PLEDGE AGREEMENT
Dated as of February 29, 1996
between
OLD DOMINION ELECTRIC COOPERATIVE,
as Pledgor
and
STATE STREET BANK AND TRUST COMPANY,
not in its individual capacity, but
solely as Owner Trustee,
as Pledgee
CLOVER UNIT 1 GENERATING FACILITY
AND
COMMON FACILITIES
PLEDGE AGREEMENT
This 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 "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 "Pledgee").
WHEREAS, the Pledgor, the 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 Pledgor, as lessee, and the Pledgee, as lessor,
have entered into the Equipment Operating Lease; and
WHEREAS, the Pledgor has deposited the Collateral (as defined
in Section 2 hereof) with the Pledgee pursuant to this Agreement, which the
Pledgor is willing to pledge to the Pledgee to secure its obligations under the
Equipment 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. Notwithstanding the foregoing, except as otherwise
defined or indicated by the context herein, all terms which are defined in the
Uniform Commercial Code as in effect in the State of New York from time to time
("Uniform Commercial Code") shall have their respective meanings as used in
Chapters 8 and 9 of the Uniform Commercial Code. 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.
To secure the Secured Claims (defined in Section 3 hereof),
the Pledgor hereby grants, bargains, pledges, sells, assigns, transfers,
conveys, mortgages, warrants and confirms to the Pledgee a security interest in,
mortgage on, and pledge of, all of the Pledgor's rights, title and interest in
and to the First Mortgage Bonds delivered to the Pledgee on the Closing Date and
described below and all interest, cash, instruments and other property from time
to time
received, receivable or otherwise distributed to it in respect of such First
Mortgage Bonds; all property into which such right, title and interest may be
exchanged or converted; and all proceeds of any and all of the foregoing and, to
the extent not otherwise included, all cash in respect of such First Mortgage
Bonds (the "Collateral"). The Collateral delivered on the Closing Date shall
consist of:
Those certain First Mortgage Bonds, 1996 Series A, issued
under the Old Dominion Indenture, in the aggregate face amount
of $25,565,961.82, consisting of the following bonds:
Bond No. Stated Maturity Face Amount
A-1 February 28, 1997 $25,565,961.82
insured by Financial Guaranty Insurance Policy No. FG0207BE
(the "Policy") with respect to payments due for principal of
the above Bonds which has been issued by AMBAC Indemnity
Corporation, which Policy has been delivered to the United
States Trust Company of New York, New York, New York, as
Insurance Trustee, the above described Bonds hereinafter
called the "Bonds".
The Pledgor hereby represents that the Collateral described above is a
Qualifying Security. The original Policy was delivered to United States Trust
Company of New York, as Insurance Trustee under said Policy. The Pledgee
acknowledges receipt of the Collateral in accordance with this Agreement and
agrees to hold such Collateral in accordance with the terms of this Agreement.
The Pledgor shall have the right to replace the Collateral, from time
to time, with a replacement Qualifying Security in accordance with Section 7.6
of the Participation Agreement.
SECTION 3. Secured Claims
The purpose of this pledge is to secure all of the Pledgor's
obligations (whether now or hereafter existing) under the Equipment Operating
Lease to pay Basic Rent, Termination Value and amounts sized by reference to
Termination Value. All of the obligations described in the immediately preceding
sentence shall be referred to as "Secured Claims".
Without limiting the generality of the foregoing, this
Agreement secures the payment of all amounts that constitute part of the Secured
Claims and would be payable to the Pledgee under the Equipment 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 Pledgor or (b) other laws relating to, or effecting the
enforcement of, creditor's rights generally against the Pledgor.
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SECTION 4. REMEDIES
4.1. RIGHTS OF THE PLEDGEE. Remedies. If any Event of
Default under the Equipment Operating Lease shall have occurred and be
continuing, then whether or not the Equipment Operating Lease has been declared
in default pursuant to the terms thereof:
(i) the Pledgee may exercise in respect of the
Collateral, in addition to other rights and remedies provided
for herein or otherwise available to it, all the rights and
remedies of a secured party upon default under the Uniform
Commercial Code and also may, without notice except as
specified below, sell the Collateral or any part thereof at
public or private sale, at any of the Pledgee's offices or
elsewhere, for cash, on credit or for future delivery, and
upon such other terms as the Pledgee may deem commercially
reasonable. The Pledgee shall provide 10 calendar days'
written notice to the Pledgor at the Pledgor's address
specified in the Participation Agreement by (i) registered
mail, or (ii) hand delivery, or (iii) special courier service
(such as DHL, TNT, Worldcourier or similar courier);
(ii) Without limitation of the foregoing, the Pledgee
may exercise, in its own name or in the name and on behalf of
the Pledgor, all of the Pledgor's rights under and in respect
of the Collateral and the documentation evidencing or
governing the Collateral; and
(iii) All cash proceeds received by the Pledgee with
respect to the Collateral or in respect of any sale of,
collection from, or other realization upon all or any part of
the Collateral may, in the discretion of the Pledgee, be held
by the Pledgee as collateral for, and/or then or at any time
thereafter applied in whole or in part by the Pledgee against,
all or any part of the Secured Claims in such order as Pledgee
shall elect. Any surplus of such cash or cash proceeds held by
the Pledgee and remaining after payment in full of all the
Secured Claims shall be paid over to the Pledgor or to
whomsoever may be lawfully entitled to receive such surplus.
4.2. FILINGS. The Pledgor agrees that it shall, at its own
expense, execute and deliver all financing statements necessary to perfect the
Pledgee's interest in the Collateral or any assignment or other document
reasonably requested by the Pledgee or the Owner Participant, to perfect,
protect, enforce, or otherwise give effect to the Pledgee's rights and remedies
hereunder.
4.3. ATTORNEY-IN-FACT. The Pledgor hereby irrevocably
appoints, effective and during the continuance of any Event of Default, the
Pledgee as the Pledgor's attorney-in-fact, with full authority in the place and
stead of the Pledgor and in the name of the Pledgor or otherwise, from time to
time in the Pledgee's discretion, to take any action and to execute any
instrument that the Pledgee may deem necessary or advisable to accomplish the
purposes of this Agreement, including, without limitation:
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(a) to ask for, demand, collect, xxx for, recover, compromise,
receive and give acquittance and receipts for monies due and to become
due under or in respect of any of the Secured Claims,
(b) to receive, indorse and collect any drafts or other
instruments, documents and chattel paper, in connection with clause (a)
above, and
(c) to file any claims or take any action or institute any
proceedings that the Pledgee may deem necessary or desirable for the
collection of any of the Secured Claims or otherwise to enforce
compliance with the terms and conditions of any Operative Document.
4.4. THE PLEDGEE'S DUTIES. The powers conferred on the Pledgee
hereunder are solely to protect its interest in the Collateral and shall not
impose any duty upon it to exercise any such powers. Except for the safe custody
of the Collateral in its possession and the accounting for monies actually
received by it hereunder, the Pledgee shall have no duty as to the Collateral or
other matters relative to the Collateral, whether or not the 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 Collateral; PROVIDED, HOWEVER, that, if delivery or presentment of the
Collateral to any other Person is required in connection with any distribution
in respect of the Collateral, the Pledgee shall, at the Pledgor's expense,
cooperate to effect such delivery. The Pledgee shall be deemed to have exercised
reasonable care in the custody and preservation of any Collateral in its
possession if such Collateral is accorded treatment substantially equal to that
which Pledgee accords its own property.
SECTION 5. RELEASE OF COLLATERAL; DISCHARGE.
5.1. RELEASE OF COLLATERAL. Provided no Payment Default,
Credit Default or Event of Default under the Equipment Operating Lease shall
have occurred and be continuing, the Pledgee agrees that the Pledgor shall be
entitled to receive (a) all amounts received by the Pledgee upon maturity of any
Bond; PROVIDED that the Pledgor shall have discharged all of its obligations
under the Equipment Operating Lease. The Collateral shall also be released by
the Pledgee upon replacement of the Collateral with a replacement Qualifying
Security in full compliance with Section 7.6 of the Participation Agreement.
5.2. DISCHARGE. Provided that no Payment Default, Credit
Default or Event of Default under the Equipment Operating Lease shall have
occurred and be continuing, the Pledgee agrees that when the Secured Claims
shall have been fully paid and discharged and the Equipment Operating Lease has
expired or been earlier terminated in accordance with its terms, the Pledgee, at
the written request and cost of the Pledgor, shall immediately confirm the
release the Collateral of any pledge, lien and security interest created
pursuant to this Agreement and of all claims that the Pledgee may have
hereunder.
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SECTION 6. REPRESENTATIONS AND WARRANTIES.
6.1. OWNER. The Pledgor represents and warrants that it is
the legal and beneficial owner of the Collateral and that the Collateral is not
subject to any pledge, lien or security interest or any other right of any third
party, except as provided by this Agreement.
6.2. RIGHTS IN THE COLLATERAL. The Pledgor represents and
warrants that assuming that the Pledgee maintains possession and control over
the Collateral in accordance with the applicable provisions of the Uniform
Commercial Code, the pledge and assignment of the Collateral and the grant of a
security interest therein under this Agreement vest in the Pledgee a valid and
perfected security interest in the Collateral as contemplated by this Agreement,
subject to the provisions of Section 9-306 of the Uniform Commercial Code.
SECTION 7. COVENANTS OF THE PLEDGOR
The Pledgor shall not, without the prior written consent of
the Pledgee (a) sell, assign or otherwise dispose of, or grant any option with
respect to, the Collateral or (b) create or permit to exist any Lien, upon or
with respect to the Collateral, except for the Lien created hereby.
SECTION 8. MISCELLANEOUS.
SECTION 8.1. 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 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 parties hereto:
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If to the 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 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 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: Xxxxxxx X. Xxxxxx, Vice 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 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
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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 Pledgor and without in any way altering the terms of this
Agreement or the rights or obligations of the Pledgee hereunder. The 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
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 Pledgor may not assign its interests herein without the
consent of the Pledgee. Except as expressly provided in the Operative Documents,
the Pledgee may not assign its interests herein during the Term of the Equipment
Operating Lease without the consent of the Pledgor.
SECTION 8.5. 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 8.6. 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 8.7. 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 8.8. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each executed counterpart constituting an original but
all together only one Agreement.
SECTION 8.9. 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 8.10. 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.
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SECTION 8.11. LIMITATIONS OF LIABILITY. It is expressly understood and
agreed by and between the Pledgor and the Pledgee and their respective
successors and permitted assigns, that all representations, warranties and
undertakings of the Pledgee hereunder shall be binding upon the Pledgee only in
its capacity as Owner Trustee under the Trust Agreement, and neither the 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 Pledgee by reason of the transactions contemplated hereby shall look
only to the Trust Estate for payment or satisfaction thereof.
SECTION 8.12. 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 Pledgee and the
Pledgor.
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IN WITNESS WHEREOF, the Pledgor and the Pledgee have caused
this Pledge Agreement to be duly executed and delivered by their respective
officers thereunto duly authorized.
OLD DOMINION ELECTRIC COOPERATIVE,
as Pledgor
By:/s/ XXXXXX X. XXXXXX
-----------------------------------------
Xxxxxx X. Xxxxxx
Vice President of Accounting and Finance
Date:
STATE STREET BANK AND TRUST COMPANY,
not in its individual capacity, but solely
as Owner Trustee under the Trust Agreement,
as Pledgee
By:/s/ X. XXXXXX XXXXX
-----------------------------------------
X. Xxxxxx Xxxxx
Vice President
Date:
Acknowledged by:
FIRST UNION NATIONAL BANK OF FLORIDA,
as Owner Participant
By:
-----------------------------
Name:
Title:
Date:
