(220 ILCS 5/18-108)
Sec. 18-108.
Characterization of transfer.
A sale,
assignment or other transfer of intangible transition property
or grantee instruments which is expressly stated in the
documents governing such transaction to be a sale or other
absolute transfer, in a transaction approved in a transitional
funding order, shall be treated as an absolute transfer of all
of the transferor's right, title and interest in, to and under
such intangible transition property or grantee instruments
which places such transferred property beyond the reach of the
transferor or its creditors, as in a true sale, and not as a
pledge or other financing, of such intangible transition
property or grantee instruments, as the case may be; provided,
however, that whether or not such transfer is deemed to be a
sale for federal tax purposes shall be governed by applicable
law without regard to this Section 18-108. The characterization of any such
transfer as an absolute transfer and the corresponding characterization of the
transferee's property interest
shall not be defeated or adversely affected by, among other things:
(i)
the
commingling of revenues arising with respect to intangible
transition property or grantee instruments, as the case may
be, with funds of the electric utility or other funds of the
assignee, issuer or grantee; (ii) granting to holders of
transitional funding instruments a preferred right to the
intangible transition property, whether direct or indirect; (iii)
the provision by the electric utility, grantee, assignee, or issuer of any
recourse,
collateral or credit enhancement with respect to transitional
funding instruments or grantee instruments, as the case may be;
(iv) the retention by the assigning party of a partial interest in any
intangible
transition property, whether direct or indirect, or whether subordinate or
otherwise; or (v) the electric utility's responsibilities for collecting
instrument funding charges and any retention of bare legal title for the
purpose of such collection activities;
provided, however, that
nothing in this Section 18-108 is intended to preclude
consideration of such provisions in determining whether or not
such transfer is deemed to be a sale for federal tax purposes
under other applicable law. A sale, assignment, or other
transfer of intangible transition property or grantee
instruments, as the case may be, shall be deemed perfected as
against third persons, including any judicial lien creditors,
when all of the following have taken place:
(1) The Commission has issued the transitional funding order creating the intangible |