Exhibit
10.1


 


EXECUTION COPY


 




 





RECOVERY
PROPERTY PURCHASE AND SALE AGREEMENT


 


between


 


PG&E
ENERGY RECOVERY FUNDING LLC


 


Issuer


 


and


 


PACIFIC
GAS AND ELECTRIC COMPANY


 


Seller


 


 


Dated
as of November 9, 2005




 





 





















 


TABLE OF CONTENTS


 


	
   

  	
  Page

  
	
  ARTICLE I
  DEFINITIONS

  	
  1

  
	
  SECTION 1.01.
  Definitions

  	
  1

  
	
  SECTION 1.02.
  Other Definitional Provisions

  	
  5

  
	
  ARTICLE II
  CONVEYANCE OF RECOVERY PROPERTY

  	
  6

  
	
  SECTION 2.01.
  Conveyance of Recovery Property

  	
  6

  
	
  SECTION 2.02.
  Conditions to the Sale of Recovery Property

  	
  8

  
	
  ARTICLE III
  REPRESENTATIONS AND WARRANTIES OF SELLER

  	
  9

  
	
  SECTION 3.01.
  Organization and Good Standing

  	
  9

  
	
  SECTION 3.02.
  Due Qualification

  	
  10

  
	
  SECTION 3.03.
  Power and Authority

  	
  10

  
	
  SECTION 3.04.
  Binding Obligation

  	
  10

  
	
  SECTION 3.05.
  No Violation and Consistency

  	
  11

  
	
  SECTION 3.06.
  No Proceedings

  	
  11

  
	
  SECTION 3.07.
  Approvals

  	
  12

  
	
  SECTION 3.08.
  The Recovery Property

  	
  12

  
	
  SECTION 3.09.
  Change in Law

  	
  16

  
	
  SECTION 3.10
  Pending Litigation

  	
  16

  
	
  SECTION 3.11.
  Exemptions to DRC Charges

  	
  16

  
	
  SECTION 3.12.
  Limitations on Representations and Warranties

  	
  17

  
	
  ARTICLE IV
  COVENANTS OF THE SELLER

  	
  17

  
	
  SECTION 4.01.
  Corporate Existence

  	
  17

  
	
  SECTION 4.02.
  No Liens

  	
  18

  
	
  SECTION 4.03.
  Delivery of Payments

  	
  18

  
	
  SECTION 4.04.
  Notice of Liens

  	
  18

  
	
  SECTION 4.05.
  Compliance With Law

  	
  18

  
	
  SECTION 4.06.
  Covenants Related to Recovery Property

  	
  19

  
	
  SECTION 4.07.
  Protection of Title

  	
  20

  
	
  SECTION 4.08.
  Nonpetition Covenants

  	
  21

  
	
  SECTION 4.09.
  Taxes

  	
  21

  
	
  ARTICLE V THE
  SELLER

  	
  21

  
	
  SECTION 5.01.
  Liability of Seller; Indemnities

  	
  21

  
	
  SECTION 5.02.
  Merger or Consolidation of, or Assumption of the Obligations of, Seller

  	
  23

  
	
  SECTION 5.03.
  Limitation on Liability of Seller and Others

  	
  24

  
	
  ARTICLE VI
  MISCELLANEOUS PROVISIONS

  	
  24

  
	
  SECTION 6.01.
  Amendment

  	
  24

  



 





















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
  Page

  
	
  SECTION 6.02.
  Notices

  	
  24

  
	
  SECTION 6.03.
  Assignment

  	
  25

  
	
  SECTION 6.04.
  Limitations on Rights of Others

  	
  25

  
	
  SECTION 6.05.
  Severability

  	
  25

  
	
  SECTION 6.06.
  Separate Counterparts

  	
  25

  
	
  SECTION 6.07.
  Headings

  	
  26

  
	
  SECTION 6.08.
  Governing Law

  	
  26

  
	
  SECTION 6.09.
  Assignment to Note Trustee

  	
  26

  



 


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RECOVERY
PROPERTY PURCHASE AND SALE AGREEMENT dated as of November 9, 2005, between
PG&E ENERGY RECOVERY FUNDING LLC, a Delaware limited liability company (the
“Issuer”), and PACIFIC GAS AND ELECTRIC COMPANY, a California corporation, as
Seller (the “Seller”).


 


WHEREAS
the Issuer desires to purchase the Recovery Property created pursuant to the
Statute, the Financing Order and the Issuance Advice Letter;


 


WHEREAS
the Seller is willing to sell such Recovery Property to the Issuer; and


 


WHEREAS
the Recovery Property will constitute “Subsequent Recovery Property” under the
Servicing Agreement and this Agreement will constitute a “Subsequent Sale
Agreement” under the Servicing Agreement.


 


NOW,
THEREFORE, in consideration of the premises and the mutual covenants herein
contained, the parties hereto agree as follows:


 


ARTICLE I



DEFINITIONS


 


SECTION 1.01.  Definitions.  Whenever used in this Agreement, the
following words and phrases shall have the following meanings:


 


“Agreement”
means this Recovery Property Purchase and Sale Agreement, as the same may be
amended and supplemented from time to time.


 


“Basic
Documents” means this Agreement, the Servicing Agreement, and the Indenture.


 


“Bonds”
means the Series 2005-2 Energy Recovery Bonds issued by the Issuer under
the Indenture.


 


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“Class”
means any one of the classes of Bonds.


 


“Closing
Date” means November 9, 2005.


 


“Consumers”
means the existing and future consumers of electricity that has been
transmitted or distributed by means of electric transmission or distribution
facilities, whether those facilities are owned by the consumer, PG&E or any
other party, to the extent those existing and future consumers of electricity
are located in the service territory in which the Seller provided electric
distribution service as of December 19, 2003, other than consumers of
electricity exempted from the obligation to pay DRC Charges under the Statute
as further implemented by the CPUC.


 


“CPUC”
means the California Public Utilities Commission or any successor in interest.


 


“CPUC
Regulations” has the meaning assigned to that term in the Servicing Agreement.


 


“DRC
Charge” means the charges for fixed recovery amounts authorized to be billed to
Consumers in respect of Recovery Property pursuant to the Financing Order and
the Issuance Advice Letter, as calculated pursuant to the Issuance Advice
Letter and each true-up mechanism advice letter relating to the DRC Charge
filed with the CPUC pursuant to the Financing Order.


 


“Financing
Order” means the order of the CPUC, Decision 04-11-015, issued on November 19,
2004, which became effective on November 29, 2004.


 


“Holders”
or “Bondholders” means the Persons in whose name a Bond is registered on the
Bond Register (as defined in the Indenture).


 


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“Indenture”
means the Indenture dated as of November 9, 2005, between the Issuer and
the Trustee.


 


“Insolvency
Event” means, with respect to a specified Person, (a) the filing of a
decree or order for relief by a court having jurisdiction in the premises in
respect of such Person or any substantial part of its property in an
involuntary case under any applicable Federal or state bankruptcy, insolvency
or other similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official for
such Person or for any substantial part of its property, or ordering the
winding-up or liquidation of such Person’s affairs, and such decree or order
shall remain unstayed and in effect for a period of 60 consecutive days; or (b) the
commencement by such Person of a voluntary case under any applicable Federal or
state bankruptcy, insolvency or other similar law now or hereafter in effect,
or the consent by such Person to the entry of an order for relief in an
involuntary case under any such law, or the consent by such Person to the
appointment of or taking possession by a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official for such Person or for any
substantial part of its property, or the making by such Person of any general
assignment for the benefit of creditors, or the failure by such Person
generally to pay its debts as such debts become due.


 


“Issuance
Advice Letter” means Advice 2736-E, dated November 8, 2005, filed with the
CPUC by the Seller pursuant to the Financing Order.


 


“Issuer”
has the meaning set forth in the heading of this Agreement.


 


“Lien”
means a security interest, lien, charge, pledge or encumbrance of any kind.


 


“Officer’s
Certificate” means a certificate signed by the chairman of the board, the
president, the vice chairman of the board, any vice president, the treasurer,
any assistant treasurer, the  secretary
or any assistant secretary of the Seller.


 


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“Opinion
of Counsel” means one or more written opinions of counsel who may be an
employee of or counsel to the party providing such opinion of counsel, which counsel
shall be reasonably acceptable to the party receiving such opinion of counsel.


 


“Pending
Appeal” has the meaning specified in Section 3.08(f).


 


“Person”
means any individual, corporation, limited liability company, estate,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof, or any other entity or organization, whether or not a legal entity.


 


“Plan
of Reorganization” has the meaning specified in Section 3.10.


 


“PG&E”
means Pacific Gas and Electric Company, a California corporation, or any
successor.


 


“PU
Code” means the California Public Utilities Code, as amended from time to time.


 


“Rating
Agencies” means Moody’s, Standard & Poor’s and Fitch to the extent
each such Rating Agency maintains a rating on the Bonds at the request of the
Issuer.  If no such organization or
successor is any longer in existence, “Rating Agency” shall be a nationally
recognized statistical rating organization or other comparable Person
designated by the Issuer, notice of which designation shall be given to the
Trustee and the Servicer.


 


“Rating
Agency Condition” means, with respect to any action, that each Rating Agency
shall have been given ten (10) days prior notice thereof and that
each of the Rating Agencies shall have notified the Servicer, the Issuer and
the Trustee in writing that such action will not result in a reduction or
withdrawal of the then current rating by such Rating Agency of any Class of
Bonds.


 


4





















 


“Recovery
Costs” has the meaning assigned to that term in Section 848(i) of the
PU Code.


 


“Recovery
Property” means the “recovery property” as defined in PU Code Section 848(j)
that is identified as “Recovery Property” in the Issuance Advice Letter and
authorized and created pursuant to the Financing Order.


 


“Seller”
has the meaning set forth in the heading hereto.


 


“Servicer
Default” means an event specified in Section 7.01 of the Servicing
Agreement.


 


“Servicing
Agreement” means the Recovery Property Servicing Agreement, dated as of February 10,
2005 between Pacific Gas and Electric Company, as Servicer, and the Issuer, as
amended by the First Amendment to Recovery Property Servicing Agreement, dated
as of the date hereof, and as further amended from time to time.


 


 “Statute” means Chapter 46, California
Statutes of 2004, codified at Public Utilities Code Section 848 et seq.,
as further amended from time to time.


 


“Tariff”
means the rate tariff filed with the CPUC as Advice 2596-E-A pursuant to the
Statute and the Financing Order, relating to the DRC Charges, as amended by the
Issuance Advice Letter, and as further amended from time to time.


 


“Trustee”
means the Person acting as trustee under the Indenture, its successors in
interest and any successor trustee under the Indenture.


 


SECTION 1.02.  Other Definitional Provisions.


 


(a)  Capitalized
terms used herein and not otherwise defined herein have the meanings assigned
to them in the Indenture.


 


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(b) 
All terms defined in this Agreement shall have the defined meanings when used
in any certificate or other document made or delivered pursuant hereto unless
otherwise defined therein.


 


(c) 
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”.


 


(d) 
The definitions contained in this Agreement are applicable to the singular as
well as the plural forms of such terms and to the masculine as well as to the
feminine and neuter forms of such terms.


 


(e) 
Each reference herein to the Servicing Agreement, the Indenture, or any other
Basic Document refers to such agreement as in effect on the Closing Date unless
otherwise agreed to by the Seller and the Issuer.


 


(f) 
Any term used herein that is defined in the Statute and not otherwise defined
herein shall have the meaning set forth in the Statute.


 


ARTICLE II



CONVEYANCE OF RECOVERY PROPERTY


 


SECTION 2.01.  Conveyance of Recovery Property.


 


(a)           In consideration of the Issuer’s
payment to the Seller of $838,111,907.88, the Seller does hereby irrevocably
sell, transfer, assign, set over and otherwise convey to the Issuer, without
recourse except as otherwise set forth herein, all right, title and interest of
the 


 


6





















 


Seller in and to the
Recovery Property (such sale, transfer, assignment, set over and conveyance of
the Recovery 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 Tariff or constituting the DRC Charge including
the DRC Charge pursuant to the Financing Order and the Issuance Advice
Letter).  Such sale, transfer,
assignment, set over and conveyance is hereby expressly stated to be a sale
and, pursuant to Section 848.4(a) of the PU Code, shall be treated as
an absolute transfer of all of the Seller’s right, title and interest (as in a
true sale), and not as a pledge or other financing, of the Recovery
Property.  This is the statement referred
to in Section 848.4(a) of the PU Code.  If such sale, transfer, assignment, set over
and conveyance is held not to be an absolute transfer as contemplated by Section 848.4(a) of
the PU Code, then such sale, transfer, assignment, set over and conveyance
shall be treated as the grant of a security interest in the Recovery Property
and the Seller hereby grants to the Issuer a security interest in all of its
right, title, and interest, whether now owned or hereafter acquired, in and to
the Recovery Property and the proceeds thereof to secure its obligations
hereunder.


 


(b)           The Seller shall not deliver to the
Issuer or its assignee any payments in respect of the DRC Charges or any
proceeds thereof that the Financing Order, the Tariff, an order or decision of
the CPUC, or CPUC Regulations provide are to be retained by the Seller and not
remitted to the Issuer. If at any time, an order or decision of the CPUC shall
provide that any such amounts retained by the Seller are required to be
delivered to the Issuer, then promptly after such order or decision becoming
final and non-appealable, the Seller shall pay such amounts to the Issuer or
its assignee.


 


7





















 


SECTION 2.02.  Conditions to the Sale of Recovery
Property.


 


The
Issuer’s obligation to purchase Recovery Property on the Closing Date is
subject to the satisfaction or waiver of each of the following conditions:


 


(a) 
On or prior to the Closing Date, the Seller must duly execute and deliver this
Agreement to the Issuer;


 


(b) 
On or prior to the Closing Date, the Seller must have received the Financing
Order from the CPUC in a form acceptable to the Seller;


 


 (c)  On or prior to the Closing Date, the
Seller must have filed the Issuance Advice Letter with the CPUC, and such
Issuance Advice Letter must be effective;


 


(d) 
On the Closing Date, the Seller must not be insolvent and must not be made
insolvent by the sale of Recovery Property to the Issuer, and the Seller must
not be aware of any pending insolvency with respect to itself;


 


(e) 
On the Closing Date, the representations and warranties made by the Seller in
the this Agreement must be true and correct, the Seller must not have breached
any of its covenants in such Agreement, and the Servicer must not be in default
under the Servicing Agreement;


 


(f) 
On the Closing Date, the Issuer must have sufficient funds available to pay the
purchase price set forth in Section 2.01, and all conditions to the
issuance of the Bonds intended to provide the funds to purchase the Recovery
Property must have been satisfied or waived;


 


(g) On
or prior to the Closing Date, the Seller must have taken all action required to
transfer ownership of the Recovery Property to the Issuer on the Closing Date,
free and clear of all Liens, and the Issuer must have taken any action required
for it to grant the Trustee a first priority perfected security interest in the
collateral described in the Indenture;


 


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(h) 
The Issuer and the Trustee for the Bonds must receive an opinion of outside tax
counsel in form and substance reasonably satisfactory to the Issuer and that
Trustee;


 


(i) 
On the Closing Date, the Servicing Agreement, this Agreement, the Indenture,
the Statute, the Financing Order and the Issuance Advice Letter must be in full
force and effect;


 


(j)  The Rating Agency Condition contained in Section 4.06(c)(iv) of
the Recovery Property Purchase and Sale Agreement, dated as of February 10,
2005, between the Seller and the Issuer, shall have been satisfied; and


 


(k)  Officer’s Certificates confirming the
satisfaction of each of these conditions must be delivered to the Issuer and
the Trustee.


 


ARTICLE III



REPRESENTATIONS AND WARRANTIES OF SELLER


 


The
Seller makes the following representations and warranties, as of the Closing
Date, on which the Issuer has relied in acquiring the Recovery Property.  The representations and warranties shall survive
the sale of the Recovery Property to the Issuer and the grant of a security
interest therein to the Trustee pursuant to the Indenture.


 


SECTION 3.01.  Organization and Good Standing.


 


(a) 
The Seller is duly organized and validly existing and in good standing under
the laws of the State of California, with requisite corporate power and
authority to own its properties as owned on the Closing Date and to conduct its
business as conducted by it on the Closing Date, to obtain the Financing Order
and to own, sell and transfer the Recovery Property and to execute, deliver and
perform the terms of this Agreement.


 


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(b) 
After giving effect to the sale of the Recovery Property under this Agreement,
the Seller: (i) is solvent and expects to remain solvent, (ii) is
adequately capitalized to conduct its business and affairs considering its size
and the nature of its business and intended purposes, (iii) is not engaged
and does not expect to engage in a business for which its remaining property
represents an unreasonably small capital, and (iv) is able to pay its
debts as they mature and does not intend to incur, nor does it believe that it
will incur, indebtedness that it will not be able to repay at its maturity.


 


SECTION 3.02.  Due Qualification. 
The Seller is duly qualified to do business and is 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 a failure to
qualify or obtain such licenses and approvals would not be reasonably likely to
have a material adverse effect on the Seller’s business, operations, assets,
revenues,  or properties).


 


SECTION 3.03.  Power and Authority. 
The Seller has the requisite corporate power and authority to execute
and deliver this Agreement and to carry out its terms, and the execution,
delivery and performance by the Seller of this Agreement have been duly
authorized by all necessary action on the part of the Seller under its
organizational or governing documents and laws.


 


SECTION 3.04.  Binding Obligation.  This Agreement constitutes a legal, valid and
binding obligation of the Seller, enforceable against the Seller in accordance
with its terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer and other laws relating to or affecting
creditors’ or secured parties’ rights generally from time to time in effect and
to general principles of equity (including, without limitation, concepts of 


 


10





















 


materiality, reasonableness, good faith and
fair dealing), regardless of whether considered in a proceeding in equity or
law.


 


SECTION 3.05.  No Violation and Consistency.   The consummation by the Seller of the
transactions contemplated by this Agreement (a) do not conflict with the
organizational documents of the Seller or any indenture or other agreement or
instrument to which the Seller is a party or by which it is bound, nor will
consummation by the Seller of the transactions contemplated hereunder result in
the creation or imposition of any Lien upon its properties pursuant to the
terms of such indenture, agreement or other instrument (other than any that may
be granted under the Basic Documents or the lien arising under Section 848.3(g) of
the PU Code, the Financing Order and the Issuance Advice Letter) or violate any
existing law or any existing order, rule or regulation applicable to the
Seller and (b) is consistent with PU Code and the Financing Order.


 


SECTION 3.06.  No Proceedings.


 


(a) 
No proceeding is pending and, to the Seller’s knowledge, no proceeding is
threatened, against the Seller, and, to the Seller’s knowledge, no
investigation is pending or threatened against the Seller before any
governmental authority: (i) asserting the invalidity of the Statute, the
Financing Order, this Agreement, the Bonds or the Basic Documents, (ii) seeking
to prevent the issuance of the Bonds or the consummation of any of the
transactions contemplated by the Basic Documents, (iii) that would have an
outcome that could reasonably be expected to materially and adversely affect
the performance by the Seller of its obligations under, or the validity or
enforceability of, the Statute, the Financing Order, the Bonds, this Agreement
or the other Basic Documents, or (iv) seeking to adversely affect the
Federal income tax or state income or franchise tax classification of the Bonds
as debt.


 


11





















 


(b) 
There is no order by any court or regulatory agency providing for the
revocation, alteration, limitation or other impairment of the Statute, the
Financing Order, the Issuance Advice Letter, the Recovery Property or the DRC
Charges or any rights arising under any of them or that seeks to enjoin the
performance of any obligations under the Financing Order.


 


SECTION 3.07.  Approvals.  No governmental approvals, authorizations,
consents, orders or other actions or filings, other than filings under the
Statute, are required for the Seller to execute, deliver and perform its
obligations under this Agreement except those that have been obtained or made
or are required to be made by the Seller in the future pursuant to this
Agreement.


 


SECTION 3.08.  The Recovery Property.


 


(a)  Information.  Subject to the assumptions used in
calculating the DRC Charges and any other forecasts, projections and
predictions about events in the future, as of the Closing Date, all written
information, as amended or supplemented from time to time, provided by the
Seller to the Issuer with respect to the Recovery Property is true, correct and
complete in all material respects.


 


(b)  Title.  It is the intention of the parties hereto
that the transfer and assignment herein contemplated constitute a sale of the
Recovery Property from the Seller to the Issuer and that the Recovery Property
not be part of the debtor’s estate in the event of the filing of a bankruptcy
petition by or against the Seller under any bankruptcy law.  No portion of the Recovery Property has been
sold, transferred, assigned, pledged or otherwise conveyed by the Seller to any
Person other than the Issuer, and immediately prior to the sale of such
Recovery Property, the Seller owns the Recovery Property free and clear of all
Liens and rights of any other 


 


12





















 


Person, and no offsets,
defenses or counterclaims exist or have been asserted with respect to the
Recovery Property.


 


(c)  Transfer
Filings.  Immediately upon the sale
under this Agreement, the Recovery Property transferred on the Closing Date
shall be validly transferred and sold to the Issuer, the Issuer shall own all
such Recovery Property, free and clear of all Liens, except for the lien
arising under Section 848.3(g) of the PU Code, the Financing Order
and the Issuance Advice Letter, and all filings (including filings with the
Secretary of State of California under the Statute) necessary in any
jurisdiction to give the Issuer a perfected ownership interest in the Recovery
Property shall have been made.


 


(d)  Financing
Order and Issuance Advice Letters; Other Approvals.  Under the laws of the State of California
(including the Statute) and the United States in effect on the Closing
Date: (i) the Financing Order and the Issuance Advice Letter pursuant to
which the rights and the interests of the Seller have been created, including
the right to impose, collect and receive the DRC Charges and the interest in
and to the Recovery Property is in full force and effect, and the Seller has
validly and irrevocably consented to the terms of the Financing Order, (ii) subject
to the limitations set forth in Section 848.1(g) of the PU Code (that
nothing contained in Section 848.1 shall preclude the limitation or
alteration if and when adequate provision shall be made by law for the
protection of PG&E, owners of Recovery Property and holders of recovery
bonds) and Section 848.7 of the PU Code (that authorizes the CPUC to
credit ratepayers for certain amounts notwithstanding Section 848.1(g) of
the PU Code), the Bonds are entitled to the protection provided in the first
sentence of Section 848.1(g) of the PU Code, (iii) notwithstanding
any other provision of the Statute, the Bonds are entitled to the protections
provided in the first sentence of Section 848.2(d) of the PU Code, (iv) 
the Tariff has been filed 


 


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with the CPUC in
accordance with the Financing Order, (v) the process by which the
Financing Order was approved and the Financing Order, the Issuance Advice
Letter and the Tariff comply with all applicable laws and regulations, (vi) the
Issuance Advice Letter and the Tariff have been filed in accordance with the
Financing Order, (vii) no other approval, authorization, consent, order or
other action of, or filing with any governmental authority is required on the
part of the Seller in connection with the creation of the Recovery Property,
except those that have been obtained or made, and (viii) under the “contract
clause” of the U.S. Constitution and the “contract clause” of the California
Constitution, Holders of the Bonds could successfully challenge the
constitutionality of any law enacted by the State of California, whether
enacted by legislation or voter initiative, that, after the Bonds are issued
but prior to the time that the Bonds are fully paid, repeals, amends or
violates the State Pledge (as defined in the Indenture) in a manner that
substantially impairs the Bonds or the Indenture, unless the law is reasonable
and necessary to serve an important public purpose such as remedying a broad
and general social or economic problem.


 


(e)  Assumptions.  Based on information available to the Seller
on the Closing Date, the assumptions used in calculating the DRC Charges as of
the Closing Date are reasonable and are made in good faith.


 


(f) 
Creation of Recovery Property. 
Upon the filing of the Issuance Advice Letter with respect to the
Recovery Property pursuant to the Financing Order, regardless of the outcome of
the appeal in Loretta M. Lynch et al. v. CPUC et al., No. 04-16493,
pending before the United States Court of Appeals for the Ninth Circuit (the “Pending
Appeal”):  (i) the related rights
and interests of the Seller under the Financing Order, including the right to
impose, collect and receive the DRC Charges established pursuant to the
Financing Order, will become Recovery 


 


14





















 


Property, (ii) the
Recovery Property will constitute a current property right, (iii) the
Recovery Property will include the right, title and interest of the Seller to
the Tariff imposing the DRC Charges, and the right to obtain periodic true-up
adjustments of the DRC Charges, (iv) the owner of the Recovery Property
will be legally entitled to bill DRC Charges and collect payments in respect of
the DRC Charges in the aggregate amount sufficient to pay or fund, in
accordance with the Indenture, the principal of the Bonds, all interest
thereon, any credit enhancements, and all related fees and costs with respect
to the scheduled payment of the Bonds, as well as other amounts payable under
the Indenture, and (v) the Recovery Property will not be subject to any
Lien, except for the lien arising under Section 848.3(g) of the PU
Code, the Financing Order and the Issuance Advice Letter.


 


(g)           Taxes.  Under existing law as of the Closing Date,
Bondholders will not be responsible for, nor will payments to Bondholders be
reduced by, any sales tax, gross receipts tax, general corporation tax, single
business tax, personal property tax, privilege tax, franchise or license tax,
or other tax imposed on the Seller or the Issuer as a result of the sale and
assignment of the Recovery Property by the Seller to the Issuer, the
acquisition of the Recovery Property by the Issuer or the issuance and sale by
the Issuer of the Bonds, other than withholding of taxes applicable to Bond
payments and any taxes imposed as a result of a failure of the Issuer or the
Seller to properly withhold or remit taxes imposed with respect to payments on
any Bond.


 


15





















 


SECTION 3.09.  Change in Law.  The representations and warranties in this
Agreement speak as of the Closing Date. 
Any change in the law by legislative enactment, constitutional amendment
or voter initiative that renders untrue any of the representations or
warranties in this Agreement will not constitute a breach under this
Agreement.   For purposes of this Section 3.09,
the outcome of the Pending Appeal will not be treated as a change in law.


 


SECTION 3.10  Pending Litigation.  The Pending Appeal is the only proceeding
pending in any court on the Closing Date seeking to overturn the order of the
United States Bankruptcy Court for the Northern District of California, San
Francisco Division, dated December 22, 2003 (the “Confirmation Order”),
confirming the Plan of Reorganization dated July 31, 2003, as amended by
Modifications dated November 6, 2003, December 19, 2003 and February 19,
2004 and as supplemented by the Composite Plan Supplement attached as Exhibit B
to the Confirmation Order (the “Plan of Reorganization”).


 


SECTION 3.11.  Exemptions to DRC Charges.  The Statute provides for the exemption of
certain Consumers or categories of Consumers from the DRC Charge. The Statute
requires the CPUC to establish an effective mechanism that ensures recovery of
recovery costs through DRC Charges from other existing and future Consumers.
The Statute also includes a pledge that the State will neither limit nor alter
the Recovery Property nor any associated DRC Charges until the Bonds, together
with interest thereon, have been fully discharged; provided, however, the
Statute permits the State to avoid these requirements if and when adequate provision
shall be made by law for the protection of holders of the Bonds.  In Decision 05-07-041, dated July 21,
2005, the CPUC found that the Bay Area Rapid Transit District (“BART”) is
exempt from the DRC Charge on all federal preference power and local publicly
owned utility power purchased by and delivered to BART under Section 701.8.
of the PU Code.  The CPUC 


 


16





















 


also found that SierraPine Ltd. is exempt
from the DRC Charge.  The CPUC found that
nothing in its decision reduces or impairs the value of Recovery Property or
has any effect on the DRC Charge, other customers or the Issuer.  To the best knowledge of the Seller, after
reasonable investigation, no existing laws would exempt Consumers from the
payment of the DRC Charge in a manner that would materially and adversely
affect the Recovery Property or the holders of Bonds.


 


SECTION 3.12.  Limitations on Representations and
Warranties.


 


(a) 
Notwithstanding the above, the Seller makes no representation or warranty that
any amounts actually collected arising from the DRC Charges will in fact be
sufficient to meet payment obligations on the Bonds or that the assumptions
made in calculating the DRC Charges will in fact be realized.


 


(b) 
The representations and warranties made by the Seller survive the execution and
delivery of this Agreement and may not be waived by the Issuer or the Seller
except pursuant to a written agreement as to which the Rating Agency Condition
has been satisfied.


 


ARTICLE IV



COVENANTS OF THE SELLER


 


SECTION 4.01.  Corporate Existence.  Subject to its right to assign its rights and
obligations under this Agreement, so long as any of the Bonds are outstanding,
the Seller (a) will keep in full force and effect its existence and remain
in good standing under the laws of the jurisdiction of its organization and (b) will
obtain and preserve its qualifications to do business in those jurisdictions
necessary to protect the validity and enforceability of the Basic Documents to
which the Seller is a party or the extent necessary to perform its obligations
under the Basic 


 


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Documents to which it is a party.


 


SECTION 4.02.  No Liens.  Except for the conveyances under this
Agreement or the lien arising under Section 848.3(g) of the PU Code,
the Financing Order and the Issuance Advice Letter, the Seller will not sell,
pledge, assign or transfer, or grant, create, incur, assume or suffer to exist
any Lien, arising through or under the Seller, on any of the Recovery Property,
or any interest therein, and the Seller shall defend the right, title and
interest of the Issuer and of the Trustee in, to and under the Recovery
Property against all claims of third parties claiming through or under the
Seller.  The Seller also covenants that
it will not at any time assert any Lien against, or with respect to, any of the
Recovery Property.


 


SECTION 4.03.  Delivery of Payments.  If the Seller receives any payments in
respect of the DRC Charges or the proceeds thereof other than in its capacity
as the Servicer, the Seller agrees to pay all those payments to the Servicer
and to hold such amounts in trust for the Issuer prior to such payment;
provided, however, that notwithstanding any other provision of this Agreement,
the Seller shall not be obligated to remit to the Servicer or any other person
or entity, or to hold in trust, any payments in respect of the DRC Charges or
any proceeds thereof that the Financing Order, the Tariff, an order or decision
of the CPUC, or CPUC Regulations provide are to be retained by the Seller and
not remitted to the Issuer.


 


SECTION 4.04.  Notice of Liens.  The Seller shall notify the Issuer and the
Trustee promptly after becoming aware of any Lien arising through or under it
on any of the Recovery Property other than the conveyances hereunder or the
lien arising under Section 848.3(g) of the PU Code, the Financing
Order and the Issuance Advice Letter.


 


SECTION 4.05.  Compliance With Law.  The Seller hereby agrees to comply with its
organizational or governing documents and all laws, treaties, rules,
regulations and 


 


18





















 


determinations of any governmental authority
applicable to the Seller, except to the extent that failure to so comply would not
materially adversely affect the Issuer’s or the Trustee’s interests in the
Recovery Property or under any of the Basic Documents to which the Seller is a
party or the Seller’s performance of its obligations under any of the other
Basic Documents to which it is party.


 


SECTION 4.06.  Covenants Related to Recovery Property.


 


(a) 
So long as any of the Bonds are outstanding: (i) the Seller shall disclose
in its financial statements that the Issuer’s assets are not available to
creditors of the Seller and the Recovery Property is not legally an asset of
the Seller, and (ii) the Seller shall disclose the effects of all
transactions between the Issuer and the Seller in accordance with generally
accepted accounting principles.


 


(b)  The
Seller agrees that upon the sale by the Seller of the Recovery Property to the
Issuer pursuant to this Agreement, (i) the Issuer shall have all of the
rights originally held by the Seller with respect to the Recovery Property,
including the right to exercise any and all rights and remedies to collect any
amounts payable by any Consumer in respect of the Recovery Property,
notwithstanding any objection or direction to the contrary by the Seller and (ii) any
payment by any Consumer to the Issuer shall discharge such Consumer’s obligations
in respect of the Recovery Property to the extent of such payment,
notwithstanding any objection or direction to the contrary by the Seller.


 


(c)  So
long as any of the Bonds are outstanding, (i) in all proceedings relating
directly or indirectly to the Recovery Property, the Seller shall affirmatively
certify and confirm that it has sold all of its rights and interests in and to
such property (other than for financial reporting or tax purposes), (ii) the
Seller shall not make any statement or reference in respect of 


 


19





















 


the Recovery Property
that is inconsistent with the ownership interest of the Issuer (other than for
financial reporting or tax purposes), (iii) the Seller shall not take any
action in respect of the Recovery Property except solely in its capacity as
Servicer pursuant to the Servicing Agreement or as otherwise contemplated by
the Basic Documents, and (iv) the Seller shall not sell recovery property
in connection with the issuance of additional bonds by the Issuer unless the
Rating Agency Condition has been satisfied.


 


(d) 
The Seller agrees not to withdraw the filing of the Issuance Advice Letter with
the CPUC.


 


(e) 
The Seller shall make all reasonable efforts to keep each tariff that relates
to the Recovery Property in full force and effect.


 


(f) 
Promptly after obtaining knowledge of any breach in any material respect of its
representations and warranties in this Agreement, the Seller shall notify the
Issuer and the Rating Agencies of the breach.


 


(g) 
The Seller shall use the proceeds of the sale of the Recovery Property in
accordance with the Financing Order and the Statute.


 


(h) 
Upon the request of the Issuer, the Seller shall execute and deliver such
further instruments and do such further acts as may be necessary to carry out
the provisions and purposes of this Agreement.


 


SECTION 4.07.  Protection of Title.  The Seller shall execute and file the filings
required by law to perfect and continue the perfection of the interests of the
Issuer in the Recovery Property.  The
Seller also agrees to take those legal or administrative actions that may be
reasonably necessary to protect the Issuer from claims, state actions or other
actions or proceedings of third parties which, if successfully pursued, would
result in a breach of any 


 


20





















 


representation or warranty of the Seller set
forth in Article III, and the costs of any such actions or proceedings
will be paid by the Seller.


 


SECTION 4.08.  Nonpetition Covenants.  Even if this Agreement or the Indenture is
terminated, the Seller shall not, prior to the date which is one year and one
day after the termination of all indentures under which the Issuer issues
energy recovery bonds, petition or otherwise invoke the process of any court or
government authority for the purpose of commencing or sustaining an involuntary
case against the Issuer under any Federal or state bankruptcy, insolvency or
similar law, appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official for any substantial part of the property
of the Issuer, or ordering the winding up or liquidation of the affairs of the
Issuer.


 


SECTION 4.09.  Taxes. 
So long as any of the Bonds are outstanding, except for taxes,
assessments and governmental charges which the Seller is contesting in good
faith by appropriate proceedings, the Seller shall pay all material taxes,
assessments and  governmental charges
imposed upon it or any of its properties or assets or with respect to any of
its franchises, business, income or property before any penalty accrues 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 Recovery Property.


 


ARTICLE V



THE SELLER


 


SECTION 5.01.  Liability of Seller; Indemnities.


 


(a)  The
Seller shall be liable in accordance herewith only to the extent of the
obligations specifically undertaken by the Seller under this Agreement.


 


21





















 


(b)  The
Seller shall indemnify the Issuer and the Trustee (for itself and for the
benefit of the Bondholders) and each of the Issuer’s and the Trustee’s
respective officers, directors, members, employees and agents and defend and
hold harmless each such person from and against (i) any and all amounts of
principal of and interest on the Bonds not paid when due or when scheduled to
be paid in accordance with their terms, (ii) any other amounts payable to
any Person in connection with the Bonds or in connection with the Recovery
Property, including but not limited to Trustee’s fees and expenses, that are
not paid when due or when scheduled to be paid pursuant to the Indenture, (iii) the
amount of any other deposits to the Collection Account required to have been
made in accordance with the terms of the Basic Documents and retained in the
Capital Subaccount, in the Overcollateralization Subaccount or in the Reserve
Subaccount or released to the Issuer free of the lien of the Indenture, which
are not made when so required, (iv) any reasonable costs and expenses
incurred by such Person that are not recoverable pursuant to the Indenture and (v) any
taxes payable by Bondholders resulting in a breach of Section 3.08(g), in
each case to the extent resulting from the Seller’s breach of any of its
representations, warranties or covenants contained in this Agreement, except to
the extent of losses either resulting from the willful misconduct, bad faith or
gross negligence of such indemnified Persons or resulting from a breach of
representation or warranty made in any of the Basic Documents by the party
seeking indemnification.  The Seller’s
obligation to provide indemnification pursuant to this Section 5.01(b) shall
survive the resignation or removal of the Trustee.


 


(c) 
Notwithstanding Section 5.01(b) above, the Seller shall not be liable
for any loss, damages, liability, obligation, claim, action, suit or payment
resulting solely from a downgrade in the ratings on the Bonds or for any
consequential damages, including any loss of 


 


22





















 


market value of the
Bonds, resulting from any default or any downgrade of the ratings of the Bonds.


 


(d) 
The indemnities described in this Section will survive the termination of
this Agreement and include reasonable fees and expenses of investigation and
litigation, including reasonable attorneys’ fees and expenses.


 


SECTION 5.02.  Merger or Consolidation of, or Assumption
of the Obligations of, Seller.  Any
Person (a) into which the Seller may be merged, converted or consolidated
and that succeeds to all or substantially all of the electric distribution
business of the Seller, (b) that results from the division of the Seller
into two or more Persons and succeeds that to all or substantially all of the
electric distribution business of the Seller, (c) that results from any
merger or consolidation to which the Seller shall be a party and that succeeds
to all or substantially all of the electric distribution business of the
Seller, (d) that succeeds to the properties and assets of the Seller
substantially as a whole, or succeeds to all or substantially all of the
electric distribution business of the Seller, or (e) that otherwise
succeeds to all or substantially all of the electric distribution business of
the Seller, shall be the successor to the Seller under this Agreement without
further act on the part of any of the parties to this Agreement; provided,
further, that (i) immediately after giving effect to any transaction
referred to above, no representation or warranty made by the Seller pursuant to
Article III shall have been breached and, to the extent the Seller is the
Servicer, no default under the Servicing Agreement, and no event, that after
notice or lapse of time, or both, would become a default under the Servicing
Agreement will have occurred and be continuing, (ii) the successor to the
Seller must execute an agreement of assumption to perform every obligation of
the Seller under this Agreement, (iii) the Rating Agencies shall have
received prior written notice of such transaction, and (iv) the Seller
shall have delivered to the 


 


23





















 


Issuer and the Trustee an Officer’s 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.


 


SECTION 5.03.  Limitation on Liability of Seller and
Others.  The Seller and any director
or officer or employee or agent of the Seller may rely in good faith on the
advice of counsel or on any document of any kind, prima facie properly executed
and submitted by any Person, respecting any matters arising hereunder.  The Seller shall not be under any obligation
to appear in, prosecute or defend any legal action that is not incidental to
its obligations under this Agreement, and that in its opinion may involve it in
any expense or liability.


 


ARTICLE VI



MISCELLANEOUS PROVISIONS


 


SECTION 6.01.  Amendment.  This Agreement may be amended by the Seller
and the Issuer with the prior written consent of the Trustee.  In addition, any amendment will not be
effective unless the Rating Agency Condition is satisfied.  The Issuer shall notify the Rating Agencies
promptly after the execution of any such amendment.


 


SECTION 6.02.  Notices.  All demands, notices and communications upon
or to the Seller, the Issuer, the Trustee or the Rating Agencies under this
Agreement shall be in writing, personally delivered, mailed or sent by telecopy
or other similar form of rapid transmission, and shall be deemed to have been
duly given upon receipt (a) in the case of the Seller, to Pacific Gas and
Electric Company, at 77 Beale Street, San Francisco,
California 94105, Attention of Treasurer, (b) in the case of the
Issuer, to PG&E Energy Recovery Funding LLC, 


 


24





















 


245 Market Street, Room 424,
San Francisco, California 94105, Attention of President, (c) in
the case of the Trustee, at the Corporate Trust Office, 60 Wall Street, Floor
26, New York, New York 10005, Attention: 
Structured Finance Services, (d) in the case of Moody’s, to Moody’s
Investors Service, Inc., ABS Monitoring Department, 99 Church Street,
New York, New York 10007, (e) in the case of Standard &
Poor’s, to Standard & Poor’s Corporation, 55 Water Street,
40th Floor, New York, New York 10041, Attention of Asset
Backed Surveillance Department, (f) in the case of Fitch, to Fitch, Inc.,
One State Street Plaza, New York, NY 10004, Attention of
Asset-Backed Securities Surveillance, or (g) as to each of the foregoing,
at such other address as shall be designated by written notice to the other
parties.


 


SECTION 6.03.  Assignment.  Notwithstanding anything to the contrary
contained herein, except as provided in Section 5.02, this Agreement may
not be assigned by the Seller.


 


SECTION 6.04.  Limitations on Rights of Others.  The provisions of this Agreement are solely
for the benefit of the Seller, the Issuer, the Trustee and the 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 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 


 


25





















 


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 California, without reference to its
conflict of law provisions, and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such laws.


 


SECTION 6.09.  Assignment to Trustee.  The Seller hereby acknowledges and consents
to the grant of a security interest by the Issuer to the Trustee pursuant to
the Indenture of all right, title and interest of the Issuer in, to and under
the Recovery Property and the proceeds thereof and all of the Issuer’s rights
and obligations hereunder.


 


[Signature page follows]


 


26





















 


IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be duly executed by their
respective officers as of the date first above written.


 


	
   

  	
  PG&E
  ENERGY RECOVERY FUNDING LLC,

  	
   

  
	
   

  	
  Issuer,

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Nicholas M. Bijur

  	
   

  	
   

  
	
   

  	
  Name: 

  	
  Nicholas M. Bijur

  	
   

  
	
   

  	
  Title:

  	
  Treasurer

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  PACIFIC
  GAS AND ELECTRIC COMPANY, 

  	
   

  
	
   

  	
  Seller,

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Christopher P.
  Johns

  	
   

  	
   

  
	
   

  	
  Name: 

  	
  Christopher P. Johns

  	
   

  
	
   

  	
  Title:

  	
  Senior Vice President,
  Chief Financial

  	
   

  
	
   

  	
   

  	
  Officer and Treasurer

  	
   

  
							



 


[Signature page to
Recovery Property Purchase and Sale Agreement]