CLOVER AGREEMENTS ASSIGNMENT AND
ASSUMPTION AGREEMENT
Dated as of February 29, 1996
between
OLD DOMINION ELECTRIC COOPERATIVE,
as Assignor
and
STATE STREET BANK AND TRUST COMPANY,
not in its individual capacity, but
solely as Owner Trustee,
as Assignee
CLOVER UNIT 1 GENERATING FACILITY
AND
COMMON FACILITIES
CLOVER AGREEMENTS ASSIGNMENT AND ASSUMPTION AGREEMENT
This CLOVER AGREEMENTS ASSIGNMENT AND ASSUMPTION AGREEMENT, dated as
of February 29, 1996 (this "Assignment and Assumption"), between OLD DOMINION
ELECTRIC COOPERATIVE, a wholesale power supply cooperative organized under the
laws of the Commonwealth of Virginia (the "Assignor"), and STATE STREET BANK
AND TRUST COMPANY, a state chartered trust company organized and operating
under the laws of the Commonwealth of Massachusetts, not in its individual
capacity, but solely as Owner Trustee under the Trust Agreement (the
"Assignee").
WHEREAS, the Clover Real Estate is more particularly described in
Schedule 1 and comprised of the Unit 1 Site described in Schedule 2, the Unit 2
Site described in Schedule 3, and the Common Facilities Site described in
Schedule 4, and certain other property, each such Schedule 1, Schedule 2,
Schedule 3, and Schedule 4 being attached to and made part of the form of the
Deed of Ground Lease and Sublease Agreement;
WHEREAS, Assignor and Virginia Power own the Clover Real Estate as
tenants-in- common;
WHEREAS, by the Clover Agreements, Assignor and Virginia Power
established their respective rights and obligations as tenants-in-common of the
Clover Real Estate and of all improvements thereafter to be constructed, and all
personal property thereafter to be situated, on the Clover Real Estate. Such
improvements and personal property owned by Assignor and Virginia Power as
tenants-in-common include, but are not limited to, (a) the Xxxx 0 Foundation
constructed on the Xxxx 0 Xxxx, (x) the Xxxx 0 Foundation being constructed on
the Unit 2 Site, (c) the Common Facilities Foundation constructed on the Common
Facilities Site, (d) the Unit 1 Equipment situated on the Unit 1 Site, (e) the
Xxxx 0 Equipment being situated on the Unit 2 Site, and (f) the Common
Facilities Equipment situated on the Common Facilities Site;
WHEREAS, as tenants-in-common of such real and personal property, each
of Assignor and Virginia Power owns a 50% undivided interest in such real and
personal property, other than the Pollution Control Assets including the right
to nonexclusive possession of all such real and personal property, subject to
(a) the rights of the other to nonexclusive possession of all such real and
personal property and (b) the terms and conditions of the Clover Agreements;
WHEREAS, by the Option Agreement which is recorded in the Halifax
Clerk's Office, Assignor granted and conveyed to the Assignee, its successors
and assigns, the right and option to lease the Ground Interest from Assignor,
subject to the Assignee's agreement to sublease the Ground Interest
simultaneously back to Assignor upon the terms and conditions of the Option
Agreement if the Assignee exercises such option;
WHEREAS, Assignor has leased to Assignee (a) the Foundation Interest by
the Foundation Head Lease and (b) the Equipment Interest by the Equipment Head
Lease;
WHEREAS, by the Foundation Operating Lease, Assignee will lease the
Foundation Interest back to Assignor upon a term which shall end prior to the
expiration of the term of the Foundation Head Lease;
WHEREAS, by the Equipment Operating Lease, Assignee will lease the
Equipment Interest back to Assignor upon a term which shall end prior to the
expiration of the term of the Head Lease;
WHEREAS, although Assignor and Assignee intend that the Foundation
Interest at all times and in all respects be and remain personal property under
Virginia law, they have recorded the Foundation Head Lease, and will record the
Foundation Operating Lease, in the Halifax Clerk's Office in order to satisfy
the conditions of Section 55-96 of the Code of Virginia 1950, as amended, in the
event that the Foundation Interest is deemed to be real estate or an interest in
real estate for purposes of such Section 55-96. The Equipment Head Lease and the
Equipment Operating Lease are not to be recorded; and
WHEREAS, upon the leasing or other conveyance by Assignor to the Unit 2
Parties of the foundation and the equipment in connection with Clover Unit 2,
each of Assignee (on the one hand) and the Unit 2 Parties (on the other hand)
shall share equally all of those rights, and shall be subject equally to having
all of those responsibilities undertaken, which are imposed upon Assignor with
respect to the Common Facilities Site, the Common Facilities Foundation, and the
Common Facilities Equipment, as (a) tenant-in-common with Virginia Power of such
property, and (b) a party to the Clover Agreements.
NOW, THEREFORE, in consideration of the foregoing premises and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. DEFINITIONS.
Capitalized terms used in this Assignment and Assumption and not
otherwise defined herein shall have the respective meanings specified in
Appendix A to the Participation Agreement, dated as of February 29, 1996, among
the Assignor, the Assignee, First Union National Bank of Florida and
Utrecht-America Finance Co. All references to sections herein are to sections of
this Assignment and Assumption unless otherwise indicated and the words
"herein", "hereof" and "hereunder" and other words of similar import refer to
this Assignment and Assumption as a whole and not to any particular section or
other subdivision.
Where any provision in this Assignment and Assumption refers to action
to be taken by any Person, or which such Person is prohibited from taking, such
provision shall be applicable whether such action is taken directly or
indirectly by such Person.
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SECTION 2. ASSIGNMENT OF ASSIGNED CLOVER INTERESTS TO ASSIGNEE.
Assignor hereby assigns the Assigned Clover Interests to the Assignee.
The assignment effected by this Section 2 shall become effective on and as of
the Closing Date and shall terminate on the expiration or earlier termination of
the Equipment Head Lease Term and the Foundation Head Lease Term, as
contemplated by Section 6 hereof.
SECTION 3. ASSUMPTION BY ASSIGNEE.
SECTION 3.1 ASSUMPTION OF LIABILITIES. Assignee hereby assumes, and
agrees to perform any and all liabilities and obligations of the Assignor
incurred with respect to the Assigned Clover Interests assigned pursuant to
Section 2. This assumption shall be effective on and as of the Closing Date and
shall terminate (except with respect to any liability or obligation which has
accrued after the Closing Date and prior to such termination) on the expiration
or earlier termination of the Equipment Head Lease Term and the Foundation Head
Lease Term.
SECTION 3.2 TAXES AND ASSESSMENTS. From and after the expiration or
termination of the Term of the Equipment Operating Lease and the Foundation
Operating Lease, the Assignee agrees to pay to the Assignor an amount equal to
50% of all Taxes and assessments, general or special, taxed, charged, levied,
assessed or imposed upon the Clover Unit 1 Generating Facility and 25% of all
Taxes and assessments, general or special, taxed, charged, levied, assessed or
imposed upon the Common Facilities in each case, to the extent such amounts are
not paid by the Assignee pursuant to Section 3.1 above. Such payment shall be
due upon demand by the Assignor, but in no event shall such amounts be due prior
to the date such Taxes and assessments are due and payable to a taxing or
assessing Governmental Entity. This Section 3.2 shall terminate (except with
respect to any tax or assessment which have accrued after the expiration or
termination of the Term of the Equipment Operating Lease and the Foundation
Operating Lease and prior to such termination) on the expiration or earlier
termination of the Equipment Head Lease Term and Foundation Head Lease Term.
SECTION 4. REASSIGNMENT OF ASSIGNED CLOVER INTERESTS TO ASSIGNOR.
Assignee hereby reassigns to Assignor all right, title, and interest of
Assignee in the Assigned Clover Interests assigned to the Assignee pursuant to
Section 2 hereof. This assignment shall become effective on and as of the
Closing Date and shall terminate upon the expiration or earlier termination of
the Term of the Equipment Operating Lease and the Foundation Operating Lease, as
contemplated by Section 6 hereof.
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SECTION 5. ASSUMPTION BY ASSIGNOR.
Assignor hereby assumes and agrees to perform any and all liabilities
and obligations of the Assignee incurred with respect to the Assigned Clover
Interests resulting from the Assignee's assumption of the liabilities and
obligations of the Assignor in Section 3 including the payments referred to in
Section 3.2. This assumption shall become effective on and as of the Closing
Date and shall terminate (except with respect to any liability or obligation
which has accrued after the Closing Date and prior to such termination) upon the
expiration or termination of the Term of the Equipment Operating Lease and the
Foundation Operating Lease, as contemplated by Section 6 hereof.
SECTION 6. EARLY TERMINATION OF ASSIGNMENT AND ASSUMPTION
The assignment to the Assignee effected by Section 2 and the Assignee's
assumption effected by Section 3 shall terminate prior to the scheduled
expiration of the Equipment Head Lease Term and the Foundation Head Lease Term
if the Equipment Operating Lease and the Foundation Operating Lease are
terminated pursuant to Section 10, 13 or 18 of each thereof or if the Assignor
purchases the Equipment Interest and the Foundation Interest on the Expiration
Date pursuant to Section 15.2 of each thereof. Upon satisfaction of the
requirements of the relevant sections of the Equipment Operating Lease and the
Foundation Operating Lease, the assignment effected by Section 2 and the
assumption effected by Section 3 shall terminate without any action by any
Person whatsoever, and the Assignor and the Assignee shall comply with the
provisions of the applicable sections of the Equipment Operating Lease and the
Foundation Operating Lease in connection with such termination. The reassignment
to the Assignor effected by Section 4 and the Assignor's assumption effected by
Section 5 shall terminate prior to the Expiration Date if the Equipment
Operating Lease and the Foundation Operating Lease are terminated pursuant to
Section 10, 13, 14, 17 or 18 of each thereof or if the Assignor purchases the
Equipment Interest and the Foundation Interest on the Expiration Date pursuant
to Section 15.2 of each thereof. Upon satisfaction of the requirements of the
relevant sections of the Equipment Operating Lease and the Foundation Operating
Lease or termination of the Equipment Operating Lease or the Foundation
Operating Lease pursuant to Section 17 thereof, the assignment effected by
Section 4 and the assumption effected by Section 5 shall terminate without any
action by any Person whatsoever, and the Assignor and the Assignee shall comply
with the applicable provisions of the Equipment Operating Lease and the
Foundation Operating Lease in connection with such termination.
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SECTION 7. LIMITATIONS ON AMENDMENTS TO CLOVER AGREEMENTS.
The Assignor agrees that it will not, without the prior written consent
of the Assignee which consent may not be unreasonably withheld, supplement or
amend, or permit any supplement or amendment of, the Clover Ownership Agreement
or the Clover Operating Agreement, which supplement or amendment (a)
discriminates against the Equipment Interest or the Foundation Interest when
compared with other undivided interests of Old Dominion, Virginia Power or
others in the Clover Unit 1 or Clover Unit 2, (b) discriminates
against the beneficial ownership of the Equipment Interest or the Foundation
Interest in respect of the period subsequent to the Expiration Date when
compared with the period prior to the Expiration Date, (c) decreases the
Lessor's entitlement to Available Capacity from the Clover Unit 1 Generating
Facility except in connection with a reduction of the entire Available Capacity
of the Clover Unit 1 Generating Facility, (d) is entered into on or after the
Election Date, unless prior to entering such supplement or amendment the
Assignor shall have irrevocably elected the Purchase Option and the Foundation
Purchase Option, (e) except if required to operate or maintain Clover Unit 1 in
accordance with Applicable Law, individually or in the aggregate materially
changes the financial responsibilities or obligations of the Assignee, as the
owner of an "Ownership Interest" as such term is defined in the Clover Operating
Agreement or (f) impairs the ability or responsibility of the Clover Unit 1
Operator to operate Clover Unit 1 in accordance with Prudent Utility Practice or
interferes with the Clover Unit 1 Operator's unfettered access to the Real
Property.
SECTION 8. SECURITY FOR ASSIGNEE'S OBLIGATION TO THE LENDERS.
In order to secure all amounts payable by, and all obligations to be
performed by, Assignee under the Loan Agreement, Assignee has assigned in the
Loan Agreement to the Agent for its benefit and the ratable benefit of the
Lenders its rights under this Assignment and Assumption and granted security
interests in favor of the Agent in all of Assignee's right, title and interest
in and to the Lessor's Unit 1 Interest, including its interest in this
Assignment and Assumption (other than Excepted Payments and Excepted Rights).
Assignor hereby consents to such assignment and to the creation of such security
interests and acknowledges receipt of copies of the Loan Agreement, it being
understood that such consent shall not affect any requirement or the absence of
any requirement for any consent under any other circumstances. Assignor hereby
acknowledges receipt of due notice that Assignee's interest in this Assignment
and Assumption has been assigned to the Agent as security pursuant to the Loan
Agreement to the extent provided in the Loan Agreement. Unless and until
Assignor shall have received written notice from the Agent that the Lien of the
Loan Agreement and the Leasehold Mortgage has been discharged, the Agent shall
have the right to exercise the rights of Assignee under this Assignment and
Assumption to the extent set forth in and subject in each case to the exceptions
set forth in the Loan Agreement.
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SECTION 9. MISCELLANEOUS
SECTION 9.1 AMENDMENTS AND WAIVERS. No term, covenant, agreement or
condition of this Assignment and Assumption may be terminated, amended or
compliance therewith waived (either generally or in a particular instance,
retroactively or prospectively) except by an instrument or instruments in
writing executed by each party hereto.
SECTION 9.2 NOTICES. Unless otherwise expressly specified or permitted
by the terms hereof, all communications and notices provided for herein to a
party hereto shall be in writing or by a telecommunications device capable of
creating a written record, and any such notice shall become effective (a) upon
personal delivery thereof, including, without limitation, by overnight mail
or courier service, (b) in the case of notice by United States mail, certified
or registered, postage prepaid, return receipt requested, upon receipt
thereof, or (c) in the case of notice by such a telecommunications device, upon
transmission thereof, provided such transmission is promptly confirmed by
either of the methods set forth in clauses (a) or (b) above, in each case
addressed to such party at its address set forth below or at such other address
as such party may from time to time designate by written notice to the other
party hereto:
If to the Assignor:
Old Dominion Electric Cooperative
0000 Xxxxxxxx Xxxxxxxxx
Xxxx Xxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Vice President of Accounting and Finance
If to the Assignee:
State Street Bank and Trust Company
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Manager - Corporate Trust
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with a copy to the Owner Participant:
First Union National Bank of Florida
000 Xxxxx Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Leasing Group
A copy of all communications and notices provided for herein shall be sent by
the party giving such communication or notice to Virginia Power at:
Virginia Electric and Power Company
X.X. Xxx 00000
Xxxxxxxx, Xxxxxxxx 00000
Attention: President
SECTION 9.3 SURVIVAL. All warranties, representations, indemnities and
covenants made by either party hereto, herein or in any certificate or other
instrument delivered by either such party or on the behalf of either such party
under this Agreement, shall be considered to have been relied upon by the other
party hereto and shall survive the consummation of the transactions contemplated
hereby on the Closing Date regardless of any investigation made by either party
or on behalf of either party.
SECTION 9.4 SUCCESSORS AND ASSIGNS. (a) This Assignment and Assumption
shall be binding upon and shall inure to the benefit of, and shall be
enforceable by, the parties hereto and their respective successors and assigns
as permitted by and in accordance with the terms hereof. Each time a successor
Owner Trustee is appointed in accordance with the terms of the Trust Agreement
and Section 5.5 of the Participation Agreement, such successor Owner Trustee
shall, without further act, succeed to all rights, duties, immunities and
obligations of the predecessor Owner Trustee hereunder, and the predecessor
Owner Trustee shall be released from all further duties and obligations
hereunder, all without the necessity of any consent or approval by the Assignor
and without in any way altering the terms of this Assignment and Assumption or
the rights or obligations of the Assignee hereunder. The Assignor shall, at its
expense, upon receipt of written notice of the appointment of a successor Owner
Trustee under the Trust Agreement, promptly make such modifications and changes
to reflect such appointment as shall be reasonably requested by such successor
Owner Trustee in any instruments relating to this Assignment and Assumption, all
in form and substance reasonably satisfactory to such successor Owner Trustee.
(b) Except as expressly provided herein or in the other Operative
Documents, neither party hereto may assign its interests herein without the
consent of the other party hereto.
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SECTION 9.5 GOVERNING LAW. THIS ASSIGNMENT AND ASSUMPTION SHALL BE IN
ALL RESPECTS GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE.
SECTION 9.6 SEVERABILITY. Whenever possible, each provision of this
Assignment and Assumption shall be interpreted in such manner as to be effective
and valid under Applicable Law, but if any provision of this Assignment and
Assumption shall be prohibited by or invalid under Applicable Law, such
provision shall be ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining provisions
of this Assignment and Assumption.
SECTION 9.7 COUNTERPARTS. This Assignment and Assumption may be
executed in any number of counterparts, each executed counterpart constituting
an original but all together only one instrument.
SECTION 9.8 HEADINGS. The headings of the sections of this Assignment
and Assumption are inserted for purposes of convenience only and shall not be
construed to affect the meaning or construction of any of the provisions hereof.
SECTION 9.9 LIMITATIONS OF LIABILITY. It is expressly understood and
agreed by and between the Assignor and the Assignee and their respective
successors and permitted assigns, that all representations, warranties and
undertakings of the Assignee hereunder shall be binding upon the Assignee only
in its capacity as Owner Trustee under the Trust Agreement, and neither the
Assignee in its individual capacity nor any past, present or future Affiliate,
partner, officer, director, owner, shareholder, agent or employee of it or in
any thereof or of any partner thereof or their legal representatives, successors
or assigns shall be liable for any breach hereof; and, all Persons having any
claim against the Assignee by reason of the transactions contemplated hereby
shall look only to the Trust Estate for payment or satisfaction thereof.
SECTION 9.10 FURTHER ASSURANCES. Each party hereto will promptly and
duly execute and deliver such further documents to make such further assurances
for and take such further action reasonably requested by any party to whom such
first party is obligated, all as may be reasonably necessary to carry out more
effectively the intent and purpose of this Assignment and Assumption.
SECTION 9.11 EFFECTIVENESS OF ASSIGNMENT AND ASSUMPTION. This
Assignment and Assumption has been dated as of the date first above written for
convenience only. This Assignment and Assumption shall be effective on the date
of execution and delivery by each of the Assignee and the Assignor.
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IN WITNESS WHEREOF, the parties hereto have caused this
Assignment and Assumption to be duly executed by their respective officers
thereunto duly authorized.
OLD DOMINION ELECTRIC COOPERATIVE,
as Assignor
By:/s/ XXXXXX X. XXXXXX
----------------------------------------
Xxxxxx X. Xxxxxx
Vice President of Accounting and Finance
Date: March 1, 0000
XXXXX XXXXXX BANK AND TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee under the
Trust Agreement, as Assignee
By:/s/ X. XXXXXX XXXXX
----------------------------------------
X. Xxxxxx Xxxxx
Vice President
Date: March 1, 1996
