ENVIRONMENTAL CONTROL PROPERTY TRANSFER AGREEMENT between PE RENAISSANCE FUNDING, LLC Seller and THE POTOMAC EDISON COMPANY Transferor Dated as of [__________]
Exhibit
10.5
ENVIRONMENTAL
CONTROL PROPERTY
TRANSFER
AGREEMENT
between
PE
RENAISSANCE FUNDING, LLC
Seller
and
THE
POTOMAC EDISON COMPANY
Transferor
Dated
as
of [__________]
TABLE
OF CONTENTS
Page
ARTICLE
I
Definitions
|
Section
1.01.
|
Definitions
|
1
|
|
Section
1.02.
|
Other
Definitional Provisions
|
2
|
ARTICLE
II
Conveyance
of Environmental Control Property
|
Section
2.01.
|
Conveyance
of Initial Environmental Control Property
|
2
|
|
Section
2.02.
|
Conveyance
of Subsequent Environmental Control Property
|
2
|
|
Section
2.03.
|
Conditions
to Conveyance of Environmental Control Property
|
2
|
ARTICLE
III
Representations
and Warranties of Transferor
|
Section
3.01.
|
Organization
and Good Standing
|
4
|
|
Section
3.02.
|
Due
Qualification
|
4
|
|
Section
3.03.
|
Power
and Authority
|
4
|
|
Section
3.04.
|
Binding
Obligation
|
4
|
|
Section
3.05.
|
No
Violation
|
4
|
|
Section
3.06.
|
No
Proceedings
|
5
|
|
Section
3.07.
|
Approvals
|
5
|
|
Section
3.08.
|
The
Environmental Control Property
|
5
|
|
Section
3.09.
|
Representations
and Warranties of Seller
|
8
|
ARTICLE
IV
Covenants
of the Transferor
|
Section
4.01.
|
Corporate
Existence
|
8
|
|
Section
4.02.
|
No
Liens or Conveyances
|
8
|
|
Section
4.03.
|
Delivery
of Collections
|
9
|
|
Section
4.04.
|
Notice
of Liens
|
9
|
|
Section
4.05.
|
Compliance
with Law
|
9
|
|
Section
4.06.
|
Covenants
Related to Environmental Control Property
|
9
|
|
Section
4.07.
|
Notice
of Indemnification Events
|
10
|
|
Section
4.08.
|
Protection
of Title
|
10
|
|
Section
4.09.
|
Taxes
|
10
|
|
Section
4.10.
|
Third
Parties
|
11
|
i
ARTICLE
V
The
Transferor
|
Section
5.01.
|
Liability
of Transferor; Indemnities
|
11
|
|
Section
5.02.
|
Merger
or Consolidation of, or Assumption of the Obligations of,
Transferor
|
12
|
|
Section
5.03.
|
Limitation
on Liability of Transferor and Others
|
13
|
|
Section
5.04.
|
Opinions
of Counsel
|
13
|
ARTICLE
VI
Miscellaneous
Provisions
|
Section
6.01.
|
Amendment
|
14
|
|
Section
6.02.
|
Notices
|
14
|
|
Section
6.03.
|
Assignment
|
16
|
|
Section
6.04.
|
Limitations
on Rights of Others
|
16
|
|
Section
6.05.
|
Severability
|
16
|
|
Section
6.06.
|
Separate
Counterparts
|
16
|
|
Section
6.07.
|
Headings
|
16
|
|
Section
6.08.
|
Governing
Law
|
16
|
|
Section
6.09.
|
Assignment
to Issuer and to Indenture Trustee
|
17
|
|
Section
6.10.
|
Nonpetition
Covenant
|
17
|
|
Section
6.11.
|
Perfection
|
17
|
|
Section
6.12.
|
Limitation
of Liability
|
17
|
Exhibit
A
Pending
Litigation
Appendix
A Master
Definitions
ii
ENVIRONMENTAL
CONTROL PROPERTY TRANSFER AGREEMENT dated as of [__________] (as amended,
restated, supplemented or otherwise modified from time to time, “this
Agreement”),
between PE RENAISSANCE FUNDING, LLC, a Delaware limited liability company
(the
“Seller”),
and
THE POTOMAC EDISON COMPANY, an Ohio corporation, and its successors in interest
to the extent permitted hereunder, as Transferor (the “Transferor”).
WHEREAS
the Transferor desires to contribute from time to time Environmental Control
Property created pursuant to the Statute and the Financing Order; and
WHEREAS
the Seller is willing to acquire the Environmental Control Property;
and
WHEREAS
the Seller intends to sell the Transferred Environmental Control Property
to the
Issuer and the Issuer intends to purchase the Transferred Environmental Control
Property from the Seller pursuant to the Sale Agreement; 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 the 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 Seller has determined that the transactions contemplated by the Basic
Documents are in the best interest of the Seller and its creditors and represent
a prudent and advisable course of action that does not impair the rights
and
interests of the Seller’s creditors; and
WHEREAS
the PSCWV or its attorney will enforce this Agreement pursuant to the Financing
Order for the benefit of the 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 to 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 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 Environmental Control Property
Section
2.01. Conveyance
of Initial Environmental Control Property. (a) Subject
to the conditions specified in Section 2.03,
the
Transferor hereby irrevocably contributes, sells, transfers, assigns, sets
over
and otherwise conveys to the Seller, without recourse (subject to the
obligations herein), all right, title and interest of the Transferor in and
to
the Initial Environmental Control Property created pursuant to the Statute
and
in accordance with the Financing Order (such contribution, sale, transfer,
assignment, set over and conveyance of the Initial 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 Environmental Control Property, as the same may be adjusted from
time to
time). Such contribution, sale, transfer, assignment, set over and conveyance
is
expressly an absolute transfer of all of the Transferor’s right, title and
interest (as in a true sale), and not as a pledge or other secured transaction,
of the Initial Environmental Control Property. The Transferor agrees and
confirms that after giving effect to the contribution it has no rights in
the
Initial Environmental Control Property to which a security interest of creditors
of the Transferor could attach because it has sold all rights in the Initial
Environmental Control Property to the Seller pursuant to Section 24-2-4e(m)(1)
of the Statute.
(b) In
exchange for the contribution of the Initial Environmental Control Property
from
the Transferor, the Seller will distribute the net proceeds of the issuance
and
sale of the Environmental Control Bonds to the Transferor as a
dividend.
Section
2.02. Conveyance
of Subsequent Environmental Control Property.
The Transferor may from time to time offer to contribute or convey additional
Environmental Control Property to the Seller, subject to the conditions
specified in Section 2.03.
Such
Subsequent Environmental Control Property, if any, shall be contributed or
conveyed to the Seller effective on the Subsequent Contribution 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 Environmental Control Property.
The Transferor shall be permitted to contribute and transfer Environmental
Control Property to the Seller only upon the satisfaction or waiver of each
of
the following conditions:
2
(i) as
of the
Initial Contribution Date or the Subsequent Contribution Date, as applicable,
the Transferor was not insolvent and will not have been made insolvent by
such
contribution and the Transferor is not aware of any pending insolvency with
respect to itself;
(ii) as
of the
Initial Contribution Date or the Subsequent Contribution Date, as applicable,
no
breach by the Transferor of its representations, warranties or covenants
in this
Agreement shall exist; and no Servicer Default shall have occurred and be
continuing;
(iii) as
of the
Initial Contribution Date or the Subsequent Contribution 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 pursuant to the Sale Agreement 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;
(iv) on
or
prior to the Initial Contribution Date or the Subsequent Contribution Date,
as
applicable, the Transferor shall have taken all action required to transfer
to
the Seller ownership of the Environmental Control Property to be conveyed
on
such date, free and clear of all Liens, other than Liens created by the Issuer
under the Indenture, the Seller shall have taken any action required for
the
Seller 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 by the Issuer under the Indenture, 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;
(v) in
the
case of a conveyance of Subsequent Environmental Control Property only, on
or
prior to such Subsequent Contribution Date, the Transferor shall have provided
the Seller, the Issuer and the Rating Agencies with a timely Addition
Notice;
(vi) the
Transferor shall have delivered to the Rating Agencies, the Seller and the
Issuer (A) an Opinion of Counsel with respect to the transfer of the
Environmental Control Property then being conveyed to the Seller and
(B) the Opinion of Counsel required by Section 5.04(a);
and
(vii) the
Transferor shall have delivered to the Indenture Trustee, the Seller and
the
Issuer an Officers’ Certificate confirming the satisfaction of each condition
precedent specified in this Section 2.03.
3
ARTICLE
III
Representations
and Warranties of Transferor
As
of the
Initial Contribution Date, or as of any Subsequent Contribution Date, as
applicable, the Transferor makes the following representations and warranties
on
which the Seller has relied and will rely in acquiring Environmental Control
Property. The Transferor agrees and acknowledges that the following
representations and warranties are also for the benefit of the Issuer, as
assignee of the Seller pursuant to the Sale Agreement, and the Indenture
Trustee, as collateral assignee of the Issuer pursuant to the Indenture.
The
representations and warranties shall survive the conveyance of Environmental
Control Property to the Seller, the sale of the Transferred Environmental
Control Property from the Seller to the Issuer pursuant to the Sale Agreement
and the pledges and assignments thereof permitted hereby.
Section
3.01. Organization
and Good Standing.
The Transferor is a corporation duly organized, validly existing and in good
standing under the laws of the State of West Virginia, with corporate power
and
authority to own its properties and conduct its business as currently owned
or
conducted.
Section
3.02. Due
Qualification.
The Transferor is duly qualified to do business as a foreign corporation
in good
standing, and has obtained all necessary licenses and approvals, in all
jurisdictions in which the 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 Transferor’s
business, operations, assets, revenues or properties).
Section
3.03. Power
and Authority.
The Transferor has the corporate power and authority to execute and deliver
this
Agreement and to carry out its terms; the Transferor has full corporate power
and authority to own the Environmental Control Property and contribute, convey
and assign the Initial Environmental Control Property, in the case of the
Initial Contribution Date, and the Subsequent Environmental Control Property,
in
the case of each Subsequent Contribution Date, as applicable, and the Transferor
has duly authorized such contribution, conveyance and assignment to the Seller
by all necessary corporate action; and the execution, delivery and performance
of this Agreement have been duly authorized by the Transferor by all necessary
corporate action.
Section
3.04. Binding
Obligation.
This Agreement constitutes a legal, valid and binding obligation of the
Transferor enforceable against the Transferor in accordance with its terms
subject to bankruptcy, receivership, insolvency, fraudulent transfer,
reorganization, moratorium or other laws affecting creditors’ rights generally
from time to time in effect and to general principles of equity (regardless
of
whether considered in a proceeding in equity or at law).
Section
3.05. No
Violation.
The consummation of the transactions contemplated by this Agreement and the
fulfillment of the terms hereof do not conflict with, result in any breach
of
any of the terms and provisions of, nor constitute (with or without notice
or
4
lapse
of
time) a default under, the articles of incorporation or by-laws of the
Transferor, or any indenture, agreement or other instrument to which the
Transferor is a party or by which it shall be bound; nor result in the creation
or imposition of any Lien upon any of its properties (other than under this
Agreement) pursuant to the terms of any such indenture, agreement or other
instrument; nor, to the Transferor’s knowledge, violate any Requirements of Law
applicable to the Transferor of any Governmental Authority having jurisdiction
over the Transferor or its properties.
Section
3.06. No
Proceedings.
Except as described in Exhibit A, there are no proceedings or investigations
pending or, to the Transferor’s best knowledge, threatened, before any
Governmental Authority having jurisdiction over the Transferor 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 or the Environmental
Control Bonds or (iii) seeking any determination or ruling that could
reasonably be expected to materially and adversely affect the performance
by the
Transferor 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
Governmental Authority is required in connection with the execution and delivery
by the Transferor of this Agreement, the performance by the Transferor of
the
transactions contemplated hereby or the fulfillment by the Transferor of
the
terms hereof, except those that have been obtained or made.
Section
3.08. The
Environmental Control Property. (a) Information.
All information provided by the Transferor to the Seller in writing with
respect
to the Environmental Control Property is correct in all material
respects.
(b) Effect
of Transfer.
The transfers and assignments herein contemplated constitute absolute transfers
of the Initial Environmental Control Property or the Subsequent Environmental
Control Property, as the case may be, from the Transferor to the Seller,
and the
beneficial interest in and title to the Environmental Control Property would
not
be part of the debtor’s estate in the event of the filing of a bankruptcy
petition by or against the Transferor under any bankruptcy law.
(c) Transfer
Filings.
(i) The
Transferor is the sole owner of the Environmental Control Property being
contributed to the Seller on the Initial Contribution Date or Subsequent
Contribution Date, as applicable.
(ii) The
Environmental Control Property has been validly transferred to the Seller
free
and clear of all Liens other than Liens created by the Issuer under the
Indenture.
5
(iii) All
filings, including filings with the Secretary of State of West Virginia under
the Statute, necessary in any jurisdiction to give the Seller a valid ownership
interest in the Environmental Control Property, free and clear of all Liens
of
the Transferor or anyone claiming through the Transferor, and to give the
Seller
a first priority perfected security interest in the Environmental Control
Property have been made, other than any such filings (except for filings
with
the Secretary of State of the State of West Virginia, Delaware and Nevada,
under
the Statute and UCC, as applicable) the absence of which would not have a
material adverse impact on (A) the ability of the Servicer to collect
Environmental Control Charges with respect to the Environmental Control Property
or (B) the rights of the Seller with respect to the Environmental Control
Property.
(d) Irrevocable;
Process Valid; No Litigation; Etc.
(i) The
Financing Order has been issued by the PSCWV in accordance with the Statute,
the
Financing Order and the process by which it was issued comply with all
applicable Requirements of Law, and Order is in full force and effect, final,
and not subject to appeal by any Person.
(ii) As
of the
date of issuance of any Series of Environmental Control Bonds, such
Environmental Control Bonds are entitled to the protections provided by the
Statute and, accordingly, the provisions of the Financing Order relating
to
Environmental Control Property and Environmental Control Charges are not
revocable by the PSCWV.
(iii) (A)
Under the Statute, the State of West Virginia has pledged (the “State
Pledge”)
that
it will not take or permit any action that impairs the value of Environmental
Control Property or, except as allowed in connection with the True-Up
Adjustments, reduce, alter or impair Environmental Control Charges that are
imposed, collected and remitted for the benefit of the Environmental Control
Bondholders, until any principal, interest and redemption premium in respect
of
the Environmental Control Bonds, all financing costs and all amounts to be
paid
under any ancillary agreement are paid or performed in full. (B) Under the
Contract Clauses of the Constitutions of the State of West Virginia and the
United States, the State of West Virginia could not, absent a demonstration
that
such action was necessary to serve a significant and legitimate public purpose,
repeal or amend the Statute, nor could the State of West Virginia (or the
PSCWV
in exercising its legislative powers) take any action or fail to take any
action
required by the State Pledge if the repeal or amendment, or the action or
inaction, would substantially limit, alter, impair or reduce the value of
the
Environmental Control Property or the Environmental Control Charges.
(C) Under applicable West Virginia constitutional principles relating to
the impairment of liens, the State of West Virginia could not enact legislation
(other than a law passed by the State of West Virginia in the valid exercise
of
the state’s police power) that repeals the State Pledge or limits, alters,
impairs or reduces the value of the Environmental Control Property or the
Environmental Control Charges so as to impair (x) the terms of the Indenture
or
the Environmental
6
Control
Bonds or (y) the rights and remedies of the Environmental Control Bondholders
(or the Indenture Trustee acting on their behalf) prior to the time that
the
Environmental Control Bonds are fully paid and discharged if such action
would
prevent the payment of the Environmental Control Bonds or would significantly
affect the security for the Environmental Control Bonds.
(iv) There
is
no order by any court providing for the revocation, alteration, limitation
or
other impairment of the Statute, Financing Order, Environmental Control Property
or the Environmental Control Charges or any rights arising under any of them
or
which seeks to enjoin the performance of any obligations under the Financing
Order.
(v) No
other
approval, authorization, consent, order or other action of, or filing with,
any
Governmental Authority is required in connection with the creation of the
Environmental Control Property, except those that have been obtained or
made.
(vi) Except
as
described in Exhibit A, there are no proceedings or investigations challenging
the Financing Order or the Statute pending, or to the best of the Transferor’s
knowledge, threatened before any Governmental Authority having jurisdiction
over
the Transferor or its properties.
(vii) No
failure on the Initial Contribution Date or any Subsequent Contribution Date
or
any time thereafter to satisfy any condition imposed by the Statute with
respect
to the recovery of Environmental Control Costs will have a material adverse
affect on the creation or contribution hereunder of Environmental Control
Property or the right to collect Environmental Control Charges.
(viii) 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.
(e) Assumptions.
The assumptions used in calculating Environmental Control Charges are reasonable
and made in good faith.
(f) Creation
of Environmental Control Property.
(i) The
Environmental Control Property constitutes an existing present property right
that will continue to exist until the Environmental Control Bonds issued
pursuant to the Financing Order and all Financing Costs of the Environmental
Control Bonds have been paid in full.
(ii) The
Environmental Control Property consists of (A) the rights and interests of
the Transferor, the Seller, as assignee of the Transferor, and the Issuer,
as
assignee of the Seller, including the right to impose, charge, collect and
receive Environmental Control Charges in the amount necessary to provide
for
full payment and recovery of all Environmental Control Costs and
Financing
7
Costs
determined to be recoverable in the Financing Order, and any interest in
such
rights and interests; (B) the right under the Financing Order, to obtain
True-Up Adjustments; and (C) all revenues, receipts, collections, rights to
payment, payments, moneys, claims or other proceeds arising from the rights and
interests described in clauses (A) and (B) above.
(iii) The
Financing Order, including the right to collect Environmental Control Charges,
has been declared to be irrevocable by the PSCWV.
(g) Solvency.
After giving effect to the contribution of any Environmental Control Property
hereunder, the Transferor (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 unreasonably small 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
3.09. Representations
and Warranties of Seller.
The representations and warranties made by the Seller under the Sale Agreement
are true and correct in all material respects.
ARTICLE
IV
Covenants
of the Transferor
Section
4.01. Corporate
Existence.
Subject to Section 5.02,
so long
as Environmental Control Bonds of any Series remain Outstanding, except in
the
case of a merger, consolidation, division, asset disposition or other similar
transaction permitted under the terms of this Agreement, the Transferor will
keep in full force and effect its corporate existence and remain in good
standing, in each case under the laws of the jurisdiction of its incorporation,
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 Transferor 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 Transferor 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 Environmental Control Property, whether
now existing or hereafter created, or any interest therein. The Transferor
shall
not at any time assert any Lien against or with respect to any Environmental
Control Property, and shall defend the right, title and interest of the Seller,
the Issuer, as assignee of the Seller, and the Indenture Trustee, as collateral
assignee of the Issuer, in, to and under the Environmental Control Property
and
the Transferred Environmental Control
8
Property,
as the case may be, whether now existing or hereafter created, against all
claims of third parties claiming through or under the Transferor.
Section
4.03. Delivery
of Collections.
Subject to the terms of the Servicing Agreement, if the Transferor receives
collections in respect of the Environmental Control Charges, the Transferor
agrees to pay the Servicer all estimated payments received by the Transferor
in
respect thereof as soon as practicable after receipt is known by the Transferor,
but in no event later than two Business Days after such receipt is known
by the
Transferor, and the Transferor shall reconcile estimated payment amounts
with
the Servicer within 25 Business Days after the estimated payments are paid
to
the Servicer.
Section
4.04. Notice
of Liens.
The Transferor 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 Sale Agreement, the Indenture or the other
Basic Documents.
Section
4.05. Compliance
with Law.
The Transferor hereby agrees to comply with its organizational or governing
documents and all Requirements of Law applicable to the Transferor, except
to
the extent that failure to so comply would not have a material adverse affect
on
the Seller’s, the Issuer’s or the Indenture Trustee’s interests in the
Environmental Control Property or the Transferred Environmental Control
Property, as applicable, under any of the Basic Documents or the Transferor’s
performance of its obligations hereunder or under any of the other Basic
Documents to which it is a party.
Section
4.06. Covenants
Related to Environmental Control Property. (a) So
long
as Environmental Control Bonds of any Series remain Outstanding, the Transferor
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 Transferor
shall (i) clearly disclose in its financial statements that it is not the
owner of the Environmental Control Property and that the assets of the Issuer
are not available to pay creditors of the Transferor or any of its Affiliates
and (ii) clearly disclose the effects of all transactions among the
Transferor, the Seller and the Issuer in accordance with GAAP.
(c) The
Transferor agrees that upon the conveyance by the Transferor of the
Environmental Control Property to the Seller, (i) to the fullest extent
permitted by applicable Requirements of Law, the Seller shall have all of
the
rights originally held by the Transferor with respect to the Environmental
Control Property, including the right to collect any amounts payable by any
Customer or Third Party in respect of such Environmental Control Property,
notwithstanding any objection or direction to the contrary by the Transferor
and
(ii) any payment by any Customer or Third Party to the Seller shall
discharge such Customer’s or such Third Party’s obligations in respect of such
Environmental Control Property to the extent of such payment, notwithstanding
any objection or direction to the contrary by the Transferor.
9
(d) So
long
as Environmental Control Bonds of any Series remain Outstanding, (i) the
Transferor shall not make any statement or reference in respect of the
Environmental Control Property that is inconsistent with the ownership thereof
by the Seller or, after the sale of the Transferred Environmental Control
Property by the Seller to the Issuer, the Issuer and (ii) the Transferor
shall not take any action in respect of the Environmental Control Property
except solely in its capacity as the Servicer thereof pursuant to the Servicing
Agreement or as otherwise contemplated by the Basic Documents.
Section
4.07. Notice
of Indemnification Events.
The Transferor shall deliver to the Seller, 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
4.08. Protection
of Title.
The Transferor 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 law fully to preserve, maintain, and protect the interests of the Seller
in
the Environmental Control Property, including all filings required under
the
Statute relating to the transfer of the ownership or security interest in
the
Environmental Control Property by the Transferor to the Seller. The Transferor
shall deliver (or cause to be delivered) to the Seller file-stamped copies
of,
or filing receipts for, any document filed as provided above, as soon as
available following such filing. The Transferor 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 Seller, 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 Environmental Control Property by legislative
enactment or constitutional amendment that would be materially adverse to
the
holders of Environmental Control Property.
Section
4.09. Taxes.
So long as Environmental Control Bonds of any Series remain Outstanding,
the
Transferor 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
Environmental Control Property; provided that no such tax need be paid if
the
Transferor or one of its subsidiaries is contesting the same in good faith
by
appropriate proceedings promptly instituted and diligently conducted and
if the
Transferor or such subsidiary has established appropriate reserves as shall
be
required in conformity with generally accepted accounting
principles.
10
Section
4.10. Third
Parties.
So long as Environmental Control Bonds of any Series remain Outstanding,
the
Transferor shall not permit any Third Party to ▇▇▇▇ or collect Environmental
Control Charges on behalf of the Issuer except (a) as a subcontractor under
the
active supervision of the Servicer or (b) as required by applicable law or
regulation and to the extent permitted by applicable law or regulation, after
written notice of such arrangement is furnished to the Rating
Agencies.
ARTICLE
V
The
Transferor
Section
5.01. Liability
of Transferor; Indemnities. (a) The
Transferor shall be liable in accordance herewith only to the extent of the
obligations specifically undertaken by the Transferor under this
Agreement.
(b) The
Transferor shall indemnify the Seller, the Issuer, the Indenture Trustee,
for
itself and on behalf of the Environmental Control Bondholders, and each of
their
respective members, managers, officers, directors and agents for, 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 as a result of the acquisition or
holding
of the Environmental Control Property by the Seller or the Transferred
Environmental Control Property by the Issuer or the issuance and sale by
the
Issuer of the Environmental Control Bonds, or any other transactions
contemplated herein, including any sales, gross receipts, general corporation,
tangible personal property, privilege or license taxes.
(c) The
Transferor shall indemnify the Seller, the Issuer, the Indenture Trustee,
on
behalf of the Environmental Control Bondholders, and each of their respective
members, managers, officers, directors, and agents for, and defend and hold
harmless each such Person from and against, 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 and the amount of any
deposits to the Issuer required to have been made in accordance with the
terms
of the Basic Documents which are not made when so required, in either case
as a
result of the Transferor’s breach of any of its representations, warranties or
covenants contained in this Agreement.
(d) The
Transferor shall indemnify the Seller, the Issuer, the Indenture Trustee,
on
behalf of the Environmental Control Bondholders, and each of their respective
members, managers, officers, directors, 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 (i) the
Transferor’s willful misconduct, bad faith or negligence in the performance of
its duties or observance of its covenants under this Agreement, (ii) the
Transferor’s reckless disregard of its obligations and duties under this
Agreement or (iii) the Transferor’s breach of any of its representations or
warranties contained in this Agreement (any event described in any of the
foregoing clauses (i), (ii) or (iii), an “Indemnification
Event”).
Amounts on deposit in
11
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
Transferor 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 Transferor’s representations or warranties in this
Agreement, (ii) any breach of the Transferor’s covenants in this Agreement,
(iii) any failure of the Seller’s representations in the Sale Agreement or
(iv) by breach of the Seller’s covenants in the Sale Agreement. The
Transferor 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.
(f) The
Transferor shall indemnify the Indenture Trustee and its officers, directors
and
agents for, and defend and hold harmless each such Person from and against,
any
and all Losses that may be imposed upon, incurred by or asserted against
any
such Person as a result of the acceptance or performance of the trusts and
duties contained herein and in the Basic Documents to which the Indenture
Trustee is a party, except to the extent that any such Loss shall be due
to the
willful misconduct, bad faith or gross negligence of the Indenture Trustee.
Such
amounts shall be deposited into the Collection Account and distributed in
accordance with the Indenture.
(g) The
Transferor’s indemnification obligations under Section 5.01(b),
(c), (d), (e) 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 reasonable attorney’s fees and expenses of the Indenture Trustee). Any
amounts indemnified by the Transferor pursuant to its obligations under
Sections
5.01(b), (c), (d) or (e)
shall be
deposited into the Collection Account and distributed in accordance with
the
Indenture.
Section
5.02. Merger
or Consolidation of, or Assumption of the Obligations of,
Transferor.
Any Person (a) into which the Transferor may be merged or consolidated and
which succeeds to all or any material part of the electric distribution business
of the Transferor, (b) which results from the division of the Transferor
into two or more Persons and which succeeds to all or any material part of
the
electric distribution business of the Transferor, (c) which may result from
any merger or consolidation to which the Transferor shall be a party and
which
succeeds to all or any material part of the electric distribution business
of
the Transferor, (d) which may succeed to the properties and assets of the
Transferor substantially as a whole and which succeeds to all or any material
part of the electric distribution business of the Transferor or (e) which
may otherwise succeed to all or any material part of the electric distribution
business of the Transferor, which Person in any of the foregoing cases executes
an agreement of assumption to perform every obligation of the Transferor
under
this Agreement, shall be the successor
12
to
the
Transferor 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,
would become a Servicer Default, shall have occurred and be continuing,
(ii) the Transferor shall have delivered to the Seller, 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 and (iv) the Transferor shall have delivered to the
Seller, 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 Transferor 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 Seller in the 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. 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 clause (a), (b), (c), (d) or (e)
above.
Section
5.03. Limitation
on Liability of Transferor and Others.
The Transferor and any director or officer or agent of the Transferor, or
any
employee of Allegheny Energy Service Corporation, 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
Transferor 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.
Section
5.04. Opinions
of Counsel.
The Transferor shall deliver to the Seller, 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 Contribution 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 Seller in the 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 Contribution 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 pursuant
to the Statute, have been executed and filed that are necessary to preserve
fully and protect fully the interest of the Seller in the Environmental Control
Property, and reciting the details of such filings or referring to prior
Opinions of Counsel
13
in
which
such details are given, or (ii) to the effect that, in the opinion of such
counsel, no such action shall be necessary to preserve and protect such
interest. Each Opinion of Counsel referred to in clause (a) or (b) above
shall specify any action necessary (as of the date of such opinion) to be
taken
in the following year to preserve and protect such interest.
ARTICLE
VI
Miscellaneous
Provisions
Section
6.01. Amendment.
(a) Subject
to Section
6.01(b)
below,
this Agreement may be amended by the Transferor and the Seller, 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 Transferor 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
Officers’ Certificate stating that the proposed amendment or modification has
been approved by all parties to this Agreement; and
14
(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:
(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 Transferor, 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
Transferor, to The Potomac Edison Company, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention of [__________], (b) in the case of the
Seller, to PE Renaissance Funding,
15
LLC,
▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ #▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, Attention of
[__________], (c) in the case of the Issuer, to PE Environmental Funding
LLC, ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ #▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, Attention
of [__________], (d) in the case of the Indenture Trustee, at the Corporate
Trust Office, (e) in the case of Moody’s, to ▇▇▇▇▇’▇ Investors Service, Inc.,[
ABS Monitoring Department], ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
(f) in the case of Standard & Poor’s, to Standard & Poor’s Ratings
Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of [Asset Backed Surveillance Department],
(g) in the case of Fitch, to Fitch, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of ABS Surveillance, and (h) in the case of the
PSCWV,
to ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention
of [___________]; 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 Transferor.
Section
6.04. Limitations
on Rights of Others.
The provisions of this Agreement are solely for the benefit of the Transferor,
the Seller, PSCWV, the Issuer 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.
16
Section
6.09. Assignment
to Issuer and to Indenture Trustee. (a) The
Transferor hereby acknowledges and consents to the sale, transfer, assignment
and conveyance of all right, title and interest of the Seller in, to and
under
the Transferred Environmental Control Property and the proceeds thereof and
the
assignment of any or all of the Seller’s rights hereunder to the Issuer pursuant
to the Sale Agreement.
(b) The
Transferor hereby acknowledges and consents to the mortgage, pledge, assignment
and grant of a security interest by the Issuer (as assignee of the Seller)
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 under the Sale
Agreement 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
Environmental Control Property upon application by the Issuer or the Indenture
Trustee notwithstanding any bankruptcy, reorganization or other insolvency
proceedings with respect to the debtor, pledgor or transferor of the
Environmental Control Property pursuant to Section 24-2-4e(k)(4) of the
Statute, the Transferor 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 Seller or the Issuer to invoke the process of any court or government
authority for the purpose of commencing or sustaining a case against the
Seller
or 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 Seller or the Issuer or any substantial
part of
the property of the Seller or the Issuer, or ordering the winding up or
liquidation of the affairs of the Seller or 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 (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 [__________], 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
[__________], individually or personally, to perform any covenant either
expressed or implied contained herein, all such liability, if any, being
expressly waived
17
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 [__________] against any liability that would otherwise be imposed
by
reason of willful misconduct, bad faith or gross negligence in the performance
of duties or by reason of reckless disregard of obligations or duties under
this
Agreement.
18
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.
|
PE
RENAISSANCE FUNDING, LLC,
Seller,
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by:
|
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Title:
|
||
|
|
||
|
THE
POTOMAC EDISON COMPANY,
Transferor,
|
||
|
by:
|
||
|
Title:
|
||
|
|
||
|
Acknowledged
and Accepted:
as
Issuer of the Environmental Control Bonds,
|
||
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by:
|
||
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Title:
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||
|
|
||
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[__________],
not in its individual capacity but solely as Indenture Trustee
on behalf
of the Environmental Control Bondholders,
|
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by:
|
||
|
Title:
|
||
19
EXHIBIT
A
PENDING
LITIGATION
None.