SUBORDINATED DEED OF TRUST
AND SECURITY AGREEMENT
Dated as of July 1, 1996
among
OLD DOMINION ELECTRIC COOPERATIVE,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, TRUSTEE
of Henrico County, Virginia
and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, TRUSTEE
of Henrico County, ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ Unit 2 Generating Facility
and
Common Facilities
SUBORDINATED DEED OF TRUST
AND SECURITY AGREEMENT
This SUBORDINATED DEED OF TRUST AND SECURITY AGREEMENT (this
"Subordinated Deed of Trust") dated as of July 1, 1996, among OLD DOMINION
ELECTRIC COOPERATIVE, a wholesale power supply cooperative organized and
existing under the laws of the Commonwealth of Virginia ("Grantor"), ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ of Henrico County, Virginia, and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ of Henrico County,
Virginia, as Subordinated Trustees (together, "Subordinated Trustees").
WHEREAS, capitalized terms used herein and not otherwise defined shall
have the meanings given them in Appendix A - Definitions which is attached
hereto as part hereof;
WHEREAS, the Clover Real Estate is more particularly described in
Schedule 1 attached hereto and is comprised of, among other things, the Unit 2
Site described in Schedule 2 attached hereto;
WHEREAS, a copy of the Clover Power Station Plat is recorded in the
Halifax Clerk's Office in Plat Book 50, page 18, as corrected in Plat Book __,
page __;
WHEREAS, Grantor and Virginia Power own the Clover Real Estate as
tenants-in-common;
WHEREAS, by the Clover Agreements, Grantor and Virginia Power
established their respective rights and obligations as tenants-in-common of the
Clover Real Estate and of all improvements thereafter to be constructed, and all
personal property thereafter to be situated, on the Clover Real Estate. Such
improvements and personal property held by Grantor and Virginia Power as
tenants-in-common include (a) the Unit 1 Foundation constructed on the ▇▇▇▇ ▇
▇▇▇▇, (▇) the ▇▇▇▇ ▇ Foundation constructed on the Unit 2 Site, (c) the Common
Facilities Foundation constructed on the Common Facilities Site, (d) the Unit 1
Equipment situated on the Unit 1 Site, (e) the ▇▇▇▇ ▇ Equipment situated on the
Unit 2 Site, and (f) the Common Facilities Equipment situated on the Common
Facilities Site;
WHEREAS, as tenants-in-common of such real and personal property, each
of Grantor and Virginia Power holds a 50% undivided interest in such real and
personal property, including the right to nonexclusive possession of all such
real and personal property, subject to (a) in the case of all such real and
personal property, the rights of the other to nonexclusive possession and the
terms and conditions of the Clover Agreements, (b) in the case of the Pollution
Control Assets, the rights, terms and conditions described above in clause (a)
and the rights of the Pollution Control Assets Facility Owner, and (c) in the
case of the Common Facilities, the Unit 1 Site, the Unit 1 Foundation and the
Unit 1 Equipment, the rights, terms and conditions described above in clause (a)
and the rights of the Unit 1 Parties;
WHEREAS, by the Ground Lease and Sublease, Grantor is leasing the
Ground Interest to the Facility Owner, and the Facility Owner simultaneously has
subleased the Ground Interest back to Grantor, upon the terms and conditions of
the Ground Lease and Sublease;
WHEREAS, Grantor has conveyed to the Facility Owner for a term of years
the use and possession of (a) the Foundation Interest by the Head Foundation
Agreement and (b) the Equipment Interest by the Head Equipment Agreement;
WHEREAS, by the Operating Foundation Agreement, the Facility Owner has
conveyed use and possession of the Foundation Interest back to Grantor for a
term of years which shall end prior to the expiration of the term of the Head
Foundation Agreement;
WHEREAS, by the Operating Equipment Agreement, the Facility Owner has
conveyed use and possession of the Equipment Interest back to Grantor for a term
of years which shall end prior to the expiration of the term of the Head
Equipment Agreement;
WHEREAS, although Grantor and the Facility Owner intend that the
Foundation Interest at all times and in all respects be and remain personal
property under Virginia law, they have recorded the Head Foundation Agreement
and are recording the Operating Foundation Agreement in the Halifax Clerk's
Office in order to satisfy the conditions of Section 55-96 of the Code of
Virginia 1950, as amended, in the event that the Foundation Interest is deemed
to be real estate or an interest in real estate for purposes of such Section
55-96;
WHEREAS, the Unit 1 Parties and the Unit 2 Parties shall share equally
all of those rights, and shall be subject equally to having all of those
responsibilities undertaken, which are granted to or imposed upon Grantor with
respect to the Common Facilities Site, the Common Facilities Foundation and the
Common Facilities Equipment, as (a) tenant-in-common with Virginia Power of such
property and (b) a party to the Clover Agreements;
WHEREAS, by the Old Dominion Indenture, as amended and supplemented
from time to time, Grantor granted to Crestar Bank, as Trustee, a Lien and
security interest in, among other things, all of Grantor's rights, title and
interest in, to and under the Clover Real Estate and Clover Unit 2;
WHEREAS, pursuant to the Participation Agreement, Grantor has obtained
from AMBAC the Surety Bond to support its Covered Obligations;
WHEREAS, pursuant to the Guaranty Agreement, Grantor has agreed to
reimburse AMBAC for any payments made under the Surety Bond; and
WHEREAS, Grantor has agreed to secure on a subordinated basis the
Secured Obligations (as defined below) by this Subordinated Deed of Trust as
provided below.
NOW, THEREFORE, THIS SUBORDINATED DEED OF TRUST WITNESSETH, that to
secure (a) Old Dominion's obligations to pay the Covered Obligations to the
extent and only to the extent (x) AMBAC is obligated to pay such Covered
Obligations, (y) a timely
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Demand for Payment is made in accordance with the terms of the Surety Bond, and
(z) AMBAC shall have failed to honor such Demand for Payment, and (b) Old
Dominion's obligations under the AMBAC Guaranty, (items (a) and (b) collectively
referred to hereinafter as the "Secured Obligations"), Grantor does hereby
assign, transfer, grant and convey, with special warranty unto the Subordinated
Trustees, all of Grantor's right, title and interest in Real Property.
PROVIDED, HOWEVER, the foregoing grant and conveyance is, in all
respects, subject, subordinate and inferior in priority, to the following:
(1) the Lien of the Old Dominion Indenture (including, without
limitation, any amendment, supplement, future advance or issuance of additional
indebtedness thereunder);
(2) any indenture, mortgage, deed of trust or similar instrument given
a substitution or replacement of the Old Dominion Indenture;
(3) the Lien of Permitted Encumbrances;
(4) the Lien of the Leasehold Mortgage (including any amendment,
supplement, substitution or replacement thereto);
(5) the Clover Agreements (including any amendment, supplement,
substitution or replacement thereto) and the rights of the parties thereto;
(6) the Clover 1 Documents (including any amendment, supplement,
substitution or replacement thereto) and the rights of the parties thereto
(including, without limitation, respective rights of the parties to quit
enjoyment thereunder);
(7) other than the Subordinated Security Agreement, the other Operative
Documents (including any amendment, supplement, substitution or replacement
thereto) and the rights of the parties thereto (including the respective rights
of the parties to quiet enjoyment thereunder); and
(8) the Pollution Control Assets Lease Documents (including, without
limitation, any amendment, supplement, substitution or replacement thereto) and
the rights of the parties thereto (including, without limitation the respective
rights of the parties to quiet enjoyment thereunder).
The foregoing items 1-8 hereinafter collectively referred to as the "Senior
Documents and Rights."
BUT IN TRUST, NEVERTHELESS, with power of sale, to secure the Secured
Obligations ratably without any such Secured Obligation having priority over any
other Secured Obligation.
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UPON CONDITION that until a Subordinated Deed of Trust Event of Default
(as hereinafter defined in Article VI), neither the Subordinated Trustees nor
any beneficiary hereof shall disturb Grantor's quiet possession and use of the
Subordinated Real Property, and Grantor shall have the further right, without
any release from or consent by the Substituted Trustees or any beneficiary
hereof, to (a) grant one or more rights of way and easements over or in respect
of any portion of the Subordinated Real Estate free and clear of the Lien of
this Subordinated Deed of Trust, or (b) lease or convey one or more portions or
parcels of the Subordinated Real Estate free and clear of the Lien of this
Subordinated Deed of Trust; PROVIDED, HOWEVER, that each grant, lease or
conveyance shall be in accordance with the Clover Agreements.
PROVIDED FURTHER Grantor shall have the right to convey, free and clear
of the Lien of this Subordinated Deed of Trust, legal title to the Subordinated
Real Property to a Person in a transaction characterized as a sale (or lease)
and leaseback, or similar transaction, (the "Permitted Transaction") for United
States commercial law purposes; provided, however, Grantor shall assign,
transfer, grant and convey to the Subordinated Trustees a Lien on the leaseback
interest (or similar interest) granted to Grantor in connection with the
Permitted Transaction which shall be subject, subordinate and inferior in
priority to the Senior Documents and Rights.
PROVIDED ALWAYS, that upon the full payment by Grantor of all amounts
then due and payable under the Guaranty Agreement, or upon the termination of
the Guaranty Agreement in accordance with its terms, Subordinated Trustees
shall, at Grantor's sole cost and expense, execute in recordable form a release
and reconveyance of the Subordinated Real Property unto Grantor.
GRANTOR FURTHER COVENANTS AND AGREES as follows:
ARTICLE I
Incorporation of Recitals
The Recitals set forth above are incorporated in this Article I as if
set forth in this Article I in their entirety.
ARTICLE II
Rules of Construction
All references to Articles and Sections herein are to Articles and
Sections of this Subordinated Deed of Trust unless otherwise indicated. The
words "herein," "hereof" and "hereunder," and other words of similar import,
shall refer to this Subordinated Deed of Trust as a whole and not to any
particular Article, Section or Subsection.
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ARTICLE III
Security Agreement
Section 3.01 SUBORDINATED DEED OF TRUST CONSTITUTES A SECURITY
AGREEMENT. This Subordinated Deed of Trust constitutes a security agreement
under, and in accordance with, the Uniform Commercial Code of Virginia (the
"Virginia UCC") for the benefit of the Subordinated Secured Parties as secured
parties.
Section 3.02 SECURITY AGREEMENT. Grantor grants to the Subordinated
Secured Parties a security interest in the Subordinated Real Property. This
Subordinated Deed of Trust, in addition to constituting a Lien on real estate,
is a security agreement as to any portion of the Subordinated Property that is
deemed to be personal property and shall support any financing statement showing
the Subordinated Secured Parties' subordinated interest as secured parties with
respect thereto.
ARTICLE IV
Incorporation of Statute
This Subordinated Deed of Trust, unless otherwise specified herein,
shall be construed under and in accordance with, and be deemed to incorporate by
reference, the terms of Section 55-59 through Section 55-60 of the Code of
Virginia 1950, as amended (the "Virginia Code"), as in force and in effect on
the date of this Subordinated Deed of Trust, with the following and further
understandings as in such sections provided:
EXEMPTIONS WAIVED.
SUBJECT TO ALL UPON DEFAULT.
RENEWAL, EXTENSION OR REINSTATEMENT PERMITTED.
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ARTICLE V
Any Subordinated Trustee May Act; Substitution of Subordinated Trustees
Any one of Subordinated Trustees hereunder may act at any time upon
designation by the Subordinated Secured Parties. If the Subordinated Secured
Parties, in their sole and absolute discretion, shall desire to have a
substitute trustee or substitute trustees appointed, the Subordinated Secured
Parties are hereby authorized and empowered to appoint, at any time and from
time to time, by an instrument duly executed and acknowledged and filed for
recordation in the Halifax Clerk's Office, a substitute trustee or substitute
trustees, in the name, place and stead of one or more of Subordinated Trustees
initially named herein or subsequently appointed by the Subordinated Secured
Parties, which substitute trustee or trustees shall have all of the rights,
powers and authority, and be charged with all of the duties and
responsibilities, which are conferred or charged upon Subordinated Trustees
initially named herein.
ARTICLE VI
Subordinated Deed of Trust Events of Default
The occurrence of any one or more of the "Subordinated Security
Agreement Events of Default" under Section 3.1 of the Subordinated Security
Agreement shall constitute a Subordinated Deed of Trust Event of Default.
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ARTICLE VII
Foreclosure
If (a) a Subordinated Deed of Trust Event of Default shall have
occurred and be continuing, (b) the Subordinated Secured Parties shall have
commenced the exercise of any remedy under Section 3.2 of the Subordinated
Security Agreement, and (c) the conditions precedent described in Article VIII
hereof shall have been satisfied, the Subordinated Secured Parties may, at their
option and in addition to any other rights and remedies the Subordinated Secured
Parties may have at law or in equity, direct Subordinated Trustees to take
possession of all or any portion of the Subordinated Real Property and proceed
to sell the same as a whole or in parts or parcels, at public auction, for cash
or credit, upon any terms Subordinated Trustees shall deem appropriate. Grantor
consents that such sale may be made of the Subordinated Real Property as a whole
or in parcels, all as Subordinated Trustees in their discretion may determine,
and further consents that the sale may be conducted on or off the Subordinated
Real Property. A bidder's deposit of not more than ten percent (10%) of the sale
price may be required (which, as to any Subordinated Secured Party, may be in
the form of a credit against the unpaid Secured Obligations). Before such sale
at public auction is made, there shall first be advertisement of the time, place
and terms of such sale at least once a week for three successive weeks in the
legal notice section of a newspaper published or having a general circulation in
Halifax County, Virginia. Such advertisements shall set forth all matters
required by the Virginia Code. This is the "advertisement required" by this
Subordinated Deed of Trust and no other or different advertisement shall be
necessary. Subordinated Trustees may act hereunder although they, or either or
them, may have been, may now be or may hereafter be attorney or agent of the
Subordinated Secured Parties as to all or any part of the Secured Obligations or
as to any matter of business whatsoever. Any Subordinated Secured Party may
become the purchaser of all or any portion of the Subordinated Property so sold
and no purchaser shall be required to see to the proper application of the
purchase money. Unless otherwise required by law, Subordinated Trustees shall
apply the proceeds of any such sale as follows: first, to discharge the expenses
of executing the trust, including a reasonable commission to Subordinated
Trustees which shall not exceed two and one-half percent (2 1/2%) of the gross
proceeds of sale; second, to discharge all taxes, levies and assessments,
with costs and interest if they have priority over the Lien of this Subordinated
Deed of Trust, including the due pro rata portion thereof for the current year;
third, to discharge equally and ratably the remaining Secured Obligations,
if any, secured by this Subordinated Deed of Trust pursuant to Section 2 of
the Subordinated Security Agreement, and any Liens of record inferior to this
Subordinated Deed of Trust, with lawful interest; and, fourth, the residue of
the proceeds shall be paid to Grantor or its successors or assigns; PROVIDED,
HOWEVER, that as to such residue Subordinated Trustees shall not be bound by
any conveyance, assignment or Lien of or upon Grantor's equity, without
actual notice thereof prior to distribution. If the Subordinated Secured
Parties instruct Subordinated Trustees to proceed to sell all or any portion of
the Subordinated Property in accordance with the procedure set forth above and
such procedure is terminated prior to such sale by Subordinated Trustees, the
Subordinated Secured Parties shall pay a commission to Subordinated Trustees
in an amount which is customarily paid in Virginia as compensation for such
services rendered by Subordinated Trustees, but not exceeding one quarter
percent (1/4%) of the outstanding balance of the Secured Obligations, and
the amount of such commission paid shall be added to the Secured Obligations
and shall earn interest at the Debt Rate. Subordinated Trustees shall have the
right exercisable in their discretion to postpone such sale of the
Subordinated Property and shall advertise the terms of such postponement
as required by law, but not less than once a week for three successive
weeks in the newspaper or newspapers in which the notice of sale had been
published.
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ARTICLE VIII
Condition Precedent to Remedies
Until (i) all Subordinated Real Property is released from the Lien of
the Old Dominion Indenture and (ii) all obligations under the Operating
Agreements are paid or discharged in full, the Operating Agreements are
terminated and the Liens of the Loan Agreement and the Leasehold Mortgage are
discharged, the Subordinated Secured Parties shall not (x) exercise any rights
or enforce any remedies or assert any claim with respect to the Subordinated
Property under this Subordinated Deed of Trust or the Subordinated Security
Agreement, (y) seek to foreclose the Liens arising pursuant to this Subordinated
Deed of Trust or the Subordinated Security Agreement or sell the Subordinated
Real Property, or (z) take any action, directly or indirectly, or institute any
proceedings, directly or indirectly, with respect to any of the foregoing.
ARTICLE IX
Modification of Senior Documents and Rights
Grantor and the other parties to the Senior Documents may, without
affecting in any manner the subordination of the Lien of this Subordinated Deed
of Trust to the Senior Documents and Rights, at any time or from time to time
and in their absolute discretion, change the manner, place or terms of payment
of amounts due under the Senior Documents and Rights, or amend, modify or
supplement in any way the Senior Documents and Rights to which they are a party,
or exercise or refrain from exercising any other of their rights pursuant
thereto, all without notice to or consent of Subordinated Trustees or the
Subordinated Secured Parties. At Grantor's request, Subordinated Trustees and
the Subordinated Secured Parties shall join in any document, in form and
substance reasonably satisfactory to them, which confirms such subordination.
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ARTICLE X
Control of Remedies
Notwithstanding anything else contained in this Subordinated Deed of
Trust, upon the occurrence and during the continuance of a Subordinated Deed of
Trust Event of Default, AMBAC shall be entitled to control and direct the
enforcement of all rights and remedies granted to the Subordinated Secured
Parties hereunder for the benefit of all Subordinated Secured Parties; PROVIDED,
HOWEVER, that if (a) a Subordinated Obligation is covered under the Surety Bond
and (b) AMBAC fails to pay when due a claim made under the Surety Bond, the
Facility Owner and the Owner Participant shall have the right to appoint a party
to control and direct the enforcement of all rights and remedies under this
Subordinated Deed of Trust.
Subordinated Trustees are entitled to rely on directions given by AMBAC
until they receive written notice from the Subordinated Secured Parties (other
than AMBAC) that the Subordinated Secured Parties have appointed a new party to
control and direct enforcement of rights hereunder.
ARTICLE XI
Waiver of Partition
As permitted by Section 56-90.1 of the Virginia Code, Grantor, on its
behalf and on behalf of its successors and assigns, hereby waives any right,
whether pursuant to statute or common law, to partition the Clover Real Estate,
or any interest therein or portion thereof, and such waiver will continue in
effect until the earlier of (a) termination of the Clover Ownership Agreement
pursuant to Section 16.01 thereof and the Clover Operating Agreement pursuant to
Section 14.01 thereof, in accordance with their respective terms, or (b)
December 31, 2089. Grantor agrees not to commence any action of any kind during
such period seeking any form of partition of the foregoing.
ARTICLE XII
Miscellaneous.
Section 12.1 AMENDMENTS AND WAIVERS. No term, covenant, agreement or
condition of this Subordinated Deed of Trust may be terminated or amended, or
compliance therewith waived (either generally or in a particular instance,
retroactively or prospectively), except by an instrument or instruments in
writing executed by the party against whom enforcement of such change is sought.
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Section 12.2 NOTICES. Unless otherwise expressly specified or permitted
by the terms hereof, all communications and notices provided for herein to a
party hereto shall be in writing or by a telecommunications device capable of
creating a written record, and any such notice shall become effective (a) upon
personal delivery thereof, including, without limitation, by overnight mail and
courier service, (b) in the case of notice by United States mail, certified or
registered, postage prepaid, return receipt requested, upon receipt thereof, or
(c) in the case of notice by such a telecommunications device, upon transmission
thereof, provide such transmission is promptly confirmed by either of the
methods set forth in clauses (a) or (b) above, in each case addressed to such
party at its address set forth below or, at such other address as such party may
from time to time designate by written notice to the other parties hereto:
If to Grantor:
Old Dominion Electric Cooperative
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Vice President of Accounting and Finance
if to the Owner Participant:
EPC Corporation
c/o Chrysler Capital Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: President
If to AMBAC:
AMBAC Indemnity Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
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If to the Facility Owner:
Clover Unit 2 Generating Trust
c/o Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
Section 12.3 SURVIVAL. All warranties, representations, indemnities and
covenants made by any party hereto, herein or in any certificate or other
instrument delivered by either such party or on the behalf of such party under
this Subordinated Deed of Trust, shall be considered to have been relied upon by
the other parties hereto and shall survive the consummation of the transactions
contemplated hereby on the Closing Date regardless of any investigation made by
any such party or on behalf of any such party.
Section 12.4 SUCCESSORS AND ASSIGNS. This Subordinated Deed of Trust
shall be binding upon and shall inure to the benefit of, and shall be
enforceable by, the parties hereto and their respective successors and assigns
as permitted by and in accordance with the terms hereof. Except as expressly
provided herein or in the Subordinated Security Agreement, no party hereto may
assign its interests herein without the consent of the other parties hereto.
Section 12.5 BUSINESS DAY. Notwithstanding anything herein to the
contrary, if the date on which any payment is to be made pursuant to this
Subordinated Deed of Trust is not a Business Day, the payment otherwise payable
on such date shall be payable on the next succeeding Business Day with the same
force and effect as if made on such scheduled date and (PROVIDED such payment is
made on such succeeding Business Day) no interest shall accrue on the amount of
such payment from and after such scheduled date to the time of such payment on
such next succeeding Business Day.
Section 12.6 GOVERNING LAW. THIS SUBORDINATED DEED OF TRUST SHALL IN
ALL RESPECTS BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
COMMONWEALTH OF VIRGINIA INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE.
Section 12.7 SEVERABILITY. Whenever possible, each provision of this
Subordinated Deed of Trust shall be interpreted in such manner as to be
effective and valid under Applicable Law, but if any provision hereof shall be
prohibited by or invalid under Applicable Law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions hereof.
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Section 12.8 HEADINGS. The headings of the Articles and Sections of
this Subordinated Deed of Trust are inserted for purposes of convenience only
and shall not be construed to affect the meaning or construction of any of the
provisions hereof.
Section 12.9 FURTHER ASSURANCE. Each party hereto will promptly and
duly execute and deliver such further documents to make such further assurances
for and take such further action reasonably requested by any party to whom
Grantor is obligated, all as may be reasonably necessary to carry out more
effectively the intent and purpose of this Subordinated Deed of Trust.
Section 12.10 OTHER ACTIONS BY SUBORDINATED TRUSTEES.
Although the parties hereto intend that the Lien of this Subordinated
Deed of Trust be subject to, subordinate and inferior in priority to the Senior
Documents and Rights without further action or writing by the Subordinated
Trustees or the Subordinated Secured Parties, upon the written request of
Grantor or any other party to an Operative Document, the Subordinated Trustees
shall confirm in writing, in recordable form, that this Subordinated Deed of
Trust is subject to, subordinate and inferior in priority to the Senior
Documents and Rights.
Although the parties intend that Grantor has the right to (a) grant one
or more rights of way and easements over or in respect of any portion of the
Real Property and (b) lease or convey one or more portions or parcels of the
Real Property as provided above without further action or writing by the
Subordinated Trustees or the Subordinated Secured Parties, upon the written
request of Grantor, the Subordinated Trustees shall confirm in writing, in
recordable form, that such grant, lease or conveyance is released from, or
otherwise not subject to, the Lien of this Subordinated Deed of Trust. In
connection with executing such release, the Subordinated Trustees are entitled
to rely on a certificate executed by a Responsible Officer of Grantor stating
that such grant, lease or conveyance is in accordance with the Clover Agreements
and this Subordinated Deed of Trust.
Section 2.11 EFFECTIVENESS. This Subordinated Deed of Trust has
been dated as of the date first above written for convenience only. This
Subordinated Deed of Trust shall be effective on the date of execution of
delivery by the Grantor.
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WITNESS the following signature.
OLD DOMINION ELECTRIC COOPERATIVE,
as Grantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
The foregoing instrument was acknowledged before me this 31 day
July, 1996, by ____________, as ___________________ of Old Dominion
Electric Cooperative, a wholesale power supply cooperative organized and
existing under the laws of the Commonwealth of Virginia on behalf of such
Cooperative.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
-------------------
Notary Public
My commission expires:______________________________________
[NOTARIAL SEAL]
APPENDIX A
DEFINITIONS
This Appendix A has been filed separately. See Appendix A to Exhibit 10.46 to
Old Dominion's Form 10-K for the year ended December 31, 1996.
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SCHEDULE 1
TO
SUBORDINATED
MORTGAGE
DESCRIPTION OF THE CLOVER REAL ESTATE
All that certain parcel of land belonging, lying and being in the Roanoke
Magisterial district of Halifax County, Virginia and all appurtenances thereto
belonging, and more particularly described as follows:
AND BEING a portion of the same land and appurtenances acquired by Old Dominion
Electric Cooperative ("Old Dominion") as tenant in common with Virginia Electric
and Power Company ("Virginia Power") by deeds which are recorded in the Halifax
Clerk's Office as follows:
Grantors Date of Deed Deed Book Page Number
Clover Project Corp. May 30, 1990 550 465
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, et al. October 1, 1990 556 367
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, et al. July 3, 1991 570 8
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, et al. March 14, 1991 561 353
▇▇▇▇▇▇ ▇▇▇▇▇, et al. July 24, 1991 569 844
Burlington Industries October 23, 1991 570 13
▇. ▇. ▇▇▇▇▇▇, et al. May 22, 1992 579 412
Norfolk Southern Railway June 9, 1992 579 771
Company
LESS AND EXCEPT, however, those certain parcels of land conveyed by Old Dominion
and Virginia Power by deeds which are recorded in the Halifax Clerk's Office as
follows:
Grantees Date of Deed Deed Book Page Number
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, et al. October 7, 1991 570 10
Commonwealth of Virginia June 23, 1992 580 576
Commonwealth of Virginia December 1, 1994 627 57
Commonwealth of Virginia June 1, 1995 632 255
SUBJECT, however, to all existing exceptions, reservations, easements,
conditions, restrictions, covenants, agreements, limitations and waivers of
record that may apply to the foregoing parcel of land.
A-1
SCHEDULE 2
TO
SUBORDINATED
MORTGAGE
DESCRIPTION OF THE UNIT 2 SITE
ALL those certain parcels of land lying and being in Roanoke Magisterial
district of Halifax County, Virginia, with all appurtenances thereunto
belonging, being those portions of the Clover Real Estate which are outlined and
marked on the Clover Power Station Plat as Parcel I and Parcel II of the Unit 2
Site.
C-1