PAYMENT UNDERTAKING PLEDGE AGREEMENT
Dated as of July 1, 1996
between
OLD DOMINION ELECTRIC COOPERATIVE,
as Payment Undertaking Pledgor
and
CLOVER UNIT 2 GENERATING TRUST,
as Payment Undertaking Pledgee
CLOVER UNIT 2 GENERATING FACILITY
AND
COMMON FACILITIES
PAYMENT UNDERTAKING PLEDGE AGREEMENT
This PAYMENT UNDERTAKING PLEDGE AGREEMENT, dated as of July 1,
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 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 "Payment Undertaking Pledgee").
WHEREAS, the Payment Undertaking Pledgor, the Payment
Undertaking Pledgee, EPC Corporation, Wilmington Trust Company (in the
capacities set forth therein) and Utrecht-America Finance Co., have entered into
a Participation Agreement dated as of July 1, 1996 (the "Participation
Agreement");
WHEREAS, the Payment Undertaking Pledgor and the Payment
Undertaking Pledgee have entered into the Operating Equipment Agreement and the
Operating Foundation Agreement, each of even date herewith; 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 July 1, 1996 (the "Payment Undertaking Agreement"), the
Payment Undertaking Pledgor's rights, if any, in which, the Payment Undertaking
Pledgor is willing to pledge to the Payment Undertaking Pledgee to secure its
obligations under the Operating Equipment Agreement and the Operating Foundation
Agreement.
NOW, THEREFORE, in consideration of the mutual agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are 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.
SECTION 2. PLEDGE.
SECTION 2.1 PLEDGE OF PAYMENT UNDERTAKING AGREEMENT. The Payment
Undertaking Pledgor hereby transfers, assigns, pledges and grants a first
priority security interest in each and all of its right, title and interest, if
any, 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 to the Payment Undertaking Pledgee for its benefit, and the Payment
Undertaking Pledgee hereby accepts such transfer, assignment, pledge and
security interest.
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, if any, of the Payment Undertaking Pledgor 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, paragraph 2 of the Netherlands 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 or under the Payment
Undertaking Agreement, as security for the Secured Amounts, which right of
pledge the Payment Undertaking Pledgee hereby accepts.
In accordance with article 3:242 of the Netherlands Civil Code, the
Payment Undertaking Pledgee is hereby irrevocably authorized to repledge
("herverpanden") the rights of the Payment Undertaking Pledgor pursuant to or
under the Payment Undertaking Agreement in favor of Utrecht-America Finance Co.,
as Agent on behalf and for the benefit of the Series A Lender under the Loan
Agreement, to secure the Payment Undertaking Pledgee's obligations under the
Series A Loan Certificate.
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SECTION 4. SECURED AMOUNTS.
The purpose of this pledge is to secure the Payment Undertaking
Pledgor's obligation (whether now or hereafter existing) under the Operating
Equipment Agreement and the Operating Foundation Agreement to pay Basic
Payments, Foundation Basic Payments and Termination Value or amounts computed by
reference to Termination Value. All of the foregoing obligations shall be
referred to as "Secured Amounts."
Without limiting the generality of the foregoing, this Agreement
secures the payment of all amounts that constitute part of the Secured Amounts
and would be payable to the Payment Undertaking Pledgee under the Operating
Equipment Agreement and the Operating Foundation Agreement 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 Operating
Equipment Agreement or the Operating Foundation Agreement, 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 Holder
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 or by counsel to the Holder of the Series A Loan
Certificate, the Payment Undertaking Pledgor hereby authorizes the Payment
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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.
SECTION 6. DISCHARGE.
The Payment Undertaking Pledgee agrees that when the Secured Amounts
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 first priority 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.
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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 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 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:
Clover Unit 2 Generating Trust
c/o Wilmington Trust Company
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Xxxxxx Xxxxxx Xxxxx
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Corporate Trust Administration
with copies to Utrecht-America:
Utrecht-America Finance Co.
c/o Rabobank Nederland
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Corporate Finance Department
and General Counsel's Office
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.
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.
(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 Operating Equipment Agreement
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
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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.
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. 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.
SECTION 9.12 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
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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 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
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
Date: July 31, 1996
CLOVER UNIT 2 GENERATING TRUST,
as Payment Undertaking Pledgee
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
Acknowledged and consented to by:
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND", NEW YORK BRANCH,
as the Bank referred to herein
By: /s/ XXXXXX X. XXXXXXX
------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
Date: July 31, 1996
By: /s/ XXXXX X. XXXXXXXXX
------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
Date: July 31, 1996
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