Exhibit 10.67
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DEPOSIT AGREEMENT
Dated as of December 19, 2002
between
OLD DOMINION ELECTRIC COOPERATIVE,
as Depositor
and
JPMORGAN CHASE BANK
as Depositary
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DEPOSIT AGREEMENT
This DEPOSIT AGREEMENT (this "Agreement"), dated as of December 19, 2002 is
entered into between OLD DOMINION ELECTRIC COOPERATIVE (the "Depositor") and
JPMORGAN CHASE BANK (the "Depositary").
WHEREAS, the Depositor wishes to place the Deposit with the Depositary, and the
Depositary is prepared to accept the Deposit, subject to the terms and
conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements herein contained and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Depositor and the Depositary, intending be legally
bound, hereby agree as follows:
1. DEFINITIONS
1.1 In this Agreement (including the Exhibits) all terms used but not defined
herein shall have the same meaning as defined in Appendix A to the
Participation Agreement (as defined below). The following terms have the
respective meanings shown opposite them:
"Account" Account No. 507947533, for further credit to
10203902.1, of the Depositary, ABA No.
021000021, Reference Old Dominion Deposit
Account.
"Deposit" The aggregate of the cash deposited by the
Depositor in the Account with the Depositary
on the date hereof in the amount of
$32,083,128.00 on the terms and conditions
set forth in this Agreement, together with
interest accrued thereon upon the terms set
forth herein.
"Deposit Amount" As to any Interest Payment Date, the amount
set forth opposite such date on Exhibit B.
"First Union" First Union National Bank of Florida.
"Interest Payment Date" Each date specified on Exhibit A.
"Participation Agreement" The Participation Agreement, dated as of
February 29, 1996 among (i) the Depositor,
(ii) First Union, (iii) Utrecht-America
Finance Co., as Series A Lender and Agent and
(iv) State Street Bank and Trust Company, not
in its individual capacity but solely as
Owner Trustee, as amended by Amendment No. 1
to Participation Agreement, dated as of even
date herewith, among such parties (other than
First Union), Wachovia Bank, National
Association, formerly known as First Union
National Bank and
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Exhibit 10.67
successor in interest to First Union, and
Cedar Hill International Corp., as the same
may be amended, supplemented or otherwise
modified from time to time.
1.2 References in this Agreement to any agreement or document shall include
references to that agreement or document as amended, supplemented and
otherwise modified from time to time and references to parties to
agreements shall be deemed to include the permitted successors and assigns
of such parties.
2. ACCEPTANCE OF DEPOSIT; INTEREST
2.1 The Depositor has deposited the Deposit in the Account with the Depositary
on the date hereof, and the Depositary has accepted the Deposit subject to
the terms and conditions of this Agreement.
2.2 Interest shall accrue on the Deposit at the rate of 3.47% per annum (the
"Deposit Interest Rate"); provided, however, that the Depositary may reset
the Deposit Interest Rate on any Permitted Prepayment Date if the Series B
Loan Certificate is not prepaid on such date in accordance with Section 9
hereof. Interest shall be calculated on the basis of a year of 360 days and
12 months of 30 days each. To the extent set forth on Exhibit A under the
column "Interest Added to Deposit" with respect to any Interest Payment
Date, an amount equal to the portion of the interest which accrued on the
Deposit from the preceding Interest Payment Date shown on Exhibit A shall
not be paid on such Interest Payment Date but shall increase the amount of
the Deposit. On each Interest Payment Date the amount of interest actually
payable on the Deposit shall be the amount set forth on Exhibit A opposite
such Interest Payment Date under the column "Interest Payable." Set forth
on Exhibit B opposite each Interest Payment Date is the amount of the
Deposit on such date, taking into account any addition of accrued interest
to the Deposit and the payment of all interest actually payable on such
date. Exhibit A and Exhibit B shall be amended from time to time to reflect
any change in the Deposit Interest Rate made pursuant to this Section 2.2
and Section 9.
2.3 The Depositor hereby directs the Depositary to pay directly to the Owner
Trustee at its account at Wachovia Bank, National Association, Account No.
990-399-01, ABA No. 011-000-28, Attention: Dori Anne Seakis, or to such
other place as the Owner Trustee notifies the Depositary in writing all
amounts payable to the Depositor in respect of the Deposit.
3. REPAYMENT; WITHDRAWAL
3.1 The Deposit shall be paid in part on each Interest Payment Date in the
amount set forth on Exhibit A opposite such Interest Payment Date under the
column "Principal Payable."
3.2 The Deposit, together with all accrued and unpaid interest thereon, shall
be paid to the Depositor in whole, on the earlier to occur of (i) the
Mandatory Prepayment Date, (ii) any Permitted Prepayment Date occurring on
or after the date that the Series B Loan
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Exhibit 10.67
Certificate and all accrued interest thereon has been prepaid or repaid in
full in accordance with the terms of the Operative Documents, (iii)
prepayment of the Loan Certificates pursuant to Section 10.3 of the
Participation Agreement or (iv) January 5, 2018. In no event shall the
Deposit be paid in less than seven days from the date hereof. In addition,
in the event that an illegality of the character described in Section 5.1
cannot be avoided as contemplated therein within a 30-day period after the
Depositary's notification to the Depositor, the Depositary shall repay the
Deposit to the Depositor in whole, together with all accrued and unpaid
interest thereon.
3.3 The Depositor may withdraw the Deposit only (i) in connection with
repayments of the Deposit pursuant to Section 3.2 and (ii) upon the
occurrence and during the continuation of a Depositary Credit Event that
occurs on or after the seventh day from the date hereof. As used herein,
"Depositary Credit Event" means that the long term, unsecured and
unsubordinated indebtedness or deposits of the Depositary shall be rated
lower than "A3" by Moody's Investor Services, Inc. or shall be rated lower
than "A-" by Standard and Poor's Ratings Services.
4. PAYMENTS
4.1 To the maximum extent permitted under Applicable Law, all payments to be
made by the Depositary hereunder shall be paid without deduction, set-off
or counterclaim of any kind whatsoever, nor shall the Depositary be
entitled to exercise in respect of the Deposit any right of set-off,
banker's lien or other like right and the Depositary hereby expressly
waives any and all such rights and any comparable rights, with respect to
any amounts owed to the Depositary by the Depositor, any pledgee or any
other Person.
4.2 Any amount of the Deposit not paid when due and, to the extent permitted by
law, interest hereunder not paid when due shall bear interest at the
Overdue Rate for the period during which the same shall be overdue.
All payments by the Depositary hereunder shall be made prior to 12:00 noon,
New York City time, on each payment date specified in Sections 2.2, 3.1 and
3.2 hereof.
4.3 If any payment hereunder is required to be made on a day which is not a
Business Day, such payment shall be due the next succeeding Business Day
with the same effect as if paid on the date when due and, if such payment
is paid on such succeeding Business Day, without any additional interest on
such amount.
5. ILLEGALITY
5.1 If it shall become (or become apparent that it will become) unlawful for
the Depositary to make any repayment of the Deposit or to accept or
continue to hold the Deposit in accordance with the terms of this
Agreement, then the Depositary shall, upon becoming aware of any of such
circumstances, notify the Depositor, the Owner Trustee and the Agent, and
the Depositary and the Depositor in consultation with the Owner Trustee and
the Agent shall co-operate to take such action as may be reasonably
available to each such
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Exhibit 10.67
Person to avoid or mitigate the imposition of any such illegality, it being
expressly understood and agreed that the Depositary shall not be obligated
to take any action adverse to its interests nor incur any material cost or
expense not indemnified by the Depositor to the reasonable satisfaction of
the Depositary.
6. ASSIGNMENT
6.1 This Agreement shall inure to the benefit of and be binding upon each of
the parties hereto and their respective successors and permitted assigns.
6.2 The rights and duties of either party under this Agreement, including,
without limitation, rights and duties in respect of the Deposit and any
interest thereon, may not be assigned or transferred or pledged in whole or
in part (save only as provided by the Deposit Pledge Agreement and the Loan
Agreement, pursuant to any enforcement thereof, or pursuant to a merger or
consolidation of the Depositary in accordance with applicable law), without
the prior written consent of the other party.
7. REPRESENTATIONS AND WARRANTIES OF THE DEPOSITARY
As of the date hereof, the Depositary represents and warrants to the
Depositor, the Owner Trustee and the Agent that:
(a) Organization; Authority. The Depositary is a New York state bank
organized, validly existing and in good standing and has the full corporate
power and authority to conduct its business as presently conducted, and to
execute and deliver and perform its obligations under this Agreement.
(b) Due Authorization. The execution and delivery of and performance
by the Depositary of its obligations under this Agreement have been duly
authorized by all necessary corporate action on the part of the Depositary
and do not require approval or consent of, or notice to, any trustee or
holders of any indebtedness or obligations of the Depositary or any lessor
under any lease to the Depositary.
(c) Legal, Valid and Binding Obligations. This Agreement has been duly
executed and delivered by the Depositary and constitutes the legal, valid
and binding obligation of the Depositary enforceable against the Depositary
in accordance with its terms except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium, and other similar laws
affecting the rights of creditors generally and by general principles of
equity regardless of whether enforcement is pursuant to a proceeding in
equity or at law.
(d) Business. The Depositary is a financial institution regularly
engaged in issuing Dollar deposits. The taking of the Deposit by the
Depositary is in the ordinary course of its business and the Deposit ranks
with parity to all other unsecured and unsubordinated deposits taken by the
Depositary except deposits preferred by statute or other applicable rule or
regulation.
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Exhibit 10.67
8. REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR
As of the date hereof, the Depositor represents and warrants to the
Depositary that:
(a) Organization; Authority. The Depositor is a utility aggregation
cooperative duly organized, validitly existing and in good standing under
the laws of the Commonwealth of Virginia 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.
(b) Corporate Authorization. The execution and delivery by the
Depositor of, and the performance by the Depositor of its obligations
under, this Agreement and the depositing of the Deposit with the Depositary
have been duly authorized by all necessary corporate action on the part of
the Depositor.
9. COVENANTS
If the Depositary receives a notice of a proposed Reset Rate and proposed
Permitted Prepayment Date from the Holders of the Series B Loan
Certificates pursuant to Section 2.12(b) of the Loan Agreement, the
Depositary shall deliver to Depositor within 10 days thereafter a written
offer of a new Deposit Interest Rate to be effective for the period
commencing as of the date that the Loan Certificates are to be amended to
reflect the proposed Reset Rate (the "Amendment Date") and extending until
the proposed Permitted Prepayment Date. The Depositary may not revoke or
rescind such written offer and Depositor may accept such offer on or prior
to the date three months prior to the Permitted Prepayment Date then in
effect (a "Deposit Offer Termination Date"). If, on or prior to the Deposit
Offer Termination Date, Depositor accepts the proposed Deposit Interest
Rate for such period or the Depositor and the Depositary agree to any other
new Deposit Interest Rate or period during which any new Deposit Interest
Rate is to apply, then the parties hereto shall amend this Agreement
effective as of the Amendment Date to reflect such new Deposit Interest
Rate.
10. MISCELLANEOUS
10.1 The Depositary is authorized to rely upon any written document provided by
the Depositor to the Depositary which indicates the persons authorized to
act on behalf of the Depositor until the authority for any such person is
withdrawn by the Depositor in writing. The Depositary shall not be liable
to the Depositor for any damages arising out of the Depositary's
performance of, or failure to perform, its obligations under this Agreement
unless such damages are the direct result of the Depositary's gross
negligence or willful misconduct, and in no event shall the Depositary be
liable for indirect, special or consequential damages. Additionally, the
Depositary shall not be liable for any loss or damage to the Depositor
caused by the Depositary's failure to perform its obligations under this
Agreement or delay in performing such obligations resulting from an act of
God, act of governmental authority, de jure or de facto, legal constraint,
war, terrorism,
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Exhibit 10.67
fire, catastrophe, or electrical, computer, mechanical or
telecommunications failure, or failure of any agent or correspondent or any
other cause beyond the Depositary's control.
10.2 BOTH THE DEPOSITARY AND THE DEPOSITOR HEREBY IRREVOCABLY WAIVE ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM, OF WHATEVER TYPE
OR NATURE, INCLUDING ACTIONS SOUNDING IN CONTRACT OR TORT OR BASED UPON A
STATUTORY VIOLATION, ARISING OUT OF THIS AGREEMENT OR THE RELATIONSHIP
ESTABLISHED HEREBY. Any action against the Depositary arising from or
relating to this Agreement must be brought by the Depositor in state or
(where there is subject matter jurisdiction) federal court located in the
State of New York, County of New York.
10.3 Any provision hereof which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions hereof or affecting the validity or enforceability of such
provision in any other jurisdiction. Any such prohibited or unenforceable
provision shall be replaced by a provision coming as close as possible to
the economic intent of the prohibited or unenforceable provision.
10.4 All communications and notices provided for herein shall be in writing,
shall be delivered (a) by personal delivery, including, without limitation,
by overnight mail or courier service, (b) by United States mail, certified
or registered, postage prepaid, return receipt requested, or (c) by
facsimile confirmed by either of the methods set forth in clauses (a) or
(b) above, and addressed to the recipient at its respective address set
forth below or, in the case of each recipient, at such other address as
such recipient may from time to time designate by written notice:
If to the Depositary:
JPMorgan Chase Bank
270 Park Avenue, 48th Floor
New York, New York 10017
Attention: Michael Mak
Fax: (212) 270-4257
If to the Depositor:
Old Dominion Electric Cooperative
P. O. Box 2310
Glen Allen, Virginia 23058-2310
Attention: Senior Vice President of Accounting and Finance
Fax: (804) 747-3742
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Exhibit 10.67
If to the Owner Trustee:
State Street Bank and Trust Company
2 Avenue de Lafayette
Sixth Floor
Boston, Massachusetts 02111
Attention: Manager - Corporate Trust
Fax: (617) 662-1465
with a copy to the Owner Participant:
Wachovia Securities
One Wachovia Center
Mail Code NC0738
Charlotte, North Carolina 28288-0738
Facsimile No.: (704) 383-3713
Telephone No.: (704) 383-1572
Attention: Carrie L. Messer
Courier Address:
Wachovia Securities
301 South College Street, 18th Floor
Charlotte, North Carolina 28202
If to the Agent:
Utrecht-America Finance Co.
245 Park Avenue
New York, New York 10167
Attention: Corporate Finance Department
Fax: (212) 922-0969
Such notices shall be effective, in the case of notice by facsimile, when
the addressee receives the document in legible form, in the case of notice
by U.S. Mail, on the fifth Business Day after posting and in the case of
notice by personal delivery, upon receipt.
10.5 This Agreement may be executed in any number of counterparts and any single
counterpart or set of counterparts signed, in either case, by each of the
parties hereto shall be deemed to constitute a full and original agreement
for all purposes.
10.6 To the extent permitted by applicable law, each of the parties hereto (i)
hereby irrevocably submits to the nonexclusive jurisdiction of the Supreme
Court of the State of New York, New York County (without prejudice to the
right of any party to remove to the United States District Court for the
Southern District of New York) and to the nonexclusive jurisdiction of the
United States District Court for the Southern District of New York for the
purposes of any suit, action or other proceeding arising out of this
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Exhibit 10.67
Agreement, the other Operative Documents, or the subject matter hereof or
thereof or any of the transactions contemplated hereby or thereby brought
by any of the parties hereto or their successors or assigns, (ii) hereby
irrevocably agrees that all claims in respect of such action or proceeding
may be heard and determined in such New York State court, or in such
federal court, and (iii) to the extent permitted by Applicable Law, hereby
irrevocably waives, and agrees not to assert, by way of motion, as a
defense, or otherwise, in any such suit, action or proceeding any claim
that it is not personally subject to the jurisdiction of the above-named
courts, that the suit, action or proceeding is brought in an inconvenient
forum, that the venue of the suit, action or proceeding is improper or that
this Agreement, the other Operative Documents, or the subject matter hereof
or thereof may not be enforced in or by such court.
10.7 The State of New York is the Depositary's "jurisdiction" for purposes of
Article 9 of the New York Uniform Commercial Code.
10.8 This Agreement is governed by, and shall be construed in accordance with,
the laws of the State of New York including all matters of construction,
validity and performance.
[signature page follows]
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Exhibit 10.67
IN WITNESS WHEREOF, the Depositor and the Depositary have caused this
Deposit Agreement to be duly executed and delivered by their respective duly
authorized officers.
DEPOSITOR:
OLD DOMINION ELECTRIC COOPERATIVE
By: /s/ Daniel M. Walker
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Daniel M. Walker
Vice President of Accounting and Finance
DEPOSITARY:
JPMORGAN CHASE BANK
By: /s/ Michael P. Mak
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Name: Michael P. Mak
Title: Vice President
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Exhibit 10.67
EHIBIT A
to
Deposit Agreement
INTEREST PAYMENT DATE
Interest Payment Interest Interest Added Interest Principal
Date Accrued to Deposit Payable Payable
- ---------------- ------------ -------------- ------------ -------------
5-Jan-03 49,479.31 0.00 49,479.31 562,259.91
5-Jan-04 1,093,774.12 0.00 1,093,774.12 581,166.75
5-Jan-05 1,073,607.64 84,871.15 988,736.49 0.00
5-Jan-06 1,076,552.67 543,329.88 533,222.79 0.00
5-Jan-07 1,095,406.21 981,742.05 113,664.16 0.00
5-Jan-08 1,129,472.66 158,123.15 971,349.51 0.00
5-Jan-09 1,134,959.53 165,317.75 969,641.78 0.00
5-Jan-10 1,140,696.06 172,839.71 967,856.35 0.00
5-Jan-11 1,146,693.60 38,671.24 1,108,022.36 0.00
5-Jan-12 1,148,035.49 0.00 1,148,035.49 113,218.35
5-Jan-13 1,144,106.81 0.00 1,144,106.81 116,643.39
5-Jan-14 1,140,059.29 0.00 1,140,059.29 121,970.07
5-Jan-15 1,135,826.93 0.00 1,135,826.93 127,519.49
5-Jan-16 1,131,402.00 0.00 1,131,402.00 133,321.62
5-Jan-17 1,126,775.74 0.00 1,126,775.74 139,387.76
5-Jan-18 1,121,938.98 0.00 1,121,938.98 32,332,535.57
A-1
EXHIBIT B
to
Deposit Agreement
DEPOSIT AMOUNTS
Interest Payment
Date Deposit Amount
- ---------------- --------------
5-Jan-03 31,520,868.09
5-Jan-04 30,939,701.33
5-Jan-05 31,024,572.48
5-Jan-06 31,567,902.36
5-Jan-07 32,549,644.41
5-Jan-08 32,707,767.55
5-Jan-09 32,873,085.30
5-Jan-10 33,045,925.01
5-Jan-11 33,084,596.25
5-Jan-12 32,971,377.90
5-Jan-13 32,854,734.50
5-Jan-14 32,732,764.44
5-Jan-15 32,605,244.95
5-Jan-16 32,471,923.33
5-Jan-17 32,332,535.57
5-Jan-18 0.00
B-1