Representations and Warranties of Old Dominion. Old Dominion represents and warrants that, as of the Closing Date: (a) Old Dominion is a wholesale power supply cooperative duly organized, validly existing, and in good standing under the laws of the Commonwealth of Virginia, is duly licensed or qualified and in good standing in each jurisdiction in which the failure so to qualify would have a material adverse effect on its financial condition, business or operations or its ability to enter into and perform its obligations under this Agreement or any of the other Operative Documents to which it is a party, and has the corporate power and authority to carry on its business as now conducted and to enter into and perform its obligations under this Agreement and each of the other Operative Documents to which it is a party; (b) this Agreement and each of the other Operative Documents to which it is a party have been duly authorized, executed and delivered by Old Dominion and, assuming the due authorization, execution and delivery by each other party thereto, constitute the legal, valid and binding obligations of Old Dominion, enforceable against Old Dominion in accordance with their respective terms, except as the same may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, arrangement, moratorium or other laws relating to or affecting the rights of creditors generally and by general principles of equity; (c) the execution, delivery and performance by Old Dominion of this Agreement and each of the other Operative Documents to which it is a party, the consummation by Old Dominion of the transactions contemplated hereby and thereby, and compliance by Old Dominion with the terms and provisions hereof and thereof, do not and will not contravene any Applicable Law binding on Old Dominion or its property, or its certificate of incorporation or by-laws, or contravene the provisions of, or constitute a default by Old Dominion under, or result in the creation of any Lien (except for Permitted Liens) upon the property of Old Dominion or any indenture, mortgage or other material contract, agreement or instrument to which Old Dominion is a party (including, without limitation, the Clover Agreements, the Old Dominion Indenture, the Pollution Control Assets Lease and the Conveyance and Security Agreement, dated as of December 15, 1994, between the Pollution Control Assets Lessor and Old Dominion) or by which Old Dominion or any of its property is bound; (d) no authorization or approval or other action by, and no notice to or filing with, any Governmental Entity is required (A) for the due execution, delivery or performance by Old Dominion of this Agreement or the other Operative Documents to which it is a party or (B) to be obtained by Old Dominion, the Owner Trustee, or the Owner Participant with respect to the use, occupancy, possession, operation, maintenance, ownership, lease, alteration or repair of Clover Unit 1 prior to termination of the Term of the Equipment Operating Lease or the Foundation Operating Lease in accordance with the Operative Documents, or, without regard to any other transactions of the Owner Participant and the Owner Trustee and assuming that neither the Owner Participant or the Owner Trustee or any Affiliate of any of them is an "electric utility" or a "public utility" or a "public utility holding company" under any Applicable Law immediately prior to the Closing, with respect to the participation by Owner Trustee or the Owner Participant in the transactions contemplated by this Agreement and the other Operative Documents, other than those which have already been duly obtained and other than (i) the FERC Order and the Virginia Commission Order which have been obtained, (ii) any action of the FERC or the Virginia Commission which may be required in connection with the substitution of Qualifying Security pursuant to Section 7.6 hereof or a Qualifying Letter of Credit, (iii) the filing by the Owner Participant and the Owner Trustee of a Form U-7D with the Securities and Exchange Commission under Rule 7(d) of the Holding Company Act, (iv) as may be required in connection with any refinancing of the Loan Certificates or the issuance of Additional Loan Certificates, (v) as may be required under Applicable Law providing for the supervision or regulation of the Owner Participant or the Owner Trustee, (vi) as may be required with respect to the Owner Participant or the Owner Trustee as a result of investing, lending or other commercial activity in which the Owner Trustee or the Owner Participant is or may be engaged other than the transactions contemplated hereby or by any of the other Operative Documents, (vii) as may be required under existing Applicable Laws to be obtained, given, accomplished or renewed from time to time in connection with the maintenance or operation of Clover Unit 1 and which are routine in nature or which cannot be obtained, or are not normally applied for, prior to the time they are required, and which Old Dominion has no reason to believe will not be timely obtained, (viii) as may be required in consequence of any transfer of ownership of the Trust Estate by the Owner Trustee or any relinquishment of use or operation of Clover Unit 1 by Old Dominion or (ix) as may be required under any Applicable Law enacted or adopted after the date hereof; (e) no approval or consent of Virginia Power (except as have been obtained), the Pollution Control Assets Lessor, the Indenture Trustee or any holders of Old Dominion's Bonds is required in connection with the transactions contemplated by the Operative Documents; (f) neither (i) consummation of the transactions to be consummated on the Closing Date, (ii) except as provided in Section 6.2 and 6.3 of the Equipment Head Lease and Section 6.2 and 6.3 of the Foundation Head Lease, the exercise by Old Dominion of the Purchase Option and the Foundation Purchase Option or the Service Contract Option on the Expiration Date or (iii) any transfer of the Beneficial Interest in accordance with Section 5.1 prior to termination of the Equipment Operating Lease or the Foundation Operating Lease, gives rise, or will give rise, to a right by Virginia Power of first refusal, or right to consent, under Section 15.02 or 15.03 of the Clover Operating Agreement or Section 17.02 or 17.03 of the Clover Ownership Agreement; (g) there is no pending or, to the knowledge of Old Dominion, threatened action, suit, investigation or proceeding against Old Dominion before any Governmental Entity which, if determined adversely to it, would materially adversely affect Old Dominion's financial condition, business or operations or its ability to perform its obligations hereunder or under the other Operative Documents to which it is a party; (h) the insurance (including all related endorsements) required by Section 11 of the Equipment Operating Lease and the Foundation Operating Lease is in full force and effect and all premiums thereon are current; (i) the chief executive office and principal place of business of Old Dominion and the office where Old Dominion will keep its corporate records concerning the Clover Unit 1, the Clover Real Estate and the Operative Documents is located at Glen Allen, Virginia; (j) no Event of Default, Event of Loss (other than a Regulatory Event of Loss) or event that with the passage of time or giving of notice or both would constitute an Event of Default or Event of Loss (other than a Regulatory Event of Loss) has occurred and is continuing; (k) no event of default or event of loss has occurred and is continuing under the Pollution Control Assets Lease; (l) no event of default has occurred and is continuing under the Old Dominion Indenture; (m) Old Dominion is not an "investment company" or an "affiliated person" of an "investment company" within the meaning of the Investment Company Act of 1940; (n) neither Old Dominion nor anyone authorized by it has directly or indirectly offered or sold any interest in the Beneficial Interest or the Loans or any part thereof, or in any similar security or lease, or in any security or lease the offering of which for the purposes of the Securities Act would be deemed to be part of the same offering as the offering of the Beneficial Interest or the Loans or any part thereof or solicited any offer to acquire any of the same in violation of the registration requirements of Section 5 of the Securities Act. The representation and warranty in the preceding sentence is made by Old Dominion in reliance upon, and is subject to the accuracy of, the representation and warranty made by the Owner Participant in Section 3.2(h) hereof; (o) Old Dominion is not in default in any respect, and no condition exists that with notice or lapse of time or both would constitute a default in any respect, under the Clover Agreements or any mortgage, indenture or other material contract, agreement or instrument to which Old Dominion is a party or by which Old Dominion or its property is bound, in any such case where any such default, individually or in the aggregate, could reasonably be expected to have a material adverse effect on (i) its financial condition, business or operations or (ii) its ability to enter into and perform its obligations under this Agreement or any other Operative Document; (p) the Unit 1 Equipment and the Unit 1 Foundation are located on the Real Property; (q) Old Dominion has (i) good and valid title, as a tenant-in-common with Virginia Power to the Retained Assets free and clear of all Liens other than Permitted Liens, (ii) a valid leasehold interest, to the extent of a 50% undivided interest, in the Pollution Control Assets free and clear of all Liens other than Permitted Liens, and (iii) good and marketable title as a tenant-in-common with Virginia Power in the Clover Real Estate; (r) the Equipment Head Lease and the Foundation Head Lease create valid leasehold interests in favor of the Owner Trustee in the Equipment Interest and the Foundation Interest, respectively, under the laws of the Commonwealth of Virginia; (s) assuming that the Owner Trustee maintains possession and control over the Collateral (as defined in the Pledge Agreement) in accordance with the applicable provisions of the Uniform Commercial Code, the Pledge Agreement creates a valid and perfected security interest in such Collateral as contemplated thereby subject to the provisions of Section 9-306 of the Uniform Commercial Code; (t) assuming that the Owner Trustee maintains possession and control over the Deposit in accordance with the provisions of the Deposit Agreement, the Deposit Pledge Agreement creates a valid and enforceable pledge of the Deposit as contemplated thereby; (u) assuming that the Loan Agreement has been duly authorized, executed and delivered by each party thereto, the Loan Agreement creates a valid (subject to the rights of quiet enjoyment of Old Dominion under Section 9 hereof and Section 4.2 of the Equipment Operating Lease) security interest in favor of the Agent in the Equipment Interest. No filing, recording, registration or notice with any federal or state Governmental Entity is necessary to establish or, except for such filing and recording as have been made pursuant to Section 4.20 hereof and for the performance of the terms of the Loan Agreement, to perfect the Agent's security interest in the Equipment Interest; (v) assuming that the Leasehold Mortgage has been duly authorized, executed and delivered by each of the parties thereto, the Leasehold Mortgage creates a valid (subject to the rights of quiet enjoyment of Old Dominion under Section 9 hereof and Section 4.2 of the Foundation Operating Lease) lien in favor of the Agent for the benefit of the Original Lenders in the Foundation Interest. No filing, recording, registration or notice with any federal or state Governmental Entity is necessary to establish or, except for such filings and recordings as have been made pursuant to Section 4.20 and for the performance of the terms of the Leasehold Mortgage, to perfect the Agent's security interest in the Foundation Interest; (w) Old Dominion's audited financial statements for the fiscal year ended December 31, 1994, including the footnotes thereto, present fairly the consolidated financial position, results of operations and cash flow for Old Dominion as of and for the periods stated and have been prepared in conformity with GAAP on a consistent basis; and since December 31, 1994 no material adverse change has occurred in the financial condition, business or operations of Old Dominion and no event has occurred since December 31, 1994 which would materially adversely affect the ability of Old Dominion to perform its obligations under this Agreement or any other Operative Document to which it is a party; (x) Old Dominion owns or possesses or has obtained all material governmental franchises, licenses and permits necessary to lease or own, as the case may be, and to operate, its properties and to carry on its business as presently conducted where its ownership or lease of substantial properties or the conduct of its business requires such franchises, licenses or permits and where the failure to do so would materially adversely affect its financial condition, business or operations; (y) Old Dominion has filed all federal, state and local tax returns which are required to be filed by it and has paid (prior to their delinquency dates) any taxes which have become due pursuant to such returns or pursuant to any assessment received by it (other than taxes and assessments the payment of which is being contested in good faith by Old Dominion, with adequate reserves, in the aggregate, for the payment of which having been set aside on the books of Old Dominion), and Old Dominion has no Actual Knowledge of any actual or proposed deficiency or additional assessment in connection therewith which, either in any case or in the aggregate, would materially adversely affect Old Dominion's financial condition, business or operations; and any charges, accruals and reserves on the books of Old Dominion with respect to federal, state and local taxes for all open years, and for the current fiscal year, make adequate provision for any unpaid tax liabilities for such periods; (z) the qualification of any of the Agent, the Original Lenders, the Owner Trustee, the Trust Company or the Owner Participant for admission to do business under the laws of the Commonwealth of Virginia or any political subdivision thereof is not required in connection with the execution and delivery of the Operative Documents, the making of the Equity Investment or the Loans or, prior to termination of the Equipment Operating Lease or the Foundation Operating Lease, the performance by the Agent, any Lender, the Owner Trustee or the Owner Participant of this Agreement or any other Operative Document to which it is a party; (aa) Old Dominion has validly submitted to the jurisdiction of the Supreme Court of the State of New York, New York County and the United States District Court for the Southern District of New York;
Appears in 1 contract
Sources: Participation Agreement (Old Dominion Electric Cooperative)
Representations and Warranties of Old Dominion. Old Dominion represents and warrants that, as of the Closing Datedate hereof:
(a) Old Dominion is a wholesale power supply utility aggregation cooperative duly organized, validly existing, and in good standing under the laws of the Commonwealth of Virginia, is duly licensed or qualified and in good standing in each jurisdiction in which the failure so to qualify would have a material adverse effect on its financial condition, business or operations or its ability to enter into and perform its obligations under this Agreement or any of the Loan Refinancing Documents and the other Operative Documents to which it is a party, and has the corporate power and authority to carry on its business as now conducted and to enter into and perform its obligations under this Agreement and each of the other Operative Documents to which it is a partythereunder;
(b) this Agreement the Loan Refinancing Documents and each of the other Operative Documents to which it is a party have been duly authorized, executed and delivered by Old Dominion and, assuming the due authorization, execution and delivery by each other party hereto and thereto, constitute constitutes the legal, valid and binding obligations of Old Dominion, enforceable against Old Dominion in accordance with their respective terms, except as the same may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, arrangement, moratorium or other laws relating to or affecting the rights of creditors generally and by general principles of equity;
(c) the execution, delivery and performance by Old Dominion of this Agreement the Loan Refinancing Documents and each of the other Operative Documents to which it is a party, the consummation by Old Dominion of the transactions contemplated hereby and thereby, and compliance by Old Dominion with the terms and provisions hereof and thereof, do not and will not contravene any Applicable Law binding on Old Dominion or its property, or its certificate of incorporation or by-laws, or contravene the provisions of, or constitute a default by Old Dominion under, or result in the creation of any Lien (except for Permitted Liens) upon the property of Old Dominion or any indenture, mortgage or other material contract, agreement or instrument to which Old Dominion is a party (including, without limitation, the Clover Agreements, Agreements and the Old Dominion Indenture, the Pollution Control Assets Lease and the Conveyance and Security Agreement, dated as of December 15, 1994, between the Pollution Control Assets Lessor and Old Dominion) or by which Old Dominion or any of its property is bound;
(d) no authorization or approval or other action by, and no notice to or filing with, any Governmental Entity is required (A) for the due execution, delivery or performance by Old Dominion of this Agreement the Loan Refinancing Documents or the other Operative Documents to which it is a party or (B) to be obtained by Old Dominion, the Owner Trustee, or the Owner Participant with respect to the use, occupancy, possession, operation, maintenance, ownership, lease, alteration or repair of Clover Unit 1 prior to termination of the Term of the Equipment Operating Lease or the Foundation Operating Lease in accordance with the Operative Documents, or, without regard to any other transactions of the Owner Participant and the Owner Trustee and assuming that neither the Owner Participant or the Owner Trustee or any Affiliate of any of them is an "electric utility" or a "public utility" or a "public utility holding company" under any Applicable Law immediately prior to the Closing, with respect to the participation by Owner Trustee or the Owner Participant in the transactions contemplated by this Agreement and the Loan Refinancing Documents or the other Operative Documents, other than those which have already been duly obtained and other than (i) the FERC Order and the Virginia Commission Order which have been obtained, (ii) any action of the FERC or the Virginia Commission which may be required in connection with the substitution of Qualifying Security pursuant to Section 7.6 hereof or a Qualifying Letter of Credit, (iii) the filing by the Owner Participant and the Owner Trustee of a Form U-7D with the Securities and Exchange Commission under Rule 7(d) of the Holding Company Act, (iv) as may be required in connection with any refinancing of the Loan Certificates or the issuance of Additional Loan Certificates, (vii) as may be required under Applicable Law providing for the supervision or regulation of the Owner Participant or the Owner Trustee, (viiii) as may be required with respect to the Owner Participant or the Owner Trustee as a result of investing, lending or other commercial activity in which the Owner Trustee or the Owner Participant is or may be engaged other than the transactions contemplated hereby by the Loan Refinancing Documents or by any of the other Operative Documents, (viiiv) as may be required under existing Applicable Laws to be obtained, given, accomplished or renewed from time to time in connection with the maintenance or operation of Clover Unit 1 and which are routine in nature or which cannot be obtained, or are not normally applied for, prior to the time they are required, and which Old Dominion has no reason to believe will not be timely obtained, (viii) as may be required in consequence of any transfer of ownership of the Trust Estate by the Owner Trustee or any relinquishment of use or operation of Clover Unit 1 by Old Dominion or (ixv) as may be required under any Applicable Law enacted or adopted after the date hereof;
(e) no approval or consent of Virginia Power (except as have been obtained), the Pollution Control Assets Lessor, the Indenture Trustee or any holders of Old Dominion's ’s Bonds is required in connection with the transactions contemplated by the Loan Refinancing Documents or the other Operative Documents;
(f) neither (i) consummation of the transactions to be consummated on the Closing Date, (ii) except as provided in Section 6.2 and 6.3 of the Equipment Head Lease and Section 6.2 and 6.3 of the Foundation Head Lease, the exercise by Old Dominion of the Purchase Option and the Foundation Purchase Option or the Service Contract Option on the Expiration Date or (iii) any transfer of the Beneficial Interest in accordance with Section 5.1 prior to termination of the Equipment Operating Lease or the Foundation Operating Lease, gives rise, or will give rise, to a right by Virginia Power of first refusal, or right to consent, under Section 15.02 or 15.03 of the Clover Operating Agreement or Section 17.02 or 17.03 of the Clover Ownership Agreement;
(g) there is no pending or, to the knowledge of Old Dominion, threatened action, suit, investigation or proceeding against Old Dominion before any Governmental Entity which, if determined adversely to it, would materially adversely affect Old Dominion's ’s financial condition, business or operations or its ability to perform its obligations hereunder under the Loan Refinancing Documents or under the other Operative Documents to which it is a party, except as otherwise disclosed in Old Dominion’s periodic reports filed with the Securities and Exchange Commission pursuant to Section 13(a) of the Securities Exchange Act of 1934, as amended;
(g) no Event of Default, Event of Loss or event that with the passage of time or giving of notice or both would constitute an Event of Default or Event of Loss has occurred and is continuing;
(h) the insurance (including all related endorsements) required by Section 11 of the Equipment Operating Lease and the Foundation Operating Lease is in full force and effect and all premiums thereon are current;
(i) the chief executive office and principal place of business of Old Dominion and the office where Old Dominion will keep its corporate records concerning the Clover Unit 1, the Clover Real Estate and the Operative Documents is located at Glen Allen, Virginia;
(j) no Event of Default, Event of Loss (other than a Regulatory Event of Loss) or event that with the passage of time or giving of notice or both would constitute an Event of Default or Event of Loss (other than a Regulatory Event of Loss) has occurred and is continuing;
(k) no event of default or event of loss has occurred and is continuing under the Pollution Control Assets Lease;
(l) no event of default has occurred and is continuing under the Old Dominion Indenture;
(mj) Old Dominion is not an "investment Ainvestment company" » or an "affiliated Aaffiliated person" » of an "investment » Ainvestment company" » within the meaning of the Investment Company Act of 1940;
(n) neither Old Dominion nor anyone authorized by it has directly or indirectly offered or sold any interest in the Beneficial Interest or the Loans or any part thereof, or in any similar security or lease, or in any security or lease the offering of which for the purposes of the Securities Act would be deemed to be part of the same offering as the offering of the Beneficial Interest or the Loans or any part thereof or solicited any offer to acquire any of the same in violation of the registration requirements of Section 5 of the Securities Act. The representation and warranty in the preceding sentence is made by Old Dominion in reliance upon, and is subject to the accuracy of, the representation and warranty made by the Owner Participant in Section 3.2(h) hereof;
(ok) Old Dominion is not in default in any respect, and no condition exists that with notice or lapse of time or both would constitute a default in any respect, under the Clover Agreements or any mortgage, indenture or other material contract, agreement or instrument to which Old Dominion is a party or by which Old Dominion or its property is bound, in any such case where any such default, individually or in the aggregate, could reasonably be expected to have a material adverse effect on (i) its financial condition, business or operations or (ii) its ability to enter into and perform its obligations under this Agreement the Loan Refinancing Documents or any the other Operative DocumentDocuments to which it is a party;
(p) the Unit 1 Equipment and the Unit 1 Foundation are located on the Real Property;
(ql) Old Dominion has (i) good and valid title, as a tenant-in-common with Virginia Power to the Retained Assets free and clear of all Liens other than Permitted Liens, (ii) a valid leasehold interest, to the extent of a 50% undivided interest, in the Pollution Control Assets free and clear of all Liens other than Permitted Liens, and (iii) good and marketable title as a tenant-in-common with Virginia Power in the Clover Real Estate;
(rm) the Equipment Head Lease and the Foundation Head Lease create valid leasehold interests in favor of the Owner Trustee in the Equipment Interest and the Foundation Interest, respectively, under the laws of the Commonwealth of Virginia;
(sn) assuming the Investment Pledge Agreement has been duly authorized, executed and delivered by each party thereto (other than Old Dominion), the Investment Pledge Agreement creates a valid and enforceable security interest as contemplated thereby;
(o) assuming that the Owner Trustee maintains possession and control over the Collateral (as defined in the Pledge Agreement) in accordance with the applicable provisions of the Uniform Commercial Code, the Pledge Agreement creates a valid and perfected security interest in such Collateral as contemplated thereby thereby, subject to the provisions of Section 9-306 315 of the Uniform Commercial Code;
(t) assuming that the Owner Trustee maintains possession and control over the Deposit in accordance with the provisions of the Deposit Agreement, the Deposit Pledge Agreement creates a valid and enforceable pledge of the Deposit as contemplated thereby;
(up) assuming that the Loan Agreement has been duly authorized, executed and delivered by each party thereto, the Loan Agreement creates a valid (subject to the rights of quiet enjoyment of Old Dominion under Section 9 hereof of the Participation Agreement and Section 4.2 of the Equipment Operating Lease) security interest in favor of the Agent in the Equipment Interest. No filing, recording, registration or notice with any federal or state Governmental Entity is necessary to establish or, except for such filing filings and recording recordings as have been made pursuant prior to Section 4.20 the date hereof and for the performance of the terms of the Loan Agreement, to perfect the Agent's ’s security interest in the Equipment Interest;
(vq) assuming that the Leasehold Mortgage has been duly authorized, executed and delivered by each of the parties thereto, the Leasehold Mortgage creates a valid (subject to the rights of quiet enjoyment of Old Dominion under Section 9 hereof of the Participation Agreement and Section 4.2 of the Foundation Operating Lease) lien in favor of the Agent for the benefit of the Original Lenders in the Foundation Interest. No filing, recording, registration or notice with any federal or state Governmental Entity is necessary to establish or, except for such filings and recordings as have been made pursuant to Section 4.20 of the Participation Agreement and for the performance of the terms of the Leasehold Mortgage, to perfect the Agent's ’s security interest in the Foundation Interest;
(wr) Old Dominion's ’s audited financial statements for the fiscal year ended December 31, 19942004, including the footnotes thereto, present fairly the consolidated financial position, results of operations and cash flow for Old Dominion as of and for the periods stated and have been prepared in conformity with GAAP on a consistent basis; and since December 31, 1994 2004 no material adverse change has occurred in the financial condition, business or operations of Old Dominion and no event has occurred since December 31, 1994 2004 which would materially adversely affect the ability of Old Dominion to perform its obligations under this Agreement the Loan Refinancing Documents or any the other Operative Document Documents to which it is a party;
(xs) Old Dominion owns or possesses or has obtained all material governmental franchises, licenses and permits necessary to lease or own, as the case may be, and to operate, its properties and to carry on its business as presently conducted where its ownership or lease of substantial properties or the conduct of its business requires such franchises, licenses or permits and where the failure to do so would materially adversely affect its financial condition, business or operations;
(yt) Old Dominion has filed all federal, state and local tax returns which are required to be filed by it and has paid (prior to their delinquency dates) any taxes which have become due pursuant to such returns or pursuant to any assessment received by it (other than taxes and assessments the payment of which is being contested in good faith by Old Dominion, with adequate reserves, in the aggregate, for the payment of which having been set aside on the books of Old Dominion), and Old Dominion has no Actual Knowledge of any actual or proposed deficiency or additional assessment in connection therewith which, either in any case or in the aggregate, would materially adversely affect Old Dominion's ’s financial condition, business or operations; and any charges, accruals and reserves on the books of Old Dominion with respect to federal, state and local taxes for all open years, and for the current fiscal year, make adequate provision for any unpaid tax liabilities for such periods;
(zu) the qualification of any of the Agent, the Original Lenders, the Owner Trustee, the Trust Company or the Owner Participant for admission to do business under the laws of the Commonwealth of Virginia or any political subdivision thereof is not required in connection with the execution and delivery of the Loan Refinancing Documents or the other Operative Documents, the making of the Equity Investment Loans or the Loans or, prior to termination of the Equipment Operating Lease or the Foundation Operating Lease, the performance by the Agent, any Lender, the Owner Trustee or the Owner Participant of this Agreement the Loan Refinancing Documents or any the other Operative Document Documents to which it is a party;
(aav) Old Dominion has validly submitted to the jurisdiction of the Supreme Court of the State of New York, New York County and the United States District Court for the Southern District of New York;
(w) the choice by Old Dominion of the laws of the State of New York to govern the Loan Refinancing Documents and the other Operative Documents to which Old Dominion is a party and which are expressed to be governed by the laws of the State of New York is valid and binding under the Applicable Laws of the Commonwealth of Virginia, and a court in the Commonwealth of Virginia would uphold such choice of law in a legal proceeding to enforce the Loan Refinancing Documents and the other Operative Documents to which Old Dominion is a party brought in such court, subject to the enforceability of security documents being subject to the laws applicable to or affecting the collateral provided in respect thereof;
(x) the use by Old Dominion of the proceeds of the Loan Certificates will not violate or result in a violation of Section 7 of the Exchange Act, or any regulations issued pursuant thereto, including, without limitation, Regulations T, U and X of the regulations of the Federal Reserve System;
(y) performance by any of the Agent, any Lender, the Owner Trustee, or the Owner Participant of any action required under the Loan Refinancing Documents or the other Operative Documents will not violate any Applicable Law of the Commonwealth of Virginia or any political subdivision thereof;
(z) Old Dominion is an “electric utility company,” but is not a “holding company” or a “subsidiary company” of a “holding company” or an “affiliate” of a “holding company” within the meaning of the Holding Company Act; (aa) the terms of the Series 2006 Loan Certificates are in compliance with Section 2.11 of the Loan Agreement and Section 10.3 of the Participation Agreement; and
(bb) Old Dominion purchased the Pollution Control Assets in accordance with the Pollution Control Assets Lease on December 30, 2004.
Appears in 1 contract
Sources: Participation Agreement (Old Dominion Electric Cooperative)
Representations and Warranties of Old Dominion. Old Dominion represents and warrants that, as of the Closing Datefollows:
(a) Old Dominion is a wholesale power supply generation and transmission cooperative duly organized, incorporated and validly existing, and in good standing standing, under the laws of the Commonwealth of Virginia, is duly licensed or qualified and authorized to do business and is in good standing in each jurisdiction in which where the failure so to qualify would have a material adverse effect on character of its financial condition, business properties or operations or the nature of its ability to enter into and perform its obligations under this Agreement or any of the other Operative Documents to which it is a partyactions makes such qualification necessary, and has the corporate power and authority to carry on its business as now being conducted and to enter into possesses substantially all Federal and perform State authority and local franchises necessary for the maintenance, operation of its obligations under properties and business with such minor exceptions as will not materially interfere with the maintenance and operation of the North Anna Facilities.
(b) Consummation of the transac▇▇▇▇s hereby contemplated and performance of this Agreement and each by Old Dominion will not result in violation of the other Operative Documents any laws, ordinances, or governmental rules to which it is a party;
(b) this Agreement and each of the other Operative Documents to which it is a party have been duly authorized, executed and delivered by subject. Old Dominion andeither has obtained, assuming or at the due authorizationEffective Date shall have obtained, execution all necessary governmental approvals and delivery by each other party theretoconsents, constitute including the legalapproval of RUS, valid and binding obligations of Old Dominionif needed, enforceable against Old Dominion in accordance connection with their respective terms, except as the same may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, arrangement, moratorium or other laws relating to or affecting the rights of creditors generally and by general principles of equity;
(c) the execution, delivery and performance by Old Dominion of this Agreement and each of the other Operative Documents to which it is a party, the consummation by Old Dominion of the transactions hereby contemplated and the performance by it of this Agreement.
(c) The consummation of the transactions hereby contemplated and thereby, and compliance the performance by Old Dominion with of this Agreement, the terms Purchase Construction and provisions hereof Ownership Agreement and thereof, do not and the Nuclear Fuel Agreement will not contravene any Applicable Law binding on Old Dominion or its property, or its certificate of incorporation or by-laws, or contravene result in the provisions breach of, or constitute a default by Old Dominion under, the Articles of Incorporation or result in the creation of any Lien (except for Permitted Liens) upon the property By-Laws of Old Dominion or any indenture, mortgage mortgage, deed of trust, bank loan or credit agreement, or other material contract, agreement or instrument to which Old Dominion is a party (including, without limitation, the Clover Agreements, the Old Dominion Indenture, the Pollution Control Assets Lease and the Conveyance and Security Agreement, dated as of December 15, 1994, between the Pollution Control Assets Lessor and Old Dominion) or by which Old Dominion or any of its property is bound;
(d) no authorization or approval or other action by, and no notice to or filing with, any Governmental Entity is required (A) for the due execution, delivery or performance by Old Dominion of this Agreement or the other Operative Documents to which it is a party or (B) to be obtained by Old Dominion, the Owner Trustee, or the Owner Participant with respect to the use, occupancy, possession, operation, maintenance, ownership, lease, alteration or repair of Clover Unit 1 prior to termination of the Term of the Equipment Operating Lease or the Foundation Operating Lease in accordance with the Operative Documents, or, without regard to any other transactions of the Owner Participant and the Owner Trustee and assuming that neither the Owner Participant or the Owner Trustee or any Affiliate of any of them is an "electric utility" or a "public utility" or a "public utility holding company" under any Applicable Law immediately prior to the Closing, with respect to the participation by Owner Trustee or the Owner Participant in the transactions contemplated by this Agreement and the other Operative Documents, other than those which have already been duly obtained and other than (i) the FERC Order and the Virginia Commission Order which have been obtained, (ii) any action of the FERC or the Virginia Commission which may be required in connection with the substitution of Qualifying Security pursuant to Section 7.6 hereof or a Qualifying Letter of Credit, (iii) the filing by the Owner Participant and the Owner Trustee of a Form U-7D with the Securities and Exchange Commission under Rule 7(d) of the Holding Company Act, (iv) as may be required in connection with any refinancing of the Loan Certificates or the issuance of Additional Loan Certificates, (v) as may be required under Applicable Law providing for the supervision or regulation of the Owner Participant or the Owner Trustee, (vi) as may be required with respect to the Owner Participant or the Owner Trustee as a result of investing, lending or other commercial activity in which the Owner Trustee or the Owner Participant is or may be engaged other than the transactions contemplated hereby or by any of the other Operative Documents, (vii) as may be required under existing Applicable Laws to be obtained, given, accomplished or renewed from time to time in connection with the maintenance or operation of Clover Unit 1 and which are routine in nature or which cannot be obtained, or are not normally applied for, prior to the time they are required, and which Old Dominion has no reason to believe will not be timely obtained, (viii) as may be required in consequence of any transfer of ownership of the Trust Estate by the Owner Trustee or any relinquishment of use or operation of Clover Unit 1 by Old Dominion or (ix) as may be required under any Applicable Law enacted or adopted after the date hereof;
(e) no approval or consent of Virginia Power (except as have been obtained), the Pollution Control Assets Lessor, the Indenture Trustee or any holders of Old Dominion's Bonds is required in connection with the transactions contemplated by the Operative Documents;
(f) neither (i) consummation of the transactions to be consummated on the Closing Date, (ii) except as provided in Section 6.2 and 6.3 of the Equipment Head Lease and Section 6.2 and 6.3 of the Foundation Head Lease, the exercise by Old Dominion of the Purchase Option and the Foundation Purchase Option or the Service Contract Option on the Expiration Date or (iii) any transfer of the Beneficial Interest in accordance with Section 5.1 prior to termination of the Equipment Operating Lease or the Foundation Operating Lease, gives rise, or will give rise, to a right by Virginia Power of first refusal, or right to consent, under Section 15.02 or 15.03 of the Clover Operating Agreement or Section 17.02 or 17.03 of the Clover Ownership Agreement;
(g) there is no pending or, to the knowledge of Old Dominion, threatened action, suit, investigation or proceeding against Old Dominion before any Governmental Entity which, if determined adversely to it, would materially adversely affect Old Dominion's financial condition, business or operations or its ability to perform its obligations hereunder or under the other Operative Documents to which it is a party;
(h) the insurance (including all related endorsements) required by Section 11 of the Equipment Operating Lease and the Foundation Operating Lease is in full force and effect and all premiums thereon are current;
(i) the chief executive office and principal place of business of Old Dominion and the office where Old Dominion will keep its corporate records concerning the Clover Unit 1, the Clover Real Estate and the Operative Documents is located at Glen Allen, Virginia;
(j) no Event of Default, Event of Loss (other than a Regulatory Event of Loss) or event that with the passage of time or giving of notice or both would constitute an Event of Default or Event of Loss (other than a Regulatory Event of Loss) has occurred and is continuing;
(k) no event of default or event of loss has occurred and is continuing under the Pollution Control Assets Lease;
(l) no event of default has occurred and is continuing under the Old Dominion Indenture;
(m) Old Dominion is not an "investment company" or an "affiliated person" of an "investment company" within the meaning of the Investment Company Act of 1940;
(n) neither Old Dominion nor anyone authorized by it has directly or indirectly offered or sold any interest in the Beneficial Interest or the Loans or any part thereof, or in any similar security or lease, or in any security or lease the offering of which for the purposes of the Securities Act would be deemed to be part of the same offering as the offering of the Beneficial Interest or the Loans or any part thereof or solicited any offer to acquire any of the same in violation of the registration requirements of Section 5 of the Securities Act. The representation and warranty in the preceding sentence is made by Old Dominion in reliance upon, and is subject to the accuracy of, the representation and warranty made by the Owner Participant in Section 3.2(h) hereof;
(o) Old Dominion is not in default in any respect, and no condition exists that with notice or lapse of time or both would constitute a default in any respect, under the Clover Agreements or any mortgage, indenture or other material contract, agreement or instrument to which Old Dominion is a party or by which Old Dominion or its properties may be bound or affected, or result in the creation of any lien, charge, security interest or encumbrance upon any property of Old Dominion (other than Permitted Encumbrances, as that term is bound, defined in the Purchase Construction and Ownership Agreement) and Old Dominion is not in default under any term of any such case where any such defaultagreement or instrument.
(d) On the date hereof there exists, individually as to Old Dominion, no Event of Default or in event or condition which, with the aggregategiving of notice or the lapse of time or both, could reasonably be expected to have a material adverse effect on would constitute an Event of Default.
(ie) its financial condition, business or operations or (ii) its ability to enter Each of the Old Dominion Members has entered into and perform its obligations under this Agreement or any other Operative Document;will be bound by the Wholesale Power Contracts on the Effective Date.
(p) the Unit 1 Equipment and the Unit 1 Foundation are located on the Real Property;
(qf) Old Dominion has (i) good is authorized to act solely for each and valid titleall of the Old Dominion Members in all communications, as a tenant-in-common transactions and relationships with Virginia Power to the Retained Assets free and clear of all Liens other than Permitted Liens, (ii) a valid leasehold interest, to the extent of a 50% undivided interest, in the Pollution Control Assets free and clear of all Liens other than Permitted Liens, and (iii) good and marketable title as a tenant-in-common with Virginia Power in the Clover Real Estate;
(r) the Equipment Head Lease and the Foundation Head Lease create valid leasehold interests in favor of the Owner Trustee in the Equipment Interest and the Foundation Interest, respectively, under the laws of the Commonwealth of Virginia;
(s) assuming that the Owner Trustee maintains possession and control over the Collateral (as defined in the Pledge Agreement) in accordance with the applicable provisions of the Uniform Commercial Code, the Pledge Agreement creates a valid and perfected security interest in such Collateral as contemplated thereby subject to the provisions of Section 9-306 of the Uniform Commercial Code;
(t) assuming that the Owner Trustee maintains possession and control over the Deposit in accordance with the provisions of the Deposit Agreement, the Deposit Pledge Agreement creates a valid and enforceable pledge of the Deposit as contemplated thereby;
(u) assuming that the Loan Agreement has been duly authorized, executed and delivered by each party thereto, the Loan Agreement creates a valid (subject to the rights of quiet enjoyment of Old Dominion under Section 9 hereof and Section 4.2 of the Equipment Operating Lease) security interest in favor of the Agent in the Equipment Interest. No filing, recording, registration or notice with any federal or state Governmental Entity is necessary to establish or, except for such filing and recording as have been made pursuant to Section 4.20 hereof and for the performance of the terms of the Loan this Agreement, to perfect the Agent's security interest in the Equipment Interest;
(v) assuming that the Leasehold Mortgage has been duly authorized, executed and delivered by each of the parties thereto, the Leasehold Mortgage creates a valid (subject to the rights of quiet enjoyment of Old Dominion under Section 9 hereof and Section 4.2 of the Foundation Operating Lease) lien in favor of the Agent for the benefit of the Original Lenders in the Foundation Interest. No filing, recording, registration or notice with any federal or state Governmental Entity is necessary to establish or, except for such filings and recordings as have been made pursuant to Section 4.20 and for the performance of the terms of the Leasehold Mortgage, to perfect the Agent's security interest in the Foundation Interest;
(w) Old Dominion's audited financial statements for the fiscal year ended December 31, 1994, including the footnotes thereto, present fairly the consolidated financial position, results of operations and cash flow for Old Dominion as of and for the periods stated and have been prepared in conformity with GAAP on a consistent basis; and since December 31, 1994 no material adverse change has occurred in the financial condition, business or operations of Old Dominion and no event has occurred since December 31, 1994 which would materially adversely affect the ability of Old Dominion to perform its obligations under this Agreement or any other Operative Document to which it is a party;
(x) Old Dominion owns or possesses or has obtained all material governmental franchises, licenses and permits necessary to lease or own, as the case may be, and to operate, its properties and to carry on its business as presently conducted where its ownership or lease of substantial properties or the conduct of its business requires such franchises, licenses or permits and where the failure to do so would materially adversely affect its financial condition, business or operations;
(y) Old Dominion has filed all federal, state and local tax returns which are required to be filed by it and has paid (prior to their delinquency dates) any taxes which have become due pursuant to such returns or pursuant to any assessment received by it (other than taxes and assessments the payment of which is being contested in good faith by Old Dominion, with adequate reserves, in the aggregate, for the payment of which having been set aside on the books of Old Dominion), and Old Dominion has no Actual Knowledge of any actual or proposed deficiency or additional assessment in connection therewith which, either in any case or in the aggregate, would materially adversely affect Old Dominion's financial condition, business or operations; and any charges, accruals and reserves on the books of Old Dominion with respect to federal, state and local taxes for all open years, and for the current fiscal year, make adequate provision for any unpaid tax liabilities for such periods;
(z) the qualification of any of the Agent, the Original Lenders, the Owner Trustee, the Trust Company or the Owner Participant for admission to do business under the laws of the Commonwealth of Virginia or any political subdivision thereof is not required in connection with the execution and delivery of the Operative Documents, the making of the Equity Investment or the Loans or, prior to termination of the Equipment Operating Lease or the Foundation Operating Lease, the performance by the Agent, any Lender, the Owner Trustee or the Owner Participant of this Agreement or any other Operative Document to which it is a party;
(aa) Old Dominion has validly submitted to the jurisdiction of the Supreme Court of the State of New York, New York County and the United States District Court for the Southern District of New York;.
Appears in 1 contract
Sources: Interconnection and Operating Agreement (Virginia Electric & Power Co)
Representations and Warranties of Old Dominion. Old Dominion represents and warrants that, as of the Closing Date:
(a) Old Dominion is a wholesale power supply cooperative duly organized, validly existing, and in good standing under the laws of the Commonwealth of Virginia, is duly licensed or qualified and in good standing in each jurisdiction in which the failure so to qualify would have a material adverse effect on its financial condition, business or operations or its ability to enter into and perform its obligations under this Agreement or any of the other Operative Documents to which it is a party, and has the corporate power and authority to carry on its business as now conducted and to enter into and perform its obligations under this Agreement and each of the other Operative Documents to which it is a party;
(b) this Agreement Agreement, the Clover Agreements and each of the other Operative Documents to which it is a party have been duly authorized, executed and delivered by Old Dominion and, assuming the due authorization, execution and delivery by each other party thereto, constitute the legal, valid and binding obligations of Old Dominion, enforceable against Old Dominion in accordance with their respective terms, except as the same may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, arrangement, moratorium or other laws relating to or affecting the rights of creditors generally and by general principles of equity;
(c) the execution, delivery and performance by Old Dominion of this Agreement and each of the other Operative Documents to which it is a party, the consummation by Old Dominion of the transactions contemplated hereby and thereby, and compliance by Old Dominion with the terms and provisions hereof and thereof, do not and will not contravene any Applicable Law binding on Old Dominion or its property, or its certificate of incorporation or by-laws, or contravene the provisions of, or constitute a default by Old Dominion under, or result in the creation of any Lien (except for Permitted Liens) upon the property of Old Dominion or any indenture, mortgage or other material contract, agreement or instrument to which Old Dominion is a party (including, without limitation, including the Clover Agreements, the Old Dominion Indenture, the Pollution Control Assets Lease and Documents or the Conveyance and Security Agreement, dated as of December 15, 1994, between the Pollution Control Assets Lessor and Old DominionClover 1 Documents) or by which Old Dominion or any of its property is bound;
(d) the execution, delivery and performance by the Transaction Parties of this Agreement, each of the other Operative Documents to which any of them is a party and the Operating Agency Agreement, the consummation by the Transaction Parties of the transactions contemplated hereby or thereby, and compliance by the Transaction Parties with the terms and provisions hereof and thereof do not and will not contravene the provisions of any indenture, mortgage or other material contract, agreement or instrument to which Old Dominion is a party (including the Clover Agreements, the Old Dominion Indenture, the Pollution Control Assets Lease Documents or the Clover 1 Documents) or by which Old Dominion or any of its property is bound;
(e) no authorization or approval or other action by, and no notice to or filing with, any Governmental Entity is required (A) for the due execution, delivery or performance by Old Dominion of this Agreement or Agreement, the other Operative Documents to which it is a party or the Operating Agency Agreement or (B) to be obtained by Old Dominion, the Owner Trustee, the Facility Owner or the Owner Participant with respect to the use, occupancy, possession, operation, maintenance, ownership, lease, alteration or repair of Clover Unit 1 2 prior to termination of the Term of the Operating Equipment Operating Lease Agreement or the Operating Foundation Operating Lease Agreement in accordance with the Operative Documents, or, without regard to any other transactions of the Owner Participant and Participant, the Owner Trustee or the Facility Owner and assuming that neither the Owner Participant or Participant, the Owner Trustee Trustee, the Facility Owner or any Affiliate of any of them is an "electric utility" or a "public utility" or a "public utility holding company" under any Applicable Law immediately prior to the Closing, with respect to the participation by the Owner Trustee Trustee, the Facility Owner or the Owner Participant in the transactions contemplated by this Agreement and the other Operative Documents, other than those which have already been duly obtained and other than (i) the FERC Order Orders and the Virginia Commission Order which have been obtained, (ii) any action of the FERC or the Virginia Commission which may be required in connection with the substitution of Qualifying Security pursuant to Section 7.6 hereof or a Qualifying Letter of Credit, (iii) the filing by the Owner Participant Participant, Owner Trustee and the Facility Owner Trustee of a Form U-7D with the Securities and Exchange Commission under Rule 7(d) of the Holding Company Act, (iviii) as may be required in connection with any refinancing of the Loan Certificates or the issuance of Additional Loan Certificates, (viv) as may be required under Applicable Law providing for the supervision or regulation of the Owner Participant or the Owner TrusteeParticipant, (vi) as may be required with respect to the Owner Participant or the Owner Trustee or the Facility Owner as a result of investing, lending or other commercial activity in which the Owner Participant, the Owner Trustee or the Facility Owner Participant is or may be engaged other than the transactions contemplated hereby or by any of the other Operative Documents, (viiv) as may be required with respect to the Owner Participant, the Owner Trustee or the Facility Owner as a result of investing, lending or other commercial activity in which the Owner Participant, the Owner Trustee or the Facility Owner is or may be engaged other than the transactions contemplated hereby or by any of the other Operative Documents, (vi) as may be required under existing Applicable Laws to be obtained, given, accomplished or renewed at any time after the Closing Date or from time to time after the Closing Date in connection with the maintenance or operation of Clover Unit 1 2 and which are routine in nature or which cannot be obtained, or are not normally applied for, prior to the time they are required, and which Old Dominion has no reason to believe will not be timely obtained, (viiivii) as may be required in consequence of any transfer of ownership of the Trust Estate by the Facility Owner Trustee or any relinquishment of use or operation of Clover Unit 1 2 by Old Dominion or (ixviii) as may be required under any Applicable Law enacted or adopted after the date hereof;
(ef) no approval or consent of Virginia Power (except as have been obtained), the Pollution Control Assets Lessor, the Indenture Trustee or any holders of Old Dominion's Bonds is required in connection with the transactions contemplated by the Operative Documents;
(fg) neither (i) consummation of the transactions to be consummated on the Closing Date, (ii) except as provided in Section Sections 6.2 and 6.3 of the Head Equipment Head Lease Agreement and Section Sections 6.2 and 6.3 of the Head Foundation Head LeaseAgreement, the exercise by Old Dominion of the Purchase Option and the Foundation Purchase Option or the Service Contract Option on the Expiration Date or nor (iii) any transfer of the Beneficial Interest in accordance with Section 5.1 or 12 hereof prior to termination of the Operating Equipment Operating Lease Agreement or the Operating Foundation Agreement nor (iv) the execution and delivery of the Operating LeaseAgency Agreement, gives rise, or will give rise, to a right by Virginia Power of first refusal, or right to consent, under Section 15.02 or 15.03 of the Clover Operating Agreement or Section 17.02 or 17.03 of the Clover Ownership Agreement;
(gh) there is no pending or, to the knowledge of Old Dominion, threatened action, suit, investigation or proceeding against Old Dominion before any Governmental Entity which, if determined adversely to it, would materially adversely affect Old Dominion's financial condition, business or operations or its ability to perform its obligations hereunder or hereunder, under the other Operative Documents to which it is a partyparty or under the Operating Agency Agreement;
(hi) the insurance (including all related endorsements) required by Section 11 of the Operating Equipment Agreement and Section 11 of the Operating Lease and the Foundation Operating Lease Agreement is in full force and effect and all premiums thereon are current;
(ij) the chief executive office and principal place of business of Old Dominion and the office where Old Dominion will keep its corporate records concerning the Clover Unit 12, the Clover Real Estate and the Operative Documents is located at Glen AllenHenrico County, Virginia;
(jk) no Event of Default, Event of Loss (other than a Regulatory an Event of Loss referred to in clause (iv) or clause (vi) of the definition of Event of Loss) or event that with the passage of time or giving of notice or both would constitute an Event of Default or Event of Loss (other than a Regulatory an Event of Loss referred to in clause (iv) or clause (vi) of the definition of Event of Loss) has occurred and is continuing;
(kl) no event of default or event of loss has occurred and is continuing under the Pollution Control Assets Lease, the Clover 1 Foundation Operating Lease or the Clover 1 Equipment Operating Lease;
(lm) no event of default has occurred and is continuing under the Old Dominion Indenture;
(mn) Old Dominion is not an "investment company" or an "affiliated person" of an "investment company" within the meaning of the Investment Company Act of 1940;
(no) neither Old Dominion nor anyone authorized by it has directly or indirectly offered or sold any interest in the Beneficial Interest or the Loans or any part thereof, or in any similar security or lease, or in any security or lease the offering of which for the purposes of the Securities Act would be deemed to be part of the same offering as the offering of the Beneficial Interest or the Loans or any part thereof or solicited any offer to acquire any of the same in violation of the registration requirements of Section 5 of the Securities Act. The representation and warranty in the preceding sentence is made by Old Dominion in reliance upon, and is subject to the accuracy of, the representation and warranty made by the Owner Participant in Section 3.2(h) hereof and the representation and warranty made by the Original Lenders in Section 3.4(ii) hereof;
(op) Old Dominion is not in default in any respect, and no condition exists that with notice or lapse of time or both would constitute a default in any respect, under the Clover Agreements or any mortgage, indenture or other material contract, agreement or instrument to which Old Dominion is a party or by which Old Dominion or its property is bound, in any such case where any such default, individually or in the aggregate, could reasonably be expected to have a material adverse effect on (i) its financial condition, business or operations or (ii) its ability to enter into and perform its obligations under this Agreement or any other Operative Document;
(pq) the Unit 1 2 Equipment and the Unit 1 2 Foundation are located on the Real PropertyProperty and the Common Facilities are located on the Clover Real Estate;
(qr) Old Dominion has (i) good and valid title, as a tenant-in-common with Virginia Power to the Retained Assets free and clear of all Liens other than Permitted Liens, (ii) a valid leasehold interest, to the extent of a 50% undivided interest, in the Pollution Control Assets free and clear of all Liens other than Permitted Liens, and (iii) good and marketable title as a tenant-in-common with Virginia Power in the Clover Real Estate;
(rs) the Head Equipment Head Lease Agreement and the Head Foundation Head Lease Agreement create valid leasehold interests in favor of the Facility Owner Trustee in the Equipment Interest and the Foundation Interest, respectively, under the laws of the Commonwealth of Virginia;
(st) assuming that the Facility Owner Trustee maintains possession and control over the Collateral (as defined in the Equity Security Pledge Agreement) in accordance with the applicable provisions of the Uniform Commercial Code, the Equity Security Pledge Agreement creates a valid and perfected security interest in such Collateral as contemplated thereby subject to the provisions of Section 9-306 of the Uniform Commercial Code;
(t) assuming that the Owner Trustee maintains possession and control over the Deposit in accordance with the provisions of the Deposit Agreement, the Deposit Pledge Agreement creates a valid and enforceable pledge of the Deposit as contemplated thereby;
(u) assuming that the Loan Agreement has been duly authorized, executed and delivered by each party thereto, the Loan Agreement creates a valid (subject to the rights of quiet enjoyment of Old Dominion under Section 9 hereof and Section 4.2 of the Operating Equipment Operating LeaseAgreement) security interest in favor of the Agent in the Equipment Interest. No filing, recording, registration or notice with any federal or state Governmental Entity is necessary to establish or, except for such filing and recording as have been made pursuant to Section 4.20 4.18 hereof and for the performance of the terms of the Loan Agreement, to perfect the Agent's security interest in the Equipment Interest;
(v) assuming that the Loan Agreement and the Leasehold Mortgage has have been duly authorized, executed and delivered by each of the parties thereto, the Loan Agreement and the Leasehold Mortgage creates a create valid (subject to the rights of quiet enjoyment of Old Dominion under Section 9 hereof and hereof, Section 4.2 of the Operating Foundation Operating LeaseAgreement and Section 7 of the Ground Lease and Sublease) lien Liens in favor of the Agent for the benefit of the Original Lenders in the Foundation Interest and the Ground Interest. No filing, recording, registration or notice with any federal or state Governmental Entity is necessary to establish or, except for such filings and recordings as have been made pursuant to Section 4.20 4.18 and for the performance of the terms of the Loan Agreement and the Leasehold Mortgage, to perfect the Agent's security interest Liens in favor of the Agent for the benefit of the Lenders in the Foundation Interest and the Ground Interest;
(w) Old Dominion's audited financial statements for the fiscal year ended December 31, 19941995, including the footnotes thereto, present fairly the consolidated financial position, results of operations and cash flow for Old Dominion as of and for the periods stated and have been prepared in conformity with GAAP on a consistent basis; and since December 31, 1994 1995 no material adverse change has occurred in the financial condition, business or operations of Old Dominion and no event has occurred since December 31, 1994 1995 which would materially adversely affect the ability of Old Dominion to perform its obligations under this Agreement or any other Operative Document to which it is a party;
(x) Old Dominion owns or possesses or has obtained all material governmental franchises, licenses and permits necessary to lease or own, as the case may be, and to operate, its properties and to carry on its business as presently conducted where its ownership or lease of substantial properties or the conduct of its business requires such franchises, licenses or permits and where the failure to do so would materially adversely affect its financial condition, business or operations;
(y) Old Dominion has filed all federal, state and local tax returns which are required to be filed by it and has paid (prior to their delinquency dates) any taxes which have become due pursuant to such returns or pursuant to any assessment received by it (other than taxes and assessments the payment of which is being contested in good faith by Old Dominion, with adequate reserves, in the aggregate, for the payment of which having been set aside on the books of Old Dominion), and Old Dominion has no Actual Knowledge of any actual or proposed deficiency or additional assessment in connection therewith which, either in any case or in the aggregate, would materially adversely affect Old Dominion's financial condition, business or operations; and any charges, accruals and reserves on the books of Old Dominion with respect to federal, state and local taxes for all open years, and for the current fiscal year, make adequate provision for any unpaid tax liabilities for such periods;
(z) the qualification of any of the Agent, the Original Lenders, the Facility Owner, the Owner Trustee, the Trust Company or the Owner Participant for admission to do business under the laws of the Commonwealth of Virginia or any political subdivision thereof is not required solely in connection with the execution and delivery of the Operative Documents, the making of the Equity Investment or the Loans or, prior to termination of the Operating Equipment Operating Lease Agreement or the Operating Foundation Operating LeaseAgreement, the performance by the Agent, any Lenderthe Lenders, the Facility Owner, the Owner Trustee or the Owner Participant of this Agreement or any other Operative Document to which it is a party;
(aa) Old Dominion has validly submitted to the jurisdiction of the Supreme Court of the State of New York, New York County and the United States District Court for the Southern District of New York;Dominio
Appears in 1 contract
Sources: Participation Agreement (Old Dominion Electric Cooperative)
Representations and Warranties of Old Dominion. Old Dominion represents and warrants that, as of the Closing Datefollows:
(a) Old Dominion is a wholesale power supply generation and transmission cooperative duly organized, incorporated and validly existing, and in good standing standing, under the laws of the Commonwealth of Virginia, is duly licensed or qualified and authorized to do business and is in good standing in each jurisdiction in which where the failure so to qualify would have a material adverse effect on character of its financial condition, business properties or operations or the nature of its ability to enter into and perform its obligations under this Agreement or any of the other Operative Documents to which it is a partyactions makes such qualification necessary, and has the corporate power and authority to carry on its business as now being conducted and to enter into possesses substantially all Federal and perform State authority and local franchises necessary for the maintenance, operation of its obligations under properties and business with such minor exceptions as will not materially interfere with the maintenance and operation of the North ▇▇▇▇ Facilities.
(b) Consummation of the transactions hereby contemplated and performance of this Agreement and each by Old Dominion will not result in violation of the other Operative Documents any laws, ordinances, or governmental rules to which it is a party;
(b) this Agreement and each of the other Operative Documents to which it is a party have been duly authorized, executed and delivered by subject. Old Dominion andeither has obtained, assuming or at the due authorizationEffective Date shall have obtained, execution all necessary governmental approvals and delivery by each other party theretoconsents, constitute including the legalapproval of RUS, valid and binding obligations of Old Dominionif needed, enforceable against Old Dominion in accordance connection with their respective terms, except as the same may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, arrangement, moratorium or other laws relating to or affecting the rights of creditors generally and by general principles of equity;
(c) the execution, delivery and performance by Old Dominion of this Agreement and each of the other Operative Documents to which it is a party, the consummation by Old Dominion of the transactions hereby contemplated and the performance by it of this Agreement.
(c) The consummation of the transactions hereby contemplated and thereby, and compliance the performance by Old Dominion with of this Agreement, the terms Purchase Construction and provisions hereof Ownership Agreement and thereof, do not and the Nuclear Fuel Agreement will not contravene any Applicable Law binding on Old Dominion or its property, or its certificate of incorporation or by-laws, or contravene result in the provisions breach of, or constitute a default by Old Dominion under, the Articles of Incorporation or result in the creation of any Lien (except for Permitted Liens) upon the property By-Laws of Old Dominion or any indenture, mortgage mortgage, deed of trust, bank loan or credit agreement, or other material contract, agreement or instrument to which Old Dominion is a party (including, without limitation, the Clover Agreements, the Old Dominion Indenture, the Pollution Control Assets Lease and the Conveyance and Security Agreement, dated as of December 15, 1994, between the Pollution Control Assets Lessor and Old Dominion) or by which Old Dominion or any of its property is bound;
(d) no authorization or approval or other action by, and no notice to or filing with, any Governmental Entity is required (A) for the due execution, delivery or performance by Old Dominion of this Agreement or the other Operative Documents to which it is a party or (B) to be obtained by Old Dominion, the Owner Trustee, or the Owner Participant with respect to the use, occupancy, possession, operation, maintenance, ownership, lease, alteration or repair of Clover Unit 1 prior to termination of the Term of the Equipment Operating Lease or the Foundation Operating Lease in accordance with the Operative Documents, or, without regard to any other transactions of the Owner Participant and the Owner Trustee and assuming that neither the Owner Participant or the Owner Trustee or any Affiliate of any of them is an "electric utility" or a "public utility" or a "public utility holding company" under any Applicable Law immediately prior to the Closing, with respect to the participation by Owner Trustee or the Owner Participant in the transactions contemplated by this Agreement and the other Operative Documents, other than those which have already been duly obtained and other than (i) the FERC Order and the Virginia Commission Order which have been obtained, (ii) any action of the FERC or the Virginia Commission which may be required in connection with the substitution of Qualifying Security pursuant to Section 7.6 hereof or a Qualifying Letter of Credit, (iii) the filing by the Owner Participant and the Owner Trustee of a Form U-7D with the Securities and Exchange Commission under Rule 7(d) of the Holding Company Act, (iv) as may be required in connection with any refinancing of the Loan Certificates or the issuance of Additional Loan Certificates, (v) as may be required under Applicable Law providing for the supervision or regulation of the Owner Participant or the Owner Trustee, (vi) as may be required with respect to the Owner Participant or the Owner Trustee as a result of investing, lending or other commercial activity in which the Owner Trustee or the Owner Participant is or may be engaged other than the transactions contemplated hereby or by any of the other Operative Documents, (vii) as may be required under existing Applicable Laws to be obtained, given, accomplished or renewed from time to time in connection with the maintenance or operation of Clover Unit 1 and which are routine in nature or which cannot be obtained, or are not normally applied for, prior to the time they are required, and which Old Dominion has no reason to believe will not be timely obtained, (viii) as may be required in consequence of any transfer of ownership of the Trust Estate by the Owner Trustee or any relinquishment of use or operation of Clover Unit 1 by Old Dominion or (ix) as may be required under any Applicable Law enacted or adopted after the date hereof;
(e) no approval or consent of Virginia Power (except as have been obtained), the Pollution Control Assets Lessor, the Indenture Trustee or any holders of Old Dominion's Bonds is required in connection with the transactions contemplated by the Operative Documents;
(f) neither (i) consummation of the transactions to be consummated on the Closing Date, (ii) except as provided in Section 6.2 and 6.3 of the Equipment Head Lease and Section 6.2 and 6.3 of the Foundation Head Lease, the exercise by Old Dominion of the Purchase Option and the Foundation Purchase Option or the Service Contract Option on the Expiration Date or (iii) any transfer of the Beneficial Interest in accordance with Section 5.1 prior to termination of the Equipment Operating Lease or the Foundation Operating Lease, gives rise, or will give rise, to a right by Virginia Power of first refusal, or right to consent, under Section 15.02 or 15.03 of the Clover Operating Agreement or Section 17.02 or 17.03 of the Clover Ownership Agreement;
(g) there is no pending or, to the knowledge of Old Dominion, threatened action, suit, investigation or proceeding against Old Dominion before any Governmental Entity which, if determined adversely to it, would materially adversely affect Old Dominion's financial condition, business or operations or its ability to perform its obligations hereunder or under the other Operative Documents to which it is a party;
(h) the insurance (including all related endorsements) required by Section 11 of the Equipment Operating Lease and the Foundation Operating Lease is in full force and effect and all premiums thereon are current;
(i) the chief executive office and principal place of business of Old Dominion and the office where Old Dominion will keep its corporate records concerning the Clover Unit 1, the Clover Real Estate and the Operative Documents is located at Glen Allen, Virginia;
(j) no Event of Default, Event of Loss (other than a Regulatory Event of Loss) or event that with the passage of time or giving of notice or both would constitute an Event of Default or Event of Loss (other than a Regulatory Event of Loss) has occurred and is continuing;
(k) no event of default or event of loss has occurred and is continuing under the Pollution Control Assets Lease;
(l) no event of default has occurred and is continuing under the Old Dominion Indenture;
(m) Old Dominion is not an "investment company" or an "affiliated person" of an "investment company" within the meaning of the Investment Company Act of 1940;
(n) neither Old Dominion nor anyone authorized by it has directly or indirectly offered or sold any interest in the Beneficial Interest or the Loans or any part thereof, or in any similar security or lease, or in any security or lease the offering of which for the purposes of the Securities Act would be deemed to be part of the same offering as the offering of the Beneficial Interest or the Loans or any part thereof or solicited any offer to acquire any of the same in violation of the registration requirements of Section 5 of the Securities Act. The representation and warranty in the preceding sentence is made by Old Dominion in reliance upon, and is subject to the accuracy of, the representation and warranty made by the Owner Participant in Section 3.2(h) hereof;
(o) Old Dominion is not in default in any respect, and no condition exists that with notice or lapse of time or both would constitute a default in any respect, under the Clover Agreements or any mortgage, indenture or other material contract, agreement or instrument to which Old Dominion is a party or by which Old Dominion or its properties may be bound or affected, or result in the creation of any lien, charge, security interest or encumbrance upon any property of Old Dominion (other than Permitted Encumbrances, as that term is bound, defined in the Purchase Construction and Ownership Agreement) and Old Dominion is not in default under any term of any such case where any such defaultagreement or instrument.
(d) On the date hereof there exists, individually as to Old Dominion, no Event of Default or in event or condition which, with the aggregategiving of notice or the lapse of time or both, could reasonably be expected to have a material adverse effect on would constitute an Event of Default.
(ie) its financial condition, business or operations or (ii) its ability to enter Each of the Old Dominion Members has entered into and perform its obligations under this Agreement or any other Operative Document;will be bound by the Wholesale Power Contracts on the Effective Date.
(p) the Unit 1 Equipment and the Unit 1 Foundation are located on the Real Property;
(qf) Old Dominion has (i) good is authorized to act solely for each and valid titleall of the Old Dominion Members in all communications, as a tenant-in-common transactions and relationships with Virginia Power to the Retained Assets free and clear of all Liens other than Permitted Liens, (ii) a valid leasehold interest, to the extent of a 50% undivided interest, in the Pollution Control Assets free and clear of all Liens other than Permitted Liens, and (iii) good and marketable title as a tenant-in-common with Virginia Power in the Clover Real Estate;
(r) the Equipment Head Lease and the Foundation Head Lease create valid leasehold interests in favor of the Owner Trustee in the Equipment Interest and the Foundation Interest, respectively, under the laws of the Commonwealth of Virginia;
(s) assuming that the Owner Trustee maintains possession and control over the Collateral (as defined in the Pledge Agreement) in accordance with the applicable provisions of the Uniform Commercial Code, the Pledge Agreement creates a valid and perfected security interest in such Collateral as contemplated thereby subject to the provisions of Section 9-306 of the Uniform Commercial Code;
(t) assuming that the Owner Trustee maintains possession and control over the Deposit in accordance with the provisions of the Deposit Agreement, the Deposit Pledge Agreement creates a valid and enforceable pledge of the Deposit as contemplated thereby;
(u) assuming that the Loan Agreement has been duly authorized, executed and delivered by each party thereto, the Loan Agreement creates a valid (subject to the rights of quiet enjoyment of Old Dominion under Section 9 hereof and Section 4.2 of the Equipment Operating Lease) security interest in favor of the Agent in the Equipment Interest. No filing, recording, registration or notice with any federal or state Governmental Entity is necessary to establish or, except for such filing and recording as have been made pursuant to Section 4.20 hereof and for the performance of the terms of the Loan this Agreement, to perfect the Agent's security interest in the Equipment Interest;
(v) assuming that the Leasehold Mortgage has been duly authorized, executed and delivered by each of the parties thereto, the Leasehold Mortgage creates a valid (subject to the rights of quiet enjoyment of Old Dominion under Section 9 hereof and Section 4.2 of the Foundation Operating Lease) lien in favor of the Agent for the benefit of the Original Lenders in the Foundation Interest. No filing, recording, registration or notice with any federal or state Governmental Entity is necessary to establish or, except for such filings and recordings as have been made pursuant to Section 4.20 and for the performance of the terms of the Leasehold Mortgage, to perfect the Agent's security interest in the Foundation Interest;
(w) Old Dominion's audited financial statements for the fiscal year ended December 31, 1994, including the footnotes thereto, present fairly the consolidated financial position, results of operations and cash flow for Old Dominion as of and for the periods stated and have been prepared in conformity with GAAP on a consistent basis; and since December 31, 1994 no material adverse change has occurred in the financial condition, business or operations of Old Dominion and no event has occurred since December 31, 1994 which would materially adversely affect the ability of Old Dominion to perform its obligations under this Agreement or any other Operative Document to which it is a party;
(x) Old Dominion owns or possesses or has obtained all material governmental franchises, licenses and permits necessary to lease or own, as the case may be, and to operate, its properties and to carry on its business as presently conducted where its ownership or lease of substantial properties or the conduct of its business requires such franchises, licenses or permits and where the failure to do so would materially adversely affect its financial condition, business or operations;
(y) Old Dominion has filed all federal, state and local tax returns which are required to be filed by it and has paid (prior to their delinquency dates) any taxes which have become due pursuant to such returns or pursuant to any assessment received by it (other than taxes and assessments the payment of which is being contested in good faith by Old Dominion, with adequate reserves, in the aggregate, for the payment of which having been set aside on the books of Old Dominion), and Old Dominion has no Actual Knowledge of any actual or proposed deficiency or additional assessment in connection therewith which, either in any case or in the aggregate, would materially adversely affect Old Dominion's financial condition, business or operations; and any charges, accruals and reserves on the books of Old Dominion with respect to federal, state and local taxes for all open years, and for the current fiscal year, make adequate provision for any unpaid tax liabilities for such periods;
(z) the qualification of any of the Agent, the Original Lenders, the Owner Trustee, the Trust Company or the Owner Participant for admission to do business under the laws of the Commonwealth of Virginia or any political subdivision thereof is not required in connection with the execution and delivery of the Operative Documents, the making of the Equity Investment or the Loans or, prior to termination of the Equipment Operating Lease or the Foundation Operating Lease, the performance by the Agent, any Lender, the Owner Trustee or the Owner Participant of this Agreement or any other Operative Document to which it is a party;
(aa) Old Dominion has validly submitted to the jurisdiction of the Supreme Court of the State of New York, New York County and the United States District Court for the Southern District of New York;.
Appears in 1 contract
Sources: Interconnection and Operating Agreement (Dominion Resources Inc /Va/)
Representations and Warranties of Old Dominion. Old Dominion represents and warrants that, as of the Closing Datedate hereof:
(a) Old Dominion is a wholesale power supply utility aggregation cooperative duly organized, validly existing, and in good standing under the laws of the Commonwealth of Virginia, is duly licensed or qualified and in good standing in each jurisdiction in which the failure so to qualify would have a material adverse effect on its financial condition, business or operations or its ability to enter into and perform its obligations under this Agreement or any of the Loan Refinancing Documents and the other Operative Documents to which it is a party, and has the corporate power and authority to carry on its business as now conducted and to enter into and perform its obligations under this Agreement and each of the other Operative Documents to which it is a partythereunder;
(b) this Agreement the Loan Refinancing Documents and each of the other Operative Documents to which it is a party have been duly authorized, executed and delivered by Old Dominion and, assuming the due authorization, execution and delivery by each other party hereto and thereto, constitute constitutes the legal, valid and binding obligations of Old Dominion, enforceable against Old Dominion in accordance with their respective terms, except as the same may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, arrangement, moratorium or other laws relating to or affecting the rights of creditors generally and by general principles of equity;
(c) the execution, delivery and performance by Old Dominion of this Agreement the Loan Refinancing Documents and each of the other Operative Documents to which it is a party, the consummation by Old Dominion of the transactions contemplated hereby thereby and thereby, and compliance by Old Dominion with the terms and provisions hereof and thereof, do not and will not contravene any Applicable Law binding on Old Dominion or its property, or its certificate of incorporation or by-laws, or contravene the provisions of, or constitute a default by Old Dominion under, or result in the creation of any Lien (except for Permitted Liens) upon the property of Old Dominion or any indenture, mortgage or other material contract, agreement or instrument to which Old Dominion is a party (including, without limitation, the Clover Agreements, the Old Dominion Indenture, the Pollution Control Assets Lease and the Conveyance and Security Agreement, dated as of December 15, 1994, between the Pollution Control Assets Lessor and Old Dominion) or by which Old Dominion or any of its property is bound;
(d) no authorization or approval or other action by, and no notice to or filing with, any Governmental Entity is required (A) for the due execution, delivery or performance by Old Dominion of this Agreement the Loan Refinancing Documents or the other Operative Documents to which it is a party or (B) to be obtained by Old Dominion, the Owner Trustee, or the Owner Participant with respect to the use, occupancy, possession, operation, maintenance, ownership, lease, alteration or repair of Clover Unit 1 prior to termination of the Term of the Equipment Operating Lease or the Foundation Operating Lease in accordance with the Operative Documents, or, without regard to any other transactions of the Owner Participant and the Owner Trustee and assuming that neither the Owner Participant or the Owner Trustee or any Affiliate of any of them is an "electric utility" or a "public utility" or a "public utility holding company" under any Applicable Law immediately prior to the Closing, with respect to the participation by Owner Trustee or the Owner Participant in the transactions contemplated by this Agreement and the Loan Refinancing Documents or the other Operative Documents, other than those which have already been duly obtained and other than (i) the FERC Order and the Virginia Commission Order which have been obtained, (ii) any action of the FERC or the Virginia Commission which may be required in connection with the substitution of Qualifying Security pursuant to Section 7.6 hereof or a Qualifying Letter of Credit, (iii) the filing by the Owner Participant and the Owner Trustee of a Form U-7D with the Securities and Exchange Commission under Rule 7(d) of the Holding Company Act, (iv) as may be required in connection with any refinancing of the Loan Certificates or the issuance of Additional Loan Certificates, (vii) as may be required under Applicable Law providing for the supervision or regulation of the Owner Participant or the Owner Trustee, (viiii) as may be required with respect to the Owner Participant or the Owner Trustee as a result of investing, lending or other commercial activity in which the Owner Trustee or the Owner Participant is or may be engaged other than the transactions contemplated hereby by the Loan Refinancing Documents or by any of the other Operative Documents, (viiiv) as may be required under existing Applicable Laws to be obtained, given, accomplished or renewed from time to time in connection with the maintenance or operation of Clover Unit 1 and which are routine in nature or which cannot be obtained, or are not normally applied for, prior to the time they are required, and which Old Dominion has no reason to believe will not be timely obtained, (viii) as may be required in consequence of any transfer of ownership of the Trust Estate by the Owner Trustee or any relinquishment of use or operation of Clover Unit 1 by Old Dominion or (ixv) as may be required under any Applicable Law enacted or adopted after the date hereof;
(e) no approval or consent of Virginia Power (except as have been obtained), the Pollution Control Assets Lessor, the Indenture Trustee or any holders of Old Dominion's Bonds is required in connection with the transactions contemplated by the Loan Refinancing Documents or the other Operative Documents;
(f) neither (i) consummation of the transactions to be consummated on the Closing Date, (ii) except as provided in Section 6.2 and 6.3 of the Equipment Head Lease and Section 6.2 and 6.3 of the Foundation Head Lease, the exercise by Old Dominion of the Purchase Option and the Foundation Purchase Option or the Service Contract Option on the Expiration Date or (iii) any transfer of the Beneficial Interest in accordance with Section 5.1 prior to termination of the Equipment Operating Lease or the Foundation Operating Lease, gives rise, or will give rise, to a right by Virginia Power of first refusal, or right to consent, under Section 15.02 or 15.03 of the Clover Operating Agreement or Section 17.02 or 17.03 of the Clover Ownership Agreement;
(g) there is no pending or, to the knowledge of Old Dominion, threatened action, suit, investigation or proceeding against Old Dominion before any Governmental Entity which, if determined adversely to it, would materially adversely affect Old Dominion's financial condition, business or operations or its ability to perform its obligations hereunder under the Loan Refinancing Documents or under the other Operative Documents to which it is a party;
(g) no Event of Default, Event of Loss or event that with the passage of time or giving of notice or both would constitute an Event of Default or Event of Loss has occurred and is continuing;
(h) the insurance (including all related endorsements) required by Section 11 of the Equipment Operating Lease and the Foundation Operating Lease is in full force and effect and all premiums thereon are current;
(i) the chief executive office and principal place of business of Old Dominion and the office where Old Dominion will keep its corporate records concerning the Clover Unit 1, the Clover Real Estate and the Operative Documents is located at Glen Allen, Virginia;
(j) no Event of Default, Event of Loss (other than a Regulatory Event of Loss) or event that with the passage of time or giving of notice or both would constitute an Event of Default or Event of Loss (other than a Regulatory Event of Loss) has occurred and is continuing;
(k) no event of default or event of loss has occurred and is continuing under the Pollution Control Assets Lease;
(lj) no event of default has occurred and is continuing under the Old Dominion Indenture;
(mk) Old Dominion is not an "investment company" or an "affiliated person" of an "investment company" within the meaning of the Investment Company Act of 1940;
(n) neither Old Dominion nor anyone authorized by it has directly or indirectly offered or sold any interest in the Beneficial Interest or the Loans or any part thereof, or in any similar security or lease, or in any security or lease the offering of which for the purposes of the Securities Act would be deemed to be part of the same offering as the offering of the Beneficial Interest or the Loans or any part thereof or solicited any offer to acquire any of the same in violation of the registration requirements of Section 5 of the Securities Act. The representation and warranty in the preceding sentence is made by Old Dominion in reliance upon, and is subject to the accuracy of, the representation and warranty made by the Owner Participant in Section 3.2(h) hereof;
(ol) Old Dominion is not in default in any respect, and no condition exists that with notice or lapse of time or both would constitute a default in any respect, under the Clover Agreements or any mortgage, indenture or other material contract, agreement or instrument to which Old Dominion is a party or by which Old Dominion or its property is bound, in any such case where any such default, individually or in the aggregate, could reasonably be expected to have a material adverse effect on (i) its financial condition, business or operations or (ii) its ability to enter into and perform its obligations under this Agreement the Loan Refinancing Documents or any the other Operative DocumentDocuments to which it is a party;
(p) the Unit 1 Equipment and the Unit 1 Foundation are located on the Real Property;
(qm) Old Dominion has (i) good and valid title, as a tenant-in-common with Virginia Power to the Retained Assets free and clear of all Liens other than Permitted Liens, (ii) a valid leasehold interest, to the extent of a 50% undivided interest, in the Pollution Control Assets free and clear of all Liens other than Permitted Liens, and (iii) good and marketable title as a tenant-in-common with Virginia Power in the Clover Real Estate;
(rn) the Equipment Head Lease and the Foundation Head Lease create valid leasehold interests in favor of the Owner Trustee in the Equipment Interest and the Foundation Interest, respectively, under the laws of the Commonwealth of Virginia;
(so) assuming that the Owner Trustee maintains possession and control over the Deposit in accordance with the provisions of the Deposit Agreement, the Deposit Pledge Agreement creates a valid and enforceable pledge of the Deposit as contemplated thereby;
(p) assuming that the Owner Trustee maintains possession and control over the Collateral (as defined in the Pledge Agreement) in accordance with the applicable provisions of the Uniform Commercial Code, the Pledge Agreement creates a valid and perfected security interest in such Collateral as contemplated thereby thereby, subject to the provisions of Section 9-306 315 of the Uniform Commercial Code;
(t) assuming that the Owner Trustee maintains possession and control over the Deposit in accordance with the provisions of the Deposit Agreement, the Deposit Pledge Agreement creates a valid and enforceable pledge of the Deposit as contemplated thereby;
(uq) assuming that the Loan Agreement has been duly authorized, executed and delivered by each party thereto, the Loan Agreement creates a valid (subject to the rights of quiet enjoyment of Old Dominion under Section 9 hereof of the Participation Agreement and Section 4.2 of the Equipment Operating Lease) security interest in favor of the Agent in the Equipment Interest. No filing, recording, registration or notice with any federal or state Governmental Entity is necessary to establish or, except for such filing filings and recording recordings as have been made pursuant prior to Section 4.20 the date hereof and for the performance of the terms of the Loan Agreement, to perfect the Agent's security interest in the Equipment Interest;
(vr) assuming that the Leasehold Mortgage has been duly authorized, executed and delivered by each of the parties thereto, the Leasehold Mortgage creates a valid (subject to the rights of quiet enjoyment of Old Dominion under Section 9 hereof of the Participation Agreement and Section 4.2 of the Foundation Operating Lease) lien in favor of the Agent for the benefit of the Original Lenders in the Foundation Interest. No filing, recording, registration or notice with any federal or state Governmental Entity is necessary to establish or, except for such filings and recordings as have been made pursuant to Section 4.20 of the Participation Agreement and for the performance of the terms of the Leasehold Mortgage, to perfect the Agent's security interest in the Foundation Interest;
(ws) Old Dominion's audited financial statements for the fiscal year ended December 31, 19942001, including the footnotes thereto, present fairly the consolidated financial position, results of operations and cash flow for Old Dominion as of and for the periods stated and have been prepared in conformity with GAAP on a consistent basis; and since December 31, 1994 2001 no material adverse change has occurred in the financial condition, business or operations of Old Dominion and no event has occurred since December 31, 1994 2001 which would materially adversely affect the ability of Old Dominion to perform its obligations under this Agreement the Loan Refinancing Documents or any the other Operative Document to which it is a party;
(xt) Old Dominion owns or possesses or has obtained all material governmental franchises, licenses and permits necessary to lease or own, as the case may be, and to operate, its properties and to carry on its business as presently conducted where its ownership or lease of substantial properties or the conduct of its business requires such franchises, licenses or permits and where the failure to do so would materially adversely affect its financial condition, business or operations;
(yu) Old Dominion has filed all federal, state and local tax returns which are required to be filed by it and has paid (prior to their delinquency dates) any taxes which have become due pursuant to such returns or pursuant to any assessment received by it (other than taxes and assessments the payment of which is being contested in good faith by Old Dominion, with adequate reserves, in the aggregate, for the payment of which having been set aside on the books of Old Dominion), and Old Dominion has no Actual Knowledge of any actual or proposed deficiency or additional assessment in connection therewith which, either in any case or in the aggregate, would materially adversely affect Old Dominion's financial condition, business or operations; and any charges, accruals and reserves on the books of Old Dominion with respect to federal, state and local taxes for all open years, and for the current fiscal year, make adequate provision for any unpaid tax liabilities for such periods;
(zv) the qualification of any of the Agent, the Original Lenders, the Owner Trustee, the Trust Company or the Owner Participant for admission to do business under the laws of the Commonwealth of Virginia or any political subdivision thereof is not required in connection with the execution and delivery of the Loan Refinancing Documents or the other Operative Documents, the making of the Equity Investment Loans or the Loans or, prior to termination of the Equipment Operating Lease or the Foundation Operating Lease, the performance by the Agent, any Lender, the Owner Trustee or the Owner Participant of this Agreement the Loan Refinancing Documents or any the other Operative Document Documents to which it is a party;
(aaw) Old Dominion has validly submitted to the jurisdiction of the Supreme Court of the State of New York, New York County and the United States District Court for the Southern District of New York;
(x) the choice by Old Dominion of the laws of the State of New York to govern the Loan Refinancing Documents and the other Operative Documents to which Old Dominion is a party and which are expressed to be governed by the laws of the State of New York is valid and binding under the Applicable Laws of the Commonwealth of Virginia, and a court in the Commonwealth of Virginia would uphold such choice of law in a legal proceeding to enforce the Loan Refinancing Documents and the other Operative Documents to which Old Dominion is a party brought in such court, subject to the enforceability of security documents being subject to the laws applicable to or affecting the collateral provided in respect thereof;
(y) the use by Old Dominion of the proceeds of the Loan Certificates will not violate or result in a violation of Section 7 of the Exchange Act, or any regulations issued pursuant thereto, including, without limitation, Regulations G, T, U and X of the regulations of the Federal Reserve System;
(z) performance by any of the Agent, any Lender, the Owner Trustee, or the Owner Participant of any action required under the Loan Refinancing Documents or the other Operative Documents will not violate any Applicable Law of the Commonwealth of Virginia or any political subdivision thereof;
(aa) Old Dominion is an "electric utility company," but is not a "holding company" or a "subsidiary company" of a "holding company" or an "affiliate" of a "holding company" within the meaning of the Holding Company Act; and
(bb) the terms of the Series 2002 Loan Certificates are in compliance with Section 2.11 of the Loan Agreement and Section 10.2 of the Participation Agreement.
Appears in 1 contract
Sources: Participation Agreement (Old Dominion Electric Cooperative)