EXHIBIT 10.1
FORM OF SALE AGREEMENT
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INTANGIBLE TRANSITION PROPERTY SALE AGREEMENT
between
ILLINOIS POWER SECURITIZATION LIMITED LIABILITY COMPANY
Grantee
and
ILLINOIS POWER SPECIAL PURPOSE TRUST
Note Issuer
Dated as of December ___, 1998
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TABLE OF CONTENTS
ARTICLE I
Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
SECTION 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . .1
SECTION 1.02. Other Definitional Provisions . . . . . . . . . . . . . . .1
ARTICLE II
Conveyance of 1998 Transition Property and Related Assets. . . . . . . . . . 2
SECTION 2.01. Conveyance of 1998 Transition Property and
Related Assets. . . . . . . . . . . . . . . . . . . . . . .2
ARTICLE III
Representations and Warranties of Grantee . . . . . . . . . . . . . . . . . .4
SECTION 3.01. Organization and Good Standing. . . . . . . . . . . . . . .4
SECTION 3.02. Due Qualification . . . . . . . . . . . . . . . . . . . . .4
SECTION 3.03. Power and Authority . . . . . . . . . . . . . . . . . . . .4
SECTION 3.04. Binding Obligation. . . . . . . . . . . . . . . . . . . . .5
SECTION 3.05. No Violation. . . . . . . . . . . . . . . . . . . . . . . .5
SECTION 3.06. No Proceedings. . . . . . . . . . . . . . . . . . . . . . .5
SECTION 3.07. Approvals . . . . . . . . . . . . . . . . . . . . . . . . .6
SECTION 3.08. The 1998 Transition Property and Related Assets . . . . . .6
ARTICLE IV
Covenants of the Grantee. . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 4.01. Corporate Existence . . . . . . . . . . . . . . . . . . . 11
SECTION 4.02. No Liens. . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 4.03. Delivery of Collections . . . . . . . . . . . . . . . . . 12
SECTION 4.04. Notice of Liens . . . . . . . . . . . . . . . . . . . . . 12
SECTION 4.05. Compliance with Law . . . . . . . . . . . . . . . . . . . 12
SECTION 4.06. Covenants Related to the 1998 Transition Property,
Related Assets and the Notes. . . . . . . . . . . . . . . 12
SECTION 4.07. Protection of Title . . . . . . . . . . . . . . . . . . . 13
SECTION 4.08. Nonpetition Covenants . . . . . . . . . . . . . . . . . . 14
SECTION 4.09. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 4.10. Performance of Obligations; Servicing . . . . . . . . . . 15
SECTION 4.11. Additional Negative Covenants . . . . . . . . . . . . . . 17
SECTION 4.12. No Other Business . . . . . . . . . . . . . . . . . . . . 17
SECTION 4.13. No Borrowing. . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 4.14. Guarantees Loans, Advances and Other Liabilities. . . . . 17
SECTION 4.15. Capital Expenditures. . . . . . . . . . . . . . . . . . . 18
SECTION 4.16. Notice of Defaults. . . . . . . . . . . . . . . . . . . . 18
SECTION 4.17. Separate Existence. . . . . . . . . . . . . . . . . . . . 18
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SECTION 4.18. Further Instruments and Acts. . . . . . . . . . . . . . . 20
SECTION 4.19. Subsequent Transition Property. . . . . . . . . . . . . . 20
ARTICLE V
The Grantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 5.01. Liability of Grantee; Indemnities . . . . . . . . . . . . 23
SECTION 5.02. Merger or Consolidation of, or Assumption of
the Obligations of, Grantee . . . . . . . . . . . . . . . 24
SECTION 5.03. Limitation on Liability of Grantee and Others . . . . . . 25
ARTICLE VI
Miscellaneous Provisions. . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 6.01. Amendment . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 6.02. Notices . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 6.03. Assignment. . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 6.04. Limitations on Rights of Others . . . . . . . . . . . . . 28
SECTION 6.05. Severability. . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 6.06. Separate Counterparts . . . . . . . . . . . . . . . . . . 29
SECTION 6.07. Headings. . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 6.08. Governing Law . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 6.09. Assignment to Indenture Trustee . . . . . . . . . . . . . 29
SECTION 6.10. Limitation of Liability . . . . . . . . . . . . . . . . . 29
SECTION 6.11. Limitation of Liability . . . . . . . . . . . . . . . . . 30
SECTION 6.12. Holders as Third-Party Beneficiaries. . . . . . . . . . . 30
SECTION 6.13. Representations and Indemnities to Survive. . . . . . . . 31
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INTANGIBLE TRANSITION PROPERTY SALE AGREEMENT dated as of December ___,
1998 between ILLINOIS POWER SECURITIZATION LIMITED LIABILITY COMPANY, a Delaware
limited liability company (the "Grantee"), and ILLINOIS POWER SPECIAL PURPOSE
TRUST, a Delaware business trust (the "Note Issuer").
WHEREAS the Note Issuer desires to purchase the 1998 Transition Property
created pursuant to the Public Utilities Act and the 1998 Funding Order,
together with the Related Assets; and
WHEREAS the Grantee is willing to sell such 1998 Transition Property and
Related Assets to the Note Issuer.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINITIONS. Capitalized terms used herein and not
otherwise defined herein have the meanings assigned to them in that certain
Indenture (including Appendix A thereto) dated as of the date hereof between the
Note Issuer and Xxxxxx Trust and Savings Bank, as the Indenture Trustee, as the
same may be amended, supplemented or otherwise modified from time to time.
SECTION 1.02. OTHER DEFINITIONAL PROVISIONS.
(a) "AGREEMENT" means this Intangible Transition Property Sale Agreement,
as the same may be amended, supplemented or otherwise modified from time to
time.
(b) Non-capitalized terms used herein which are defined in the Public
Utilities Act shall, as the context requires, have the meanings assigned to such
terms in the Public Utilities Act, but without giving effect to amendments to
the Public Utilities Act after the date hereof which have a material adverse
effect on the Note Issuer or the Holders.
(c) All terms defined in this Agreement shall have the defined meaning
when used in any certificate or other document made or delivered pursuant hereto
unless otherwise defined therein.
(d) The words "hereof," "herein," "hereunder" and words of similar import,
when used in this Agreement, shall refer to this Agreement as a whole and not to
any particular provision of this Agreement; Section, Schedule and Exhibit
references contained in this Agreement are references to Sections, Schedules and
Exhibits in or to this Agreement unless otherwise specified; and the term
"including" shall mean "including without limitation".
(e) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as to the feminine and neuter forms of such terms.
ARTICLE II
CONVEYANCE OF 1998 TRANSITION PROPERTY AND RELATED ASSETS
SECTION 2.01. CONVEYANCE OF 1998 TRANSITION PROPERTY AND RELATED ASSETS.
In consideration of the Note Issuer's delivery of $864,000,000 to or upon the
order of the Grantee, the Grantee irrevocably sells, transfers, assigns, sets
over and otherwise conveys to the Note Issuer, without recourse (subject to the
obligations herein), all of its right, title and interest in, to and under:
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(a) the 1998 Transition Property (such sale, transfer, assignment, set
over and conveyance of the 1998 Transition Property includes, to the fullest
extent permitted by the Funding Law, the assignment of all revenues,
collections, claims, rights, payments, money or proceeds of or arising from the
IFCs pursuant to the 1998 Funding Order and the 1998 Initial Tariff), including,
without limitation, any Allocable IFC Revenue Amounts; and
(b) the Related Assets.
Such sale, transfer, assignment, set over and conveyance is expressly
stated to be a sale and absolute transfer, and pursuant to Section 18-108 of the
Funding Law, shall be treated as an absolute transfer (as in a true sale), and
not as a pledge or other financing, of the 1998 Transition Property. The
previous sentence is the express statement referred to in Section 18-108 of the
Funding Law. To the extent that, notwithstanding the Funding Law, the
Application and the 1998 Funding Order, the foregoing sale, transfer,
assignment, set over and conveyance is held not to be an absolute transfer (as
in a true sale) as contemplated under Section 18-108 of the Funding Law, then
such sale, transfer, assignment, set over and conveyance shall be treated as a
pledge of the 1998 Transition Property and the Grantee shall be deemed to have
granted a security interest to the Note Issuer in the 1998 Transition Property.
The Grantee takes the position that it has no rights in the 1998 Transition
Property to which such a security interest could attach because it has sold,
transferred, assigned, set over or otherwise conveyed all rights in, to and
under the 1998 Transition Property to the Note Issuer pursuant to Section 18-108
of the Funding Law.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF GRANTEE
The Grantee makes the following representations and warranties, as of the
Closing Date, on which the Note Issuer has relied in acquiring the 1998
Transition Property and Related Assets. These representations and warranties
shall survive the sale, transfer, assignment, set over and conveyance of the
1998 Transition Property and Related Assets to the Note Issuer, the pledge
thereof to the Indenture Trustee pursuant to the Indenture and the issuance of
the Notes.
SECTION 3.01. ORGANIZATION AND GOOD STANDING. The Grantee is duly
organized and validly existing as a limited liability company in good standing
under the laws of the State of Delaware, with the power and authority to own its
properties and to conduct its business as such properties are currently owned
and such business is presently conducted, and had at all relevant times, and
has, the requisite power, authority and legal right to own the 1998 Transition
Property and Related Assets.
SECTION 3.02. DUE QUALIFICATION. The Grantee is duly qualified to do
business as a limited liability company in good standing, and has obtained all
necessary licenses and approvals, in all jurisdictions in which the ownership or
lease of property or the conduct of its business shall require such
qualifications, licenses or approvals (except where the failure to so qualify
would not be reasonably likely to have a material adverse effect on the
Grantee's business, operations, assets, revenues or properties).
SECTION 3.03. POWER AND AUTHORITY. The Grantee has the requisite power
and authority to execute and deliver this Agreement and to carry out its terms;
the Grantee has full power and authority to sell and assign the 1998 Transition
Property and Related Assets to be sold and
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assigned to the Note Issuer and the Grantee has duly authorized such sale and
assignment to the Note Issuer by all necessary company action; and the
execution, delivery and performance of this Agreement have been duly
authorized by the Grantee by all necessary company action.
SECTION 3.04. BINDING OBLIGATION. This Agreement constitutes a legal,
valid and binding obligation of the Grantee enforceable against the Grantee in
accordance with its terms, subject to applicable insolvency, reorganization,
moratorium, fraudulent transfer and other similar laws relating to or affecting
creditors' rights generally from time to time in effect and to general
principles of equity (including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing), regardless of whether considered
in a proceeding in equity or at law.
SECTION 3.05. NO VIOLATION. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof do not
(i) conflict with, result in any breach of any of the terms and provisions of,
or constitute (with or without notice or lapse of time) a default under, the
Operating Agreement or Certificate of Formation of the Grantee, or any
indenture, agreement or other instrument to which the Grantee is a party or by
which it shall be bound; (ii) result in the creation or imposition of any Lien
upon any of its properties pursuant to the terms of any such indenture,
agreement or other instrument; or (iii) violate any law or any order, rule or
regulation applicable to the Grantee of any court or of any Federal or state
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over the Grantee or its properties.
SECTION 3.06. NO PROCEEDINGS. There are no proceedings or investigations
pending or, to the Grantee's knowledge, threatened, before any court, Federal or
state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Grantee
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or its properties involving or relating to the Grantee or the Note Issuer or,
to the Grantee's knowledge, any other Person: (i) asserting the invalidity of
the Funding Law, this Agreement, any of the other Basic Documents or the
Notes, (ii) seeking to prevent the issuance of the Notes or the consummation
of any of the transactions contemplated by this Agreement or any of the other
Basic Documents, (iii) seeking any determination or ruling that could
reasonably be expected to materially and adversely affect the Grantee's
performance of its obligations under, or the validity or enforceability of
this Agreement, any of the other Basic Documents or the Notes, or (iv) which
could reasonably be expected to adversely affect the Federal or state income
tax attributes of the Notes.
SECTION 3.07. APPROVALS. No approval, authorization, consent, order or
other action of or filing with, any court, Federal or state regulatory body,
administrative agency or other governmental instrumentality is required in
connection with the Grantee's execution and delivery of this Agreement, the
Grantee's performance of the transactions contemplated hereby or the Grantee's
fulfillment of the terms hereof except those that have been obtained or made.
SECTION 3.08. THE 1998 TRANSITION PROPERTY AND RELATED ASSETS.
(a) INFORMATION. At the Closing Date, all information provided by the
Grantee to the Note Issuer with respect to the 1998 Transition Property
(including the 1998 Funding Order and the 1998 Initial Tariff) and the Related
Assets is correct in all material respects.
(b) TITLE. It is the intention of the parties hereto that the transfer
and assignment herein contemplated constitute a sale and absolute transfer of
the 1998 Transition Property and Related Assets from the Grantee to the Note
Issuer and that no beneficial interest in or title to the 1998 Transition
Property and Related Assets shall be part of the Grantee's estate in the event
of the filing of a bankruptcy petition by or against the Grantee under any
bankruptcy law. No portion of the 1998
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Transition Property and Related Assets has been sold, transferred, assigned,
pledged or otherwise conveyed by the Grantee to any Person other than the
Note Issuer. At the Closing Date, immediately prior to the sale hereunder,
the Grantee owns the 1998 Transition Property and Related Assets, free and
clear of all Liens and rights of any other Person, and no offsets, defenses
or counterclaims exist or have been asserted with respect thereto.
(c) TRANSFER FILINGS. At the Closing Date, the 1998 Transition Property
and Related Assets have been validly transferred, assigned and sold from the
Grantee to the Note Issuer, the Note Issuer owns all the 1998 Transition
Property and Related Assets, free and clear of all Liens and rights of any other
Person (other than Liens created pursuant to the Indenture), and all filings to
be made by the Grantee (including filings with the ICC under the Funding Law)
necessary in any jurisdiction to give the Note Issuer a first priority perfected
ownership interest in the 1998 Transition Property and Related Assets have been
made. No further action is required under Illinois law to maintain such first
priority perfected ownership interest in the 1998 Transition Property. No
further action, other than any filings or other steps required to be taken with
respect to proceeds or on account of events occurring after the date hereof by
Sections 9-103, 9-304, 9-306, 9-402(7) or 9-403(2)- (3) of the UCC, is required
to maintain such first priority perfected ownership interest in the Related
Assets.
(d) STATE PLEDGE. 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
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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 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 reduce, postpone, impair or
terminate the 1998 Transition Property in a manner substantially impairing the
Indenture or the rights and remedies of the Holders (and consequently, may not
revoke, reduce, postpone or terminate the 1998 Funding Order or the rights of
the Holders to receive IFC Payments and all other proceeds of the 1998
Transition Property), until the Notes, together with interest thereon, are fully
paid and discharged. Notwithstanding the immediately preceding sentence, the
State would be allowed to effect a temporary impairment of the Holders' rights
if it could be shown that a temporary impairment was necessary to advance a
significant and legitimate public purpose.
(e) 1998 FUNDING ORDER AND TARIFFS; OTHER APPROVALS. (i) The 1998 Funding
Order pursuant to which the 1998 Transition Property has been created has been
duly entered by the ICC, is valid and binding, is Final and is in full force and
effect; (ii) the 1998 Initial Tariff is in full force and effect and is not
subject to modification by the ICC except as provided under the Funding Law;
(iii) as of the issuance of the Notes, the Notes are entitled to the protections
provided in Section 18-104(c) of the Funding Law and, accordingly, the 1998
Funding Order, the 1998 Transition Property
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and the IFCs are not revocable by the ICC; (iv) the ICC may not reduce,
postpone, impair or terminate the 1998 Transition Property, the 1998 Funding
Order or the IFCs; (v) the process by which the 1998 Funding Order was
adopted and approved and the 1998 Initial Tariff was filed, and the 1998
Funding Order and the 1998 Initial Tariff themselves, comply with all
applicable laws, rules and regulations and the ICC may not revoke, amend or
otherwise change the 1998 Initial Tariff in any manner which would defeat the
expectations of the Holders to receive IFC Payments on a timely basis; and
(vi) no other approval, authorization, consent, order or other action of, or
filing with, any court, Federal or state regulatory body, administrative
agency or other governmental instrumentality is required in connection with
the grant of the 1998 Transition Property, except those that have been
obtained or made.
(f) ASSUMPTIONS. At the Closing Date, the assumptions used in calculating
the IFCs are reasonable and made in good faith.
(g) CREATION OF 1998 TRANSITION PROPERTY. Upon the effectiveness of the
1998 Initial Tariff: (i) all of the 1998 Transition Property constitutes a
current property right vested in the Grantee; (ii) the 1998 Transition Property
includes, without limitation, (A) the right, title and interest in and to the
IFCs authorized under the 1998 Funding Order, as adjusted from time to time, (B)
the right, title and interest in and to all revenues, collections, claims,
payments, money or proceeds of or arising from the IFCs set forth in the 1998
Initial Tariff, and (C) all rights to compel Illinois Power, as Servicer (or any
successor), to file for and obtain adjustments to the IFCs pursuant to the 1998
Funding Order; and (iii) the Grantee is entitled to impose and collect the IFCs
described in the 1998 Funding Order and the 1998 Initial Tariff in an aggregate
amount equal to the principal amount of the Notes, all interest thereon, all
amounts required to be deposited in the Reserve Subaccount,
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the Overcollateralization Subaccount and the Capital Subaccount, and all
related fees, costs and expenses in respect of the Notes until they have been
paid in full, subject only to the $1.634 billion limitation set forth in the
1998 Funding Order as the maximum dollar amount of 1998 Transition Property
created thereunder.
(h) PROPERTY OF GRANTEE. To the fullest extent permitted by the Funding
Law and all other applicable law, the 1998 Transition Property and the right to
impose and collect IFCs contemplated thereunder constitute property rights of
the Grantee and its assigns, including the Note Issuer and its assigns
(including the Indenture Trustee on behalf of the Holders), which property has
been placed beyond the reach of Illinois Power and its creditors, as in a true
sale, and which property rights may not be limited, altered, impaired, reduced
or otherwise terminated by any subsequent actions of Illinois Power or any third
party and which shall, to the full extent permitted by law, be enforceable
against Illinois Power, its successors and assigns, and all other third parties
(including judicial lien creditors) claiming an interest therein by or through
Illinois Power or its successors and assigns.
(i) NATURE OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties set forth in this SECTION 3.08, insofar as they involve conclusions
of law, are made not on the basis that the Grantee purports to be a legal expert
or to be rendering legal advice, but rather to reflect the parties' good faith
understanding of the legal basis on which the parties are entering into this
Agreement and the other Basic Documents and the basis on which the Holders are
purchasing the Notes, and to reflect the parties' agreement that, if such
understanding turns out to be incorrect or inaccurate, the Grantee will be
obligated to indemnify the Note Issuer and its permitted assigns, and that the
Note Issuer and its permitted assigns will be entitled to enforce any rights and
remedies
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under the documents, on account of such inaccuracy to the same extent as if
the Grantee had breached any other representations or warranties hereunder.
ARTICLE IV
COVENANTS OF THE GRANTEE
SECTION 4.01. CORPORATE EXISTENCE. So long as any of the Notes are
outstanding, the Grantee (a) will keep in full force and effect its existence,
rights and franchises as a limited liability company under the laws of the State
of Delaware (unless it becomes, or any successor Grantee hereunder is or
becomes, organized under the laws of any other State or of the United States of
America, in which case the Grantee will keep in full effect its existence,
rights and franchises under the laws of such other jurisdiction), (b) will
obtain and preserve its qualification to do business, in each case to the extent
that in each such jurisdiction such existence or qualification is or shall be
necessary to protect the validity and enforceability of this Agreement, the
Basic Documents to which the Grantee is a party and each other instrument or
agreement necessary or appropriate to the proper administration of this
Agreement and the transactions contemplated hereby and (c) at all times
hereafter, the Grantee will not elect nor cause nor permit the Note Issuer to
elect to be classified as an association taxable as a corporation for federal
income tax purposes.
SECTION 4.02. NO LIENS. Except for the conveyances hereunder, the Grantee
will not sell, pledge, assign or transfer to any other Person, or grant, create,
incur, assume, suffer to exist or otherwise assert any Lien on, any of the 1998
Transition Property or Related Assets, or any interest therein, and the Grantee
shall defend the right, title and interest of the Note Issuer and the Indenture
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Trustee in, to and under the 1998 Transition Property and Related Assets,
against all claims of third parties claiming through or under the Grantee.
SECTION 4.03. DELIVERY OF COLLECTIONS. If the Grantee receives
collections in respect of the IFCs or the proceeds thereof, or in replacement
therefor, including, without limitation, any Allocable IFC Revenue Amounts, the
Grantee agrees to hold such payments in trust for the Servicer and to pay the
Servicer all payments received by the Grantee in respect thereof as soon as
practicable after receipt thereof by the Grantee, but in no event later than two
Business Days after such receipt.
SECTION 4.04. NOTICE OF LIENS. The Grantee shall notify the Note Issuer
and the Indenture Trustee in writing promptly after becoming aware of any Lien
on any of the 1998 Transition Property or Related Assets other than the
conveyances hereunder and under the Indenture.
SECTION 4.05. COMPLIANCE WITH LAW. The Grantee shall comply with its
organizational or governing documents and all laws, treaties, rules, regulations
and determinations of any governmental instrumentality applicable to it, to the
extent that failure to so comply would not materially adversely affect the Note
Issuer's or the Indenture Trustee's interests in the 1998 Transition Property or
Related Assets or under any of the Basic Documents or the Grantee's performance
of its obligations hereunder or under any of the other Basic Documents to which
it is party.
SECTION 4.06. COVENANTS RELATED TO THE 1998 TRANSITION PROPERTY, RELATED
ASSETS AND THE NOTES.
(a) So long as any of the Notes are outstanding, the Grantee shall
indicate in its financial statements that the Note Issuer and not the Grantee
owns the 1998 Transition Property and the Related Assets.
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(b) So long as any of the Notes are outstanding, the Grantee shall not own
or purchase any Notes.
(c) The Grantee agrees that upon its sale of the 1998 Transition Property
and Related Assets to the Note Issuer pursuant to this Agreement, (i) to the
fullest extent permitted by law, including applicable ICC Regulations, the Note
Issuer shall have all of the rights of the owner of the 1998 Transition Property
(including all of the rights originally held by the Grantee with respect to the
1998 Transition Property and Related Assets), including the right (subject to
the terms of the Servicing Agreement) to exercise any and all rights and
remedies to collect any amounts payable by any Customer or third party
collection agent, including any ARES, in respect of the 1998 Transition
Property, notwithstanding any objection or direction to the contrary by the
Grantee and (ii) any payment by any Customer or third party collection agent,
including any ARES, to the Note Issuer (or to the Servicer for the benefit of
the Note Issuer) shall discharge such Customer's or third party's obligations in
respect of the 1998 Transition Property to the extent of such payment,
notwithstanding any objection or direction to the contrary by the Grantee.
(d) So long as any of the Notes are outstanding, (i) except with respect
to federal and other applicable taxes, the Grantee shall not make any statement
or reference in respect of the 1998 Transition Property or the Related Assets
that is inconsistent with the ownership interest of the Note Issuer therein, and
(ii) the Grantee shall not take any action in respect of the 1998 Transition
Property or the Related Assets except as otherwise contemplated by the Basic
Documents.
SECTION 4.07. PROTECTION OF TITLE. The Grantee shall execute and file
such filings, including filings with the ICC pursuant to the Funding Law, and
cause to be executed and filed such filings, all in such manner and in such
places as may be required by law fully to preserve, maintain,
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and protect the interests of the Note Issuer in the 1998 Transition Property
and Related Assets, including all filings required under the Funding Law
relating to the transfer of the ownership or security interest in the 1998
Transition Property by the Grantee to the Note Issuer. The Grantee shall
deliver (or cause to be delivered) to the Note Issuer file-stamped copies of;
or filing receipts for, any document filed as provided above, promptly
following such filing. The Grantee shall institute any action or proceeding
necessary to compel performance by the ICC or the State of Illinois of any of
their obligations or duties under the Funding Law, the 1998 Funding Order,
the 1998 Initial Tariff or any amendatory tariff filed pursuant to Section
18-104(k) of the Funding Law, and the Grantee agrees to take such legal or
administrative actions, including defending against or instituting and
pursuing legal actions and appearing or testifying at hearings or similar
proceedings, as may be reasonably necessary to protect the Note Issuer and
the Holders from claims, state actions or other actions or proceedings of
third parties which, if successfully pursued, would result in a breach of any
representation set forth in Article III. The costs of any such actions or
proceedings will be payable by the Grantee. The Grantee designates the Note
Issuer as its agent and attorney-in-fact to execute any filings with the ICC,
financing statements, continuation statements or other instruments required
by the Note Issuer pursuant to this Section, it being understood that the
Note Issuer shall have no obligation to execute any such instruments.
SECTION 4.08. NONPETITION COVENANTS. Notwithstanding any prior
termination of this Agreement or the Indenture, but subject to the ICC's right
to order the sequestration and payment of revenues arising with respect to the
1998 Transition Property notwithstanding any bankruptcy, reorganization or other
insolvency proceedings with respect to Illinois Power, the Grantee, the Note
Issuer or any other grantee or assignee of the 1998 Transition Property pursuant
to Section 18-
14
107(c)(4) of the Funding Law, the Grantee shall not, prior to the date which
is one year and one day after the termination of the Indenture, acquiesce,
petition or otherwise invoke or cause or join with any other Person to invoke
the process of any court or governmental authority for the purpose of
commencing or sustaining a case against the Note Issuer under any Federal or
state bankruptcy, insolvency or similar law or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar
official of or for the Note Issuer or any substantial part of the property of
the Note Issuer, or ordering the winding up or liquidation of the affairs of
the Note Issuer.
SECTION 4.09. TAXES. So long as any of the Notes are outstanding, the
Grantee shall, and shall cause each of its subsidiaries to, pay all material
taxes, assessments and governmental charges imposed upon it or any of its
properties or assets or with respect to any of its franchises, business, income
or property before any penalty accrues thereon if the failure to pay any such
taxes, assessments and governmental charges would, after any applicable grace
periods, notices or other similar requirements, result in a lien on the 1998
Transition Property or Related Assets; provided that no such tax need be paid if
the Grantee or one of its subsidiaries is contesting the same in good faith by
appropriate proceedings promptly instituted and diligently conducted and if the
Grantee or such subsidiary has established appropriate reserves as shall be
required in conformity with generally accepted accounting principles.
SECTION 4.10. PERFORMANCE OF OBLIGATIONS; SERVICING.
(a) The Grantee may contract with other Persons to assist it in performing
its duties under this Agreement, and any performance of such duties by a Person
identified to the Note Issuer in an Officer's Certificate of the Grantee shall
be deemed to be action taken by the Grantee.
15
(b) Except as otherwise expressly permitted therein, the Grantee shall not
waive, amend, modify, supplement or terminate any Basic Document or any
provision thereof without the written consent of the Note Issuer (which consent
shall not be withheld if the Indenture Trustee shall have consented thereto).
(c) Upon any termination of the Servicer's rights and powers pursuant to
the Servicing Agreement, the Note Issuer shall promptly notify the Grantee. As
soon as a Successor Servicer is appointed, the Note Issuer shall notify the
Grantee of such appointment, specifying in such notice the name and address of
such Successor Servicer.
(d) Without derogating from the absolute nature of the assignment granted
to the Note Issuer under this Agreement or the rights of the Note Issuer
hereunder, the Grantee will not, without the prior written consent of the Note
Issuer, 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 Illinois Power or the Servicer under the Grant
Agreement or the Servicing Agreement, respectively. If any such amendment,
modification, supplement or waiver shall be so consented to by the Note Issuer
and the Note Issuer shall so request, the Grantee shall 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.
(e) The Grantee shall make all filings required under the Funding Law
relating to the transfer of the ownership or security interest in the 1998
Transition Property other than those required to be made by Illinois Power
pursuant to the Basic Documents.
16
SECTION 4.11. ADDITIONAL NEGATIVE COVENANTS. So long as any Notes are
Outstanding, the Grantee shall not:
(a) except as permitted by Section 5.02, sell, transfer, exchange or
otherwise dispose of any of its properties or assets;
(b) assert any claim against the Note Issuer by reason of the payment of
the taxes levied or assessed upon any part of the 1998 Transition Property or
the Related Assets;
(c) except as permitted by Section 5.02, terminate its existence or
dissolve or liquidate in whole or in part; or
(d) take any action that would be inconsistent with the Note Issuer's
absolute and first priority ownership interest in the 1998 Transition Property
and the Related Assets.
SECTION 4.12. NO OTHER BUSINESS. The Grantee shall not engage in any
business other than acquiring, owning, financing, transferring, assigning and
otherwise managing the 1998 Transition Property and Related Assets, and any
Subsequent Intangible Transition Property and Subsequent Related Assets, in the
manner contemplated by this Agreement and the Basic Documents (or in a similar
manner, in the case of Subsequent Transition Property and Subsequent Related
Assets) and activities incidental thereto.
SECTION 4.13. NO BORROWING. The Grantee shall not issue, incur, assume,
guarantee or otherwise become liable, directly or indirectly, for any
indebtedness.
SECTION 4.14. GUARANTEES LOANS, ADVANCES AND OTHER LIABILITIES. Except as
otherwise contemplated by the Grant Agreement, the Administration Agreement, the
Servicing Agreement or this Agreement, the Grantee shall not make any loan or
advance or credit to, or guarantee (directly or indirectly or by an instrument
having the effect of assuring another's payment
17
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 4.15. CAPITAL EXPENDITURES. Other than expenditures made out of
available funds in an aggregate amount not to exceed $25,000 in any calendar
year, the Grantee shall not make any expenditure (by long- term or operating
lease or otherwise) for capital assets (either realty or personalty).
SECTION 4.16. NOTICE OF DEFAULTS. The Grantee shall promptly notify the
Note Issuer, in writing, of each default under the Indenture and each material
default on the part of Illinois Power or the Servicer of their respective
obligations under the Grant Agreement or the Servicing Agreement.
SECTION 4.17. SEPARATE EXISTENCE. The Grantee shall:
(i) Maintain with commercial banking institutions its own deposit
account or accounts separate from those of any Affiliate of the Grantee.
The Grantee's funds will not be diverted to any other Person or for other
than the Grantee's use, and, except as may be expressly permitted by this
Agreement or the Servicing Agreement, the funds of the Grantee shall not be
commingled with those of any Affiliate of the Grantee.
(ii) Ensure that, to the extent that it shares the same officers or
other employees as any of its members or Affiliates, the salaries of and
the expenses related to providing benefits to such officers and other
employees shall be fairly allocated among such entities,
18
and each such entity shall bear its fair share of the salary and benefit
costs associated with all such common officers and employees.
(iii) Ensure that, to the extent that it jointly contracts with any
of its members or Affiliates to do business with vendors or service
providers or to share overhead expenses, the costs incurred in so doing
shall be allocated fairly among such entities, and each such entity shall
bear its fair share of such costs. To the extent that the Grantee
contracts or does business with vendors or service providers where the
goods and services provided are partially for the benefit of any other
Person, the costs incurred in so doing shall be fairly allocated to or
among such entities for whose benefit the goods and services are provided,
and each such entity shall bear its fair share of such costs. All material
transactions between the Grantee and any of its Affiliates shall be only on
an arm's-length basis.
(iv) Maintain a principal executive and administrative office
through which its business is conducted separate from those of its members
and Affiliates. To the extent that the Grantee and any of its members or
Affiliates have offices in contiguous space, there shall be fair and
appropriate allocation of overhead costs among them, and each such entity
shall bear its fair share of such expenses.
(v) Conduct its affairs strictly in accordance with its Operating
Agreement and observe all necessary, appropriate and customary formalities,
including, but not limited to, holding all regular and special members'
meetings, and meetings of the Grantee's management committee, appropriate
to authorize all action on behalf of the Grantee, keeping all resolutions
or consents necessary to authorize actions taken or to be taken,
19
and maintaining accurate and separate books, records and accounts,
including, but not limited to, payroll and intercompany transaction
accounts.
(vi) Ensure that its management committee (a) shall not include any
Person who is also a member of the Board of Directors of any of the
Grantee's Affiliates and (b) shall at all times include at least two
Independent Managers (as such term is defined in the Grantee's Operating
Agreement).
(vii) Act solely in its own name and through its own authorized
managers and agents, and no Affiliate of the Grantee shall be appointed to
act as agent of the Grantee, except as expressly contemplated by this
Agreement or the Servicing Agreement.
(viii) Ensure that no Affiliate of the Grantee shall advance funds to
the Grantee, or otherwise guaranty debts of, the Grantee, except as
provided in the Grantee's Operating Agreement; PROVIDED, HOWEVER, that an
Affiliate of the Grantee may provide funds to the Grantee in connection
with capitalization of the Grantee.
(ix) Not enter into any guaranty, or otherwise become liable, with
respect to any obligation of any Affiliate of the Grantee.
SECTION 4.18. FURTHER INSTRUMENTS AND ACTS. Upon request of the Note
Issuer, the Grantee 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 purposes of this Agreement.
SECTION 4.19. SUBSEQUENT TRANSITION PROPERTY.
(a) Notwithstanding any provision hereof to the contrary, the Grantee may
from time to time accept newly-created Subsequent Transition Property pursuant
to a related Subsequent Funding Order and a Subsequent Tariff, subject to the
conditions specified in paragraph (b) below.
20
(b) The Grantee shall be permitted to accept Subsequent Transition
Property only upon the satisfaction of each of the following conditions on or
prior to the related Subsequent Creation Date:
(i) Illinois Power shall have provided the Grantee, the Subsequent
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 Creation Date, specifying the Subsequent Creation Date for such
Subsequent 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 Transition Property to be created in favor of the
Grantee.
(ii) Illinois Power and the Grantee shall have delivered to the
Note Issuer a duly executed Subsequent Grant Agreement, and the Grantee
shall have delivered to the Note Issuer a duly executed Subsequent Sale
Agreement;
(iii) as of such Subsequent Creation Date, Illinois Power will not
be insolvent and will not have been made insolvent by such transfer and
Illinois Power will not be aware of any pending insolvency with respect to
itself;
(iv) the Rating Agency Condition shall have been satisfied with
respect to such creation;
(v) Illinois Power shall have delivered to the Grantee, the Note
Issuer, the Indenture Trustee and the Delaware Trustee an opinion of
independent tax counsel and/or a ruling from the IRS (as selected by, and
in form and substance reasonably satisfactory to Illinois Power) to the
effect that for federal income tax purposes (i) the issuance of the
21
Transitional Funding Order authorizing the collection of the Instrument
Funding Charges does not result in gross income to Illinois Power, the
Grantee or the Note Issuer, (ii) the assignment of the Intangible
Transition Property to the Note Issuer and the issuance of the Notes does
not result in gross income to Illinois Power, the Grantee or the Note
Issuer, and (iii) the Notes will be obligations of Illinois Power for
federal income tax purposes;
(vi) as of such Subsequent Creation Date, no breach by Illinois
Power of its representations, warranties or covenants in the Grant
Agreement and no Servicer Default shall exist;
(vii) as of such Subsequent Creation Date, the Grantee shall have
sufficient funds available to pay Illinois Power the consideration set
forth in the Subsequent Grant Agreement, and all conditions shall have been
satisfied for the issuance of one or more instruments under the Indenture
in order to provide such funds;
(viii) the Grantee shall have delivered to the Rating Agencies any
Opinions of Counsel requested by the Rating Agencies;
(ix) the Grantee and the Note Issuer shall have taken all actions
required to perfect the ownership interest or security interest (as the
case may be) of the Note Issuer in the Subsequent Transition Property and
Subsequent Related Assets and the proceeds thereof; free and clear of any
Liens; and
(x) the Grantee shall have delivered to the Note Issuer an
Officer's Certificate confirming the satisfaction of each condition
precedent specified in this paragraph (b).
22
ARTICLE V
THE GRANTEE
SECTION 5.01. LIABILITY OF GRANTEE; INDEMNITIES.
(a) The Grantee shall be liable in accordance herewith only to the extent
of the obligations specifically undertaken by the Grantee under this Agreement.
(b) The Grantee shall indemnify the Note Issuer, the Indenture Trustee and
the Delaware Trustee, and each of their respective officers, directors,
employees and agents for, and defend and hold harmless each such Person from and
against, any and all taxes (i) that may at any time be imposed on or asserted
against any such Person as a result of the grant of the 1998 Transition Property
to the Grantee, or (ii) that may be imposed on or asserted against any such
Person under existing law as of the Closing Date as a result of the Grantee's
ownership and assignment of the 1998 Transition Property, the Note Issuer's
issuance and sale of the Notes, or the other transactions contemplated herein,
including, in each case, any sales, gross receipt, general corporation, tangible
personal property, privilege or license taxes, but excluding any taxes imposed
as a result of a failure of such Person to withhold or remit taxes imposed with
respect to payments on any Note.
(c) The Grantee shall indemnify the Note Issuer, the Indenture Trustee,
the Delaware Trustee and the Holders and each of their respective officers,
directors, employees and agents for, and defend and hold harmless each such
Person from and against, any and all amounts of principal and interest on the
Notes not paid when due in accordance with their terms and the amount of any
deposits to the Note Issuer required to have been made in accordance with the
terms of the Basic Documents which are not made when so required and any and
all liabilities, obligations, claims, actions, suits, or payments, of any
kind whatsoever that may be imposed on or asserted against any
23
such Person, together with any reasonable costs and expenses incurred by such
Person (collectively, "Losses"), as a result of the Grantee's breach of any
of its representations, warranties or covenants contained in this Agreement.
(d) The Grantee shall pay any and all taxes levied or assessed upon all or
any part of the Note Issuer's property or assets based on existing law as of the
Closing Date.
(e) Indemnification under this Section 5.01 shall survive the resignation
or removal of the Indenture Trustee or the Delaware Trustee and the termination
of this Agreement and shall include reasonable fees and expenses of
investigation and litigation (including reasonable attorneys' fees and
expenses).
SECTION 5.02. MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE
OBLIGATIONS OF, GRANTEE. Any Person (a) into which the Grantee may be merged
or consolidated, (b) which may result from any merger or consolidation to
which the Grantee shall be a party or (c) which may succeed to the properties
and assets of the Grantee substantially as a whole, which Person in any of
the foregoing cases executes an agreement of assumption to perform every
obligation of the Grantee hereunder, shall be the successor to the Grantee
under this Agreement without further act on the part of any of the parties to
this Agreement; PROVIDED, HOWEVER, that (i) immediately after giving effect
to such transaction, no representation or warranty made pursuant to Article
III shall have been breached, (ii) the Grantee shall have delivered to the
Note Issuer and the Indenture Trustee an Officers' Certificate and an Opinion
of Counsel each stating that such consolidation, merger or succession and
such agreement of assumption comply with this Section and that all conditions
precedent, if any, provided for in this Agreement relating to such
transaction have been complied with, (iii) the Grantee shall have delivered
to the Note Issuer and the Indenture Trustee an Opinion
24
of Counsel either (A) stating that, in the opinion of such counsel, all
filings to be made by the Grantee, including filings with the ICC pursuant to
the Funding Law, have been executed and filed that are necessary to fully
preserve and protect the interest of the Note Issuer in the 1998 Transition
Property and Related Assets and reciting the details of such filings, or (B)
stating that, in the opinion of such counsel, no such action shall be
necessary to preserve and protect such interests (iv) the Rating Agencies
shall have received prior written notice of such transaction and (v) Illinois
Power 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, Illinois
Power, and which may be based on a ruling from the Internal Revenue Service)
to the effect that, for federal income tax purposes, such consolidation or
merger will not result in a material adverse federal income tax consequence
to Illinois Power, the Grantee, the Note Issuer, the Delaware Trustee, the
Indenture Trustee or the then existing Holders. Notwithstanding anything
herein to the contrary, the execution of the foregoing agreement of
assumption and compliance with clauses (i), (ii), (iii), (iv) and (v) above
shall be conditions to the consummation of any transaction referred to in
clauses (a), (b) or (c) above. When any Person acquires the properties and
assets of Illinois Power Securitization Limited Liability Company,
substantially as a whole and becomes the successor to Illinois Power
Securitization Limited Liability Company in accordance with the terms of this
Section 5.02, then upon the satisfaction of all of the other conditions of
this Section 5.02, Illinois Power Securitization Limited Liability Company
shall automatically and without further notice be released from its
obligations hereunder.
SECTION 5.03. LIMITATION ON LIABILITY OF GRANTEE AND OTHERS. The
Grantee and any director or officer or employee or agent of the Grantee may
rely in good faith on the advice of
25
counsel or on any document of any kind, PRIMA FACIE properly executed and
submitted by any Person, respecting any matters arising hereunder. Subject to
Section 4.07, the Grantee shall not be under any obligation to appear in,
prosecute or defend any legal action that shall not be incidental to its
obligations under this Agreement, and that in its opinion may involve it in
any expense or liability.
ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION 6.01. AMENDMENT. The Agreement may be amended by the Grantee
and the Note Issuer, with prior written notice given to the Rating Agencies
and the prior written consent of the Indenture Trustee, but without the
consent of any of the Holders, to cure any ambiguity, to correct or
supplement any provisions in this Agreement or for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions
in this Agreement or of modifying in any manner the rights of the Holders;
PROVIDED, HOWEVER, that such action shall not, as evidenced by an Officer's
Certificate delivered to the Note Issuer and the Indenture Trustee, adversely
affect in any material respect the interests of any Holder. This Agreement
may also be amended from time to time by the Grantee and the Note Issuer,
with prior written notice given to the Rating Agencies and the prior written
consent of the Indenture Trustee and Holders holding not less than a majority
of the Outstanding Amount of the Notes of all Series affected thereby, for
the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the Holders; PROVIDED, HOWEVER, that no such amendment
shall (a) increase or reduce in any manner the amount of; or accelerate or
delay the timing of; IFC
26
Collections or (b) reduce the aforesaid percentage of the Outstanding Amount
of the Notes, the Holders of which are required to consent to any such
amendment, without the consent of the Holders of all the outstanding Notes.
Promptly after the execution of any such amendment or consent, the Note
Issuer shall furnish a copy of such amendment or consent to the Indenture
Trustee and each of the Rating Agencies.
It shall not be necessary for the consent of Holders pursuant to this
Section to approve the particular form of any proposed amendment or consent, but
it shall be sufficient if such consent shall approve the substance thereof.
Prior to the execution of any amendment to this Agreement, the Indenture
Trustee shall be entitled to receive and rely upon an Opinion of Counsel stating
that the execution of such amendment is authorized or permitted by this
Agreement. The Indenture Trustee may, but shall not be obligated to, enter into
any such amendment which affects the Indenture Trustee's own rights, duties or
immunities under this Agreement or otherwise.
SECTION 6.02. NOTICES. All demands, notices and communications upon or
to the Grantee, the Note Issuer, the Indenture Trustee or the Rating Agencies
under this Agreement shall be in writing, personally delivered, mailed or
sent by telecopy or other similar form of rapid transmission, and shall be
deemed to have been duly given upon receipt (a) in the case of the Grantee,
Illinois Power Securitization Limited Liability Company, c/o Illinois Power
Company, 000 Xxxxx 00xx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000; (b) in the case of
the Note Issuer, to Illinois Power Special Purpose Trust, c/o First Union
Trust Company, National Association, One Xxxxxx Square, 000 Xxxx Xxxxxx, 0xx
Xxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust Administration,
with a copy to Xxxxxxxx, Xxxxxx & Finger, Attention: Xxxxxxx Xxxxx, (c) in
the case of the
27
Indenture Trustee, at the Corporate Trust Office; (d) in the case of Moody's,
to Xxxxx'x Investors Service, Inc., ABS Monitoring Department, 00 Xxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; (e) in the case of Standard & Poor's, to
Standard & Poor's Corporation, 00 Xxxxxxxx (00xx Xxxxx), Xxx Xxxx, Xxx Xxxx
00000, Attention: ABS Surveillance; (f) in the case of Fitch IBCA, to Fitch
IBCA, Inc., Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: ABS
Surveillance; or (g) in the case of Duff & Xxxxxx, to Xxxx & Xxxxxx Rating
Co., 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of
Asset Backed Monitoring Group; or as to each of the foregoing, at such other
address as shall be designated by written notice to the other parties.
SECTION 6.03. ASSIGNMENT. Notwithstanding anything to the contrary
contained herein, except as provided in Section 5.02, this Agreement may not be
assigned by the Grantee.
SECTION 6.04. LIMITATIONS ON RIGHTS OF OTHERS. The provisions of this
Agreement are solely for the benefit of the Grantee, the Note Issuer, the
Indenture Trustee, the Delaware Trustee and the Holders, and nothing in this
Agreement, whether express or implied, shall be construed to give to any other
Person any legal or equitable right, remedy or claim in the 1998 Transition
Property or Related Assets or under or in respect of this Agreement or any
covenants, conditions or provisions contained herein.
SECTION 6.05. SEVERABILITY. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof; and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
28
SECTION 6.06. SEPARATE COUNTERPARTS. This Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 6.07. HEADINGS. The headings of the various Articles and Sections
herein are for convenience of reference only and shall not define or limit any
of the terms or provisions hereof.
SECTION 6.08. GOVERNING LAW. This Agreement shall be construed in
accordance with the laws of the State of Illinois, without reference to its
conflict of law provisions, and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such laws.
SECTION 6.09. ASSIGNMENT TO INDENTURE TRUSTEE. The Grantee acknowledges
and consents to any transfer, pledge, assignment and grant of a security
interest by the Note Issuer to the Indenture Trustee pursuant to the Indenture
for the benefit of the Holders of all right, title and interest of the Note
Issuer in, to and under the 1998 Transition Property and Related Assets and the
proceeds thereof and the assignment of any or all of the Note Issuer's rights
and obligations hereunder to the Indenture Trustee.
SECTION 6.10. LIMITATION OF LIABILITY. It is expressly understood and
agreed by the parties hereto that (a) this Agreement is executed and
delivered by First Union Trust Company, National Association ("First Union")
not individually or personally but solely as Delaware Trustee on behalf of
the Note Issuer, in the exercise of the powers and authority conferred and
vested in it, (b) the representations, undertakings and agreements herein
made by the Delaware Trustee on behalf of the Note Issuer are made and
intended not as personal representations, undertakings and
29
agreements by First Union are made and intended for the purpose of binding
only the Note Issuer, (c) nothing herein contained shall be construed as
creating any liability on First Union individually or personally, to perform
any covenant either expressed or implied contained herein, all such
liability, if any, being expressly waived by the parties who are signatories
to this Agreement and by any Person claiming by, through or under such
parties and (d) under no circumstances shall First Union be personally liable
for the payment of any indebtedness or expense of the Note Issuer or be
personally liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Note Issuer
under this Agreement.
SECTION 6.11. LIMITATION OF LIABILITY. It is expressly understood and
agreed by the parties hereto that (a) this Agreement is executed and delivered
by Xxxxxx Trust and Savings Bank, not individually or personally but solely as
Indenture Trustee, in the exercise of the powers and authority conferred and
vested in it, and (b) nothing herein contained shall be construed as creating
any liability on Xxxxxx Trust and Savings Bank, individually or personally, to
perform any covenant either expressed or implied contained herein, all such
liability, if any, being expressly waived by the parties who are signatories to
this Agreement and by any person claiming by, through or under such parties.
SECTION 6.12. HOLDERS AS THIRD-PARTY BENEFICIARIES. The Grantee and
the Note Issuer agree that the Holders and the Indenture Trustee are express
third-party beneficiaries of the provisions of this Agreement and that the
Indenture Trustee, on behalf of the Holders, shall have the right to enforce
the terms hereof as provided in Section 6.09 hereof. The Grantee will take
all appropriate actions to perfect and maintain the perfection of the
Grantee's and the Note Issuer's ownership interest in any of the 1998
Transition Property and to perfect and maintain the perfection
30
of the Indenture Trustee's security interest in such 1998 Transition Property
and all other Note Collateral.
SECTION 6.13. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. In addition
to the survival of representations and warranties as set forth in Article
III, (a) the agreements, representations warranties, indemnities and other
statements of the Grantee set forth in or made pursuant to this Agreement
will remain in full force and effect and will survive the grant of the 1998
Transition Property and the issuance and delivery of the Notes and (b) to the
fullest extent permitted by applicable law, the provisions of Articles III,
IV and V hereof shall survive the termination and cancellation or invalidity
of this Agreement.
31
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers as of the day and year first above
written.
ILLINOIS POWER SECURITIZATION LIMITED
LIABILITY COMPANY, Grantee
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
ILLINOIS POWER SPECIAL PURPOSE TRUST, Note
Issuer
By First Union Trust Company, National
Association, not in its individual capacity
but solely as Delaware Trustee
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Acknowledged and accepted:
XXXXXX TRUST AND SAVINGS BANK,
not in its individual capacity
but solely as
Indenture Trustee
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
