Exhibit 10.72
================================================================================
Amendment No. 1 to
Tax Indemnity Agreement
Dated as of December 19, 2002
between
Old Dominion Electric Cooperative,
and
Wachovia Bank, National Association,
as Owner Participant
Clover Unit 1 Generating Facility
and
Common Facilities
================================================================================
AMENDMENT NO. 1 TO TAX INDEMNITY AGREEMENT
This AMENDMENT NO. 1 to TAX INDEMNITY AGREEMENT, dated as of December 19,
2002 (this "Amendment"), 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
WACHOVIA BANK, NATIONAL ASSOCIATION (formerly known as First Union National
Bank, successor-in-interest to First Union National Bank of Florida), a national
banking association organized under the laws of the United States, as Owner
Participant (herein in such capacity, together with its successors and assigns,
called the "Owner Participant").
WITNESSETH:
WHEREAS, Old Dominion and the Owner Participant are parties to a
Participation Agreement, dated as of February 29, 1996, with State Street Bank
and Trust Company, not in its individual capacity, except as expressly provided
therein, but solely as Owner Trustee, and Utrecht-America Finance Co. (the
"Original Participation Agreement").
WHEREAS, in connection with execution and delivery of the Original
Participation Agreement, Old Dominion and the Owner Participant entered into a
Tax Indemnity Agreement, dated as of February 29, 1996 (the "Tax Indemnity
Agreement"), wherein Old Dominion agreed to indemnify the Owner Participant
under certain circumstances;
WHEREAS, on date hereof, Old Dominion, the Owner Participant, and the other
parties to the Participation Agreement have entered into the Amendment No. 1 to
Participation Agreement, dated as of December 19, 2002, to the Participation
Agreement (the "Participation Agreement Amendment" and the Original
Participation Agreement as amended by the Participation Agreement Amendment is
referred to herein as the "Participation Agreement");
WHEREAS, the parties hereto wish to amend the Tax Indemnity
Agreement as set forth herein in connection with the execution and delivery of
the Participation Agreement Amendment.
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; GENERAL PROVISIONS
Capitalized terms used in this Amendment (including the recitals) and not
otherwise defined herein shall have the respective meanings specified in the Tax
Indemnity Agreement or, if not defined therein, in Appendix A to the
Participation Agreement.
SECTION 2. AMENDMENTS
Section 2.1 Amendment of Section 1. Section 1 of the Tax Indemnity
Agreement is amended to include the following at the end thereof:
1
For purposes of this Agreement, the term "Loan Refinancing" shall mean the
transactions contemplated in connection with the execution and delivery of
Amendment No. 1 to the Participation Agreement, dated as of December 19,
2002, including the refinancing of the Loan Certificates on such date
pursuant to Section 10.2 of the Participation Agreement.
Section 2.2 Amendment of Section 4. Section 4(e)(xi) of the Tax Indemnity
Agreement is deleted in its entirety and the following is substituted in lieu
thereof:
(xi) the application of section 467 of the Code (except with respect
to the periods commencing on or after the date of the Loan Refinancing if
such application results from the Loan Refinancing or any subsequent
refinancing of the Loan Certificates pursuant to Section 10.3(b) of the
Participation Agreement or any rate reset pursuant to Section 2.12(b) of
the Loan Agreement, including the amendments to the Operative Documents
made to effect or in connection with the Loan Refinancing or such
subsequent refinancing or rate reset) or, except as to substitutions,
section 168(d)(3) of the Code.
SECTION 3. REFERENCE TO AND EFFECT ON TAX INDEMNITY AGREEMENT
Section 3.1 Reference. Upon the effectiveness of this Amendment, each
reference in the Tax Indemnity Agreement to "this Agreement," "hereunder,"
"hereof," "herein" or words of like import, to the Tax Indemnity Agreement,
shall mean and be a reference to the Tax Indemnity Agreement, as amended hereby.
Section 3.2 Effect. Except as specifically amended hereby, the Tax
Indemnity Agreement shall remain in full force and effect and is hereby ratified
and confirmed.
SECTION 4. MISCELLANEOUS
Section 4.1 Governing Law. This Amendment 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 shall be interpreted in such manner as to be effective and valid under
Applicable Law, but if any provision of this Amendment 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.
Section 4.3 Counterparts. This Amendment may be executed in any number of
counterparts, each executed counterpart constituting an original but all
together only one Amendment.
2
Section 4.4 Headings. The headings of the sections of this Amendment 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 this Amendment. This Amendment has been dated
as of the date first above written for convenience only. This Amendment shall be
effective on the date of execution and delivery by each of Old Dominion and the
Owner Participant.
[Signatures Follow on Next Page]
3
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered by their respective officers thereunto duly authorized as
of the day and year first above written.
OLD DOMINION ELECTRIC COOPERATIVE
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President Accounting and Finance
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Owner Participant
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Director
4
