EXHIBIT 10.4
INTERCREDITOR AGREEMENT
INTERCREDITOR AGREEMENT dated as of September [17], 2001 among
AEP Credit, Inc., a Delaware corporation (the "Initial Receivables
Purchaser"),
[identify Receivables Trustee] (the "Receivables Trustee"),
Reliant Energy, Incorporated, a Texas corporation (in its individual
capacity, the "Company" and in its capacity as the initial servicer of the
Eligible Assets referred to below, including any successor in such
capacity, the "Receivables Servicer"), and
Reliant Energy Transition Bond Company, LLC, a Delaware limited liability
company (the "Transition Bond Issuer"),
Bankers Trust Company, a New York banking corporation (the "Transition Bond
Trustee"),
Reliant Energy, Incorporated, a Texas corporation, in its capacity as the
initial servicer of the Transition Property referred to below (including
any successor in such capacity, the "TC Servicer"),
Reliant Energy, Incorporated, a Texas corporation (together with its
successors and assigns, in its capacity as collection agent for the benefit
of the TC Servicer, the Receivables Servicer and any Other Receivables
Servicers, the "Utility"),
WHEREAS, pursuant to the terms of the Receivables Agreements (as such term
and the other terms used but not otherwise defined herein are defined in Annex I
hereto), the Company has sold and may hereafter sell its Outstanding Receivables
other than Excluded Receivables (the "Eligible Assets") and the Collections to
the Initial Receivables Purchaser and the Initial Receivables Purchaser has
engaged or will engage in one or more Receivables Financings; and
WHEREAS, pursuant to the terms of [identify Transition Property Sale
Agreement] (as it may hereafter from time to time be amended, restated or
modified, the "Sale Agreement"), the Company has sold to the Transition Bond
Issuer certain assets known as "Transition Property" which includes the
"Transition Charges"; and
WHEREAS, pursuant to the terms of [identify Bond Indenture] (as it may
hereafter from time to time be amended, restated or modified and as supplemented
from time to time by one or more Series Supplements, such Series Supplements and
Indenture being collectively referred to herein as the "Indenture"), the
Transition Bond Issuer, among other things, has granted to the Transition Bond
Trustee a security interest in certain of its assets, including the Transition
Property, to secure the Transition Bonds issued pursuant to the Indenture
("Transition Bonds"); and
WHEREAS, pursuant to the terms of the Transition Property Servicing
Agreement dated as of the date hereof between the Transition Bond Issuer and the
TC Servicer (as it may hereafter from time to time be amended, restated or
modified, the "Servicing Agreement"), the
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TC Servicer has agreed to provide for the benefit of the Transition Bond Issuer
servicing functions with respect to the Transition Charges; and
WHEREAS, pursuant to the terms of the Receivables Agreements, the
Receivables Servicer has agreed with the Initial Receivables Purchaser to
provide servicing, subservicing and collection functions with respect to the
Eligible Assets and the Collections related to Eligible Assets; and
WHEREAS, the Purchase Agreement provides that the Transition Property and
the Transition Charges do not constitute Outstanding Receivables; and
WHEREAS, Collections with respect to Outstanding Receivables are and will
be the subject of the Receivables Agreements, and collections with respect to
Transition Charges are the subject of the Sale Agreement, the Indenture and the
Servicing Agreement; and
WHEREAS, the parties hereto wish to agree upon their respective rights
relating to such Collections, collections and any bank accounts into which the
same may be deposited, as well as other matters of common interest to them which
arise under or result from the coexistence of the Receivables Agreements, the
Sale Agreement, the Indenture and the Servicing Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto agree as follows:
SECTION 1. Acknowledgment of Ownership Interests and Security Interests. The
Initial Receivables Purchaser and the Receivables Trustee (collectively, the
"Receivables Parties") and the Receivables Servicer hereby acknowledge the
ownership interest of the Transition Bond Issuer in the Transition Property,
including the Transition Charges and the revenues, collections, claims, rights,
payments, money and proceeds arising therefrom, and the security interest in
favor of the Transition Bond Trustee for the benefit of itself, the holders of
Transition Bonds and any credit enhancement provider (as defined in the
Indenture) in the Transition Property (the "Transition Bond Trustee Collateral")
as granted by the Transition Bond Issuer in the Granting Clause of the
Indenture. The Transition Bond Trustee, the Transition Bond Issuer and the TC
Servicer hereby acknowledge the ownership interest of the Initial Receivables
Purchaser in the Outstanding Receivables and the revenues, Collections, claims,
rights, payments, money and proceeds arising therefrom, and the interests of the
Receivables Financing Entities, whether now existing or hereafter created, in
the Eligible Assets and the related property. The Receivables Parties further
acknowledge that, notwithstanding anything in the Receivables Agreements to the
contrary, none of the Receivables Parties has any interest in the Transition
Property or the Transition Bond Trustee Collateral and each of the Transition
Bond Trustee, the Transition Bond Issuer and the TC Servicer further acknowledge
that, notwithstanding anything in the Sale Agreement or the Indenture to the
contrary, it has no interest in the Eligible Assets.
SECTION 2. Deposit Accounts. The Receivables Parties, the Receivables
Servicer, the Transition Bond Issuer, the Transition Bond Trustee and the TC
Servicer each acknowledge that Collections relating to the Eligible Assets and
collections with respect to Transition Property may from time to time be
deposited into one or more [designated] accounts of the Utility (the
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"Deposit Accounts"). Subject to Section 5 below, the Utility agrees to (i)
maintain the Deposit Accounts for the benefit of the TC Servicer, the Transition
Bond Trustee and the Transition Bond Issuer and for the benefit of the
Receivables Servicer and the Receivables Parties (and any future Receivables
Financing Entities), as their respective interests may appear; (ii) allocate and
remit funds from the Deposit Accounts on a daily basis to the Transition Bond
Trustee in the case of collections relating to the Transition Property and the
Initial Receivables Purchaser in the case of Collections relating to the
Eligible Assets, provided that in the case of a shortfall in payment of amounts
billed, such allocation and remittances shall be made, first, on a pro rata
basis as between Transition Charges and Eligible Assets, excluding late charges,
based on the respective amounts of Transition Charges and Eligible Assets billed
to each retail electric provider and, if any retail electric customer is billed
directly, to such retail electric customer, and second, by allocating any late
charges to the Company; and (iii) maintain records as to the amounts deposited
into the Deposit Accounts, the amounts remitted therefrom and the allocation as
provided in clause (ii) above. The Transition Bond Trustee, the Transition Bond
Issuer, the Initial Receivables Purchaser and the Receivables Financing Entities
shall each have the right to require an accounting from time to time of
collections, allocations and remittances by the Utility relating to the Deposit
Accounts.
The Transition Bond Trustee, the Transition Bond Issuer and the TC Servicer
waive any interest in deposits to the Deposit Accounts to the extent that they
constitute Collections on account of Eligible Assets, and the Receivables
Parties and the Receivables Servicer waive any interest in deposits to the
Deposit Accounts to the extent that they constitute collections on account of
Transition Property. Each of the parties hereto acknowledges the respective
security interests of the others in amounts on deposit in the Deposit Accounts
to the extent of their respective interests as described in this Agreement.
SECTION 3. Collections. The Receivables Parties hereby acknowledge that,
notwithstanding anything in the Receivables Agreements to the contrary, all
collections of Transition Property are property of the Transition Bond Issuer
pledged by the Transition Bond Issuer to the Transition Bond Trustee for the
benefit of itself, the holders of the Transition Bonds and any credit
enhancement provider. Each of the Transition Bond Issuer, the Transition Bond
Trustee and the TC Servicer hereby acknowledge that, notwithstanding anything in
the Sale Agreement or the Indenture to the contrary, all Collections related to
Eligible Assets are the property of the Initial Receivables Purchaser and are
and will be the subject of Receivables Financings, subject to the terms of the
Receivables Agreements.
If any of the Receivables Parties or the Receivables Servicer receives any
payments in respect of the Transition Property or the Transition Bond Trustee
Collateral, it agrees to pay to the Transition Bond Trustee all such payments
received by it in respect thereof as soon as practicable after receipt thereof
by it, and prior to such remittance to the Transition Bond Trustee it agrees
that such amounts are held in trust for the Transition Bond Trustee. If any of
the Transition Bond Issuer, the Transition Bond Trustee or the TC Servicer
receives any payments in respect of the Eligible Assets, it agrees to pay to or
at the direction of the Initial Receivables Purchaser all such payments received
by it in respect thereof as soon as practicable after receipt thereof by it, and
prior to such remittance to the Initial Receivables Purchaser it agrees that
such amounts are held in trust for the Initial Receivables Purchaser.
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SECTION 4. Time or Order of Attachment. The acknowledgments contained in
Sections 1, 2 and 3 of this Agreement are applicable irrespective of the time or
order of attachment or perfection of security or ownership interests or the time
or order of filing or recording of financing statements or mortgages or filings
under the Texas Electric Choice Plan (as defined in the Indenture).
SECTION 5. Servicing. (a) The Receivables Parties recognize the existence of
rights in favor of the Transition Bond Trustee under the Indenture and the
Servicing Agreement to (i) replace the Company as TC Servicer thereunder and
(ii) take control over collections relating to the Transition Property, under
certain limited circumstances described in the Indenture and the Servicing
Agreement, subject to applicable law and regulations and the Financing Order (as
defined in Appendix A to the Indenture) and the terms of this Section 5. The
Transition Bond Issuer and the Transition Bond Trustee recognize the existence
of rights in favor of the Receivables Financing Entities under the Receivables
Agreements to (i) replace the Company as Receivables Servicer, subservicer or
collection agent thereunder and (ii) take control over Collections relating to
Eligible Assets, under certain limited circumstances described in the
Receivables Agreements, subject to applicable law and regulations and the terms
of this paragraph 5.
(b) Notwithstanding the provisions of Section 5(a) above, the Receivables
Parties acknowledge that (i) under the terms of the Financing Order under
certain limited circumstances specified in the Financing Order upon a default by
a retail electric provider, among alternative options to be selected and
implemented by the retail electric provider, certain revenues and receipts from
retail electric customers of such retail electric provider, including
collections relating to the Transition Property and Collections relating to
Eligible Assets, may be paid directly into a lock-box account controlled by the
TC Servicer and in that case amounts in such account must be applied first to
pay Transition Charges then due and owing before the remaining amounts are
released to the retail electric provider, and (ii) under the terms of the
Servicing Agreement upon a default by the TC Servicer under the Servicing
Agreement the Transition Bond Trustee is required to exercise its right to
appoint a replacement TC Servicer upon the instruction of the requisite
percentage holders of the Transition Bonds.
(c) (i) In the event that the Transition Bond Trustee is entitled to and
desires to exercise its right to replace the Company as TC Servicer, or a
Receivables Financing Entity is entitled to and desires to exercise its right to
replace the Company as Receivables Servicer, the party desiring to exercise such
right shall consult with the other with respect to the Person who would replace
the Company in such capacities. Any successor in such capacities shall be
agreed to by both the Transition Bond Trustee and the Receivables Financing
Entities and shall be subject to satisfaction of the Rating Agency Condition (as
defined below). The parties hereto acknowledge and agree that at all times the
TC Servicer and Receivables Servicer shall be the same Person. The Person named
as replacement TC Servicer and replacement Receivables Servicer in accordance
with this Section 5 is referred to herein as the "Replacement Servicer". The
parties hereto agree that no retail electric provider affiliated with the
Company will constitute a successor to the Company under this Agreement.
(ii) In the event that the Transition Bond Trustee is entitled to and
desires to exercise its rights to redirect collections relating to the
Transition Property, or a Receivables Financing
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Entity is entitled to and desires to exercise its rights to redirect Collections
relating to the Eligible Assets, any redirection of funds shall be either to (A)
the Replacement Servicer or (B) if there is no Replacement Servicer, to the
Designated Account with the Designated Account Holder. The "Designated Account"
shall be an "Eligible Deposit Account" (as defined in the Indenture) and shall
be held for the benefit of the Transition Bond Trustee and the Receivables
Financing Entities as their interests may appear. The "Designated Account
Holder" shall be a financial institution selected by the Transition Bond Trustee
and the Receivables Financing Entities, subject to satisfaction of the Rating
Agency Condition to hold and allocate amounts in the Designated Account for the
benefit of the Transition Bond Trustee and the Receivables Financing Entities as
their interests may appear as provided in paragraph (d) below.
(d) Upon exercise by the Transition Bond Trustee of its rights to redirect
collections relating to the Transition Property or by a Receivables Financing
Entity of its rights to redirect Collections relating to the Eligible Assets,
and in the absence of (x) a Replacement Servicer and (y) the circumstance
referred to in Section 5(b) above, the parties agree that all collections
relating to the Transition Property and all Collections relating to Eligible
Assets shall be deposited into the Designated Account and that the Designated
Account Holder shall be instructed by the Utility to (i) allocate and remit
funds from such account on a daily basis to the persons entitled thereto, being
the Transition Bond Trustee in the case of all collections relating to the
Transition Property and the Receivables Financing Entities in the case of all
Collections relating to the Eligible Assets, provided that, subject to Section
5(b)(i) above, in the case of a shortfall of funds in the Designated Account
such allocation and remittances shall be made, first, on a pro rata basis as
between Transition Charges and Eligible Assets, excluding late charges, based on
the respective amounts of Transition Charges and Eligible Assets billed to each
retail electric provider and, if any retail electric customer is billed
directly, to such retail electric customer, and second, by allocating any late
charges to the Company; and (ii) maintain records as to the amounts deposited
into such account, the amounts remitted therefrom and the allocation as provided
in clause (i). The fees and expenses of the Designated Account Holder shall be
payable from amounts deposited into the Designated Account on a pro rata basis
as between collections relating to the Transition Property and Collections
relating to the Eligible Assets, provided that that portion of those fees and
expenses allocable to collections relating to the Transition Property shall be
payable by the TC Servicer from the servicer fees provided for in the Servicing
Agreement, and that portion of those fees and expenses allocable to Collections
relating to the Eligible Assets shall be payable by the Receivables Servicer
from the servicer fees provided for in the Receivables Agreements. The
Transition Bond Trustee, the Transition Bond Issuer, the Initial Receivables
Purchaser and the Receivables Financing Entities shall each have the right to
require an accounting from time to time of collections, allocations and
remittances by the Designated Account Holder.
(e) If a Replacement Servicer cannot be appointed in accordance with
Section 5(c)(i) above, then either the Transition Bond Trustee or the
Receivables Financing Entities may exercise its rights under Section 5(c)(ii)(B)
above.
(f) Anything in this Agreement to the contrary notwithstanding, any action
taken by either the Transition Bond Trustee or a Receivables Financing Entity to
appoint a Replacement Servicer or designate the Designated Account pursuant to
this paragraph 5 shall be subject to the Rating Agency Condition and the
consent, if required by law or the Financing Order, of the
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Public Utility Commission of Texas. For the purposes of this Agreement, the
"Rating Agency Condition" means, with respect to any such action, notification
to each rating agency then rating any class or series of the Transition Bonds
and any securities issued pursuant to any Receivables Financing Documents or any
commercial paper issued to fund the related sale or financing of Outstanding
Receivables (collectively, the "Securities") of such action, and the receipt of
written notification from each such rating agency, other than, with respect to
the Transition Bonds only, Moody's (as defined in the Indenture), that such
action will not result in a reduction or withdrawal of its then current rating
on the Transition Bonds or the Securities. The parties hereto acknowledge and
agree that the approval or the consent of the rating agencies which is required
in order to satisfy the Rating Agency Condition is not subject to any standard
of commercial reasonableness, and the parties are bound to satisfy this
condition whether or not the rating agencies are unreasonable or arbitrary.
SECTION 6. Sharing of Information. The parties hereto agree to cooperate with
each other and make available to each other or any Replacement Servicer any and
all records and other data relevant to the Transition Property and Eligible
Assets which it may have in its possession or may from time to time receive from
the Company or any predecessor TC Servicer and Receivables Servicer, including,
without limitation, any and all computer programs, data files, documents,
instruments, files and records and any receptacles and cabinets containing the
same. The Company hereby consents to the release of information regarding the
Company pursuant to this Section 6.
SECTION 7. No Joint Venture. Nothing herein contained shall be deemed as
effecting a joint venture among any of the Receivables Parties, the Transition
Bond Issuer, the Transition Bond Trustee and the Company.
SECTION 8. Method of Adjustment and Allocation. Notwithstanding any provision
herein to the contrary, for the purpose of this Agreement only, the Receivables
Parties hereby consent and agree to (a) the method of adjustment of the
Transition Charge in accordance with Section 7 of Annex I to the Servicing
Agreement in the form attached hereto and (b) the method of calculation and
allocation of payments in accordance with Sections 3.02 and 3.03 of the
Servicing Agreement in the form attached hereto and irrevocably waive any right
to object to or enjoin such adjustment, calculation, payment or allocation. Such
consent and agreement shall not relieve the Company of any of its obligations to
make payments in accordance with the terms of the Receivables Agreements.
SECTION 9. Termination. This Agreement shall terminate upon the payment in
full of the Transition Bonds, except that the understandings and acknowledgments
contained in paragraphs 1, 2, 3 and 4 shall survive the termination of this
Agreement.
SECTION 10. Governing Law. This Agreement shall be governed by the laws of
the State of Texas.
SECTION 11. Further Assurances. The parties hereto each agree to execute any
and all agreements, instruments, financing statements, releases and any and all
other documents reasonably requested by the other in order to effectuate the
intent of this Agreement. In each case where a release is to be given pursuant
to this Agreement, the term release shall include any
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documents or instruments necessary to effect a release, as contemplated by this
Agreement. All releases, subordinations and other instruments submitted to the
executing party are to be prepared at no expense to such party.
SECTION 12. Limitation on Rights of Others. This Agreement is solely for the
benefit of the Receivables Parties (and any future Receivables Financing
Entities), including without limitation the Receivables Trustee, for the benefit
of the Noteholders (as defined in the Receivables Indenture), the Transition
Bond Issuer, the Transition Bond Trustee for the benefit of itself, the holders
of Transition Bonds and any credit enhancement provider, and the Company and no
other person or entity shall have any rights, benefits, priority or interest
under or because of the existence of this Agreement.
SECTION 13. Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed to be an original and all
of which taken together shall constitute but one and the same instrument.
Delivery of an executed counterpart of a signature page to this Agreement by
telecopier shall be effective as delivery of a manually executed counterpart of
this Agreement.
SECTION 14. Nonpetition Covenant. Notwithstanding any prior termination of this
Agreement or the Indenture, each of the parties hereto hereby covenants and
agrees that it shall not, prior to the date which is one year and one day after
the termination of the Indenture and the payment in full of the Transition
Bonds, any other amounts owed under the Indenture, including, without
limitation, any amounts owed to third-party credit enhancers or under any
interest rate swap agreement, acquiesce, petition or otherwise invoke or cause
the Transition Bond Issuer to invoke the process of any court or government
authority for the purpose of commencing or sustaining a case against the
Transition Bond 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 Transition Bond Issuer or any
substantial part of the property of the Transition Bond Issuer, or ordering the
winding up or liquidation of the affairs of the Transition Bond Issuer.
Notwithstanding any prior termination of this Agreement or the Receivables
Agreements, each of the parties hereto hereby covenants and agrees that it shall
not, prior to the date which is one year and one day after the termination of
the Receivables Agreements and the payment in full of the Securities, any other
amounts owed under the Receivables Agreements, acquiesce, petition or otherwise
invoke or cause AEP Credit, Inc. or any Receivables Financing Entity (and, for
long as the Receivables Trustee acts as trustee for the related Receivables
Financing, any entity that issues commercial paper in connection with such
Receivables Financing) that issues commercial paper (a "CP Conduit") to invoke
the process of any court or government authority for the purpose of commencing
or sustaining a case against AEP Credit, Inc. or any CP Conduit under any
federal or State bankruptcy, insolvency or similar law or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar official
of AEP Credit, Inc. or any CP Conduit or any substantial part of the property of
AEP Credit, Inc. or any CP Conduit, or ordering the winding up or liquidation of
the affairs of AEP Credit, Inc. or any CP Conduit.
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SECTION 15. Trustees. [ ], as Receivables Trustee, in
acting hereunder is entitled to all rights, benefits, protections, immunities
and indemnities accorded to it under the [Receivables Indenture]. Bankers Trust
Company, as Transition Bond Trustee, in acting hereunder is entitled to all
rights, benefits, protections, immunities and indemnities accorded to it under
the Indenture.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their respective officers thereunto duly authorized, as of the date first
above written.
AEP CREDIT, INC.
By:
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Name:
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Title:
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RELIANT ENERGY, INCORPORATED, as Company and
Receivables Servicer
By:
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Name:
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Title:
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RELIANT ENERGY, INCORPORATED, as TC Servicer
By:
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Name:
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Title:
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RELIANT ENERGY, INCORPORATED, as Utility
By:
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Name:
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Title:
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RELIANT ENERGY TRANSITION BOND COMPANY, LLC
By:
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Name:
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Title:
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BANKERS TRUST COMPANY
By:
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Name:
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Title:
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ANNEX I
"Collections" mean, with respect to any Receivable, all cash collections,
negotiable instruments, other cash or non-cash proceeds or any other form of
payment in respect of such Receivable and shall include all proceeds of any
other form of payment in respect of such Receivable and shall include all
proceeds of any Receivable within the meaning of Section 9-102(a)(64)of the
applicable Uniform Commercial Code. "Collections" shall also mean that portion
of any security deposit applied in satisfaction of a Receivable.
"Excluded Receivables" means any Receivables that are "Excluded Receivables"
under the Purchase Agreement in the form attached hereto.
"Outstanding Receivables" means Receivables that are "Outstanding Receivables"
under the Purchase Agreement in the form attached hereto.
"Purchase Agreement" means the purchase agreement dated as of May 29, 1992,
between CSW Credit, Inc. and Houston Lighting & Power Company, as amended by
Amendment No. 1 thereto dated as of February 1, 1996 and as amended by the
Global Amendment between such parties dated as of the date hereof.
"Receivable" means any Outstanding Receivable (other than Excluded Receivables)
that has been purchased by the Initial Receivables Purchaser from the Company.
"Receivables Agreements" means the (i) Purchase Agreement, (ii) the Agency
Agreement dated as of May 29, 1992, between CSW Credit, Inc. and Houston
Lighting & Power Company as amended by the Global Amendment between such parties
dated as of the date hereof, and (iii) any other Receivables Financing
Documents.
"Receivables Financing" means any sale, pledge or other transfer of an interest
in Outstanding Receivables by the Initial Receivables Purchaser.
"Receivables Financing Documents" means each indenture, receivables transfer
agreement or other document or agreement executed by the Receivables Parties
any/or any future Receivables Financing Entities in connection with a
Receivables Financing.
"Receivables Financing Entity" means, initially, the Receivables Trustee, and
shall mean, after the Notes issued pursuant to the Receivables Financing for
which the Receivables Trustee acts as trustee have been paid in full, any
trustee, purchaser, administrative agent or other entity purchasing or providing
financing for (or acting as agent for such person) Outstanding Receivables
provided that such person has agreed to be bound by this Intercreditor Agreement
or is otherwise satisfactory to the Company.
"Transition Charges" means nonbypassable amounts to be charged for the use or
availability of electric services, approved by the Texas Public Utility
Commission in the Financing Order to recover Qualified Costs (as defined in the
Financing Order), that shall be collected by TC Servicer, its successors,
assignees or other collection agents as provided for in the Financing Order.
"Transition Property" means the rights and interests of the Utility or its
successor under the Financing Order, once those rights are first transferred to
the Transition Bond Issuer or pledged in connection with the issuance of the
transition bonds, including the irrevocable right to impose, collect and receive
through transition charges payable by retail electric customers within Utility's
certificated service area as it existed on May 1, 1999, an amount sufficient to
cover the Qualified Costs (as defined in the Financing Order) of Utility
authorized in the Financing Order, the right to receive transition charges in
amounts and at times sufficient to pay principal and interest and make other
deposits in connection with the transition bonds and all revenues and
collections resulting from transition charges.
