TRANSFERRED ENVIRONMENTAL CONTROL PROPERTY SALE AGREEMENT between MP ENVIRONMENTAL FUNDING LLC Issuer and MP RENAISSANCE FUNDING, LLC Seller Dated as of April 11, 2007
Exhibit
10.2
EXECUTION
COPY
TRANSFERRED
ENVIRONMENTAL CONTROL PROPERTY
between
Issuer
and
MP
RENAISSANCE FUNDING, LLC
Seller
Dated
as
of April 11, 2007
TABLE
OF
CONTENTS
Page | |||||||
ARTICLE
I
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|||||||
Definitions
|
|||||||
Section
1.01.
|
Definitions
|
3
|
|||||
Section
1.02.
|
Other
Definitional Provisions
|
3
|
|||||
|
|||||||
ARTICLE
II
|
|||||||
|
|||||||
Conveyance
of Transferred Environmental Control Property
|
|||||||
Section
2.01.
|
Conveyance
of Initial Transferred Environmental Control Property
|
4
|
|||||
Section
2.02.
|
Conveyance
of Subsequent Transferred Environmental Control Property
|
5
|
|||||
Section
2.03.
|
Conditions
to Conveyance of Transferred Environmental Control
Property
|
5
|
|||||
ARTICLE
III
|
|||||||
|
|||||||
Representations
and Warranties of Seller
|
|||||||
Section
3.01.
|
Organization
and Good Standing
|
6
|
|||||
Section
3.02.
|
Due
Qualification
|
6
|
|||||
Section
3.03.
|
Power
and Authority
|
6
|
|||||
Section
3.04.
|
Binding
Obligation
|
6
|
|||||
Section
3.05.
|
No
Violation
|
7
|
|||||
Section
3.06.
|
No
Proceedings
|
7
|
|||||
Section
3.07.
|
Approvals
|
7
|
|||||
Section
3.08.
|
The
Transferred Environmental Control Property
|
7
|
|||||
Section
3.09.
|
The
Statute and the Financing Order
|
8
|
|||||
Section
3.10.
|
State
Pledge
|
8
|
|||||
Section
3.11.
|
The
Environmental Control Property Rights
|
9
|
|||||
|
|||||||
ARTICLE
IV
|
|||||||
|
|||||||
Covenants
of the Seller
|
|||||||
Section
4.01.
|
Existence
as a Limited Liability Company
|
9
|
|||||
Section
4.02.
|
No
Liens or Conveyances
|
9
|
|||||
Section
4.03.
|
Delivery
of Collections
|
10
|
|||||
Section
4.04.
|
Notice
of Liens
|
10
|
|||||
Section
4.05.
|
Compliance
with Law
|
10
|
|||||
Section
4.06.
|
Use
of Proceeds
|
10
|
|||||
Section
4.07.
|
Covenants
Related to Transferred Environmental Control Property
|
10
|
|||||
Section
4.08.
|
Notice
of Indemnification Events
|
11
|
i
Section
4.09.
|
Protection
of Title
|
11
|
|||||
Section
4.10.
|
Taxes
|
12
|
|||||
Section
4.11.
|
Notice
of Breach
|
12
|
|||||
Section
4.12.
|
Termination
|
12
|
|||||
Section
4.13.
|
Further
Covenants
|
12
|
|||||
|
|||||||
ARTICLE
V
|
|||||||
|
|||||||
The
Seller
|
|||||||
Section
5.01.
|
Liability
of Seller; Indemnities
|
13
|
|||||
Section
5.02.
|
Merger
or Consolidation of, or Assumption of the Obligations of,
Seller
|
14
|
|||||
Section
5.03.
|
Limitation
on Liability of Seller and Others
|
15
|
|||||
Section
5.04.
|
Opinions
of Counsel
|
15
|
|||||
ARTICLE
VI
|
|||||||
Miscellaneous
Provisions
|
|||||||
Section
6.01.
|
Amendment
|
16
|
|||||
Section
6.02.
|
Notices
|
17
|
|||||
Section
6.03.
|
Assignment
|
18
|
|||||
Section
6.04.
|
Limitations
on Rights of Others
|
18
|
|||||
Section
6.05.
|
Severability
|
18
|
|||||
Section
6.06.
|
Separate
Counterparts
|
18
|
|||||
Section
6.07.
|
Headings
|
18
|
|||||
Section
6.08.
|
GOVERNING
LAW
|
18
|
|||||
Section
6.09.
|
Assignment
to Indenture Trustee
|
18
|
|||||
Section
6.10.
|
Nonpetition
Covenant
|
18
|
|||||
Section
6.11.
|
Perfection
|
19
|
|||||
Section
6.12.
|
Limitation
of Liability
|
19
|
|||||
|
|||||||
Exhibit
A
|
Form
of Xxxx of Sale
|
|
|||||
Exhibit
B
|
Pending
Litigation
|
|
|||||
Appendix
A
|
Master
Definitions
|
|
ii
TRANSFERRED
ENVIRONMENTAL CONTROL PROPERTY SALE AGREEMENT dated as of April 11, 2007 (as
amended, restated, supplemented or otherwise modified from time to time,
“this
Agreement”),
between MP ENVIRONMENTAL FUNDING LLC, a Delaware limited liability company
(the
“Issuer”),
and
MP RENAISSANCE FUNDING, LLC, a Delaware limited liability company, and its
successors in interest to the extent permitted hereunder, as Seller (the
“Seller”).
WHEREAS
the Seller received a contribution from the Transferor of Environmental Control
Property created pursuant to the Statute and the Financing Order;
and
WHEREAS
the Issuer desires to purchase from time to time Transferred Environmental
Control Property; and
WHEREAS
the Seller is willing to sell Transferred Environmental Control Property to
the
Issuer; and
WHEREAS
the Issuer, in order to finance the purchase of the Transferred Environmental
Control Property, will from time to time issue Environmental Control Bonds
under
the Indenture; and
WHEREAS
the Issuer, to secure its obligations under all Environmental Control Bonds
and
the Indenture, will pledge its right, title and interest in the Transferred
Environmental Control Property to the Indenture Trustee for the benefit of
the
Environmental Control Bondholders; and
WHEREAS
the Issuer has determined that the transactions contemplated by the Basic
Documents are in the best interest of the Issuer and its creditors and represent
a prudent and advisable course of action that does not impair the rights and
interests of the Issuer’s creditors; and
WHEREAS
the PSCWV or its attorney will enforce this Agreement pursuant to the Financing
Order for the benefit of Customers to the extent permitted by applicable
Requirements of Law.
NOW,
THEREFORE, in consideration of the premises and the mutual covenants herein
contained and intending to be legally bound hereby, the parties hereto agree
as
follows:
ARTICLE
I
Definitions
Section
1.01. Definitions.
Capitalized terms used but not otherwise defined herein have the meanings
assigned to them in Appendix A of this Agreement.
Section
1.02. Other
Definitional Provisions.
(a)
The
words “hereof”, “herein”, “hereunder” and words of similar import when used in
this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement; Section, Schedule and
3
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”.
(b) The
definitions contained in this Agreement are applicable to the singular as well
as the plural forms of such terms and to the masculine as well as to the
feminine and neuter genders of such terms.
ARTICLE
II
Conveyance
of Transferred Environmental Control Property
Section
2.01. Conveyance
of Initial Transferred Environmental Control Property.
(a)
In
consideration of the Issuer’s delivery to or upon the order of the Seller of
$337,591,496, subject to the conditions specified in Section
2.03,
the
Seller, pursuant to a Xxxx of Sale, will irrevocably sell, transfer, assign,
set
over and otherwise convey to the Issuer, without recourse (subject to the
obligations herein), all right, title and interest of the Seller in and to
the
Initial Transferred Environmental Control Property created pursuant to the
Statute and in accordance with the Financing Order (such sale, transfer,
assignment, set over and conveyance of the Initial Transferred Environmental
Control Property will include, to the fullest extent permitted by the Statute,
the assignment of all revenues, collections, claims, rights, payments, money
or
proceeds of or arising from the Environmental Control Charges related to the
Initial Transferred Environmental Control Property, as the same may be adjusted
from time to time). Such sale, transfer, assignment, set over and conveyance
will be expressly stated to be a sale and, pursuant to
Section 24-2-4e(m)(1) of the Statute, shall be treated as an absolute
transfer of all of the Seller’s right, title and interest (as in a true sale),
and not as a pledge or other secured transaction, of the Initial Transferred
Environmental Control Property. The Seller and the Issuer agree and confirm
that
after giving effect to the sale contemplated by such Xxxx of Sale, the Seller
has no rights in the Initial Transferred Environmental Control Property to
which
a security interest of creditors of the Seller could attach because it has
sold
all rights in the Initial Transferred Environmental Control Property to the
Issuer pursuant to Section 24-2-4e(m)(1) of the Statute. If such sale, transfer,
assignment, setting over and conveyance is held by any court of competent
jurisdiction not to be a true sale as provided in Section 24-2-4e(m)(1) of
the Statute, then such sale, transfer, assignment, setting over and conveyance
shall be treated as a pledge of the Initial Transferred Environmental Control
Property and as the creation of a security interest (within the meaning of
the
Statute and the UCC) in the Initial Transferred Environmental Control Property
and, without prejudice to its position that it has absolutely transferred all
of
its rights in the Initial Transferred Environmental Control Property to the
Issuer, the Seller hereby grants a security interest in the Initial Transferred
Environmental Control Property to the Issuer (and, to the extent necessary
to
qualify the grant as a security interest under the Statute and the UCC, to
the
Indenture Trustee for the benefit of the Environmental Control Bondholders
to
secure the right of the Issuer under the Basic Documents to receive the
Environmental Control Charges and all other Transferred Environmental Control
Property).
(b) Subject
to the conditions specified in Section
2.03,
the
Issuer, pursuant to a Xxxx of Sale, will purchase the Initial Transferred
Environmental Control Property from the Seller for the consideration set forth
in paragraph (a) above.
4
(c) The
Seller and the Issuer each acknowledge and agree that the purchase price for
the
Initial Transferred Environmental Control Property sold pursuant to the Xxxx
of
Sale is equal to its fair market value at the time of sale.
Section
2.02. Conveyance
of Subsequent Transferred Environmental Control Property.
The
Seller may from time to time offer to sell additional Transferred Environmental
Control Property to the Issuer, subject to the conditions specified in
Section
2.03.
If any
such offer is accepted by the Issuer, such Subsequent Transferred Environmental
Control Property shall be sold to the Issuer effective on the Subsequent Sale
Date specified in the related Addition Notice, subject to the satisfaction
or
waiver of the conditions specified in Section
2.03.
Section
2.03. Conditions
to Conveyance of Transferred Environmental Control Property.
The
Seller shall be permitted to sell Transferred Environmental Control Property
to
the Issuer only upon the satisfaction or waiver of each of the following
conditions:
(i) on
or
prior to the Initial Sale Date or Subsequent Sale Date, as applicable, the
Seller shall have delivered to the Issuer a duly executed Xxxx of Sale
identifying the Transferred Environmental Control Property to be conveyed on
that date;
(ii) as
of the
Initial Sale Date or the Subsequent Sale Date, as applicable, the Seller was
not
insolvent and will not have been made insolvent by such sale and the Seller
is
not aware of any pending insolvency with respect to itself;
(iii) as
of the
Initial Sale Date or the Subsequent Sale Date, as applicable, no breach by
the
Seller of its representations, warranties or covenants in this Agreement shall
exist; no Servicer Default shall have occurred and be continuing; and no breach
by the Transferor of its representations and warranties in the Transfer
Agreement shall exist;
(iv) as
of the
Initial Sale Date or the Subsequent Sale Date, as applicable, (A) the Issuer
shall have sufficient funds available to pay the purchase price for the
Transferred Environmental Control Property to be conveyed on such date and
(B)
all conditions to the issuance of one or more Series of Environmental Control
Bonds intended to provide such funds set forth in the Indenture shall have
been
satisfied or waived;
(v) on
or
prior to the Initial Sale Date or the Subsequent Sale Date, as applicable,
the
Seller shall have taken all action required to transfer to the Issuer ownership
of the Transferred Environmental Control Property to be conveyed on such date,
free and clear of all Liens other than Liens created pursuant to the Basic
Documents; and the Issuer or the Servicer, on behalf of the Issuer, shall have
taken any action required for the Issuer to grant the Indenture Trustee a first
priority perfected security interest in the Collateral and maintain such
security interest as of such date;
(vi) in
the
case of a sale of Subsequent Transferred Environmental Control Property only,
on
or prior to such Subsequent Sale Date, the Seller shall have provided the Issuer
and the Rating Agencies with a timely Addition Notice;
5
(vii) the
Seller shall have delivered to the Rating Agencies and the Issuer (A) an Opinion
of Counsel with respect to the transfer of the Transferred Environmental Control
Property then being conveyed to the Issuer and (B) the Opinion of Counsel
required by Section
5.04(a);
(viii) the
Seller shall have delivered to the Indenture Trustee and the Issuer an Officers’
Certificate confirming the satisfaction of each condition precedent specified
in
this Section
2.03;
and
(ix) the
Seller shall have received the purchase price set forth in Section
2.01(a).
ARTICLE
III
Representations
and Warranties of Seller
As
of the
Initial Sale Date and as of any Subsequent Sale Date, as applicable, the Seller
makes the following representations and warranties on which the Issuer has
relied and will rely in acquiring Transferred Environmental Control Property.
The Seller agrees and acknowledges that the following representations and
warranties are also for the benefit of the Indenture Trustee, as collateral
assignee of the Issuer pursuant to the Indenture. The representations and
warranties shall survive the sale of Transferred Environmental Control Property
to the Issuer and the pledges and assignments thereof permitted
hereby.
Section
3.01. Organization
and Good Standing.
The
Seller is a limited liability company duly organized, validly existing and
in
good standing under the laws of the State of Delaware, with limited liability
company power and authority to own its properties and conduct its
business.
Section
3.02. Due
Qualification.
The
Seller is duly qualified to do business as a foreign limited liability company
in good standing, and has obtained all necessary licenses and approvals, in
all
foreign 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 or obtain such licenses and approvals would
not
be reasonably likely to have a material adverse effect on the Seller’s business,
operations, assets, revenues or properties).
Section
3.03. Power
and Authority.
The
Seller has the requisite limited liability company power and authority to
execute and deliver this Agreement and to carry out its terms; the Seller has
full limited liability company power and authority to own the Environmental
Control Property and sell and assign the Initial Transferred Environmental
Control Property, in the case of the Initial Sale Date, and the Subsequent
Transferred Environmental Control Property, in the case of each Subsequent
Sale
Date, as applicable, and the Seller has duly authorized such sale and assignment
to the Issuer by all necessary limited liability company action; and the
execution, delivery and performance of this Agreement has been duly authorized
by the Seller by all necessary limited liability company action.
Section
3.04. Binding
Obligation.
This
Agreement constitutes a legal, valid and binding obligation of the Seller
enforceable against the Seller in accordance with its terms, subject to
6
bankruptcy,
receivership, insolvency, fraudulent
transfer, reorganization, moratorium or other laws relating to or affecting
creditors’ rights generally from time to time in effect and to general
principles of equity (regardless of whether considered in a proceeding in equity
or at law).
Section
3.05. No
Violation.
The
consummation of the transactions contemplated by this Agreement does not
conflict with the organizational documents of the Seller, or any indenture,
or
other agreement or instrument to which the Seller is a party or by which it
is
bound; 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 (other than may be granted under the Basic Documents or any Liens
created by the Issuer pursuant to the Financing Order) or violate any
Requirements of Law applicable to the Seller or its properties.
Section
3.06. No
Proceedings.
There
are no proceedings or investigations pending or, to the Seller’s knowledge,
threatened, before any court, federal or state regulatory body, administrative
agency or other governmental instrumentality having jurisdiction over the Seller
or its properties (i) asserting the invalidity of the Basic Documents, the
Environmental Control Bonds, the Statute or the Financing Order, (ii) seeking
to
prevent the issuance of the Environmental Control Bonds or the consummation
of
any of the transactions contemplated by the Basic Documents (iii) challenging
the Seller’s treatment of the Environmental Control Bonds as debt of the Seller
for federal and state tax purposes, or (iv) except as described in Exhibit
B,
seeking any determination or ruling that could reasonably be expected to
materially and adversely affect the performance by the Seller of its obligations
under, or the validity or enforceability of, the Basic Documents, the
Environmental Control Bonds or the Financing Order.
Section
3.07. Approvals.
Except
for UCC filings or filings under the Statute, no approval, authorization,
consent, order or other action of, or filing with, any court, federal or state
regulatory body, administrative agency or other governmental instrumentality
is
required in connection with the execution and delivery by the Seller of this
Agreement, the performance by the Seller of the transactions contemplated hereby
or the fulfillment by the Seller of the terms hereof, except those that have
been obtained or made.
Section
3.08. The
Transferred Environmental Control Property.
(a) All
information provided by the Seller to the Issuer in writing with respect to
the
Transferred Environmental Control Property is correct in all material
respects.
(b) The
transfer, sale, assignment and conveyance of the Transferred Environmental
Control Property constitutes a sale or other absolute transfer of all of the
Seller’s right, title and interest in the Initial Transferred Environmental
Control Property or the Subsequent Transferred Environmental Control Property,
as the case may be, to the Issuer, and, upon the execution of this Agreement,
Seller will have no right, title or interest in the Initial Transferred
Environmental Control Property or the Subsequent Transferred Environmental
Control Property, as the case may be, and the Initial Transferred Environmental
Control Property or the Subsequent Transferred Environmental Control Property,
as the case may be, would not be part of the estate of the Seller as debtor
in
the event of a filing of a bankruptcy petition.
7
(c) The
Seller is the sole owner of the Transferred Environmental Control Property
sold
to the Issuer on the Initial Sale Date or Subsequent Sale Date, as applicable,
and such sale has been made free and clear of all Liens other than Liens created
by the Issuer pursuant to the Indenture. All actions or filings, including
filings with the Secretary of State of West Virginia under the Statute and
UCC
and with the Delaware Secretary of State under the Delaware UCC, necessary
to
give the Issuer a valid first priority perfected ownership interest in the
Transferred Environmental Control Property and to grant the Indenture Trustee
a
first priority perfected ownership interest in the Transferred Environmental
Control property, free and clear of all Liens of the Seller or anyone claiming
through the Seller have been made.
Section
3.09. Solvency
of Seller.
After
giving effect to the sale of any Transferred Environmental Control Property
hereunder, the Seller (i) is solvent and expects to remain solvent, (ii) is
adequately capitalized to conduct its business and affairs considering its
size
and the nature of its business and intended purposes, (iii) is not engaged
in
nor does it expect to engage in a business for which its remaining property
represents an unreasonably small amount of capital, (iv) reasonably believes
that it will be able to pay its debts as they come due and (v) is able to pay
its debts as they mature and does not intend to incur, or believe that it will
incur, indebtedness that it will not be able to repay at its
maturity.
Section
3.10. The
Statute and the Financing Order.
(a) The
Financing Order has been issued by the PSCWV in accordance with the Statute
and
in compliance with all applicable Requirements of Law. The Financing Order
became effective pursuant to the Statute, is in full force and effect and is
final and nonappealable
(b) The
Environmental Control Bonds are entitled to the protections provided by the
Statute, the Financing Order is not subject to impairment, and the rights to
impose, collect and adjust the Environmental Control Charges are irrevocable
and
not subject to impairment or adjustment, except for the periodic True-Up
Adjustments to the Environmental Control Charges provided for in the Financing
Order.
Section
3.11. State
Pledge.
(a) The
State
of West Virginia may not take or permit any action which would impair the value
of the Environmental Control Property or reduce or alter, except for periodic
True-Up Adjustments allowed under the Financing Order, or impair the
Environmental Control Charges to be imposed, collected or remitted for the
benefit of Environmental Control Bondholders, until all principal, interest
or
other charges incurred or contracts to be performed in connection with the
Environmental Control Bonds are paid or performed in full.
(b) The
State
of West Virginia, including the PSCWV, cannot take any action that substantially
impairs the rights of the Environmental Control Bondholders unless such action
is reasonable exercise of the State of West Virginia’s sovereign powers and of a
character to further a legitimate public purpose. Under the takings clauses
of
the Xxxx Xxxxxxxx Xxxxxxxxxxxx xxx xxx Xxxxxx Xxxxxx Constitution, the state
cannot repeal or amend the Statute in contravention of the State Pledge, as
described in Section
3.10(a),
unless
just compensation, as determined by a court of competition jurisdiction, is
provided to the Environmental Control Bondholders; but
8
nothing
in this paragraph precludes any limitation or
alteration of the rights of the Environmental Control Bondholders if full
compensation is made by law for the full protection of the Environmental Control
Charges and of the Environmental Control Bondholders or any assignee or party
entering into a contract with the Seller.
(c) There
is
no order by a court providing for the limitation or other impairment of the
Statute, Financing Order, Environmental Control Property or Environmental
Control Charges, or any rights arising under them, or that seeks to enjoin
the
performance of any obligations under the Financing Order which is materially
adverse to the position of the Environmental Control Bondholders.
(d) The
voters of the State of West Virginia have no right of referendum or initiative
to amend, repeal or revoke the Statute in a manner that would impair the
security of the Environmental Control Bondholders.
Section
3.12. The
Environmental Control Property Rights.
(a) The
Environmental Control Property constitutes a present property right that will
continue to exist until the Environmental Control Bonds are paid in full and
the
financing costs associated with the Environmental Control Bonds have been
recovered in full.
(b) The
Environmental Control Property consists of (a) the irrevocable right of the
Seller under the Financing Order to impose, collect and receive Environmental
Control Charges in the amount necessary to provide for full recovery of
principal and interest on the Environmental Control Bonds, together with the
Financing Costs; (b) the right under the Financing Order to obtain periodic
True-Up Adjustments of the Environmental Control Charges and (c) all proceeds
arising out of the rights and interests described in (a) and (b). The
Environmental Control Property does not include any right to any revenues,
collections, claims, rights, payments, money or proceeds of or arising from
certain tax charges.
ARTICLE
IV
Covenants
of the Seller
Section
4.01. Existence
as a Limited Liability Company.
Subject
to Section
5.02,
so long
as Environmental Control Bonds of any Series remain Outstanding, the Seller
will
keep in full force and effect its existence as a limited liability company
and
remain in good standing, in each case under the laws of the jurisdiction of
its
formation, 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 Agreement and each other instrument or
agreement to which the Seller is a party necessary to the proper administration
of this Agreement and the transactions contemplated hereby.
Section
4.02. No
Liens or Conveyances.
Except
for the conveyances hereunder, the Seller will not sell, pledge, assign or
transfer to any other Person, or grant, create, incur, assume or suffer to
exist
any Lien on, any of the Transferred Environmental Control Property, whether
now
existing or hereafter created, or any interest therein. The Seller shall not
at
any time assert any Lien against or with respect to any Transferred
Environmental Control Property, and shall
9
defend
the right, title and interest of the Issuer
and the Indenture Trustee, as collateral assignee of the Issuer, in, to and
under the Transferred Environmental Control Property, whether now existing
or
hereafter created, against all claims of third parties claiming through or
under
the Seller.
Section
4.03. Delivery
of Collections.
If the
Seller receives collections in respect of the Environmental Control Charges,
or
in respect of the Environmental Control Property or the proceeds thereof, the
Seller agrees to pay the Servicer all estimated collections received by the
Seller in respect thereof as soon as practicable after receipt is known by
the
Seller, but in no event later than two Business Days after such receipt is
known
by the Seller, and
the
Seller shall reconcile such estimated amounts with the Servicer within 25
Business Days after the estimated collections are paid to the
Servicer.
Section
4.04. Notice
of Liens.
The
Seller shall notify the Issuer and the Indenture Trustee promptly after becoming
aware of any Lien on any Environmental Control Property other than the
conveyances hereunder or under the Transfer Agreement, the Indenture or the
other Basic Documents.
Section
4.05. Compliance
with Law.
The
Seller hereby agrees to materially comply with its organizational or governing
documents and all Requirements of Law applicable to the Seller, except to the
extent that failure to so comply would not have a material adverse affect on
the
Issuer’s or the Indenture Trustee’s interests in the Transferred Environmental
Control Property or under any of the Basic Documents, the timing or amount
of
Environmental Control Charges payable by customers or the Seller’s performance
of its material obligations hereunder or under any of the other Basic Documents
to which it is a party.
Section
4.06. Use
of
Proceeds.
The
Seller will use the proceeds of the sale of the Transferred Environmental
Control Property in accordance with the Financing Order.
Section
4.07. Covenants
Related to Transferred Environmental Control Property.
(a) So
long
as Environmental Control Bonds of any Series remain Outstanding, the Seller
shall treat the Environmental Control Bonds as debt of the Seller for federal
income tax purposes to the extent permitted by applicable Requirements of
Law.
(b) So
long
as Environmental Control Bonds of any Series remain Outstanding, the Seller
shall (i) treat the Environmental Control Bonds as the debt of the Issuer,
except for financial accounting or tax purposes, (ii) clearly disclose in its
financial statements that it is not the owner of the Transferred Environmental
Control Property and that the assets of the Issuer are not available to pay
creditors of the Seller or any of its Affiliates, (iii) not own or purchase
any
Environmental Control Bonds, and (iv) clearly disclose the effects of all
transactions between the Seller and the Issuer in accordance with
GAAP.
(c) The
Seller agrees that upon the sale by the Seller of the Transferred Environmental
Control Property to the Issuer pursuant to a Xxxx of Sale, (i) to the fullest
extent permitted by applicable Requirements of Law, the Issuer shall have all
of
the rights originally held by the Seller with respect to the Transferred
Environmental Control Property, including the
10
right
to collect any amounts payable by any Customer
or Third Party in respect of such Transferred Environmental Control Property,
notwithstanding any objection or direction to the contrary by the Seller and
(ii) any payment by any Customer or Third Party to the Issuer shall discharge
such Customer’s or such Third Party’s obligations in respect of such Transferred
Environmental Control Property to the extent of such payment, notwithstanding
any objection or direction to the contrary by the Seller.
(d) So
long
as Environmental Control Bonds of any Series remain Outstanding, the Seller
(i)
in all proceedings relating directly or indirectly to the Transferred
Environmental Control Property, will affirmatively certify and confirm that
it
has sold all of its rights and interests in and to the Transferred Environmental
Control Property (other than for financial accounting or tax purposes), (ii)
shall not make any statement or reference in respect of the Transferred
Environmental Control Property that is inconsistent with the ownership thereof
by the Issuer (other than for financial accounting or tax purposes), (iii)
will
not take any action in respect of the Transferred Environmental Control Property
except as contemplated by the Basic Documents and (iv) will not sell
Environmental Control Property under a Subsequent Financing Order in connection
with the issuance of additional series of Environmental Control Bonds unless
the
Rating Agency Condition has been satisfied.
Section
4.08. Notice
of Indemnification Events.
The
Seller shall deliver to the Issuer and the Indenture Trustee promptly after
having obtained knowledge thereof, written notice in an Officers’ Certificate of
any Indemnification Event or any event which, with the giving of notice or
the
passage of time, would become an Indemnification Event.
Section
4.09. Protection
of Title.
(a) The
Seller shall execute and file such filings, including filings with the PSCWV
pursuant to the Statute and the Financing Order, and cause to be executed and
filed such filings, all in such manner and in such places as may be required
by
applicable Requirements of Law fully to preserve, maintain, and protect the
interests of the Issuer, the Indenture Trustee and the Environmental Control
Bondholders in the Transferred Environmental Control Property, including all
filings required under the Statute relating to the transfer of the ownership
or
security interest in the Transferred Environmental Control Property by the
Seller to the Issuer.
(b) The
Seller shall deliver (or cause to be delivered) to the Issuer file-stamped
copies of, or filing receipts for, any document filed as provided above, as
soon
as available following such filing.
(c) The
Seller 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 (i) to protect
the Issuer, the Indenture Trustee and the Environmental Control Bondholders
from
claims, state actions or other actions or proceedings of third parties which,
if
successfully pursued, would result in a breach of any representation or warranty
set forth in Article III or (ii) to block or overturn any attempts to cause
a
repeal of, modification of or supplement to the Statute or the Financing Order
or the rights of holders of Transferred Environmental Control Property by
legislative enactment or
11
constitutional
amendment that would be materially
adverse to the holders of Transferred Environmental Control Property.
(d) The
Seller will institute any action or proceeding necessary to compel performance
by the PSCWV, the State of West Virginia or any of their respective agents
of
any of their obligations or duties under the Statute, any Financing Order or
any
Issuance Advice Letter. The Seller will comply with all filing requirements,
including any post closing filings, in accordance with the Financing
Order.
The
costs
of any action described in this Section
4.09
shall be
payable from the Collection Account as an Operating Expense in accordance with
Section 8.02(e) of the Indenture. The Seller’s obligations pursuant to this
Section
4.09
shall
survive and continue notwithstanding that payment of such Operating Expense
may
be delayed pursuant to the terms of the Indenture it being understood that
the
Seller may be required initially to advance its own fund to satisfy its
obligations hereunder).
Section
4.10. Taxes.
So long
as any of the Environmental Control Bonds are Outstanding, the Seller shall,
and
shall cause each of its subsidiaries to, pay all material taxes, including
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 Transferred
Environmental Control Property; provided that no such tax need be paid if the
Seller or one of its affiliates is contesting the same in good faith by
appropriate proceedings promptly instituted and diligently conducted and if
the
Seller or such affiliate has established appropriate reserves as shall be
required in conformity with generally accepted accounting
principles.
Section
4.11. Notice
of Breach.
Promptly after obtaining knowledge of any breach in any material respect of
its
representations and warranties in this Agreement, the Seller will notify the
Issuer and the Rating Agencies of the breach.
Section
4.12. Termination.
Even if
this Agreement or the Indenture is terminated, the Seller will not, prior to
the
date which is one year and one day after the termination of the Indenture,
petition or otherwise invoke or cause the Issuer to invoke the process of any
court or Governmental Authority for the purpose of commencing or sustaining
an
involuntary case against the Issuer or any substantial part of the Issuer’s
property under any federal or state bankruptcy, insolvency or similar law,
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator
or
other similar official, or ordering the winding up or liquidation of the
Issuer’s affairs.
Section
4.13. Further
Covenants.
Upon
the Issuer’s request, the Seller will execute and deliver such further
instruments and do such further acts as may be necessary to carry out more
effectively the provisions and purposes of this Agreement.
12
ARTICLE
V
The
Seller
Section
5.01. Liability
of Seller; Indemnities.
(a) The
Seller shall be liable in accordance herewith only to the extent of the
obligations specifically undertaken by the Seller under this
Agreement.
(b) The
Seller shall indemnify the Issuer and the Indenture Trustee, for itself and
on
behalf of the Environmental Control Bondholders and each of their respective
affiliates, members, managers, officers, directors, employees and agents, and
defend and hold harmless each such Person from and against, any and all taxes
(other than any taxes imposed on Environmental Control Bondholders solely as
a
result of their ownership of Environmental Control Bonds) that may at any time
be imposed on or asserted against any such Person under existing law as of
the
Initial Sale Date or Subsequent Sale Date as a result of (i) the sale and
assignment of the Environmental Control Property to the Issuer, (ii) the
acquisition or holding of the Environmental Control Property by the Issuer
or
(iii) the issuance and sale of the Environmental Control Bonds by the Issuer,
including any sales, gross receipts, general corporation, single business,
personal property, privilege, franchise or license taxes, but excluding any
taxes imposed as a result of a failure of such person to withhold or remit
taxes
with respect to payments on any Environmental Control Bonds, it being understood
that the Environmental Control Bondholders shall be entitled to enforce their
rights against the Seller under this Section
5.01(b)
solely
through a cause of action brought for their benefit by the Indenture
Trustee.
(c) The
Seller shall indemnify the Issuer, the Indenture Trustee, for itself and on
behalf of the Environmental Control Bondholders, and each of their respective
affiliates, members, managers, officers, directors, employees and agents, and
defend and hold harmless each such Person from and against, (i) any and all
amounts of principal of and interest on the Environmental Control Bonds not
paid
when due or when scheduled to be paid in accordance with their terms, (ii)
the
amount of any deposits to the Issuer required to have been made in accordance
with the terms of the Basic Documents or any Financing Order which are not
made
when so required, and (iii) any and all other liabilities, obligations, losses,
claims, damages, payment, costs or expenses incurred by any of these persons,
in
each case as a result of the Seller’s breach of any of its representations,
warranties or covenants contained in this Agreement; each of which the Seller
will have a 30-day opportunity to cure upon notice from us of a material breach
of a covenant.
(d) The
Seller shall indemnify the Issuer, the Indenture Trustee, for itself and on
behalf of the Environmental Control Bondholders, and each of their respective
affiliates, members, managers, officers, directors, employees and agents, and
defend and hold harmless each such Person from and against, any and all Losses
that may be imposed on, incurred by or asserted against any such Person as
a
result of (x) the Seller’s willful misconduct, bad faith or negligence in the
performance of its duties or observance of its covenants under this Agreement,
(y) the Seller’s reckless disregard of its obligations and duties under this
Agreement or the Transferor’s reckless disregard of its obligations and duties
under the Transfer Agreement or (z)
13
the
Seller’s breach of any of its representations or
warranties contained in this Agreement or the Transferor’s breach of any of its
representations or warranties contained in the Transfer Agreement (any event
described in any of the foregoing clauses (x), (y) or (z), an “Indemnification
Event”).
Amounts on deposit in the Excess Funds Subaccount and the Capital Subaccount
shall not be available to satisfy any Losses for which indemnification is
provided in this Agreement.
(e) The
Seller also will indemnify the PSCWV, for the benefit of Customers, for any
and
all Losses, including but not limited to Losses in the form of higher
Environmental Control Charges, that Customers may incur by reason of
(i) any failure of the Seller’s representations or warranties in this
Agreement, (ii) any breach of the Seller’s covenants in this Agreement,
(iii) any failure of the Transferor’s representations in the Transfer
Agreement or (iv) breach of the Transferor’s covenants in the Transfer
Agreement.
(f) The
Seller shall indemnify the Indenture Trustee its officers, directors and agents
for, and defend and hold harmless each such Person from and against, any and
all
Losses that may be imposed upon, incurred by or asserted against any such Person
as a result of the acceptance or performance of the trusts and duties contained
herein and in the Basic Documents to which the Indenture Trustee is a party,
except to the extent that any such Loss shall be due to the willful misfeasance,
bad faith or negligence of the Indenture Trustee. Such amounts shall be
deposited into the Collection Account and distributed in accordance with the
Indenture.
(g) The
Seller’s indemnification obligations under Sections
5.01(b), (c), (d) and (f)
for
events occurring prior to the removal or resignation of the Indenture Trustee
or
the termination of this Agreement shall survive the resignation or removal
of
the Indenture Trustee or the termination of this Agreement and shall include
reasonable fees and expenses of investigation and litigation (including the
Indenture Trustee’s reasonable attorney’s fees and expenses) and will rank in
priority with other general, unsecured obligations of the Seller. Any amounts
indemnified by the Seller pursuant to its obligations under Sections
5.01(b), (c), (d) or (f)
shall be
deposited into the Collection Account and distributed in accordance with the
Indenture. The Seller shall not indemnify any party under this Section
5.01
for any
changes in law after the Initial Sale Date or the Subsequent Sale Date, as
applicable.
Section
5.02. Merger
or Consolidation of, or Assumption of the Obligations of, Seller.
Any
Person (a) into which the Seller may be merged or consolidated or which succeeds
to all or the majority of the Seller’s electric distribution business, (b) which
results from the division of the Seller into two or more Persons and which
succeeds to all or the majority of the Seller’s electric distribution business,
(c) which may result from any merger or consolidation to which the Seller shall
be a party and which succeeds to all or the majority of the Seller’s electric
distribution business, or (d) which may succeed to the properties and assets
of
the Seller substantially as a whole and which succeeds to all or the majority
of
the Seller’s electric distribution business, which Person in any of the
foregoing cases executes an agreement of assumption to perform every obligation
of the Seller under this Agreement, shall be the successor to the Seller
hereunder without the execution or filing of any document or any further act
by
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 and no Servicer Default, and
no
event that, after notice or lapse of time, or both,
14
would
become a Servicer Default, shall have occurred
and be continuing, (ii) the Seller shall have delivered to the 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 Rating Agencies shall have received prior written notice of
such
transaction, (iv) the Seller shall have delivered to the Issuer and the
Indenture Trustee an Opinion of Counsel either (A) stating that, in the opinion
of such counsel, all filings, including filings by the Seller with the PSCWV
pursuant to the Statute and UCC filings, have been executed and filed that
are
necessary fully to preserve and protect the interest of the Issuer in the
Transferred Environmental Control Property and reciting the details of such
filings or (B) stating that, in the opinion of such counsel, no such action
shall be necessary to preserve and protect such interests and (v) the Seller
shall have delivered to the Issuer and the Indenture Trustee an Opinion of
Counsel from independent tax counsel stating to the effect that, for the federal
income tax purposes, such consolidation, merger or succession to, and assumption
of, the obligations of the Seller will not result in a material adverse federal
income tax consequence to the Issuer, the Seller, the Indenture Trustee or
the
Environmental Control Bondholders. Notwithstanding anything herein to the
contrary, the execution of the above described agreement of assumption and
compliance with clauses (i), (ii), (iii) and (iv) above shall be conditions
precedent to the consummation of any transaction referred to in clauses (a),
(b), (c) or (d) above.
Section
5.03. Limitation
on Liability of Seller and Others.
The
Seller and any director or officer or employee or agent of the Seller may rely
in good faith on the advice of 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
4.08,
the
Seller shall not be under any obligation to appear in, prosecute or defend
any
legal action that is not incidental to its obligations under this Agreement,
and
that in its opinion may involve it in any expense or liability. The Seller
will
not be liable for any Losses resulting solely from a downgrade in the ratings
on
the Environmental Control Bonds or any consequential, incidental or indirect
damages, including any loss of market value of the Environmental Control Bonds,
resulting from any downgrade of the ratings of the Environmental Control Bonds.
Section
5.04. Opinions
of Counsel.
The
Seller shall deliver to the Issuer and the Indenture Trustee: (a) promptly
after
the execution and delivery of this Agreement and of each amendment hereto or
to
the Servicing Agreement and on each Subsequent Sale Date, an Opinion of Counsel
either (i) to the effect that, in the opinion of such counsel, all filings,
including filings with the PSCWV pursuant to the Statute, that are necessary
to
fully preserve and protect the interests of the Issuer in the Transferred
Environmental Control Property have been executed and filed, and reciting the
details of such filings or referring to prior Opinions of Counsel in which
such
details are given, or (ii) to the effect that, in the opinion of such counsel,
no such action shall be necessary to preserve and protect such interest; and
(b)
within 90 days after the beginning of each calendar year beginning with the
first calendar year beginning more than three months after the Initial Sale
Date, an Opinion of Counsel, dated as of a date during such 90-day period,
either (i) to the effect that, in the opinion of such counsel, all filings
with
the PSCWV or otherwise pursuant to the Statute, have been executed and filed
that are necessary to preserve fully and protect fully the interest of the
Issuer in the Transferred Environmental Control Property, and reciting the
details of such filings or referring to prior Opinions of Counsel in
15
which
such details are given, or (ii) to the effect
that, in the opinion of such counsel, no such action shall be necessary to
preserve and protect such interest. Each Opinion of Counsel referred to in
clause (a) or (b) above shall specify any action necessary (as of the date
of
such opinion) to be taken in the following year to preserve and protect such
interest.
ARTICLE
VI
Miscellaneous
Provisions
Section
6.01. Amendment.
(a) Subject
to Section
6.01(b)
below,
this Agreement may be amended by the Seller and the Issuer, with the prior
written consent of the Indenture Trustee and the satisfaction of the Rating
Agency Condition. Promptly after the execution of any such amendment and
consent, the Issuer shall furnish written notification of the substance of
such
amendment or consent to each of the Rating Agencies. Prior to the execution
of
any amendment to this Agreement, the Issuer and 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 and
the
Opinion of Counsel referred to in Section 3.10 of the Servicing Agreement.
Subject to paragraph (b) below, the Issuer and the Indenture Trustee may, but
shall not be obligated to, enter into any such amendment which affects their
own
rights, duties or immunities under this Agreement or otherwise.
(b) Notwithstanding
anything to the contrary in Section
6.01(a),
no
amendment or modification of this Agreement shall be effective except upon
satisfaction of the conditions precedent in this Section
6.01(b).
(i) PSCWV
Condition.
At
least 16 days prior to the effectiveness of any such amendment or
modification, and after obtaining the other necessary approvals set forth in
Section 6.01(a),
except
for the consent of the Indenture Trustee and the Environmental Control
Bondholders if the consent of the Environmental Control Bondholders is required
or sought by the Indenture Trustee in connection with such amendment or
modification, the Issuer shall have delivered to the PSCWV’s executive director
and general counsel written notification of any proposed amendment or
modification, which notification shall contain:
(A) a
reference to Case Nos. 05-0402-E-CN and 05-0750-E-PC and any other case
number under which a Financing Order has been issued;
(B) an
Officer’s Certificate stating that the proposed amendment or modification has
been approved by all parties to this Agreement; and
(C) a
statement identifying the person to whom the PSCWV is to address any response
to
the proposed amendment or to request additional time.
(ii) The
PSCWV
or its authorized representative shall, within 15 days of receiving the
notification complying with Section
6.01(b)(i)
above,
either:
16
(A) provide
notice of its determination that the proposed amendment or modification will
not
under any circumstances have the effect of increasing the ongoing qualified
costs related to the Environmental Control Bonds,
(B) provide
notice of its consent or lack of consent to the person specified in Section
6.01(b)(i)(C)
above,
or
(C) be
conclusively deemed to have consented to the proposed amendment or
modification,
unless,
within 15 days of receiving the notification complying with Section
6.01(b)(i)
above,
the PSCWV or its authorized representative delivers to the office of the person
specified in Section
6.01(b)(i)(C)
above
with a written statement requesting an additional amount of time not to exceed
15 days in which to consider whether to consent to the proposed amendment or
modification. If the PSCWV or its authorized representative requests an
extension of time in the manner set forth in the preceding sentence, then the
PSCWV shall either provide notice of its consent or lack of consent or notice
of
its determination that the proposed amendment or modification will not under
any
circumstances increase ongoing qualified costs to the person specified in
Section
6.01(b)(i)(C)
above
not later than the last day of such extension of time or be conclusively deemed
to have consented to the proposed amendment or modification on the last day
of
such extension of time. Any amendment or modification requiring the consent
of
the PSCWV shall become effective on the later of (i) the date proposed by the
parties to such amendment or modification or (ii) the first day after the
expiration of the 15-day period provided for in this Section
6.01(b)(ii),
or, if
such period has been extended pursuant hereto, the first day after the
expiration of such period as so extended.
(c) For
the
purpose of this Section
6.01,
an
“authorized representative” of the PSCWV means any person authorized to act on
behalf of the PSCWV, as evidenced by an Opinion of Counsel (which may be the
general counsel) to the PSCWV.
Section
6.02. Notices.
All
demands, notices and communications upon or to the Seller, the Issuer, the
Indenture Trustee, the Rating Agencies or the PSCWV under this Agreement
shall
be in writing, delivered personally, via facsimile, reputable overnight courier
or by certified mail, return-receipt requested, and shall be deemed to have
been
duly given upon receipt (a) in the case of the Seller, to MP Renaissance
Funding, LLC, 0000-X Xxxxxxxxxxx Xxxxx, Xxxxx #0, Xxx Xxxxx, Xxxxxx 00000,
Attention of Xxxxxxxx Xxxxx, (b) in the case of the Issuer, to MP Environmental
Funding LLC, 0000-X Xxxxxxxxxxx Xxxxx, Xxxxx #0, Xxx Xxxxx, Xxxxxx 00000,
Attention of Xxxxxxxx Xxxxx, (c) in the case of the Indenture Trustee, at
the
Corporate Trust Office, (d) in the case of Moody’s, to Xxxxx’x Investors
Service, Inc., Asset Finance Group, 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000,
(e) in the case of Standard & Poor’s, to in the case of Standard &
Poor’s, to Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc., 00 Xxxxx Xxxxxx, 00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 10041-0003, Attention of ABS Surveillance Group - New
Assets,
(f) in the case of Fitch, to Fitch, Inc., Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx,
Xxx
Xxxx 00000, Attention of ABS Surveillance, and (g) in the case of the PSCWV,
to
Public Service Commission of West Virginia, 000 Xxxxxx Xxxxxx, X.X. Xxx 000,
00
Xxxxxxxxxx,
Xxxx Xxxxxxxx 00000, Attention of
Executive Secretary; 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 Seller.
Section
6.04. Limitations
on Rights of Others.
The
provisions of this Agreement are solely for the benefit of the Seller, the
Issuer, the PSCWV and the Indenture Trustee, on behalf of itself and the
Environmental Control Bondholders, and nothing in this Agreement, whether
express or implied, shall be construed to give to any other Person any legal
or
equitable right, remedy or claim in the Collateral 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.
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 WEST
VIRGINIA, 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 Issuer and to Indenture Trustee.
(a) The
Seller hereby assigns to the Issuer all of the Seller’s rights in, to and under
the Transfer Agreement.
(b) The
Seller hereby acknowledges and consents to the mortgage, pledge, assignment
and
grant of a security interest by the Issuer to the Indenture Trustee pursuant
to
the Indenture for the benefit of the Environmental Control Bondholders of all
right, title and interest of the Issuer in, to and under the Transferred
Environmental Control Property and the proceeds thereof and the assignment
of
any or all of the Issuer’s rights hereunder to the Indenture Trustee.
Section
6.10. Nonpetition
Covenant.
Notwithstanding any prior termination of this Agreement or the Indenture, but
subject to a court of competent jurisdiction’s rights to order the sequestration
and payment of Environmental Control Revenues arising with respect to the
Transferred Environmental Control Property upon application by the Issuer or
the
Indenture
18
Trustee
notwithstanding any bankruptcy,
reorganization or other insolvency proceedings with respect to the debtor,
pledgor or transferor of the Transferred Environmental Control Property pursuant
to Section 24-2-4e(k)(4) of the Statute, the Seller shall not, prior to the
date
which is one year and one day after the termination of the Indenture, petition
or otherwise invoke or cause the Issuer to invoke the process of any court
or
Governmental Authority for the purpose of commencing or sustaining an
involuntary case against the Issuer under any federal or state bankruptcy,
insolvency or similar law or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Issuer or
any
substantial part of the property of the Issuer, or ordering the winding up
or
liquidation of the affairs of the Issuer.
Section
6.11. Perfection.
In
accordance with Section 24-2-4e(m) of the Statute, (i) upon the Financing Order
creating the Environmental Control Property becoming effective, (ii) the
execution and delivery of this Agreement and the related Xxxx of Sale, (iii)
the
receipt of value and (iv) the filing of a financing statement with the office
of
the Secretary of State of West Virginia, a transfer of an interest in the
Environmental Control Property will be perfected as against all third persons,
including any judicial lien creditors, other than creditors holding a prior
security interest, ownership interest or assignment in the Environmental Control
Property previously perfected in accordance with the relevant provisions of
the
Statute.
Section
6.12. Limitation
of Liability.
It is expressly understood and agreed by the parties hereto that this
Agreement is executed and delivered by U.S. Bank National Association, not
individually or personally but solely as Indenture Trustee for the benefit
of
the Environmental Control Bondholders, in the exercise of the powers and
authority conferred and vested in it, and nothing herein contained shall
be
construed as creating any liability on U.S. Bank National Association,
individually or personally, to perform any covenant either expressed or implied
contained herein, all such liability, if any, being expressly waived by the
parties who are signatories to this Agreement and by any Person claiming
by,
through or under such parties; provided, however, that this provision shall
not
protect U.S. Bank National Association against any liability that would
otherwise be imposed by reason of willful misconduct, bad faith or negligence
in
the performance of duties or by reason of reckless disregard of obligations
or
duties under this Agreement.
19
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.
MP
ENVIRONMENTAL FUNDING LLC, Issuer
by
/s/ Xxxxxx X. Xxxxxxxx
Title: Vice President
Title: Vice President
MP
RENAISSANCE FUNDING, LLC, Seller,
by
/s/ Xxxxxxxx X. Xxxxx
Title: Vice President, Treasuer and Secretary
Title: Vice President, Treasuer and Secretary
Acknowledged
and Accepted:
U.S.
Bank
National Association, not in its
individual
capacity but solely as Indenture
Trustee
on behalf of the Environmental Control
Bondholders.
by
s/ Xxxxxxx X. Xxxxx
Title: Vice President
Title: Vice President
20
EXHIBIT
A
FORM
OF
XXXX OF SALE
1. This
Xxxx
of Sale is being delivered pursuant to the Transferred Environmental Control
Property Sale Agreement, dated as of April 11, 2007 (as amended, restated,
supplemented or otherwise modified from time to time, the “Sale Agreement”),
between MP Renaissance Funding, LLC (the “Seller”) and MP Environmental Funding
LLC (the “Issuer”) and is subject to all of the terms, conditions and
limitations contained in the Sale Agreement. All capitalized terms used but
not
defined herein have the respective meanings ascribed thereto in the Sale
Agreement.
2. In
consideration of the Issuer’s delivery to or upon the order of the Seller of
$337,591,496, the Seller does hereby irrevocably sell, transfer, assign, set
over and otherwise convey to the Issuer, without recourse (subject to the
obligations in the Sale Agreement), all right, title and interest of the Seller
in and to the Transferred Environmental Control Property created by the Statute
and in accordance with the Financing Order related to the Senior Secured Sinking
Fund Environmental Control Bonds, Series A and identified on Schedule 1
hereto (the “Initial Transferred Environmental Control Property”) (such sale,
transfer, assignment, set over and conveyance of the Initial Transferred
Environmental Control Property includes, to the fullest extent permitted by
the
Statute, the assignment of all revenues, collections, claims, rights, payments,
money or proceeds of or arising from the Environmental Control Charges related
to the Initial Transferred Environmental Control Property, as the same may
be
adjusted from time to time). Such sale, transfer, assignment, set over and
conveyance is hereby expressly stated to be a sale and, pursuant to Section
24-2-4e(m)(1) of the Statute, shall be treated as an absolute transfer of all
of
the Seller’s right, title and interest (as in a true sale), and not as a pledge
or other secured transaction, of the Initial Transferred Environmental Control
Property. The Seller agrees and confirms that after giving effect to the sale
contemplated hereby, it has no rights in the Initial Transferred Environmental
Control Property to which a security interest of creditors of the Seller could
attach because it has sold all rights in the Initial Transferred Environmental
Control Property to the Issuer pursuant to Section 24-2-4e(m)(1) of the
Statute.
3. The
Issuer does hereby purchase the Initial Transferred Environmental Control
Property from the Seller for the consideration set forth in paragraph 2
above.
4. The
Seller and the Issuer each acknowledge and agree that the purchase price for
the
Initial Transferred Environmental Control Property sold pursuant to this Xxxx
of
Sale and the Sale Agreement is equal to its fair market value at the time of
sale.
5. The
Seller confirms that each of the representations and warranties on the part
of
the Seller contained in the Sale Agreement are true and correct in all respects
on the date hereof as if made on the date hereof.
21
6. This
Xxxx
of Sale 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.
7. This
Xxxx
of Sale shall be construed in accordance with the laws of the State of West
Virginia, 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.
22
IN
WITNESS WHEREOF, the Seller and the Issuer have duly executed this Xxxx of
Sale
as of this 11th day of April, 2007.
MP
RENAISSANCE FUNDING, LLC,
by_______________________________________
Name:
Title:
by_______________________________________
Name:
Title:
23
SCHEDULE
1
Transferred
Environmental Control Property and the related Environmental Control Charges
with respect to the Senior Secured Sinking Fund Environmental Control
Bonds, Series A identified in the Pricing Advice Letter filed with the
PSCWV on April 4, 2007.
EXHIBIT
B
PENDING
LITIGATION
None.