DEPOSIT PLEDGE AGREEMENT
Dated as of February 29, 1996
between
OLD DOMINION ELECTRIC COOPERATIVE,
as Pledgor
and
STATE STREET BANK AND TRUST COMPANY,
not in its individual capacity, but
solely as Owner Trustee, as Pledgee
CLOVER UNIT 1 GENERATING FACILITY
AND
COMMON FACILITIES
DEPOSIT PLEDGE AGREEMENT
This DEPOSIT PLEDGE AGREEMENT, dated as of February 29, 1996
(this "Agreement"), between OLD DOMINION ELECTRIC COOPERATIVE, a wholesale power
supply cooperative, organized under the laws of the Commonwealth of Virginia, as
pledgor (the "Pledgor"), and STATE STREET BANK AND TRUST COMPANY, a
state-chartered trust Company organized and existing under the laws of the
Commonwealth of Massachusetts not in its individual capacity, but solely as
Owner Trustee under the Trust Agreement, as pledgee (the "Pledgee").
WHEREAS, the Pledgor, the Pledgee, First Union National Bank
of Florida and Utrecht-America Finance Co., have entered into a Participation
Agreement dated as of February 29, 1996 (the "Participation Agreement");
WHEREAS, the Pledgor, as lessee, and the Pledgee, as lessor
have entered into the Equipment Operating Lease and the Foundation Operating
Lease; and
WHEREAS, the Pledgor has deposited the Deposit with
Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland", New
York Branch (the "Issuer"), pursuant to the Deposit Agreement, dated as of
February 29, 1996 (the "Deposit Agreement"), which Deposit is evidenced by the
Certificate of Deposit and which Deposit the Pledgor is willing to pledge to the
Pledgee to secure its obligations under the Equipment Operating Lease and the
Foundation Operating Lease.
NOW, THEREFORE, in consideration of the mutual agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. DEFINED TERMS.
Capitalized terms used in this Agreement and not otherwise defined
herein shall have the respective meanings specified in Appendix A to the
Participation Agreement. All references to sections herein are to sections of
this Agreement unless otherwise indicated and the words "herein", "hereof" and
"hereunder" and other words of similar import refer to this Agreement as a whole
and not to any particular section or other subdivision.
SECTION 2. PLEDGE.
SECTION 2.1 PLEDGE OF DEPOSIT AND DEPOSIT AGREEMENT. To secure the
Secured Claims (defined below), the Pledgor hereby transfers, assigns and
pledges to the Pledgee for its benefit all of the Pledgor's right, title and
interest in the Deposit (including the Certificate of Deposit) and the Deposit
Agreement, including, without limitation, the right of the Depositor to receive
all amounts payable under the Deposit Agreement, to give or receive any notice,
warrant, waiver or approval or take any other action under the Deposit Agreement
(the
"Pledged Collateral"). The Pledged Collateral will also include the Certificate
of Deposit and any other instruments or certificates evidencing the Deposit and
all interest, cash, instruments or other property from time to time received,
receivable or otherwise distributed in respect of or in exchange for, any or all
of the Deposit and all proceeds of the Deposit. The Pledgee acknowledges receipt
of the Deposit and the Certificate of Deposit in accordance with this Agreement
and agrees to hold such Deposit and the Certificate of Deposit in accordance
with the terms of this Agreement.
SECTION 3. NETHERLANDS LAW.
To the extent that a court would hold that Netherlands law is
applicable to the assignment, transfer or pledge of the Pledged Collateral or to
the creation of another security right in the Pledged Collateral and that such
assignment, transfer, and pledge or other security right is invalid and/or
unenforceable in The Netherlands, the Pledgor hereby creates a right of pledge
("vestigt een pandrecht") in favor of Pledgee, pursuant to articles 3:94,
paragraph 1 and 3:236, ▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇▇ Civil Code on the rights of
Pledgor against the Issuer, as such rights may exist or come to exist hereafter
against the Issuer pursuant to or under the Pledged Collateral as security for
the Secured Claims, which right of pledge the Pledgee hereby accepts.
In accordance with article 3:242, Netherlands Civil Code, the Pledgee
is hereby irrevocably authorized to repledge ("herverpanden") the Pledged
Collateral in favor of the Agent, acting on behalf of and for the benefit of
itself and the Lenders, to secure the Pledgee's obligations to the Agent and the
Lenders mentioned in the Granting Clause of the Loan Agreement.
SECTION 4. SECURED CLAIMS.
The purpose of this pledge is to secure the Pledgor's obligation
(whether now or hereafter existing) under the Equipment Operating Lease and the
Foundation Operating Lease to pay Basic Rent, Foundation Basic Rent, the
Purchase Option Price, the Foundation Purchase Option Price, Walk Away Payment
and Foundation Walk Away Payment, Termination Value, and amounts defined by
reference to Termination Value under the Equipment Operating Lease and
Foundation Operating Lease. All of the foregoing obligations shall be referred
to as "Secured Claims."
Without limiting the generality of the foregoing, this Agreement
secures the payment of all amount that constitute part of the Secured Claims and
would be payable to the Pledgee under the Equipment Operating Lease and the
Foundation Operating Lease but for the fact that they are unenforceable or not
allowable due to (a) the existence of a bankruptcy, insolvency, reorganization,
arrangement or moratorium involving the Pledgor or (b) other laws relating to or
effecting the enforcement of creditors' rights generally against the Pledgor.
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SECTION 5 REMEDIES
SECTION 5.1 RIGHTS OF THE PLEDGEE. Upon the happening and during the
occurrence of any Event of Default under the Equipment Operating Lease or the
Foundation Operating Lease, the Pledgee may (in addition to any other actions
permitted under the other Operative Documents or by statute or at law or in
equity) exercise any rights or remedies granted hereunder. The Pledgee may
enforce the right of pledge created hereby to the fullest extent possible in
accordance with, and shall be entitled to all rights, remedies and benefits
afforded to pledgees under, the laws of the State of New York.
SECTION 5.2 FILINGS. The Pledgor agrees that it shall, at its own
expense, execute and deliver all financing statements necessary to perfect the
Pledgee's and any assignee's interest in the Pledged Collateral or any
assignment or other document reasonably requested by the Pledgee or the Agent to
perfect, protect, enforce, or otherwise give effect to the Pledgee's rights and
remedies hereunder.
SECTION 5.3 ATTORNEY-IN-FACT. If the Pledgor is unable or unwilling to
sign such assignments, financing statements or other documents and to file
financing statements or other public notices or recording with the appropriate
authorities, as and when reasonably requested by counsel to the Pledgee, the
Pledgor hereby authorizes the Pledgee to sign as the Pledgor's true and lawful
agent and attorney-in-fact any such assignments, financing statement or other
documents and to make any such filings.
SECTION 5.4 THE PLEDGEE'S DUTIES. The powers conferred on the Pledgee
hereunder are solely to protect its interest in the Pledged Collateral and shall
not impose any duty upon it to exercise any such powers. Except for the safe
custody of the Pledged Collateral (including the Certificate of Deposit) in its
possession and the accounting for monies actually received by it hereunder, the
Pledgee shall have no duty as to the Pledged Collateral or other matters
relative to the Pledged Collateral, whether or not the Pledgee has or is deemed
to have knowledge of such matters, or as to the taking of any necessary steps to
preserve rights against any parties or any other rights pertaining to the
Pledged Collateral; PROVIDED, HOWEVER, that, if delivery or presentment of the
Pledged Collateral to any other Person is required in connection with any
distribution in respect of the Pledged Collateral, the Pledgee shall, at the
Pledgor's expense, cooperate to effect such delivery. The Pledgee shall be
deemed to have exercised reasonable care in the custody and preservation of the
Pledged Collateral in its possession if such Pledged Collateral is accorded
treatment substantially equal to that which Pledgee accords similar property.
SECTION 6. RELEASE OF PLEDGED COLLATERAL; DISCHARGE.
SECTION 6.1 RELEASE OF PLEDGED COLLATERAL. Provided no Payment Default
or Event of Default under the Equipment Operating Lease or the Foundation
Operating Lease shall have occurred and be continuing, the Pledgee agrees that,
subject to the provisions of Section 2.4 of the Deposit Agreement, the Pledgor
shall be entitled to receive (a) all amounts of interest payable by the Issuer
of the Deposit pursuant to Section 2.2 of the Deposit Agreement on the
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dates and in the amounts paid under the Deposit Agreement, (b) all amounts
payable by the Issuer in respect of a prepayment of the Deposit in consequence
of a termination of the Equipment Operating Lease and the Foundation Operating
Lease pursuant to Section 10, 13, 14, 15, 17 or 18 of each thereof, PROVIDED
that the Pledgor shall have discharged all of its obligations under such
Sections of the Equipment Operating Lease and the Foundation Operating Lease to
pay all amounts of Termination Value or amounts defined by reference thereto
thereunder, and (c) all amounts payable by the Issuer in respect of any other
repayment of the Deposit pursuant to the Deposit Agreement, PROVIDED that the
Pledgor shall have discharged all of its obligations under the Operative
Documents in respect of such prepayment.
Section 6.2 DISCHARGE. The Pledgee agrees that when the Secured Claims
shall have been fully paid and discharged, the Pledgee, at the written request
and cost of the Pledgor, shall immediately confirm the release of the Pledged
Collateral of any pledge, Lien and security interest created pursuant to this
Agreement and of all claims that the Pledgee may have hereunder.
SECTION 7. REPRESENTATIONS AND WARRANTIES.
SECTION 7.1 HOLDER. The Pledgor represents and warrants that it is the
legal and beneficial owner of the Deposit (including the Certificate of Deposit)
and that the Deposit (including the Certificate of Deposit) is not subject to
any pledge, lien or security interest or any other right of any third party,
except as provided by the Operative Documents.
SECTION 7.2 RIGHTS IN THE DEPOSIT. The Pledgor represents and warrants
that assuming that the Issuer maintains possession control over the Deposit, the
pledge of the Deposit under this Agreement vest in the Pledgee a valid pledge of
in the Deposit as contemplated by this Agreement.
SECTION 8. COVENANT OF THE PLEDGOR.
The Pledgor shall not, without the prior written consent of the Pledgee
(a) sell, assign, pledge, or otherwise dispose of, or grant any option with
respect to, the Deposit (including the Certificate of Deposit) or (b) create or
permit any Lien upon or with respect to the Deposit (including the Certificate
of Deposit) or any other Pledged Collateral, except for the pledge created
hereby.
SECTION 9. MISCELLANEOUS.
SECTION 9.1. AMENDMENTS AND WAIVERS. No term, covenant, agreement or
condition of this Agreement may be terminated, amended or compliance therewith
waived (either generally or in a particular instance, retroactively or
prospectively) except by an instrument or instruments in writing executed by the
party against whom enforcement of such change is
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sought.
SECTION 9.2. NOTICES. Unless otherwise expressly specified or permitted
by the terms hereof, all communications and notices provided for herein to a
party hereto shall be in writing or by a telecommunications device capable of
creating a written record, and any such notice shall become effective (a) upon
personal delivery thereof, including, without limitation, by overnight mail or
courier service, (b) in the case of notice by United States mail, certified or
registered, postage prepaid, return receipt requested, upon receipt thereof, or
(c) in the case of notice by such a telecommunications device, upon transmission
thereof, provided such transmission is promptly confirmed by either of the
methods set forth in clauses (a) or (b) above, in each case addressed to such
party at its address set forth below or at such other address as such party may
from time to time designate by written notice to the other parties hereto:
If to the Pledgor:
Old Dominion Electric Cooperative
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Vice President of Accounting and Finance
If to the Pledgee:
State Street Bank and Trust Company
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Manager - Corporate Trust
with a copy to the Agent:
Utrecht-America Finance Co.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (212)
Attention: Corporate Finance Department
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SECTION 9.3. SURVIVAL. All warranties, representations, indemnities and
covenants made by either party hereto, herein or in any certificate or other
instrument delivered by either such party or on the behalf of either such party
under this Agreement shall be considered to have been relied upon by the other
party hereto and shall survive the consummation of the transactions contemplated
hereby on the Closing Date regardless of any investigation made by either party
or on behalf of either party.
SECTION 9.4. SUCCESSORS AND ASSIGNS. (a) This Agreement shall be
binding upon and shall inure to the benefit of, and shall be enforceable by, the
parties hereto and their respective successors and assigns as permitted by and
in accordance with the terms hereof. Each time a successor Owner Trustee is
appointed in accordance with the terms of the Trust Agreement and Section 5.5 of
the Participation Agreement, such successor Owner Trustee shall, without further
act, succeed to all rights, duties, immunities and obligations of the
predecessor Owner Trustee hereunder, and the predecessor Owner Trustee shall be
released from all further duties and obligations hereunder, all without the
necessity of any consent or approval by the Pledgor and without in any way
altering the terms of this Agreement or the rights or obligations of the Pledgee
hereunder. The Pledgor shall, at its expense (except as otherwise provided in
Section 5.5 of the Participation Agreement), upon receipt of written notice of
the appointment of a successor Owner Trustee under the Trust Agreement, promptly
make such modifications and changes to reflect such appointment as shall be
reasonably requested by such successor Owner Trustee in any instruments relating
to this Agreement, all in form and substance reasonably satisfactory to such
successor Owner Trustee.
(b) Except as expressly provided herein or in any other
Operative Document, the Pledgor may not assign its interests herein without the
consent of the Pledgee. Except as expressly provided in the Operative Documents,
the Pledgee may not assign its interests herein during the Term of the Equipment
Operating Lease without the consent of the Pledgor.
SECTION 9.5. BUSINESS DAY. Notwithstanding anything herein to the
contrary, if the date on which any payment is to be made pursuant to this
Agreement is not a Business Day, the payment otherwise payable on such date
shall be payable on the next succeeding Business Day with the same force and
effect as if made on such scheduled date and (provided such payment is made on
such succeeding Business Day) no interest shall accrue on the amount of such
payment from and after such scheduled date to the time of such payment on such
next succeeding Business Day.
SECTION 9.6. GOVERNING LAW. THIS AGREEMENT SHALL BE IN ALL RESPECTS
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE.
SECTION 9.7. SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
Applicable Law, but if any provision of this Agreement shall be prohibited by or
invalid under Applicable Law, such
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provision shall be ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining provisions
of this Agreement.
SECTION 9.8. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each executed counterpart constituting an original but
all together only one Agreement.
SECTION 9.9. HEADINGS. The headings of the sections of this Agreement
are inserted for purposes of convenience only and shall not be construed to
affect the meaning or construction of any of the provisions hereof.
SECTION 9.10. FURTHER ASSURANCES. Each party hereto will promptly and
duly execute and deliver such further documents to make such further assurances
for and take such further action reasonably requested by any party to whom such
first party is obligated, all as may be reasonably necessary to carry out more
effectively the intent and purpose of this Agreement.
SECTION 9.11. LIMITATIONS OF LIABILITY. It is expressly understood and
agreed by and between the Pledgor and the Pledgee and their respective
successors and permitted assigns, that all representations, warranties and
undertakings of the Pledgee hereunder shall be binding upon the Pledgee only in
its capacity as Owner Trustee under the Trust Agreement, and neither the Pledgee
in its individual capacity nor any past, present or future Affiliate, partner,
officer, director, owner, shareholder, agent or employee of it or in any thereof
or of any partner thereof or their legal representatives, successors or assigns
shall be liable for any breach thereof; and all Persons having any claim against
the Pledgee by reason of the transactions contemplated hereby shall look only to
the Trust Estate for payment or satisfaction thereof.
SECTION 9.12. EFFECTIVENESS OF AGREEMENT. This Agreement has been dated
as of the date first above written for convenience only. This Agreement shall be
effective on the date of execution and delivery by each of the Pledgee and the
Pledgor.
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IN WITNESS WHEREOF, the Pledgor and the Pledgee have caused
this Deposit Pledge Agreement to be duly executed and delivered by their
respective officers thereunto duly authorized.
OLD DOMINION ELECTRIC COOPERATIVE,
as Pledgor
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President of Accounting
and Finance
Date: March 1, ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ BANK AND TRUST
COMPANY, not in its
individual capacity, but
solely as Owner Trustee
under the Trust Agreement,
as Pledgee
By:/s/ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
▇. ▇▇▇▇▇▇ ▇▇▇▇▇
Vice President
Date: March 1, 1996
Acknowledged by:
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND", NEW YORK BRANCH
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ /s/ ▇.▇. DEN ▇▇▇▇
---------------------------- ------------------------
Name: Name: ▇.▇. Den ▇▇▇▇
Title: Vice President Title: Managing Director
Date: March 1, 1996 Date: March 1, 1996