EXHIBIT 4.3
FORM OF INDENTURE
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COMED TRANSITIONAL FUNDING TRUST,
Note Issuer,
and
XXXXXX TRUST AND SAVINGS BANK,
Indenture Trustee
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INDENTURE
Dated as of [ ], 1998
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Issuable in Series
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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. . . . . . . . . . . . . . . . . . . 4
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 . . . . . . . . . . . . . . . . . . . . . . .18
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. . . . . . . . . . . . . . . . . . . . . . . . .23
SECTION 3.05. Protection of Note Collateral. . . . . . . . . . . . . . .23
SECTION 3.06. Opinions as to Note Collateral . . . . . . . . . . . . . .24
SECTION 3.07. Performance of Obligations; Servicing; SEC Filings . . . .25
SECTION 3.08. Certain Negative Covenants . . . . . . . . . . . . . . . .27
SECTION 3.09. Annual Statement as to Compliance. . . . . . . . . . . . .27
SECTION 3.10. Note Issuer May Consolidate, etc., Only on Certain Terms .28
SECTION 3.11. Successor or Transferee. . . . . . . . . . . . . . . . . .30
SECTION 3.12. No Other Business. . . . . . . . . . . . . . . . . . . . .30
SECTION 3.13. No Borrowing . . . . . . . . . . . . . . . . . . . . . . .30
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. . . . . . . . . . . . . . . . . . . .31
SECTION 3.18. Notice of Events of Default. . . . . . . . . . . . . . . .31
SECTION 3.19. Further Instruments and Acts . . . . . . . . . . . . . . .31
SECTION 3.20. Purchase of Subsequent Intangible Transition Property. . .31
ARTICLE IV
Satisfaction and Discharge; Defeasance. . . . . . . . . . . . . . . . . .33
SECTION 4.01. Satisfaction and Discharge of Indenture; Defeasance. . . .33
SECTION 4.02. Conditions to Defeasance . . . . . . . . . . . . . . . . .35
SECTION 4.03. Application of Trust Money . . . . . . . . . . . . . . . .36
SECTION 4.04. Repayment of Moneys Held by Paying Agent . . . . . . . . .36
ARTICLE V
Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36
SECTION 5.01. Events of Default. . . . . . . . . . . . . . . . . . . . .36
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment . . . .38
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement
by Indenture Trustee . . . . . . . . . . . . . . . . . . .39
SECTION 5.04. Remedies; Priorities . . . . . . . . . . . . . . . . . . .40
SECTION 5.05. Optional Preservation of the Note Collateral . . . . . . .42
SECTION 5.06. Limitation of Suits. . . . . . . . . . . . . . . . . . . .42
SECTION 5.07. Unconditional Rights of Holders To Receive Principal,
Premium, if any, and Interest. . . . . . . . . . . . . . .43
SECTION 5.08. Restoration of Rights and Remedies . . . . . . . . . . . .43
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. . . . . . . . . . . . . . . . . . .45
SECTION 5.14. Waiver of Stay or Extension Laws . . . . . . . . . . . . .45
SECTION 5.15. Action on Notes. . . . . . . . . . . . . . . . . . . . . .45
SECTION 5.16. Performance and Enforcement of Certain Obligations . . . .45
ARTICLE VI
The Indenture Trustee . . . . . . . . . . . . . . . . . . . . . . . . . .46
SECTION 6.01. Duties of Indenture Trustee. . . . . . . . . . . . . . . .46
SECTION 6.02. Rights of Indenture Trustee. . . . . . . . . . . . . . . .47
SECTION 6.03. Individual Rights of Indenture Trustee . . . . . . . . . .48
ii
SECTION 6.04. Indenture Trustee's Disclaimer . . . . . . . . . . . . . .48
SECTION 6.05. Notice of Defaults . . . . . . . . . . . . . . . . . . . .48
SECTION 6.06. Reports by Indenture Trustee to Holders. . . . . . . . . .49
SECTION 6.07. Compensation and Indemnity . . . . . . . . . . . . . . . .49
SECTION 6.08. Replacement of Indenture Trustee . . . . . . . . . . . . .50
SECTION 6.09. Successor Indenture Trustee by Merger. . . . . . . . . . .51
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. . .53
SECTION 6.13. Representations and Warranties of Indenture Trustee. . . .53
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 . . . . . . . . . . . . . . . . . .54
SECTION 7.04. Reports by Indenture Trustee . . . . . . . . . . . . . . .54
ARTICLE VIII
Accounts, Disbursements and Releases. . . . . . . . . . . . . . . . . . .55
SECTION 8.01. Collection of Money. . . . . . . . . . . . . . . . . . . .55
SECTION 8.02. Collection Account . . . . . . . . . . . . . . . . . . . .55
SECTION 8.03. General Provisions Regarding the Collection Account. . . .58
SECTION 8.04. Release of Note Collateral . . . . . . . . . . . . . . . .59
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. . . . . . .64
ARTICLE X
Redemption of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . .64
SECTION 10.01. Optional Redemption by Note Issuer. . . . . . . . . . . .64
SECTION 10.02. Form of Optional Redemption Notice. . . . . . . . . . . .64
SECTION 10.03. Notes Payable on Optional Redemption Date . . . . . . . .65
ARTICLE XI
Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .65
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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 . . . . . . . . . . . . . . . . . . . . .68
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 . . . . . . . . . . . .70
SECTION 11.07. Effect of Headings and Table of Contents. . . . . . . . .70
SECTION 11.08. Successors and Assigns. . . . . . . . . . . . . . . . . .70
SECTION 11.09. Separability. . . . . . . . . . . . . . . . . . . . . . .70
SECTION 11.10. Benefits of Indenture . . . . . . . . . . . . . . . . . .70
SECTION 11.11. Legal Holidays. . . . . . . . . . . . . . . . . . . . . .70
SECTION 11.12. GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . .70
SECTION 11.13. Counterparts. . . . . . . . . . . . . . . . . . . . . . .70
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-1 -- Form of Sale Agreement (See Exhibit 10.1 to Registration
Statement)
EXHIBIT A-2 -- Form of Servicing Agreement (See Exhibit 10.3 to Registration
Statement)
EXHIBIT B -- Form of Notes
EXHIBIT C -- Form of Trustee's Issuance Certificate (*to be filed by
amendment)
EXHIBIT D -- Form of Series Supplement
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CROSS REFERENCE TABLE
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TIA SECTION INDENTURE SECTION
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310 (a)(1) 6.11
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(a)(2) 6.11
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(a)(3) 6.10
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(a)(4) N.A.
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(a)(5) 6.11
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(b) 6.11
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(c) N.A.
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311 (a) 6.12
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(b) 6.12
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(c) N.A.
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312 (a) 7.01, 7.02
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(b) 7.02
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(c) 7.02
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313 (a) 7.04
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(b)(1) 7.04
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(b)(2) 7.04
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(c) 7.04
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(d) 7.04
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314 (a) 7.03(a), 3.09
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(b) 3.06
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(c)(1) 2.10,4.01,11.01(a)
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(c)(2) 2.10,4.01,11.01(a)
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(c)(3) 2.10,4.01,11.01(a)
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(d) 2.10, 11.01(b)
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(e) 11.01(a)
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(f) 11.01(a)
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315 (a) 6.01(b)
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(b) 6.05
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(c) 6.01 (a)
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(d) 6.02, 6.01(c)
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(e) 5.13
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316 (a)last
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sentence Appendix A "Outstanding"
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(a)(1)(A) 5.11
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(a)(1)(B) 5.12
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(a)(2) Omitted
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(b) 5.07
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(c) Appendix a "Record Date"
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317 (a)(1) 5.03(b)
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(a)(2) 5.03(c)
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(b) 3.03
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318 (a) 11.07
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N.A. means Not Applicable.
Note: This cross reference table shall not, for any purpose, be deemed to be
part of this Indenture.
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INDENTURE dated as of [ ], 1998, between COMED TRANSITIONAL FUNDING
TRUST, a Delaware business trust (the "Note Issuer"), and Xxxxxx Trust and
Savings Bank, 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 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 Intangible Transition Property and
the other Note Collateral. If and to the extent that such proceeds of
Intangible 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 of the Notes 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 Note
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 in the property hereinafter described (hereinafter referred to as the
"NOTE COLLATERAL"), to wit:
1
GRANTING CLAUSE
The Note Issuer hereby Grants to the Indenture Trustee at 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 Intangible Transition Property created under and
pursuant to the 1998 Funding Order, and transferred by the Grantee 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 IFCs authorized in the 1998 Funding Order and
any tariffs filed pursuant thereto and any Allocable IFC Revenue Amounts), (b)
all Intangible Transition Property created under and pursuant to any Subsequent
Funding Order , and transferred by the Grantee to the Note Issuer pursuant to a
Subsequent Sale Agreement (including, to the fullest extent permitted by law,
all revenues, collections, claims, rights, payments, money or proceeds of or
arising from the IFCs authorized in such Subsequent Funding Order and any
tariffs filed pursuant thereto), (c) the Grant Agreement, the Sale Agreement and
all property and interests in property transferred under the Sale Agreement, (d)
each Subsequent Grant Agreement, Subsequent Sale Agreement and all property and
interests in property transferred under any Subsequent Sale Agreement, (e) the
Servicing Agreement, (f) the Collection Account, all subaccounts thereof and all
amounts of cash or investment property on deposit therein or credited thereto
from time to time, (g) any interest rate exchange agreement which is executed in
connection with the issuance of Floating Rate Notes, (h) all rights to compel
the Servicer to file for and obtain adjustments to the IFCs in accordance with
Section 18-104(d) of the Funding Law, the 1998 Funding Order or any Subsequent
Funding Order or any Tariff filed in connection therewith, (i) all present and
future claims, demands, causes and chooses 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) the cash contributed to the Note Issuer by the
Grantee which is not held in the Capital Subaccount, including cash that has
been released to the Grantee or as it directs pursuant to Section 8.02(d)
following retirement of a Series of Notes, (ii) net investment earnings which
have been released to the Note Issuer pursuant to Section 8.02(d), (iii) the
Overcollateralization Amount with respect to a Series of Notes that has been
released to the Grantee or as it directs pursuant to Section 8.02(d), following
retirement of such Series of Notes and (iv) 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 (iv) above shall not be subject to Section 3.18.
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 Illinois law, the
provisions of the UCC are applicable hereto.
2
The Indenture Trustee, as trustee on behalf of the Holders,
acknowledges such Grant and accepts the trusts under this Indenture in
accordance with the provisions of this 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;
3
(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 B, 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 Exhibit B 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 "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
4
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 Maturity 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;
5
(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, 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
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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
upon a certificate executed on behalf of the Note Registrar by a Responsible
Officer thereof as to the names and addresses of the Holders of the Notes 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 Holder's attorney duly authorized in
writing, with such signature guaranteed by an institution which is a
7
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, (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, in the absence of notice to the Note Issuer, the Note
Registrar or the Indenture Trustee that such Note has been acquired by a
protected purchaser, the Note Issuer shall execute and, upon its 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.
8
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 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 by the Note Issuer 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 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 hereof.
9
(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. 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 five
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 limited as provided in Section 3.08.
10
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. The Funding Order related to such Series shall
be in full force and effect and be Final.
(3) OPINIONS. (a) An Opinion of Counsel that the applicable Funding
Order is in full force and effect and 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,
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. A certificate of a Responsible Officer
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 shall be 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 hereof.
(5) THE NOTE COLLATERAL. The Note Issuer shall have made or caused
to be made all filings with the ICC pursuant to the Funding Order and the
Funding Law and all
11
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 THE GRANTEE. (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 Funding
Order 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 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 hereof;
(iv) to the effect that attached thereto are duly executed,
true and complete copies of the Grant Agreement and the Sale Agreement
or Subsequent Grant Agreement and Subsequent Sale Agreement, as
applicable, and the Servicing Agreement; and
(v) stating that all filings with the ICC pursuant to the
Funding Law and the Funding Order and all UCC financing statements
with respect to the Note Collateral which are required to be filed by
the terms of the Funding Order, the Funding Law, the Grant Agreement
and the Sale Agreement or Subsequent Grant Agreement and Subsequent
Sale Agreement, as applicable, the Servicing Agreement and this
Indenture have been filed as required.
12
(b) An Officer's Certificate from the Grantee, dated as of the Series
Issuance Date, to the effect that, in the case of the Intangible Transition
Property, immediately prior to the conveyance thereof to the Note Issuer
pursuant to the Sale Agreement or the Subsequent Sale Agreement, as
applicable:
(i) the Grantee was the owner of such Intangible Transition
Property, free and clear of any Lien; the Grantee had not assigned any
interest or participation in such Intangible Transition Property and
the proceeds thereof other than to the Note Issuer pursuant to the
Sale Agreement or Subsequent Sale Agreement, as applicable; the
Grantee has the power and right to convey such Intangible Transition
Property and the proceeds thereof to the Note Issuer; and the Grantee,
subject to the terms of the Sale Agreement or the Subsequent Sale
Agreement, as applicable, has validly conveyed to the Note Issuer all
of its right, title and interest in and to such Intangible Transition
Property and the proceeds thereof, free and clear of any lien,
mortgage, pledge, charge, security interest, adverse claim or other
encumbrance;
(ii) the attached copy of the Funding Order creating such
Intangible Transition Property is true and correct; and
(7) OPINION OF TAX COUNSEL. ComEd shall have delivered to the
Grantee, the Note Issuer, the Delaware Trustee and the Indenture Trustee an
opinion of independent tax counsel and/or a ruling from the Internal
Revenue Service (as selected by, and in form and substance reasonably
satisfactory to, ComEd) to the effect that, for federal income tax
purposes, (i) such issuance of the Notes, and transfer of the Note proceeds
to ComEd, will not result in gross income to the Grantee, the Note Issuer
or ComEd and (ii) such issuance will not materially adversely affect the
characterization of the then Outstanding Notes as obligations of ComEd.
(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 Grantee and 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;
13
(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 power and authority to execute and
deliver the Trustee's Issuance Certificate, the Series Supplement, if
any, and this Indenture and to issue the Notes, and each of the
Trustee's Issuance Certificate, the Series Supplement, if any, and
this Indenture, and the Notes have been duly authorized and the Note
Issuer is duly formed and is validly existing in good standing under
the laws of the jurisdiction of its organization;
(d) the Trustee's Issuance Certificate, the Series Supplement,
if any, and the Indenture have been duly authorized, 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, entitled to the benefits of the Indenture and any related
Trustee's Issuance Certificate or Series Supplement;
(f) this Indenture, the Grant Agreement or the Subsequent
Grant Agreement as applicable, the Sale Agreement or the Subsequent
Sale Agreement as applicable, 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 Funding Law, the Funding Order (A)
creates Intangible Transition Property in an amount not less than the
amount, if any, specified in the Trustee's Issuance Certificate or
Series Supplement, if any, which was vested by the Funding Order in
the Grantee; (B) approves and authorizes the sale, transfer and
assignment by the Grantee of such Intangible 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 Transitional
14
Funding Instruments within the meaning of Section 18-102 of the
Funding Law; and
(h) (A) at the time of the issuance of such Notes the lien of
this Indenture in favor of the Holders in the Intangible Transition
Property attaches automatically; (B) such lien has been perfected in
accordance with Section 18-107(c) of the Funding Law and in accordance
with the Funding Order; (C) such lien is valid and enforceable against
ComEd, the Servicer, the Grantee, 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 Intangible
Transition Property;
(i) with respect to the Note Collateral other than the
Intangible 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 security interest in the rights of the Note Issuer
in such Note Collateral, and such security interest is enforceable
against ComEd, the Servicer, the Grantee, the Note Issuer and all
third parties, (B) such security interest is perfected, and (C) such
perfected security interest 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) the Note Issuer is not now and, assuming that the Note
Issuer uses the proceeds of the sale of the Notes for the purpose of
acquiring Intangible Transition Property in accordance with the terms
of the Sale Agreement or the Subsequent Sale Agreement, as applicable,
following the sale of the Notes to the underwriter, underwriters,
placement agent or agents or similar Person, neither the Note Issuer
nor the Grantee will be required to be registered under the Investment
Company Act of 1940, as amended;
(l) the Grant Agreement or Subsequent Grant Agreement, as
applicable, is a valid and binding agreement of ComEd enforceable
against ComEd in accordance with its terms and the Sale Agreement or
Subsequent Sale Agreement as applicable, is a valid and binding
agreement of the Grantee enforceable against the Grantee 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
15
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 Funding Order and upon the delivery of the
fully executed Sale Agreement or Subsequent Sale Agreement as
applicable to the Note Issuer and the payment of the purchase price of
the Intangible Transition Property by the Note Issuer to the Grantee
pursuant to the Sale Agreement or Subsequent Sale Agreement as
applicable, (i) the transfer of the Intangible Transition Property by
the Grantee to the Note Issuer conveys the Grantee's right, title and
interest in the Intangible Transition Property to the Note Issuer and
will be treated under Illinois state law as an absolute transfer of
all of the Grantee's right, title, and interest in the Intangible
Transition Property, other than for federal and state income and
franchise tax purposes, (ii) such transfer of the Intangible
Transition Property is perfected, (iii) such transfer has priority
over any other assignment of the Intangible Transition Property and
(iv) the Intangible 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.
[(8) 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) hereof, 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 IFCs or, if applicable, the most recent
revised IFCs, 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 IFCs are sufficient to pay (a) Operating Expenses when
incurred, plus (b) the Overcollateralization Amount, 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.]
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(9) 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.
(10) 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.
(11) 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
17
(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 Note 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 Administrator 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 Administrator is unable to locate a qualified
successor Clearing Agency, (ii) the Administrator, 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, the Administrator, 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, the
Administrator shall notify the Clearing Agency, the Indenture Trustee and all
such Holders of such Series 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 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 protected in relying on, such instructions. Upon the issuance of
Definitive Notes of any Series, all
18
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 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 upon receipt of an Issuer Request
accompanied by an Officer's Certificate, an Opinion of Counsel and Independent
Certificates in accordance with TIA Sections 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 the Grantee or the Indenture Trustee, such proposed transferee
executes and delivers a certificate, substantially in the form attached hereto
as EXHIBIT ___ or otherwise 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 the registration requirements of the
Securities Act, in which case (A) the Indenture Trustee shall require that both
the prospective transferor and the
19
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. Neither the Grantee,
the Note Issuer, nor the Indenture Trustee 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, 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 letter of undertaking in the form
set forth in EXHIBIT __.
(c) Unless otherwise provided in the related Trustee's Issuance
Certificate or Series Supplement, 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 the Notes qualify under applicable tax
law as indebtedness of ComEd secured by the Note Collateral and (ii) agree to
treat the Notes as indebtedness secured by the Note Collateral for the purpose
of federal income, state and local income and franchise taxes, and any other
taxes imposed upon, measured by or based upon gross or net income, unless
otherwise required by appropriate taxing authorities.
SECTION 2.19. STATE PLEDGE. At the Closing Date, under the laws of
the State of Illinois and the United States in effect on the Closing Date, the
State of Illinois has agreed with the Holders, pursuant to Section 18-105(b) of
the Funding Law, as follows:
"(b) The State pledges to and agrees with the holders of any transitional
funding instruments who may enter into contracts with an electric utility,
grantee, assignee or issuer pursuant to this Article XVIII that the State
will not in any way limit, alter, impair or reduce the value of intangible
transition property created by, or instrument funding charges approved by,
a transitional funding order so as to impair the terms of any contract made
by such electric utility, grantee, assignee or issuer with such holders or
in any way impair the rights and remedies of such holders until the
pertinent grantee instruments or, if the related transitional funding order
does not provide for the issuance of grantee
20
instruments, the transitional funding instruments and interest, premium and
other fees, costs and charges related thereto, as the case may be, are
fully paid and discharged. Electric utilities, grantees and issuers are
authorized to include these pledges and agreements of the State in any
contract with the holders of transitional funding instruments or with any
assignees pursuant to this Article XVIII and any assignees are similarly
authorized to include these pledges and agreements of the State in any
contract with any issuer, holder or any other assignee. Nothing in this
Article XVIII shall preclude the State of Illinois from requiring
adjustments as may otherwise be allowed by law to the electric utility's
base rates, transition charges, delivery services charges, or other charges
for tariffed services, so long as any such adjustment does not directly
affect or impair any instrument funding charges previously authorized by a
transitional funding order issued by the [ICC]."
As a result of the foregoing pledge, the State of Illinois may not, except as
provided in the succeeding sentence, in any way limit, alter, impair or reduce
the value of the ITP or the IFCs in a manner substantially impairing this
Indenture or the rights and remedies of the Holders, until the Notes, together
with interest thereon, are fully paid and discharged. Notwithstanding the
immediately preceding sentence, the State of Illinois 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.
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 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, and the Note Issuer hereby appoints the Indenture
Trustee as its agent to receive all such surrenders.
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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 notice of any default by the Note
Issuer of which it has actual knowledge (or any other obligor upon the
Notes) 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 it 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.
22
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
11.18, 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 Chicago, 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 business trust 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 ICC pursuant to the Funding Order or to the Funding 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;
23
(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 Funding Order, any Tariff, the
Intangible Transition Property or any proceeding relating thereto and
institute any action or proceeding necessary to compel performance by the
ICC or the State of Illinois of any of its obligations or duties under the
Funding Law, the State Pledge, or any Funding 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 ICC, 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.
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 ICC pursuant to the Funding Law and the applicable
Funding 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 _________, 1999, 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 ICC pursuant to the Funding Law
and the Funding Order and any financing statements and continuation statements
as is necessary to maintain the lien and security interest 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 and security
interest. 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 ICC, financing statements and continuation statements that will, in the
opinion of such counsel, be required to maintain the lien and security interest
created by this Indenture until [September 30] in the following calendar year.
24
(c) Prior to the effectiveness of any Subsequent Sale Agreement or
any amendment to any 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 ICC pursuant to the
Funding Law, or the Funding 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 Intangible 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, any
Subsequent Sale Agreement related to the applicable Note Collateral, the
Servicing Agreement, the Administration 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 and the
Administrator 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 ICC
pursuant to the Funding Law or the Funding Order, all UCC financing statements
and continuation statements required to be filed by it by the terms of this
Indenture, any 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 Intangible
Transition Property or the IFCs, the Note Issuer shall take all reasonable steps
available to it to remedy such failure.
25
(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 Grantee shall appoint a
successor Servicer (the "Successor Servicer") with the Note Issuer's prior
written consent thereto (which consent shall not be unreasonably withheld), and
such Successor Servicer shall accept its appointment by a written assumption in
a form acceptable to the Grantee, 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
new Servicer, the Indenture Trustee may petition the ICC or a court of competent
jurisdiction to appoint a Successor Servicer. In connection with any such
appointment, the Grantee may make such arrangements for the compensation of such
successor 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 Grantee, 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 ComEd, the Grantee or the Servicer under the Grant Agreement, any
Subsequent Grant Agreement, the Sale Agreement any Subsequent 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, or shall cause the Administrator to,
file with the SEC such periodic reports, if any, as are required from time to
time under Section 13 of the Exchange Act.
26
(i) The Note Issuer shall make all filings required under the Funding
Law relating to the transfer of the ownership or security interest in the
Intangible Transition Property other than those required to be made by the
Grantee pursuant to the Basic Documents.
SECTION 3.08. CERTAIN NEGATIVE COVENANTS.
(a) The Note Issuer shall not issue Notes in an aggregate initial
Outstanding Amount (i) during the twelve-month period beginning on August 1,
1998 in excess of $3,400,000,000; and (ii) on any date from and after July 31,
1999, in excess of $6,800,000,000, less the aggregate initial Outstanding Amount
of any Notes issued on or prior to July 31, 1999.
(b) 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; 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
27
year (commencing with _________), 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] and of performance under this
Indenture has been made under such Responsible Officer's supervision; 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,
including all obligations of the Note Issuer, hereunder or under the Notes,
with respect to the payment of principal of, and premium, if any, and
interest on all Notes, 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) ComEd shall have delivered to the Grantee, the Note Issuer, the
Delaware Trustee and the Indenture Trustee an opinion of independent tax
counsel (as selected by, and in form and substance reasonably satisfactory
to, ComEd, 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 ComEd, the Grantee,
the Note Issuer, the Delaware Trustee, 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 shall have been taken; and
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(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,
including all obligations of the Note Issuer, hereunder or under the Notes,
with respect to the payment of principal of, and premium, if any, and
interest on all Notes, 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 of
the Notes, (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) ComEd shall have delivered to the Grantee, the Note Issuer, the
Delaware Trustee and the Indenture Trustee an opinion of independent tax
counsel (as selected by, and in form and substance reasonably satisfactory
to, ComEd, 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 ComEd, the Grantee, the Note
Issuer, the Delaware Trustee, the Indenture Trustee or the then existing
Holders;
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(v) any action as is necessary to maintain the lien and security
interest created by this Indenture pursuant to the Funding Order or the
Funding 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 and the Grantee 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 and the
Grantee with respect to the Notes and the Intangible 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 and
the Grantee are 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
Intangible Transition Property and the other Note Collateral and the issuance of
the Notes in the manner contemplated by the Funding 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.
SECTION 3.14. SERVICER'S OBLIGATIONS. The Note Issuer shall enforce
the Servicer's compliance with 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, any Subsequent Sale
Agreement, the Servicing Agreement or this Indenture, the Note Issuer shall not
make any loan or advance or credit to, or
30
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
Intangible Transition Property from the Grantee on each Series Issuance Date and
other than expenditures 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 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 the Grantee or the
Servicer of its obligations under the Sale Agreement, any Subsequent 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 INTANGIBLE TRANSITION PROPERTY.
(a) The Note Issuer may from time to time purchase Subsequent Transition
Property from the Grantee pursuant to a Subsequent Sale Agreement, subject to
the conditions specified in paragraph (b) below.
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(b) The Note Issuer shall be permitted to purchase from the Grantee
Subsequent Transition Property and the proceeds thereof only upon the
satisfaction of each of the following conditions on or prior to the related
Subsequent Sale Date:
(i) the Grantee shall have provided the Note Issuer, the Indenture
Trustee and the Rating Agencies with written notice, which shall be given
not later than 10 days prior to the related Subsequent Sale Date,
specifying the Subsequent Sale Date for such Subsequent Intangible
Transition Property and the aggregate amount of the IFCs 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 Intangible Transition Property then being conveyed to the Note
Issuer;
(ii) ComEd, the Grantee and the Note Issuer shall have delivered to
the Indenture Trustee a duly executed Subsequent Grant Agreement in
substantially the form of the Grant Agreement and a duly executed
Subsequent Sale Agreement in substantially the form of the Sale Agreement;
(iii) as of such Subsequent Sale Date, the Grantee was not insolvent
and will not have been made insolvent by such transfer and the Grantee is
not aware of any pending insolvency with respect to itself;
(iv) the Rating Agency Condition shall have been satisfied with
respect to such conveyance;
(v) ComEd shall have delivered to the Grantee, the Note Issuer, the
Delaware Trustee and the Indenture Trustee an opinion of independent tax
counsel and/or a ruling from the Internal Revenue Service (as selected by,
and in form and substance reasonably satisfactory to, ComEd) to the effect
that, for federal income tax purposes (i) the ICC's issuance of the
Subsequent Funding Order creating and establishing the Subsequent
Transition Property in the Grantee, and the assignment pursuant to such
Subsequent Sale Agreement of such Subsequent Transition Property, will not
result in gross income to the Grantee, the Note Issuer or ComEd, and the
future revenues relating to the Subsequent Transition Property and the
assessment of the IFCs authorized in such Subsequent Funding Order (except
for revenue related to certain lump-sum payments) will be included in
ComEd's gross income in the year in which the related electrical service is
provided to Customers, and (ii) the assignment pursuant to such Subsequent
Sale Agreement will not adversely affect the characterization of the then
Outstanding Notes as obligations of ComEd;
(vi) as of such Subsequent Sale Date, no breach by ComEd of its
representations, warranties or covenants in the related Subsequent Grant
Agreement and no breach by the Grantee of its representations, warranties
or covenants in the related Subsequent Sale Agreement and no Servicer
Default shall exist;
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(vii) as of such Subsequent Sale Date, the Note Issuer shall have
sufficient funds available to pay the purchase price for the Subsequent
Intangible 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) the Grantee and the Note Issuer shall have taken any action
required to maintain the first perfected ownership interest of the Note
Issuer in the Subsequent Intangible 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 Intangible 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
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(2) either (x)the Scheduled Maturity 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 Maturity 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 and 3.18 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
34
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 Maturity 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 on 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(v) or (vi) 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
35
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
36
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 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), or 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 such default shall continue or
not be cured, or 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 30 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 25 percent of the Outstanding Amount of the Notes of such Series,
a written notice specifying such default or incorrect representation or
warranty and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
(v) 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
(vi) 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
37
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
(vii) any failure to act or act by the State of Illinois or any of
its agencies (including the ICC), officers or employees which violates or
is not in accordance with the State Pledge; or
(viii) 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 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 clause (vii) or (ii) which with the giving of notice and
the lapse of time would become an Event of Default under clause (iv), 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 (vii) 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 of Notes
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 of Notes 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
38
(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, 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 moneys
adjudged or decreed to be payable Notes of such Series, the whole amount then
due and payable on such Notes 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
(vii) 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(v) or (vi) 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:
39
(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 of Notes in any election of a trustee, 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.
40
(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 (vii) 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
Funding 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.
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(b) If an Event of Default under clause (vii) 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. The rights and remedies set forth in this Section 5.04(b) and the
obligations of the Servicer under Section 5.02(c) of the Servicing Agreement
shall be the sole and exclusive remedies for such an Event of Default.
(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 25 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
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(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 of Notes 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 of Notes 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 of Notes,
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.
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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 of
Notes 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 of 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 of the Notes shall be restored to their former positions
and
44
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 Holder'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.
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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 ComEd, the Grantee and the Servicer, as applicable, of each of
their obligations to the Note Issuer under or in connection with the Grant
Agreement or any Subsequent Grant Agreement, the Sale Agreement, or any
Subsequent 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 ComEd, the Grantee or the Servicer thereunder and the
institution of legal or administrative actions or proceedings to compel or
secure performance by ComEd, the Grantee or the Servicer of each of their
respective obligations under the Grant Agreement, any Subsequent Grant
Agreement, the Sale Agreement, any Subsequent 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 the Grantee or the Servicer under or in
connection with the Sale Agreement, any Subsequent Sale Agreement and the
Servicing Agreement, respectively, including the right or power to take any
action to compel or secure performance or observance by the Grantee 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, any Subsequent 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
46
(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 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, any Subsequent 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.
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(i) In the event that the Trustee is also acting as Paying Agent or
Note Registrar hereunder, the protections of this Article VI shall also be
afforded to such Paying Agent or Note Registrar.
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 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 the
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
48
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.
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 and state income tax
returns.
(b) With respect to each Series of Notes, on or prior to each
Payment Date therefor, the Indenture Trustee will deliver to each Holder of
Notes on such 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 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.
49
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 attorneys' 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 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(v) or (vi) 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.
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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 MERGER. 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.
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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 hereof.
(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
52
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 Section 310(a) and Section
26(a)(i) 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 Section 310(b), including the optional provision permitted by the
second sentence of TIA Section 310(b)(9); PROVIDED, HOWEVER, that there shall be
excluded from the operation of TIA Section 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 Section 310(b)(1) are met.
SECTION 6.12. PREFERENTIAL COLLECTION OF CLAIMS AGAINST NOTE ISSUER,
The Indenture Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). An Indenture Trustee who
has resigned or been removed shall be subject to TIA Section 311(a) to the
extent indicated.
SECTION 6.13. REPRESENTATIONS AND WARRANTIES OF INDENTURE TRUSTEE.
The Indenture Trustee hereby represents and warrants that:
(a) the Indenture Trustee is a bank validly existing and in good standing
under the laws of the United States; 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
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more than five days after the earlier of (i) each Record Date with respect to
each Series and (ii) three 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 of Notes
contained in the most recent list furnished to the Indenture Trustee as provided
in Section 7.01 and the names and addresses of Holders of Notes 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 Section 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 Section 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 Section 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.
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(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
Section 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
Section 313(c) a brief report dated as of such date that complies with TIA
Section 313(a). The Indenture Trustee also shall comply with TIA Section
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 Indenture Trustee with the SEC and each stock exchange, if any, on
which the Notes are listed. The Note Issuer shall notify the Indenture Trustee
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 IFC Collections (collectively, the "Collection
Account"). The Collection Account will consist of four subaccounts: a general
subaccount (the "General Subaccount"), a reserve subaccount (the "Reserve
Subaccount"), a subaccount for the Overcollateralization Amount (the
"Overcollateralization 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
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Capital Subaccount, up to the Required Capital Level for any Series of Notes)
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 the Servicer
pursuant to Section 6.11(d)(ii) of the Servicing Agreement.
(c) IFC 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 and all allocations to the subaccounts
of the Collection Account shall be made by the Indenture Trustee in accordance
with the written instructions provided by the Servicer in the Monthly Servicer's
Certificate and the Quarterly Servicer's Certificate, 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
Quarterly 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 Delaware Trustee
under the Trust Agreement shall be paid to the Delaware Trustee, 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) the Quarterly Administration Fee and all unpaid Quarterly
Administration Fees, if any, from prior Payment Dates shall be paid to the
Administrator;
(iv) 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
56
the Note Issuer in reimbursement thereof; PROVIDED that the amount paid on
each Payment Date pursuant to this clause (iv) shall not exceed [$100,000];
(v) any overdue Quarterly Interest (together with, to the extent
lawful, interest on such overdue Quarterly Interest at the applicable Note
Interest Rate) and then Quarterly Interest for such Payment Date with
respect to each Series of Notes shall be paid to the Holders of such Series
of Notes;
(vi) 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;
(vii) Quarterly Principal for such Payment Date with respect to each
Series of Notes shall be paid to the Holders of such Series of Notes;
(viii) 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;
(ix) 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;
(x) 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;
(xi) funds up to the amount of net earnings on amounts in the
Collection Account for the prior quarter without cumulation shall be paid
to the Note Issuer, free from the lien of this Indenture;
(xii) if no Series of Notes is Outstanding as of such Payment Date,
the amount by which the amount in the Overcollateralization Subaccount
exceeds the aggregate Required Overcollateralization Level shall be paid to
the Grantee or as it directs, free from the lien of this Indenture;
(xiii) if no Series of Notes is Outstanding as of such Payment Date,
the amount by which the amount in the Capital Subaccount exceeds the
aggregate Required Capital Level shall be paid to the Grantee or as it
directs, free from the lien of this Indenture;
(xiv) the balance, if any, shall be allocated to the Reserve
Subaccount for distribution on subsequent Payment Dates; and
57
(xv) 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, 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 (v), (vi) and (vii)
above or, in the case of clause (vi), 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 (vii)
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
(vii) 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 (ix) and (x) 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 (viii)
above may not have been fully satisfied.
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 to provide timely written
58
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 paragraph (d) of the definition of Eligible
Investments.
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 Sections
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
59
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
Trust Indenture Act as in force at the date of the execution thereof), in form
satisfactory to the Indenture Trustee, for any of the following purposes:
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(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,
if any, 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
61
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, if any, 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;
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(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) or to affect the rights of the Holders of Notes to the benefit
of any provisions for the mandatory redemption of the Notes contained
herein;
(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
ComEd, the Grantee, the Note Issuer, the Delaware Trustee, 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
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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
of the Notes 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 Trust Indenture Act as then
in effect so long as this Indenture shall then be qualified under the Trust
Indenture Act.
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, if any, on any Payment Date on or prior to
December 31, 2004, 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, if any. The purchase price in any such 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
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(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 later 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 hereof 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, if any,
relating to a Series of Notes, notice of redemption under Section 10.01 hereof
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 hereof);
(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 hereof, 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.
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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
66
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) hereof) 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 Intangible 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.
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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, the Grantee, the Note Issuer or the Administrator, stating that
the information with respect to such factual matters is in the possession of the
Servicer, the Grantee, the Note Issuer or the Administrator, 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.
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(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: ComEd
Transitional Funding Trust, Attention: [ ] 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, (ii) 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, (iii) in the case of
Fitch, to Fitch Investors Service, L.P., Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention of Commercial Asset-Backed Securities, and (iv) in the
case of Duff & Xxxxxx, to Xxxx & Xxxxxx Credit Rating Co., 00 Xxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Asset-Backed Monitoring Group.
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
69
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 Trust
Indenture Act, such required provision shall control.
The provisions of TIA Sections 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. SEPARABILITY. In case any provision in this Indenture
or in the Notes shall be invalid, illegal or unenforceable, the validity,
legality, and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
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
70
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 ILLINOIS, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 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 Delaware Trustee in its individual capacity, (ii) any
owner of a beneficial interest in the Note Issuer (including the Grantee and
ComEd) or (iii) any partner, owner, beneficiary, agent, officer, or employee of
the Indenture Trustee or the Delaware Trustee in its individual capacity, any
holder of a beneficial interest in the Note Issuer or the Indenture Trustee 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 Delaware Trustee, the
Grantee and ComEd have 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,
71
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, and 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 the Trust Agreement,
acquiesce, petition or otherwise invoke or cause the Grantee or the Note Issuer
to invoke the process of any court or government authority for the purpose of
commencing or sustaining a case against the Grantee or the Note Issuer under any
insolvency law or appointing a receiver, liquidator, assignee, trustee,
custodian, sequestrator or other similar official of the Grantee or the Note
Issuer or any substantial part of its property, or ordering the winding up or
liquidation of the affairs of the Grantee or 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.
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COMED TRANSITIONAL FUNDING TRUST
By: FIRST UNION TRUST COMPANY, NATIONAL
ASSOCIATION, not in its individual capacity
but solely as Delaware Trustee
By:
-------------------------------------
Name:
------------------------------
Title:
---------------------------
XXXXXX TRUST AND SAVINGS BANK, not in its
individual capacity but solely as Indenture
Trustee
By:
---------------------------------
Name:
--------------------------------
Title:
-----------------------------
73
STATE OF ILLINOIS, )
)ss:
COUNTY OF XXXX )
On the day of [ ], 1998, 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 he
executed the same in his authorized capacity, and that by his signature on the
instrument __________________________________, a bank 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 ILLINOIS, )
)ss:
COUNTY OF XXXX )
On the day of [ ], 1998, 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 he
executed the same in his authorized capacity, and that by his signature on the
instrument COMED TRANSITIONAL FUNDING TRUST, a Delaware business trust and the
entity upon whose behalf the person acted, executed this instrument.
WITNESS my hand and official seal.
-----------------
Notary Public
My commission expires:
EXHIBIT B
REGISTERED $_____
No.____
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO.___
THE PRINCIPAL OF THIS CLASS A - [ ] NOTE WILL BE PAID IN INSTALLMENTS
AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS
CLASS A - [ ] 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 NOTE UNDER THE TERMS OF THE INDENTURE WILL BE RELEASED AND
DISCHARGED UPON PAYMENT HEREOF OR AS OTHERWISE PROVIDED IN SECTION 3.10(B) OR
ARTICLE IV OF THE INDENTURE. THE HOLDER OF THIS 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 [CLASS A] 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.
COMED TRANSITIONAL FUNDING TRUST
NOTES, SERIES 199 [ ] - [ ], Class A - [ ].
INTEREST ORIGINAL PRINCIPAL FINAL MATURITY
RATE AMOUNT DATE
---- ------ ----
ComEd Transitional Funding Trust, a business trust organized and
existing 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 quarterly
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 [March 15, June 15,
September 15 and December 15] 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 of the principal hereof and the Final Maturity Date (each a "Payment
Date"), on the principal amount of this Class A - [ ] Note. Interest on this
Class A - [ ]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 a [specify method of computation]. Such principal of and interest on
this Class A - [ ] Note shall be paid in the manner specified on the reverse
hereof.
The principal of and interest on this Class A - [ ] 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 A - [ ] Note shall be applied
first to interest due and payable on this Class A - [ ] Note as provided above
and then to the unpaid principal of and premium, if any, on this Class A - [ ]
Note, all in the manner set forth in Section 8.02 of the Indenture.
Reference is made to the further provisions of this Class A - [ ] Note
set forth on the reverse hereof, which shall have the same effect as though
fully set forth on the face of this Class A - [ ] Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Class A
- [ ] 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.
2
IN WITNESS WHEREOF, the Note Issuer has caused this instrument to be
signed, manually or in facsimile, by its Responsible Officer.
Date:
COMED TRANSITIONAL FUNDING TRUST
By: FIRST UNION TRUST COMPANY, NATIONAL
ASSOCIATION, not in its individual capacity
by solely as Delaware Trustee
By:
----------------------------------------
Name:
Title:
3
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
Dated:____, 199__
This is one of the Class A - [ ] Notes of the Series 199 [ ] -[ ]
Notes, designated above and referred to in the within-mentioned Indenture.
XXXXXX TRUST AND SAVINGS BANK, not in its
individual capacity but solely as Indenture
Trustee
By:
-------------------------
Name:
-----------------------
Title:
----------------------
4
[REVERSE OF NOTE]
This Series 199[ ] - [ ], Class A - [ ] Note is one of a duly
authorized issue of Notes of the Note Issuer, designated as its Notes (herein
called the "Notes"), issued and to be issued in one or more Series, which Series
are issuable in one or more Classes, and this Series 199 [ ] - [ ]Note , in
which this Class A - [ ] Note represents an interest, consists of [ ] Classes,
including this Class A - [ ] Note (herein called the "Class A - [ ] Notes"), all
issued and to be issued under an Indenture dated as of [ ], 1998, (the
"Indenture"), each 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 A - [ ] Note that are defined in the
Indenture, as supplemented or amended, shall have the meanings assigned to them
in the Indenture.
The Class A - [ ] Notes, the other Classes of Series 199[ ] - [ ]
Notes and any other Series of Notes issued by the Note Issuer are and will be
equally and ratably secured by the collateral pledged as security therefor as
provided in the Indenture.
The principal of this Class A - [ ] 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, if any, as Schedule
__, 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 or (y) the Note Issuer,
at its option, shall have called for the redemption of the Series 199 [ ] - [ ]
Notes pursuant to Section 10.01 of the Indenture. 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 A - [ ] 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. All
-----------------------------------
(1) 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.
5
principal payments on the Class A - [ ] Notes shall be made pro rata to the
Class A - [ ] Holders entitled thereto based on the respective principal
amounts of the Class A - [ ]Notes held by them.
Payments of interest on this Class A - [ ] 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 A - [ ] 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, except for the final
installment of principal and premium, if any, payable with respect to this Class
A - [ ] 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 A - [ ] Note be submitted for notation of
payment. Any reduction in the principal amount of this Class A - [ ] 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 A - [ ] 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 A - [ ] 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 A - [ ] Note and
shall specify the place where this Class A - [ ] 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 A - [ ] Notes may be redeemed,
in whole but not in part, at the option of the Note Issuer on any Payment Date
at the Optional Redemption Price if, after giving effect to payments that would
otherwise be made on such Payment Date, the Outstanding Amount of the Class A-[
] Notes has been reduced to less than five percent of the initial principal
balance thereof.
This Note is a transitional funding instrument as such term is defined
in the Funding Law. Principal and interest due and payable on this Note are
payable from and secured primarily by intangible transition property created and
established by a transitional funding order obtained from the Illinois Commerce
Commission pursuant to the Funding Law. Intangible transition property consists
of the right to impose and collect certain charges (defined in the Funding Law
as "instrument funding charges") to be included in regular electric utility
bills of existing and future electric service customers of Commonwealth Edison
Company, an Illinois electric utility.
6
The Funding Law provides that: "The State [of Illinois] pledges to
and agrees with the holders of any transitional funding instruments who may
enter into contracts with an electric utility, grantee, assignee or issuer
pursuant to this Article XVIII [of the Public Utility Act] that the State [of
Illinois] will not in any way limit, alter, impair or reduce the value of
intangible transition property created by, or instrument funding charges
approved by, a transitional funding order so as to impair the terms of any
contract made by such electric utility, grantee, assignee or issuer with such
holders or in any way impair the rights and remedies of such holders until the
pertinent grantee instruments or, if the related transitional funding order does
not provide for the issuance of grantee instruments, the pertinent transitional
funding instruments and interest, premium and other fees, costs and charges
related thereto, as the case may be, are fully paid and discharged. Electric
utilities, grantees and issuers are authorized to include these pledges and
agreements of the State [of Illinois] in any contract with the holders of
transitional funding instruments or with any assignees pursuant to this Article
XVIII [of the Public Utility Act] and any assignees are similarly authorized to
include these pledges and agreements of the State [of Illinois] in any contract
with any issuer, holder or any other assignee. Nothing in this Article XVIII
[of the Public Utility Act] shall preclude the State of Illinois from requiring
adjustments as may otherwise be allowed by law to the electric utility's base
rates, transition charges, delivery services charges, or other charges for
tariffed services, so long as any such adjustment does not directly affect or
impair any instrument funding charges previously authorized by a transitional
funding order issued by the [Illinois Commerce Commission]."
As a result of the foregoing pledge, the State of Illinois may not,
except as provided in the succeeding sentence, in any way limit, alter, impair
or reduce the value of such intangible transition property or such instrument
funding changes in a manner substantially impairing the Note Indenture or the
rights and remedies of the Holders, until the Notes, together with interest
thereon, are fully paid and discharged. Notwithstanding the immediately
preceding sentence, the State of Illinois 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 A - [ ] Note may be registered on the
Note Register upon surrender of this Class A - [ ] 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 his 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 A - [ ] 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
7
exchange of this Class A - [ ] 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 in its individual capacity, (ii)
any owner of a beneficial interest in the Note Issuer or (iii) any partner,
owner, beneficiary, agent, officer, director or employee of the Indenture
Trustee in its individual capacity, any holder of a beneficial interest in the
Note Issuer or the Indenture Trustee or of any successor or assign of the
Indenture Trustee in its individual capacity, except as any such Person may have
expressly agreed (it being understood that the Indenture Trustee has no such
obligations in its individual capacity).
Prior to the due presentment for registration of transfer of this
Class A - [ ] 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 A - [ ] 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 A - [ ] Note and for all other purposes
whatsoever, whether or not this Class A - [ ] 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 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 A - [ ]
Note (or any one of more Predecessor Notes) shall be conclusive and binding upon
such Holder and upon all future Holders of this Class A - [ ] 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 A - [ ] 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 term "Note Issuer" as used in this Class A - [ ] Note includes any
successor to the Note Issuer under the Indenture.
8
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 A - [ ] 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 A - [ ] 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 Illinois, 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 A
- [ ] Note or of the Indenture shall alter or impair the obligation of the Note
Issuer, which is absolute and unconditional, to pay the principal of and
interest on this Class A - [ ] Note at the times, place, and rate, and in the
coin or currency-herein prescribed.
The Holder of this Class A - [ ] 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 A - [
] 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-A [] Note, by acquiring any Class-A [] Note or interest therein, (i)
express their intention that the Class-A [] Notes qualify under applicable tax
law as indebtedness of ComEd secured by the Note Collateral and (ii) unless
otherwise required by appropriate taxing authorities, agree to treat the Class-A
[] Notes as indebtedness of ComEd secured by the Note Collateral for the purpose
of federal income, state and local income and franchise taxes, and any other
taxes imposed upon, measured by or based upon gross or net income.
9
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 A - [ ] Note and all rights thereunder, and hereby irrevocably
constitutes and appoints ______________, attorney, to transfer said Class A -
[ ] Note on the books kept for registration thereof, with full power of
substitution in the premises.
Dated: ____ --------------
Signature Guaranteed:
-------- --------------
---------------------------
(2) 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 A - [ ] Note in
every particular, without alteration, enlargement or any change whatsoever.
10
EXHIBIT D
SERIES SUPPLEMENT dated as of ____, 199 ____ (this "Supplement"),
by and between COMED TRANSITIONAL FUNDING TRUST, business trust
created under the laws as the State of Delaware (the "Note
Issuer"), and, ___________, a bank organized under the laws of
the United States of America (the "Indenture Trustee"), as
Indenture Trustee under the Indenture dated as of [ ], 1998,
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 the Note Issuer's Notes, Series 199 [ ]- [ ] (the "Series 199 [ ] -
[ ] Notes"), and the Note Issuer and the Indenture Trustee are executing and
delivering this Supplement in order to provide for the Series 199 [ ] - [ ]
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 199 [ ] - [ ] Notes shall be
designated generally as the Note Issuer's Notes, Series 199 [ ] and further
denominated as Classes [ ] through [ ].
SECTION 2. INITIAL PRINCIPAL AMOUNT; NOTE INTEREST RATE; SCHEDULED
MATURITY DATE; FINAL MATURITY DATE. The Notes of each Class of the Series 199
[ ] - [ ] shall have the initial principal amount, bear interest at the
rates per annum and shall have Scheduled Maturity Dates and Final Maturity
Dates as set forth below:
Initial Scheduled Final
Principal Interest Maturity 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.
SECTION 3. AUTHENTICATION DATE; PAYMENT DATES; EXPECTED AMORTIZATION
SCHEDULE FOR PRINCIPAL; QUARTERLY INTEREST; REQUIRED OVERCOLLATERALIZATION
LEVEL; NO PREMIUM. (a) AUTHENTICATION DATE. The Series 199 [ ] - [ ] Notes
that are authenticated and delivered by the Indenture Trustee to or upon the
order of the Note Issuer on [ ], 199 [ ] (the "Series Issuance Date") shall
have as their date of authentication [ ], 199 [ ].
(b) PAYMENT DATES. The Payment Dates for the Series 199 [ ] -
[ ] Notes are [March 15, June 15, September 15 and December 15] 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 199 [ ] - [ ] Notes in full and the Final Maturity Date for the
Series 199 [ ] - [ ] 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)(vii) 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) QUARTERLY INTEREST. [Quarterly] Interest will be payable on each
Class of the Series 199 [ ]- [ ]Notes on each Payment Date in an equal amount to
[one-fourth] of the product
2
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 199 [ ] - [ ] 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 199 [ ] - [ ] Notes.
SECTION 4. MINIMUM DENOMINATIONS. The Series 199 [ ] - [ ] Notes
shall be issuable in the Minimum Denomination and integral multiples thereof.
SECTION 5. CERTAIN DEFINED TERMS. Article One 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 Article One
but with such additional provisions as are specified in the related Supplement.
Additionally, Article Two 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 199 [ ] - [ ] 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.
"QUARTERLY 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 199[ ] - [ ] NOTES;
FORM OF THE SERIES 199[ ] - [ ] NOTES. The Indenture Trustee shall deliver
the Series 199[ ] - [ ] Notes to the Note Issuer when authenticated in
accordance with Section 2.03 of the Indenture. The Series 199[ ] - [ ] Notes
of each Class shall be in the form of Exhibits [A-1 through A-8] 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.
3
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 Illinois, without reference to its
conflict of law provisions, and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such laws.
SECTION 10. 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 Supplement or any certificate or other
writing delivered in connection herewith or therewith, against (i) the Indenture
Trustee or the Delaware Trustee in its individual capacity, (ii) any owner of a
beneficial interest in the Note Issuer (including the Grantee or ComEd) or (iii)
any partner, owner, beneficiary, agent, officer, director, employee or agent of
the Indenture Trustee or the Delaware Trustee in its individual capacity, any
holder of a beneficial interest in the Note Issuer or the Indenture Trustee 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 Delaware Trustee, the
Grantee and ComEd have any such obligations in their respective individual or
corporate capacities).
4
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.
COMED TRANSITIONAL FUNDING TRUST, as
Note Issuer,
By: FIRST UNION TRUST COMPANY, NATIONAL
ASSOCIATION, not in its individual capacity but
solely as Delaware Trustee
By:
---------------------------------
Name:
-----------------------------
Title:
--------------------------
XXXXXX TRUST AND SAVINGS BANK, not in its
individual capacity but solely as Indenture
Trustee
By:
---------------------------------
Name:
-----------------------------
Title:
--------------------------
5
SCHEDULE A
EXPECTED AMORTIZATION SCHEDULE
OUTSTANDING PRINCIPAL BALANCE
DATE CLASS CLASS CLASS CLASS CLASS
---- ----- ----- ----- ----- -----
Series Issuance $ $ $ $ $
Date
,199
,199
,199
,199
[Etc.]
SCHEDULE B
REQUIRED OVERCOLLATERALIZATION LEVEL SCHEDULE
Required
Payment Date Overcollateralization Level
------------ ---------------------------
,199 $
,199 $
,199 $
[Etc.] $
EXHIBIT 4.3
FORM OF APPENDIX A TO INDENTURE
APPENDIX A
DEFINITIONS
This is APPENDIX A to the Indenture.
A. DEFINED TERMS. As used in the Grant Agreement, the Sale
Agreement, the Indenture, the Trust Agreement, the Servicing Agreement,
Trustee's Issuance Certificate, 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:
"1998 FUNDING ORDER" means the Final Transitional Funding Order dated
July 21, 1998 issued by the ICC pursuant to the Funding Law, Docket No. 98-0319.
"1998 INITIAL TARIFF" means the initial Tariff filed with the ICC to
evidence the IFCs pursuant to the 1998 Funding Order.
"1998 TRANSITION PROPERTY" means all ITP created in favor of the
Grantee pursuant to the 1998 Funding Order.
"ACT" is defined in Section 11.03 of the Indenture.
"ACTUAL IFC COLLECTIONS" means, with respect to any Collection Period,
IFC Collections actually received by the Servicer with respect to such
Collection Period.
"ADJUSTMENTS" means a Reconciliation Adjustment or a True-Up
Adjustment, as the context may require.
"ADMINISTRATION AGREEMENT" means the Administration Agreement dated as
of [ ], 1998, among ComEd, the Grantee and the Note Issuer, as the same may be
amended, supplemented or otherwise modified from time to time.
"ADMINISTRATOR" means ComEd and any successor in interest to the
extent permitted under the Administration Agreement.
"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" has the meaning set forth in ANNEX I to
the Servicing Agreement.
"ALLOCABLE IFC REVENUE AMOUNTS" means, (i) with respect to any
lump-sum payments of transition charges under Section 16-108(h) of the Public
Utilities Act or (ii) with respect to any revenues derived from condemnation
proceedings, or FERC stranded cost recoveries or any other amounts which reflect
compensation for lost revenues which would otherwise have been attributable to
Applicable Rates, the allocable amounts of such transition charges or other
revenues which are deemed to be proceeds of the IFCs in accordance with the
terms of the Funding Order and which are to be set aside for the benefit of the
Note Issuer, in each case as calculated pursuant to Section 6(f) of Annex I to
the Servicing Agreement.
"AMENDATORY ACT" means the Electric Service Customer Choice and Rate
Relief Law of 1997, 220 ILCS 5/16-101 ET SEQ., 220 ILCS 5/17-101 ET SEQ. and 220
ILCS 5/18-101 ET SEQ., as amended from time to time.
"AMENDATORY TARIFF" means a tariff or notice filing filed with the ICC
in respect of a Reconciliation Adjustment or a True-Up Adjustment, substantially
in the form of EXHIBIT C to the Servicing Agreement.
"ANNUAL ACCOUNTANT'S REPORT" is defined in Section 3.04 of the
Servicing Agreement.
"APPLICABLE ARES" means, with respect to each Customer taking service
from an ARES, the ARES, if any, providing consolidated billing to that Customer
which includes billing of IFCs.
"APPLICABLE RATES" means all of ComEd's tariffed charges including,
without limitation, charges for base rates and delivery services and transition
charges (including lump-sum payments of such charges); PROVIDED, however, that
Applicable Rates shall not include late charges or charges set forth in those
tariffs which are filed specifically and primarily to collect amounts related to
decommissioning expense, taxes, franchise fees or other franchise cost
additions, costs imposed by local governmental units which are allocated and
charged to customers within the boundaries of such governmental units'
jurisdiction, renewable energy resources and coal technology development
assistance charges, energy assistance charges for the Supplemental Low-Income
Energy Assistance Fund, reimbursement for the costs of optional or non-standard
facilities and reimbursement for the costs of optional or non-standard meters,
or monies that will be paid to third parties (after deduction of allowable
administrative, servicing or similar fees).
2
"APPLICATION" means the Application for Transitional Funding Order and
Petition filed by ComEd with the ICC dated April 22, 1998 pursuant to Section
18-103 of the Funding Law.
"ARES" means an alternative retail electric supplier as defined in
Section 16-102 of the Amendatory Act.
"ARES SERVICE AGREEMENT" means an agreement between an ARES and ComEd
for the provision of consolidated billing by such ARES to customers in
accordance with ICC Regulations, the terms of any Tariffs and the terms of any
delivery service tariffs filed by ComEd under Section 16-118(b) of the Public
Utilities Act.
"BANKRUPTCY CODE" means Title 11 of the United States Code (11 U.S.C.
Section 101 ET SEQ.), as amended from time to time.
"BASIC DOCUMENTS" means each Grant Agreement, each Sale Agreement, the
Indenture, the Trust Agreement, the Servicing Agreement, the Administration
Agreement, each Letter of Representations, the Note Depository Agreement, 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 or ARES by ComEd 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".
3
"BUSINESS DAY" means any day other than a Saturday, a Sunday or a day
on which banking institutions or trust companies in Wilmington, Delaware,
Chicago, Illinois or New York, New York or the Depository Trust Company are
authorized or required by law, regulation or executive order to remain closed.
"BUSINESS TRUST ACT" means the Delaware Business Trust Act, 12 Del.
Code Section 3801 ET SEQ.
"CALCULATION PERIOD" means initially, the period commencing on the
Closing Date and ending on May 31, 1999 and, thereafter, each period of six
Collection Periods which ends one month prior to a Reconciliation Adjustment
Date; PROVIDED, that, if a True-Up Adjustment is required, then the Calculation
Period for such True-Up Adjustment shall mean the Collection Period of three
Collection Periods commencing with the period during which such True-Up
Adjustment is calculated and ending with the last day of the Collection Period
immediately preceding the next Payment Date.
"CAPITAL CONTRIBUTION" means the amount of cash contributed to the
Note Issuer by the Grantee as specified in the Trust 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 of the
Grantee filed as of July 21, 1998 pursuant to, and in accordance with, the
Delaware Limited Liability Company Act, 6 Del. Code Section 18-101 ET SEQ.
"CERTIFICATE OF TRUST" means the Certificate of Trust filed with the
Secretary of State pursuant to which the Trust was established, substantially in
the form of EXHIBIT A to the Trust 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, as amended.
"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.
4
"CLOSING DATE" means [ ], 1998.
"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 Note 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.
"COMED" means Commonwealth Edison Company, an Illinois corporation,
and any successor in interest to the extent permitted under the Grant
Agreement.
"CONSOLIDATED ARES BILLING" has the meaning set forth in ANNEX I to
the Servicing Agreement.
"CORPORATE TRUST OFFICE" means with respect to the Indenture Trustee
or the Delaware Trustee, the principal office at which at any particular time
the corporate trust business of the Indenture Trustee or the Delaware Trustee,
respectively, shall be administered, which offices at the Closing Date are
located, in the case of the Indenture Trustee, at [Chicago, Illinois], and in
the case of the Delaware Trustee, at [address], Wilmington, Delaware or at such
other address as the Indenture Trustee or Delaware 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 or Delaware Trustee
(the addresses of which the successor Indenture Trustee or Delaware Trustee will
notify the Holders and the Note Issuer).
"COVENANT DEFEASANCE OPTION" is defined in Section 4.01(b) of the
Indenture.
"CUSTOMERS" means all existing and future retail customers or classes
of retail customers of ComEd or other Persons or group of Persons obligated from
time to time to pay ComEd or any successor "Applicable Rates," and all other
Persons obligated to pay IFCs pursuant to the 1998 Funding Order or any
Subsequent Funding Order, as applicable, and, including, without limitation, any
Persons who enter into contracts with ComEd to take non-tariffed electrical
services but would otherwise have been obligated to pay Applicable Rates.
"DEBT SERVICE BILLING REQUIREMENT" means, for any Calculation Period,
the aggregate amount of IFCs calculated by the Servicer as necessary to be
billed during such period in order to collect the Required Debt Service on or
before the end of the Collection Period immediately preceding the next Payment
Date.
"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.
5
"DEFINITIVE NOTES" means Notes issued in definitive form in accordance
with Section 2.13 of the Indenture.
"DELAWARE TRUSTEE" means the Person acting as Delaware Trustee under
the Trust Agreement.
"DTC" means the Depository Trust Company or any successor thereto.
"DUFF & XXXXXX" means Duff & Xxxxxx Credit Rating Co. or any successor
thereto.
"ELIGIBLE DEPOSIT ACCOUNT" means either (a) a segregated 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 one of the states thereof or the District of
Columbia (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 A2 by
Moody's or (B) a certificate of deposit rating of A-1+ by Standard & Poor's and
P-1 by Moody's, 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:
(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 ComEd)
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
6
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
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, other than as permitted by the Rating Agencies, 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 or A+ from S&P.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"ESTIMATED IFC COLLECTIONS" means the sum of the amounts remitted with
respect to a Billing Period during the six months following such Billing Period
based on the Collections Curves.
"EVENT OF DEFAULT" is defined in Section 5.01 of the Indenture.
"EXCESS REMITTANCE" means the amount, if any, calculated for a
particular Remittance Date, by which all Estimated IFC Collections remitted to
the Collection Account on and prior to such Remittance Date with respect to the
IFCs billed to Customers during the sixth preceding Billing Period exceed Actual
IFC Collections received by the Servicer attributable to such Billing Period.
"EXPECTED AMORTIZATION SCHEDULE" means SCHEDULE 4.01(a) to the
Servicing Agreement, as the same may be amended from time to time.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"FDIC" means the Federal Deposit Insurance Corporation or any
successor thereto.
7
"FERC" means the Federal Energy Regulatory Commission or any successor
thereto.
"FINAL" means, with respect to any Funding Order, that such Funding
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.
"FITCH" means Fitch Investors Service, L.P. or any successor thereto.
"FLOATING RATE NOTES" means any Series or Class of Notes that accrue
interest at a variable rate based on the index described in the related
Trustee's Issuance Certificate or Series Supplement, if any.
"FUNDING LAW" means the Electric Utility Transitional Funding Law of
1997, 220 ILCS 5/18-101 ET SEQ.
"FUNDING ORDER" means, as the context may require, (i) the 1998
Funding Order and/or (ii) any Subsequent Funding Order.
"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 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.
8
"GRANT AGREEMENT" means that certain Agreement Relating to Grant of
Intangible Transition Property dated as of [ ], 1998 between ComEd and the
Grantee, as the same may be amended, supplemented or otherwise modified from
time to time.
"GRANTEE" means ComEd Funding, LLC, a Delaware limited liability
company, and any successor in interest to the extent permitted under the Sale
Agreement and the other Basic Documents.
"HOLDER" means the Person in whose name a Note is registered on the
Note Register.
"ICC" means the Illinois Commerce Commission, or any successor
thereto.
"ICC REGULATIONS" means the regulations, including proposed or
temporary regulations, promulgated under the Public Utilities Act.
"IFC" means the instrument funding charge as defined in Section 18-102
of the Funding Law (expressed in cents per kilowatt-hour) and as authorized by a
Funding Order, including, without limitation, each "IFC" or equivalent amount
which Customers have agreed to pay pursuant to any contract under which ComEd
agrees to provide non-tariffed electrical service and which are deemed to be
proceeds of the Intangible Transition Property in accordance with the terms of
the applicable Funding Order.
"IFC COLLECTIONS" means IFCs received by the Servicer which are
remitted to the Collection Account.
"IFC PAYMENTS" means the payments made by Customers based on the IFCs.
"INDENTURE" means the Indenture dated as of [ ], 1998 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 Certificate 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 Xxxxxx Trust and Savings Bank, an Illinois
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 Grantee, 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 Grantee, 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 Grantee,
the Servicer or any Affiliate
9
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.
"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.
"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.
"INTANGIBLE TRANSITION PROPERTY" or "ITP" means all intangible
transition property as defined in Section 18-102 of the Funding Law which has
been created in favor of the Grantee pursuant to a Funding Order and assigned to
the Note Issuer pursuant to a Sale Agreement, including the 1998 Transition
Property and any Subsequent Transition Property, and, including, without
limitation, all Allocable IFC Revenue Amounts.
"INVESTMENT EARNINGS" means investment earnings on funds deposited in
the Collection Account net of losses and investment expenses.
"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.
10
"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, the Administrator 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.
"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 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.
"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 DEPOSITORY AGREEMENT" means the agreement, dated as of the
Closing Date, among the Note Issuer, the Indenture Trustee and the DTC, as the
initial Clearing Agency relating to the Notes, as the same may be amended
supplemented or otherwise modified from time to time.
"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 ComEd Transitional Funding Trust, a Delaware
business trust 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.
11
"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 Notes authorized by the 1998
Funding Order and any Subsequent Funding Order and issued under 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 AGREEMENT" means the Limited Liability Company Agreement of
the Grantee dated as of [ ], 1998 between the Grantee and ComEd.
"OPERATING EXPENSES" means all fees, costs and expenses of the Note
Issuer, including all amounts owed by the Note Issuer to the Indenture Trustee
and the Delaware Trustee, the Servicing Fee, the Quarterly Administration Fee,
any fees, costs and expenses payable or reimbursable by the Note Issuer to the
Administrator and legal and accounting fees, costs and expenses of the Note
Issuer and the Grantee.
"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 acceptable to the party receiving such opinion of counsel, and shall be
in form and substance 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:
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(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, the Grantee 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, the
Grantee 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,
March 15, June 15, September 15 and December 15 of each year, PROVIDED that if
any such date is not a Business Day, the Payment Date shall be the Business Day
immediately succeeding such date, commencing [ ].
"PERSON" means any individual, corporation, limited liability company,
estate, partnership, joint venture, association, joint stock company, trust
(including any beneficiary
13
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.
"PRINCIPAL BALANCE" means, as of any Payment Date, the sum of the
outstanding principal amount of each Series of Notes.
"PROCEEDING" means any suit in equity, action at law or other judicial
or administrative proceeding.
"PROJECTED PRINCIPAL 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.
"PUBLIC UTILITIES ACT" means the Illinois Public Utilities Act, 220
ILCS 5/1-101 ET SEQ., as the same may be amended from time to time.
"QUARTERLY ADMINISTRATION FEE" means $25,000 per calendar quarter.
"QUARTERLY INTEREST" means, with respect to any Payment Date and any
Series of Notes, the quarterly interest for such Payment Date and Series as
specified in the related Trustee's Issuance Certificate or Series Supplement,
if any.
"QUARTERLY 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 principal balance specified for such Payment Date on
the applicable Expected Amortization Schedule.
"QUARTERLY SERVICER'S CERTIFICATE" means a certificate, substantially
in the form of EXHIBIT D 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.
"RATING AGENCY" means Moody's, Standard & Poor's, Duff & Xxxxxx and
Fitch. 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
14
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 ADJUSTMENT" means each adjustment to the IFCs made
pursuant to the terms of any Funding Order in accordance with Section 4.01(b)(i)
of the Servicing Agreement.
"RECONCILIATION ADJUSTMENT DATE" shall mean June 30 and December 31 of
each year, commencing on June 30, 1999.
"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 Payment 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.
"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 on the applicable Record Date.
"REGISTRATION STATEMENT" means the registration statement, Form S-3
file number [ ], filed with the SEC for registration under the Securities Act
relating to the offering and sale of the Notes, and including all supplements
thereto.
"RELATED ASSETS" means all of Grantee's and/or the Note Issuer's
right, title and interest in and to the Grant Agreement, 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.
15
"REMITTANCE DATE" means the tenth day of each calendar month or, if
such day is not a Business Day, the next succeeding Business Day.
"REMITTANCE SHORTFALL" means the amount, if any, calculated for a
particular Remittance Date, by which Actual IFC Collections received by the
Servicer attributable to IFCs billed to Customers during the sixth preceding
billing Period exceed all Estimated IFC Collections remitted to the Collection
Account on and prior to such Remittance Date with respect to such Billing
Period.
"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 the Grantee prior to or upon the
issuance of such Series.
"REQUIRED DEBT SERVICE" for any Calculation Period means the total
dollar amount of IFC 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 Required Debt Service 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 Principal Balance of the Notes is equal to the
Projected Principal 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 Note Indenture as of such date shall have been paid in full; PROVIDED,
that, with respect to any Reconciliation Adjustment or True-Up Adjustment
occurring after the last Scheduled Maturity Date for any Notes, the Required
Debt Service shall be calculated to ensure that sufficient IFCs will be
collected to retire such Notes in full as of the earlier of (x) the Payment Date
preceding the next Reconciliation Adjustment Date and (y) the Final Maturity
Date for such Notes.
"REQUIRED DEPOSIT RATING" means a rating on short-term unsecured debt
obligations of P-1 by Moody's, A-1+ by S&P and, if rated by Fitch, F-1 by Fitch
and if rated by Duff & Xxxxxx, Xxxx-1+ by Xxxx & Xxxxxx. Any requirement that
short-term unsecured debt obligations have the "Required Deposit Rating" shall
mean that such short-term unsecured debt obligations have the foregoing required
ratings from each of such rating agencies.
"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
Scheduled Maturity Date for such Series, 0.5% of the initial Outstanding amount
thereof.
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"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
officer within the Corporate Trust Office of the Delaware Trustee; (b) with
respect to the Indenture Trustee, the Delaware Trustee or other trustee, any
officer within the Corporate Trust office of such trustee (including, in the
case of (a) and (b) above, 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) the Grantee, any Manager
or duly authorized officer who has been authorized to act in the circumstances;
(e) partnership, any general partner thereof; and (f) 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.
"SALE AGREEMENT" means as the context may require, either (i) the
Intangible Transition Property Sale Agreement dated as of [ ], 1998 between the
Grantee and the Note Issuer, as the same may be amended, supplemented or
otherwise modified from time to time or (ii) any Subsequent Sale Agreement.
"SCHEDULED FINAL PAYMENT DATE" means, with respect to any Series or
Class of Notes, the Scheduled Maturity Date thereof.
"SCHEDULED MATURITY DATE" means, with respect to any Series or Class
of Notes, the Scheduled Maturity Date therefor, as specified in the related
Trustee's Issuance Certificate or Series Supplement, if any.
"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 Illinois, 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.
17
"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 ComEd, 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 an Officer's Certificate of the
Servicer.
"SERVICING AGREEMENT" means the Intangible Transition Property
Servicing Agreement dated as of [ ], 1998, between the Grantee and ComEd
assigned to the Note Issuer, 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.
"SOLE MEMBER" means ComEd as sole member of the Grantee defined in the
Operating 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.
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"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 Illinois as set forth
in Section 18-105(b) of the Funding 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
Intangible Transition Property is created in favor of the Grantee pursuant to a
Subsequent Funding Order.
"SUBSEQUENT FUNDING ORDER" means a transitional funding order (other
than the 1998 Funding Order) issued hereafter by the ICC in favor of the Grantee
at the request of ComEd.
"SUBSEQUENT GRANT AGREEMENT" means an agreement substantially similar
to the Grant Agreement, relating to Subsequent Transition Property, as the same
may be amended, supplemented or otherwise modified from time to time.
"SUBSEQUENT RELATED ASSETS" means all of the Grantee's and/or the Note
Issuer's right, title and interest in and to any Subsequent Grant Agreement and
all present and future claims, demands, causes and choses in action in respect
of any or 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.
"SUBSEQUENT SALE AGREEMENT" means an agreement substantially similar
to the initial Sale Agreement, relating to Subsequent Intangible Transition
Property, as the same may be amended, supplemented or otherwise modified from
time to time.
"SUBSEQUENT SALE DATE" means any date on which Subsequent Intangible
Transition Property is to be sold to the Note Issuer pursuant to a Subsequent
Sale Agreement.
"SUBSEQUENT TARIFF" means a tariff filed with the ICC in connection
with a Subsequent Funding Order.
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"SUBSEQUENT TRANSITION PROPERTY" or "SUBSEQUENT ITP" means the
intangible transition property contemplated by, and specifically described in, a
Subsequent Funding Order.
"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 ICC pursuant to the
Funding Law to evidence any IFCs.
"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.
"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 each adjustment to the IFCs made pursuant
to the terms of the 1998 Transitional Funding Order and in accordance with
Section 4.01(b)(ii) of the Servicing Agreement.
"TRUST AGREEMENT" means the Declaration of Trust by First Union Trust
Company, National Association as "Delaware Trustee", dated as of _________, 1998
acknowledged and agreed to by the Grantee, as the same may be amended,
supplemented or otherwise modified from time to time.
20
"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 Delaware Trustee 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 Delaware Trustee in accordance with the terms of the
Sale Agreement or any Subsequent 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
[ ], 1998 between [ ], on its own behalf and as representative of the several
underwriters named therein, and the Note Issuer.
"UNREGISTERED NOTES" means any Notes not registered under the
Securities Act or the securities laws of any other jurisdiction.
"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.
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 Illinois 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
21
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 Transaction Document shall refer to
such Transaction Document as a whole and not to any particular provision of such
Transaction 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 Transaction 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.
22
