PAYMENT UNDERTAKING AGREEMENT
Dated as of July 1, 1996
between
OLD DOMINION ELECTRIC COOPERATIVE,
and
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK
B.A., "RABOBANK NEDERLAND", NEW YORK BRANCH
CLOVER UNIT 2 GENERATING FACILITY
AND
COMMON FACILITIES
PAYMENT UNDERTAKING AGREEMENT
This PAYMENT UNDERTAKING 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
(herein together with its successors and assigns, called "Old Dominion"), and
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK NEDERLAND", New
York Branch (herein in such capacity, together with its successors and assigns,
called the "Bank").
WITNESSETH:
WHEREAS, Old Dominion has entered into the Participation
Agreement referred to below with the Facility Owner; and
WHEREAS, in consideration for the payment by Old Dominion of a
certain amount, the Bank is willing to make certain payments to the Facility
Owner on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and of the
payment of a fee to the Bank, it is HEREBY AGREED:
SECTION 1. DEFINITIONS.
Capitalized terms used in this Agreement 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 Old Dominion, Clover
Unit 2 Generating Trust, Wilmington Trust Company (in the capacities set forth
therein), EPC Corporation and Utrecht-America Finance Co.
Where any provision in this Agreement 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.
"Confirmation Certificate" shall have the meaning ascribed thereto in
Section 6.6 hereof.
"Old Dominion Creditor" means any creditor of Old Dominion, Old
Dominion as debtor in possession, or any trustee, receiver, liquidator,
custodian or other similar official of Old Dominion appointed as such in an
involuntary case, voluntary case or other proceeding seeking liquidation,
reorganization or other similar relief to Old Dominion or its assets.
"Payment Undertaking Payment Date" means any date listed on Schedule A
hereto.
"Scheduled Payments" means at any time the amounts payable by the Bank
pursuant to Section 3.1 by reference to Schedule A.
"Specified Sum" means $219,407,935.73.
SECTION 2. SPECIFIED SUM.
SECTION 2.1. SPECIFIED SUM. Old Dominion and the Bank hereby
agree that subject to and in consideration for the payment by Old Dominion to
the Bank on the Closing Date of the Specified Sum at such account as the Bank
may specify in payment instructions to Old Dominion on or prior to the Closing
Date, the Bank shall make any and all of the payments required under Section 3
hereof. Old Dominion acknowledges that payment of the Specified Sum is absolute
and unconditional and shall not be refundable to Old Dominion under any
circumstance or for any reason, including, for the reason that Old Dominion is
not required in fact to meet in whole or in part said payment obligations under
the Operating Agreements. Old Dominion agrees that (i) it will not have any
right, title or interest in or to the Specified Sum and upon payment of the
Specified Sum to the Bank, the Specified Sum will cease to be an asset of Old
Dominion and will become an asset solely of the Bank, (ii) such payment of the
Specified Sum will be irrevocable once made and will not be subject to avoidance
or recapture by Old Dominion or any Old Dominion Creditor and (iii) neither Old
Dominion nor any Old Dominion Creditor will be entitled to assert any Lien or
claim, or to exercise remedies, with respect to such payment.
SECTION 3. PAYMENTS.
SECTION 3.1. SCHEDULED PAYMENTS. The Bank, in
consideration for payment by Old Dominion of the Specified Sum, shall make
payments to the Facility Owner or its assignee in the amounts and on the dates
specified on Schedule A hereto.
SECTION 3.2. SPECIAL REPAYMENTS.
(a) Subject to Section 3.6, the Bank shall pay to the Facility
Owner or its assignee on the dates specified in Section 13.1 of the
Participation Agreement an amount equal to the discounted present value
(computed using a discount rate equal to the Series A Loan Rate) on such date of
the unpaid amounts of Scheduled Payments that would thereafter have become
payable under Section 3.1 hereof. The Bank agrees to make the payments required
of it by this Section 3.2 in accordance with Sections 13.1 and 13.2 of the
Participation Agreement in the circumstances contemplated thereby.
(b) Upon payment in full of amounts pursuant to Section
3.2(a), the Bank shall be released from the payment of any future Scheduled
Payments under Section 3.1, PROVIDED, HOWEVER, that if the date of payment
pursuant to Section 3.2(a) is a Payment Undertaking Payment Date, the Bank shall
also pay to the Facility Owner or its assignee the Scheduled Payment payable on
such Payment Undertaking Payment Date.
2
(c) In consideration for payment by Old Dominion to the Bank
of the Specified Sum, the Bank shall be obligated to make payment under this
Agreement regardless of whether Old Dominion is required to make payments of
Equipment Payments and Foundation Payments under the Operating Agreements.
SECTION 3.3. OVERDUE INTEREST. Any amount payable by the Bank
hereunder which shall not be paid when due shall bear interest at the Overdue
Rate from the due date of such amount until the date of its payment.
SECTION 3.4. NO OTHER PAYMENTS. Except as expressly
provided in this Section 3, the Bank shall have no obligation to make any
payment hereunder.
SECTION 3.5. TIME, PLACE AND METHOD OF MAKING PAYMENTS. All
payments required to be made hereunder shall be made to the Facility Owner or
its assignee in immediately available funds prior to 10:00 A.M., New York City
time, on the date on which such payment is due at the Facility Owner's address
for payments specified on Schedule B hereto (or at such other place as the
Facility Owner or its assignee may designate in writing to the Bank by two
Business Days' notice prior to the date on which such payment is due).
SECTION 3.6. PAYMENT UPON WRITTEN NOTICE. Scheduled payments
under Section 3.1 shall be made by the Bank without further act or notice by any
Person. Other payments hereunder shall be made only upon delivery of a written
notice (given at least two Business Days prior to the payment dates specified in
Section 13.1 of the Participation Agreement) from either of Old Dominion or the
Facility Owner, accompanied by an Officer's Certificate of either such Person
stating that the circumstances requiring such payment hereunder have occurred
and including a sufficient description of such circumstances as shall
satisfactorily evidence the requirements of the subject payment to be made
hereunder.
SECTION 3.7. USE OF PAYMENTS. It is understood and agreed that
the Bank will have no responsibility or obligation with respect to the
applications of monies upon their payment to the Person entitled thereto
pursuant to the provisions hereof.
SECTION 3.8. BUSINESS DAY CONVENTION. Unless otherwise
specified herein, any relevant date for a payment to be made by the Bank that
would otherwise fall on a day that is not a Business Day will be made on the
first succeeding day that is a Business Day, without additional interest on such
payment.
3
SECTION 4. REPRESENTATIONS OF THE BANK.
The Bank represents and warrants that:
(a) Organization. It has full power and authority to conduct
its business as presently conducted, to own or hold under lease its properties
and to execute, deliver and perform this Agreement.
(b) Due Authorization. Its execution, delivery and performance
of this Agreement have been duly authorized by all necessary action on its part
and do not require any stockholder approval, or any approval or consent of, or
notice to, any trustee or holder of any indebtedness or obligation of the Bank.
(c) Legal, Valid and Binding Obligations. This Agreement has
been duly executed and delivered by it and constitutes its legal, valid and
binding obligation enforceable against it in accordance with its terms except as
such enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium, and other similar laws affecting the rights of creditors generally
and by general principles of equity regardless of whether enforcement is
pursuant to a proceeding in equity or at law.
SECTION 5. PLEDGE AND RE-PLEDGE.
The parties acknowledge that Old Dominion has assigned and pledged any
right, title and interest it may have in this Agreement to the Facility Owner
pursuant to the Payment Undertaking Pledge Agreement to secure its obligations
under the Operating Agreements and that the Facility Owner will pledge its right
hereunder and repledge its rights under the Payment Undertaking Pledge Agreement
to the Agent on behalf and for the benefit of the Series A Lender under the Loan
Agreement as security for the Facility Owner's obligations under the Series A
Loan Certificate. The Bank hereby consents to such pledge and repledge.
SECTION 6. MISCELLANEOUS.
SECTION 6.1. RELEASE OF BANK. Any payment in accordance with the
provisions hereof by the Bank to the Facility Owner or the Agent on behalf and
for the benefit of the Series A Lender as its assignee shall release the Bank
from any further liability hereunder to the Facility Owner in respect of such
payment.
SECTION 6.2. NOTICES. All notices, demand or other communications
hereunder shall be given or made in writing and shall be delivered personally,
or sent by certified or registered mail or overnight delivery service, return
receipt requested, postage prepaid, or telecopy to the party to whom they are
directed at the respective addresses therefor set forth in Section 13.4 of the
Participant Agreement, or at such other address as may be designated
4
by notice from such party to all other parties. Any notice, demand or other
communication given in a manner prescribed in this Section 6.2 shall be deemed
to have been delivered on receipt.
SECTION 6.3. AMENDMENT AND WAIVER. Neither this Agreement, or any
provision hereof may be changed, waived, discharged or terminated orally, but
only by a writing signed by the Bank and Old Dominion and, if directly or
indirectly relevant to the Bank's obligations or the rights of the Facility
Owner hereunder, the Facility Owner (and, if rights under this Agreement shall
have been assigned, pledged or repledged, by the assignee thereof).
SECTION 6.4. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York
including all matters of construction, validity and performance.
SECTION 6.5. INTERPRETATION. The headings of the sections hereof are
for convenience of reference only and shall not affect the meaning or
construction of any provision hereof.
SECTION 6.6. CHATTEL PAPER. To the extent, if any, that this Agreement
constitutes chattel paper (as such term is defined in the Uniform Commercial
Code as in effect in any applicable jurisdiction), no security interest in this
Agreement may be created through the transfer or possession of any counterpart
hereof other than the original counterpart, which shall be identified as the
counterpart containing the receipt therefor executed by the Agent on the
signature page thereof.
SECTION 6.7. NO SET-OFF. All payments to be made by the Bank hereunder
shall be paid without deduction, set-off or counterclaim of any kind whatsoever
except that if any taxes are required under Applicable Law to be deducted or
withheld from any payment hereunder, the Bank shall duly deduct or withhold such
tax and such payment hereunder shall be made net of any such deduction or
withholding.
SECTION 6.8. THIRD-PARTY BENEFICIARY. The obligations of the Bank
hereunder are intended to be for the benefit of the Facility Owner which shall
be a third-party beneficiary hereof.
SECTION 6.9. COUNTERPARTS. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 6.10. SEVERABILITY. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
5
SECTION 6.11. 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 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 such party.
SECTION 6.12. 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 and the other Operative
Documents.
SECTION 6.13. CONSENT TO JURISDICTION AND SERVICE OF PROCESS. Each of
the parties hereto (i) hereby irrevocably submits to the nonexclusive
jurisdiction of the Supreme Court of the State of New York, New York County
(without prejudice to the rights of any party to remove to the United States
District Court for the Southern District of New York) and to the nonexclusive
jurisdiction of the United States District Court for the Southern District of
New York, for the purposes of any suit, action or other proceeding arising out
of this Agreement, or the subject matter hereof or any of the transactions
contemplated hereby or thereby brought by any of the parties hereto or their
successors or assigns, (ii) hereby irrevocably agrees that all claims in respect
of such action or proceeding may be heard and determined in such New York State
court or, to the fullest extent permitted by Applicable Law, in such Federal
court, and (iii) to the extent permitted by Applicable Law, hereby irrevocably
waives, and agrees not to assert, by way of motion, as a defense, or otherwise,
in any such suit, action or proceeding any claim that it is not personally
subject to the jurisdiction of the above-named courts, that the suit, action or
proceeding is improper or that this Agreement, or the subject matter hereof may
not be enforced in or by such court. A final judgment obtained in respect of any
action, suit or proceeding referred to in this Section 6.13 shall be conclusive
and may be enforced in other jurisdictions by suit or judgment or in any manner
as provided by Applicable Law. Each of the parties hereto hereby consents to
service of process by registered mail, Federal Express, DHL or similar courier
at the address to which notices to are to be given, it being agreed that service
in such manner shall constitute valid service upon such party or its respective
successors or assigns in connection with any such action or proceeding only;
PROVIDED, HOWEVER, that nothing in this Section 6.13 shall affect the right of
any of such parties or their respective successors or assigns to serve legal
process in any other manner permitted by Applicable Law or affect the right of
any of such parties or its respective property in the courts of other
jurisdictions.
SECTION 6.14. U. S. DOLLARS. This Agreement relates to an
international financing transaction in accordance with which the specification
of U.S. Dollars is of the essence, and U.S. Dollars shall be the currency of
account in the case of all obligations under this Agreement.
6
SECTION 6.15. 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 Old Dominion and the Bank.
7
IN WITNESS WHEREOF, each of Old Dominion and the Bank has caused this
Agreement to be duly executed and delivered by their respective officers thereto
duly authorized.
OLD DOMINION ELECTRIC COOPERATIVE
By: /s/ XXXXXX X. XXXXXX
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
Date: July 31, 1996
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND",
NEW YORK BRANCH
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
CERTAIN OF THE RIGHT, TITLE AND INTEREST IN AND TO THIS AGREEMENT AND
THE PAYMENT OBLIGATIONS OF THE BANK HAVE BEEN ASSIGNED, PLEDGED AND/OR REPLEDGED
TO AND ARE SUBJECT TO A FIRST PRIORITY SECURITY INTEREST IN FAVOR OF THE
UNDERSIGNED, AS AGENT ON BEHALF AND FOR THE BENEFIT OF THE SERIES A LENDER,
UNDER THE LOAN AGREEMENT DATED AS OF JULY 1, 1996. THIS AGREEMENT HAS BEEN
EXECUTED IN SEVERAL COUNTERPARTS. ONLY THE ORIGINAL COUNTERPART CONTAINS THE
RECEIPT THEREFOR EXECUTED BY THE UNDERSIGNED ON THE SIGNATURE PAGE THEREOF. SEE
SECTION 6.6 HEREOF FOR INFORMATION CONCERNING THE RIGHTS OF THE HOLDERS OF THE
VARIOUS COUNTERPARTS THEREOF.
Receipt of this original counterpart of this Agreement is hereby
acknowledged on this 31st day of July, 1996.
UTRECHT-AMERICA FINANCE CO.,
as Agent
By: _______________________
Name:
Title:
By: _______________________
Name:
Title:
SCHEDULE A
TO
PAYMENT UNDERTAKING
AGREEMENT
PAYMENT UNDERTAKING
PAYMENT DATE PAYMENT AMOUNT
------------ --------------
7/31/96 0.00
1/5/97 7,343,093.21
7/5/97 2,160,000.00
1/5/98 13,295,387.43
7/5/98 2,160,000.00
1/5/99 13,187,025.52
7/5/99 2,160,000.00
1/5/00 13,189,488.29
7/5/00 2,160,000.00
1/5/01 13,189,432.32
7/5/01 2,160,000.00
1/5/02 13,189,433.59
7/5/02 2,160,000.00
1/5/03 13,189,433.56
7/5/03 2,160,000.00
1/5/04 13,189,433.56
7/5/04 2,160,000.00
1/5/05 26,133,768.60
7/5/05 0.00
1/5/06 15,349,433.56
7/5/06 2,160,000.00
1/5/07 13,189,433.56
7/5/07 2,160,000.00
1/5/08 14,894,926.18
7/5/08 2,160,000.00
1/5/09 16,600,418.79
7/5/09 2,160,000.00
1/5/10 16,600,418.79
7/5/10 2,160,000.00
1/5/11 16,600,418.79
7/5/11 2,160,000.00
1/5/12 16,600,418.79
7/5/12 2,160,000.00
1/5/13 16,600,418.79
7/5/13 2,160,000.00
1/5/14 16,600,418.79
7/5/14 2,160,000.00
1/5/15 16,600,418.79
7/5/15 2,160,000.00
1/5/16 16,600,418.79
7/5/16 2,160,000.00
1/5/17 16,600,418.79
7/5/17 2,160,000.00
1/5/18 16,600,418.79
7/5/18 2,160,000.00
1/5/19 10,374,454.89
7/5/19 8,527,463.09
1/4/20 269,490,240.00
SCHEDULE B
TO
PAYMENT UNDERTAKING AGREEMENT
ADDRESS OF FACILITY OWNER AND/OR ITS
ASSIGNEES FOR PAYMENT
Facility Owner
Clover Unit 2 Generating Trust
c/o Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Assignee for Payment
Utrecht-America Finance Co.
c/o Rabobank Nederland
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
11
