Exhibit 10.68
================================================================================
Deposit Pledge Agreement
Dated as of December 19, 2002
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 December 19, 2002 (this
"Agreement"), between OLD DOMINION ELECTRIC COOPERATIVE, a utility aggregation
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 ("First Union") and Utrecht-America Finance Co., entered into a
Participation Agreement, dated as of February 29, 1996, as amended by Amendment
No. 1 to Participation Agreement, dated as of the date hereof, between such
parties (other than First Union), Wachovia Bank, National Association (formerly
known as First Union National Bank, successor-in-interest to First Union) and
Cedar Hill International Corp. (as amended and in effect from time to time, 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 JPMorgan Chase
Bank (the "Depositary"), pursuant to the Deposit Agreement, dated as of December
19, 2002 (the "Deposit Agreement"), 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; GENERAL PROVISIONS.
Capitalized terms used in this Agreement (including the recitals) 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. The
general provisions of Appendix A to the Participation Agreement also shall apply
to this Agreement.
SECTION 2. PLEDGE.
Section 2.01. Pledge of Deposit and Deposit Agreement. To secure the
Secured Deposit Claims (defined below), the Pledgor hereby transfers, assigns
and pledges to the Pledgee for its benefit, and grants to the Pledgee a security
interest in, all of the Pledgor's right, title and interest, whether now owned
or hereafter acquired, in, to, and under the Deposit, the Deposit Account and
the Deposit Agreement, including, without limitation, all funds on deposit from
time to time in the Deposit Account, the rights of the Depositor to receive all
amounts payable under the Deposit Agreement in accordance therewith or withdrawn
from the Deposit Account
and to give or receive any notice, warrant, waiver or approval or take any other
action under the Deposit Agreement, all instruments or certificates evidencing
the Deposit, 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 or the Deposit Account, and all proceeds thereof (the
"Pledged Collateral").
SECTION 3. SECURED DEPOSIT 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 Deposit Claims."
Without limiting the generality of the foregoing, this Agreement secures
the payment of all amounts that constitute part of the Secured Deposit 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.
SECTION 4. REMEDIES
Section 4.01. 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. To the extent
necessary to realize the benefit of the pledge effected by this Agreement, the
Pledgor authorizes the Pledgee to exercise any of its rights under the Deposit
Agreement or with respect to the Deposit Account.
Section 4.02. Filings. The Pledgor agrees that it shall, at its own
expense, execute, deliver and authorize any financing statement, assignment or
other document reasonably requested by the Pledgee or the Holder of the Series B
Loan Certificate to perfect, protect, enforce, or otherwise give effect to the
Pledgee's rights and remedies hereunder.
Section 4.03. Attorney-in-Fact. If the Pledgor is unable or unwilling to
sign such financing statements, assignments 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, authorize or deliver 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 4.04. 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
2
exercise any such powers. Except for 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 5. Directions of Payment; DISCHARGE.
Section 5.01. Directions of Payment.
(a) The Pledgor has directed the Depositary in Section 2.3 of the
Deposit Agreement to pay directly to the Pledgee at its account identified
therein, or such other place as the Pledgee notifies the Depositary in writing,
all amounts payable to the Pledgor in respect of the Deposit.
(b) On the date hereof, the Pledgee has directed the Depositary to pay
all amounts directed to it as contemplated by Section 5.01(a) to the Series B
Lender pursuant to a payment instruction dated the date hereof (the "Series B
Deposit Payment Instruction"). The foregoing direction by the Pledgee may be
revoked by the Pledgee at any time following written notice to the Depositary.
Nothing in this Section 5.01(b) or the Series B Deposit Payment Instruction
shall diminish the obligation of Old Dominion to pay Rent under the Equipment
Operating Lease or Foundation Rent under the Foundation Operating Lease (except
to the extent satisfied through any such application of funds as provided in
this Section 5.01).
Section 5.02. 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 6. REPRESENTATIONS AND WARRANTIES.
Section 6.01. Holder. The Pledgor represents and warrants that it is the
legal and beneficial owner of the Deposit and the Deposit Account and that
neither the Deposit nor the Deposit Account is subject to any pledge, Lien or
security interest or any other right of any third party, except as provided by
the Operative Documents.
Section 6.02. Rights in the Deposit. The Pledgor represents and warrants
that assuming that the Pledgee maintains control over the Deposit and the
Deposit Account, the pledge of the Deposit and the Deposit Account under this
Agreement vests in the Pledgee a valid security interest therein as contemplated
by this Agreement.
3
SECTION 7. 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 or the Deposit Account or (b) create or permit any Lien upon or
with respect to the Deposit, the Deposit Account or any other Pledged
Collateral, except for the pledge created hereby.
SECTION 8. MISCELLANEOUS.
Section 8.01. 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 sought.
Section 8.02. 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: Senior Vice President of Accounting and Finance
If to the Pledgee:
State Street Bank and Trust Company
▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Manager - Corporate Trust
4
with a copy to the Agent:
Utrecht-America Finance Co.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Finance Department
Section 8.03. 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 regardless of any investigation made by either party or on behalf of
either party.
Section 8.04. 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 or the Foundation Operating Lease without the consent of the
Pledgor.
Section 8.05. 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.
5
Section 8.06. 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 8.07. 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 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 8.08. Counterparts. This Agreement may be executed in any number of
counterparts, each executed counterpart constituting an original but all
together only one Agreement.
Section 8.09. 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 8.10. 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 8.11. 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 8.12. 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.
[Signatures Follow on Next Page]
6
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/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President of Accounting
and Finance
STATE STREET BANK AND TRUST COMPANY,
not in its individual capacity, but solely
as Owner Trustee under the Trust Agreement,
as Pledgee
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Acknowledged by:
JPMORGAN CHASE BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇
Title: Vice President