EXHIBIT 10.3
EXECUTION COPY
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SERVICING AGREEMENT
between
WEST PENN FUNDING LLC
and
WEST PENN POWER COMPANY
Servicer
Dated as of November 16, 1999
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207
Contents, p. i
TABLE OF CONTENTS
Page
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ARTICLE I
Definitions
SECTION 1.01. Definitions........................................... 2
SECTION 1.02. Other Definitional Provisions........................... 11
ARTICLE II
Appointment and Authorization of Servicer
SECTION 2.01. Appointment of Servicer; Acceptance of
Appointment...................................... 12
SECTION 2.02. Authorization........................................... 12
SECTION 2.03. Dominion and Control over Serviced
Intangible Transition Property....................... 13
ARTICLE III
Billing Services
SECTION 3.01. Duties of Servicer...................................... 13
SECTION 3.02. Collection of Intangible Transition
Charges.......................................... 16
SECTION 3.03. Servicing and Maintenance Standards..................... 18
SECTION 3.04. Servicer's Certificates................................. 19
SECTION 3.05. Annual Statement as to Compliance;
Notice of Default................................ 19
SECTION 3.06. Annual Independent Certified Public
Accountants' Report.............................. 20
SECTION 3.07. Intangible Transition Property
Documentation.................................... 21
SECTION 3.08. Computer Records; Audits of
Documentation.................................... 21
SECTION 3.09. Defending Intangible Transition Property
Against Claims................................... 23
SECTION 3.10. Opinions of Counsel ................................... 24
ARTICLE IV
Services Related to Intangible
Transition Charges Adjustments
SECTION 4.01. Intangible Transition Charges
Adjustments...................................... 25
208
Contents, p. ii
Page
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ARTICLE V
The Servicer
SECTION 5.01. Representations and Warranties of
Servicer......................................... 26
SECTION 5.02. Indemnities of Servicer; Release of
Claims........................................... 30
SECTION 5.03. Merger or Consolidation of, or
Assumption of the Obligations of,
Servicer......................................... 32
SECTION 5.04. Assignment of Servicer's Obligations.................... 34
SECTION 5.05. Limitation on Liability of Servicer and
Others........................................... 34
SECTION 5.06. West Penn Not To Resign as Servicer..................... 35
SECTION 5.07. Servicing Fee........................................... 36
SECTION 5.08. Servicer Expenses....................................... 37
SECTION 5.09. Appointments............................................ 37
SECTION 5.10. Remittances............................................. 38
SECTION 5.11. Servicer Advances....................................... 39
SECTION 5.12. Protection of Title..................................... 39
ARTICLE VI
Servicer Default
SECTION 6.01. Servicer Default........................................ 40
SECTION 6.02. Notice of Servicer Default.............................. 43
SECTION 6.03. Waiver of Past Defaults................................. 43
SECTION 6.04. Appointment of Successor................................ 44
ARTICLE VII
Miscellaneous Provisions
SECTION 7.01. Amendment............................................... 46
SECTION 7.02. Notices................................................. 47
SECTION 7.03. Assignment.............................................. 47
SECTION 7.04. Limitations on Rights of Others......................... 48
SECTION 7.05. Severability............................................ 48
SECTION 7.06. Separate Counterparts................................... 48
SECTION 7.07. Headings................................................ 49
SECTION 7.08. Governing Law........................................... 49
SECTION 7.09. Assignment to Bond Trustee.............................. 49
SECTION 7.10. Nonpetition Covenants................................... 50
SECTION 7.11. Termination............................................. 51
SECTION 7.12. Limitation of Liability................................. 51
209
Contents, p. iii
EXHIBIT A Servicing Procedures
ANNEX 1 ITC Adjustment Process and Reports - West
Penn Funding LLC
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SERVICING AGREEMENT dated as of November 16, 1999,
between WEST PENN FUNDING LLC, a Delaware limited
liability company (the "Issuer"), and WEST PENN POWER
COMPANY, a Pennsylvania corporation, as the servicer of
the Intangible Transition Property (together with each
successor to WEST PENN POWER COMPANY (in the same
capacity) pursuant to Section 5.03 or 6.02, the
"Servicer").
WHEREAS the Servicer is willing to service the Intangible
Transition Property purchased from the Seller by the Issuer; and WHEREAS
the Issuer, in connection with ownership of Serviced Intangible Transition
Property, desires to engage the Servicer to carry out the functions
described herein.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained and intending to be legally bound hereby, the
parties hereto agree as follows:
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ARTICLE I
Definitions
SECTION 1.01. Definitions. Whenever used in this Agreement, each
of the following words and phrases shall have the following meaning:
"Administration Agreement" means the Service Agreement dated as
of November 16, 1999, between the Issuer and Allegheny Energy Service
Corporation, as administrative agent, as the same may be amended and
supplemented from time to time.
"Administrative Fees" means the fees owed to Allegheny Energy
Service Corporation, as administrative agent, under the Administration
Agreement.
"Agreement" means this Servicing Agreement, as the same may be
amended and supplemented from time to time.
"Annual Accountant's Report" has the meaning specified in Section
3.06(a).
"Basic Documents" has the meaning set forth in the Indenture.
"Bond Trustee" means Bankers Trust Company, a New York banking
corporation, as bond trustee under the Indenture, or any successors to the
foregoing.
"Business Day" means any day other than a Satur day, Sunday or a
day on which banking institutions in the City of New York, the City of
Greensburg, Pennsylvania or
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the State of Delaware are required by law or executive order
to remain closed.
"Class" means, with respect to any Series, any one of the classes
of Transition Bonds of that Series.
"Collateral" means, with respect to the Issuer, all property of
the Issuer pledged by it to secure Transition Bonds issued by the Issuer as
provided in the Indenture.
"Collection Period" means the monthly period represented by each
of West Penn's 12 revenue months each year.
"Competitive Transition Charges" means the competitive transition
charges that West Penn may impose on Customers as set forth in Appendix A
to the Joint Petition for Approval of Full Settlement of West Penn Power
Company's Restructuring Plan and Related Court Proceedings and approved in
the Final Order issued on November 19, 1998 by the PUC with respect to West
Penn's restructuring plan.
"Customers" means each person that (i) was a customer of West
Penn located within West Penn's retail electric service territory on
January 1, 1997 or that became a customer of electric services within such
territory after January 1, 1997, (ii) is still located within such
territory, and (iii) is in a Rate Schedule that has been assigned stranded
cost responsibility.
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"Fitch IBCA" means Fitch IBCA, Inc. or its successor.
"Formation Document" means the Amended and Restated Limited
Liability Company Agreement of the Issuer dated as of November 3, 1999,
between the Seller and the Special Members named therein, as the same may
be amended and supplemented from time to time.
"Holder" or "Transition Bondholder" means the Person in whose
name a Transition Bond of any Series or Class is registered as provided in
the Indenture therefor.
"Indenture" means the indenture dated as of November 16, 1999,
between the Issuer and the Bond Trustee, as the same may be amended and
supplemented from time to time, including by any Series Supplement.
"Independent Directors" means the persons acting as Independent
Directors of the Issuer pursuant to the Formation Document.
"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
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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 90 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, seques
trator or similar official for such Person or for any sub stantial 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.
"Intangible Transition Charges" means the amounts authorized by
the PUC to be imposed on all Customer bills with respect to the Intangible
Transition Property and collected, through a non-bypassable mechanism, by
West Penn or its successor or by any other entity which provides electric
service to Customers, to recover Qualified Transition Expenses pursuant to
the Qualified Rate Order.
"Intangible Transition Charges Adjustment" means
each adjustment to Intangible Transition Charges related to the
Serviced Intangible Transition Property made in
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accordance with Section 4.01 and Annex 1 hereto or in connection with the
redemption by the Issuer of Transition Bonds.
"Intangible Transition Property" means the irrevocable right of
West Penn or its successor or assignee to collect Intangible Transition
Charges from Customers to recover the Qualified Transition Expenses
described in the Qualified Rate Order, including all right, title and
interest of West Penn or its successor or assignee in such order and in all
revenues, collections, claims, payments, money or proceeds of or arising
from Intangible Transition Charges pursuant to such order, and all proceeds
of any of the foregoing.
"Intangible Transition Property Documentation" has the meaning
assigned to that term in Section 3.07.
"Issuer" means West Penn Funding LLC until a successor replaces
it and, thereafter, such successor.
"ITC Collections" means amounts collected in respect of
Intangible Transition Charges or the Intangible Transition Property.
"Lien" means a security interest, lien, charge, pledge, equity or
encumbrance of any kind.
"Losses" means collectively, any and all liabilities,
obligations, losses, damages, payments, costs or expenses of any kind
whatsoever.
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"Moody's" means Xxxxx'x Investors Service Inc., or its successor.
"Officers' Certificate" means a certificate signed by (a) the chairman of
the board, the president, the vice chairman of the board, the executive
vice president or any vice president and (b) a treasurer, assistant
treasurer, secretary or assistant secretary, in each case of the Servicer.
"Operating Expenses" means, with respect to the Issuer, all fees,
costs, expenses and indemnity payments owed by the Issuer, including all
amounts owed by the Issuer to the Bond Trustee and the Independent
Directors, the Servicing Fee payable in respect of Transition Bonds issued
by the Issuer, the Administrative Fees, legal fees and expenses of the
Servicer and legal and accounting fees, costs and expenses of the Issuer
and the Bond Trustee.
"Opinion of Counsel" means one or more written opinions of
counsel who may be an employee of or counsel to West Penn or the Servicer,
which counsel shall be reasonably acceptable to the Bond Trustee, the
Issuer or the Rating Agencies, as applicable, and shall be in form
reasonably satisfactory to the Bond Trustee, if applicable.
"Payment Date" means each March 25, June 25, September 25 and
December 26, commencing on March 27, 2000, or if any such date is not a
Business Day, the next succeeding Business Day.
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"Person" means any individual, corporation, estate, partnership,
joint venture, association, joint stock company, trust (including any
beneficiary thereof), business trust, unincorporated organization or
government or any agency or political subdivision thereof.
"PUC" means the Pennsylvania Public Utility Commission or any
successor.
"PUC Regulations" means any regulations promulgated or adopted by
the PUC.
"Qualified Rate Order" means the order of the PUC issued on
November 19, 1998, as supplemented by a supplemental qualified rate order
of the PUC issued on August 12, 1999, adopted in accordance with the
Statute, which, among other things, creates the Intangible Transition
Property and authorizes the imposition and collection of the Intangible
Transition Charges by West Penn or its assignee.
"Qualified Transition Expenses" has the meaning assigned to that
term in the Qualified Rate Order.
"Rate Schedule" means each of the rate schedules into which
Customers are divided as of the date hereof, as such rate schedules may be
reconfigured from time to time.
"Rating Agency" means any rating agency rating the Transition
Bonds of any Class or Series at the time of issuance thereof at the request
of the Issuer. If no such organization or successor is any longer in
existence, "Rating Agency" shall be a nationally recognized statistical
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rating organization or other comparable Person designated by the Issuer,
notice of which designation shall be given to the Bond Trustee under the
Indenture and the Servicer.
"Rating Agency Condition" means, with respect to any action, the
notification in writing by each Rating Agency to the Transferor, the
Seller, the Servicer, the Bond Trustee and the Issuer that such action will
not result in a reduction or withdrawal of the then current rating by such
Rating Agency of any outstanding Series or Class of Transition Bonds issued
by the Issuer.
"Released Parties" has the meaning specified in Section 5.02(f).
"Remittance Date" means each date on which ITC Collections are to
be remitted by the Servicer to the Bond Trustee pursuant to Section 5.10.
"Sale Agreement" means the Intangible Transition Property Sale
Agreement dated as of November 16, 1999, between the Seller and the Issuer,
relating to the sale of Intangible Transition Property to the Issuer, as
the same may be amended and supplemented from time to time.
"Seller" means West Penn Funding Corporation and its successors
in interest to the extent permitted under the Sale Agreement.
"Series" means any series of Transition Bonds issued by the
Issuer.
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"Series Supplement" means an indenture supplemental to the
Indenture that authorizes a particular Series of Transition Bonds.
"Serviced Intangible Transition Property" means, collectively,
all Intangible Transition Property sold, conveyed, assigned or otherwise
transferred to the Issuer by the Seller.
"Servicer Default" means an event specified in Section 6.01.
"Servicing Fee" means, with respect to any Series of Transition
Bonds, the fee payable to the Servicer on each Payment Date for services
rendered, determined pursuant to Section 5.07.
"Standard & Poor's means Standard & Poor's Rating Group, or its
successor. "Statute" means the Pennsylvania Electricity Generation Customer
Choice and Competition Act, Chapter 28 of Title 66 of the Pennsylvania
Consolidated Statutes, 66 Pa. C.S.,ss.2801, et seq.
"Termination Notice" has the meaning specified in Section 6.01.
"Third Party" means any third party, including any electric
generation supplier, providing billing or metering services, licensed by
the PUC pursuant to relevant provisions of the Statute and any PUC order.
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"Transfer Agreement" means the Intangible Transition Property
Transfer Agreement dated as of November 16, 1999, between the Transferor
and the Seller relating to the transfer of Intangible Transition Property
to the Seller, as the same may be amended and supplemented from time to
time.
"Transfer Date" means each date on which the Seller sells,
conveys, or otherwise transfers any Intangible Transition Property to the
Issuer.
"Transferor" means West Penn Power Company, as transferor under
the Transfer Agreement, and its successors in interest to the extent
permitted hereunder.
"Transition Bonds" means "transition bonds" (as defined in the
Statute) issued by the Issuer.
"UCC" means, unless the context otherwise requires, the Uniform
Commercial Code, as in effect in the relevant jurisdiction, as amended from
time to time.
"West Penn" means West Penn Power Company, a Pennsylvania
corporation. SECTION 1.02. Other Definitional Provisions. (a) The words
"hereof", "herein", "hereunder" and words of similar import when used in
this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement; Section, Annex, Schedule and
Exhibit references contained in this Agreement are references to Sections,
Annexes, Schedules and Exhibits in
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or to this Agreement unless otherwise specified; and the term "including"
shall mean "including without limitation".
(b) The definitions contained in this Agreement are applicable to
the singular as well as the plural forms of such terms and to the masculine
as well as to the feminine and neuter genders of such terms.
ARTICLE II
Appointment and Authorization of Servicer
SECTION 2.01. Appointment of Servicer; Acceptance of Appointment.
Subject to Section 5.04 and Article VI, the Issuer hereby appoints the
Servicer, and the Servicer hereby accepts such appointment, to perform the
Servicer's obligations pursuant to this Agreement on behalf of and for the
benefit of the Issuer in accordance with the terms of this Agreement. This
appointment and the Servicer's acceptance thereof may not be revoked except
in accordance with the express terms of this Agreement.
SECTION 2.02. Authorization. With respect to all or any portion
of the Serviced Intangible Transition Property, the Servicer shall be, and
hereby is, authorized and empowered by the Issuer to (a) execute and
deliver, on behalf of itself or the Issuer, as the case may be, any and all
instruments, documents or notices, and (b) on behalf of itself or the
Issuer, as the case may be, make any filing and participate in proceedings
of any kind with any governmental authorities, including with the PUC. The
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Issuer shall furnish the Servicer with such documents as have been prepared
by the Servicer for execution by the Issuer, and with the other documents
as may be in the Issuer's possession, as necessary or appropriate to enable
the Servicer to carry out its servicing and administrative duties
hereunder. Upon the written request of the Servicer, the Issuer shall
furnish the Servicer with any powers of attorney or other documents
necessary or appropriate to enable the Servicer to carry out its duties
hereunder.
SECTION 2.03. Dominion and Control over Serviced Intangible
Transition Property. Notwithstanding any other provision herein, the
Servicer and the Issuer agree that the Issuer shall have dominion and
control over its respective Serviced Intangible Transition Property. The
Servicer hereby agrees that it shall not take any action that is not
authorized by this Agreement, that is not consistent with its customary
procedures and practices, or that shall impair the rights of the Issuer in
its respective Serviced Intangible Transition Property, in each case unless
such action is required by law or court or regulatory order.
ARTICLE III
Billing Services
SECTION 3.01. Duties of Servicer. The Servicer shall have the
following duties:
(a) Duties of Servicer Generally. The Servicer will manage,
service, administer and make collections
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in respect of the Serviced Intangible Transition Property. The
Servicer's duties will include (i) calculating and billing the
Intangible Transition Charges and collecting (from Customers and
Third Parties, as applicable) and posting all ITC Collections;
(ii) responding to inquiries by Customers, Third Parties, the
PUC, or any Federal, local or other state governmental
authorities with respect to the Serviced Intangible Transition
Property and Intangible Transition Charges; (iii) accounting for
ITC Collections, investigating delinquencies, processing and
depositing collections and making periodic remittances,
furnishing periodic reports to the Issuer, the Bond Trustee and
the Rating Agencies; (iv) selling defaulted or written off
accounts in accordance with the Servicer's usual and customary
practices; and (v) taking action in connection with Intangible
Transition Charge Adjustments as set forth herein. Anything to
the contrary notwithstanding, the duties of the Servicer set
forth in this Agreement shall be qualified in their entirety by
any PUC Regulations as in effect at the time such duties are to
be performed. Without limiting the generality of this Section
3.01(a), in furtherance of the foregoing, the Servicer hereby
agrees that it shall also have, and shall comply with, the duties
and responsibilities
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relating to data acquisition, usage and xxxx calculation,
billing, customer service functions, collections, payment
processing and remittance set forth in Exhibit A hereto.
(b) Notification of Laws and Regulations. The Servicer shall
immediately notify the Issuer, the Bond Trustee and the Rating
Agencies in writing of any laws or PUC Regulations hereafter
promulgated that have a material adverse effect on the Servicer's
ability to perform its duties under this Agreement.
(c) Other Information. Upon the reasonable request of the
Issuer, the Bond Trustee or any Rating Agency, the Servicer shall
provide to the Issuer, the Bond Trustee or such Rating Agency, as
the case may be, any public financial information in respect of
the Servicer, or any material information regarding the
Intangible Transition Property to the extent it is reasonably
available to the Servicer, as may be reasonably necessary and
permitted by law for the Issuer, the Bond Trustee or such Rating
Agency to monitor the performance by the Servicer hereunder. In
addition, so long as any of the Transition Bonds of any Series
are outstanding, the Servicer shall provide the Issuer and the
Bond Trustee, within a reasonable time after written request
therefor, any information available to the Servicer or reasonably
obtainable by
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it that is necessary to calculate the Intangible Transition
Charges applicable to each Rate Schedule.
SECTION 3.02. Collection of Intangible Transition Charges. (a)
The Servicer shall use all reasonable efforts consistent with its customary
servicing procedures to collect all amounts owed in respect of Intangible
Transition Charges as and when the same shall become due and shall follow
such collection procedures as it follows with respect to collection
activities that the Servicer conducts for itself or others. The Servicer
shall not change the amount of or reschedule the due date of any scheduled
payment of Intangible Transition Charges, except as contemplated in this
Agreement or as required by law or court or PUC order; provided, however,
that the Servicer may take any of the foregoing actions to the extent that
such action would be in accordance with customary billing and collection
practices of the Servicer with respect to billing and collection activities
that it conducts for itself.
(b) Any amounts received by the Servicer from a Customer that
represent a partial payment toward an outstanding balance will be applied
first to state sales tax charges, then Intangible Transition Charges, then
to Competitive Transition Charges, then to transmission and distribution
charges and finally to electric generation charges. Notwithstanding the
foregoing, when West Penn is providing billing for its transmission and
distribution
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charges which is separate from billing for generation, any amounts received
from Customers remitting partial payments will be applied in the following
priority: (i) to the outstanding balance before direct access to electric
generation from electric generation suppliers or the installment amount for
a payment agreement on such balance; (ii) to the balance due for state
sales tax charges; (iii) to the balance due or the installment amount for a
payment agreement for Intangible Transition Charges; (iv) to the balance
due or the installment amount for a payment agreement for Competitive
Transition Charges; (v) to the balance due or the installment amount for a
payment agreement for fixed and variable utility distribution service
charges; (vi) to the current state sales tax charges; (vii) to the current
Intangible Transition Charges; and (viii) to the current Competitive
Transition Charges; (ix) to the current fixed and variable utility
distribution service charges; (x) to the balance due for prior charges for
energy and capacity (if West Penn is the provider of last resort); (xi) to
the current charges for energy and capacity charges (if West Penn is the
provider of last resort); and (xii) to the non-basic service charges.
(c) Notwithstanding anything contained herein to the contrary,
the Servicer will collect sales tax related to Intangible Transition
Charges and report and remit the amount so collected to the appropriate
state tax agency.
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Collection and remission of sales tax is not a final determination by the
Servicer or the Issuer of sales tax liability associated with Intangible
Transition Charges. The Servicer will cooperate with any Person who seeks a
refund of sales tax collected by the Servicer and remitted to the
appropriate government agency.
SECTION 3.03. Servicing and Maintenance Standards. The Servicer
shall, on behalf of the Issuer, (a) manage, service, administer and make
collections in respect of the Serviced Intangible Transition Property with
reasonable care and in material compliance with applicable law, including
all applicable PUC Regulations and guidelines, using the same degree of
care and diligence that the Servicer exercises with respect to billing and
collection activities that the Servicer conducts for itself and others; (b)
follow standards, policies and procedures in performing its duties as
Servicer that are customary in the Servicer's industry; (c) use all
reasonable efforts, consistent with its customary servicing procedures, to
enforce and maintain rights in respect of the Intangible Transition
Property; and (d) calculate Intangible Transition Charges in compliance
with the Statute, the Qualified Rate Order and any applicable tariffs,
except where the failure to comply with any of the foregoing would not
adversely affect the Issuer's or the Bond Trustee's interest in the
Serviced Intangible Transition Property. The Servicer shall
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follow such customary and usual practices and procedures as it shall deem
necessary or advisable in its servicing of all or any portion of the
Serviced Intangible Transition Property, which, in the Servicer's judgment,
may include the taking of legal action pursuant to Section 3.09 hereof or
otherwise.
SECTION 3.04. Servicer's Certificates. (a) The Servicer will
provide to the Issuer, the Bond Trustee and each of the Rating Agencies the
statements and certificates specified in Annex 1 hereto.
SECTION 3.05. Annual Statement as to Compliance; Notice of
Default. (a) The Servicer shall deliver to the Issuer, the Bond Trustee and
each Rating Agency, on or before March 31 of each year beginning March 31,
2000, an Officers' Certificate, stating that (i) a review of the activities
of the Servicer during the preceding calendar year (or relevant portion
thereof) and of its performance under this Agreement has been made under
such officers' supervision and (ii) to the best of such officers'
knowledge, based on such review, the Servicer has fulfilled all its
obligations under this Agreement throughout such period or, if there has
been a default in the fulfillment of any such obligation, describing each
such default.
(b) The Servicer shall deliver to the Issuer, the Bond Trustee
and each Rating Agency, promptly after having obtained knowledge thereof,
but in no event later than five
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Business Days thereafter, written notice in an Officers' Certificate of any
event which with the giving of notice or lapse of time, or both, would
become a Servicer Default under Section 6.01.
SECTION 3.06. Annual Independent Certified Public Accountants'
Report. (a) The Servicer shall cause a firm of independent certified public
accountants (which may also provide other services to the Servicer, West
Penn or the Seller) to prepare, and the Servicer shall deliver to the
Issuer, the Bond Trustee and each Rating Agency, on or before March 31 of
each year, beginning March 31, 2000 to and including the March 31
succeeding the retirement of all Transition Bonds, a report addressed to
the Servicer (the "Annual Accountant's Report"), which may be included as
part of the Servicer's customary auditing activities, to the effect that
such firm has performed certain procedures in connection with the
Servicer's compliance with its obligations under this Agreement during the
preceding calendar year ended December 31 (or, in the case of the first
Annual Accountant's Report, the period of time from the first Transfer Date
until December 31, 1999), identifying the results of such procedures and
including any exceptions noted. In the event such accounting firm requires
the Bond Trustee or the Issuer to agree or consent to the procedures
performed by such firm, the Issuer shall direct the Bond Trustee in writing
to so agree; it being
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understood and agreed that the Bond Trustee will deliver such letter of
agreement or consent in conclusive reliance upon the direction of the
Issuer, and neither the Bond Trustee nor the Issuer will make any
independent inquiry or investigation as to, and shall have no obligation or
liability in respect of, the sufficiency, validity or correctness of such
procedures.
(b) The Annual Accountant's Report shall also indicate that the
accounting firm providing such report is independent of the Servicer within
the meaning of the Code of Professional Ethics of the American Institute of
Certified Public Accountants.
SECTION 3.07. Intangible Transition Property Documentation. To
assure uniform quality in servicing the Serviced Intangible Transition
Property and to reduce administrative costs, the Servicer shall keep on
file, in accordance with its customary procedures, all documents relating
to the Intangible Transition Property, including copies of the Qualified
Rate Order and all documents filed with the PUC in connection with any
Intangible Transition Charges Adjustment (collectively, the "Intangible
Transition Property Documentation").
SECTION 3.08. Computer Records; Audits of Documentation. (a)
Safekeeping. The Servicer shall maintain accurate and complete accounts,
records and computer systems pertaining to the Intangible Transition
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Property and the Intangible Transition Property Documentation in accordance
with its standard accounting procedures and in sufficient detail to permit
reconciliation between payments or recoveries on (or with respect to)
Intangible Transition Charges and the ITC Collections from time to time
remitted to the Bond Trustee pursuant to Section 5.10 and to enable the
Issuer to comply with this Agreement and the Indenture. The Servicer shall
conduct, or cause to be conducted, periodic audits of the Intangible
Transition Property Documentation held by it under this Agreement and of
the related accounts, records and computer systems, in such a manner as
shall enable the Issuer and the Bond Trustee, as pledgee of the Issuer, to
verify the accuracy of the Servicer's record keeping. The Servicer shall
promptly report to the Issuer and the Bond Trustee any failure on the
Servicer's part to hold the Intangible Transition Property Documentation
and maintain its accounts, records and computer systems as herein provided
and promptly take appropriate action to remedy any such failure. Nothing
herein shall be deemed to require an initial review or any periodic review
by the Issuer or the Bond Trustee of the Intangible Transition Property
Documentation.
(b) Maintenance of and Access to Records. The Servicer shall
maintain the Intangible Transition Property Documentation at 000 Xxxxx Xxxx
Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx or at such other office as shall be
specified
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to the Issuer and the Bond Trustee by written notice not later than 30 days
prior to any change in location. The Servicer shall permit the Issuer and
the Bond Trustee or their respective duly authorized representatives,
attorneys, agents or auditors at any time during normal business hours as
the Issuer or Bond Trustee shall reasonably request to inspect, audit and
make copies of and abstracts from the Servicer's records regarding the
Intangible Transition Property and Intangible Transition Charges and the
Intangible Transition Property Documentation. The failure of the Servicer
to provide access to such information as a result of an obligation or
applicable law (including PUC Regulations) prohibiting disclosure of
information regarding customers shall not constitute a breach of this
Section 3.08(b).
SECTION 3.09. Defending Intangible Transition Property Against
Claims. The Servicer shall institute any action or proceeding necessary to
compel performance by the PUC or the Commonwealth of Pennsylvania of any of
their obligations or duties under the Statute or the Qualified Rate Order
with respect to the Intangible Transition Property. The costs of any such
action shall be payable from ITC Collections as an Operating Expense in
accordance with the priorities set forth in Section 8.02(d) of the
Indenture at the time such costs are incurred. The Servicer's obligations
pursuant to this Section 3.09 shall
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survive and continue notwithstanding the fact that the payment of Operating
Expenses pursuant to the priorities set forth in Section 8.02(d) of the
Indenture may be delayed (it being understood that the Servicer may be
required to advance its own funds to satisfy its obligations hereunder).
SECTION 3.10. Opinions of Counsel. The Servicer shall deliver to
the Issuer and the Bond Trustee:
(a) promptly after the execution and delivery of this
Agreement and of each amendment hereto, promptly after the
execution of each Sale Agreement and of each amendment thereto
and on each Transfer Date, an Opinion of Counsel either (i) to
the effect that, in the opinion of such counsel, all filings,
including filings with the PUC pursuant to the Statute, that are
necessary to fully preserve and protect the interests of the Bond
Trustee in the Serviced Intangible Transition Property have been
executed and filed, and reciting the details of such filings or
referring to prior Opinions of Counsel in which such details are
given, or (ii) to the effect that, in the opinion of such
counsel, no such action shall be necessary to preserve and
protect such interest; and
(b) within 90 days after the beginning of each calendar year
beginning with the first calendar year beginning more than three
months after the first Transfer Date, an Opinion of Counsel,
dated as of a
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date during such 90-day period, either (i) to the effect that, in
the opinion of such counsel, all filings with the PUC pursuant to
the Statute, have been executed and filed that are necessary to
preserve fully and protect fully the interest of the Bond Trustee
in the Serviced Intangible Transition Property, and reciting the
details of such filings or referring to prior Opinions of Counsel
in which such details are given, or (ii) to the effect that, in
the opinion of such counsel, no such action shall be necessary to
preserve and protect such interest.
Each Opinion of Counsel referred to in clause (a) or (b) above
shall specify any action necessary (as of the date of such opinion) to be
taken in the following year to preserve and protect such interest.
ARTICLE IV
Services Related to Intangible
Transition Charges Adjustments
SECTION 4.01. Intangible Transition Charges Adjustments. The
Servicer shall perform the calculations and take the actions relating to
revising the Intangible Transition Charges, in each case set forth in Annex
1 to this Agreement.
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ARTICLE V
The Servicer
SECTION 5.01. Representations and Warranties of Servicer. The
Servicer makes the following representations and warranties as of each
Transfer Date, on which the Issuer has relied and will rely in acquiring
Serviced Intangible Transition Property. The representations and warranties
shall survive the sale of any of the Serviced Intangible Transition
Property to the Issuer and the pledge thereof to the Bond Trustee pursuant
to the Indenture.
(a) Organization and Good Standing. The Servicer is a
corporation duly organized and in good standing under the laws of
the state of its incorporation, with the corporate power and
authority to own its properties and to conduct its business as
such properties are currently owned and such business is
presently conducted, and has the power, authority and legal right
to service the Serviced Intangible Transition Property.
(b) Due Qualification. The Servicer is duly qualified to do
business as a foreign corporation in good standing, and has
obtained all necessary licenses and approvals in, all
jurisdictions in which the owner ship or lease of property or the
conduct of its busi ness (including the servicing of the Serviced
Intangible Transition Property as required by this Agreement)
requires such qualifications, licenses or
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approvals (except where the failure to so qualify would not be
reasonably likely to have a material adverse effect on the
Servicer's business, operations, assets, revenues, properties or
prospects or adversely affect the servicing of the Serviced
Intangible Transition Property).
(c) Power and Authority. The Servicer has the corporate
power and authority to execute and deliver this Agreement and to
carry out its terms; and the execution, delivery and performance
of this Agreement have been duly authorized by the Servicer by
all necessary corporate action.
(d) Binding Obligation. This Agreement consti tutes a legal,
valid and binding obligation of the Servicer enforceable against
the Servicer in accordance with its terms subject to bankruptcy,
receivership, insolvency, fraudulent transfer, reorganization,
moratorium or other laws affecting creditors' rights generally
from time to time in effect and to general principles of equity
(regardless of whether considered in a proceeding in equity or at
law).
(e) No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms
hereof shall not conflict with, result in any breach of any of
the terms and provisions of, nor constitute (with or without
notice
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or lapse of time) a default under, the articles of incorporation
or by-laws of the Servicer, or any indenture, agreement or other
instrument to which the Servicer is a party or by which it shall
be bound; nor result in the creation or imposition of any Lien
upon any of its properties pursuant to the terms of any such
indenture, agreement or other instrument; nor violate any law or
any order, rule or regulation applicable to the Servicer of any
court or of any Federal or state regulatory body, administrative
agency or other governmental instrumentality having jurisdiction
over the Servicer or its properties.
(f) Approvals. Except for filings with the PUC for revised
Intangible Transition Charges pursuant to Section 4.01 and Annex
1 hereto and UCC continuation filings, no approval,
authorization, consent, order or other action of, or filing with,
any court, Federal or state regulatory body, administrative
agency or other governmental instrumentality is required in
connection with the execution and delivery by the Servicer of
this Agreement, the performance by the Servicer of the
transactions contemplated hereby or the fulfillment by the
Servicer of the terms hereof, except those that have been
obtained or made.
(g) No Proceedings. There are no proceedings or
investigations pending or, to the Servicer's best
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knowledge, threatened before any court, Federal or state
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Servicer or its
properties: (i) except as disclosed by the Servicer to the
Issuer, seeking any determination or ruling that might materially
and adversely affect the performance by the Servicer of its
obligations under, or the validity or enforceability against the
Servicer of this Agreement or (ii) relating to the Servicer and
which might adversely affect the Federal or state income tax
attributes of the Transition Bonds.
(h) Reports and Certificates. Each report and certificate
delivered in connection with any filing made to the PUC by the
Servicer on behalf of the Issuer with respect to Intangible
Transition Charges or Intangible Transition Charges Adjustments
will constitute a representation and warranty by the Servicer
that each such report or certificate, as the case may be, is true
and correct in all material respects; provided, however, that to
the extent any such report or certificate is based in part upon
or contains assumptions, forecasts or other predictions of future
events, the representation and warranty of the Servicer with
respect thereto will be limited to the representation and
warranty that such assumptions,
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forecasts or other predictions of future events are reasonable
based upon historical performance.
SECTION 5.02. Indemnities of Servicer; Release of Claims. (a) The
Servicer shall be liable in accordance herewith only to the extent of the
obligations specifically undertaken by the Servicer under this Agreement.
(b) The Servicer shall indemnify the Issuer and the Bond Trustee,
for itself and on behalf of the Transition Bondholders for which it acts as
Bond Trustee, and each of their respective managers, members, officers,
directors, employees and agents for, and defend and hold harmless each such
Person from and against, any and all Losses that may be imposed upon,
incurred by or asserted against any such Person as a result of (i) the
Servicer's wilful misfeasance, bad faith or gross negligence in the
performance of its duties or observance of its covenants under this
Agreement or the Servicer's reckless disregard of its obligations and
duties under this Agreement or (ii) the Servicer's breach of any of its
representations or warranties in this Agreement.
(c) If any action, claim, demand or proceeding (including any
governmental investigation) shall be brought or asserted against a party
(the "indemnified party") entitled to any indemnification provided for
under this Section 5.02, such indemnified party shall promptly notify the
Servicer in writing; provided, however, that failure to give such
notification shall not affect the indemnification
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provided hereunder except to the extent the Servicer shall have been
actually prejudiced as a result of such failure.
(d) The Servicer shall indemnify the Bond Trustee and its
officers, directors and agents for, and defend and hold harmless each such
Person from and against, any and all Losses that may be imposed upon,
incurred by or asserted against any such Person as a result of the
acceptance or performance of the trusts and duties contained herein and in
the other Basic Documents to which the Bond Trustee is a party, except to
the extent that any such Loss shall be due to the wilful misfeasance, bad
faith or gross negligence of the Bond Trustee. Such amounts shall be
deposited and distributed in accordance with the Indenture.
(e) The Servicer's indemnification obligations under Section
5.02(b) and (d) for events occurring prior to the removal or resignation of
the Bond Trustee or the termination of this Agreement with respect to the
Issuer shall survive the resignation or removal of the Bond Trustee or the
termination of this Agreement with respect to the Issuer and shall include
reasonable costs, fees and expenses of investigation and litigation
(including the Issuer's and the Bond Trustee's reasonable attorneys' fees
and expenses).
(f) Except to the extent expressly provided for in this Agreement
or the other Basic Documents (including the Servicer's claims with respect
to the Servicing Fees), the Servicer hereby releases and discharges the
Issuer
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(including its managers, members, officers, directors and agents, if any)
and the Bond Trustee (including its officers, directors and agents)
(collectively, the "Released Parties") from any and all actions, claims and
demands whatsoever, which the Servicer, in its capacity as Servicer, shall
or may have against any such Person relating to the Serviced Intangible
Transition Property or the Servicer's activities with respect thereto other
than any actions, claims and demands arising out of the wilful misconduct,
bad faith or gross negligence of the Released Parties.
SECTION 5.03. Merger or Consolidation of, or Assumption of the
Obligations of, Servicer. Any Person (a) into which the Servicer may be
merged or consolidated and which succeeds to the major part of the electric
distribution business of the Servicer, (b) which results from the division
of the Servicer into two or more Persons and which succeeds to the major
part of the electric distribution business of the Servicer, (c) which may
result from any merger or consolidation to which the Servicer shall be a
party and which succeeds to the major part of the electric distribution
business of the Servicer, (d) which may succeed to the properties and
assets of the Servicer substantially as a whole and which succeeds to the
major part of the electric distribution business of the Servicer or (e)
which may otherwise succeed to the major part of the electric distribution
business of the Servicer, which Person
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in any of the foregoing cases executes an agreement of assumption to
perform every obligation of the Servicer hereunder, shall be the successor
to the Servicer under this Agreement without further act on the part of any
of the parties to this Agreement; provided, however, that (i) immediately
after giving effect to such transaction, no representation and warranty
made pursuant to Section 5.01 shall have been breached and no Servicer
Default, and no event which, after notice or lapse of time, or both, would
become a Servicer Default, shall have occurred and be continuing, (ii) the
Servicer shall have delivered to the Issuer and the Bond Trustee an
Officers' Certificate and an Opinion of Counsel stating that such
consolidation, merger or succession and such agreement of assumption comply
with this Section 5.03 and that all conditions precedent provided for in
this Agreement relating to such transaction have been complied with, (iii)
the Rating Agencies shall have received prior written notice of such
transaction, (iv) the Servicer shall have delivered to the Issuer, the Bond
Trustee and the Rating Agency an Opinion of Counsel either (A) stating
that, in the opinion of such counsel, all filings, including filings with
the PUC pursuant to the Statute, have been executed and filed that are
necessary to preserve fully and protect fully the interests of the Issuer
in the Serviced Intangible Transition Property and reciting the details of
such filings or (B) stating that, in the opinion of such
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counsel, no such action shall be necessary to preserve and protect such
interests. Notwithstanding anything herein to the contrary, the execution
of the above referenced agreement of assumption and compliance with clauses
(i), (ii), (iii) and (iv) above shall be conditions precedent to the
consummation of the transactions referred to in clause (a), (b), (c), (d)
or (e) above.
SECTION 5.04. Assignment of Servicer's Obligations. Subject to
the satisfaction of the conditions set forth in Section 5.03, pursuant to
paragraph 13 of the Qualified Rate Order in which the PUC authorizes West
Penn to contract with an alternative party to perform West Penn's
obligations contemplated in the Qualified Rate Order, the Servicer may
assign its obligations hereunder to any electric distribution company (as
such term is defined in the Statute) which succeeds to the major part of
West Penn's electric distribution business.
SECTION 5.05. Limitation on Liability of Servicer and Others. The
Servicer shall not be liable to the Issuer, the Bond Trustee, the holders
of the Transition Bonds or any other Person, except as provided under this
Agreement, for any action taken or for refraining from the taking of any
action pursuant to this Agreement or for errors in judgment; provided,
however, that this provision shall not protect the Servicer against any
liability that would otherwise be imposed by reason of wilful misfeasance,
bad faith or gross
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negligence in the performance of its duties or by reason of reckless
disregard of obligations and duties under this Agreement. The Servicer and
any director or officer or employee or agent of the Servicer may rely in
good faith on the advice of counsel reasonably acceptable to the Bond
Trustee or on any document of any kind, prima facie properly executed and
submitted by any Person, respecting any matters arising under this
Agreement.
Except as provided in this Agreement, the Servicer shall not be
under any obligation to appear in, prosecute or defend any legal action
that is not incidental to its duties to service the Serviced Intangible
Transition Property in accordance with this Agreement or related to its
obligation to pay indemnification, and that in its reasonable opinion may
cause it to incur any expense or liability.
SECTION 5.06. West Penn Not To Resign as Servicer. Subject to the
provisions of Sections 5.03 and 5.04, West Penn shall not resign from the
obligations and duties hereby imposed on it as Servicer under this
Agreement except upon a determination that the performance of its duties
under this Agreement shall no longer be permissible under applicable law.
Notice of any such determination permitting the resignation of West Penn
shall be communicated to the Issuer, the Bond Trustee and each Rating
Agency at the earliest practicable time (and, if such communication is not
in writing, shall be confirmed in
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writing at the earliest practicable time), and any such determination shall
be evidenced by an Opinion of Counsel to such effect delivered to the
Issuer and the Bond Trustee concurrently with or promptly after such
notice. No such resignation shall become effective until a successor
Servicer shall have assumed the servicing obligations and duties hereunder
of West Penn in accordance with Section 6.04.
SECTION 5.07. Servicing Fee. The Issuer agrees to pay the
Servicer, solely to the extent amounts are available therefor in accordance
with the Indenture, the Servicing Fee with respect to all Series of
Transition Bonds issued by the Issuer. The Servicing Fee with respect to a
Series for a Payment Date shall be as follows: so long as West Penn acts as
the Servicer, the Servicing Fee will be $312,500 per quarter or, if less,
the maximum amount approved by the PUC; if a successor Servicer is
appointed, the Servicing Fee will be based on an amount approved by the
PUC, but not in excess of a per annum rate equal to 1.5% of the outstanding
principal balance of the Transition Bonds. The Servicer will be entitled to
retain as additional compensation net investment income on ITC Collections
related to Serviced Intangible Transition Property received by the Servicer
prior to each Remittance Date and the late fees, if any, paid by Customers
to the Servicer. The
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foregoing fees constitute a fair and reasonable price for
the obligations to be performed by the Servicer.
SECTION 5.08. Servicer Expenses. Except as otherwise expressly
provided herein, the Servicer shall be required to pay all expenses
incurred by it in connection with its activities hereunder, including fees
and disbursements of independent accountants and counsel, taxes imposed on
the Servicer and expenses incurred in connection with reports to Transition
Bondholders.
SECTION 5.09. Appointments. The Servicer may at any time appoint
a subservicer to perform all or any portion of its obligations as Servicer
hereunder; provided, however, that the Rating Agency Condition shall have
been satisfied in connection therewith with respect to all Rating Agencies
other than Moody's (and the Servicer shall have furnished Moody's with
written notice of such appointment prior to its effectiveness); provided
further that the Servicer shall remain obligated and be liable to the
Issuer for the servicing and administering of the Serviced Intangible
Transition Property in accordance with the provisions hereof without
diminution of such obligation and liability by virtue of the appointment of
such subservicer and to the same extent and under the same terms and
conditions as if the Servicer alone were servicing and administering the
Serviced Intangible Transition Property. The fees and expenses of the
subservicer shall be as agreed between the
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Servicer and its subservicer from time to time, and none of the Issuer (or
its members or managers), the Bond Trustee or any Transition Bondholder
shall have any responsibility therefor.
SECTION 5.10. Remittances. (a) Subject to Section 5.07, the
Servicer shall remit all ITC Collections (from whatever source) and all
proceeds of other Collateral of such Issuer, if any, received by the
Servicer to the Bond Trustee under the Indenture, for deposit pursuant to
the Indenture, not later than the second Business Day after receipt
thereof.
(b) Notwithstanding the foregoing clause (a), (i) as long as West
Penn or any successor to West Penn's electric distribution business remains
the Servicer, (ii) no Servicer Default has occurred and is continuing and
(iii) (A) West Penn or such successor maintains a short-term rating of
"A-1" or better by Standard & Poor's, "P-1" or better by Moody's and, if
rated by Fitch IBCA, "F-1" by Fitch IBCA (and for five Business Days
following a reduction in any such rating) or (B) the Rating Agency
Condition shall have been satisfied with respect to all Rating Agencies
other than Moody's (to which prior written notice will be sent) (and any
conditions or limitations imposed by such Rating Agencies in connection
therewith are complied with), the Servicer need not make the daily
remittances required by such clause (a), but in lieu thereof, shall remit
all ITC
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Collections (from whatever source) and all proceeds of other Collateral of
such Issuer, if any, received by the Servicer during any Collection Period
to the Bond Trustee, for deposit pursuant to the Indenture, not later than
the Business Day immediately preceding the 25th day of each month.
SECTION 5.11. Servicer Advances. The Servicer shall make advances
of interest or principal on the Transition Bonds of any Series in the
manner and to the extent, if any, specified in any Annex to this Agreement
entered into in connection with the issuance of such Transition Bonds.
SECTION 5.12. Protection of Title. The Servicer shall execute and
file such filings, including filings with the PUC pursuant to the Statute,
and cause to be executed and filed such filings, all in such manner and in
such places as may be required by law fully to preserve, maintain, and
protect the interests of the Issuer in the Serviced Intangible Transition
Property, including all filings required under the Statute relating to the
transfer of the ownership or security interest in the Serviced Intangible
Transition Property by the Seller to the Issuer or any security interest
granted by the Issuer in the Serviced Intangible Transition Property. The
Servicer shall deliver (or cause to be delivered) to the Issuer file-
stamped copies of, or filing receipts for, any document
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filed as provided above, as soon as available following such
filing.
ARTICLE VI
Servicer Default
SECTION 6.01. Servicer Default. If any one of the following
events (a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to remit to the Bond Trustee
on behalf of the Issuer any required remittance that shall
continue unremedied for a period of three Business Days after
written notice of such failure is received by the Servicer from
the Issuer or Bond Trustee; or
(b) any failure by the Servicer or, so long as the
Transferor and the Servicer are the same Person, the Transferor,
as applicable, duly to observe or perform in any material respect
any other covenant or agreement of the Servicer or the
Transferor, as the case may be, set forth in this Agreement or
any other Basic Document to which it is a party, which failure
shall (i) materially and adversely affect the Intangible
Transition Property and (ii) continue unremedied for a period of
60 days after written notice of such failure shall have been
given to the Servicer or the Transferor, as the case may be, by
the Issuer or the Bond Trustee or after discovery of such failure
by an
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officer of the Servicer or the Transferor, as the case may be; or
(c) any representation or warranty made by the Servicer in
this Agreement shall prove to have been incorrect when made,
which has a material adverse effect on the Issuer or the
Transition Bondholders and which material adverse effect
continues unremedied for a period of 60 days after the date on
which written notice thereof shall have been given to the
Servicer by the Issuer or the Bond Trustee; or
(d) an Insolvency Event occurs with respect to the Servicer;
then, and in each and every case, so long as the Servicer Default shall not
have been remedied, the Bond Trustee, as assignee of the Issuer, with the
consent of Holders of a majority of the outstanding principal amount of the
Transition Bonds of all Series, by notice then given in writing to the
Servicer (a "Termination Notice") may terminate all the rights and
obligations (other than the indemnification obligations set forth in
Section 5.02 hereof and the obligation under Section 6.02 to continue
performing its functions as Servicer until a successor Servicer is
appointed) of the Servicer under this Agreement. In addition, upon a
Servicer Default described in Section 6.01(a), each of the following shall
be entitled to apply to the PUC for sequestration and payment of revenues
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arising with respect to the Serviced Intangible Transition Property: (i)
the Issuer or its assignees or (ii) pledgees or transferees, including
transferees under the Statute, of the Serviced Intangible Transition
Property. On or after the receipt by the Servicer of a Termination Notice,
all authority and power of the Servicer under this Agreement with respect
to the Issuer, whether with respect to the Serviced Intangible Transition
Property, the related Intangible Transition Charges or otherwise, shall,
upon appointment of a successor Servicer pursuant to Section 6.02, without
further action, pass to and be vested in such successor Servicer and,
without limitation, the Bond Trustee is hereby authorized and empowered to
execute and deliver, on behalf of the predecessor Servicer, as attorney-
in-fact or otherwise, any and all documents and other instruments, and to
do or accomplish all other acts or things necessary or appropriate to
effect the purposes of such Termination Notice, whether to complete the
transfer of the Intangible Transition Property Documentation and related
documents, or otherwise. The predecessor Servicer shall cooperate with the
successor Servicer, the Bond Trustee and the Issuer in effecting the
termination of the responsibilities and rights of the predecessor Servicer
under this Agreement, including the transfer to the successor Servicer for
administration by it of all cash amounts that shall at the time be held by
the predecessor
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Servicer for remittance, or shall thereafter be received by it with respect
to the Serviced Intangible Transition Property or the related Intangible
Transition Charges. As soon as practicable after receipt by the Servicer of
such Termination Notice, the Servicer shall deliver the Intangible
Transition Property Documentation to the successor Servicer. All reasonable
costs and expenses (including attorneys fees and expenses) incurred in
connection with transferring the Intangible Transition Property
Documentation to the successor Servicer and amending this Agreement to
reflect such succession as Servicer pursuant to this Section shall be paid
by the predecessor Servicer upon presentation of reasonable documentation
of such costs and expenses. Termination of West Penn as Servicer shall not
terminate West Penn's rights or obligations as Transferor under the
Transfer Agreement.
SECTION 6.02. Notice of Servicer Default. The Servicer shall
deliver to the Issuer, the Bond Trustee and each Rating Agency promptly
after having obtained knowledge thereof, but in no event later than five
Business Days thereafter, written notice in an Officers' Certificate of any
event or circumstance (such as a breach of any representation or warranty
made by the Servicer in this Agreement) which, with the giving of notice or
the passage of time, would become a Servicer Default under Section 6.01.
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SECTION 6.03. Waiver of Past Defaults. The Bond Trustee, with the
consent of Holders of the majority of the outstanding principal amount of
the Transition Bonds of all Series, may waive in writing any default by the
Servicer in the performance of its obligations hereunder and its
consequences, except a default in making any required remittances to the
Bond Trustee of ITC Collections from Serviced Intangible Transition
Property in accordance with Section 5.10 of this Agreement. Upon any such
waiver of a past default, such default shall cease to exist, and any
Servicer Default arising therefrom shall be deemed to have been remedied
for every purpose of this Agreement. No such waiver shall extend to any
subsequent or other default or impair any right consequent thereto.
SECTION 6.04. Appointment of Successor. (a) Upon the Servicer's
receipt of a Termination Notice, pursuant to Section 6.01 or the Servicer's
resignation in accordance with the terms of this Agreement, the predecessor
Servicer shall continue to perform its functions as Servicer under this
Agreement and shall be entitled to receive the requisite portion of the
Servicing Fees, until a successor Servicer shall have assumed in writing
the obligations of the Servicer hereunder as described below. In the event
of the Servicer's termination hereunder, the Bond Trustee, as assignee of
the Issuer, with the consent of Holders of a majority of the outstanding
principal amount of the
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Transition Bonds, shall appoint a successor Servicer, and the successor
Servicer shall accept its appointment by a written assumption in form
acceptable to the Issuer and the Bond Trustee. If, within 30 days after the
delivery of the Termination Notice, a new Servicer shall not have been
appointed and accepted such appointment, the Bond Trustee may petition the
PUC or a court of competent jurisdiction to appoint a successor Servicer
under this Agreement. A Person shall qualify as a successor Servicer only
if (i) such Person is permitted under PUC Regulations to perform the duties
of the Servicer pursuant to the Statute, the Qualified Rate Order and this
Agreement, (ii) the Rating Agency Condition shall have been satisfied with
respect to all Rating Agencies other than Moody's (and Moody's shall have
been furnished with written notice of such appointment prior to its
effectiveness) and (iii) such Person enters into a servicing agreement with
the Issuer having substantially the same provisions as this Agreement.
(b) Upon appointment, the successor Servicer shall be the
successor in all respects to the predecessor Servicer and shall be subject
to all the responsibilities, duties and liabilities arising thereafter
relating thereto placed on the predecessor Servicer and shall be entitled
to the Servicing Fees and all the rights granted to the prede cessor
Servicer by the terms and provisions of this Agreement.
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(c) The successor Servicer may not resign unless it is prohibited
from serving as such by law.
SECTION 6.05. Cooperation with Successor. The Servicer covenants
and agrees with the Issuer that it will, on an ongoing basis, cooperate
with the successor Servicer and provide whatever information is, and take
whatever actions are, reasonably necessary to assist the successor Servicer
in performing its obligations hereunder.
ARTICLE VII
Miscellaneous Provisions
SECTION 7.01. Amendment. This Agreement may be amended by the
Servicer and the Issuer, with the prior written consent of the Bond Trustee
and the satisfaction of the Rating Agency Condition (other than with
respect to Moody's); provided that the Issuer shall furnish to Moody's
prior to the execution of any such amendment or consent, written
notification of the substance thereof. Promptly after the execution of any
such amendment or consent, the Issuer shall deliver a copy thereof to each
of the Rating Agencies.
Prior to the execution of any amendment to this Agreement, the
Issuer and the Bond Trustee shall be entitled to receive and rely upon an
Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement and the Opinion of Counsel
referred to in Section 3.10. The Issuer and the Bond Trustee may, but
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shall not be obligated to, enter into any such amendment which affects
their own rights, duties or immunities under this Agreement or otherwise.
SECTION 7.02. Notices. All demands, notices and communications
upon or to the Servicer, the Issuer, the Bond Trustee or the Rating
Agencies under this Agreement shall be in writing, delivered personally,
via facsimile, reputable overnight courier or by first class mail, postage
prepaid, and shall be deemed to have been duly given upon receipt (a) in
the case of the Servicer, to West Penn Power Company, 000 Xxxxx Xxxx Xxxxx,
Xxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention of President, (b) in the case of
the Issuer or the Bond Trustee, at the address provided for notices or
communications to such Person in the Indenture, (c) in the case of Moody's,
to Xxxxx'x Investors Service, Inc., ABS Monitoring Department, 00 Xxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, (d) in the case of Standard & Poor's, to
Standard & Poor's Corporation, 00 Xxxxxxxx (00xx Xxxxx), Xxx Xxxx, Xxx Xxxx
00000, Attention of Asset Backed Surveillance Department, and (e) in the
case of Fitch IBCA, to Fitch IBCA, Inc., Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention of ABS Surveillance; or, as to each of the
foregoing, at such other address as shall be designated by written notice
to the other parties.
SECTION 7.03. Assignment. Notwithstanding anything to the
contrary contained herein, except as pro-
vided in Sections 5.03 and 5.04 and as provided in the provisions of this
Agreement concerning the resignation of the Servicer, this Agreement may not
be assigned by the Servicer.
SECTION 7.04. Limitations on Rights of Others. The provisions of
this Agreement are solely for the benefit of the Servicer, the Issuer
(including its managers and members) and the Bond Trustee, on behalf of
itself and the Transition Bondholders, and nothing in this Agreement,
whether express or implied, shall be construed to give to any other Person
any legal or equitable right, remedy or claim in any Collateral or under or
in respect of this Agreement or any covenants, conditions or provisions
contained herein.
SECTION 7.05. Severability. Any provision of this Agreement that
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
SECTION 7.06. Separate Counterparts. This Agreement may be
executed by the parties hereto in separate counterparts, each of which when
so executed and delivered
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shall be an original, but all such counterparts shall
together constitute but one and the same instrument.
SECTION 7.07. Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define
or limit any of the terms or provisions hereof. SECTION 7.08. Governing
Law. This Agreement shall be construed in accordance with the laws of the
State of New York, without reference to its conflict of law provisions, and
the obligations, rights and remedies of the parties hereunder shall be
determined in accordance with such laws.
SECTION 7.09. Assignment to Bond Trustee. The Servicer hereby
acknowledges and consents to the mortgage, pledge, assignment and grant of
a security interest by the Issuer to the Bond Trustee pursuant to the
Indenture for the benefit of the Transition Bondholders of all right, title
and interest of the Issuer in, to and under the Serviced Intangible
Transition Property owned by the Issuer and the proceeds thereof and the
assignment of any or all of the Issuer's rights hereunder to the Bond
Trustee. In no event shall the Bond Trustee have any liability for the
representations, warranties, covenants, agreements or other obligations of
the Issuer, hereunder or in any of the certificates, notices or agreements
delivered pursuant
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hereto, as to all of which recourse shall be had solely to
the assets of the Issuer.
SECTION 7.10. Nonpetition Covenants. Notwithstanding any prior
termination of this Agreement or the Indenture, but subject to the PUC's
rights to order the sequestration and payment of revenues arising with
respect to the Serviced Intangible Transition Property notwithstanding any
bankruptcy, reorganization or other insolvency proceedings with respect to
the debtor, pledgor or transferor of the Serviced Intangible Transition
Property pursuant to Section 2812(d)(3)(v) of the Statute, the Servicer
shall not, prior to the date which is one year and one day after the
termination of the Indenture, petition or otherwise invoke or, to the
fullest extent permitted by law, cause the Issuer to invoke the process of
any court or government authority for the purpose of commencing or
sustaining a case against the Issuer under the Federal or state bankruptcy,
insolvency or similar law or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Issuer or
any substantial part of the property of the Issuer, or ordering the winding
up or liquidation of the affairs of the Issuer.
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SECTION 7.11. Termination. This Agreement shall terminate when
all Transition Bonds issued by the Issuer have been retired, redeemed or
defeased in full.
SECTION 7.12. Limitation of Liability. It is expressly understood
and agreed by the parties hereto that this Agreement is executed and
delivered by Bankers Trust Company, not individually or personally but
solely as Bond Trustee for the benefit of the Transition Bondholders, in
the exercise of the powers and authority conferred and vested in it, and
nothing herein contained shall be construed as creating any liability on
Bankers Trust Company, individually or personally, to perform any covenant
either expressed or implied contained herein, all such liability, if any,
being expressly waived by the parties who are signatories to this Agreement
and by any Person claiming by, through or under such parties; provided,
however, that this provision shall not protect Bankers Trust Company
against any liability that would otherwise be imposed by reason of willful
misconduct, bad faith or gross negligence in the performance of duties or
by reason of reckless disregard of obligations or duties under this
Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed by their respective officers as of the day and year
first above written.
WEST PENN FUNDING LLC,
by
------------------------------
Title:
WEST PENN POWER COMPANY, Servicer,
by
------------------------------
Title:
Acknowledged and Accepted:
BANKERS TRUST COMPANY, not in its
individual capacity but solely as Bond
Trustee on behalf of the Holders of
Transition Bonds issued by the Issuer,
by
------------------------------
Title:
262
ANNEX 1
to
SERVICING AGREEMENT
The Servicer agrees to comply with the following with respect to West Penn
Funding LLC (the "Issuer"):
SECTION 1. Definitions. (a) Capitalized terms used herein and not
otherwise defined shall have the meanings set forth in the Servicing
Agreement dated as of November 16, 1999 (the "Servicing Agreement"),
between the Issuer and West Penn Power Company, as Servicer.
(b) Whenever used in this Annex 1, the following words and
phrases shall have the following meanings:
"Adjustment Date" means, with respect to any Series of Transition
Bonds, such date or dates specified as such in the Series Supplement
therefor.
"Adjustment Request" means an application filed by the Servicer
with the PUC for revised Intangible Transition Charges pursuant to Section
5(b) of this Annex.
"Available Reserve Amount" means, as of any date, the amount on
deposit in the Reserve Subaccount.
"Bond Trustee" has the meaning specified in the Indenture.
"Calculation Date" means, with respect to any Series of
Transition Bonds, such date or dates specified as such in the Series
Supplement therefor.
263
"Calculated Overcollateralization Level" means, with respect to
any Series of Transition Bonds, the amount specified as such in the Series
Supplement therefor.
"Capital Subaccount" has the meaning set forth in the Indenture.
"Class" has the meaning specified in the Indenture.
"Expected Amortization Percentage" means, with respect to any
Regulatory Year, the percentage equivalent of a fraction, the numerator of
which is the aggregate amount of Transition Bonds of all Series to be
amortized during such Regulatory Year as set forth in Expected Amortization
Schedules therefor and the denominator of which is the Projected Transition
Bond Balance on the first day of such Regulatory Year.
"Expected Amortization Schedule" means, with respect to any
Series of Transition Bonds, the expected amortization schedule for
principal thereof, as specified in the Series Supplement therefor.
"Expected Final Payment Date" means, with respect to any Series
or Class of Transition Bonds, the expected final payment date therefor, as
specified in the Series Supplement therefor.
"Holder" or "Transition Bondholder" has the meaning set forth in
the Indenture.
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"Indenture" means the Indenture dated as of November 16, 1999,
between the Issuer and the Bond Trustee, as amended and supplemented from
time to time, including any Series Supplement.
"Overcollateralization Subaccount" has the meaning set forth in
the Indenture.
"Payment Date" has the meaning specified in the Indenture and the
applicable Series Supplement.
"Projected Transition Bond Balance" has the meaning specified in
the Indenture.
"Regulatory Period" means with respect to any Series (i) the
period from the Series Issuance Date therefor through and including the
first Adjustment Date (the "Initial Regulatory Period") and (ii) following
the Initial Regulatory Period until December 1, 2008, each period from and
including each Adjustment Date through but excluding the following
Adjustment Date.
"Required Capital Amount" means, with respect to any Series of
Transition Bonds, the amount specified as such in the Series Supplement
therefor.
"Reserve Subaccount" has the meaning set forth in the Indenture.
"Sale Agreement" has the meaning set forth in the Indenture.
"Schedule Revision Date" has the meaning set forth in the
Indenture.
265
"Series" has the meaning specified in the Indenture.
"Series Issuance Date" has the meaning specified in the Indenture
and the applicable Series Supplement.
"Series Supplement" has the meaning specified in the Indenture.
"Transferred Intangible Transition Property" has the meaning
specified in the Sale Agreement.
"Transition Bonds" has the meaning specified in the Indenture.
"Transition Bond Balance" has the meaning specified in the
Indenture.
SECTION 2. Adjustment Date Statements. For each Adjustment Date,
the Servicer will provide to the Issuer and the Bond Trustee a statement
indicating (i) the Transition Bond Balance and the Projected Transition
Bond Balance for each Series as of the immediately preceding Payment Date,
(ii) the amount on deposit in the Overcollateralization Subaccount and the
Calculated Overcollateralization Level as of the immediately preceding
Payment Date, (iii) the amount on deposit in the Capital Subaccount and the
Required Capital Amount as of the immediately preceding Payment Date, (iv)
the Projected Transition Bond Balance for each Payment Date prior to the
next Adjustment Date and the Servicer's projection of the Transition Bond
Balance as of each Payment Date prior to the next Adjustment Date, (v) the
Calculated
266
Overcollateralization Level for each Payment Date prior to the next
Adjustment Date and the Servicer's projection of the amount on deposit in
the Overcollateralization Subaccount as of each Payment Date prior to the
next Adjustment Date, (vi) the Required Capital Amount for each Payment
Date prior to the next Adjustment Date and the Servicer's projections of
the amount on deposit in the Capital Subaccount as of each Payment Date
prior to the next Adjustment Date and (vii) the projected ITC Collections
from the Payment Date immediately preceding the Adjustment Date through the
next Adjustment Date.
SECTION 3. Remittance Date Statements. On or before each
Remittance Date, the Servicer will prepare and furnish to the Issuer and
the Bond Trustee a statement setting forth the aggregate amount remitted or
to be remitted by the Servicer to the Bond Trustee for deposit on such
Remittance Date pursuant to Section 5.10 of the Servicing Agreement and the
Indenture.
SECTION 4. Payment Date Statements. At least three Business Days
before each Payment Date for each Series of Transition Bonds, the Servicer
will prepare and furnish to the Issuer and the Bond Trustee a statement
setting forth the amounts to be paid to Holders of Transition Bonds of such
Series pursuant to Section 8.02(d) of the Indenture, as well as all other
amounts to be paid pursuant to Section 8.02(d) of the Indenture.
267
SECTION 5. Intangible Transition Charges Adjustments. (a) Prior
to each Calculation Date, the Servicer shall calculate (i) the Transition
Bond Balance as of the Payment Date immediately preceding such Calculation
Date (a written copy of which shall be delivered by the Servicer to the
Bond Trustee within five days following such Calculation Date) and (ii) the
revised Intangible Transition Charges with respect to the Transferred
Intangible Transition Property for the then-current Regulatory Period and
any subsequent Regulatory Periods until a Payment Date occurs, such that
the Servicer projects that ITC Collections will be sufficient so that (w)
the outstanding principal balance of each outstanding Series will equal the
amount provided for in the Expected Amortization Schedule therefor, (x) the
amount on deposit in the Overcollateralization Subaccount will equal the
Calculated Overcollateralization Level, (y) the amount on deposit in the
Capital Subaccount will equal the Required Capital Amount and (z) the
amount on deposit in the Reserve Subaccount will equal zero, in each case
by the Payment Date immediately preceding the next Adjustment Date or,
during the period when Adjustment Dates occur monthly, the 25th day of the
calendar month in which the next Adjustment Date occurs, in each case
taking into account the Available Reserve Amount.
(b) In order to obtain approval of each annual adjustment as
expeditiously as possible, on October 1 of
268
each year the Servicer will file an Adjustment Request with the PUC which
will include a schedule of actual ITC Collections for the nine months ended
August 31, together with an estimate of ITC Collections for the three
months ending on the immediately following November 30, and the estimated
Intangible Transition Charges for the following year. On December 15, the
Servicer will file with the PUC a schedule of actual ITC Collections as of
November 30, replacing the estimates submitted on October 1, and the actual
Intangible Transition Charges for the following year. Interim adjustments
beginning twelve months before the Expected Final Payment Date of the last
Series or Class of the Transition Bonds will not reflect updated
assumptions of projected future usage of electricity by customers, expected
delinquencies and write-offs and future expenses relating to Intangible
Transition Property and the Transition Bonds. Beginning twelve months
before the Expected Final Payment Date of the last Series or Class of the
Transition Bonds, the PUC will permit each Adjustment Request to become
effective within 15 days after filing. The adjustment process will continue
until the earlier of the final payment of all Series of Transition Bonds
and December 31, 2008.
(c) The Servicer shall (i) take all reasonable actions and make
all reasonable efforts in order to effectuate such revision to such
Intangible Transition Charges and (ii) promptly send to the Bond Trustee
copies of
269
all material notices and documents relating to such .
SECTION 6. Servicer Advances. The Servicer shall not make any
advances of interest or principal on the Transition Bonds of any Series.
SECTION 7. Schedule Revision Date Schedules. Prior to each
Schedule Revision Date, the Servicer shall deliver to the Issuer
replacement Schedules A and replacement Schedules B to each Series
Supplement to which such Schedule Revision Date applies, adjusted to
reflect the event giving rise to such Schedule Revision Date and setting
forth the Calculated Overcollateralization Level and the Expected
Amortization Schedule for each Payment Date applicable thereto; provided,
however, that no such replacement Schedule A or Schedule B shall be
required with respect to a Series if the event giving rise to such Schedule
Revision Date is a redemption of the Transition Bonds of such Series in
whole.
270
