costs, expenses and
liabilities to be incurred in complying with such request;
(iv) the Indenture Trustee for 60 days after its receipt of
such notice, request and offer of indemnity has failed to institute
such Proceedings; and
(v) no direction inconsistent with such written request has
been given to the Indenture Trustee during such 60-day period by the
Holders of a majority of the Outstanding Amount of the Notes of all
Series;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided.
In the event the Indenture Trustee shall receive conflicting
or inconsistent requests and indemnity from two or more groups of Holders, each
representing less than a majority of the Outstanding Amount of the Notes of all
Series, the Indenture Trustee in its sole discretion may determine what action,
if any, shall be taken, notwithstanding any other provisions of this Indenture.
SECTION 5.07. Unconditional Rights of Holders To Receive
Principal, Premium, if any, and Interest. Notwithstanding any other provisions
in this Indenture, the Holder of any Note shall have the right, which is
absolute and unconditional, (a) to receive payment of (i) the interest, if any,
on such Note on the due dates thereof expressed in such Note or in this
Indenture, (ii) the unpaid principal, if any, of such Notes on the Final
Maturity Date therefor or (iii) in the case of redemption, receive payment of
the unpaid principal and premium, if any, and interest, if any, on such Note on
the Optional Redemption Date therefor and (b) to institute suit for the
enforcement of any such payment, and such right shall not be impaired without
the consent of such Holder.
SECTION 5.08. Restoration of Rights and Remedies. If the
Indenture Trustee or any Holder has instituted any Proceeding to enforce any
right or remedy under this Indenture and such Proceeding has been discontinued
or abandoned for any reason or has been determined adversely to the Indenture
Trustee or to such Holder, then and in every such case the Note Issuer, the
Indenture Trustee and the Holders shall, subject to any determination in such
Proceeding, be restored severally and respectively to their former positions
hereunder, and thereafter all rights and remedies of the Indenture Trustee and
the Holders shall continue as though no such Proceeding had been instituted.
SECTION 5.09. Rights and Remedies Cumulative. No right or
remedy herein conferred upon or reserved to the Indenture Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 5.10. Delay or Omission Not a Waiver. No delay or
omission of the Indenture Trustee or any Holder to exercise any right or remedy
accruing upon any Default or Event of Default shall impair any such right or
remedy or constitute a waiver of any such Default or Event of Default or an
acquiescence therein. Every right and remedy given by this Article V or by law
to the Indenture Trustee or to the Holders may be exercised from time to time,
and as often as may be deemed expedient, by the Indenture Trustee or by the
Holders, as the case may be.
SECTION 5.11. Control by Holders. The Holders of a majority of
the Outstanding Amount of the Notes of all Series (or, if less than all Series
or Classes are affected, the affected Series or Class or Classes) shall have the
right to direct the time, method and place of conducting any Proceeding for any
remedy available to the Indenture Trustee with respect to the Notes of such
Series or Class or Classes or exercising any trust or power conferred on the
Indenture Trustee with respect to such Series or Class or Classes; provided that
(i) such direction shall not be in conflict with any rule of
law or with this Indenture;
(ii) subject to the express terms of Section 5.04, any
direction to the Indenture Trustee to sell or liquidate the Note
Collateral shall be by the Holders of Notes representing not less than
100 percent of the Outstanding Amount of the Notes of all Series;
(iii) if the conditions set forth in Section 5.05 have been
satisfied and the Indenture Trustee elects to retain the Note
Collateral pursuant to such Section, then any direction to the
Indenture Trustee by Holders representing less than 100 percent of the
Outstanding Amount of the Notes of all Series to sell or liquidate the
Note Collateral shall be of no force and effect; and
(iv) the Indenture Trustee may take any other action deemed
proper by the Indenture Trustee that is not inconsistent with such
direction;
provided, however, that, the Indenture Trustee's duties shall be subject to
Section 6.01, and the Indenture Trustee need not take any action that it
determines might involve it in liability or might materially adversely affect
the rights of any Holders not consenting to such action.
SECTION 5.12. Waiver of Past Defaults. Prior to the
declaration of the acceleration of the maturity of the Notes of all Series as
provided in Section 5.02, the Holders of Notes representing not less than a
majority of the Outstanding Amount of the Notes of all Series may waive any past
Default or Event of Default and its consequences except a Default (a) in payment
of principal of or premium, if any, or interest on any of the Notes or (b) in
respect of a covenant or provision hereof which cannot be modified or amended
without the consent of the Holder of each Note of all Series or Classes
affected. In the case of any such waiver, the Note Issuer, the Indenture Trustee
and the Holders shall be restored to their former positions and rights
hereunder, respectively; but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereto.
Upon any such waiver, such Default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured and not to have occurred,
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right consequent
thereto.
SECTION 5.13. Undertaking for Costs. All parties to this
Indenture agree, and each Holder of any Note by such Xxxxxx's acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require, in
any suit for the enforcement of any right or remedy under this Indenture, or in
any suit against the Indenture Trustee for any action taken, suffered or omitted
by it as Indenture Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to (a) any suit instituted by the
Indenture Trustee, (b) any suit instituted by any Holder, or group of Holders,
in each case holding in the aggregate more than 10 percent of the Outstanding
Amount of the Notes of a Series or (c) any suit instituted by any Holder for the
enforcement of the payment of (i) interest on any Note on or after the due dates
expressed in such Note and in this Indenture, (ii) the unpaid principal, if any,
of any Note on or after the Final Maturity Date therefor or (iii) in the case of
redemption, the unpaid principal of and premium, if any, and interest on any
Note on or after the Optional Redemption Date therefor.
SECTION 5.14. Waiver of Stay or Extension Laws. The Note
Issuer covenants (to the extent that it may lawfully do so) that it will not at
any time insist upon, or plead or in any manner whatsoever, claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, that may affect the covenants or the performance of
this Indenture; and the Note Issuer (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law, and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Indenture Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
SECTION 5.15. Action on Notes. The Indenture Trustee's right
to seek and recover judgment on the Notes or under this Indenture shall not be
affected by the seeking, obtaining or application of any other relief under or
with respect to this Indenture. Neither the Lien of this Indenture nor any
rights or remedies of the Indenture Trustee or the Holders shall be impaired by
the recovery of any judgment by the Indenture Trustee against the Note Issuer or
by the levy of any execution under such judgment upon any portion of the Note
Collateral or any other assets of the Note Issuer.
SECTION 5.16. Performance and Enforcement of Certain
Obligations. (a) Promptly following a request from the Indenture Trustee to do
so and at the Note Issuer's expense, the Note Issuer agrees to take all such
lawful action as the Indenture Trustee may request to compel or secure the
performance and observance by CPL and the Servicer, as applicable, of each of
their obligations to the Note Issuer under or in connection with the Sale
Agreement and the Servicing Agreement, respectively, in accordance with the
terms thereof, and to exercise any and all rights, remedies, powers and
privileges lawfully available to the Note Issuer under or in connection with any
such agreements, respectively, to the extent and in the manner directed by the
Indenture Trustee, including the transmission of notices of default on the part
of CPL or the Servicer thereunder and the institution of legal or administrative
actions or proceedings to compel or secure performance by CPL or the Servicer of
each of their respective obligations under the Sale Agreement and the Servicing
Agreement, respectively.
(b) If an Event of Default has occurred and is continuing, the
Indenture Trustee may, and, at the direction (which direction shall be in
writing or by telephone (confirmed in writing promptly thereafter)) of the
Holders of 66-2/3 percent of the Outstanding Amount of the Notes of all Series
shall, subject to Article VI, exercise all rights, remedies, powers, privileges
and claims of the Note Issuer against CPL or the Servicer under or in connection
with the Sale Agreement and the Servicing Agreement, respectively, including the
right or power to take any action to compel or secure performance or observance
by CPL or the Servicer of each of their obligations to the Note Issuer
thereunder and to give any consent, request, notice, direction, approval,
extension or waiver under the Sale Agreement or the Servicing Agreement,
respectively, and any right of the Note Issuer to take such action shall be
suspended.
ARTICLE VI
The Indenture Trustee
SECTION 6.01. Duties of Indenture Trustee. (a) If an Event of
Default has occurred and is continuing, the Indenture Trustee shall exercise the
rights and powers vested in it by this Indenture and use the same degree of care
and skill in their exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Indenture Trustee undertakes to perform such duties
and only such duties as are specifically set forth in this Indenture
and no implied covenants or obligations shall be read into this
Indenture against the Indenture Trustee; and
(ii) in the absence of bad faith on its part, the Indenture
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Indenture Trustee and conforming to the
requirements of this Indenture; however, the Indenture Trustee shall
examine the certificates and opinions to determine whether or not they
conform to the requirements of this Indenture.
(c) The Indenture Trustee may not be relieved from liability
for its own negligent action, its own bad faith, its own negligent failure to
act or its own wilful misconduct, except that:
(i) this paragraph (c) does not limit the effect of
paragraph
(b) of this Section 6.01;
(ii) the Indenture Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer unless it is
proved that the Indenture Trustee was negligent in ascertaining the
pertinent facts; and
(iii) the Indenture Trustee shall not be liable with respect
to any action it takes or omits to take in good faith in accordance
with a direction received by it pursuant to Section 5.11.
(d) Every provision of this Indenture that in any way relates
to the Indenture Trustee is subject to paragraphs (a), (b) and (c) of this
Section.
(e) The Indenture Trustee shall not be liable for interest on
any money received by it except as the Indenture Trustee may agree in writing
with the Note Issuer.
(f) Money held in trust by the Indenture Trustee need not be
segregated from other funds except to the extent required by law or the terms of
this Indenture, the Sale Agreement and the Servicing Agreement.
(g) No provision of this Indenture shall require the Indenture
Trustee to expend or risk its own funds or otherwise incur financial liability
in the performance of any of its duties hereunder or in the exercise of any of
its rights or powers, if it shall have reasonable grounds to believe that
repayments of such funds or indemnity satisfactory to it against such risk or
liability is not reasonably assured to it.
(h) Every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Indenture Trustee
shall be subject to the provisions of this Section and to the provisions of the
TIA.
(i) In the event that the Indenture Trustee is also acting as
Paying Agent or Note Registrar hereunder, the protections of this Article VI
shall also be afforded to the Indenture Trustee in its capacity as Paying Agent
or Note Registrar.
(j) Except as expressly set forth in the Basic Documents, the
Indenture Trustee shall have no obligation to administer, service or collect
Transition Property or to maintain, monitor or otherwise supervise the
administration, servicing or collection of the Transition Property.
SECTION 6.02. Rights of Indenture Trustee. (a) The Indenture
Trustee may conclusively rely and shall be fully protected in relying on any
document believed by it to be genuine and to have been signed or presented by
the proper person. The Indenture Trustee need not investigate any fact or matter
stated in the document.
(b) Before the Indenture Trustee acts or refrains from acting,
it may require and shall be entitled to receive an Officer's Certificate or an
Opinion of Counsel that such action is required or permitted hereunder. The
Indenture Trustee shall not be liable for any action it takes or omits to take
in good faith in reliance on such Officer's Certificate or Opinion of Counsel.
(c) The Indenture Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents or attorneys or a custodian or nominee, and the Indenture Trustee
shall not be responsible for any misconduct or negligence on the part of, or for
the supervision of, any such agent, attorney, custodian or nominee appointed
with due care by it hereunder.
(d) The Indenture Trustee shall not be liable for any action
it takes or omits to take in good faith which it believes to be authorized or
within its rights or powers; provided, however, that the Indenture Trustee's
conduct does not constitute willful misconduct, negligence or bad faith.
(e) The Indenture Trustee may consult with counsel, and the
advice or opinion of counsel with respect to legal matters relating to this
Indenture and the Notes shall be full and complete authorization and protection
from liability in respect to any action taken, omitted or suffered by it
hereunder in good faith and in accordance with the advice or opinion of such
counsel.
SECTION 6.03. Individual Rights of Indenture Trustee. The
Indenture Trustee in its individual or any other capacity may become the owner
or pledgee of Notes and may otherwise deal with the Note Issuer or its
affiliates with the same rights it would have if it were not Indenture Trustee.
Any Paying Agent, Note Registrar, co-registrar or co-paying agent may do the
same with like rights. However, the Indenture Trustee must comply with Sections
6.11 and 6.12.
SECTION 6.04. Indenture Trustee's Disclaimer. The Indenture
Trustee shall not be responsible for and makes no representation as to the
validity or adequacy of this Indenture or the Notes, it shall not be accountable
for the Note Issuer's use of the proceeds from the Notes, and it shall not be
responsible for any statement of the Note Issuer in the Indenture or in any
document issued in connection with the sale of the Notes or in the Notes other
than the Indenture Trustee's certificate of authentication.
SECTION 6.05. Notice of Defaults. If a Default occurs and is
continuing with respect to any Series and if it is actually known to a
Responsible Officer of the Indenture Trustee, the Indenture Trustee shall mail
to each Holder of Notes of all Series notice of the Default within 90 days after
it occurs. Except in the case of a Default in payment of principal of and
premium, if any, or interest on any Note, the Indenture Trustee may withhold the
notice if and so long as a committee of its Responsible Officers in good faith
determines that withholding the notice is in the interests of Holders. Except as
provided in the first sentence of this Section 6.05, in no event shall the
Indenture Trustee be deemed to have knowledge of a Default.
SECTION 6.06. Reports by Indenture Trustee to Holders.
(a) So long as Notes are Outstanding and the Indenture Trustee
is the Note Registrar and Paying Agent, within the prescribed period of time for
tax reporting purposes after the end of each calendar year it shall deliver to
each relevant current or former Holder such information in its possession as may
be required to enable such Holder to prepare its federal income and any
applicable local or state tax returns.
(b) With respect to each Series of Notes, on or prior to each
Payment Date or Special Payment Date therefor, the Indenture Trustee will
deliver to each Holder of such Notes on such Payment Date or Special Payment
Date a statement as provided and prepared by the Servicer which will include (to
the extent applicable) the following information (and any other information so
specified in the applicable Trustee's Issuance Certificate or Series Supplement,
if any,) as to the Notes of such Series with respect to such Payment Date or
Special Payment Date or the period since the previous Payment Date, as
applicable:
(i) the amount of the payment to Holders allocable to
principal, if any;
(ii) the amount of the payment to Holders allocable to
interest;
(iii) the aggregate Outstanding Amount of such Notes, after
giving effect to any payments allocated to principal reported under (i)
above; and
(iv) the difference, if any, between the amount specified in
subsection (iii) above and the Outstanding Amount specified in the
related Expected Amortization Schedule.
(c) The Note Issuer shall send a copy of each of the
Certificate of Compliance delivered to it pursuant to Section 3.03 of the
Servicing Agreement and the Annual Accountant's Report delivered to it pursuant
to Section 3.04 of the Servicing Agreement to the Rating Agencies. A copy of
such certificate and report may be obtained by any Holder by a request in
writing to the Indenture Trustee.
SECTION 6.07. Compensation and Indemnity. The Note Issuer
shall pay to the Indenture Trustee from time to time reasonable compensation for
its services. The Indenture Trustee's compensation shall not be limited by any
law on compensation of a trustee of an express trust. The Note Issuer shall
reimburse the Indenture Trustee for all reasonable out-of-pocket expenses
incurred or made by it, including costs of collection, in addition to the
compensation for its services. Such expenses shall include the reasonable
compensation and expenses, disbursements and advances of the Indenture Trustee's
agents, counsel, accountants and experts. The Note Issuer shall indemnify the
Indenture Trustee and its officers, directors, employees and agents against any
and all loss, liability or expense (including reasonable attorney's fees and
expenses) incurred by it in connection with the administration of this trust and
the performance of its duties hereunder. The Indenture Trustee shall notify the
Note Issuer as soon as is reasonably practicable of any claim for which it may
seek indemnity. Failure by the Indenture Trustee to so notify the Note Issuer
shall not relieve the Note Issuer of its obligations hereunder. The Note Issuer
shall defend the claim and the Indenture Trustee may have separate counsel and
the Note Issuer shall pay the reasonable fees and expenses of such counsel. The
Note Issuer need not reimburse any expense or indemnify against any loss,
liability or expense incurred by the Indenture Trustee through the Indenture
Trustee's own wilful misconduct, negligence or bad faith.
The payment obligations to the Indenture Trustee pursuant to
this Section shall survive the discharge of this Indenture or the earlier
resignation or removal of the Indenture Trustee. When the Indenture Trustee
incurs expenses after the occurrence of a Default specified in Section 5.01(vi)
or (vii) with respect to the Note Issuer, the expenses are intended to
constitute expenses of administration under Title 11 of the United States Code
or any other applicable federal or state bankruptcy, insolvency or similar law.
SECTION 6.08. Replacement of Indenture Trustee. The Indenture
Trustee may resign at any time by so notifying the Note Issuer, provided that no
such resignation shall be effective until either (a) the Note Collateral has
been completely liquidated and the proceeds of the liquidation distributed to
the Holders or (b) a successor trustee having the qualifications set forth in
Section 6.11 has been designated and has accepted such trusteeship. The Holders
of a majority in Outstanding Amount of the Notes of all Series may remove the
Indenture Trustee by so notifying the Indenture Trustee and may appoint a
successor Indenture Trustee. The Note Issuer shall remove the Indenture Trustee
if:
(i) the Indenture Trustee fails to comply with Section 6.11;
(ii) the Indenture Trustee is adjudged a bankrupt or
insolvent;
(iii) a receiver or other public officer takes charge of the
Indenture Trustee or its property; or
(iv) the Indenture Trustee otherwise becomes incapable of
acting.
If the Indenture Trustee gives notice of resignation or is
removed or if a vacancy exists in the office of Indenture Trustee for any reason
(the Indenture Trustee in such event being referred to herein as the retiring
Indenture Trustee), the Note Issuer shall promptly appoint a successor Indenture
Trustee.
A successor Indenture Trustee shall deliver a written
acceptance of its appointment to the retiring Indenture Trustee and to the Note
Issuer. Thereupon the resignation or removal of the retiring Indenture Trustee
shall become effective, and the successor Indenture Trustee shall have all the
rights, powers and duties of the Indenture Trustee under this Indenture. The
successor Indenture Trustee shall mail a notice of its succession to Holders.
The retiring Indenture Trustee shall promptly transfer all property held by it
as Indenture Trustee to the successor Indenture Trustee.
If a successor Indenture Trustee does not take office within
60 days after the retiring Indenture Trustee resigns or is removed, the retiring
Indenture Trustee, the Note Issuer or the Holders of a majority in Outstanding
Amount of the Notes of all Series may petition any court of competent
jurisdiction for the appointment of a successor Indenture Trustee.
If the Indenture Trustee fails to comply with Section 6.11,
any Holder may petition any court of competent jurisdiction for the removal of
the Indenture Trustee and the appointment of a successor Indenture Trustee.
Notwithstanding the replacement of the Indenture Trustee
pursuant to this Section, the Note Issuer's obligations under Section 6.07 shall
continue for the benefit of the retiring Indenture Trustee.
SECTION 6.09. Successor Indenture Trustee by Xxxxxx. If the
Indenture Trustee consolidates with, merges or converts into, or transfers all
or substantially all its corporate trust business or assets to, another
corporation or banking association, the resulting, surviving or transferee
corporation without any further act shall be the successor Indenture Trustee;
provided, however, that if such successor Indenture Trustee is not eligible
under Section 6.11, then the successor Indenture Trustee shall be replaced in
accordance with Section 6.08.
In case at the time such successor or successors by merger,
conversion or consolidation to the Indenture Trustee shall succeed to the trusts
created by this Indenture any of the Notes shall have been authenticated but not
delivered, any such successor to the Indenture Trustee may adopt the certificate
of authentication of any predecessor trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes shall not have been
authenticated, any successor to the Indenture Trustee may authenticate such
Notes either in the name of any predecessor hereunder or in the name of the
successor to the Indenture Trustee; and in all such cases such certificates
shall have the full force which it is anywhere in the Notes or in this Indenture
provided that the certificate of the Indenture Trustee shall have.
SECTION 6.10. Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions of this Indenture, at any time, for the
purpose of meeting any legal requirement of any jurisdiction in which any part
of the trust created by this Indenture or the Note Collateral may at the time be
located, the Indenture Trustee shall have the power and may execute and deliver
all instruments to appoint one or more Persons to act as a co-trustee or
co-trustees, or separate trustee or separate trustees, of all or any part of the
trust created by this Indenture or the Note Collateral, and to vest in such
Person or Persons, in such capacity and for the benefit of the Holders, such
title to the Note Collateral, or any part hereof, and, subject to the other
provisions of this Section, such powers, duties, obligations, rights and trusts
as the Indenture Trustee may consider necessary or desirable. No co-trustee or
separate trustee hereunder shall be required to meet the terms of eligibility as
a successor trustee under Section 6.11 and no notice to Holders of the
appointment of any co-trustee or separate trustee shall be required under
Section 6.08.
(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Indenture Trustee shall be conferred or imposed upon
and exercised or performed by the Indenture Trustee and such separate
trustee or co-trustee jointly (it being understood that such separate
trustee or co-trustee is not authorized to act separately without the
Indenture Trustee joining in such act), except to the extent that under
any law of any jurisdiction in which any particular act or acts are to
be performed the Indenture Trustee shall be incompetent or unqualified
to perform such act or acts, in which event such rights, powers, duties
and obligations (including the holding of title to the Note Collateral
or any portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely at
the direction of the Indenture Trustee;
(ii) no trustee hereunder shall be personally liable by reason
of any act or omission of any other trustee hereunder; and
(iii) the Indenture Trustee may at any time accept the
resignation of or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the
Indenture Trustee shall be deemed to have been given to each of the then
separate trustees and co-trustees, as effectively as if given to each of them.
Every instrument appointing any separate trustee or co-trustee shall refer to
this Indenture and the conditions of this Article VI. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Indenture Trustee or separately, as may be provided therein,
subject to all the provisions of this Indenture, specifically including every
provision of this Indenture relating to the conduct of, affecting the liability
of, or affording protection to, the Indenture Trustee. Every such instrument
shall be filed with the Indenture Trustee.
(d) Any separate trustee or co-trustee may at any time
constitute the Indenture Trustee, its agent or attorney-in-fact with full power
and authority, to the extent not prohibited by law, to do any lawful act under
or in respect of this Indenture on its behalf and in its name. If any separate
trustee or co-trustee shall die, become incapable of acting, resign or be
removed, all of its estates, properties, rights, remedies and trusts shall vest
in and be exercised by the Indenture Trustee, to the extent permitted by law,
without the appointment of a new or successor trustee.
SECTION 6.11. Eligibility; Disqualification. The Indenture
Trustee shall at all times satisfy the requirements of TIA ss. 310(a)(1) and ss.
310(a)(5) [and Section 26(a)(1) of the Investment Company Act of 1940]. The
Indenture Trustee shall have a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual report of condition
and it shall have a long term debt rating of A (or the equivalent thereof) or
better by all of the Rating Agencies from which a rating is available. The
Indenture Trustee shall comply with TIA ss. 310(b), including the optional
provision permitted by the second sentence of TIA ss. 310(b)(9); provided,
however, that there shall be excluded from the operation of TIA ss. 310(b)(1)
any indenture or indentures under which other securities of the Note Issuer are
outstanding if the requirements for such exclusion set forth in TIA ss.
310(b)(1) are met.
SECTION 6.12. Preferential Collection of Claims Against Note
Issuer, The Indenture Trustee shall comply with TIA ss. 311(a), excluding any
creditor relationship listed in TIA ss. 311(b). An Indenture Trustee who has
resigned or been removed shall be subject to TIA ss. 311(a) to the extent
indicated therein.
SECTION 6.13. Representations and Warranties of Indenture
Trustee. The Indenture Trustee hereby represents and warrants that:
(a) the Indenture Trustee is [a banking corporation validly
existing and in good standing under the laws of the State of New York]; and
(b) the Indenture Trustee has full power, authority and legal
right to execute, deliver and perform this Indenture and the Basic Documents to
which the Indenture Trustee is a party and has taken all necessary action to
authorize the execution, delivery, and performance by it of this Indenture and
such Basic Documents.
ARTICLE VII
Holders' Lists and Reports
SECTION 7.01. Note Issuer To Furnish Indenture Trustee Names
and Addresses of Holders. The Note Issuer will furnish or cause to be furnished
to the Indenture Trustee (a) not more than five days after the earlier of (i)
each Record Date with respect to each Series and (ii) six months after the last
Record Date with respect to each Series, a list, in such form as the Indenture
Trustee may reasonably require, of the names and addresses of the Holders of
Notes of such Series as of such Record Date, (b) at such other times as the
Indenture Trustee may request in writing, within 30 days after receipt by the
Note Issuer of any such request, a list of similar form and content as of a date
not more than 10 days prior to the time such list is furnished; provided,
however, that so long as the Indenture Trustee is the Note Registrar, no such
list shall be required to be furnished.
SECTION 7.02. Preservation of Information; Communications to
Holders. (a) The Indenture Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of the Holders contained in the
most recent list furnished to the Indenture Trustee as provided in Section 7.01
and the names and addresses of Holders received by the Indenture Trustee in its
capacity as Note Registrar. The Indenture Trustee may destroy any list furnished
to it as provided in such Section 7.01 upon receipt of a new list so furnished.
(b) Holders may communicate pursuant to TIA ss. 312(b) with
other Holders with respect to their rights under this Indenture or under the
Notes.
(c) The Note Issuer, the Indenture Trustee and the Note
Registrar shall have the protection of TIA ss. 312(c).
SECTION 7.03. Reports by Note Issuer. (a) The Note Issuer
shall:
(i) so long as the Note Issuer is required to file such
documents with the SEC, provide to the Indenture Trustee, within 15
days after the Note Issuer is required to file the same with the SEC,
copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as
the SEC may from time to time by rules and regulations prescribe) which
the Note Issuer may be required to file with the SEC pursuant to
Section 13 or 15(d) of the Exchange Act;
(ii) provide to the Indenture Trustee and file with the SEC in
accordance with rules and regulations prescribed from time to time by
the SEC such additional information, documents and reports with respect
to compliance by the Note Issuer with the conditions and covenants of
this Indenture as may be required from time to time by such rules and
regulations; and
(iii) supply to the Indenture Trustee (and the Indenture
Trustee shall transmit by mail to all Holders described in TIA ss.
313(c)) such summaries of any information, documents and reports
required to be filed by the Note Issuer pursuant to clauses (i) and
(ii) of this Section 7.03(a) as may be required by rules and
regulations prescribed from time to time by the SEC.
(b) Unless the Note Issuer otherwise determines, the fiscal
year of the Note Issuer shall end on December 31 of each year.
SECTION 7.04. Reports by Indenture Trustee. If required by TIA
ss. 313(a), within 60 days after September 30 of each year, commencing with the
year after the issuance of the Notes of any Series, the Indenture Trustee shall
mail to each Holder of Notes of such Series as required by TIA ss. 313(c) a
brief report dated as of such date that complies with TIA ss. 313(a). The
Indenture Trustee also shall comply with TIA ss. 313(b); provided, however, that
the initial report so issued shall be delivered not more than 12 months after
the initial issuance of each Series.
A copy of each report at the time of its mailing to Holders
shall be filed by the Servicer with the SEC and each stock exchange, if any, on
which the Notes are listed. The Note Issuer shall notify the Indenture Trustee
in writing if and when the Notes are listed on any stock exchange.
ARTICLE VIII
Accounts, Disbursements and Releases
SECTION 8.01. Collection of Money. Except as otherwise
expressly provided herein, the Indenture Trustee may demand payment or delivery
of, and shall receive and collect, directly and without intervention or
assistance of any fiscal agent or other intermediary, all money and other
property payable to or receivable by the Indenture Trustee pursuant to this
Indenture. The Indenture Trustee shall apply all such money received by it as
provided in this Indenture. Except as otherwise expressly provided in this
Indenture, if any default occurs in the making of any payment or performance
under any agreement or instrument that is part of the Note Collateral, the
Indenture Trustee may take such action as may be appropriate to enforce such
payment or performance, subject to Article VI, including the institution and
prosecution of appropriate Proceedings. Any such action shall be without
prejudice to any right to claim a Default or Event of Default under this
Indenture and any right to proceed thereafter as provided in Article V.
SECTION 8.02. Collection Account. (a) Prior to the Series
Issuance Date for the first Series of Notes issued hereunder, the Note Issuer
shall open, at the Indenture Trustee's Corporate Trust Office, or at another
Eligible Institution, one or more segregated trust accounts in the Indenture
Trustee's name for the deposit of Estimated Transition Charge Collections
(collectively, the "Collection Account"). The Collection Account will consist of
five subaccounts: a general subaccount (the "General Subaccount"), a reserve
subaccount (the "Reserve Subaccount"), a subaccount for the
Overcollateralization Amount (the "Overcollateralization Subaccount"), a
subaccount for REP deposits (the "REP Deposit Subaccount")and a capital
subaccount (the "Capital Subaccount"). All amounts in the Collection Account not
allocated to any other subaccount shall be allocated to the General Subaccount.
Prior to the initial Payment Date, all amounts in the Collection Account (other
than funds deposited into the Capital Subaccount, up to the Required Capital
Level for any Series of Notes, and funds deposited into the REP Deposit
Subaccount) shall be allocated to the General Subaccount. All references to the
Collection Account shall be deemed to include reference to all subaccounts
contained therein. Withdrawals from and deposits to each of the foregoing
subaccounts of the Collection Account shall be made as set forth in Section
8.02(d) and (e). The Collection Account shall at all times be maintained in an
Eligible Deposit Account and only the Indenture Trustee shall have access to the
Collection Account for the purpose of making deposits in and withdrawals from
the Collection Account in accordance with this Indenture. Funds in the
Collection Account shall not be commingled with any other moneys. All moneys
deposited from time to time in the Collection Account, all deposits therein
pursuant to this Indenture, and all investments made in Eligible Investments
with such moneys, including all income or other gain from such investments,
shall be held by the Indenture Trustee in the Collection Account as part of the
Note Collateral as herein provided.
(b) The Indenture Trustee shall have sole dominion and
exclusive control over all moneys in the Collection Account and shall apply such
amounts therein as provided in this Section 8.02. The Indenture Trustee shall
also pay from the Collection Account any amounts requested to be paid by or to
the Servicer pursuant to Section 6.11(d)(ii) of the Servicing Agreement.
(c) TC Collections shall be deposited in the General
Subaccount as provided in Section 6.11 of the Servicing Agreement. All deposits
to and withdrawals from the Collection Account, all allocations to the
subaccounts of the Collection Account and any amounts to be paid to the Servicer
under Section 8.02(b) shall be made by the Indenture Trustee in accordance with
the written instructions provided by the Servicer in the Monthly Servicer's
Certificate, the Servicer's Certificate or upon other written notice provided by
the Servicer pursuant to Section 6.11(d)(ii) of the Servicing Agreement, as
applicable.
(d) On each Payment Date for any Series of Notes, the
Indenture Trustee shall apply all amounts on deposit in the Collection Account,
including all net earnings thereon, to pay the following amounts, in accordance
with the Servicer's Certificate, in the following priority:
(i) all amounts owed by the Note Issuer to the Indenture
Trustee (including legal fees and expenses) shall be paid to the
Indenture Trustee (subject to Section 6.07) and all amounts owed to the
Independent Managers in connection with their acting as managers under
the LLC Agreement shall be paid to the Independent Managers, as
appropriate;
(ii) the Servicing Fee for such Payment Date and all unpaid
Servicing Fees for prior Payment Dates shall be paid to the Servicer;
(iii) so long as no Default or Event of Default shall have
occurred and be continuing or would result from such payment, all other
Operating Expenses shall be paid to the Persons entitled thereto or, if
such have been previously paid by the Note Issuer, to the Note Issuer
in reimbursement thereof; provided that the amount paid on each Payment
Date pursuant to this clause (iii) shall not exceed [$100,000];
(iv) any overdue Periodic Interest (together with, to the
extent lawful, interest on such overdue Periodic Interest at the
applicable Note Interest Rate) with respect to any Series of Notes
shall be paid to the Holders of such Series of Notes;
(v) Periodic Interest for such Payment Date with respect to
each Series of Notes shall be paid to the Holders of such Series of
Notes;
(vi) any amounts due on such Payment Date to the counterparty
under any Swap Agreement shall be paid with respect to each Series of
Notes;
(vii) principal due and payable on the Notes of any Series as
a result of an Event of Default or on the Final Maturity Date of the
Notes of such Series, shall be paid to the Holders of such Series of
Notes;
(viii) any overdue Periodic Principal (together with interest
on such overdue Periodic Principal at the applicable Note Interest
Rate) payable with respect to any Series of Notes shall be paid to the
Holders of such Series of Notes;
(ix) Periodic Principal for such Payment Date with respect to
each Series of Notes shall be paid to the Holders of such Series of
Notes;
(x) unpaid Operating Expenses shall be paid to the Persons
entitled thereto or, if such have been previously paid by the Note
Issuer, to the Note Issuer or as it directs in reimbursement thereof;
(xi) the amount, if any, by which the Required Capital Level
with respect to all Outstanding Series of Notes exceeds the amount in
the Capital Subaccount as of such Payment Date shall be allocated to
the Capital Subaccount;
(xii) the amount, if any, by which the Required
Overcollateralization Level with respect to all Outstanding Series of
Notes exceeds the amount in the Overcollateralization Subaccount as of
such Payment Date shall be allocated to the Overcollateralization
Subaccount;
(xiii) the balance, if any, shall be allocated to the Reserve
Subaccount for distribution on subsequent Payment Dates; and
(xiv) after principal of and premium, if any, and interest on
all Notes of all Series, and all of the other foregoing amounts, have
been paid in full, the balance (including all amounts then held in the
Overcollateralization Subaccount, the Capital Subaccount and the
Reserve Subaccount), if any, shall be paid to the Note Issuer, free
from the Lien of this Indenture.
All payments to the Holders of a Series pursuant to clauses (iv), (vii), (viii)
and (ix) above or, in the case of clause (ii), if there is more than one Series
of Notes outstanding all payments to the Holders of all Series, shall be made to
such Holders pro rata based on the respective principal amounts of Notes of such
Series held by such Holders, unless, in the case of a Series comprised of two or
more Classes, the Trustee's Issuance Certificate or Series Supplement, if any,
for such Series provides otherwise. Payments in respect of principal of and
premium, if any, and interest on any Class of Notes will be made on a pro rata
basis among all the Holders of such Class.
(e) If on any Payment Date funds on deposit in the General
Subaccount are insufficient to make the payments contemplated by clauses (i)
through (ix) of Section 8.02(d) above, the Indenture Trustee shall (i) first,
draw from amounts on deposit in the Reserve Subaccount, (ii) second, draw from
amounts on deposit in the Overcollateralization Subaccount and (iii) third, draw
from amounts on deposit in the Capital Subaccount, in each case, up to the
amount of such shortfall in order to make the payments contemplated by clauses
(i) through (ix) of Section 8.02(d). In addition, if on any Payment Date funds
on deposit in the General Subaccount are insufficient to make the allocations
contemplated by clauses (xi) and (xii) above, the Indenture Trustee shall draw
from amounts on deposit in the Reserve Subaccount to make such allocations
notwithstanding the fact that on such Payment Date the allocation contemplated
by clause (x) above may not have been fully satisfied.
(f) The Indenture Trustee shall apply deposits held in the REP
Deposit Subaccount as instructed by the Servicer.
SECTION 8.03. General Provisions Regarding the Collection
Account. (a) So long as no Default or Event of Default shall have occurred and
be continuing, all or a portion of the funds in the Collection Account shall be
invested in Eligible Investments and reinvested by the Indenture Trustee upon
Issuer Order; provided, however, that (i) such Eligible Investments shall not
mature later than the Business Day prior to the next Payment Date for the
related Series of Notes and (ii) such Eligible Investments shall not be sold,
liquidated or otherwise disposed of at a loss prior to the maturity thereof. All
income or other gain from investments of moneys deposited in the Collection
Account shall be deposited by the Indenture Trustee in the Collection Account,
and any loss resulting from such investments shall be charged to the Collection
Account. The Note Issuer will not direct the Indenture Trustee to make any
investment of any funds or to sell any investment held in the Collection Account
unless the security interest Granted and perfected in such account will continue
to be perfected in such investment or the proceeds of such sale, in either case
without any further action by any Person, and, in connection with any direction
to the Indenture Trustee to make any such investment or sale, if requested by
the Indenture Trustee, the Note Issuer shall deliver to the Indenture Trustee an
Opinion of Counsel, acceptable to the Indenture Trustee, to such effect. In no
event shall the Indenture Trustee be liable for the selection of Eligible
Investments or for investment losses incurred thereon. The Indenture Trustee
shall have no liability in respect of losses incurred as a result of the
liquidation of any Eligible Investment prior to its stated maturity or the
failure of the Note Issuer or the Servicer to provide timely written investment
direction. The Indenture Trustee shall have no obligation to invest or reinvest
any amounts held hereunder in the absence of written investment direction
pursuant to an Issuer Order.
(b) Subject to Section 6.01(c), the Indenture Trustee shall
not in any way be held liable by reason of any insufficiency in the Collection
Account resulting from any loss on any Eligible Investment included therein
except for losses attributable to the Indenture Trustee's failure to make
payments on such Eligible Investments issued by the Indenture Trustee, in its
commercial capacity as principal obligor and not as trustee, in accordance with
their terms.
(c) If (i) the Note Issuer shall have failed to give written
investment directions for any funds on deposit in the Collection Account to the
Indenture Trustee by 11:00 a.m. Eastern Time (or such other time as may be
agreed by the Note Issuer and Indenture Trustee) on any Business Day; or (ii) a
Default or Event of Default shall have occurred and be continuing with respect
to the Notes of any Series but the Notes of such Series shall not have been
declared due and payable pursuant to Section 5.02, then the Indenture Trustee
shall, to the fullest extent practicable, invest and reinvest funds in the
Collection Account in one or more investments which qualify as investments in
money market funds described under clause (d) of the definition of Eligible
Investments.
(d) The parties hereto acknowledge that the Servicer may,
pursuant to the Servicing Agreement, select Eligible Investments on behalf of
the Note Issuer.
SECTION 8.04. Release of Note Collateral. (a) The Indenture
Trustee may, and when required by the provisions of this Indenture shall,
execute instruments to release property from the Lien of this Indenture, or
convey the Indenture Trustee's interest in the same, in a manner and under
circumstances that are not inconsistent with the provisions of this Indenture.
No party relying upon an instrument executed by the Indenture Trustee as
provided in this Article VIII shall be bound to ascertain the Indenture
Trustee's authority, inquire into the satisfaction of any conditions precedent
or see to the application of any moneys.
(b) The Indenture Trustee shall, at such time as there are no
Notes Outstanding, release any remaining portion of the Note Collateral that
secured the Notes from the Lien of this Indenture and release to the Note Issuer
or any other Person entitled thereto any funds then on deposit in the Collection
Account. The Indenture Trustee shall release property from the Lien of this
Indenture pursuant to this Section 8.04(b) only upon receipt of an Issuer
Request accompanied by an Officer's Certificate, an Opinion of Counsel and (if
required by the TIA) Independent Certificates in accordance with TIA xx.xx.
314(c) and 314(d)(1) meeting the applicable requirements of Section 11.01.
SECTION 8.05. Opinion of Counsel. The Indenture Trustee shall
receive at least seven days' notice when requested by the Note Issuer to take
any action pursuant to Section 8.04(a), accompanied by copies of any instruments
involved, and the Indenture Trustee shall also require, as a condition to such
action, an Opinion of Counsel, in form and substance satisfactory to the
Indenture Trustee, stating the legal effect of any such action, outlining the
steps required to complete the same, and concluding that all conditions
precedent to the taking of such action have been complied with and such action
will not materially and adversely impair the security for the Notes or the
rights of the Holders in contravention of the provisions of this Indenture;
provided, however, that such Opinion of Counsel shall not be required to express
an opinion as to the fair value of the Note Collateral. Counsel rendering any
such opinion may rely, without independent investigation, on the accuracy and
validity of any certificate or other instrument delivered to the Indenture
Trustee in connection with any such action.
SECTION 8.06. Reports by Independent Accountants. As of the
Closing Date, the Note Issuer shall appoint a firm of Independent certified
public accountants of recognized national reputation for purposes of preparing
and delivering the reports or certificates of such accountants required by this
Indenture and the related Trustee's Issuance Certificates or Series Supplements,
if any. In the event such firm requires the Indenture Trustee to agree to the
procedures performed by such firm, the Note Issuer shall direct the Indenture
Trustee in writing to so agree; it being understood and agreed that the
Indenture Trustee will deliver such letter of agreement in conclusive reliance
upon the direction of the Note Issuer, and the Indenture Trustee makes no
independent inquiry or investigation to, and shall have no obligation or
liability in respect of, the sufficiency, validity or correctness of such
procedures. Upon any resignation by such firm the Note Issuer shall provide
written notice thereof to the Indenture Trustee and shall promptly appoint a
successor thereto that shall also be a firm of Independent certified public
accountants of recognized national reputation. If the Note Issuer shall fail to
appoint a successor to a firm of Independent certified public accountants that
has resigned within 15 days after such resignation, the Indenture Trustee shall
promptly notify the Note Issuer of such failure in writing. If the Note Issuer
shall not have appointed a successor within 10 days thereafter the Indenture
Trustee shall promptly appoint a successor firm of Independent certified public
accountants of recognized national reputation; provided that the Indenture
Trustee shall have no liability with respect to such appointment if the
Indenture Trustee acted with due care with respect thereto. The fees of such
Independent certified public accountants and its successor shall be payable by
the Note Issuer.
ARTICLE IX
Supplemental Indentures
SECTION 9.01. Supplemental Indentures Without Consent of
Holders. (a) Without the consent of the Holders of any Notes but with prior
notice to the Rating Agencies, the Note Issuer and the Indenture Trustee, when
authorized by an Issuer Order, at any time and from time to time, may enter into
one or more indentures supplemental hereto (which shall conform to the
provisions of the TIA as in force at the date of the execution thereof), in form
satisfactory to the Indenture Trustee, for any of the following purposes:
(i) to correct or amplify the description of any property at
any time subject to the Lien of this Indenture, or better to assure,
convey and confirm unto the Indenture Trustee any property subject or
required to be subjected to the Lien of this Indenture, or to subject
to the Lien of this Indenture additional property;
(ii) to evidence the succession, in compliance with the
applicable provisions hereof, of another person to the Note Issuer, and
the assumption by any such successor of the covenants of the Note
Issuer herein and in the Notes contained;
(iii) to add to the covenants of the Note Issuer, for the
benefit of the Holders of the Notes, or to surrender any right or power
herein conferred upon the Note Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any
property to or with the Indenture Trustee;
(v) to cure any ambiguity, to correct or supplement any
provision herein or in any supplemental indenture which may be
inconsistent with any other provision herein or in any supplemental
indenture or to make any other provisions with respect to matters or
questions arising under this Indenture or in any supplemental
indenture; provided that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect the interests of the Holders of
the Notes;
(vi) to evidence and provide for the acceptance of the
appointment hereunder by a successor trustee with respect to the Notes
and to add to or change any of the provisions of this Indenture as
shall be necessary to facilitate the administration of the trusts
hereunder by more than one trustee, pursuant to the requirements of
Article VI;
(vii) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the
qualification of this Indenture under the TIA or under any similar
federal statute hereafter enacted and to add to this Indenture such
other provisions as may be expressly required by the TIA; or
(viii) to set forth the terms of any Series that has not
theretofore been authorized by a Trustee's Issuance Certificate or
Series Supplement or to provide for the execution and delivery of any
Swap Agreement.
The Indenture Trustee is hereby authorized to join in the
execution of any such supplemental indenture and to make any further appropriate
agreements and stipulations that may be therein contained.
(b) The Note Issuer and the Indenture Trustee, when authorized
by an Issuer Order, may, also without the consent of any of the Holders of the
Notes, enter into an indenture or indentures supplemental hereto for the purpose
of adding any provisions to, or changing in any manner or eliminating any of the
provisions of, this Indenture or of modifying in any manner the rights of the
Holders of the Notes under this Indenture; provided, however, that (i) such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of the Holders and (ii) the Rating Agency
Condition shall have been satisfied with respect thereto.
SECTION 9.02. Supplemental Indentures with Consent of Holders.
The Note Issuer and the Indenture Trustee, when authorized by an Issuer Order,
also may, with prior notice to the Rating Agencies and with the consent of the
Holders of not less than a majority of the Outstanding Amount of the Notes of
each Series or Class to be affected, by Act of such Holders delivered to the
Note Issuer and the Indenture Trustee, enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to, or changing in
any manner or eliminating any of the provisions of, this Indenture or of
modifying in any manner the rights of the Holders of the Notes under this
Indenture; provided, however, that no such supplemental indenture shall, without
the consent of the Holder of each Outstanding Note of each Series or Class
affected thereby:
(i) change the date of payment of any installment of principal
of or premium, if any, or interest on any Note, or reduce the principal
amount thereof, the interest rate thereon or premium, if any, with
respect thereto, change any Optional Redemption Price, change the
provisions of this Indenture and the related applicable Trustee's
Issuance Certificate or Series Supplement relating to the application
of collections on, or the proceeds of the sale of, the Note Collateral
to payment of principal of or premium, if any, or interest on the
Notes, or change any place of payment where, or the coin or currency in
which, any Note or the interest thereon is payable, or impair the right
to institute suit for the enforcement of the provisions of this
Indenture requiring the application of funds available therefor, as
provided in Article V, to the payment of any such amount due on the
Notes on or after the respective due dates thereof (or, in the case of
optional redemption, on or after the Optional Redemption Date);
(ii) reduce the percentage of the Outstanding Amount of the
Notes or of a Series or Class thereof, the consent of the Holders of
which is required for any such supplemental indenture, or the consent
of the Holders of which is required for any waiver of compliance with
certain provisions of this Indenture or certain defaults hereunder and
their consequences provided for in this Indenture;
(iii) modify or alter the provisions of the proviso to the
definition of the term "Outstanding";
(iv) reduce the percentage of the Outstanding Amount of the
Notes required to direct the Indenture Trustee to direct the Note
Issuer to sell or liquidate the Note Collateral pursuant to Section
5.04;
(v) modify any provision of this Section to decrease any
minimum percentage specified herein necessary to approve any amendments
to any provisions of this Indenture;
(vi) modify any of the provisions of this Indenture in such
manner as to affect the calculation of the amount of any payment of
interest, principal or premium, if any, due on any Note on any Payment
Date (including the calculation of any of the individual components of
such calculation);
(vii) permit the creation of any Lien ranking prior to or on a
parity with the Lien of this Indenture with respect to any part of the
Note Collateral or, except as otherwise permitted or contemplated
herein, terminate the Lien of this Indenture on any property at any
time subject hereto or deprive the Holder of any Note of the security
provided by the Lien of this Indenture; or
(viii) cause any material adverse federal income tax
consequence to CPL, the Note Issuer, the Indenture Trustee or the then
existing Holders.
The Indenture Trustee may in its discretion determine whether
or not any Notes of a Series or Class would be affected by any supplemental
indenture and any such determination shall be conclusive upon the Holders of all
Notes of such Series or Class, whether theretofore or thereafter authenticated
and delivered hereunder. The Indenture Trustee shall not be liable for any such
determination made in good faith.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
Promptly after the execution by the Note Issuer and the
Indenture Trustee of any supplemental indenture pursuant to this Section, the
Note Issuer shall mail to the Rating Agencies and the Holders of the Notes to
which such supplemental indenture relates a notice setting forth in general
terms the substance of such supplemental indenture. Any failure of the Indenture
Trustee to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture.
SECTION 9.03. Execution of Supplemental Indentures. In
executing, or permitting the additional trusts created by, any supplemental
indenture permitted by this Article IX or the modifications thereby of the
trusts created by this Indenture, the Indenture Trustee shall be entitled to
receive, and subject to Sections 6.01 and 6.02, shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The
Indenture Trustee may, but shall not be obligated to, enter into any such
supplemental indenture that affects the Indenture Trustee's own rights, duties,
liabilities or immunities under this Indenture or otherwise.
SECTION 9.04. Effect of Supplemental Indenture. Upon the
execution of any supplemental indenture pursuant to the provisions hereof, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith with respect to each Series or Class of Notes affected thereby, and
the respective rights, limitations of rights, obligations, duties, liabilities
and immunities under this Indenture of the Indenture Trustee, the Note Issuer
and the Holders shall thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and amendments, and all the terms
and conditions of any such supplemental indenture shall be and be deemed to be
part of the terms and conditions of this Indenture for any and all purposes.
SECTION 9.05. Conformity with Trust Indenture Act. Every
amendment of this Indenture and every supplemental indenture executed pursuant
to this Article IX shall conform to the requirements of the TIA as then in
effect so long as this Indenture shall then be qualified under the TIA.
SECTION 9.06. Reference in Notes to Supplemental Indentures.
Notes authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article IX may, and if required by the Indenture
Trustee shall, bear a notation in form approved by the Indenture Trustee as to
any matter provided for in such supplemental indenture. If the Note Issuer or
the Indenture Trustee shall so determine, new Notes so modified as to conform,
in the opinion of the Indenture Trustee and the Note Issuer, to any such
supplemental indenture may be prepared and executed by the Note Issuer and
authenticated and delivered by the Indenture Trustee in exchange for Outstanding
Notes.
ARTICLE X
Redemption of Notes
SECTION 10.01. Optional Redemption by Note Issuer. The Note
Issuer may, at its option, redeem all, but not less than all, of the Notes of a
Series (a) on any Payment Date if, after giving effect to payments that would
otherwise be made on such Payment Date, the Outstanding Amount of any such
Series of Notes has been reduced to less than five percent of the initial
principal balance thereof, or (b) if and to the extent specified in the related
Trustee's Issuance Certificate or Series Supplement on any Payment Date from the
proceeds of the issuance and sale of the Notes of any other Series. In addition,
a Series of Notes shall be subject to redemption if and to the extent provided
in the related Trustee's Issuance Certificate or Series Supplement. In no event,
however, shall any Notes be redeemable unless the Rating Agency Condition shall
be satisfied with respect to each Rating Agency other than Xxxxx'x, to which
prior written notice of such redemption shall have been given, with respect to
any Notes which remain Outstanding after such redemption. The redemption price
in any case shall be equal to the outstanding principal amount of the Notes to
be redeemed plus accrued and unpaid interest thereon at the Note Interest Rate
to the Optional Redemption Date (such price being called the "Optional
Redemption Price"). If the Note Issuer shall elect to redeem the Notes of a
Series pursuant to this Section 10.01, it shall furnish written notice (which
notice shall state all items listed in Section 10.02) of such election to the
Indenture Trustee and the Rating Agencies not more than 50 and not less than 25
days prior to the Optional Redemption Date and shall deposit with the Indenture
Trustee not later than one Business Day prior to the Optional Redemption Date
the Optional Redemption Price of the Notes to be redeemed whereupon all such
Notes shall be due and payable on the Optional Redemption Date upon the
furnishing of a notice complying with Section 10.02 to each Holder of the Notes
of such Series pursuant to this Section 10.01.
SECTION 10.02. Form of Optional Redemption Notice. Unless
otherwise specified in the Trustee's Issuance Certificate or Series Supplement
relating to a Series of Notes, notice of redemption under Section 10.01 shall be
given by the Indenture Trustee by first-class mail, postage prepaid, mailed not
less than five days nor more than 25 days prior to the applicable Optional
Redemption Date to each Holder of Notes to be redeemed, as of the close of
business on the Record Date preceding the applicable Optional Redemption Date at
such Holder's address appearing in the Note Register.
All notices of redemption shall state:
(1) the Optional Redemption Date;
(2) the Optional Redemption Price;
(3) the place where such Notes are to be surrendered for
payment of the Optional Redemption Price (which shall be the office or
agency of the Note Issuer to be maintained as provided in Section
3.02);
(4) the CUSIP number, if applicable; and
(5) the principal amount of Notes to be redeemed.
Notice of redemption of the Notes to be redeemed shall be
given by the Indenture Trustee in the name and at the expense of the Note
Issuer. Failure to give notice of redemption, or any defect therein, to any
Holder of any Note selected for redemption shall not impair or affect the
validity of the redemption of any other Note.
SECTION 10.03. Notes Payable on Optional Redemption Date.
Notice of redemption having been given as provided in Section 10.02, the Notes
to be redeemed shall on the Optional Redemption Date become due and payable at
the Optional Redemption Price and (unless the Note Issuer shall default in the
payment of the Optional Redemption Price) no interest shall accrue on the
Optional Redemption Price for any period after the date to which accrued
interest is calculated for purposes of calculating the Optional Redemption
Price.
ARTICLE XI
Miscellaneous
SECTION 11.01. Compliance Certificates and Opinions, etc. (a)
Upon any application or request by the Note Issuer to the Indenture Trustee to
take any action under any provision of this Indenture, the Note Issuer shall
furnish to the Indenture Trustee (i) an Officer's Certificate stating that all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with, (ii) an Opinion of Counsel stating that
in the opinion of such counsel all such conditions precedent, if any, have been
complied with and (iii) (if required by the TIA) an Independent Certificate from
a firm of certified public accountants meeting the applicable requirements of
this Section, except that, in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision
of this Indenture, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(i) a statement that each signatory of such certificate or
opinion has read or has caused to be read such covenant or condition
and the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of each such signatory,
such signatory has made such examination or investigation as is
necessary to enable such signatory to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such
signatory, such condition or covenant has been complied with.
(b) (i) Prior to the deposit of any Note Collateral or other
property or securities with the Indenture Trustee that is to be made the basis
for the release of any property or securities subject to the Lien of this
Indenture, the Note Issuer shall, in addition to any obligation imposed in
Section 11.01(a) or elsewhere in this Indenture, furnish to the Indenture
Trustee an Officer's Certificate certifying or stating the opinion of each
person signing such certificate as to the fair value (within 90 days of such
deposit) to the Note Issuer of the Note Collateral or other property or
securities to be so deposited.
(ii) Whenever the Note Issuer is required to furnish to the
Indenture Trustee an Officer's Certificate certifying or stating the opinion of
any signer thereof as to the matters described in clause (i) above, the Note
Issuer shall also deliver to the Indenture Trustee an Independent Certificate as
to the same matters, if the fair value to the Note Issuer of the securities to
be so deposited and of all other such securities made the basis of any such
withdrawal or release since the commencement of the then-current fiscal year of
the Note Issuer, as set forth in the certificates delivered pursuant to clause
(i) above and this clause (ii), is ten percent or more of the Outstanding Amount
of the Notes of all Series, but such a certificate need not be furnished with
respect to any securities so deposited, if the fair value thereof to the Note
Issuer as set forth in the related Officer's Certificate is less than the lesser
of (A) $25,000 or (B) one percent of the Outstanding Amount of the Notes of all
Series.
(iii) Whenever any property or securities are to be released
from the Lien of this Indenture other than pursuant to Section 8.02(d), the Note
Issuer shall also furnish to the Indenture Trustee an Officer's Certificate
certifying or stating the opinion of each person signing such certificate as to
the fair value (within 90 days of such release) of the property or securities
proposed to be released and stating that in the opinion of such person the
proposed release will not impair the security under this Indenture in
contravention of the provisions hereof.
(iv) Whenever the Note Issuer is required to furnish to the
Indenture Trustee an Officer's Certificate certifying or stating the opinion of
any signatory thereof as to the matters described in clause (iii) above, the
Note Issuer shall also furnish to the Indenture Trustee an Independent
Certificate as to the same matters if the fair value of the property or
securities and of all other property with respect to such Series, or securities
released from the Lien of this Indenture (other than pursuant to Section
8.02(d)) since the commencement of the then-current calendar year, as set forth
in the certificates required by clause (iii) above and this clause (iv), equals
10 percent or more of the Outstanding Amount of the Notes of all Series, but
such certificate need not be furnished in the case of any release of property or
securities if the fair value thereof as set forth in the related Officer's
Certificate is less than the lesser of (A) $25,000 or (B) one percent of the
then Outstanding Amount of the Notes of all Series.
(v) Notwithstanding Section 2.16 or any other provision of
this Section 11.01, the Indenture Trustee may (A) collect, liquidate, sell or
otherwise dispose of the Transition Property and the other Note Collateral as
and to the extent permitted or required by the Basic Documents and (B) make cash
payments out of the Collection Account as and to the extent permitted or
required by the Basic Documents.
SECTION 11.02. Form of Documents Delivered to Indenture
Trustee. In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of a Responsible Officer of the
Note Issuer may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless such officer
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to the matters upon which his or her
certificate or opinion is based are erroneous. Any such certificate of a
Responsible Officer or Opinion of Counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Servicer or the Note Issuer stating that the
information with respect to such factual matters is in the possession of the
Servicer or the Note Issuer, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Whenever in this Indenture, in connection with any application
or certificate or report to the Indenture Trustee, it is provided that the Note
Issuer shall deliver any document as a condition of the granting of such
application, or as evidence of the Note Issuer's compliance with any term
hereof, it is intended that the truth and accuracy, at the time of the granting
of such application or at the effective date of such certificate or report (as
the case may be), of the facts and opinions stated in such document shall in
such case be conditions precedent to the right of the Note Issuer to have such
application granted or to the sufficiency of such certificate or report. The
foregoing shall not, however, be construed to affect the Indenture Trustee's
right to rely upon the truth and accuracy of any statement or opinion contained
in any such document as provided in Article VI.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 11.03. Acts of Holders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed by such Holders
in person or by agents duly appointed in writing; and except as herein otherwise
expressly provided such action shall become effective when such instrument or
instruments are delivered to the Indenture Trustee, and, where it is hereby
expressly required, to the Note Issuer. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Indenture and (subject to Section 6.01)
conclusive in favor of the Indenture Trustee and the Note Issuer, if made in the
manner provided in this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved in any manner that the Indenture
Trustee deems sufficient.
(c) The ownership of Notes shall be proved by the Note
Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Notes shall bind the Holder
of every Note issued upon the registration thereof or in exchange therefor or in
lieu thereof, in respect of anything done, omitted or suffered to be done by the
Indenture Trustee or the Note Issuer in reliance thereon, whether or not
notation of such action is made upon such Note.
SECTION 11.04. Notices, etc., to Indenture Trustee, Note
Issuer and Rating Agencies. (a) Any request, demand, authorization, direction,
notice, consent, waiver or Act of Holders or other documents provided or
permitted by this Indenture to be made upon, given or furnished to or filed
with:
(i) the Indenture Trustee by any Holder or by the Note Issuer
shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing by facsimile transmission, first-class
mail or overnight delivery service to or with the Indenture Trustee at
its Corporate Trust Office, or
(ii) the Note Issuer by the Indenture Trustee or by any Holder
shall be sufficient for every purpose hereunder if in writing and
mailed, first-class, postage prepaid, to the Note Issuer addressed to:
CPL Transition Funding LLC c/o Central and South West Corporation, 0000
Xxxxxxx Xxxxxx Xxxxxxx, Xxxxxx, Xxxxx 00000, Attention of the
Treasurer, telephone: __________, facsimile: __________ or at any other
address previously furnished in writing to the Indenture Trustee by the
Note Issuer. The Note Issuer shall promptly transmit any notice
received by it from the Holders to the Indenture Trustee.
(b) Notices required to be given to the Rating Agencies by the
Note Issuer or the Indenture Trustee shall be in writing, personally delivered
or mailed by certified mail, return receipt requested to (i) in the case of
Moody's, to: Xxxxx'x Investors Service, Inc., ABS Monitoring Department, 00
Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, telephone: (000) 000-0000, facsimile
(000) 000-0000, (ii) in the case of Standard & Poor's, to: Standard & Poor's
Corporation, 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of
Asset Backed Surveillance Department, telephone: (000) 000-0000, facsimile:
(000) 000-0000, (iii) in the case of Fitch IBCA, to Fitch IBCA, Inc., Xxx Xxxxx
Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of ABS Surveillance,
telephone: (000) 000-0000, facsimile: (000) 000-0000, (iv) in the case of Duff &
Xxxxxx, to Xxxx & Xxxxxx Credit Rating Co., 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention of Asset-Backed Monitoring Group, telephone:
________, facsimile: ________ and (v) as to each of the foregoing, at such other
address as shall be designated by written notice to the other parties.
SECTION 11.05. Notices to Holders; Waiver. Where this
Indenture provides for notice to Holders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class, postage prepaid to each Holder affected by such event,
at such Holder's address as it appears on the Note Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the giving
of such notice. In any case where notice to Holders is given by mail, neither
the failure to mail such notice nor any defect in any notice so mailed to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders, and any notice that is mailed in the manner herein provided shall
conclusively be presumed to have been duly given.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by any Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Indenture
Trustee but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such a waiver.
In case, by reason of the suspension of regular mail service
as a result of a strike, work stoppage or similar activity, it shall be
impractical to mail notice of any event of Holders when such notice is required
to be given pursuant to any provision of this Indenture, then any manner of
giving such notice as shall be satisfactory to the Indenture Trustee shall be
deemed to be a sufficient giving of such notice.
Where this Indenture provides for notice to the Rating
Agencies, failure to give such notice shall not affect any other rights or
obligations created hereunder, and shall not under any circumstance constitute a
Default or Event of Default.
SECTION 11.06. Conflict with Trust Indenture Act. If any
provision hereof limits, qualifies or conflicts with another provision hereof
that is required to be included in this Indenture by any of the provisions of
the TIA, such required provision shall control.
The provisions of TIA xx.xx. 310 through 317 that impose
duties on any person (including the provisions automatically deemed included
herein unless expressly excluded by this Indenture) are a part of and govern
this Indenture, whether or not physically contained herein.
SECTION 11.07. Effect of Headings and Table of Contents. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 11.08. Successors and Assigns. All covenants and
agreements in this Indenture and the Notes by the Note Issuer shall bind its
successors and assigns, whether so expressed or not. All agreements of the
Indenture Trustee in this Indenture shall bind its successors.
SECTION 11.09. Severability. Any provision in this Indenture
or in the Notes 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 remainder of such provision (if any)
or the remaining provisions hereof (unless such construction shall be
unreasonable), and any such prohibition or unenforceability in any jurisdiction
shall not invalidate or render unenforceable such provision in any other
jurisdiction.
SECTION 11.10. Benefits of Indenture. Nothing in this
Indenture or in the Notes, express or implied, shall give to any Person, other
than the parties hereto and their successors hereunder, and the Holders, and any
other party secured hereunder, and any other Person with an ownership interest
in any part of the Note Collateral, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
SECTION 11.11. Legal Holidays. In any case where the date on
which any payment is due shall not be a Business Day, then (notwithstanding any
other provision of the Notes or this Indenture) payment need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the date on which nominally due, and no interest shall
accrue for the period from and after any such nominal date.
SECTION 11.12. GOVERNING LAW. THIS INDENTURE SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS; PROVIDED THAT THE CREATION, ATTACHMENT AND PERFECTION OF ANY LIENS CREATED
HEREUNDER IN TRANSITION PROPERTY, AND ALL RIGHTS AND REMEDIES OF THE INDENTURE
TRUSTEE AND THE HOLDERS WITH RESPECT TO SUCH TRANSITION PROPERTY, SHALL BE
GOVERNED BY THE LAWS OF THE STATE OF TEXAS.
SECTION 11.13. Counterparts. This Indenture may be executed
in any number of counterparts, each of which so executed shall be deemed to
be an original, but all such counterparts shall together constitute
but one and the same instrument.
SECTION 11.14. Recording of Indenture. If this Indenture is
subject to recording in any appropriate public recording offices, such recording
is to be effected by the Note Issuer and at its expense accompanied by an
Opinion of Counsel (which may be counsel to the Indenture Trustee or any other
counsel reasonably acceptable to the Indenture Trustee) to the effect that such
recording is necessary either for the protection of the Holders or any other
Person secured hereunder or for the enforcement of any right or remedy granted
to the Indenture Trustee under this Indenture.
SECTION 11.15. Trust Obligation. No recourse may be taken,
directly or indirectly, with respect to the obligations of the Note Issuer or
the Indenture Trustee on the Notes or under this Indenture or any certificate or
other writing delivered in connection herewith or therewith, against (i) the
Indenture Trustee or the Managers in their respective individual capacities,
(ii) any owner of a beneficial interest in the Note Issuer (including CPL) or
(iii) any shareholder, partner, owner, beneficiary, agent, officer, or employee
of the Indenture Trustee, the Managers or any owner of a beneficial interest in
the Note Issuer (including CPL) in its respective individual capacity, or of any
successor or assign of any of them in their respective individual or corporate
capacities, except as any such Person may have expressly agreed (it being
understood that none of the Indenture Trustee, the Managers or CPL has any such
obligations in their respective individual or corporate capacities).
SECTION 11.16. No Recourse to Note Issuer. Notwithstanding any
provision of this Indenture or any Trustee's Issuance Certificate or any Series
Supplement to the contrary, Holders shall have no recourse against the Note
Issuer, but shall look only to the Note Collateral with respect to any amounts
due to the Holders hereunder and under the Notes.
SECTION 11.17. Inspection. The Note Issuer agrees that, on
reasonable prior notice, it will permit any representative of the Indenture
Trustee, during the Note Issuer's normal business hours, to examine all the
books of account, records, reports, and other papers of the Note Issuer, to make
copies and extracts therefrom, to cause such books to be audited by Independent
certified public accountants, and to discuss the Note Issuer's affairs, finances
and accounts with the Note Issuer's officers, employees, and Independent
certified public accountants, all at such reasonable times and as often as may
be reasonably requested. The Indenture Trustee shall and shall cause its
representatives to hold in confidence all such information except to the extent
disclosure may be required by law (and all reasonable applications for
confidential treatment are unavailing) and except to the extent that the
Indenture Trustee may reasonably determine that such disclosure is consistent
with its obligations hereunder. Notwithstanding anything herein to the contrary,
the foregoing shall not be construed to prohibit (i) disclosure of any and all
information that is or becomes publicly known, or information obtained by the
Indenture Trustee from sources other than the Note Issuer, provided such parties
are rightfully in possession of such information, (ii) disclosure of any and all
information (A) if required to do so by any applicable statute, law, rule or
regulation, (B) pursuant to any subpoena, civil investigative demand or similar
demand or request of any court or regulatory authority exercising its proper
jurisdiction, (C) in any preliminary or final offering circular, registration
statement or contract or other document pertaining to the transactions
contemplated by this Indenture or the Basic Documents approved in advance by the
Note Issuer or (D) to any affiliate, independent or internal auditor, agent,
employee or attorney of the Indenture Trustee having a need to know the same,
provided that such parties agree to be bound by the confidentiality provisions
contained in this Section 11.17, or (iii) any other disclosure authorized by the
Note Issuer.
SECTION 11.18. No Petition. The Indenture Trustee, by entering
into this Indenture, each Holder, by accepting a Note (or interest therein)
issued hereunder, hereby covenant and agree that they shall not, prior to the
date which is one year and one day after the termination of this Indenture,
acquiesce, petition or otherwise invoke or cause the Note Issuer any Manager to
invoke the process of any court or government authority for the purpose of
commencing or sustaining a case against the Note Issuer or under any insolvency
law or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Note Issuer or any substantial
part of its respective property, or ordering the winding up or liquidation of
the affairs of the Note Issuer.
IN WITNESS WHEREOF, the Note Issuer and the Indenture Trustee
have caused this Indenture to be duly executed by their respective officers
thereunto duly authorized and duly attested, all as of the day and year first
above written.
CPL TRANSITION FUNDING LLC
By:
Name:
Title: Manager
______________________________,
as Indenture Trustee
By: _____________________________
Name:
Title:
STATE OF ________, )
)ss:
COUNTY OF ____.... )
On the day of ________, 2000, before me, , a Notary Public in
and for said county and state, personally appeared , personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person and officer
whose name is subscribed to the within instrument and acknowledged to me that
such person executed the same in such person's authorized capacity, and that by
the signature on the instrument __________________, [a __________ banking
corporation], and the entity upon whose behalf the person acted, executed this
instrument.
WITNESS my hand and official seal.
Notary Public
My commission expires:
STATE OF )
)ss:
COUNTY OF )
On the day of ________, 2000, before me, , a Notary Public in
and for said county and state, personally appeared , personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person whose name
is subscribed to the within instrument and acknowledged to me that he/she
executed the same in his/her capacity as manager of CPL TRANSITION FUNDING LLC,
and that by his/her signature on the instrument CPL TRANSITION FUNDING LLC, a
Delaware limited liability company and the entity upon whose behalf such person
acted, executed this instrument.
WITNESS my hand and official seal.
Notary Public
My commission expires:
EXHIBIT A
[Transfers of this Global Note shall be limited to transfers in the Clearing
Agency or to a successor thereof or such successor's nominee and transfers of
portions of this Global Note shall be limited to transfers made in accordance
with the restrictions set forth in the Indenture.]
REGISTERED $________
No. SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO.
THE PRINCIPAL OF THIS SERIES [ ], CLASS [ - ] ("THIS CLASS
[ - ] NOTE") WILL BE PAID IN INSTALLMENTS AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING PRINCIPAL AMOUNT OF THIS CLASS [ - ] NOTE AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ON THE FACE HEREOF. THE HOLDER OF THIS NOTE HAS NO
RECOURSE TO THE ISSUER HEREOF AND AGREES TO LOOK ONLY TO THE NOTE COLLATERAL, AS
DESCRIBED IN THE INDENTURE AND ANY RELATED TRUSTEE'S ISSUANCE CERTIFICATE OR
SERIES SUPPLEMENT REFERRED TO ON THE REVERSE HEREOF, FOR PAYMENT OF ANY AMOUNTS
DUE HEREUNDER. ALL OBLIGATIONS OF THE ISSUER OF THIS CLASS [ - ] NOTE UNDER THE
TERMS OF THE INDENTURE WILL BE RELEASED AND DISCHARGED UPON PAYMENT IN FULL
HEREOF OR AS OTHERWISE PROVIDED IN SECTION 3.10(b) OR ARTICLE IV OF THE
INDENTURE. THE HOLDER OF THIS CLASS [ - ] NOTE HEREBY COVENANTS AND AGREES THAT
PRIOR TO THE DATE WHICH IS ONE (1) YEAR AND ONE (1) DAY AFTER THE PAYMENT IN
FULL OF THE SERIES [ ] CLASS [ - ] NOTES, IT WILL NOT INSTITUTE AGAINST, OR JOIN
ANY OTHER PERSON IN INSTITUTING AGAINST, THE ISSUER ANY BANKRUPTCY,
REORGANIZATION, ARRANGEMENT, INSOLVENCY OR LIQUIDATION PROCEEDINGS OR OTHER
SIMILAR PROCEEDING UNDER THE LAWS OF THE UNITED STATES OR ANY STATE OF THE
UNITED STATES. NOTHING IN THIS PARAGRAPH SHALL PRECLUDE, OR BE DEEMED TO ESTOP,
SUCH HOLDER (A) FROM TAKING OR OMITTING TO TAKE ANY ACTION PRIOR TO SUCH DATE IN
(I) ANY CASE OR PROCEEDING VOLUNTARILY FILED OR COMMENCED BY OR ON BEHALF OF THE
ISSUER UNDER OR PURSUANT TO ANY SUCH LAW OR (II) ANY INVOLUNTARY CASE OR
PROCEEDING PERTAINING TO THE ISSUER WHICH IS FILED OR COMMENCED BY OR ON BEHALF
OF A PERSON OTHER THAN SUCH HOLDER AND IS NOT JOINED IN BY SUCH HOLDER (OR ANY
PERSON TO WHICH SUCH HOLDER SHALL HAVE ASSIGNED, TRANSFERRED OR OTHERWISE
CONVEYED ANY PART OF THE OBLIGATIONS OF THE ISSUER HEREUNDER) UNDER OR PURSUANT
TO ANY SUCH LAW, OR (B) FROM COMMENCING OR PROSECUTING ANY LEGAL ACTION WHICH IS
NOT AN INVOLUNTARY CASE OR PROCEEDING UNDER OR PURSUANT TO ANY SUCH LAW AGAINST
THE ISSUER OR ANY OF ITS PROPERTIES.
CPL TRANSITION FUNDING LLC TRUST NOTES,
SERIES [ ], Class [ - ].
INTEREST ORIGINAL PRINCIPAL FINAL MATURITY
RATE AMOUNT DATE
---- ------ ----
CPL Transition Funding LLC, a limited liability company
created under the laws of the State of Delaware (herein referred to as the "Note
Issuer"), for value received, hereby promises to pay to [ ], or registered
assigns, the Original Principal Amount shown above [in semi-annual installments]
on the Payment Dates and in the amounts specified on the reverse hereof or, if
less, the amounts determined pursuant to Section 8.02 of the Indenture, in each
year, commencing on the date determined as provided on the reverse hereof and
ending on or before the Final Maturity Date shown above and to pay interest, at
the Interest Rate shown above, on each __________, __________ and __________ or
if any such day is not a Business Day, the next succeeding Business Day,
commencing on [ ] and continuing until the earlier of the payment in full of the
principal hereof and the Final Maturity Date (each a "Payment Date"), on the
principal amount of this Series [ ], Class [ - ] Note (hereinafter referred to
as "this Class [ - ] Note"). Interest on this Class [ - ] Note will accrue for
each Payment Date from the most recent Payment Date on which interest has been
paid to but excluding such Payment Date or, if no interest has yet been paid,
from [ ]. Interest will be computed on the basis of [specify method of
computation]. Such principal of and interest on this Class [ - ] Note shall be
paid in the manner specified on the reverse hereof.
The principal of and interest on this Class [ - ] Note are
payable in such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private debts. All payments
made by the Note Issuer with respect to this Class [ - ] Note shall be applied
first to interest due and payable on this Class [ - ] Note as provided above and
then to the unpaid principal of and premium, if any, on this Class [ - ] Note,
all in the manner set forth in Section 8.02 of the Indenture.
Reference is made to the further provisions of this Class [ -
] Note set forth on the reverse hereof, which shall have the same effect as
though fully set forth on the face of this Class [ - ] Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual signature,
this Class [ - ] Note shall not be entitled to any benefit under the Indenture
referred to on the reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Note Issuer has caused this instrument
to be signed, manually or in facsimile, by its Responsible Officer.
Date:
CPL TRANSITION FUNDING LLC
By:
Name:
Title: Manager
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
Dated: ,
This is one of the Series [ ], Class [ - ] Notes,
designated above and referred to in the within-mentioned Indenture.
---------------------------,
as Indenture Trustee
By: _______________________________
Name: _____________________________
Title: ______________________________
REVERSE OF NOTE
This Series [ ], Class [ - ] Note is one of a duly authorized
issue of Notes of the Note Issuer (herein called the "Notes"), issued and to be
issued in one or more Series, which Series are issuable in one or more Classes,
and the Series [ ] Notes consists of [ ] Classes, including this Class [ - ]
Note (herein called the "Class [ - ] Notes"), all issued and to be issued under
an Indenture dated as of [ ], 2000, (the "Indenture"), between the Note Issuer
and ______________________, as Indenture Trustee (the "Indenture Trustee", which
term includes any successor trustee under the Indenture), to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights and obligations thereunder of the Note Issuer, the
Indenture Trustee and the Holders of the Notes. All terms used in this Class [ -
] Note that are defined in the Indenture, as supplemented or amended, shall have
the meanings assigned to them in the Indenture.
The Class [ - ] Notes, the other Classes of Series [ ] Notes
(all of such Classes being referred to herein as "Series [ ] Notes") and any
other Series of Notes issued by the Note Issuer are and will be equally and
ratably secured by the Note Collateral pledged as security therefor as provided
in the Indenture.
The principal of this Class [ - ] Note shall be payable on
each Payment Date only to the extent that amounts in the Collection Account are
available therefor, and only until the outstanding principal balance thereof on
the preceding Payment Date (after giving effect to all payments of principal, if
any, made on the preceding Payment Date) has been reduced to the principal
balance specified in the Expected Amortization Schedule which is attached to the
related Trustee's Issuance Certificate or Series Supplement as Schedule A,
unless payable earlier either because (x) an Event of Default shall have
occurred and be continuing and the Indenture Trustee or the Holders of Notes
representing not less than a majority of the Outstanding Amount of the Notes of
all Series have declared the Notes of all Series to be immediately due and
payable in accordance with Section 5.02 of the Indenture (unless such
declaration shall have been rescinded and annulled in accordance with Section
5.02 of the Indenture) or (y) the Note Issuer, at its option, shall have called
for the redemption of the Series [ ] Notes pursuant to Section 10.01 of the
Indenture or in accordance with the Trustee's Issuance Certificate or Series
Supplement, if any. However, actual principal payments may be made in lesser
than expected amounts and at later than expected times as determined pursuant to
Section 8.02 of the Indenture. The entire unpaid principal amount of this Class
[ - ] Note shall be due and payable on the earlier of the Final Maturity Date
hereof and the Optional Redemption Date, if any. Notwithstanding the foregoing,
the entire unpaid principal amount of the Notes shall be due and payable, if not
then previously paid, on the date on which an Event of Default shall have
occurred and be continuing and the Indenture Trustee or the Holders of the Notes
representing not less than a majority of the Outstanding Amount of the Notes of
all Series have declared the Notes of all Series to be immediately due and
payable in the manner provided in Section 5.02 of the Indenture (unless such
declaration shall have been rescinded and annulled in accordance with Section
5.02 of the Indenture). All principal payments on the Class [ - ] Notes shall be
made pro rata to the Class [ - ] Holders entitled thereto based on the
respective principal amounts of the Class [ - ] Notes held by them.
Payments of interest on this Class [ - ] Note due and payable
on each Payment Date, together with the installment of principal or premium, if
any, shall be made by check mailed first-class, postage prepaid, to the Person
whose name appears as the Registered Holder of this Class [ - ] Note (or one or
more Predecessor Notes) on the Note Register as of the close of business on the
Record Date or in such other manner as may be provided in the related Trustee's
Issuance Certificate or Series Supplement, if any, except for the final
installment of principal and premium, if any, payable with respect to this Class
[ - ] Note on a Payment Date which shall be payable as provided below. Such
checks shall be mailed to the Person entitled thereto at the address of such
Person as it appears on the Note Register as of the applicable Record Date
without requiring that this Class [ - ] Note be submitted for notation of
payment. Any reduction in the principal amount of this Class [ - ] Note (or any
one or more Predecessor Notes) effected by any payments made on any Payment Date
shall be binding upon all future Holders of this Class [ - ] Note and of any
Note issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof, whether or not noted hereon. If funds are expected to be available,
as provided in the Indenture, for payment in full of the then remaining unpaid
principal amount of this Class [ - ] Note on a Payment Date, then the Indenture
Trustee, in the name of and on behalf of the Note Issuer, will notify the Person
who was the Registered Holder hereof as of the Record Date preceding such
Payment Date by notice mailed no later than five days prior to such final
Payment Date and shall specify that such final installment will be payable only
upon presentation and surrender of this Class [ - ] Note and shall specify the
place where this Class [ - ] Note may be presented and surrendered for payment
of such installment.
The Note Issuer shall pay interest on overdue installments of
interest at the Note Interest Rate to the extent lawful.
As provided in the Indenture, the Class [__-__] Notes may be
redeemed, in whole but not in part, at the option of the Note Issuer on any date
at the Optional Redemption Price (a) if, after giving effect to payments that
would otherwise be made on such Payment Date, the Outstanding Amount of the
Class [__-__] Notes has been reduced to less than five percent of the initial
principal balance thereof or (b) from the proceeds of the issuance and sale of
the Notes of any other Series.
This Note is a transition bond as such term is defined in the
Securitization Law. Principal and interest due and payable on this Note are
payable from and secured primarily by Transition Property created and
established by a Financing Order obtained from the Public Utility Commission of
Texas pursuant to the Securitization Law. Transition Property consists of the
rights and interests of CPL in the relevant Financing Order, including the right
to impose, collect and recover certain charges (defined in the Securitization
Law as "Transition Charges") to be included in regular electric utility bills of
existing and future electric service customers within the service territory of
Central Power and Light Company, a Texas electric utility, or its successors or
assigns, as more fully described in the financing order.
The Securitization Law provides that: "Transition bonds are
not a debt or obligation of the state and are not a charge on its full faith and
credit or taxing power. The state pledges, however, for the benefit and
protection of financing parties and the electric utility, that it will not take
or permit any action that would impair the value of transition property, or,
except as permitted by Section 39.307, reduce, alter, or impair the transition
charges to be imposed, collected, and remitted to financing parties, until the
principal, interest and premium, and any other charges incurred and contracts to
be performed in connection with the related transition bonds have been paid and
performed in full. Any party issuing transition bonds is authorized to include
this pledge in any documentation relating to those bonds."
As a result of the foregoing pledge, the State of Texas may
not, except as provided in the succeeding sentence, in any way reduce, alter or
impair the Transition Charges until the Notes, together with interest thereon,
are fully paid and discharged. Notwithstanding the immediately preceding
sentence, the State of Texas would be allowed to effect a temporary impairment
of the Holders' rights if it could be shown that such impairment was necessary
to advance a significant and legitimate public purpose.
As provided in the Indenture and subject to certain
limitations set forth therein, the transfer of this Class [ - ] Note may be
registered on the Note Register upon surrender of this Class [ - ] Note for
registration of transfer at the office or agency designated by the Note Issuer
pursuant to the Indenture, duly endorsed by, or accompanied by (a) a written
instrument of transfer in form satisfactory to the Indenture Trustee duly
executed by the Holder hereof or such Xxxxxx's attorney duly authorized in
writing, with such signature guaranteed by an institution which is a member of
one of the following recognized Signature Guaranty Programs: (i) The Securities
Transfer Agent Medallion Program (STAMP); (ii)The New York Stock Exchange
Medallion Program (MSP); (iii) The Stock Exchange Medallion Program (SEMP); or
(iv) in such other guarantee program acceptable to the Indenture Trustee, and
(b) such other documents as the Indenture Trustee may require, and thereupon one
or more new Class [ - ] Notes of Minimum Denominations and in the same aggregate
principal amount will be issued to the designated transferee or transferees. No
service charge will be charged for any registration of transfer or exchange of
this Class [ - ] Note, but the transferor may be required to pay a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any such registration of transfer or exchange, other than
exchanges pursuant to Section 2.04 or 9.06 of the Indenture not involving any
transfer.
Each Note holder, by acceptance of a Note, covenants and
agrees that no recourse may be taken, directly or indirectly, with respect to
the obligations of the Note Issuer or the Indenture Trustee on the Notes or
under the Indenture or any certificate or other writing delivered in connection
therewith, against (i) the Indenture Trustee or the Managers in their respective
individual capacities, (ii) any owner of a beneficial interest in the Note
Issuer (including CPL) or (iii) any shareholder, partner, owner, beneficiary,
agent, officer or employee of the Indenture Trustee, the Managers or any owner
of a beneficial interest in the Note Issuer (including CPL) in its respective
individual capacity, or of any successor or assign of any of them in their
individual or corporate capacities, except as any such Person may have expressly
agreed (it being understood that none of the Indenture Trustee, the Managers or
CPL has any such obligations in their respective individual or corporate
capacities).
Prior to the due presentment for registration of transfer of
this Class [ - ] Note, the Note Issuer, the Indenture Trustee and any agent of
the Note Issuer or the Indenture Trustee may treat the Person in whose name this
Class [ - ] Note is registered (as of the day of determination) as the owner
hereof for the purpose of receiving payments of principal of and premium, if
any, and interest on this Class [ - ] Note and for all other purposes
whatsoever, whether or not this Class [ - ] Note be overdue, and neither the
Note Issuer, the Indenture Trustee nor any such agent shall be affected by
notice to the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Note Issuer and the rights of the Holders of the Notes under
the Indenture at any time by the Note Issuer with the consent of the Holders of
Notes representing not less than a majority of the Outstanding Amount of all
Notes at the time outstanding of each Series or Class to be affected. The
Indenture also contains provisions permitting the Holders of Notes representing
specified percentages of the Outstanding Amount of the Notes of all Series, on
behalf of the Holders of all the Notes, to waive compliance by the Note Issuer
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Class [ - ] Note (or any one of more Predecessor Notes) shall be conclusive
and binding upon such Holder and upon all future Holders of this Class [ - ]
Note and of any Note issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such consent or
waiver is made upon this Class [ - ] Note. The Indenture also permits the
Indenture Trustee to amend or waive certain terms and conditions set forth in
the Indenture without the consent of Holders of the Notes issued thereunder.
The Indenture contains provisions for defeasance at any time
of (a) the entire indebtedness of the Note Issuer on this Class [ - ] Note and
(b) certain restrictive covenants and the related Events of Default, upon
compliance by the Note Issuer with certain conditions set forth herein, which
provisions apply to this Class [ - ] Note.
The term "Note Issuer" as used in this Class [ - ] Note
includes any successor to the Note
Issuer under the Indenture.
The Note Issuer is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the Indenture
Trustee and the Holders of Notes under the Indenture.
The Class [ - ] Notes are issuable only in registered form in
denominations as provided in the Indenture and the related Trustee's Issuance
Certificate or Series Supplement, if any, subject to certain limitations therein
set forth.
This Class [ - ] Note, the Indenture and the related Trustee's
Issuance Certificate or Series Supplement, if any, shall be construed in
accordance with the laws of the State of New York, without reference to its
conflict of law provisions, and the obligations, rights and remedies of the
parties hereunder and thereunder shall be determined in accordance with such
laws.
No reference herein to the Indenture and no provision of this
Class [ - ] Note or of the Indenture shall alter or impair the obligation, which
is absolute and unconditional, to pay the principal of and interest on this
Class [ - ] Note at the times, place, and rate, and in the coin or currency
herein prescribed.
The Holder of this Class [ - ] Note by the acceptance hereof
agrees that, notwithstanding any provision of the Indenture or the related
Trustee's Issuance Certificate or Series Supplement, if any, to the contrary,
the Holder shall have no recourse against the Note Issuer, but shall look only
to the Note Collateral, with respect to any amounts due to the Holder under this
Class [ - ] Note.
The Note Issuer and the Indenture Trustee, by entering into
the Indenture, and the Holders and any Persons holding a beneficial interest in
any Class [ - ] Note, by acquiring any Class [ - ] Note or interest therein, (i)
express their intention that the Class [ - ] Notes qualify under applicable tax
law as indebtedness of CPL secured by the Note Collateral and (ii) unless
otherwise required by appropriate taxing authorities, agree to treat the Class [
- ] Notes as indebtedness of CPL secured by the Note Collateral for the purpose
of federal income taxes, to the extent consistent with applicable state tax law,
state income and franchise tax purposes, and any other taxes imposed upon,
measured by or based upon gross or net income.
ABBREVIATIONS
The following abbreviations, when used in the inscription of the face
of this Class [ - ] Note, shall be construed as though they were written out in
full according to applicable laws or regulations.
TEN COM.. as tenants in common
TEN ENT.. as tenants by the entireties
JT TEN... as joint tenants with right of survivorship and not
as tenants in common
UNIF GIFT MIN
ACT.... ________________ Custodian __________________
(Custodian) (minor)
Under Uniform Gifts to Minor Act (_________________)
(State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
___________________________________________________________________
(name and address of assignee)
the within Class [ - ] Note and all rights thereunder, and hereby
irrevocably constitutes and appoints , attorney, to transfer said
Class [ - ] Note on the books kept for registration thereof, with
full power of substitution in the premises.
Dated: ________________________________
Signature Guaranteed:
________________________________
EXHIBIT B
TRUSTEE'S ISSUANCE CERTIFICATE dated as of ____, ____
(this "Certificate"), executed and delivered by CPL
TRANSITION FUNDING LLC, a limited liability company
created under the laws of the State of Delaware (the
"Note Issuer"), to ____________________, [a ________
banking corporation] (the "Indenture Trustee"), as
Indenture Trustee under the Indenture dated as of [
], 2000, between the Note Issuer and the Indenture
Trustee (the "Indenture").
PRELIMINARY STATEMENT
Article II of the Indenture provides, among other things, that
the Note Issuer may at any time and from time to time execute and deliver to the
Indenture Trustee one or more Trustee's Issuance Certificates for the purposes
of authorizing the issuance by the Note Issuer of a Series of Notes and
specifying the terms thereof. The Note Issuer has duly authorized the creation
of a Series of Notes with an initial aggregate principal amount of $ [ ] to be
known as CPL Transition Funding LLC Notes, Series [ ] (the "Series [ ] Notes"),
and the Note Issuer is executing and delivering this Certificate in order to
provide for the Series [ ] Notes.
All terms used in this Certificate that are defined in the
Indenture, either directly or by reference therein, have the meanings assigned
to them therein, except to the extent such terms are defined or modified in this
Certificate or the context clearly requires otherwise. In the event that any
term or provision contained herein shall conflict with or be inconsistent with
any term or provision contained in the Indenture, the terms and provisions of
this Certificate shall govern.
SECTION 1. Designation. The Series [ ] Notes shall be
designated generally as Transition Notes, Series [ ] and further
denominated as Classes [ ] through [ ].
SECTION 2. Initial Principal Amount; Note Interest Rate;
Scheduled Payment Date; Final Maturity Date. The Notes of each Class of the
Series [ ] shall have the initial principal amount, bear interest at the rates
per annum and shall have Scheduled Payment Dates and Final Maturity Dates set
forth below:
Initial Note Scheduled Final
Principal Interest Payment Maturity
Class ... Amount Rate Date Date
----- ------ ---- ---- ----
The Note Interest Rate shall be computed on the basis of a 360-day year of
twelve 30-day months. [If the Notes of all or any Classes are to be Floating
Rate Notes, describe here the index or indexes to be used to determine the
applicable variable interest rate].
SECTION 3. Authentication Date; Payment Dates; Expected
Amortization Schedule for Principal; Periodic Interest; Required
Overcollateralization Level; No Premium; Other Terms. (a) Authentication Date.
The Series [ ] Notes that are authenticated and delivered by the Indenture
Trustee to or upon the order of the Note Issuer on [ ] (the "Series Issuance
Date") shall have as their date of authentication [ ].
(b) Payment Dates. The Payment Dates for the Series [ ] Notes
are __________, __________ and __________ of each year or, if any such date is
not a Business Day, the next succeeding Business Day, commencing on [ ] and
continuing until the earlier of repayment of the Series [ ], Class [ ] Notes in
full and the Final Maturity Date for the Series [ ], Class [ ] Notes.
(c) Expected Amortization Schedule for Principal. Unless an
Event of Default shall have occurred and be continuing, on each Payment Date the
Indenture Trustee shall distribute to the Holders of record as of the related
Record Date amounts payable pursuant to Section 8.02(d)[(ix)] of the Indenture
as principal, in the following order and priority: [(1) to the holders of the
Class A-1 Notes, until the Outstanding Amount of such Class of Notes thereof has
been reduced to zero; (2) to the holders of the Class A-2 Notes, until the
Outstanding Amount of such Class of Notes thereof has been reduced to zero; (3)
to the holders of the Class A-3 Notes, until the Outstanding Amount of such
Class of Notes thereof has been reduced to zero; (4) to the holders of the Class
A-4 Notes, until the Outstanding Amount of such Class of Notes thereof has been
reduced to zero; (5) to the holders of the Class A-5 Notes until the Outstanding
Amount of such Class of Notes thereof has been reduced to zero; (6) to the
holders of the Class A-6 Notes, until the Outstanding Amount of such Class of
Notes thereof has been reduced to zero; (7) to the holders of the Class A-7
Notes until the Outstanding Amount of such Class of Notes thereof has been
reduced to zero; and (8) to the holders of the Class A-8 Notes, until the
Outstanding Amount of such Class of Notes thereof has been reduced to zero;]
provided, however, that in no event shall a principal payment pursuant to this
Section 3(c) on any Class on a Payment Date be greater than the amount necessary
to reduce the Outstanding Amount of such Class of Notes below the amount
specified in the Expected Amortization Schedule which is attached as Schedule A
hereto for such Class and Payment Date.
(d) Periodic Interest. Periodic Interest will be payable on
each Class of the Series [ ] Notes on each Payment Date in an amount equal to
[one-half] of the product of (i) the applicable Note Interest Rate and (ii) the
Outstanding Amount of the related Class of Notes as of the close of business on
the preceding Payment Date after giving effect to all payments of principal made
to the holders of the related Class of Series [ ] Notes on such preceding
Payment Date; provided, however, that with respect to the initial Payment Date,
or, if no payment has yet been made, interest on the outstanding principal
balance will accrue from and including the Series Issuance Date to, but
excluding, the following Payment Date.
(e) Required Overcollateralization Level. The Required
Overcollateralization Level for any Payment Date shall be as set forth in
Schedule B hereto.
[(f) No Premium. No premium will be payable in connection
with any optional redemption of the Series [ ] Notes.]
[(g) The Series [ ] Notes shall not be Book-Entry Notes and
the applicable provisions of Section 2.11 of the Indenture shall not apply to
such Notes.]
SECTION 4. Minimum Denominations. The Series [ ] Notes
shall be issuable in the Minimum Denomination and integral multiples thereof.
SECTION 5. Certain Defined Terms. Article I of the Indenture
provides that the meanings of certain defined terms used in the Indenture shall,
when applied to the Notes of a particular Series, be as defined in Appendix A to
the Indenture. Additionally, Article II of the Indenture provides that with
respect to a particular Series of Notes, certain terms will have the meanings
specified in the related Certificate. With respect to the Series [ ] Notes, the
following definitions shall apply:
"Minimum Denomination" shall mean [$1,000].
"Note Interest Rate" has the meaning set forth in Section 2 of this Certificate.
"Payment Date" has the meaning set forth in Section 3(b) of this Certificate.
'Periodic Interest" has the meaning set forth in Section 3(d) of this
Certificate.
"Series Issuance Date" has the meaning set forth in Section 3(a) of this
Certificate.
SECTION 6. Delivery and Payment for the Series [ ] Notes; Form
of the Series [ ] Notes. The Indenture Trustee shall deliver the Series [ ]
Notes to the Note Issuer when authenticated in accordance with Section 2.03 of
the Indenture. The Series [ ] Notes of each Class shall be in the form of
Exhibits [A-1 through A-_] hereto.
SECTION 7. Ratification of Agreement. As supplemented by this
Certificate, the Indenture is in all respects ratified and confirmed and the
Indenture, as so supplemented by this Certificate, shall be read, taken, and
construed as one and the same instrument.
SECTION 8. Counterparts. This Certificate may be executed
in any number of counterparts, each of which so executed shall be deemed to
be an original, but all of such counterparts shall together constitute
but one and the same instrument.
SECTION 9. Governing Law. This Certificate shall be construed
in accordance with the laws of the State of New York, without reference to its
conflict of law provisions, and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such laws; provided
that the creation, attachment and perfection of any Liens created under the
Indenture in Transition Property, and all rights and remedies of the Indenture
Trustee and the Holders with respect to such Transition Property, shall be
governed by the laws of the State of Texas.
SECTION 10. LLC Obligation. No recourse may be taken directly
or indirectly, with respect to the obligations of the Note Issuer or the
Indenture Trustee on the Notes or under this Certificate or any certificate or
other writing delivered in connection herewith or therewith, against (i) the
Indenture Trustee or the Managers in their respective individual capacities,
(ii) any owner of a beneficial interest in the Note Issuer (including CPL) or
(iii) any shareholder, partner, owner, beneficiary, agent, officer, director,
employee or agent of the Indenture Trustee, the Managers or any owner of a
beneficial interest in the Note Issuer (including CPL) in its individual
capacity, or of any successor or assign of any of them in their respective
individual or corporate capacities, except as any such Person may have expressly
agreed (it being understood that none of the Indenture Trustee, the Managers or
CPL has any such obligations in their respective individual or corporate
capacities).
IN WITNESS WHEREOF, the Note Issuer has caused this
Certificate to be duly executed by a Responsible Officer thereunto duly
authorized as of the first day of the month and year first above written.
CPL TRANSITION FUNDING LLC, as
Note Issuer,
By: _________________________________
Name:
Title: Manager
RECEIVED, this ____ day of ___________.
__________________________,
as Indenture Trustee
By: _________________________________
Name:
Title:
SCHEDULE A
Expected Amortization Schedule
Outstanding Principal Balance
Date Class Class Class Class Class
---- ----- ----- ----- ----- -----
Series Issuance $ $ $ $ $
Date
,20
,20
,20
,20
[Etc.]
SCHEDULE B
Required Overcollateralization Level Schedule
Required
Payment Date Overcollateralization Level
,20 $
,20 $
,20 $
[Etc.] $
EXHIBIT C
SERIES SUPPLEMENT dated as of ____, 2000 ____ (this
"Supplement"), by and between CPL TRANSITION FUNDING
LLC, a limited liability company created under the
laws of the State of Delaware (the "Note Issuer"),
and ____________________, [a ________ banking
corporation] (the "Indenture Trustee"), as Indenture
Trustee under the Indenture dated as of [ ], 2000,
between the Note Issuer and the Indenture Trustee
(the "Indenture").
PRELIMINARY STATEMENT
Section 9.01 of the Indenture provides, among other things,
that the Note Issuer and the Indenture Trustee may at any time and from time to
time enter into one or more indentures supplemental to the Indenture for the
purposes of authorizing the issuance by the Note Issuer of a Series of Notes and
specifying the terms thereof. The Note Issuer has duly authorized the creation
of a Series of Notes with an initial aggregate principal amount of $ [ ] to be
known as CPL Transition Funding LLC Notes, Series [ ] (the "Series [ ] Notes"),
and the Note Issuer and the Indenture Trustee are executing and delivering this
Supplement in order to provide for the Series [ ] Notes.
All terms used in this Supplement that are defined in the
Indenture, either directly or by reference therein, have the meanings assigned
to them therein, except to the extent such terms are defined or modified in this
Supplement or the context clearly requires otherwise. In the event that any term
or provision contained herein shall conflict with or be inconsistent with any
term or provision contained in the Indenture, the terms and provisions of this
Supplement shall govern.
SECTION 1. Designation. The Series [ ] Notes shall be
designated generally as the Transition Notes, Series [ ] and further denominated
as Classes [ ] through [ ].
SECTION 2. Initial Principal Amount; Note Interest Rate;
Scheduled Payment Date; Final Maturity Date. The Notes of each Class of the
Series [ ] shall have the initial principal amount, bear interest at the rates
per annum and shall have Scheduled Payment Dates and Final Maturity Dates set
forth below:
Initial Note Scheduled Final
Principal Interest Payment Maturity
Class Amount Rate Date Date
The Note Interest Rate shall be computed on the basis of a 360-day year of
twelve 30-day months. [If the Notes of all or any Classes are to be Floating
Rate Notes, describe here the index or indexes to be used to determine the
applicable variable rate.]
SECTION 3. Authentication Date; Payment Dates; Expected
Amortization Schedule for Principal; Periodic Interest; Required
Overcollateralization Level; No Premium; Other Terms. (a) Authentication Date.
The Series [ ] Notes that are authenticated and delivered by the Indenture
Trustee to or upon the order of the Note Issuer on [ ] (the "Series Issuance
Date") shall have as their date of authentication [ ].
(b) Payment Dates. The Payment Dates for the Series [ ]Notes
are __________, __________ and __________ of each year or, if any such date is
not a Business Day, the next succeeding Business Day, commencing on [ ] and
continuing until the earlier of repayment of the Series [ ], Class [ ] Notes in
full and the Final Maturity Date for the Series [ ], Class [ ] Notes.
(c) Expected Amortization Schedule for Principal. Unless an
Event of Default shall have occurred and be continuing on each Payment Date, the
Indenture Trustee shall distribute to the Holders of record as of the related
Record Date amounts payable pursuant to Section 8.02(d)[(ix)] of the Indenture
as principal, in the following order and priority: [(1) to the holders of the
Class A-1 Notes, until the Outstanding Amount of such Class of Notes thereof has
been reduced to zero; (2) to the holders of the Class A-2 Notes, until the
Outstanding Amount of such Class of Notes thereof has been reduced to zero; (3)
to the holders of the Class A-3 Notes, until the Outstanding Amount of such
Class of Notes thereof has been reduced to zero; (4) to the holders of the Class
A-4 Notes, until the Outstanding Amount of such Class of Notes thereof has been
reduced to zero; (5) to the holders of the Class A-5 Notes, until the
Outstanding Amount of such Class of Notes thereof has been reduced to zero; (6)
to the holders of the Class A-6 Notes, until the Outstanding Amount of such
Class of Notes thereof has been reduced to zero; (7) to the holders of the Class
A-7 Notes, until the Outstanding Amount of such Class of Notes thereof has been
reduced to zero; and (8) to the holders of the Class A-8 Notes, until the
Outstanding Amount of such Class of Notes thereof has been reduced to zero;]
provided, however, that in no event shall a principal payment pursuant to this
Section 3(c) on any Class on a Payment Date be greater than the amount necessary
to reduce the Outstanding Amount of such Class of Notes below the amount
specified in the Expected Amortization Schedule which is attached as Schedule A
hereto for such Class and Payment Date.
(d) Periodic Interest. Periodic Interest will be payable on
each Class of the Series [ ] Notes on each Payment Date in an amount equal to
[one-half] of the product of (i) the applicable Note Interest Rate and (ii) the
Outstanding Amount of the related Class of Notes as of the close of business on
the preceding Payment Date after giving effect to all payments of principal made
to the Holders of the related Class of Series [ ] Notes on such preceding
Payment Date; provided, however, that with respect to the Initial Payment Date,
or, if no payment has yet been made, interest on the outstanding principal
balance will accrue from and including the Series Issuance Date to, but
excluding, the following Payment Date.
(e) Required Overcollateralization Level. The Required
Overcollateralization Level for any Payment Date shall be as set forth in
Schedule B hereto.
[(f) No Premium. No premium will be payable in connection
with any optional redemption of the Series [ ] Notes.]
[(g) The Series [ ] Notes shall not be Book-Entry Notes and
the applicable provisions of Section 2.11 of the Indenture shall not apply to
such Notes.]
SECTION 4. Minimum Denominations. The Series [ ] Notes
shall be issuable in the Minimum Denomination and integral multiples thereof.
SECTION 5. Certain Defined Terms. Article I of the Indenture
provides that the meanings of certain defined terms used in the Indenture shall,
when applied to the Notes of a particular Series, be as defined in Appendix A to
the Indenture. Additionally, Article II of the Indenture provides that with
respect to a particular Series of Notes, certain terms will have the meanings
specified in the related Supplement. With respect to the Series [ ] Notes, the
following definitions shall apply:
"Minimum Denomination" shall mean [$1,000].
"Note Interest Rate" has the meaning set forth in Section 2 of this Supplement.
"Payment Date" has the meaning set forth in Section 3(b) of this Supplement.
"Periodic Interest" has the meaning set forth in Section 3(d) of this
Supplement.
"Series Issuance Date" has the meaning set forth in Section 3(a) of this
Supplement.
SECTION 6. Delivery and Payment for the Series [ ] Notes; Form
of the Series [ ] Notes. The Indenture Trustee shall deliver the Series [ ]
Notes to the Note Issuer when authenticated in accordance with Section 2.03 of
the Indenture. The Series [ ] Notes of each Class shall be in the form of
Exhibits [A-1 through A-_] hereto.
SECTION 7. Ratification of Agreement. As supplemented by this
Supplement, the Indenture is in all respects ratified and confirmed and the
Indenture, as so supplemented by this Supplement, shall be read, taken, and
construed as one and the same instrument.
SECTION 8. Counterparts. This Supplement may be executed
in any number of counterparts, each of which so executed shall be deemed to
be an original, but all of such counterparts shall together constitute
but one and the same instrument.
SECTION 9. Governing Law. This Supplement shall be construed
in accordance with the laws of the State of New York, without reference to its
conflict of law provisions, and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such laws; provided
that the creation, attachment and perfection of any Liens created under the
Indenture in Transition Property, and all rights and remedies of the Indenture
Trustee and the Holders with respect to such Transition Property, shall be
governed by the laws of the State of Texas.
SECTION 10. LLC Obligation. No recourse may be taken directly
or indirectly, with respect to the obligations of the Note Issuer or the
Indenture Trustee on the Notes or under this Supplement or any certificate or
other writing delivered in connection herewith or therewith, against (i) the
Indenture Trustee or the Managers in their respective individual capacities,
(ii) any owner of a beneficial interest in the Note Issuer (including CPL) or
(iii) any shareholder, partner, owner, beneficiary, agent, officer, director,
employee or agent of the Indenture Trustee, the Managers or any owner of a
beneficial interest in the Note Issuer (including CPL) in its individual
capacity, or of any successor or assign of any of them in their respective
individual or corporate capacities, except as any such Person may have expressly
agreed (it being understood that none of the Indenture Trustee, the Managers and
CPL have any such obligations in their respective individual or corporate
capacities).
IN WITNESS WHEREOF, the Note Issuer and the Indenture Trustee
have caused this Supplement to be duly executed by their respective officers
thereunto duly authorized as of the first day of the month and year first above
written.
CPL TRANSITION FUNDING LLC,
as Note Issuer,
By: _________________________________
Name:
Title: Manager
_____________________________________,
as Indenture Trustee
By: ________________________________
Name:
Title:
SCHEDULE A
Expected Amortization Schedule
Outstanding Principal Balance
Date Class Class Class Class Class
---- ----- ----- ----- ----- -----
Series Issuance $ $ $ $ $
Date
,20
,20
,20
,20
[Etc.]
SCHEDULE B
Required Overcollateralization Level Schedule
Required
Payment Date Overcollateralization Level
,20 $
,20 $
,20 $
[Etc.] $
--------
NOTE: The form of the reverse of a Note is substantially as follows,
unless otherwise specified in the related Trustee's Issuance Certificate
or Series Supplement.
NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Class [ - ] Note in
every particular, without alteration, enlargement or any change whatsoever.
NOTE: Signature(s) must be guaranteed by an institution which is a member of
one of the following recognized Signature Guaranty Programs: (i) The Securities
Transfer Agent Medallion Program (STAMP), (ii) The New York Stock Exchange
Medallion Program (MSP), (iii) The Stock Exchange Medallion Program (SEMP) or
(iv) such other guarantee program acceptable to the Indenture Trustee.
APPENDIX A
DEFINITIONS
This is Appendix A to the Indenture.
A. Defined Terms. As used in the Sale Agreement, the
Indenture, the LLC Agreement, the Servicing Agreement, Trustee's Issuance
Certificate, any Series Supplement or any other Basic Document as hereinafter
defined, as the case may be (unless the context requires a different meaning),
the following terms have the following meanings:
"Act" is defined in Section 11.03 of the Indenture.
"Actual TC Collections" means, with respect to Transition
Charges billed in any Reconciliation Period, the amount of such Transition
Charges less Net TC Write-Offs calculated for such Reconciliation Period.
"Addition Notice" means, with respect to the transfer of
Subsequent Transition Property to the Note Issuer pursuant to Section 2.02 of
the Sale Agreement, notice, which shall be given by the Seller to the Note
Issuer and the Rating Agencies not later than 10 days prior to the related
Subsequent Transfer Date, specifying the Subsequent Transfer Date for such
Subsequent Transition Property.
"Affiliate" means, with respect to any specified Person, any
other Person controlling or controlled by or under common control with such
specified Person. For the purposes of this definition, "control" when used with
respect to any specified Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agency Office" means the office of the Note Issuer maintained
pursuant to Section 3.02 of the Indenture.
"Aggregate Remittance Amount" means, with respect to any
Monthly Remittance Date, the total TC Payments estimated to have been received
by the Servicer from or on behalf of Customers during the prior Collection
Period in respect of all previously Billed TCs.
"Amendatory Tariff" means a revision to service riders or any
other notice filing filed with the PUCT in respect of a Tariff pursuant to a
True-Up Adjustment.
"Annual Accountant's Report" is defined in Section 3.04
of the Servicing Agreement.
"Annual True-Up Adjustment" means each adjustment to the
Transition Charges made pursuant to the terms of the related Tariff in
accordance with Section 4.01(b)(i) of the Servicing Agreement.
"Annual True-Up Adjustment Date" means March 1 of each year,
commencing on March 1, 2001.
"Applicable REP" means, with respect to each Customer taking
service from an REP, the REP, if any, providing consolidated billing to that
Customer which includes billing of Transition Charges.
"Application" means the Application of CPL for a Financing
Order to securitize regulatory assets and other qualified costs filed by CPL
with the PUCT dated October __, 1999 pursuant to the Securitization Law, or any
subsequent similar Application of CPL.
"Bankruptcy Code" means Title 11 of the United States Code
(11 U.S.C. ss. 101 et seq.), as amended from time to time.
"Basic Documents" means the Sale Agreement, the Indenture, the
LLC Agreement, the Servicing Agreement, each Swap Agreement, each Series
Supplement, each Trustee's Issuance Certificate, each Letter of Representations,
each Underwriting Agreement and all other documents and certificates delivered
in connection therewith.
"Benefit Plan" means, with respect to any Person, any defined
benefit plan (as defined in Section 3(35) of ERISA) that (a) is or was at any
time during the past six years maintained by such Person or any ERISA Affiliate
of such person, or to which contributions by any such Person are or were at any
time during the past six years required to be made or under which such Person
has or could have any liability or (b) is subject to the provisions of Title IV
of ERISA.
"Billing Period" means the period created by dividing the
calendar year into twelve consecutive periods of approximately [twenty-one (21)]
Servicer Business Days.
"Bills" means each of the regular monthly bills, summary
bills, opening bills and closing bills issued to Customers by CPL or REPS or to
REPs by CPL on its own behalf and in its capacity as Servicer.
"Book-Entry Form" means, with respect to any Note or Series of
Notes, that such Note or Series is not certificated and the ownership and
transfers thereof shall be made through the book entries by a Clearing Agency as
described in Section 2.11 of the Indenture and the applicable Trustee's Issuance
Certificate or Series Supplement, if any, pursuant to which such Note or Series
was issued.
"Book-Entry Notes" means any Notes issued in Book-Entry Form;
provided, however, that after the occurrence of a condition whereupon book-entry
registration and transfer are no longer permitted and Definitive Notes are to be
issued to the Holder of such Notes, such Notes shall no longer be "Book-Entry
Notes".
"Business Day" means any day other than a Saturday, a Sunday
or a day on which banking institutions in Dallas, Texas or New York, New York
are, or DTC is, authorized or required by law, regulation or executive order to
remain closed.
"Calculation Period" means initially, the period commencing on
the Closing Date and ending on February 28, 2001 and, thereafter, each period of
twelve Collection Periods ending immediately preceding the next Annual True-Up
Adjustment Date; provided, that, if an Interim True-Up Adjustment is required,
then the Calculation Period for such Interim True-Up Adjustment shall mean the
period of six Collection Periods commencing with the period during which such
Interim True-Up Adjustment is implemented and ending on the date immediately
preceding the next Annual True-Up Adjustment Date.
"Capital Contribution" means the amount of cash contributed to
the Note Issuer by CPL as specified in the LLC Agreement.
"Capital Subaccount" is defined in Section 8.02(a) of the
Indenture.
"Certificate of Compliance" means the certificate referred to
in Section 3.03 of the Servicing Agreement and substantially in the form of
Exhibit B attached to the Servicing Agreement.
"Certificate of Formation" means the Certificate of Formation
filed with the Secretary of State of the State of Delaware pursuant to which the
Note Issuer was formed, substantially in the form of Exhibit B to the LLC
Agreement.
"Claim" means a "claim" as defined in Section 101(5) of the
Bankruptcy Code.
"Class" means, with respect to any Series of Notes, any one of
the classes of Notes of that Series.
"Clearing Agency" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Exchange Act.
"Clearing Agency Participant" means a securities broker,
dealer, bank, trust company, clearing corporation or other financial institution
or other Person for whom from time to time a Clearing Agency effects book entry
transfers and pledges of securities deposited with the Clearing Agency.
"Closing Date" means __________, 2000.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time, and Treasury Regulations promulgated thereunder.
"Collection Account" means the account established and
maintained by the Indenture Trustee in accordance with Section 8.02(a) of the
Indenture and any subaccounts contained therein.
"Collection Period" means any period commencing on the first
Servicer Business Day of any calendar month and ending on the last Servicer
Business Day of such month.
"Consolidated REP Billing" means the billing option available
to Customers served by an REP pursuant to which such REP will be responsible for
billing and collecting all charges to such Customers, including the Transition
Charges, in accordance with applicable PUCT Regulations.
"Corporate Trust Office" means with respect to the Indenture
Trustee, the principal office at which at any particular time the corporate
trust business of the Indenture Trustee shall be administered, which office at
the Closing Date is located at ______________
____________________________________, Attention: ______________________________
or at such other address as the Indenture Trustee may designate from time to
time by notice to the Holders and the Note Issuer, or the principal corporate
trust office of any successor Indenture Trustee (the address of which the
successor Indenture Trustee will notify the Holders and the Note Issuer).
"Covenant Defeasance Option" is defined in Section 4.01(b)
of the Indenture.
"CPL" means Central Power and Light Company, a Texas
corporation, and any successors in interest to its electric transmission and
distribution business or, if transmission and distribution are split, to the
successor of CPL providing wires service directly to Customers.
"Customers" means all existing and future retail customers of
CPL and all other existing and future retail customers who are obligated to pay
Transition Charges pursuant to any Financing Order or any Tariff.
"Daily Remittance" is defined in Section 6.11(a) of the
Servicing Agreement.
"Default" means any occurrence that is, or with notice or the
lapse of time or both would become, an Event of Default as defined in Section
5.01 of the Indenture.
"Definitive Notes" means Notes issued in definitive form in
accordance with Section 2.13 of the Indenture.
"DTC" means The Depository Trust Company or any successor
thereto.
"Xxxx & Xxxxxx" means Xxxx & Xxxxxx Credit Rating Co. or any
successor thereto.
"Eligible Deposit Account" means either (a) a segregated trust
account with an Eligible Institution or (b) a segregated trust account with the
corporate trust department of a depository institution organized under the laws
of the United States of America or any state (or any domestic branch of a
foreign bank), having corporate trust powers and acting as trustee for funds
deposited in such account, so long as any of the securities of such depository
institution shall have a credit rating from each Rating Agency in one of its
generic rating categories which signifies investment grade.
"Eligible Institution" means (a) the corporate trust
department of the Indenture Trustee; provided that an account with the Indenture
Trustee will only be an Eligible Deposit Account if it is a segregated trust
account or (b) a depository institution organized under the laws of the United
States of America or any State (or any domestic branch of a foreign bank), which
(i) has either (A) a long-term unsecured debt rating of AAA by Standard & Poor's
and Aaa by Xxxxx'x, and if rated by Fitch IBCA, AAA by Fitch IBCA and if rated
by Duff & Xxxxxx, AAA by Duff & Xxxxxx or (B) a certificate of deposit rating of
A-1+ by Standard & Poor's and P-1 by Moody's, and if rated by Fitch IBCA, F1+ by
Fitch IBCA and if rated by Xxxx & Xxxxxx, D-1+ by Xxxx & Xxxxxx or any other
long-term, short-term or certificate of deposit rating acceptable to the Rating
Agencies and (ii) whose deposits are insured by the FDIC. If so qualified under
clause (b) above, the Indenture Trustee may be considered an Eligible
Institution for the purposes of clause (a) of this definition.
"Eligible Investments" mean instruments or investment
property which evidence:1
(a) direct obligations of, and obligations fully and
unconditionally guaranteed as to timely payment by, the United
States of America;
(b) demand deposits, time deposits, certificates of
deposit or bankers' acceptances of depository institutions
meeting the requirements of clause (b) of the definition of
Eligible Institution;
(c) commercial paper (other than commercial paper of
CPL or any of its Affiliates) having, at the time of the
investment or contractual commitment to invest therein, a
rating from each of the Rating Agencies from which a rating is
available in the highest investment category granted thereby;
(d) investments in money market funds having a rating
from each of the Rating Agencies from which a rating is
available in the highest investment category granted thereby
(including funds for which the Indenture Trustee or any of its
Affiliates is investment manager or advisor);
(e) repurchase obligations with respect to any
security that is a direct obligation of, or fully guaranteed
by, the United States of America or any agency or
instrumentality thereof the obligations of which are backed by
the full faith and credit of the United States of America, in
either case entered into with depository institutions or trust
companies meeting the requirements of clause (b) of the
definition of Eligible Institutions; and
(f) any other investment permitted by each of the
Rating Agencies;
in each case maturing not later than the Business Day immediately preceding the
next Payment Date. Notwithstanding the foregoing, (x) Eligible Investments in
the Collection Account may mature not later than the Business Day immediately
preceding the next Payment Date, and (y) subject to the conditions and
limitations set forth in Section 8.03 of the Indenture, funds in the Collection
Account may be invested in securities that will not mature prior to each Payment
Date; provided, however, that any securities or investments which mature in 32
days or more shall not be an "Eligible Investment" unless the issuer thereof has
a long-term unsecured debt rating of at least A1 from Moody's and A+ from S&P.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
"ERISA Affiliate" means with respect to any Person at any
time, each trade or business (whether or not incorporated) that would, at that
time, be treated together with such Person as a single employer under Section
401 of ERISA or Section 414(b), (c), (m) or (o) of the Code.
"Estimated TC Collections" means the sum of the payments in
respect of Transition Charges which are deemed to have been received by the
Servicer, directly or indirectly (including through an REP), from or on behalf
of Customers, calculated in accordance with Annex I of the Servicing Agreement.
"Event of Default" is defined in Section 5.01 of the
Indenture.
"Excess Remittance" means the amount, if any, calculated for a
particular Reconciliation Period, by which all Estimated TC Collections remitted
to the Collection Account during such Reconciliation Period exceed Actual TC
Collections received by the Servicer during such Reconciliation Period.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Expected Amortization Schedule" means Schedule 4.01(a)
to the Servicing Agreement, as the same may be amended from timee to time.
"Expected Final Payment Date" means, with respect to any
Series or Class of Notes, the Expected Final Payment Date thereof.
"FDIC" means the Federal Deposit Insurance Corporation or
any successor thereto.
"FERC" means the Federal Energy Regulatory Commission or any
successor thereto.
"Final" means, with respect to any Financing Order, that such
Financing Order has become final and that the time for filing an appeal
therefrom has expired.
"Final Maturity Date" means, with respect to any Series or
Class of Notes, the Final Maturity Date therefor, as specified in the related
Trustee's Issuance Certificate or Series Supplement, if any.
"Financing Order" means, as the context may require, (i) the
Initial Financing Order and/or (ii) any Subsequent Financing Order.
"Fitch IBCA" means Fitch IBCA, Inc. or any successor thereto.
"Floating Rate Notes" means any Series or Class of Notes that
accrues interest at a variable rate determined as described in the related
Trustee's Issuance Certificate or Series Supplement, if any.
"Freeze Period" has the meaning assigned to such term in
Section 31.002 of the Utilities Code.
"General Subaccount" is defined in Section 8.02(a) of the
Indenture.
"Global Note" means a Note evidencing all or any part of a
Series of Notes to be issued to the Holders thereof in Book-Entry Form, which
Global Note shall be issued to the Clearing Agency, or its nominee, for such
Series, in accordance with Section 2.11 of the Indenture and the applicable
Trustee's Issuance Certificate or Series Supplement, if any, pursuant to which
the Note is issued.
"Governmental Authority" means any nation or government, any
federal, state, local or other political subdivision thereof and any court,
administrative agency or other instrumentality or entity exercising executive,
legislative, judicial, regulatory or administrative function of government.
"Grant" means mortgage, pledge, bargain, sell, warrant,
alienate, remise, release, convey, grant, transfer, create, and xxxxx x xxxx
upon and a security interest in and right of set-off against, deposit, set over
and confirm pursuant to the Indenture. A Grant of the Note Collateral or of any
other agreement or instrument included therein shall include all rights, powers
and options (but none of the obligations) of the Granting party thereunder,
including the immediate and continuing right to claim for, collect, receive and
give receipt for payments in respect of the Note Collateral and all other moneys
payable thereunder, to give and receive notices and other communications, to
make waivers or other agreements, to exercise all rights and options, to bring
Proceedings in the name of the Granting party or otherwise and generally to do
and receive anything that the Granting party is or may be entitled to do or
receive thereunder or with respect thereto.
"Holder" or "Noteholder" means the Person in whose name a Note
is registered on the Note Register.
"Indenture" means the Indenture dated as of __________, ____
between the Note Issuer and the Indenture Trustee as originally executed and, as
from time to time supplemented or amended by one or more Trustee's Issuance
Certificates or indentures supplemental thereto entered into pursuant to the
applicable provisions of the Indenture, as so supplemented or amended, or both,
and shall include the forms and terms of the Notes established thereunder.
"Indenture Trustee" means ____________________, a ____________
banking corporation, as Indenture Trustee under the Indenture, or any successor
Indenture Trustee under the Indenture.
"Independent" means, when used with respect to any specified
Person, that the Person (a) is in fact independent of the Note Issuer, any other
obligor on the Notes, the Seller, the Servicer and any Affiliate of any of the
foregoing Persons, (b) does not have any direct financial interest or any
material indirect financial interest in the Note Issuer, any such other obligor,
the Seller, the Servicer or any Affiliate of any of the foregoing Persons and
(c) is not connected with the Note Issuer, any such other obligor, the Seller,
the Servicer or any Affiliate of any of the foregoing Persons as an officer,
employee, promoter, underwriter, trustee, partner, director or person performing
similar functions.
"Independent Certificate" means a certificate or opinion to be
delivered to the Indenture Trustee under the circumstances described in, and
otherwise complying with, the applicable requirements of Section 11.01 of the
Indenture, made by an Independent appraiser or other expert appointed by an
Issuer Order and consented to by the Indenture Trustee, and such opinion or
certificate shall state that the signer has read the definition of "Independent"
in the Indenture and that the signer is Independent within the meaning thereof.
"Independent Manager" means each Person acting as an
Independent Manager under the LLC Agreement.
"Indirect Participant" means a securities broker, dealer,
bank, trust company or other Person that clears through or maintains a custodial
relationship with a Clearing Agency Participant, either directly or indirectly.
"Initial Financing Order" means the Final Financing Order
dated [__________, 2000] issued by the PUCT pursuant to the Securitization
Law, Docket No. [__-____].
"Initial Tariff" means the initial Tariff filed with the PUCT
to evidence the Transition Charges pursuant to the Initial Financing Order.
"Initial Transition Property" means all Transition Property
created in favor of the Note Issuer pursuant to the Initial Financing Order,
including [insert text from Initial Financing Order].
"Insolvency Event" means, with respect to a specified Person,
(a) the filing of a decree or order for relief by a court having jurisdiction in
the premises in respect of such Person or any substantial part of its property
in an involuntary case under any applicable federal or state bankruptcy,
insolvency or other similar law now or hereafter in effect, or appointing a
receiver, liquidator, assignee, custodian, trustee, sequestrator or similar
official for such Person or for any substantial part of its property, or
ordering the winding-up or liquidation of such Person's affairs, and such decree
or order shall remain unstayed and in effect for a period of 60 consecutive
days; or (b) the commencement by such Person of a voluntary case under any
applicable federal or state bankruptcy, insolvency or other similar law now or
hereafter in effect, or the consent by such Person to the entry of an order for
relief in an involuntary case under any such law, or the consent by such Person
to the appointment of or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official for such Person or for any
substantial part of its property, or the making by such Person of any general
assignment for the benefit of creditors, or the failure by such Person generally
to pay its debts as such debts become due, or the taking of action by such
Person in furtherance of any of the foregoing.
"Insolvency Law" means any applicable federal or state
bankruptcy, insolvency or other similar law now or hereafter in effect.
"Interim True-Up Adjustment" means each adjustment to the
Transition Charges made pursuant to the terms of the related Tariff and in
accordance with Section 4.01(b)(ii) of the Servicing Agreement.
"Interim True-Up Adjustment Date" means [_________] of each
year, commencing on [____________], [____].
"Investment Company Act" means the Investment Company Act of
1940, as amended.
"Investment Earnings" means investment earnings on funds
deposited in the Collection Account net of losses and investment expenses.
"Issuance Advice Letter" means any Issuance Advice Letter
filed with the PUCT pursuant to the Securitization Law with respect to any
Transition Charges.
"Issuer Order" and "Issuer Request" mean a written order or
request signed in the name of the Note Issuer by any one of its Responsible
Officers and delivered to the Indenture Trustee or Paying Agent, as applicable.
"Legal Defeasance Option" is defined in Section 4.01(b) of
the Indenture.
"Letter of Representations" means any applicable agreement
among the Note Issuer, the Indenture Trustee and the applicable Clearing Agency,
with respect to such Clearing Agency's rights and obligations (in its capacity
as a Clearing Agency) with respect to any Book-Entry Notes, as the same may be
amended, supplemented, restated or otherwise modified from time to time.
"Lien" means a security interest, lien, charge, pledge, equity
or encumbrance of any kind other than tax liens, mechanics' liens and any liens
that attach by operation of law.
"LLC Act" means the Delaware Limited Liability Company Act,
as amended.
"LLC Agreement" means the Amended and Restated Limited
Liability Company Agreement of CPL Transition Funding LLC dated as of ________
__, 2000, as the same may be amended, supplemented or otherwise modified from
time to time.
"Losses" is defined in Section 5.04 of the Servicing
Agreement.
"Manager" means each manager of the Note Issuer under the
LLC Agreement.
"Minimum Denomination" means, with respect to any Note, the
minimum denomination therefor specified in the applicable Trustee's Issuance
Certificate or Series Supplement, if any, which minimum denomination shall be
not less than $1,000 and, except as otherwise provided in such Trustee's
Issuance Certificate or Series Supplement, if any, integral multiples thereof.
"Monthly Remittance Date" means the [tenth] day of each
calendar month or, if such day is not a Business Day, the next succeeding
Business Day.
"Monthly Servicer's Certificate" means a certificate,
substantially in the form of Exhibit A to the Servicing Agreement, completed and
executed by a Responsible Officer of the Servicer pursuant to Section 3.01(b)(i)
of the Servicing Agreement.
"Moody's" means Xxxxx'x Investors Service Inc. or any
successor thereto.
"Net TC Write-Offs" means, for any Reconciliation Period, an
amount equal to the product of (i) the Net Write-Off Percentage for such period
times (ii) total Billed TCs attributable to such Reconciliation Period.
"Net Write-Off Percentage" for any Reconciliation Period means
the Servicer's actual system wide charge-off percentage, as adjusted for
recoveries on previously written-off bills.
"Note Collateral" has the meaning specified in the Granting
Clause of the Indenture.
"Note Depository" means the depositary from time to time
selected by the Indenture Trustee on behalf of the Note Issuer in whose name the
Notes are registered prior to the issuance of Definitive Notes. The initial Note
Depository shall be Cede & Co., the nominee of the initial Clearing Agency.
"Note Interest Rate" means, with respect to any Series or
Class of Notes, the rate at which interest accrues on the Notes of such Series
or Class, as specified in the related Trustee's Issuance Certificate or Series
Supplement, if any.
"Note Issuer" means CPL Transition Funding LLC, a Delaware
limited liability company, named as such in the Indenture until a successor
replaces it and, thereafter, means the successor and, for purposes of any
provision contained herein and required by the TIA, each other obligor on the
Notes.
"Note Owner" means with respect to a Book-Entry Note, the
Person who is the beneficial owner of such Book-Entry Note, as reflected on the
books of the Clearing Agency, or on the books of a Person maintaining an account
with such Clearing Agency (directly as a Clearing Agency Participant or as an
Indirect Participant, in each case in accordance with the rules of such Clearing
Agency).
"Note Register" means the register maintained pursuant to
Section 2.05 of the Indenture, providing for the registration of the Notes and
transfers and exchanges thereof.
"Note Registrar" means the registrar at any time of the
Note Register, appointed pursuant to Section 2.05 of the Indenture.
"Notes" means one or more Series of Transition Notes
authorized by the Initial Financing Order and any Subsequent Financing Order and
issued under the Indenture.
"Notice of Default" is defined in Section 5.01 of the
Indenture.
"Officer's Certificate" means a certificate signed by a
Responsible Officer of the Note Issuer under the circumstances described in, and
otherwise complying with, the applicable requirements of Section 11.01 of the
Indenture, and delivered to the Indenture Trustee. Unless otherwise specified,
any reference in the Indenture to an Officer's Certificate shall be to an
Officer's Certificate of any Responsible Officer of the party delivering such
certificate.
"Operating Expenses" means all fees, costs and expenses of the
Note Issuer, including all amounts owed by the Note Issuer to the Indenture
Trustee, any Independent Manager, the Servicing Fee, legal and accounting fees,
costs and expenses of the Note Issuer and CPL and any franchise taxes owed on
investment income in the Collection Account.
"Opinion of Counsel" means one or more written opinions of
counsel who may, except as otherwise expressly provided in the Basic Documents,
be employees of or counsel to the party providing such opinion of counsel, which
counsel shall be reasonably acceptable to the party receiving such opinion of
counsel, and shall be in form and substance reasonably acceptable to such party.
"Optional Redemption Date" means, with respect to any Series
of Notes, the Payment Date specified for the redemption of the Notes of such
Series pursuant to Section 10.01 of the Indenture.
"Optional Redemption Price" is defined in Section 10.01 of
the Indenture.
"Outstanding" means, as of the date of determination, all
Notes theretofore authenticated and delivered under this Indenture except:
(a) Notes theretofore canceled by the Note Registrar or
delivered to the Note Registrar for cancellation;
(b) Notes or portions thereof the payment for which money in
the necessary amount has been theretofore deposited with the Indenture
Trustee or any Paying Agent in trust for the Holders of such Notes
(provided, however, that if such Notes are to be redeemed, notice of
such redemption has been duly given pursuant to this Indenture or
provision therefor, satisfactory to the Indenture Trustee, made); and
(c) Notes in exchange for or in lieu of other Notes which have
been authenticated and delivered pursuant to this Indenture unless
proof satisfactory to the Indenture Trustee is presented that any such
Notes are held by a bona fide purchaser;
provided that in determining whether the Holders of the requisite Outstanding
Amount of the Notes or any Series or Class thereof have given any request,
demand, authorization, direction, notice, consent or waiver hereunder or under
any Basic Document, Notes owned by the Note Issuer, any other obligor upon the
Notes, CPL or any Affiliate of any of the foregoing Persons shall be disregarded
and deemed not to be outstanding, except that, in determining whether the
Indenture Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Notes that the
Indenture Trustee actually knows to be so owned shall be so disregarded. Notes
so owned that have been pledged in good faith may be regarded as outstanding if
the pledgee establishes to the satisfaction of the Indenture Trustee the
pledgee's right so to act with respect to such Notes and that the pledgee is not
the Note Issuer, any other obligor upon the Notes, CPL or any Affiliate of any
of the foregoing Persons.
"Outstanding Amount" means the aggregate principal amount of
all Notes or, if the context requires, all Notes of a Series or Class,
Outstanding at the date of determination.
"Overcollateralization Subaccount" is defined in Section
8.02(a) of the Indenture.
"Paying Agent" means with respect to the Indenture, the
Indenture Trustee or any other Person that meets the eligibility standards for
the Indenture Trustee specified in Section 6.11 of the Indenture and is
authorized by the Note Issuer to direct the Servicer to make the payments to and
distributions from the Collection Account, including payment of principal of or
interest on the Notes on behalf of the Note Issuer.
"Payment Date" means, with respect to any Series or Class of
Notes, the dates specified in the related Trustee's Issuance Certificate or the
Series Supplement, if any, provided that if any such date is not a Business Day,
the Payment Date shall be the Business Day immediately succeeding such date.
"Periodic Billing Requirement" means, for any Calculation
Period, the aggregate amount of Transition Charges calculated by the Servicer as
necessary to be billed during such period in order to collect the Periodic
Payment Requirements on or before the end of the Collection Period immediately
preceding the next Annual True-Up Adjustment Date.
"Periodic Interest" means, with respect to any Payment Date
and any Series of Notes, the periodic interest for such Payment Date and Series
as specified in the related Trustee's Issuance Certificate or Series Supplement,
if any.
"Periodic Payment Requirement" for any Calculation Period
means the total dollar amount of TC Collections reasonably calculated by the
Servicer in accordance with Section 4.01 of the Servicing Agreement as necessary
to be received during such period (after giving effect to the allocation and
distribution of amounts on deposit in the Reserve Subaccount at the time of
calculation and which are available for payments on the Notes and including any
shortfalls in Periodic Payment Requirements for any prior Calculation Period) in
order to ensure that, as of the last Payment Date occurring in such Calculation
Period, (1) all accrued and unpaid interest on the Notes then due shall have
been paid in full, (2) the Outstanding Amount of the Notes is equal to the
Projected Unrecovered Balance, (3) the balance on deposit in the
Overcollateralization Subaccount equals the aggregate Required
Overcollateralization Level, (4) the balance on deposit in the Capital
Subaccount equals the aggregate Required Capital Level and (5) all other fees
and expenses due and owing and required or allowed to be paid under Section 8.02
of the Indenture as of such date shall have been paid in full; provided that,
with respect to any Annual True-Up Adjustment or Interim True-Up Adjustment
occurring after the last Expected Final Payment Date for any Notes, the Periodic
Payment Requirements shall be calculated to ensure that sufficient Transition
Charges will be collected to retire such Notes in full as of the earlier of (x)
the Payment Date preceding the next Annual True-Up Adjustment Date and (y) the
Final Maturity Date for such Notes.
"Periodic Principal" means, with respect to any Payment Date
and any Series of Notes, the excess, if any, of the Outstanding Amount of such
Series of Notes over the outstanding Unrecovered Balance specified for such
Payment Date on the applicable Expected Amortization Schedule.
"Person" means any individual, corporation, limited liability
company, estate, partnership, joint venture, association, joint stock company,
trust (including any beneficiary thereof), unincorporated organization or
government or any agency or political subdivision thereof.
"Predecessor Note" means, with respect to any particular Note,
every previous Note evidencing all or a portion of the same debt as that
evidenced by such particular Note, and, for the purpose of this definition, any
Note authenticated and delivered under Section 2.06 of the Indenture in lieu of
a mutilated, lost, destroyed or stolen Note shall be deemed to evidence the same
debt as the mutilated, lost, destroyed or stolen Note.
"Proceeding" means any suit in equity, action at law or other
judicial or administrative proceeding.
"Projected Unrecovered Balance" means, as of any Payment Date,
the sum of the projected outstanding principal amount of each Series of Notes
for such Payment Date set forth in the Expected Amortization Schedule.
"PUHCA Order" means the order of the SEC dated December 30,
1997 (Release No. 35-26811), as amended by the
supplemental order dated ________, ____.
"PUCT" means the Public Utility Commission of Texas, or any
successor thereto.
"PUCT Regulations" means the regulations, including proposed
or temporary regulations, promulgated under the Utilities Code.
"Qualified Costs" means all qualified costs as defined in
Section 39.302 of the Utilities Code.
"Rating Agency" means Xxxxx'x, Standard & Poor's, Xxxx &
Xxxxxx and Xxxxx IBCA. If no such organization or successor is any longer in
existence, "Rating Agency" shall be a nationally recognized statistical rating
organization or other comparable Person designated by the Note Issuer, notice of
which designation shall be given to the Indenture Trustee and the Servicer.
"Rating Agency Condition" means, with respect to any action,
that each Rating Agency shall have been given ten days prior notice thereof and
that each of the Rating Agencies shall have notified the Servicer, the Note
Issuer and the Indenture Trustee in writing that such action will not result in
a reduction or withdrawal of the then current rating by such Rating Agency of
either any Series or Class of Notes.
"Reconciliation Period" means the twelve-month period
commencing on January 1 of each year and ending on December 31 of each year;
provided, that the initial Reconciliation Period shall commence on the Closing
Date.
"Record Date" means, with respect to a Payment Date or
Redemption Date, in the case of Definitive Notes, the close of business on the
last day of the calendar month preceding the calendar month in which such
Payment Date or Redemption Date occurs, and in the case of Book Entry Notes, one
Business Day prior to the applicable Payment Date or Redemption Date.
"Redemption Date" means, with respect to any Series or Class
of Notes, the date specified by the Note Issuer for the redemption of the Notes
of such Series or Class pursuant to Section 10.01 of the Indenture or in the
related Trustee's Issuance Certificate or the Series Supplement, if any.
"Redemption Payment" means with respect to any Series or Class
of Notes, any payment of principal of and interest on the Notes of such Series
or Class due from the Note Issuer upon the early redemption of such Series or
Class of Notes, other than any such payment due by reason of the occurrence of
an Event of Default with respect to such Series or Class of Notes.
"Redemption Price" means with respect to any Series or Class
of Notes, the unpaid principal amount of the Notes of such Series or Class
redeemed, plus accrued and unpaid interest thereon at the interest rate
applicable to such Series or Class to but excluding the Redemption Date.
"Registered Holder" means the Person in whose name a Note is
registered on the Note Register.
"Registration Statement" means the registration statement,
Form S-3 Registration No. 333-________, filed with the SEC for registration
under the Securities Act relating to the offering and sale of the Notes, and
including all amendments thereto.
"Related Assets" means all of the Note Issuer's right, title
and interest in and to the Sale Agreement, the Servicing Agreement and all
present and future claims, demands, causes and choses in action in respect of
all of the foregoing and all payments on or under and all proceeds of every kind
and nature whatsoever in respect of any or all of the foregoing, including all
proceeds of the conversion, voluntary or involuntary, into cash or other liquid
property, all cash proceeds, accounts, accounts receivable, notes, drafts,
acceptances, chattel paper, checks, deposit accounts, insurance proceeds,
condemnation awards, rights to payment of any and every kind, and other forms of
obligations and receivables, instruments and other property which in any time
constitute all or part of or are included in the proceeds of any of the
foregoing.
"Remittance Requirement" means, with respect to any
Third-Party Collector, the requirement that such Third-Party Collector remit
Transition Charges to the Servicer within [16] days of billing by the Servicer
in accordance with the terms of the applicable Tariffs.
"Remittance Shortfall" means the amount, if any, calculated
for a particular Reconciliation Period, by which Actual TC Collections received
by the Servicer during such Reconciliation Period exceed all Estimated TC
Collections remitted to the Collection Account during such Reconciliation
Period.
"REP" means a retail electric provider as defined in Section
31.002(17) of the Utilities Code.
"REP Credit Requirements" means the credit and collection
policies applicable to REPS under the Tariffs and other PUCT Regulations.
"REP Deposit Requirements" means the deposit requirements
applicable to REPs under the Tariffs and other PUCT Regulations.
"REP Deposit Subaccount" is defined in Section 8.02(a) of the
Indenture .
"REP Service Agreement" means an agreement between an REP and
CPL for the provision of consolidated billing by such REP to customers in
accordance with PUCT Regulations, the terms of any Tariffs and the terms of any
delivery service tariffs filed by CPL under the Utilities Code.
"Required Capital Level" means, with respect to each Series of
Notes, an amount equal to 0.50% of the initial principal amount of such Series,
deposited into the Capital Subaccount by CPL prior to or upon the issuance of
such Series.
"Required Overcollateralization Level" means, as of any
Payment Date with respect to any Series, the amount required to be on deposit in
the Overcollateralization Subaccount as specified in the applicable Trustee's
Issuance Certificate or Series Supplement, if any, but not less than, as of the
Expected Final Payment Date for such Series, 0.50% of the initial Outstanding
Amount thereof.
"Requirement of Law" means any foreign, federal, state or
local laws, statutes, regulations, rules, codes or ordinances enacted, adopted,
issued or promulgated by any Governmental Authority or common law.
"Reserve Subaccount" is defined in Section 8.02(a) of the
Indenture.
"Responsible Officer" means with respect to (a) the Note
Issuer, any Manager or any duly authorized officer; (b) the Indenture Trustee,
any officer within the Corporate Trust Office of such trustee (including the
President, any Vice President, Assistant Vice President, Secretary or Assistant
Treasurer or any other officer or assistant officer of such Person customarily
performing functions similar to those performed by any of the chosen designated
officers and also, with respect to a particular matter, any other officer to
whom such matter is referred to because of such officer's knowledge and
familiarity with the particular subject); (c) any corporation, the Chief
Executive Officer, the President, any Vice President, the Chief Financial
Officer or any other duly authorized officer of such Person who has been
authorized to act in the circumstances; (d) any partnership, any general partner
thereof; and (e) any other Person (other than an individual), any duly
authorized officer or member of such Person, as the context may require, who is
authorized to act in matters relating to such Person.
"Retirement of the Notes" means any day on which the final
distribution is made to the Indenture Trustee in respect of the last Outstanding
Notes.
"Sale Agreement" means the Transition Property Purchase and
Sale Agreement dated as of __________, 2000 between CPL and the Note Issuer, as
the same may be amended, supplemented or otherwise modified from time to time.
"Scheduled Payment Date" is defined in the applicable
Trustee's Issuance Certificate or Series Supplement, if any, with respect to
each Series or Class of Notes.
"SEC" means the Securities and Exchange Commission.
"Secretary of State" means the Secretary of State of the State
of Delaware or the Secretary of State of the State of Texas, as the case may be,
or any Governmental Authority succeeding to the duties of such offices.
"Securities Act" means the Securities Act of 1933, as amended.
"Securitization Law" means Subchapter G of the Utilities Code.
"Seller" is defined in Section 1.01 of the Sale Agreement.
"[Semi-Annual] Servicer's Certificate" means a certificate,
substantially in the form of Exhibit E to the Servicing Agreement, completed and
executed by a Responsible Officer of the Servicer pursuant to Section
4.01(c)(ii) of the Servicing Agreement.
"Series" means each series of Notes issued and authenticated
pursuant to the Indenture and a related Trustee's Issuance Certificate or Series
Supplement, if any.
"Series Issuance Date" means, with respect to any Series, the
date on which the Notes of such Series are to be originally issued in accordance
with Section 2.10 of the Indenture and the related Trustee's Issuance
Certificate or Series Supplement, if any.
"Series Supplement" means an indenture supplemental to the
Indenture that authorizes the issuance of a particular Series of Notes.
"Servicer" means CPL, as Servicer under the Servicing
Agreement, or any successor Servicer to the extent permitted under the Servicing
Agreement.
"Servicer Business Day" means any day other than a Saturday,
Sunday or holiday on which the Servicer maintains normal office hours and
conducts business.
"Servicer Default" is defined in Section 7.01 of the
Servicing Agreement.
"Servicer's Certificate" means a certificate, substantially in
the form of Exhibit E to the Servicing Agreement, completed and executed by a
Responsible Officer of the Servicer pursuant to Section 3.01(c)(ii) of the
Servicing Agreement.
"Servicing Agreement" means the Transition Property Servicing
Agreement dated as of [__________], between the Note Issuer and CPL, as the same
may be amended, supplemented or otherwise modified from time to time.
"Servicing Fee" means the fee payable to the Servicer on each
Payment Date for services rendered during the period from, but not including,
the preceding Payment Date to and including the current Payment Date, determined
pursuant to Section 6.06 of the Servicing Agreement.
"Servicing Standard" means the obligation of the Servicer to
calculate, apply, remit and reconcile proceeds of the Transition Property,
including TC Payments, and all other Note Collateral for the benefit of the Note
Issuer and the Holders (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 all applicable procedures and requirements established by the
PUCT for collection of electric utility tariffs and (iii) in accordance with the
other terms of the Servicing Agreement.
"Special Payment" means with respect to any Series or Class of
Notes, any payment of principal of or interest on (including any interest
accruing upon default), or any other amount in respect of, the Notes of such
Series or Class (including, with respect to Floating Rate Notes only, a payment
under any Swap) that is not actually paid within five days of the Payment Date
applicable thereto.
"Special Payment Date" means the date on which a Special
Payment is to be made by the Indenture Trustee to the Holders.
"Special Record Date" means with respect to any Special
Payment Date, the close of business on the 15th day (whether or not a Business
Day) preceding such Special Payment Date.
"Special True-Up Adjustment" means any special adjustment to
the Transition Charges to reallocate the amounts of such Transition Charges
among TC Customer Classes pursuant to the terms of the related Tariff under the
heading "Base TC Rates Adjustments" and in accordance with Section 4.01(b)(iii)
of the Servicing Agreement.
"Standard & Poor's" means Standard & Poor's Ratings Services,
a division of The XxXxxx-Xxxx Companies, Inc., or any successor thereto.
"State" means any one of the 50 states of the United States
of America or the District of Columbia.
"State Pledge" means the pledge of the State of Texas as set
forth in Section 39.310 of the Securitization Law.
"Subsequent Closing Date" means any date (other than the
Closing Date) specified in a Trustee's Issuance Certificate or Series
Supplement, if any, under which Notes of any Series or Class are issued.
"Subsequent Creation Date" means any date on which Subsequent
Transition Property is created in favor of CPL pursuant to a Subsequent
Financing Order.
"Subsequent Financing Order" means a financing order (other
than the Initial Financing Order) issued hereafter by the PUCT in favor of CPL.
"Subsequent Sale" means the sale of Initial Transition
Property or Subsequent Transition Property after the Closing Date, subject to
the satisfaction of the conditions specified in the Sale Agreement and the
Indenture.
"Subsequent Tariff" means a Tariff filed with the PUCT in
connection with a Subsequent Financing Order.
"Subsequent Transfer Date" means any date on which a
Subsequent Sale will be effective, specified in an Addition Notice.
"Subsequent Transition Property" means Transition Property
sold by the Seller to the Note Issuer as of a Subsequent Transfer Date pursuant
to the Sale Agreement [identified in the related Bill of Sale].
"Successor Servicer" is defined in Section 3.07(e) of the
Indenture.
"Swap" means an interest rate swap, cap, floor, collar or
other hedging transaction that may be entered into by the Note Issuer for the
purpose of managing interest rate risk with respect to a specified Series or
Class of Floating Rate Notes that are being issued concurrently with the
execution of the Swap.
"Swap Agreement" means an Interest Rate and Currency Exchange
Agreement (including the Schedule and Confirmation thereto) entered into between
the Note Issuer and a swap provider.
"Swap Counterparty" means the entity that is a party to a Swap
with the Note Issuer.
"Swap Payment" means the payments made by the Note Issuer to
the Swap Counterparty pursuant to any Swap, subject to any netting of payments
provided in the applicable Swap.
"Swap Revenues" means the payments paid by a Swap Counterparty
to the Note Issuer pursuant to any Swap, subject to any netting of payments
provided in the applicable Swap.
"Tariff" means any rate tariff filed with the PUCT pursuant
to the Securitization Law to evidence any Transition Charges.
"TC Collections" means Transition Charges received by the
Servicer which are remitted to the Collection Account.
"TC Customer Class" means each customer class identified as a
separate rate class in any Tariff.
"TC Payments" means the payments made by Customers based on
the Transition Charges.
"Temporary Notes" means Notes executed, and upon the receipt
of an Issuer Order, authenticated and delivered by the Indenture Trustee pending
the preparation of Definitive Notes pursuant to Section 2.04 of the Indenture.
"Termination Notice" is defined in Section 7.01 of the
Servicing Agreement.
"Third-Party Collectors" means each third-party, including
each Applicable REP, which, pursuant to any Tariff, any other tariffs filed with
the PUCT, or any agreement with CPL, is obligated to remit TC Payments in
respect of Transition Charges to the Servicer.
"Transition Charge" means any transition charge as defined in
Section 39.302(7) of the Securitization Law which is authorized by a Financing
Order.
"Transition Property" means all transition property as defined
in Section 39.302(8) of the Securitization Law created pursuant to a Financing
Order and assigned to the Note Issuer, including the Initial Transition Property
and any Subsequent Transition Property pursuant to the Sale Agreement. As used
in the Basic Documents, unless the context requires otherwise, the term
"Transition Property" when used with respect to CPL includes the contract rights
of CPL that exist prior to the time that such rights are first transferred in
connection with the issuance of the Notes, at which time they become transition
property in accordance with Section 39.304 of the Securitization Law.
"Transition Property Records" is defined in Section 5.01 of
the Servicing Agreement.
"Treasury Regulations" means the regulations, including
proposed or temporary regulations, promulgated under the Code. References herein
to specific provisions of proposed or temporary regulations shall include
analogous provisions of final Treasury Regulations or other successor Treasury
Regulations.
"True-Up Adjustment" means any Annual True-Up Adjustment,
Interim True-Up Adjustment or Special True-Up Adjustment, as the case may be.
"Trust Estate" means all right, title and interest of the Note
Issuer in, to and under the property and rights assigned to the Note Issuer
pursuant to the Sale Agreement, all funds on deposit from time to time in the
Collection Account and all other property of or interests of the Note Issuer
from time to time, including all rights, interests and claims of the [__________
Manager] and the Note Issuer under or in connection with any Basic Documents.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act
of 1939, as amended by the Trust Indenture Reform Act of 1990, as in force on
the Closing Date, unless otherwise specifically provided.
"Trustee's Issuance Certificate" means a certificate executed
by a Authorized Officer of the Note Issuer in accordance with the terms of the
Sale Agreement and delivered to the Indenture Trustee under Section 2.01 of the
Indenture substantially in the form attached as Exhibit C to the Indenture.
"UCC" means, unless the context otherwise requires, the
Uniform Commercial Code, as in effect in the relevant jurisdiction, as amended
from time to time.
"Underwriters" means the underwriters who purchase Notes of
any Series or Class from the Note Issuer and sell such Notes in a public
offering.
"Underwriting Agreement" means the Underwriting Agreement,
dated as of __________, 2000 among CPL, the Underwriters party thereto, on their
own behalf and as representatives of the several underwriters named therein, and
the Note Issuer, as the same may be amended, supplemented or modified from time
to time.
"Unrecovered Balance" means, as of any Payment Date, the sum
of the outstanding principal amount of each Series of Notes less the amount in
the Reserve Subaccount.
"Unregistered Notes" means any Notes not registered under the
Securities Act or the securities laws of any other jurisdiction.
"Utilities Code" means the Texas Utilities Code, as amended
from time to time.
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable at the Note Issuer's option.
"Weighted Average Days Outstanding" means the weighted average
number of days CPL's monthly retail customer bills (or, following the advent of
customer choice) monthly REP bills remain outstanding during the calendar year
immediately preceding the calculation thereof pursuant to Section 4.01(b)(i) of
the Servicing Agreement. The initial Weighted Average Days Outstanding shall be
[35] days until updated pursuant to Section 4.01(b)(i) of the Servicing
Agreement.
B. Other Terms. All accounting terms not specifically defined
herein shall be construed in accordance with United States generally accepted
accounting principles. To the extent that the definitions of accounting terms in
any Basic Document are inconsistent with the meanings of such terms under
generally accepted accounting principles or regulatory accounting principles,
the definitions contained in such Basic Document shall control. All terms used
in Article 9 of the UCC in the State of Texas and not specifically defined
herein, are used herein as defined in such Article 9. As used in the Basic
Documents, the term "including" means "including without limitation," and other
forms of the verb "to include" have correlative meanings. All references to any
Person shall include such Person's permitted successors.
C. Computation of Time Periods. Unless otherwise stated in any
of the Basic Documents, as the case may be, in the computation of a period of
time from a specified date to a later specified date, the word "from" means
"from and including" and the words "to" and "until" each means "to but
excluding".
D. Reference; Captions. The words "hereof", "herein" and
"hereunder" and words of similar import when used in any Basic Document shall
refer to such Basic Document as a whole and not to any particular provision of
such Basic Document; and references to "Section", "subsection", "Schedule" and
"Exhibit" in any Basic Document are references to Sections, subsections,
Schedules and Exhibits in or to such Basic Document unless otherwise specified
in such Basic Document. The various captions (including the tables of contents)
in each Basic Document are provided solely for convenience of reference and
shall not affect the meaning or interpretation of any Basic Document.
E. The definitions contained in this Appendix A 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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1 To be revised to exclude Texas sourced income, if necessary.
