CLOVER AGREEMENTS ASSIGNMENT AND
ASSUMPTION AGREEMENT
Dated as of July 1, 1996
between
OLD DOMINION ELECTRIC COOPERATIVE,
as Assignor
and
CLOVER UNIT 2 GENERATING TRUST
as Assignee
CLOVER UNIT 2 GENERATING FACILITY
AND
COMMON FACILITIES
CLOVER AGREEMENTS ASSIGNMENT AND ASSUMPTION AGREEMENT
This CLOVER AGREEMENTS ASSIGNMENT AND ASSUMPTION AGREEMENT, dated as of
July 1, 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 CLOVER UNIT 2 GENERATING
TRUST, a Delaware business trust created pursuant to the Trust Agreement,
dated as of July 1, 1996, between EPC Corporation and Wilmington Trust
Company (the "Assignee").
WHEREAS, the Clover Real Estate is more particularly described in
Schedule 1 to the Ground Lease and Sublease and is comprised of the Unit 1 Site
described in Schedule 2 thereto, the Unit 2 Site described in Schedule 3
thereto, the Common Facilities Site described in Schedule 4 thereto, and certain
other property, each such Schedule 1, Schedule 2, Schedule 3 and Schedule 4
being attached to, and recorded in the Halifax Clerk's Office with, the Ground
Lease and Sublease as part thereof;
WHEREAS, Old Dominion and Virginia Power own the Clover Real Estate as
tenants-in-common;
WHEREAS, by the Clover Agreements, Old Dominion 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 held by Old Dominion and Virginia Power as
tenants-in-common include (a) the Unit 1 Foundation constructed on the Xxxx 0
Xxxx, (x) the Xxxx 0 Foundation 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 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 Old Dominion and Virginia Power holds a 50% undivided interest in such real
and personal property, including the right to nonexclusive possession of all
such real and personal property, subject to (a) in the case of all such real and
personal property, the rights of the other to nonexclusive possession and the
terms and conditions of the Clover Agreements, (b) in the case of the Pollution
Control Assets, the rights, terms and conditions described above in clause (a)
and the rights of the Pollution Control Assets Facility Owner, and (c) in the
case of the Common Facilities, the Unit 1 Site, the Unit 1 Foundation and the
Unit 1 Equipment, the rights, terms and conditions described above in clause (a)
and the rights of the Unit 1 Parties;
WHEREAS, by the Ground Lease and Sublease, Old Dominion has leased the
Ground Interest to the Facility Owner, and the Facility Owner simultaneously has
subleased the Ground Interest back to Old Dominion upon the terms and conditions
of the Ground Lease and Sublease;
WHEREAS, Old Dominion has conveyed to the Facility Owner for a term of
years (a) the Foundation Interest by the Head Foundation Agreement and (b) the
Equipment Interest by the Head Equipment Agreement;
WHEREAS, by the Operating Foundation Agreement, the Facility Owner will
convey the use and possession of the Foundation Interest back to Old Dominion
for a term of years which shall end prior to the expiration of the term of the
Head Foundation Agreement;
WHEREAS, by the Operating Equipment Agreement, the Facility Owner will
convey the use and possession of the Equipment Interest back to Old Dominion for
a term of years which shall end prior to the expiration of the term of the Head
Equipment Agreement;
WHEREAS, although Old Dominion and the Facility Owner intend that the
Foundation Interest at all times and in all respects be and remain personal
property under Virginia law, they have recorded the Head Foundation Agreement
and will record the Operating Foundation Agreement 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; and
WHEREAS, the Unit 1 Parties and the Unit 2 Parties shall share equally
all of those rights, and shall be subject equally to having all of those
responsibilities undertaken, which are granted to or imposed upon Old Dominion
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 July 1, 1996, among the
Assignor, the Assignee, EPC Corporation, Wilmington Trust Company (in the
capacities set forth therein) and Utrecht-America Finance Co.
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.
SECTION 2. ASSIGNMENT OF ASSIGNED CLOVER INTERESTS TO ASSIGNEE.
The 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 Head Equipment Agreement Term and the Head Foundation
Agreement Term.
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SECTION 3. ASSUMPTION BY ASSIGNEE.
The 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
terminate (except with respect to any liability or obligation which has accrued
prior to such termination) on the expiration or earlier termination of the Head
Equipment Agreement Term and the Head Foundation Agreement Term. In accordance
with Section 5, the Assignor has assumed and agreed to perform any and all
liabilities of the Assignee incurred with respect to the Assigned Clover
Interests resulting from the Assignee's assumption of the liabilities and the
obligations of the Assignor under this Section 3 and, accordingly, during the
effective period of such assumption and agreement by the Assignor, (i) the
Assignee shall be relieved of any and all duties or obligations with respect to
the liabilities or obligations assumed or agreed to be performed by the Assignee
in respect of the Assigned Clover Interests in accordance with this Section 3,
(ii) any default by the Assignor in the performance of the liabilities and
obligations assumed and agreed to be performed by the Assignor in accordance
with Section 5 shall not be (or be deemed to be) a default by the Assignee in
the performance of the liabilities and obligations assumed and agreed to be
performed by the Assignee under this Section 3 and (iii) the consequences of any
action or inaction on the part of the Assignor (other than full and complete
performance) in the performance of the liabilities and obligations assumed and
agreed to be performed by the Assignor in accordance with Section 5 or otherwise
with respect to the Assigned Clover Interests shall not be attributed to the
Assignee (including, without limitation, any Liens, incurred, assumed or
suffered to exist by the Assignor on the Assigned Clover Interests).
SECTION 4. REASSIGNMENT OF ASSIGNED CLOVER INTERESTS TO ASSIGNOR.
The Assignee hereby reassigns to the Assignor all right, title, and
interest of the 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 Operating Equipment Agreement and the Operating
Foundation Agreement.
SECTION 5. ASSUMPTION BY ASSIGNOR.
The 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 terminate (except with respect
to any liability or obligation which has accrued prior to such termination) upon
the expiration or termination of the Term of the Operating Equipment Agreement
and the Operating Foundation Agreement.
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SECTION 6. 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 Ground Interest, the Equipment Interest or the
Foundation Interest when compared with other undivided interests of Old
Dominion, Virginia Power or others in Clover Unit 2 or Clover Unit 1, (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
Facility Owner's entitlement to Available Capacity from or in respect of the
Clover Unit 2 Generating Facility except in connection with a reduction of the
entire Available Capacity of the Clover Unit 2 Generating Facility, (d) is
entered into on or after the date eighteen months prior to the Expiration 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 2 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
and (f) impairs the ability or responsibility of the Clover Unit 2 Operator to
operate Clover Unit 2 in accordance with Prudent Utility Practice or interferes
with the Clover Unit 2 Operator's unfettered access to the Real Property.
SECTION 7. SECURITY FOR ASSIGNEE'S OBLIGATION TO THE LENDERS.
In order to secure the Secured Indebtedness, the Assignee will assign
in the Loan Agreement and the Leasehold Mortgage to the Agent for its benefit
and the ratable benefit of the Lenders its rights under this Assignment and
Assumption and grant security interests in favor of the Agent in all of the
Assignee's right, title and interest in and to the Facility Owner's Unit 2
Interest, including its interest in this Assignment and Assumption (other than
Excepted Payments and Excepted Rights). The Assignor hereby consents to such
assignment and to the creation of such security interests and acknowledges
receipt of copies of the Loan Agreement and the Leasehold Mortgage, it being
understood that such consent shall not affect any requirement or the absence of
any requirement for any consent under any other circumstances. The Assignor
hereby acknowledges receipt of due notice that the Assignee's interest in this
Assignment and Assumption will be assigned to the Agent as security pursuant
to the Loan Agreement to the extent provided in the Loan Agreement and the
Leasehold Mortgage. Unless and until the Assignor shall have received written
notice from the Agent that the Liens of the Loan Agreement and the Leasehold
Mortgage have been discharged, the Agent shall have the right to exercise the
rights of the 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 and the Leasehold Mortgage.
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SECTION 8. MISCELLANEOUS.
SECTION 8.1. 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 and, also, in connection with any
termination of or amendment to those provisions for which Virginia Power is an
intended beneficiary, approved in writing by Virginia Power.
SECTION 8.2. 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:
Clover Unit 2 Generating Trust
c/o Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Corporate Trust Administration
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with a copy to the Owner Participant:
EPC Corporation
c/o Chrysler Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: President
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 8.3. 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 8.4. 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.
(b) Except as expressly provided herein or in the other
Operative Documents, the Assignor may not assign its interests herein without
the consent of the Assignee. The Assignor expressly agrees that the Assignee
shall be permitted to assign its rights under this Assignment and Assumption
without the written consent of the Assignor in connection with a transfer of the
Facility Owner's Unit 2 Interest pursuant to the terms of the Operating
Agreements and the Head Agreements. Except as expressly provided in this
Assignment and Assumption or in the other Operative Documents, the Assignee
may not assign its interest herein prior to the expiration or early
termination of the Term of the Operating Agreements without the consent of the
Assignor and Virginia Power.
SECTION 8.5. 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.
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SECTION 8.6. 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 8.7. 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 8.8. 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 8.9. 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 8.10. 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.
SECTION 8.11. LIMITATION OF LIABILITY. It is expressly understood and
agreed by the parties hereto that (a) this Agreement is executed and delivered
by Wilmington Trust Company, not individually or personally but solely as
trustee of Clover Unit 2 Generating Trust (the "Trust") under the Trust
Agreement, in the exercise of the powers and authority conferred and vested in
it, (b) each of the representations, undertakings and agreements herein made on
the part of the Trust is made and intended not as personal representations,
undertakings and agreements by Wilmington Trust Company but is made and intended
for the purpose for binding only the Trust, (c) nothing herein contained shall
be construed as creating any liability on Wilmington Trust Company, individually
or personally, to perform any covenant either expressed or implied contained
herein, all such liability, if any, being expressly waived by the parties hereto
or by any Person claiming by, through or under the parties hereto and (d) under
no circumstances shall Wilmington Trust Company be personally liable for the
payment of any indebtedness or expenses of the Trust or be liable for the
breach or failure of any obligation, representation, warranty or covenant
made or undertaken by the Trust under this Agreement or any other Operative
Documents.
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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
----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
Date: July 31, 1996
CLOVER XXXX 0 XXXXXXXXXX XXXXX,
as Assignee
By: Wilmington Trust Company, not in its
individual capacity but solely as Owner
Trustee under the Trust Agreement
By:/s/ XXXXXX X. XXXXXX
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
Date: July 31, 1996
