|
Exhibit
10.4
INTERCREDITOR
AGREEMENT
INTERCREDITOR AGREEMENT dated
as of February 12, 2008 among:
CenterPoint Energy Houston
Electric, LLC, a Texas limited liability company and a successor to
Reliant Energy, Incorporated (in its individual capacity, the
“ Company ”),
CenterPoint Energy Transition
Bond Company, LLC, a Delaware limited liability company (the
“ Initial Transition Bond Issuer
”),
Deutsche Bank Trust Company
Americas, successor to Bankers Trust Company, a New York banking
corporation, in its capacity as transition bond trustee under
Indenture dated October 24, 2001 (the “ Initial
Transition Bond Trustee ”),
CenterPoint Energy Houston
Electric, LLC, a Texas limited liability company, and successor to
Reliant Energy, Incorporated, in its capacity as the initial
servicer of the Initial Transition Property referred to below
(including any successor in such capacity, the “
Initial TC Servicer ”),
Wilmington Trust Company, a
Delaware banking corporation, in its capacity as transition bond
trustee under Indenture dated as of December 16, 2005 (the
“ Additional Transition Bond Trustee
”),
CenterPoint Energy Houston
Electric, LLC, a Texas limited liability company, in its capacity
as the initial servicer of the Additional Transition Property
referred to below (including any successor in such capacity, the
“ Additional TC Servicer ”),
CenterPoint Energy Transition
Bond Company II, LLC, a Delaware limited liability company (the
“ Additional Transition Bond Issuer
”),
Deutsche Bank Trust Company
Americas, a New York banking corporation, in its capacity as
transition bond trustee under Indenture dated as of
February 12, 2008 (the “ Third Transition Bond
Trustee ”),
CenterPoint Energy Houston
Electric, LLC, a Texas limited liability company, in its capacity
as initial servicer of the Transition (III) Property referred to
below (the “ Third TC Servicer
”),
CenterPoint Energy Transition
Bond Company III, LLC, a Texas limited liability company (the
“ Third Transition Bond Issuer
”),
CenterPoint Energy Houston
Electric, LLC, a Texas limited liability company and a successor to
Reliant Energy, Incorporated, in its capacity as collection agent
for the benefit of the Initial TC Servicer, the Additional TC
Servicer and the Third TC Servicer (the “
Utility ”),
CenterPoint Energy Houston
Electric, LLC, a Texas limited liability company, in its capacity
as the collection agent of the Decommissioning Collections referred
to below (including any successor in such capacity, the “
Decommissioning Collection Agent ”),
and
CenterPoint Energy Houston
Electric, LLC, a Texas limited liability company, in its capacity
as the collection agent of the System Benefit Fee referred to below
(including any successor in such capacity, the “ SBF
Collection Agent ”).
WHEREAS, pursuant to the
terms of the Transition Property Sale Agreement dated
October 24, 2001, among the Initial Transition Bond Issuer and
Reliant Energy, Incorporated, in its capacity as Seller (as it may
hereafter from time to time be amended, restated or modified, the
“ Initial Sale Agreement ”), the Company
has sold to the Initial Transition Bond Issuer certain assets known
as “Transition Property” which includes the
“Transition Charges” (hereinafter, the “
Initial Transition Property ” and the “
Initial Transition Charges ”); and
WHEREAS, pursuant to the
terms of the Indenture dated October 24, 2001, among the
Initial Transition Bond Issuer, the Initial Transition Bond
Trustee, and Bankers Trust Company in its capacity as Securities
Intermediary (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 “ Initial
Indenture ”), the Initial Transition Bond Issuer,
among other things, has granted to the Initial Transition Bond
Trustee a security interest in certain of its assets, including the
Initial Transition Property, to secure the Transition Bonds issued
pursuant to the Indenture (the “ Initial Transition
Bonds ”); and
WHEREAS, pursuant to the
terms of the Transition Property Servicing Agreement dated as of
October 24, 2001, between the Initial Transition Bond Issuer
and the Initial TC Servicer (as it may hereafter from time to time
be amended, restated or modified, the “ Initial
Servicing Agreement ”), the Initial TC Servicer
has agreed to provide for the benefit of the Initial Transition
Bond Issuer servicing functions with respect to the Initial
Transition Charges; and
WHEREAS, pursuant to the
terms of the Transition Property Sale Agreement dated as of
December 16, 2005, among the Additional Transition Bond Issuer
and Company, in its capacity as Seller (as it may hereafter from
time to time be amended, restated or modified, the “
Additional Sale Agreement ”), the Company has
sold to the Additional Transition Bond Issuer certain assets known
as “Transition Property” which includes the
“Transition Charges” (hereinafter, the “
Additional Transition Property ” and the
“ Additional Transition Charges ”);
and
WHEREAS, pursuant to the
terms of the Indenture dated as of December 16, 2005, among
the Additional Transition Bond Issuer, the Additional Transition
Bond Trustee, and Deutsche Bank Trust Company Americas, in its
capacity as Securities Intermediary (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 “ Additional Indenture ”), the
Additional Transition Bond Issuer, among other things, has granted
to the Additional Transition Bond Trustee a security interest in
certain of its assets, including the Additional Transition
Property, to secure the Transition Bonds issued pursuant to the
Additional Indenture (“ Additional Transition
Bonds ”); and
- 2 -
WHEREAS, pursuant to the
terms of the Transition Property Servicing Agreement dated as of
December 16, 2005, between the Additional Transition Bond
Issuer and the Additional TC Servicer (as it may hereafter from
time to time be amended, restated or modified, the “
Additional Servicing Agreement ”), the
Additional TC Servicer has agreed to provide for the benefit
of the Additional Transition Bond Issuer servicing functions with
respect to the Additional Transition Charges; and
WHEREAS, pursuant to the
terms of the Transition Property Sale Agreement dated as of
February 12, 2008, among the Third Transition Bond Issuer and
Company, in its capacity as Seller (as it may hereafter from time
to time be amended, restated or modified, the “ Third
Sale Agreement ”), the Company has sold to the Third
Transition Bond Issuer certain assets known as “Transition
Property” which includes the “Transition Charges”
(hereinafter, the “ Transition (III) Property
” and the “ Transition (III) Charges
”); and
WHEREAS, pursuant to the
terms of the Indenture dated as of February 12, 2008, among
the Third Transition Bond Issuer and the Third Transition Bond
Trustee (as it may hereafter from time to time be amended, restated
or modified and as supplemented from time to time by one or more
Supplements, such Supplements and Indenture being collectively
referred to herein as the “ Third Indenture
”, and together with the Initial Indenture and the Additional
Indenture, the “ Indentures ”), the Third
Transition Bond Issuer, among other things, has granted to the
Third Transition Bond Trustee a security interest in certain of its
assets, including the Transition (III) Property, to secure the
Transition Bonds issued pursuant to the Third Indenture (“
Third Transition Bonds ”); and
WHEREAS, pursuant to the
terms of the Transition Property Servicing Agreement dated as of
February 12, 2008, between the Third Transition Bond Issuer
and the Third TC Servicer (as it may hereafter from time to time be
amended, restated or modified, the “ Third Servicing
Agreement ”), the Third TC Servicer has agreed
to provide for the benefit of the Third Transition Bond Issuer
servicing functions with respect to the Transition (III) Charges;
and
WHEREAS, pursuant to the
terms of that certain Third Amended and Restated Master Trust
Agreement for the South Texas Project dated as of July 10,
2006 (the “ Decommissioning Trust Agreement
”), Mellon Bank, N.A., a national banking association, as
Trustee (the “ Decommissioning Trustee ”)
of “NRG South Texas LP Decommissioning Master Trust for the
South Texas Project” (the “ Decommissioning
Trust ”), is designated to receive and hold in trust
for the benefit of NRG South Texas LP (or for the benefit of the
Decommissioning Trust for the benefit of NRG South Texas LP) all
Contributions (as that term is defined in the Decommissioning Trust
Agreement) from the Company for decommissioning funds required by
federal regulation that are included in the Company’s cost of
service and collections; and
WHEREAS, pursuant to the
terms of the Decommissioning Funds Collection Agreement dated as of
June 9, 2005, between Texas Genco, LP (now known as NRG South
Texas LP) and the Decommissioning Collection Agent (as it may
hereafter from time to time be amended, restated or modified, the
“ Decommissioning Collection Agreement
”), the Decommissioning Collection Agent has agreed to
provide for the benefit of the Decommissioning Trust collection
functions with respect to collections of nuclear decommissioning
charges from retail customers (“ Decommissioning
Collections ”); and
- 3 -
WHEREAS, pursuant to Sections
39.901 and 39.903 of the Texas Utilities Code and Substantive Rule
25.451 promulgated thereunder by the Public Utility Commission of
Texas, the SBF Collection Agent must provide for the benefit of the
System Benefit Fund (as defined in Substantive Rule 25.451)
collection functions with respect to the system benefit fee
established by Section 39.903 of the Texas Utilities Code (the
“ System Benefit Fee ”); and
WHEREAS, the parties hereto
wish to agree upon their respective rights relating to such
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 Initial
Sale Agreement, the Initial Indenture, the Initial Servicing
Agreement, the Additional Sale Agreement, the Additional Indenture,
the Additional Servicing Agreement, the Third Sale Agreement, the
Third Indenture, the Third Servicing Agreement, the Decommissioning
Collection Agreement and the statutory and regulatory obligations
relating to the System Benefit Fee;
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
Transition Bond Trustee, the Initial Transition Bond Issuer, the
Initial TC Servicer, the Third Transition Bond Trustee, the Third
Transition Bond Issuer, the Third TC Servicer, the Decommissioning
Collection Agent and the SBF Collection Agent hereby acknowledge
the ownership interest of the Additional Transition Bond Issuer in
the Additional Transition Property, including the Additional
Transition Charges and the revenues, collections, claims, rights,
payments, money and proceeds arising therefrom, and the security
interests in favor of the Additional Transition Bond Trustee for
the benefit of itself, the holders of the Additional Transition
Bonds and any credit enhancement provider (as defined in the
Additional Indenture) in the Additional Transition
Property.
The Initial Transition Bond
Trustee, the Initial Transition Bond Issuer, the Initial TC
Servicer, the Additional Transition Bond Trustee, the Additional
Transition Bond Issuer, the Additional TC Servicer, the
Decommissioning Collection Agent and the SBF Collection Agent
hereby acknowledge the ownership interest of the Third Transition
Bond Issuer in the Transition (III) Property, including the
Transition (III) Charges and the revenues, collections, claims,
rights, payments, money and proceeds arising therefrom, and the
security interests in favor of the Third Transition Bond Trustee
for the benefit of itself, the holders of the Third Transition
Bonds and any credit enhancement provider (as defined in the Third
Indenture) in the Transition (III) Property.
The Additional Transition
Bond Trustee, the Additional Transition Bond Issuer, the Additional
TC Servicer, the Third Transition Bond Trustee, the Third
Transition Bond Issuer, the Third TC Servicer, the Decommissioning
Collection Agent and the SBF Collection Agent hereby acknowledge
the ownership interest of the Initial Transition Bond Issuer in the
Initial Transition Property, including the Initial Transition
Charges and the revenues, collections, claims, rights, payments,
money and proceeds arising therefrom, and the security interests in
favor of the Initial Transition Bond Trustee for the benefit of
itself, the holders of the Initial Transition Bonds and any credit
enhancement provider (as defined in the Initial Indenture) in the
Initial Transition Property.
- 4 -
The Initial Transition Bond
Trustee, the Initial Transition Bond Issuer, the Initial TC
Servicer, the Additional Transition Bond Trustee, the Additional
Transition Bond Issuer, the Additional TC Servicer, the Third
Transition Bond Trustee, the Third Transition Bond Issuer, the
Third TC Servicer and the SBF Collection Agent hereby acknowledge
the ownership interest of NRG South Texas LP or the Decommissioning
Trustee for the benefit of NRG South Texas LP in the
Decommissioning Collections, including the revenues, collections,
claims, rights, payments, money and proceeds arising
therefrom.
The Initial Transition Bond
Trustee, the Initial Transition Bond Issuer, the Initial TC
Servicer, the Additional Transition Bond Trustee, the Additional
Transition Bond Issuer, the Additional TC Servicer, the Third
Transition Bond Trustee, the Third Transition Bond Issuer, the
Third TC Servicer and the Decommissioning Collection Agent hereby
acknowledge the ownership interest of the SBF Collection Agent for
the benefit of the System Benefit Fund in the System Benefit Fees,
including the revenues, collections, claims, rights, payments,
money and proceeds arising therefrom.
SECTION 2. Deposit
Accounts . The Initial Transition Bond Issuer, the Initial
Transition Bond Trustee, the Initial TC Servicer, the Additional
Transition Bond Issuer, the Additional Transition Bond Trustee, the
Additional TC Servicer, the Third Transition Bond Issuer, the Third
Transition Bond Trustee, the Third TC Servicer, the Decommissioning
Collection Agent and the SBF Collection Agent each acknowledge that
collections with respect to Initial Transition Property, the
Additional Transition Property, the Transition (III) Property, the
Decommissioning Collections and System Benefit Fees may from time
to time be deposited into one or more designated accounts of the
Utility (the “ Deposit Accounts ”).
Subject to Section 4 below, the Utility agrees to:
(i) maintain the Deposit
Accounts for the benefit of the Initial TC Servicer, the Initial
Transition Bond Tr
|
