Exhibit 10.69
FIRST BLOCKED ACCOUNT CONTROL AGREEMENT
("Lender Control")
This FIRST BLOCKED ACCOUNT CONTROL AGREEMENT, dated as of December 19,
2002, is entered into by and among Old Dominion Electric Cooperative
("Company"), State Street Bank and Trust Company, not in its individual
capacity, but solely as Owner Trustee under a Trust Agreement, dated as of
February 29, 1996, between it and Wachovia Bank, National Association (formerly
known as First Union National Bank, successor in interest to First Union
National Bank of Florida) (in such capacity, "Pledgee"), and JPMorgan Chase Bank
("Depositary").
The parties hereto refer to Account No. 10203902.1 in the name of Company
maintained at Depositary (the "Account") and hereby agree as follows:
1. Company and Pledgee notify Depositary that by separate agreement Company
has granted Pledgee a security interest in the Account and all funds on deposit
from time to time therein. Depositary acknowledges being so notified.
2. Depositary agrees that it will comply with withdrawal, payment, transfer
or other fund disposition or other instructions (collectively, "instructions")
concerning the Account originated by Pledgee, without further consent by
Company. Company shall have no right to issue instructions or any other right or
ability to access or withdraw or transfer funds from the Account.
3. This Agreement supplements the Deposit Agreement, dated as of the date
hereof, between Company and Depositary, which Deposit Agreement will continue to
apply to the Account and the respective rights, powers, duties, obligations,
liabilities and responsibilities of the parties thereto and hereto, to the
extent not expressly conflicting with the provisions of this Agreement (however,
in the event of any such conflict, the provisions of this Agreement shall
control).
4. Depositary agrees not to exercise or claim any right of offset, banker's
lien or other like right against the Account for so long as this Agreement is in
effect.
5. Notwithstanding anything to the contrary in this Agreement: (i)
Depositary shall have only the duties and responsibilities with respect to the
matters set forth herein as are expressly set forth in writing herein and shall
not be deemed to be an agent, bailee or fiduciary for any party hereto; (ii)
Depositary shall be fully protected in acting or refraining from acting in good
faith without investigation on any notice, instruction or request purportedly
furnished to it by Pledgee in accordance with the terms hereof, in which case
the parties hereto agree that Depositary has no duty to make any further inquiry
whatsoever; (iii) it is hereby acknowledged and agreed that Depositary has no
knowledge of (and is not required to know) the terms and provisions of the
separate agreement referred to in paragraph 1 above or any other related
documentation or whether any actions by Pledgee, Company or any other person or
entity are permitted or a breach thereunder or consistent or inconsistent
therewith, (iv) Depositary shall not be liable to any party hereto or any other
person for any action or failure to act under or in connection with this
Agreement except to the extent such conduct constitutes its own willful
misconduct or gross negligence (and to the maximum extent permitted by law,
shall under no circumstances be liable for any incidental, indirect, special,
consequential or punitive damages); and (v) Depositary shall not be liable for
losses or delays caused by force majeure, interruption or malfunction of
computer, transmission or communications facilities, labor
difficulties, court order or decree, the commencement of bankruptcy or other
similar proceedings or other matters beyond Depositary's reasonable control.
6. Company hereby agrees to indemnify, defend and save harmless Depositary
against any loss, liability or expense (including reasonable fees and
disbursements of counsel, who may be an employee of Depositary) (collectively,
"Covered Items") (i) incurred in connection with this Agreement or the Account
(except to the extent due to Depositary's willful misconduct or gross
negligence) or any interpleader proceeding relating thereto, (ii) incurred at
Company's or Pledgee's direction or instruction or (iii) due to any claim by
Pledgee of an interest in the Account or the funds on deposit therein.
7. Any termination or any amendment or waiver of this Agreement shall be
effected solely by an instrument in writing executed by all the parties hereto.
The provisions of paragraphs 5 and 6 above shall survive any such termination.
8. This Agreement: (i) may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument; (ii) shall become effective as of the
date first written above; and (iii) shall be governed by and construed in
accordance with the laws of the State of New York. All parties hereby waive all
rights to a trial by jury in any action or proceeding relating to the Account or
this Agreement. The State of New York shall be the "bank's jurisdiction" of
Depositary for purposes of Article 9 of the New York Uniform Commercial Code.
All notices under this Agreement shall be in writing and sent (including via
facsimile transmission) to the parties hereto at their respective addresses or
fax numbers set forth below (or to such other address or fax number as any such
party shall designate in writing to the other parties from time to time):
If to Company: Old Dominion Electric Cooperative
4202 Dominion Boulevard
Glen Allen, VA 23060
Attention: Senior Vice President of Accounting
and Finance
Fax No.: 804.787.3742
If to Pledgee: State Street Bank and Trust Company, as Owner Trustee
2 Avenue de Lafayette
Sixth Floor
Boston, Massachusetts 02111
Attention: Manager-Corporate Trust
Fax No.: 617.662.1485
If to Depository: JPMorgan Chase Bank
4 New York Plaza
15th Floor
New York, NY 10004
Attention: Treasury & Security Services -
Valerie Dunbar
Fax No.: 212.623.6216
And
JPMorgan Chase Bank
270 Park Avenue, 48th Floor
2
New York, NY 10017
Attention: Michael Mak/Harris Kretsge
Fax: 212.270.4251
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the date first above written.
OLD DOMINION ELECTRIC COOPERATIVE STATE STREET BANK AND TRUST
COMPANY, not in its individual
capacity but solely as Owner Trustee
By: /s/ Daniel M. Walker By: /s/ Dori Anne Seakas
----------------------------------- ----------------------------------
Daniel M. Walker Name: Dori Anne Seakas
Senior Vice President of Accounting Title: Officer
and Finance
JPMORGAN CHASE BANK
By: /s/ Michael P. Mak
----------------------------------
Name: Michael P. Mak
Title: Vice President
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