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PAYMENT UNDERTAKING PLEDGE AGREEMENT
Dated as of February 29, 1996
between
OLD DOMINION ELECTRIC COOPERATIVE,
as Payment Undertaking Pledgor
and
STATE STREET BANK AND TRUST COMPANY,
not in its individual capacity, but
solely as Owner Trustee, as Payment Undertaking Pledgee
CLOVER UNIT 1 GENERATING FACILITY
AND
COMMON FACILITIES
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PAYMENT UNDERTAKING PLEDGE AGREEMENT
This PAYMENT UNDERTAKING PLEDGE AGREEMENT, dated as of
February 29, 1996 (this "Agreement"), between OLD DOMINION ELECTRIC COOPERATIVE,
a wholesale power supply cooperative, organized under the laws of the
Commonwealth of Virginia, as pledgor (the "Payment Undertaking Pledgor"), and
STATE STREET BANK AND TRUST COMPANY, a state-chartered trust Company organized
and existing under the laws of the Commonwealth of Massachusetts not in its
individual capacity, but solely as Owner Trustee under the Trust Agreement, as
pledgee (the "Payment Undertaking Pledgee").
WHEREAS, the Payment Undertaking Pledgor, the Payment
Undertaking Pledgee, First Union National Bank of Florida and Utrecht-America
Finance Co., have entered into a Participation Agreement dated as of February
29, 1996 (the "Participation Agreement");
WHEREAS, the Payment Undertaking Pledgor, as lessee, and the
Payment Undertaking Pledgee, as lessor have entered into the Equipment Operating
Lease and the Foundation Operating Lease; and
WHEREAS, the Payment Undertaking Pledgor has entered into a
Payment Undertaking Agreement with Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland", New York Branch (the
"Bank"), dated as of February 29, 1996 (the "Payment Undertaking Agreement"),
which Payment Undertaking Agreement the Payment Undertaking Pledgor is willing
to pledge to the Payment Undertaking Pledgee to secure its obligations under the
Equipment Operating Lease and the Foundation Operating Lease.
NOW, THEREFORE, in consideration of the mutual agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. DEFINED TERMS.
Capitalized terms used in this Agreement and not otherwise defined
herein shall have the respective meanings specified in Appendix A to the
Participation Agreement. All references to sections herein are to sections of
this Agreement unless otherwise indicated and the words "herein", "hereof" and
"hereunder" and other words of similar import refer to this Agreement as a whole
and not to any particular section or other subdivision.
SECTION 2. PLEDGE.
Section 2.1 Pledge of Payment Undertaking Agreement. To secure the
Secured Obligations (defined below), the Payment Undertaking Pledgor hereby
transfers, assigns and pledges to the Payment Undertaking Pledgee for its
benefit, all of its right, title and interest in the Payment Undertaking
Agreement, (including, without limitation, the right of the Payment Undertaking
Pledgor to receive all amounts payable under the Payment Undertaking Agreement
in accordance therewith and the Payment Instruction, to give and receive any
notice, consent, waiver or approval or take any other action under the Payment
Undertaking Agreement), all instruments or certificates evidencing the Payment
Undertaking Agreement and all interest, cash, instruments or other property from
time to time received, receivable or otherwise distributed in respect of or in
exchange for, any or all of the Payment Undertaking Agreement and all proceeds
of the Payment Undertaking Agreement.
SECTION 3. NETHERLANDS LAW.
To the extent that a court would hold that Netherlands law is
applicable to the assignment, transfer and pledge of the right, title and
interest in the Payment Undertaking Agreement or to the creation of another
security right on the Payment Undertaking Agreement and that such assignment,
transfer, pledge or other security right is invalid and/or unenforceable in The
Netherlands, the Payment Undertaking Pledgor hereby creates a right of pledge
("vestigt een pandrecht") in favor of the Payment Undertaking Pledgee, pursuant
to articles 3:94, paragraph 1 and 3:236, xxxxxxxxx 0, Xxxxxxxxxxx Civil Code on
the rights of the Payment Undertaking Pledgor against the Bank, as such rights
may exist or come to exist hereafter against the Bank pursuant to the terms of
the Payment Undertaking Agreement, as security for the Secured Obligations,
which right of pledge the Payment Undertaking Pledgee hereby accepts.
In accordance with article 3:242, Netherlands Civil Code, the Payment
Undertaking Pledgee is hereby irrevocably authorized to repledge
("herverpanden") the above-mentioned rights pursuant to the terms of the Payment
Undertaking Agreement in favor of Utrecht-America Finance Co., as Agent, to
secure the Payment Undertaking Pledgee's obligations to Utrecht-America Finance
Co. under the Series A Loan Certificates.
SECTION 4. SECURED OBLIGATIONS.
The purpose of this pledge is to secure the Payment Undertaking
Pledgor's obligation (whether now or hereafter existing) under the Equipment
Operating Lease and the Foundation Operating Lease to pay Basic Rent, Foundation
Basic Rent, Termination Value, the Purchase Option Price, the Foundation
Purchase Option Price, Walk-Away Payment and Foundation Walk-Away Payment. All
of the foregoing obligations shall be referred to as "Secured Obligations."
Without limiting the generality of the foregoing, this Agreement
secures the payment of all amounts that constitute part of the Secured
Obligations and would be payable to the
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Payment Undertaking Pledgee under the Equipment Operating Lease and the
Foundation Operating Lease but for the fact that they are unenforceable or not
allowable due to (a) the existence of a bankruptcy, insolvency, reorganization,
arrangement or moratorium involving the Payment Undertaking Pledgor or (b) other
laws relating to or effecting the enforcement of creditor's rights generally
against the Payment Undertaking Pledgor.
SECTION 5. REMEDIES
Section 5.1 Rights of the Payment Undertaking Pledgee. Upon the
happening and during the occurrence of any Event of Default under the Equipment
Operating Lease or the Foundation Operating Lease, the Payment Undertaking
Pledgee may (in addition to any other actions permitted under the other
Operative Documents or by statute or at law or in equity) exercise any rights or
remedies granted hereunder. The Payment Undertaking Pledgee may enforce the
right of pledge created hereby to the fullest extent possible in accordance
with, and shall be entitled to all rights, remedies and benefits afforded to
pledgees under, the laws of the State of New York. To the extent necessary to
realize the benefit of the pledge of the Payment Undertaking Agreement effected
by Section 4, the Payment Undertaking Pledgor authorizes the Payment Undertaking
Pledgee to exercise any of its rights under the Payment Undertaking Agreement.
Section 5.2 Filings. The Payment Undertaking Pledgor agrees that it
shall, at its own expense, execute and deliver all financing statements
necessary to perfect the Payment Undertaking Pledgee's or any assignee's
interest in the Payment Undertaking Agreement or any assignment or other
document reasonably requested by the Payment Undertaking Pledgee or the Holders
of the Series A Loan Certificate to perfect, protect, enforce, or otherwise give
effect to the Payment Undertaking Pledgee's rights and remedies hereunder.
Section 5.3 Attorney-in-Fact. If the Payment Undertaking Pledgor is
unable or unwilling to sign such assignments, financing statements or other
documents and to file financing statements or other public notices or recording
with the appropriate authorities, as and when reasonably requested by counsel to
the Payment Undertaking Pledgee, the Payment Undertaking Pledgor hereby
authorizes the Payment Undertaking Pledgee to sign as the Payment Undertaking
Pledgor's true and lawful agent and attorney-in-fact any such assignments,
financing statement or other documents and to make any such filings.
Section 5.4 The Payment Undertaking Pledgee's Duties. The powers
conferred on the Payment Undertaking Pledgee hereunder are solely to protect its
interest in the Payment Undertaking Agreement and shall not impose any duty upon
it to exercise any such powers. Except for the accounting for monies actually
received by it hereunder, the Payment Undertaking Pledgee shall have no duty as
to the Payment Undertaking Agreement or other matters relative to the Payment
Undertaking Agreement, whether or not the Payment Undertaking Pledgee has or is
deemed to have knowledge of such matters, or as to the taking of any necessary
steps to preserve rights against any parties or any other rights pertaining to
the Payment Undertaking Agreement.
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SECTION 6. DISCHARGE.
The Payment Undertaking Pledgee agrees that when the Secured
Obligations shall have been fully paid and discharged, the Payment Undertaking
Pledgee, at the written request and cost of the Payment Undertaking Pledgor,
shall immediately confirm the release of the Payment Undertaking Agreement from
any Lien created pursuant to this Agreement and of all claims that the Payment
Undertaking Pledgee may have hereunder.
SECTION 7. REPRESENTATIONS AND WARRANTIES.
Section 7.1 Unlimited Holder. The Payment Undertaking Pledgor
represents and warrants that it is the legal and beneficial owner of the Payment
Undertaking Agreement and that the Payment Undertaking Agreement is not subject
to any Lien or any other right of any third party, except as provided by the
Operative Documents.
Section 7.2 Rights in the Payment Undertaking Agreement. The Payment
Undertaking Pledgor represents and warrants that the pledge of the Payment
Undertaking Agreement under this Agreement vests in the Payment Undertaking
Pledgee a valid security interest in the Payment Undertaking Agreement, as
contemplated by this Agreement, subject to the provisions, if applicable, of
Section 9-306 of the Uniform Commercial Code as in effect in New York.
SECTION 8. COVENANT OF THE PAYMENT UNDERTAKING PLEDGOR.
The Payment Undertaking Pledgor shall not, without the prior written
consent of the Payment Undertaking Pledgee (a) sell, assign, pledge or otherwise
dispose of, or grant any option with respect to, the Payment Undertaking
Agreement or (b) create or permit any Lien upon or with respect to the Payment
Undertaking Agreement, except for the pledge created hereby and the Loan
Agreement.
SECTION 9. MISCELLANEOUS.
Section 9.1. Amendments and Waivers. No term, covenant, agreement or
condition of this Agreement 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 the
party against whom enforcement of such change is sought.
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
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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 parties hereto:
If to the Payment Undertaking Pledgor:
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 Payment Undertaking Pledgee:
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
with a copy to Utrecht-America:
Utrecht-America Finance Co.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Telephone No.: (212)
Attention: Corporate Finance Department
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 Payment Undertaking Pledge 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.
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Section 9.4 Successors and Assigns. (a) This Payment Undertaking Pledge
Agreement 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 Payment
Undertaking Pledgor and without in any way altering the terms of this Payment
Undertaking Pledge Agreement or the rights or obligations of the Payment
Undertaking Pledgee hereunder. The Payment Undertaking Pledgor shall, at its
expense (except as otherwise provided in Section 5.5 of the Participation
Agreement), 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 Payment Undertaking
Pledge Agreement, all in form and substance reasonably satisfactory to such
successor Owner Trustee.
(b) Except as expressly provided herein or in any other
Operative Document, the Payment Undertaking Pledgor may not assign its interests
herein without the consent of the Payment Undertaking Pledgee. Except as
expressly provided in the Operative Documents, the Payment Undertaking Pledgee
may not assign its interests herein during the Term of the Equipment Operating
Lease without the consent of the Payment Undertaking Pledgor other than pursuant
to the Loan Agreement.
Section 9.5. Business Day. Notwithstanding anything herein to the
contrary, if the date on which any payment is to be made pursuant to this
Agreement is not a Business Day, the payment otherwise payable on such date
shall be payable on the next succeeding Business Day with the same force and
effect as if made on such scheduled date and (provided such payment is made on
such succeeding Business Day) no interest shall accrue on the amount of such
payment from and after such scheduled date to the time of such payment on such
next succeeding Business Day.
Section 9.6. Governing Law. This Agreement 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 9.7. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
Applicable Law, but if any provision of this Agreement 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 Agreement.
Section 9.8. Counterparts. This Agreement may be executed in any
number of counterparts, each executed counterpart constituting an original but
all together only one Agreement.
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Section 9.9. Headings. The headings of the sections of this Agreement
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 9.10. 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 Agreement.
Section 9.11. Limitations of Liability. It is expressly understood and
agreed by and between the Payment Undertaking Pledgor and the Payment
Undertaking Pledgee and their respective successors and permitted assigns, that
all representations, warranties and undertakings of the Payment Undertaking
Pledgee hereunder shall be binding upon the Payment Undertaking Pledgee only in
its capacity as Owner Trustee under the Trust Agreement, and neither the Payment
Undertaking Pledgee 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 thereof; and all Persons
having any claim against the Payment Undertaking Pledgee by reason of the
transactions contemplated hereby shall look only to the Trust Estate for payment
or satisfaction thereof.
Section 9.12. Effectiveness of Agreement. This Agreement has been dated
as of the date first above written for convenience only. This Agreement shall be
effective on the date of execution and delivery by each of the Payment
Undertaking Pledgee and the Payment Undertaking Pledgor.
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IN WITNESS WHEREOF, the Payment Undertaking Pledgor and the
Payment Undertaking Pledgee have caused this Payment Undertaking Pledge
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized.
OLD DOMINION ELECTRIC COOPERATIVE,
as Payment Undertaking Pledgor
By:/s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
Title: Vice President
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 Payment
Undertaking Pledgee
By:/s/ X. XXXXXX XXXXX
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Name: X. Xxxxxx Xxxxx
Title: Vice President
Date: March 1, 1996
Acknowledged and consented to by:
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND", NEW YORK BRANCH
By:/s/ XXXXX X. XXXXXXXXX /s/ X.X. DEN XXXX
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Name: Xxxxx X. Xxxxxxxxx Name: X.X. Den Xxxx
Title: Vice President Title: Managing Director
Date: March 1, 1996 Date: March 1, 1996
