Exhibit 10.70
SECOND BLOCKED ACCOUNT CONTROL AGREEMENT
("Shifting Control")
This SECOND BLOCKED ACCOUNT CONTROL AGREEMENT, dated as of December 19,
2002 (this "Agreement"), is entered into by and among (i) Old Dominion Electric
Cooperative ("Company"), (ii) 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"), (iii)
Utrecht-America Finance Co. ("Utrecht"), as Agent for the Lenders identified in
that certain Amended and Restated Loan and Security Agreement, dated as of even
date herewith (the "Loan and Security Agreement"), by and among Pledgee,
Utrecht, as Agent thereunder (in such capacity, the "Agent") and as Series A
Lender, and Cedar Hill International Corp., as Series B Lender, and (iv)
JPMorgan Chase Bank ("Depositary").
The parties hereto refer to Account No. 10203902.1 in the name of Company
maintained at Depositary (the "Account") and further refer to that certain First
Blocked Account Control Agreement, dated as of even date herewith, among
Company, Pledgee and Depositary (the "First Control Agreement"). The parties
hereby agree as follows:
1. Pledgee and Agent notify Depositary that pursuant to the Loan and
Security Agreement Pledgee has granted to Agent a security interest in its
interest in the Account and all funds on deposit from time to time therein.
Depositary acknowledges being so notified.
2. Prior to Depositary's receipt of a notice from Agent that an "Event of
Default" has occurred and is continuing under the Loan and Security Agreement
(an "Agent's Default Notice"), Depositary agrees that it will comply with all
withdrawal, payment, transfer or other fund disposition or other instructions
(collectively, "instructions") concerning the Account originated by Pledgee or
Agent, without further consent by Company or Pledgee. After Depositary receives
an Agent's Default Notice and has had a reasonable opportunity to act in
response thereto, Depositary will cease complying with instructions concerning
the Account originated by Pledgee and shall thereafter only comply with
instructions concerning the Account originated by Agent, without further consent
by Company or Pledgee. Agent shall provide a copy of any Agent's Default Notice
to Pledgee and Company. Notwithstanding anything in the First Control Agreement
to the contrary, following Pledgee's receipt of a copy of an Agent's Default
Notice and until such time as Pledgee shall have received a copy of the Agent's
Termination Notice, Pledgee agrees not to issue any instructions with respect to
the Account.
3. After Depositary receives an Agent's Termination Notice and has had a
reasonable opportunity to act in response thereto, Depositary will cease
complying with instructions concerning the Account originated by Agent and this
Agreement shall terminate. As used in this Agreement, "Agent's Termination
Notice" means a written notice from Agent to Depositary to the effect that
Depositary shall no longer be obligated as provided in Section 2 of this
Agreement to comply with instructions concerning the Account received from
Agent. Agent shall provide a copy of any Agent's Termination Notice to Pledgee
and Company.
4. 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).
5. 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.
6. 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 (including without limitation an
Agent's Default Notice or an Agent's Termination Notice), instruction or request
purportedly furnished to it by Agent or 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 Loan and Security Agreement or any other related documentation
or whether any actions by Pledgee, Agent (including without limitation the
sending of an Agent's Default Notice or an Agent's Termination Notice), 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.
7. 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, Pledgee's or Agent's direction or instruction (including without
limitation Depositary's honoring of an Agent's Default Notice or an Agent's
Termination Notice) or (iii) due to any claim by Pledgee or Agent of an interest
in the Account or the funds on deposit therein.
8. Any termination or any amendment or waiver of this Agreement shall be
effected solely by an instrument in writing executed by all of the parties
hereto; provided that this Agreement shall terminate following delivery of an
Agent's Termination Notice to Depositary as contemplated in paragraph 3 above.
The provisions of paragraphs 6 and 7 above shall survive any such termination.
9. 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
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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 Agent: Utrecht-America Finance Co.
245 Park Avenue
New York, NY 10167
Attention: Corporate Finance Department
Fax No.: 212.922.0969
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
New York, NY 10017
Attention: Michael Mak/Harris Kretsge
Fax No.: 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 Title: Officer
Accounting and Finance
UTRECHT-AMERICA FINANCE CO., as Agent JPMORGAN CHASE BANK
By: /s/ J.W. den Bass By: /s/ Michael P. Mak
--------------------------------- ---------------------------------
Name: J.W. den Bass Name: Michael P. Mak
Title: Vice President Title: Vice President
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