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DEPOSIT AGREEMENT
Dated as of February 29, 1996
between
OLD DOMINION ELECTRIC COOPERATIVE,
as Depositor
and
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK
B.A., "RABOBANK NEDERLAND", NEW YORK BRANCH,
as Issuer
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DEPOSIT AGREEMENT
THIS DEPOSIT AGREEMENT is dated as of February 29, 1996
Between
(1) OLD DOMINION ELECTRIC COOPERATIVE (hereinafter the "Depositor"); and
(2) COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH (hereinafter the "Issuer").
WHEREAS, subject to the terms and conditions of this Agreement, the Depositor
wishes to place the Deposit with the Issuer which is prepared to accept the
Deposit on the terms set forth herein.
NOW THIS AGREEMENT WITNESSETH 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, unless
the context otherwise requires, the respective meanings shown opposite them:
"Certificate of Deposit" The Certificate of Deposit in the form of
Exhibit C to this Agreement.
"Deposit" The aggregate of the cash deposited by the
Depositor on the Closing Date in the amount
of $26,651,308.91 with the Issuer on the
terms and conditions set forth in this
Agreement, together with interest accrued
thereon upon the terms set forth herein. The
Depositor's interest in the Deposit shall be
evidenced by the Certificate of Deposit.
"Interest Payment Date" Each date specified on Exhibit A, as
modified by any amendment hereto.
"Participation Agreement" The Participation Agreement, dated as of
February 29, 1996 among (i) the Depositor,
(ii) First Union National Bank of Florida, a
national banking association, (iii)
Utrecht-America Finance Co., a Delaware
corporation, and (iv) 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, except as
otherwise expressly provided therein, but
solely as Owner Trustee under the Trust
Agreement, dated as of February 29, 1996,
between the Owner Trustee and First Union
National Bank of Florida (the "Trust
Agreement").
"Pledgee" 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 (the "Owner Trustee").
"Repayment Amount" As to any Repayment Date, the amount to be
paid hereunder as specified in Exhibit B,
as the same may from time to time be
amended.
"Repayment Date" Each of the dates specified in Exhibit B
hereto.
1.2 References in this Agreement to any agreement or document shall include
references to that agreement or document as amended, varied or
supplemented from time to time.
1.3 Clause headings are used herein for ease of reference only.
2. THE DEPOSIT, ETC.
2.1 The Depositor shall deposit on the Closing Date with the Issuer the
Deposit, and the Issuer shall accept such Deposit. The Depositor's
interest in the Deposit will be evidenced by the Certificate of
Deposit.
2.2 Interest shall accrue on the Deposit at the rate of 7.2% per annum in
respect of the amount from time to time on deposit. 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 in 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 and the amount of interest actually payable on such Interest
Payment Date shall be the amount on Exhibit A under the column
"Interest Payable."
2.3 The Issuer shall repay the Deposit in accordance with Clause 3.1.
2.4 The Depositor and the Issuer acknowledge and agree that (i) the
Depositor's rights hereunder have been pledged to the Pledgee pursuant
to the Deposit Pledge Agreement, dated as of February 29, 1996, between
2
the Depositor and the Pledgee and re-pledged by the Pledgee to the
Agent, acting on behalf and for the benefit of itself and the Lenders,
pursuant to the Loan Agreement, (ii) so long as any such pledge is in
effect, the Deposit and the Certificate of Deposit shall be under the
sole dominion and control of the relevant pledgee and (iii) so long as
any such pledge is in effect the Issuer shall not make any payments on
account of the Deposit to the Depositor unless it shall have received
notice from the Agent in the form of Exhibit D hereto.
3. REPAYMENT
3.1 The Deposit shall be paid in whole or in part on each Repayment Date in
the amount of the Repayment Amount for such Repayment Date as set forth
in Exhibit B. The Deposit shall also be paid in whole, upon demand by
the Depositor (or the relevant pledgee), on the date on which (i) the
Depositor is or becomes obligated to pay Termination Value or Fair
Market Sales Value under the Equipment Operating Lease or the
Foundation Operating Lease, the Walk Away Payment, the Foundation Walk
Away Payment, the Purchase Option Price or the Foundation Purchase
Option Price or any payment computed by reference thereto, (ii) the
Equipment Operating Lease or the Foundation Operating Lease is
terminated for whatever reason (including without limitation in
consequence of an Event of Default thereunder), (iii) any prepayment of
the Series B Loan Certificates, or (iv) the Owner Trustee or the Owner
Participant exercises its right to purchase the Loan Certificates under
Section 4.8 of the Loan Agreement. In addition, in the event that an
illegality of the character described in Clause 5.1 cannot be avoided
as contemplated therein within a 30-day period after the Issuer's
notification to the Depositor, the Issuer shall repay the Deposit.
4. PAYMENTS
4.1 To the maximum extent permitted under Applicable Law, all payments to
be made by the Issuer hereunder shall be paid without deduction,
set-off or counterclaim of any kind whatsoever, nor shall the Issuer be
entitled to exercise in respect of the Deposit any right of set-off,
combination, merger or consolidation and the Issuer hereby expressly
waives any and all such rights and any comparable rights, with respect
to any amounts owed to the Issuer by the Depositor, the Pledgee or any
other Person.
4.2 Any Repayment Amounts and, to the extent permitted by law, interest not
paid when due shall bear interest at the Overdue Rate for the period
during which the same shall be overdue.
For purposes of this Agreement, the Issuer acknowledges that it has
opened and will maintain an account in the name of the Depositor, which
account shall be under the sole dominion and control of the Agent,
acting on behalf and for the benefit of itself and the Lenders.
3
All payments by the Issuer hereunder shall be made prior to 12:00 noon,
New York City time, on each payment date specified in Clauses 2.2 and
3.1 hereof. All payments are to be made to the Depositor, subject to
the receipt of the notice contemplated by Section 2.4.
4.3 If any payment from the Deposit is required to be made on a day which
is not a Business Day, such a 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 Issuer 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 Issuer shall, upon becoming aware of any of the
aforesaid circumstances, notify the Depositor, the Pledgee and the
Agent, and the Issuer and the Depositor in consultation with the
Pledgee and the Agent shall co-operate to take such action as may be
reasonably available to each such Person to avoid or mitigate the
imposition of any such illegality, it being expressly understood and
agreed that the Issuer 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
Issuer.
6. ASSIGNMENT
6.1 This Agreement, including the Certificate of Deposit, shall inure to
the benefit of and be binding upon each of the parties hereto and their
respective successors and permitted assigns. No interest in the Deposit
may be conveyed or created without transfer of the Certificate of
Deposit.
6.2 The rights and duties of either party under this Agreement in respect
of any Deposit or otherwise, may not be assigned, transferred, pledged
or re-pledged in whole or in part (save only as provided by the Deposit
Pledge Agreement and the Loan Agreement or pursuant to any enforcement
thereof), without the prior written consent of the other party and then
only by transfer of the Certificate of Deposit.
7. REPRESENTATIONS AND WARRANTIES OF THE ISSUER
As of the date hereof, the Issuer represents and warrants to
the Depositor, the Pledgee and the Agent that:
(a) Organization; Authority. The Issuer is the New York Branch
of a Dutch bank organized, validly existing and in good standing and
has the full corporate power and authority to conduct its business as
presently conducted, to own or hold under lease its properties and to
execute, deliver and perform this Agreement.
4
(b) Due Authorization. The execution, delivery and performance
of this Agreement have been duly authorized by all necessary corporate
action on the part of the Issuer and do not require approval or consent
of, or notice to, any trustee or holders of any indebtedness or
obligations of the Issuer or any lessor under any lease to the Issuer.
(c) Conflict. Neither the execution, delivery or performance
by the Issuer of this Agreement nor the consummation or performance by
the Issuer of the transactions contemplated hereby will conflict with
or result in any violation of, constitute a default under, or result in
the creation of any Lien upon any property of the Issuer under, any
term of the certificate of incorporation or other charter documents or
By-laws of the Issuer or any agreement, mortgage, contract, indenture,
lease or other instrument, or any Applicable Law, by which the Issuer
or its properties or assets are bound.
(d) Legal, Valid and Binding Obligations. This Agreement has
been duly executed and delivered by the Issuer and constitutes the
legal, valid and binding obligation of the Issuer enforceable against
the Issuer 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.
(e) Governmental Consents. Neither the execution or delivery
by the Issuer of this Agreement nor the consummation of any of the
transactions contemplated hereby by the Issuer requires the consent or
approval of, the giving of notice to, the registration with, or the
taking of any other action in respect of, any United States federal,
state or other governmental authority or agency, including any judicial
body.
(f) Business. The Issuer is a financial institution
regularly engaged in issuing Dollar deposits.
8. MISCELLANEOUS
8.1 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.
8.2 Unless otherwise expressly specified or permitted by the terms hereof,
all communications and notices provided for herein 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
4
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 each party hereto at its
address set forth below or, in the case of any such party hereto, at
such other address as such party may from time to time designate
by written notice to the other parties hereto:
If to the Agent:
Utrecht-America Finance Co.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Finance Department
Telefax: (000) 000-0000
If to the Issuer:
Cooperatieve Centrale Raiffeisen-Boerenleenbank
B.A., "Rabobank Nederland", New York Branch
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Finance Department
Telefax: (000) 000-0000
If to the Depositor:
Old Dominion Electric Cooperative
P. O. Xxx 0000
Xxxx Xxxxx, Xxxxxxxx 00000-0000
Attention: Vice President of Accounting and Finance
Telefax: (000) 000-0000
If to the Pledgee:
State Street Bank and Trust Company
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Manager - Corporate Trust
Telefax: (000) 000-0000
6
with a copy to the Owner Participant:
First Union National Bank of Florida
0 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xx. Xxxxxxx X. Xxxxxx
Vice President
Telefax: (000) 000-0000
In the case of notice by facsimile such notice shall be effective upon
receipt which shall be deemed to occur when the addressee receives the
document in legible form and, in the case of a notice dispatched by
post (registered postage prepaid), on the fifth Business Day after
posting.
8.3 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.
8.4 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.
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IN WITNESS WHEREOF, the Depositor and the Issuer have caused
this Deposit Agreement to be duly executed and delivered by their respective
officers thereunto duly authorized.
OLD DOMINION ELECTRIC
COOPERATIVE,
as Depositor
By:/s/ XXXXXX X. XXXXXX
--------------------
Xxxxxx X. Xxxxxx
Vice President of Accounting and Finance
Date: March 1, 1996
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND", NEW YORK BRANCH,
as Issuer
By: /s/ XXXXX X. XXXXXXXXX /s/ X.X. DEN XXXX
---------------------- ----------------
Name: Xxxxx X. Xxxxxxxxx Name: X.X. Den Xxxx
Title: Vice President Title: Managing Director
Date: March 1, 1996
EXHIBIT A
TO
Deposit Agreement
-----------------
INTEREST PAYMENT SCHEDULE
-------------------------
Interest Interest Interest Added
Payment Date Accrued to Deposit Interest Payable
------------ -------- -------------- ----------------
28-Feb-97 1,902,903.46 1,902,903.46 0.00
5-Jan-98 1,746,643.50 40,076.36 1,706,567.14
5-Jan-99 2,064,497.50 526,923.64 1,537,573.86
5-Jan-00 2,102,436.00 255,150.00 1,847,286.00
5-Jan-01 2,120,806.80 255,150.00 1,865,656.80
5-Jan-02 2,139,177.60 226,800.00 1,912,377.60
5-Jan-03 2,155,507.20 292,005.00 1,863,502.20
5-Jan-04 2,176,531.56 104,895.00 2,071,636.56
5-Jan-05 2,184,084.00 141,750.00 2,042,334.00
5-Jan-06 2,194,290.00 141,750.00 2,052,540.00
5-Jan-07 2,204,496.00 0.00 2,204,496.00
5-Jan-08 2,202,667.86 0.00 2,202,667.86
5-Jan-09 2,199,478.55 0.00 2,199,478.55
5-Jan-10 2,196,050.04 0.00 2,196,050.04
5-Jan-11 2,192,364.39 0.00 2,192,364.39
5-Jan-12 2,188,402.32 0.00 2,188,402.32
5-Jan-13 2,184,143.10 0.00 2,184,143.10
5-Jan-14 2,179,564.43 0.00 2,179,564.43
5-Jan-15 2,174,642.36 0.00 2,174,642.36
5-Jan-16 2,169,351.14 0.00 2,169,351.14
5-Jan-17 2,163,663.07 0.00 2,163,663.07
5-Jan-18 2,157,548.41 0.00 2,157,548.41
EXHIBIT B
TO
Deposit Agreement
-----------------
REPAYMENT AMOUNTS
-----------------
Repayment Date Repayment Amount
-------------- ----------------
28-Feb-97 28,633,500.01
5-Jan-98 28,673,576.37
5-Jan-99 29,200,500.01
5-Jan-00 29,455,650.01
5-Jan-01 29,710,800.01
5-Jan-02 29,937,600.01
5-Jan-03 30,229,605.01
5-Jan-04 30,334,500.01
5-Jan-05 30,476,250.01
5-Jan-06 30,618,000.01
5-Jan-07 30,592,609.13
5-Jan-08 30,548,313.15
5-Jan-09 30,500,694.98
5-Jan-10 30,449,505.44
5-Jan-11 30,394,476.69
5-Jan-12 30,335,320.78
5-Jan-13 30,271,728.18
5-Jan-14 30,203,366.13
5-Jan-15 30,129,876.93
5-Jan-16 30,050,876.04
5-Jan-17 29,965,950.08
5-Jan-18 0.00
EXHIBIT C
TO
DEPOSIT AGREEMENT
CERTIFICATE OF DEPOSIT
U.S. $26,651,308.91 Maturity Date: January 5, 2018
This Certificate of Deposit evidences the obligation of Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland", New York Branch (the
"Issuer") to pay to the order of Old Dominion Electric Cooperative (the
"Depositor") the sum identified above, together with interest thereon at the
rate of 7.20% per annum, calculated on the basis of a year of 360 days and 12
months of 30 days each (the "Deposit"), in accordance with the provisions of the
Deposit Agreement, dated as of February 29, 1996 between the Depositor and the
Issuer (the "Deposit Agreement").
The Deposit shall be repaid by the Issuer to the Depositor in accordance with
the provisions of the Deposit Agreement, including the notice required by
Section 2.4 of the Deposit Agreement. Reference is made to the Deposit Agreement
for provisions concerning the prepayment of the Deposit prior to its maturity.
No interest in the Deposit, including any pledge or creation of a security
interest therein, may be effected without conveyance of this Certificate.
This Certificate shall be governed by and construed in accordance with the laws
of the State of New York.
IN WITNESS WHEREOF, the Issuer has caused this Certificate to be executed in its
corporate name, by one of its duly authorized officers.
Cooperatieve Centrale Raiffeisen-Boerenleenbank
B.A., "Rabobank Nederland"
-------------------------------------------
Name:
Title:
TRANSFER OF THIS CERTIFICATE IS SUBJECT TO RESTRICTIONS SET FORTH IN THE DEPOSIT
AGREEMENT REFERRED TO ABOVE.
C-1
EXHIBIT D
TO
DEPOSIT AGREEMENT
NOTICE OF PAYMENT OF RENT AND FOUNDATION RENT
Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A.,
"Rabobank Nederland", New York Branch
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Finance Department
Telefax: (000) 000-0000
The undersigned, as pledgee of the Deposit and Certificate of
Deposit (as each of such terms is defined in Appendix A to the Participation
Agreement defined in the Deposit Agreement dated as of February 29, 1996 between
Old Dominion Electric Cooperative and the addressee of this notice (the "Deposit
Agreement")), hereby advises you that there is no reason to withhold any payment
due on the date of this notice in respect of interest or Repayment Amounts under
the Deposit Agreement.
UTRECHT-AMERICA FINANCE CO.
------------------------------------
Title:
Date:
D-1
