Exhibit 10.71
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Amendment No. 2 To
Payment Undertaking Agreement
Dated as of December 19, 2002
between
Old Dominion Electric Cooperative
and
Cooperatieve Centrale Raiffeisen-Boerenleenbank
B.A., "Rabobank Nederland", New York Branch
Clover Unit 1 Generating Facility
and
Common Facilities
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AMENDMENT NO. 2 TO PAYMENT UNDERTAKING AGREEMENT
This AMENDMENT NO. 2 TO PAYMENT UNDERTAKING AGREEMENT, dated as of December
19, 2002 (this "Amendment No. 2"), between OLD DOMINION ELECTRIC COOPERATIVE, a
utility aggregation cooperative organized under the laws of the Commonwealth of
Virginia (herein together with its successors and assigns, called "Old
Dominion"), and COOPERATIEVE CENTRALE RAIFFEISEN- BOERENLEENBANK B.A., "RABOBANK
NEDERLAND", New York Branch (herein in such capacity, together with its
successors and assigns, called the "Bank").
WHEREAS, Old Dominion and the Bank entered into a Payment Undertaking
Agreement, dated as of February 29, 1996 (as amended and in effect from time to
time, the "Payment Undertaking Agreement");
WHEREAS, Old Dominion and the Bank entered into Amendment No. 1 to Payment
Undertaking Agreement as of April 1, 1997; and
WHEREAS, the parties hereto wish to further amend the Payment Undertaking
Agreement as set forth herein in connection with the mandatory repayment of Loan
Certificates pursuant to Section 10.2 of the Participation Agreement referred to
below.
NOW, THEREFORE, in consideration of the foregoing premises and of other
good and valuable consideration, receipt of which is hereby acknowledged, the
parties hereto agree as follows:
SECTION 1. DEFINED TERMS
Capitalized terms used in this Amendment No. 2 and not otherwise defined
herein shall have the respective meanings specified in the Payment Undertaking
Agreement or, if not defined therein, in Appendix A to the Participation
Agreement, dated as of February 29, 1996, among Old Dominion, State Street Bank
and Trust Company, not in its individual capacity but solely as Owner Trustee,
First Union National Bank of Florida ("First Union") and Utrecht-America Finance
Co., as amended by Amendment No. 1 to Participation Agreement, dated as of the
date hereof, among such parties (other than First Union), Wachovia Bank,
National Association (formerly known as First Union National Bank, and successor
in interest to First Union) and Cedar Hill International Corp., as Series B
Lender (as amended and in effect from time to time, the "Participation
Agreement").
SECTION 2. AMENDMENT OF THE PAYMENT UNDERTAKING AGREEMENT
Schedule A and Schedule B to the Payment Undertaking Agreement are deleted
in their entirety and Schedule A and Schedule B hereto are substituted in lieu
thereof, respectively.
SECTION 3. REFERENCE TO AND EFFECT ON THE PAYMENT UNDERTAKING AGREEMENT.
Section 3.1 Reference. Upon the effectiveness of this Amendment No. 2 each
reference in the Payment Undertaking Agreement to "this Agreement," "hereunder,"
"hereof," "herein" or words of like import, to the Payment Undertaking
Agreement, shall mean and be a reference to the Payment Undertaking Agreement,
as amended hereby.
Section 3.2 Effect. Except as specifically amended hereby, the Payment
Undertaking Agreement shall remain in full force and effect and is hereby
ratified and confirmed.
SECTION 4. MISCELLANEOUS
Section 4.1 Governing Law. This Amendment No. 2 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 4.2 Severability. Whenever possible, each provision of this
Amendment No. 2 shall be interpreted in such manner as to be effective and valid
under Applicable Law, but if any provision of this Amendment No. 2 shall be
prohibited by or invalid under Applicable Law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Amendment No. 2.
Section 4.3 Counterparts. This Amendment No. 2 may be executed in any
number of counterparts, each executed counterpart constituting an original but
all together only one Amendment No. 2.
Section 4.4 Headings. The headings of the sections of this Amendment No. 2
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 4.5 Effectiveness of Amendment No. 2. This Amendment No. 2 has been
dated as of the date first above written for convenience only. This Amendment
No. 2 shall be effective on the date of execution and delivery by each of Old
Dominion and the Bank.
[Signatures Follow on Next Page]
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IN WITNESS WHEREOF, each of Old Dominion and the Bank has caused this
Amendment No. 2 to be duly executed and delivered by their respective officers
thereunto duly authorized.
OLD DOMINION ELECTRIC COOPERATIVE
By: /s/ Daniel M. Walker
-----------------------------------------------
Name: Daniel M. Walker
Title: Senior Vice President Accounting and Finance
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK
B.A., "RABOBANK NEDERLAND",
NEW YORK BRANCH
By: /s/ Chris G. Kortlandt /s/ J.W. den Baas
----------------------- -----------------------
Name: Chris G. Kortlandt J.W. den Baas
Title: Managing Director Managing Director
3
Schedule A
to
Payment Undertaking Agreement
Payment Amounts
[A] [B]
Payment Undertaking
Payment Date Payment Amount
Dec 19 2002 0.00
Jan 5 2003 5,644,252.12
Jan 5 2004 18,138,296.27
Jan 5 2005 11,905,967.33
Jan 5 2006 7,814,593.53
Jan 5 2007 4,091,377.59
Jan 5 2008 11,905,971.08
Jan 5 2009 11,905,971.08
Jan 5 2010 11,905,971.08
Jan 5 2011 13,184,265.10
Jan 5 2012 14,567,107.34
Jan 5 2013 14,551,569.79
Jan 5 2014 14,551,744.37
Jan 5 2015 14,551,742.41
Jan 5 2016 14,551,742.43
Jan 5 2017 14,551,742.43
Jan 5 2018 304,232,993.45
Schedule B
to
Payment Undertaking Agreement
Early Termination Amounts
[A] [B]
Early Termination
Date Amount
Dec 19 2002 288,748,151.97
Jan 5 2003 283,687,812.77
Feb 5 2003 284,763,462.40
Mar 5 2003 285,839,112.02
Apr 5 2003 286,914,761.64
May 5 2003 287,990,411.27
Jun 5 2003 289,066,060.89
Jul 5 2003 290,141,710.51
Aug 5 2003 291,217,360.14
Sep 5 2003 292,293,009.76
Oct 5 2003 293,368,659.38
Nov 5 2003 294,444,309.01
Dec 5 2003 295,519,958.63
Jan 5 2004 278,457,311.98
Feb 5 2004 279,513,129.29
Mar 5 2004 280,568,946.60
Apr 5 2004 281,624,763.91
May 5 2004 282,680,581.21
Jun 5 2004 283,736,398.52
Jul 5 2004 284,792,215.83
Aug 5 2004 285,848,033.14
Sep 5 2004 286,903,850.45
Oct 5 2004 287,959,667.75
Nov 5 2004 289,015,485.06
Dec 5 2004 290,071,302.37
Jan 5 2005 279,221,152.35
Feb 5 2005 280,279,865.89
Mar 5 2005 281,338,579.42
Apr 5 2005 282,397,292.96
May 5 2005 283,456,006.50
Jun 5 2005 284,514,720.03
Jul 5 2005 285,573,433.57
Aug 5 2005 286,632,147.10
Sep 5 2005 287,690,860.64
Oct 5 2005 288,749,574.18
Nov 5 2005 289,808,287.71
Dec 5 2005 290,867,001.25
Jan 5 2006 284,111,121.25
Feb 5 2006 285,188,375.92
Mar 5 2006 286,265,630.59
Apr 5 2006 287,342,885.26
May 5 2006 288,420,139.92
Jun 5 2006 289,497,394.59
Jul 5 2006 290,574,649.26
Aug 5 2006 291,651,903.93
Sep 5 2006 292,729,158.60
Oct 5 2006 293,806,413.26
Nov 5 2006 294,883,667.93
Dec 5 2006 295,960,922.60
Jan 5 2007 292,946,799.68
Feb 5 2007 294,057,556.29
Mar 5 2007 295,168,312.91
Apr 5 2007 296,279,069.53
May 5 2007 297,389,826.14
Jun 5 2007 298,500,582.76
Jul 5 2007 299,611,339.37
Aug 5 2007 300,722,095.99
Sep 5 2007 301,832,852.60
Oct 5 2007 302,943,609.22
Nov 5 2007 304,054,365.83
Dec 5 2007 305,165,122.45
Jan 5 2008 294,369,907.99
Feb 5 2008 295,486,060.55
Mar 5 2008 296,602,213.12
Apr 5 2008 297,718,365.69
May 5 2008 298,834,518.26
Jun 5 2008 299,950,670.83
Jul 5 2008 301,066,823.39
Aug 5 2008 302,182,975.96
Sep 5 2008 303,299,128.53
Oct 5 2008 304,415,281.10
Nov 5 2008 305,531,433.66
Schedule B
to
Payment Undertaking Agreement
Early Termination Amounts
[A] [B]
Early Termination
Date Amount
Dec 5 2008 306,647,586.23
Jan 5 2009 295,857,767.72
Feb 5 2009 296,979,561.76
Mar 5 2009 298,101,355.79
Apr 5 2009 299,223,149.83
May 5 2009 300,344,943.86
Jun 5 2009 301,466,737.90
Jul 5 2009 302,588,531.94
Aug 5 2009 303,710,325.97
Sep 5 2009 304,832,120.01
Oct 5 2009 305,953,914.04
Nov 5 2009 307,075,708.08
Dec 5 2009 308,197,502.12
Jan 5 2010 297,413,325.07
Feb 5 2010 298,541,017.26
Mar 5 2010 299,668,709.46
Apr 5 2010 300,796,401.65
May 5 2010 301,924,093.84
Jun 5 2010 303,051,786.03
Jul 5 2010 304,179,478.22
Aug 5 2010 305,307,170.41
Sep 5 2010 306,434,862.60
Oct 5 2010 307,562,554.79
Nov 5 2010 308,690,246.98
Dec 5 2010 309,817,939.17
Jan 5 2011 297,761,366.26
Feb 5 2011 298,890,378.11
Mar 5 2011 300,019,389.96
Apr 5 2011 301,148,401.80
May 5 2011 302,277,413.65
Jun 5 2011 303,406,425.50
Jul 5 2011 304,535,437.34
Aug 5 2011 305,664,449.19
Sep 5 2011 306,793,461.04
Oct 5 2011 307,922,472.89
Nov 5 2011 309,051,484.73
Dec 5 2011 310,180,496.58
Jan 5 2012 296,742,401.08
Feb 5 2012 297,867,549.35
Mar 5 2012 298,992,697.62
Apr 5 2012 300,117,845.90
May 5 2012 301,242,994.17
Jun 5 2012 302,368,142.44
Jul 5 2012 303,493,290.71
Aug 5 2012 304,618,438.98
Sep 5 2012 305,743,587.25
Oct 5 2012 306,868,735.52
Nov 5 2012 307,993,883.79
Dec 5 2012 309,119,032.06
Jan 5 2013 295,692,610.54
Feb 5 2013 296,813,778.36
Mar 5 2013 297,934,946.17
Apr 5 2013 299,056,113.99
May 5 2013 300,177,281.80
Jun 5 2013 301,298,449.62
Jul 5 2013 302,419,617.43
Aug 5 2013 303,540,785.25
Sep 5 2013 304,661,953.06
Oct 5 2013 305,783,120.88
Nov 5 2013 306,904,288.69
Dec 5 2013 308,025,456.51
Jan 5 2014 294,594,879.95
Feb 5 2014 295,711,885.54
Mar 5 2014 296,828,891.13
Apr 5 2014 297,945,896.71
May 5 2014 299,062,902.30
Jun 5 2014 300,179,907.88
Jul 5 2014 301,296,913.47
Aug 5 2014 302,413,919.06
Sep 5 2014 303,530,924.64
Oct 5 2014 304,647,930.23
Nov 5 2014 305,764,935.82
Schedule B
to
Payment Undertaking Agreement
Early Termination Amounts
[A] [B]
Early Termination
Date Amount
Dec 5 2014 306,881,941.40
Jan 5 2015 293,447,204.58
Feb 5 2015 294,559,858.57
Mar 5 2015 295,672,512.55
Apr 5 2015 296,785,166.53
May 5 2015 297,897,820.52
Jun 5 2015 299,010,474.50
Jul 5 2015 300,123,128.49
Aug 5 2015 301,235,782.47
Sep 5 2015 302,348,436.45
Oct 5 2015 303,461,090.44
Nov 5 2015 304,573,744.42
Dec 5 2015 305,686,398.41
Jan 5 2016 292,247,309.96
Feb 5 2016 293,355,414.34
Mar 5 2016 294,463,518.73
Apr 5 2016 295,571,623.11
May 5 2016 296,679,727.50
Jun 5 2016 297,787,831.88
Jul 5 2016 298,895,936.26
Aug 5 2016 300,004,040.65
Sep 5 2016 301,112,145.03
Oct 5 2016 302,220,249.41
Nov 5 2016 303,328,353.80
Dec 5 2016 304,436,458.18
Jan 5 2017 290,992,820.13
Feb 5 2017 292,096,167.91
Mar 5 2017 293,199,515.69
Apr 5 2017 294,302,863.46
May 5 2017 295,406,211.24
Jun 5 2017 296,509,559.02
Jul 5 2017 297,612,906.79
Aug 5 2017 298,716,254.57
Sep 5 2017 299,819,602.34
Oct 5 2017 300,922,950.12
Nov 5 2017 302,026,297.90
Dec 5 2017 303,129,645.67
Jan 5 2018 0.00
Schedule B
to
Payment Undertaking Agreement
Early Termination Amounts
[A] [B]
Early
Date Termination Amount
Dec 19 2002 288,748,151.97
Jan 5 2003 283,687,812.77
Jan 5 2004 278,457,311.98
Jan 5 2005 279,221,152.35
Jan 5 2006 284,111,121.25
Jan 5 2007 292,946,799.68
Jan 5 2008 294,369,907.99
Jan 5 2009 295,857,767.72
Jan 5 2010 297,413,325.07
Jan 5 2011 297,761,366.26
Jan 5 2012 296,742,401.08
Jan 5 2013 295,692,610.54
Jan 5 2014 294,594,879.95
Jan 5 2015 293,447,204.58
Jan 5 2016 292,247,309.96
Jan 5 2017 290,992,820.13
Jan 5 2018 0.00
Old Dominion having pledged its right, title and interest under the Payment
Undertaking Agreement to State Street Bank and Trust Company, not in its
individual capacity but solely as Owner Trustee, under the Payment Undertaking
Pledge Agreement and State Street Bank and Trust Company, not in its individual
capacity but solely as Owner Trustee, having assigned its right, title and
interest under the Payment Undertaking Agreement to Utrecht-America Finance Co.,
as Agent, under the Amended and Restated Loan and Security Agreement, both
Utrecht-America Finance Co. and State Street Bank and Trust Company, as Owner
Trustee, have executed this Amendment No. 2 to the Payment Undertaking Agreement
for the sole purpose of evidencing their consent hereto.
STATE STREET BANK AND TRUST
COMPANY, not in its individual capacity
but solely as Owner Trustee
By: /s/ Patrick E. Thebado
-----------------------------------
Name: Patrick E. Thebado
Title: Vice President
UTRECHT-AMERICA FINANCE CO.,
as Agent
By:/s/ Joseph A. Insings
------------------------------------
Name: Joseph A. Insings
Title: Vice President
By:/s/ J.W. den Baas
------------------------------------
Name: J.W. den Baas
Title: Vice President
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