ML20055G997
| ML20055G997 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 07/17/1990 |
| From: | Greene C CONSOLIDATED EDISON CO. OF NEW YORK, INC. |
| To: | NRC OFFICE OF INFORMATION RESOURCES MANAGEMENT (IRM) |
| References | |
| NUDOCS 9007250032 | |
| Download: ML20055G997 (34) | |
Text
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Carl C. Greens f-o a
. Vue humaws ams Cormoi6er c
1 Comohdated Edson Company of New York, Inc.
4 trying Place, Now York, NY 10003 i
Telephone (212) 4WP786 1
i July 17, 1990 I
i Document Control Desk U.S. Nuclear Regulatory Commission Washington, DC 20555 Ret Decommissioning Financial Assurance Certification Report for Docket Numbers 50-3
_(Indian Point No. 1) and 5-247__(Indian Point No. 2)
Dear Sir or Madamt This report is submitted by Consolidated Edison Company of New York, Inc.
(" Con Edison" or "the Company") pursuant to the nuclear decommissioning _ regulations of the Nuclear Regulatory Commission ("NRC" or "the Commission").
Section' 50.33 (k) (2) (10 C.F.R.
S 50.33 (k) (2)) of the Commission's regulations states that, on or before July 26, 1030, all production or utilization facility licensees are to-submit to the NRC "information in.the form of a report as described in S 50.75 of this>part, indicating how reasonable assurance will be provided that funds will be available to decommission the facility".
This is Con Edison's report for the NRC's decommissioning financing requirements applicable to Con Edison's two nuclear units, Indian Point Unit Nos. 1 and 2.
Indian Point Unit Nos. I and 2 are both Pressurized-Water Reactors producing less than 3400 MWt, for which NRC l
License No. DPR-5 and DPR-26 are currently and will continue to be in effect on July 26, 1990 for Indian-Point Nos. 1 and 2, respectively.
Con Edison represents the full ownership in Indian Point Nos. I and 2.
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' Con Edison will accumulate the amounts required by the Commission in an external sinking fund as authorized by Section 50.75 (e) (ii) of the Commission's regulations (10 C.F.R. S 50.75 (e) (ii)).
A separate decommissioning trust fund has been established for each of Con Edison's two i
nuclear units.
Contributions into the external funds commenced in 1989.
Previous to this, the Company had i
retained funds for decommissioning under the internal funding method, and certcin of those funds have been deposited into the external fund as well.
At May 31, 1990, the Company had made contributions of $34.9 million into the external fund, and the market value of the balance in the external fund was $37.1 million.
Con Edison's present contributions into the external fund match the amounts for decommissioning currently reflected in the electric rates set by con Edison'u state utility regulatory agency, the New York Public Service Commission ("NYPSC").
The NYPSC rate allowance for Con Edison's decommissioning activities is based on the most I
recent decommissioning cost estimate approved by the NYPSC, 1
which amounts to about 70 percent of the minimum funding j
levels calculated under Section 50.75 (c) of the Commission's regulations.
(Con Edison calculates the funding-levels prescribed by the Commission's regulations to be about $218.1 million at the time of decommissioning, adjusted to 1989 dollars.)
Con Edison's expectation, however, is that any disparity between Con Edison's rate recovery of decommissioning costs and the Commission's decommissioning funding requirements will be short term.
l The NYPSC's policy is to allow rate recovery of decommis-g L
sioning costs at levels calculated to comply with NRC requirements.
The NYPSC has not made a determination of Con Edison's decommissioning costs since the Commission issued its regulations in 1988, and Con Edison expects that its rate allowance for decommissioning will increase to at least the levels prescribed by the Commission following the NYPSC's next determination of the company's revenue requirement.
Con Edison expects such a determination to be made in the next twenty-four months.
Con Edison therefore is of the belief that the current rate of fund accumulation, together with the NYPSC's ratemaking practice respecting decommissioning costs and the Company's expectation as to the timing of the next revenue requirement determination, provides the requisite reasonable assurance that decommissioning will be provided in amounts
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required by the Commission.
I therefore certify on behalf of Con Edison that financial assurance for decommissioning in the.tmounts and in the form required by the Commission's i
regulations will be provided.
The Commission's rules require that as.part of this report the Company should submit a copy of the financial instrument obtained to satisfy the requirements of S 50.75 (e) of the rules (10 C.F.R.
S 50.75 (e)).
A copy of the Company's trust agreement, entitled " Master Nuclear Decommissioning Trust-Agreement Between Consolidated Edison Company of New York, Inc. and !!arris Trust and Savings Bank," effective December 31, 1988, is enclosed in compliance with this requirement.
If you have any questions or comments _concerning this i
submission, please contact Mr. John F. Cioffi, Assistant Vice President of Con Edison, 4 Irving Place, New York New York 10003, (212) 460-4751.
Sincerely, I.
un c.:
Steven B.
Bram Vice President i
Nuclear *
'e r Con Ediso-John F. Cioffi l
Assistant Vice President Corporate Accounting Con Edison L
Robert S. Wood Nuclear Regulatory Commission L
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MASTEP NUCLEAR DFCOMMISSIONING TRUST' AGREEMENT i
t BETWEEN s e CONSOLIDATED EDISON COMPANY OF t
NEW YORK, INC, AND PAPRIS TRUST AND SAVINGS BANK r
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Effective December 30, 1988 i
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Section' Page ARTICLE 1 - TITLP AND DEFINITIONS' L
-1.1 Name 1
1.2 Definitions' 1-ARTICLE.II - PSTABLISHMENT OF TRUST i
2.1 '
Purpose 7
2.2 Separate Trusts 7
2.3 Domestic Trust 7
2.4-Contributions 7
l 2.5 Equitable-Shares 8
.2.6
. Valuations 8
2.7 Other Records and Returns 8
ARTICLE !!I ADMINISTRATION OF TUPDS 3.1 ' Disbursement of Assets 9
3.2 Excess Funds-9 3.3 Transfer of Ownership 9
3.4 neliance on Committee 10-
'3.5 Duty to Enforce Claims 10 4
ARTICLE IV - MANAGEMENT OF ASSETS
-4.1 Asset Managers 10 4.2 Investment Discretion 10 3
4.3 'Limitatio'.s on Investment-and Other Discretion 11 4 '. 4 Responsibility for. Diversification 11 1
.This Table of Contents is for the convenience of the parties 4
only and=is not a part of the attached Agreement.
l (i)
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>4 Section Pace t
i ARTICLE V - RESPONSIBILJTY FOR DIRECTED FUNDS l
5.1 Responsibility for Selection of Agents 11 5.2 Trustee Not Responsible for Investments 12.
in Directed ~ Funds 5.3 Investment Vehicles 12 5.4 Peliance on-Asset Manager 12' 5.5 Murger of Funds 13
- 5. 6.
Restrictions on Transfer 13 ARTICLE VI - POWERS OF ASSET MANAGERS 6.1 General Powers
.13 6.2 Additional Powers of Trustee
'15 6.3 Prior Consent 16 q
ARTICLE VII - RECOPDS AND ACCOUNTS OF TRUSTEE 7.1 Records 17 1
17 1
7.2 Annual Account 7.3 Account Stated 17 7.4 Judicial Accountings 17
- 7. 5' Necessary Parties 17 7.6 Interim Reports 17 y,
ARTICLE VIII - COMPENSATION, TAXES AND EXPYNSES 8.1 Compensation and Expenses 18 la 8.2 Taxes
~ 18 8.3 Allocation 8.4 indemnity 18 L
i.
ARTICLE IX'- RESIGNATION OR REMOVAL OF TRUSTEE 1'
9.1 ~ Resignation-or Pemoval 19 9.2 -Designation of a Successor 19-9.3 Reserve for Expenses 19
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' ARTICLE X - AMENDMENT OR TERMINATION 10.1 Amendment 19 10.2 Termination 19 10~.3-Trustee's Authority to Survive Termination 20 t
L 10.4 Anti-diversion 20' 10.5. Trustee's Reliance 20 i
ARTICLE XI - AUTHOP.ITIES
-11.1 Company 20 11.2 Subsidiary or Affiliate 21 11.3 Committee-2.1 -
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11.4 Investment Manager.
21 11.5 Form of Communications 21 11.6 Continuation of Authority 21 11.7 No Obligation to-Act on Unsatisfactory 22 Notice ARTICI,E XII - GENERAL PROVISIOPS 12.1 Coverning Law' 22 32.2. Submission to Ju risdiction 22 12.3 Entire' Agreement 22 l'2. 4. Mistake 22 12.5~ Reliance on Experts 23 12.6 Successor to the Trustee 23 12.7 Notices 23 12.8 No Waivert Reservation of Rights 22 12.9-Descriptive lleadings 23 i
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i, Agreement and Declaration of Trust made as of December 30,
_1968, by and between Consolidated Edison Company of New York, j
Inc..(" Con Edison"), a New York corporation having its principal l
place of business at 4 Irving Place, New York, New York, 10003, and Harris Trust and Savings Bank, an Illinois banking corporation (" Harris").
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WHEREAS, Con Edison has direct ownership interests in one or more nuclear generating facilities (as more fully described in j
Schedule I annexed hereto and made a part hereof) which (or units i
of which) will be Decommissioned (as hereinafter defined) in the future; and WHEREAS, Con Edison's regulator has permitted Con Edison to include in its cost of service for ratemaking purposes certain amounts which Con Edison proposes to pay into an externally maintained decommissioning trust fund in order to provide funds for Decommissioning each of such facilities; and WlIEREAS, under certain conditions contributions by con Edison to a decommissioning trust fund may, at the election of l
Con Edison, qualify as a deduction from income for Federal and/or state income tax purposos; and WHEREAS, Con Edison desires to establish a separate decommissioning trust fund for each Nuclear Power Plant (as hereinafter defined) described on Schedule I and tc the extent
. permitted by law to maintain each such fund so that all payments thereto will be eligible for a Federal and/or state income tax deduction by Con Edison.
NOW, THEREFORE, Con Edison and Harris declare and agree that Harris will receive hold and administer all sums of money or other property as shall from time to time be contributed or paid over to it hereunder IN TRUST upon all of the following terms and conditions:
ARTICLE I Title and Definitions 1.1.
Name.
The master decommissioning trust established hereunder sEaTI be known as the " Con Edison Master Nuclear Decommissioning Trust" and is sometimes hereinafter referred to as the " Trust".
1.2.
Definitions.
Where used in this Agreement and Declaration of Trust unless the context otherwise requires or l
unless'otherwise expressly provided:
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- F (a)
" Authorized Person" shall mean the officer or officers of the Company.actina jointly, severally or as a committee, desionated to represent the Company and take any action required
-or authorized to be taken by the Company under this Agreement, the identity of whom shall be certified to the Trustee in accordance with Article XI.
r (b)
" Accounting Period" shall mean either the twelve consecutive month period coincident with the Tax Year or the shorter period within any such year in which the Trustee accepts appointment as Trustee hereunder or ceases to act as Trustee for any reason.
(c)
" Administrative Costs and other Incidental Expenses" or
" Administrative Expenses" shall mean all ordinary and necessary expenses incurred in connection with the administration and operation of a Fund, including the tax, if any, imposed by Code Section 468 (e) (2), any state or local tax imposed on the Company or the Fund which is attributable to the income or the assets of the Fund, legal expenses, accounting expenses, actuarial expenses, investment management fees, indemnification costs incurred by the Company and all fees and expenses of the Trustee arising out of the Fund.
Administrative Expenses with respect to any Qualified Fund shall not include Decommissioning Costs or any excise tax that may be imposed on the Trustee or other disqualified person under Section 4951 of the code or the reimbursement of any expense incurred in connection with the assertion of such excico tax unless it is determined that the Trustee or other disqualified person is not liable for such exelse tax and.any. expense incurred in connection therewith is considered reasonable and necessary under Section 4951(d) (2) (C) of the Code.
l (d)
" Agreement" shall mean all of the provisions of this E
instrument (including Schedule I) and of all other instruments amendatory hereof.
L (e)
" Asset Manager" shall mean the Trustee (other than for purposes of Article V), the Committee or Investment Manager, individually or collectively as the context shall require, with respect to those assets held in an Investment Account over which it exercises, or to the extent it is authorized to exercise, I
discretionary investment authority or control.
(f)
" Bank business day" shall mean a day on which the Trustee is open for business.
l (g)
" Board of Trustees" shall mean the Poard of Trustees of the Company, i
3-(h)
" Code" shall mean the Internal Revenue Code of 1986, as amended from time to time, and regulations promulgated thereunder.
(1)
" Commission" shall mean any public regulator or regulatory body or instrumentality, agency or official (judicial i
or otherwise) directly or indirectly of the United States, or of any State or political subdivision thereof, as the case may be, having authority to fix rates for the furnishing or sale of electrical energy or, to set standards for the maintenance of and/or to supervise the Decommissioning of a Nuclear Power Plant.
(j)
" Committee" shall mean the Persons, individually or collectively,_ responsible for administration of the Fund as hereinafter provided, the composition and identity of which shall be certified to the Trustee in accordance with Article XI.
(k)
" Company" shall mean con Edison or any cuccessor thereto.
(1)
" Contributions" shall mean amounts contributed by the Company to a Fund.
(m)
" Cost of Service Amount" shall mean the amount of Decommissioning Costs included in the Company's service costs for ratemaking purposes for the Tax Year, that is properly allocable to the Nuclear Power Plant for which a Fund has been established.
(n)'
" Decommission" or " Decommissioning" shall mean all activities to remove a Nuclear Power Plant safely from service ard to reduce residual radioactivity to a level that permits release of the property for unrestricted use and termination of license.
I (o)
" Decommissioning Costs" shall mean all costs and expenses incurred by the Company to Decommission, including expenses incurred in connection with the entombment, decontamination, dismantlement, removal and disposal of the structures, systems and components of a Nuclear Power Plant that has permanently ceased the production of electric energy.
Such l
term includes expenses incurred in connection with the l
preparation for Decommissioning, such as engineering and other l
planning expenses, and expenses incurred after the actual L
Decommissioning occurs, such as physical security and radiation monitoring expenses, and all similar expenditures.
Such term, when applied to Qualified Funds, shall not include any cost or expense which does not constitute deductible Decommissioning Costs under the Regulations.
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(p)
" Directed Fund" shall mean any Fund or Investment Account or part thereof sub4ect to the discretionary management and control of the Committee or any Investment Manager.
i (q)
" Discretionary Fund" shall mean any Fund or Investment i
Account or part thereof, sub,iect to the discretionary management and control of the Trustee.
'r)
" Equitable Share" shall mean the interest, if any, of a Fund in any Investment Account.
i (s)
" Excess Contributions" shall mean Contributions i
designated as Excess Contributions pursuant to Section 2.4 but, with respect to a cualified Fund shall mean contributions in excess of the lesser of the Cost of Service Amount and the Ruling Amount.
l (t)
" Excess Funds" shall mean the money and other property set aside and accumulated in a Fund which, subsequent to substantial completion of Decommissioning are not required to satisfy the Company's share of the Decommissioning Costs.
(u)
" Fund" shall mean all cash with respect to a Qualified Fund and all cash or other property with respect to any other Fund contributed or paid to the Trustee hereunder in respect of a l
separate Nuclear Power Plant, all investments made therewith and proceeds thereof and all earnings and profits thereon, less i
payments, transfers or other distributions from the Fund which, at the time of. reference, shall have been made by the Trustee, as l
authori:ed herein.
(v)
" General Trust" shall mean any common, commingled or collective trust created and maintained by Harris in which one or i
mere of the Funds is eligible to participate.
(w)
":larris" shall mean Harris Trust and Savings Bank.
(x)
" Instructions" shall mean written and manually signed instructions of any Authorized Person, Asset Manager or the Committee.
" Instructions" shall also include " Instructions 1
Received By Any Other Means" provided that the parties hereto shall have agreed in a manually signad writing to the form, the means of transmission and the means of identification of such Instructions.
" Instructions Received by Any Other Means" shall include, but shall not be limited to, (i) oral instructions (whether or not confirmed in writing) and (ii) instructions received by computer, electronic instruction system or telecommunications terminals (including telex, TWXS, facsimile transmission or bank wire).
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-(y)
" Investment Account" shall mean each pool of assets in the Trust in which one or more of the Funds has an interest during an Accounting Period.
(:)
" Investment Manager" shall mean a domestic bank or insurance company or an investment adviser registered under the Investment Adviser's Act of 1940.
(aa)
" Investment Vehicle" shall mean any common collectivs or commingled trust, investment company, corporation functioning as an investment intermediary, insurance contract, partnership, joint venture or other entity or arrangement to which, or pursuant to which, assets of a Fund may be transferred or in which a Fund has an interest, beneficial or otherwise.
(bb)
" Master Nuclear Decommissioning Trust" shall mean the Trust and shall include each Fund established hereunder.
(cc)
" Nuclear Power Plant" shall mean a nuclear power reactor that is used predominantly in the trade or business of the furnishing or sale of electric energy, if the rates for such furnishing or sale, as the case may be, have been established or approved by a Commission, including individual reactors located at a multi-reactor site.
(dd)
" Obligations of a State or Local Government" shall mean_ obligations of a State or local Governmental unit the interest on which is exempt from tax under Section 103 (a) of the Code.
(ee)
" Payment Certificate" shall mean a written authorization of the Company described in Section 3.1 signed by an Authorized Person.
(ff)
" Permitted Investments" shall mean Public Debt Securities of the United States, obligations of a State or Local L
Government which are not in default as to principal or interest, I
or Time or Demand Deposits in a bank (as defined in Section 501 l
of the Code), or an insured credit union (within the meaning of Section 101(C) of the Federal Credit-Union Act, 12 U.S.C.
1752(7)(1982)), located in the United States and such other investments authorized by the Internal Revenue Service L
Regulations proraulgated under Section 468A of the Code.
(gg)
" Person" shall mean a natural person, trust, estate, corporation of any kind or purpose, mutual company, Commission, joint-stock company, unincorporated organization, association, partnership, joint venture, employee organization, committee, g
board, participant, beneficiary, trustee, partner, or venturer acting in an individual, fiduciary, or representative capacity, as the context may require.
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I (hh)
"Public Debt Securities of the United States" shall mean obligations that are taken into consideration for the purposes of the public debt limit.
Such oblications are Treasury bills, Treasury notes, Treasury bonds and savings bonds.
(ii)
" Qualified Fund" shall mean a Fund with respect to which the Company has advised the Trustee it intends to make an election under Section 468A of the Code.
(jj)
" Regulations" shall mean regulations promulgated'under Section 468A of the Code.
(kk)
" Ruling Amount" shall mean with respect to.any Tax Year the amount which the Secretary of the Treasury determines in accordance with Section 468A(d) of the Code and the Regulations to be necessary tot (1) fund that portion of the Company's share of Decommissioning Costs with respect to a Nuclear Power Plant for which a Qualified Fund has been established hereunder which bears the same ratio to the Company's total chare of Decommissioning Costs with respect to such Plant as the period for which the Trust Fund is in effect bears to the estimated useful life of such Plant, and (2) prevent any e.Meessive funding of the Company's share of such Decommissioning Costa or the funding of the Company's share of Decommissioning Costs at a rate more rapid than level funding taking into account such discount rates as the Secretary of the Treasury deems appropriate.
(11)
"Section" shall mean a section of the Agreement.
(mm)
" Tax Year" shall mean the Company's tax year used in filing its federal income tax returns.
(nn)
" Time or Demand Deposits" shall mean checking accounts, certificates of deposit or other time or demand deposits.
The term does not include common or collective trust funds.
(oo)
" Trustee" chall mean Harris, as Trustee of the Trust and each separate Fund established hereunder.
(pp)
" Valuation Date" shall mean the last day of the
. Accounting Period, Accounting Period cuarter or any more frequent reporting date agreed to by the Trustee and the Committee.
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. The plural of any term shall have a meaning corresponding to the singular thereof as so defined and any neuter pronoun used j
herein shall include the masculine or feminine, as the context may require.
ARTICLE II l
Establishment of Trust 2.1.
Purpose.
The Master Nuclear Decommissioning Trust is establiuhed to fund the Company's share of the Decon.missioning t
Costs associated with certain Nuclear Power Plants in which the Company has a direct ownership interest.
Except as may otherwise be permitted by law, at no time prior to the satisfaction of all Decommissioning Costs and Administrative Expenses of a Nuclear Power Plant with respect to which a Oualified Fund has been established hereunder shall any part of such Fund or the Equitable Share of such Fund in any Investment Account established under the Trust be used for, or diverted to, any other purposes.
2.2.
Separate Trusts.
A separate Fund shall be established for each Nuclear Power Plant.
Each Fund established hereunder shall constitute a separate trust and shall be held and administered pursuant to the terms of the Agreement to defray the Decomnissioning~ Costs and Administrative Expenses associated with the. Nuclear Power Plant with respect to which the Fund was established.
2.3.
Domestic Trust.
The Trust shall at all times be maintained as a domestic trust in the United States.
2.4.
Contributions.
From time to time, the Company shall make contributions to a Fund.
The Company shall calculate thu amount of Contributions to be allocated to each Fund.
Contributions to a cualified Fund shall be in cash and shall not exceed the amount deductible by the Company under Section 468A of the Code for the Tax Year on account of which such Contribution was made or deemed made.
The Trustee shall have no l
responsibility to any Person for enforcing payment of any Contributions to, or for the timing, computation, deductibility i.
or amount thereof, or for the adequacy of the Fund or.the funding L
standards adapted by the Company to meet or discharge any
-Decommissioning Expenses or other liabilities in connection with i
a, Nuclear Power Plant.
If any Contributions or part thereof are subsequently determined by the Company in its sole and absolute discretion to be Excess Contributions, the Authorized Person y
shall deliver a Payment Certificate within the time prescribed p
for'the withdrawal of Excess Contributions in the Regulations advising the Trustee of the amount of the Excess Contributions
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-B-p and the Trustee shall pay over to or on the order of the Company the amount stated therein.
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.?.S.
Equitable Shares.
If at any time the Company advises the Trustee that the separate Funds may be commingled for t
investment purposes hereunder, the Trustee shall establish on its books and records one or more Investment Accounts to facilitate the commingling of such investments and shall maintain a separate account reflecting the Equitable Share of each participating
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Fund, or part thereof, in each Investment Account.
Each such I
Investment Account shall be maintained in accordance with the Regulations for the commingling of nuclear decommissioning funds.
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The Committee shall provide the Trustee with current information i
in order that the Trusteu may determine such Equitable Shares.
Each of the Funds participating therein shall have a separate, proportionate and undivided interest in each asset in the Investment Account,. hut, for the convenience of the Company, the l
Trustee may describe such ownership interest in terms of " units".
j A Fund or an Investment Account may be divided into such one or more sub-funds or accounts or described in a different manner on any books kept or reports rendered by the Trustee without in any way affecting the duties or responsibilities of the Trurtee under 1
L the provisions of this Agreement.
l 2.6.
Valuations.
The Trustee shall determine the value of 1
the assets of each Fund as of each Valuation Date.
Assets will be valued at their market valuesHat the close of business on the Valuation Date, or, in the absence of readily ascertainable market values, at such values as the Trustee shall determine in
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j accordance with methods consistently followed and uniformly applied.
Anything in this Agreement to the contrary notwithstanding, with respect to assets constituting part of a Directed Fund, the Trustee may rely for all purposes of this j
Agreement on the latest valuation and transaction information submitted to it by the Person responsible for the' investment of
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such assets even if such information predates the Valuation Date.
The Committee will cause such Person to provide the Trustee with all information needed by the Trustee to discharge its obligations to value such assets and to acccant under this Agreement.
2.7.
Other Records and Returns.
Except as the Trustee may L
otherwise agree in writing, the Trustee shall not be required to p
maintain any records or accounts with respect to any Fund, other i
than those required by Section 7.1.
The preparation, filing, making and accuracy of any periodic returns or reports or deposits required to be filed or made on account of a Fund with any~ Federal, state or local taxing authority shall be the solo responsibility of the Company an the Trustee's responsibility under-this Agreement shall be limited to signing any. return on i
j 9-which its signature is required to secure a timely filing at the 7
-direction of an Authorized Person and disbursing funds to pay f'
such taxes and expenses incurred in connection with or arising out of<the preparation or. filing of such returns from the i
designated Fund pursuant to a Payment Certificate.
t' APTICLE III Administration of Funds 3.1.
Disbursement of Assets.
Upon the delivery of a Payment Certificate, the Trustee shall deliver moneys in a Fund, l,
free of trust, to or on the order of an Authorized Person.
The i
Payment Certificate shall include:
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I (1) the name and address of the person or entity to whom payment is to be made (which may he the Company);
(2) the amount of money to be paid or assets to be transferred; and (3L the Fund against which the payment is to be charged.
The Payment Certificate need not disclose the purpose for which the payment or transfer is being made.
The Cempany shall be solely responsible for ensuring that assets of a Fund are disbursed hereunder solely for the purposes of paying Decommissioning Costs and Administrative Expenses, or when I.
circumstances permit or require and upon obtaining any required approval of a: Commission or any other Person, to the Company as Excess Contributions or Excess Funds, or to a successor trustee l
'in' connection with the transfer of an ownership interest in a Nuclear Power Plant.
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3.2.
_ Excess Funds.
Upon the termination of any Fund pursuant to Article X, Excess Funds, if any, shall revert to the Company.
3.3.
Transfer of Ownership.
If the Company's direct ownership interest in any Nuclear Power Plant for which a Qualified Fund has been established hereunder is sold, exchanged, or otherwise, disposed of, in whole or in part, and the Company p
elects to transfer any portion of the Fund which is deemed distributed to the Company under Regulations promdigated under
.Section 468A of the Code into a separate trust for the benefit of the Company's successor in interest, the Company shall so notify
-the Trustee.
The Trustee may enter into a separate trust agreement with the-Company's successor in interest containing substantially the smne terms set forth herein and shall transfer the amount stated in the Payment Certificate to the separate
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In the event that the Company's successor selects.another trustee to administer the separate trust, the Trustee shall transfer the amount specified in the payment Certificate to the transferee trustee, and the Trustee shall have no further duties or obligations in connection with respect to the amount transferred or with respect to the transferee trust. -Transfers made pursuant to this Section 3.3 chall be in cash only.
3.4.
Reliance on Committee.
The Trustee shall not be responsible for the. form or content of any Payment Certificate delivered to it under any provision of the Agreement.
The Trustee shall charge such transfer of assets against such one or
.more of the runds as the Payment Certificate shall direct.
Each direction to the Trustee in a Payment Certificate shall constitute a certification by the Company that such direction is in accordance with applicable law and regulation, the terms of this Agreement, and all reauisite consents, waivers or approvals of a Commission or any other Person have been duly and validly obtained, given or waived, as the case may be.
The Trustee may rely conclusively on any such certificate and shall have no duty to make any independent inquiry or. investigation before acting upon any direction contained therein.
3.5.
Duty to Enforce Claims.
The Trustee shall have no duty to commence or maintain any action, suit or legal proceeding on behalf of the Trust or any Fund unless the Trustee has been directed,to do so by the Company and unless the Trustee is either in possession of. funds sufficient for such purpose or unless it has been indemnified by the Company, to its satisfaction, for counsel fees, costs and other expenses and liabilities to which it, in its sole judgment, may be subjected by beginning or l
mhintaining such action, suit or legal proceeding.
ARTICLE IV Management of Assets 4.1.
Asset Managers.
Discretionary authority for the management and control of assets from time to time held in a Fund or allocated to an Investment Account may be retained, allocated or delegated, as the case may be, for one or more purposes, to and among the Asset Managers by the Committee, in its absolute discretion.
The terms and conditions of appointment, authority and retention of any Asset Manager shall be the sole responsibility of the. Committee.
The Committee shall promptly notify the Trustee in writing of the appointment or removal of an Asset Manager.
4.2.
Investment Discretion.
Subject to the provisions of Section 4.3, the assets of a Fund or an Investment Account shall
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' be invested and reinvested, without distinction between principal and income, at such time or times in such investments and pursuant to such investment strategies or courses of action and in such shares and proportions, as the Asset Manager responsible therefore, in its sole discretion, shall deem advisable.
4.3.
Limitations on Investment and other Discretion.
The Committee may limit, restrict or impose guidelines affecting the exercise of the discretion hereinabove conferred on any Asset Manager, and any assets of a Qualified Fund shall be invested only when they are not currently required to pay Decommissioning
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Costs and Administrative Expenses.
Assets of a Qualified Fund and any Investment Account through which assets of a Qualified Fund are invested shall be invested exclusively in Permitted investments.
Any limitations, restrictions or guidelines applicable to the Trustee, as Asset Manager, shall be communicated in writing to the Trustee.
The Trustee shall have no responsibility with respect to the formulation of any funding policy or any investment or diversification policies embodied therein.
The Committee shall be solely responsible for communicating any limitations or guidelines imposed on any other Asset Manger by this Agreement or the Committee or applicable law (including, but not limited to, the Begulations and any prohibitions against self-dealing under Section 468A(e) (5) of the code), and the Trustee shall have no responsibility for communicating any such limitations or guidelines to any other Asset Manager.
4.4.
Responsibility for Diversification.
The Committee shall be responsible for determining the diversification policy, if any, for a Fund, for monitoring cdherence by the Asset Managers (other than the Trustee) to such policy, and for advising the Asset Managers with respect to any other limitations on investments in any Fund imposed on such Fund by the Company, a
[
Commission or applicable statute or regulation.
1 i
ARTICLE V Responsibility for Directed Fun,d,s_
j 5.1.
_ Responsibility for Selection of_ Agents.
All i
transactions of any kind or nature in or from a Directed Fund shall be made upon such terms and conditions and from or through such principals and agents as the Asset Manager shall direct.
No such transactions shall be executed through the facilities of the i
i Trustee except where the Trustee is permitted to and shall make l
available its-facilities solely for the purpose of temporary L
investment of cash reserves of a Directed Fund.
(However, l
nothing in the preceding sentence shall confer any authority.upon i
the Trustee to invest the cash balances of any Directed Fund unless and until it receives directions from the Asset Manager.)
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" * ~ ' u 5.2.
Trustee Not Responsible for Investments in Directed Funds.
The Trustee shafl be under no duty or obligation to.
~
review or-to question any direction of any Asset Manager, or to review securities or any other property held in any Directed Pund with respect. to prude:.ce or proper diversification, or to make any suggestions or recommendatian to the Company, the Committee or the Asset Manager with respect to the retention or investment of any essets of any Directed Fund, and shall,have no authority to take any action or to refrain from taking any action with respect to any' asset of a Directed Fund unless and until it is directed to do so by the Asset Manager.
Notwithstanding the foregoing, the Trustee and the Company may from time to time agree-that the Trustee shall furnish reports to the Company on a' weekly or other periodic basis, showing whether a review by.the
- Trustee of transactions affecting the assets of a Directed 1 Fund during the week or-other period preceding the review revealed any deviation from specified investment guidelines or limitations
' applicable to such Directed Fund.
To the extent that the Trustee agrees to furnish such reports the Trustee shall be responsible for exercising reasonable care in performing such reviews, preparing such' reports-and communicating them to the Company.--
5.3.
Investment vehicles.
Any Investment Vehicle, or interest therein, acquired by or transferred to the Trustee upon the directions of the Asset Manager shall be allocated.to the appropriatt Directed Fund, and the Trustee's duties and responsibilities under this Agreement shall not be increased or otherwise affected thereby.
Subject to Section 5.2, the Trustee shell;he responsible solely'for the safekeeping of the evidence of the Fund's ownership of or int-test or participation in such Investment Vehicle.
5.4.
Reliance on Asset Manager.
The Trustee shall be required under this Agreement to execute on behalf of or in the name of the Fund and to make and receive payments on the direction of the Asset Manager.
The Trustee may rely on>the Instructions of the Asset Manager as confirmation (i) that the transaction will not constitute a prohibited transaction under LSection 4951 of the Code made applicable to a Qualified Fund under Section 468A of the~ Code or under the Regulations, (ii) that the investment is authorized under the terms of this Agreement and any other agreement or law affecting the Asset Manager's authority to deal with the Directed Fund, (iii) that any contract, agency, joinder, adoption,, participation or partnership agreement, deed, assignment or other document of any kind which the Trustee is required to execute to effectuate the
-transaction has been reviewed by the Asset Manager and, to the extent.it deems. advisable and prudent, it counsel, and (iv) that such instrument or document is in proper form for execution by the Trustee, and subject to Section 5.2, the Trustee shall have
gr l
oc no duty to make any independent inquiry or investigation as to any.of-thelforegoing when acting upon such Instructions.
5.5.
Merger of Funds.
The Trustee shall not have any
~ discretionary responsibility or authority to manage or' control
~
any. asset: held in a Directed Fund upon the resignation or removal of an Asset Manager unless and until it has been notified in writing by the Committee that the Asset Manager's authority has m
terminated and that such Directed Fund's assets are to be
. integrated with the Discretionary Fund.
Such notice-shall not be deemed ~ effective, except with the consent,of the Trustee, until two bank business days after it has been received by the Trustee.
"The Trustee shall not be liable for any losses to the Fund resulting from the disposition of any. investment made by the Asset Manager or for the~ retention of any 1111guid or l
unmarketable investment or any investment which is not widely K
-publicly traded or'for the holding of any other investment
[
-acquired 1by the Asset Manager if the Trustee is unable to dispose of such investment because of any restrictions imposed by the Securities Act of 1933 or other Federal or' state law, or if an orderly' liquidation of such investment is impractical._under prevailing conditions, or for any other violation of the terms of this Agreement or applicable law resulting from the addition of Directed Fund assets to the. Discretionary Fund.
5.6.
Restrictions on Transfer.
Nothing herein shall be deemed to empower any Asset Manager to direct the= Trustee to-transfer any asset of a Directed Fund to itself except for purposes enumerated in' paragraph (1) and (:m) of Section 6.1..
ARTICLE VI Powers of Asset Manaaers L
6.1.
General Powers.
Without in any way limiting the L
powers and discretions conferred upon any Asset Manager by the
'other provisions of this Agreement or by law,'each Asset Manager shall be vested with the.following. powers and discretions with respect to'the assets of the Trust subject to its management and control, and,~upon the direction of the Asset Manager of a K
Directed Fund, the Trustee shall make, execute. acknowledge and deliver any and all documents of transfer and conveyance and any and all other instruments that may be necessary or appropriate to enable such Asset Manager to carry out such powers and i
L discretions:
p 0
(a)-
To sell, exchange, convey, transfer or otherwise
~ dispose..of any property by private contract or at public auction, p
and no person dealing with the Asset Manager sball be bound to see-to the application of the purchase money or to inquire into 1
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1 the' validity, expediency or propriety of any such sale or other disposition;-
(b)-
to enter into contracts or to make commitments either alone or in company with others to sell or acquire property; (c)- to purchase or sell, write or issue, puts, calls or other options, covered or uncovered, to enter into financial futures contracts, forward placement contracts and standby.
. contracts, and in connection therewith, to deposit, hold (or e
direct liarris, as Trustee or in its individual capacity, to 1
deposit or-hold) or-pledge ar. sets of a Fund; u
'(d) to purchase part interests in real property.or in-mortgages on real property, wherever such real property may be Esituated; (e)' to lease to others for any term without regard to'the-duration of the Trust any real property or part interest in real property; (f) to delegate to a manager or the holder or holders:of a major..y interest in any real property or mortgage on real property or in anv oil, -mineral or gas properties,.the management '
and operation of.any part interest in such property'or properties (including.the authority to sell such part interests or otherwise v
carry out the decisions of such manager or-the holder or holders 4
Lof such majority interest);
u (g) to vote upon any stocks, bonds or other securities (but
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- subject to.the suspension of any voting rights as a result of any broker loan or similar agreement) ; to give general or special proxies or powers of attorney with or without power of substitutions.to exercise any conversion privileges, subscription rights or other options and to make~any payments. incidental-thereto;.to. consent to or otherwise participate in corporate reorganizations or other changes affecting corporate securities and to delegate discretionary powers and to pay any assessments
~
or~ charges in connection therewith; and generally to exercise any
.of the powers of an owner with respect to stocks, bonds, securities or-other property; f
(h) to organize corporatiuns under the laws of any state for the purpose of scquiring or holding title to proper ty (er to direct the Trustee to organize such corporations or to appoint an ancillary trustee acceptable to the Trustee fcr such purpose);
(1) to invest in a fund consisting of securities issued sy-corporations and selected and retained solely because of their inclusion in, and in accordance with, one or more commonly used
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' indices offsuch securities, with.the objective of providing I
Jinvestment results for the. fund which approximate the overall H
- performance of such designated index; (j)-. to enter into any partnership, as a general or limited partnex,cor joint venture; (k) to purchase units or certificates issued by an investment company;or pooled trust or comparable entity; v
(1) to transfer money or other property to an insurance company issuing an insurance contract; i
se
- ny to transfer assets of a-Discretionary or Directed Fund to-a cawmon, collective-or commingled trust fund exempt from tax a
under ae Code maintained by an Asset Manager or an affiliate of an Asset Manager or by another trustee who is designated by the Committee,'to'be held and invested subject to all of the terms.
and conditions.thereof, and such trust shall be deemed adopted as i
part of the Trust to the extent that assets of a Fund are sinvested.therein; provided, however,.that any transfer from a LDirected Fund to.the General. Trust may be made only with the
. prior-approval of the Trustee and chall be invested only in one-
.or more short. term investment funds established from time to time thereunder; and (n) to be reimbursed for the expenses incurred in exercising-any of the foregoing powers or.to pay the reasonable expenses; incurred by any agent, manager or trustee appointed pursuant hereto.
o 5
6.2.
Additional-Powers _of Trustee.
In addition, the Trustee is hereby authorized:
(a). to register any securities held -for. any Fund in its own name or in the name.of a nominee and to hold any securities in 1
bearer. form, and to combine certificates representing such securities with certificates of the same issue held by the Trustee in other fiduciary or representative capacities or &s agent for customers, or to deposit or to arrange for the deposit-of such securities in any qualified central depository even n
l though, when so deposited, such securities may be merged and held in' bulk in the name of the nominee of such depository with other L
securities deposited therein by other der.asitors, or to deposit or. arrange for the deposit of any securities issued by tne United u
States Government, or any agency or instrumentality thereof, with 1.
.a' Federal Reserve Bank, but the books and records of the Trustee Ql-
.shall at all times.show that all.such investments are part of the Fund;-
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e l t.* (b) to employ suitable agents, depositories and counsel, domestic or foreign,'andito charge their reasonable-expenses and-compensation against the Fund, and to confer upon any such
- depository-the: powers conferred upon the Trustee by paragraph- (a) of-this Section 6.2 as well as the power to appoint subagents and depos1 tories, wherever situated, in connection with the retention
'of securities or other property; (c):
to borrow money from any source as may be necessary-or Jadvisable to effectuate the purposes of the Trust on such terms and conditions as the Trustee may deem advisable; (d)- To deposit funds in interest bearing account deposits-maintained by or savings certificates issued by Harris, in its
. separate corporate capacity, or.in-any other banking institution.
affiliated with Harris; provided, hLsever, that the assats of a
'Oualified. Fund may only be so deposited if the requirer.entc in K
the Pegulations: are met; (e). subject to approval by the Committee, to compromise-or.
otherwise adjust all claims in favor of or against a Fund; (f) upon the direction of the Committee, to loan securities to' brokers or' dealers or' other borrowers under such terms and
. conditions as the Trustee, in its absolute discretion, deems advisable, to secure the same in any manner permitted by law and the provisions of this Agreement, and during the term of any such loan,-to permit the loaned securities to be transferred into the
- name_of and: voted by the-borrowers or others, and, in connection with exercise of the powers hereinabove granted, to hold any-property deposited as collateral by the borr<ser pursuant to any master loan agreement in bulk, either as prr,vided in paragraph-
.(a) of this Section 6.2 or otherwise, together with the unallocated interests of other lenders, and to retain any such property upon the default of the borrower,:whether or not 1
investment in such property is authorized under this Agreement, I
and to receive compensatio:t therefor out of'any amounts paid by or= charged to the account of the borrower; and I
(g)-
to hold uninvested cash awaiting investment and such additional cash balances as it shall deem reasonable or necessary
- without incurring any liability for the payment of interest cthereon.
6.3.
Prior Consent.
The discretionary powers conferred under paragraphs (c) (df, (c), (f), (h), (j), (k), (1) and (m) of Second 6.1 shall be exercised only with the prior written consent of the Committee.
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y ARTICLE VII Records and Accounts of Trustee 7.1.. Records.
The Trustee shall keep accurate and detailed accounts of all investments, receipts, disbursements and other transactions in each Fund'and all accounts, books and records relating thereto shell be open to inspection and audit at all reasonable times during normal. business hours by any Person designated-by the Committee.
The books and records of any Investment Account shall be maintained in a manner to enable the Internal-Revenue Service to verify that the requirements of.
Section 468A of the Code and the Regulations are satisfied with respect to each Fund.
i 7.2.
Annual Account.
Within ninety (90) days following the l
close ofeeach Accounting' Period the Trustee shall file with the Committee, a written account setting forth the receipts and disbursements of each Fund.and the investments and other.
transactions effected by it upon its own authority or pursuant to the directions of any Person as herein provided during the Accounting Period.
7.3.
Account Stated.
Upon the expiration of ninety (90) days from the date of filing its annual account with the Committee,-the-Trustee shall be forever released and discharged from alliliability and further accountability to the Company or any other Person with respect to the accuracy of such accounting andithe propriety of all acts and: failures to act of the-Trustee reflected in such account ey. cept with respect to any such acts or j
-transactions as to which the Committee shall, within such 90-day pe riod, : file with the Trustee specific written objections.
7.4.
Judicial Accountings.
Mothing herein shall in any way limit the Trustee's r!.qht to bring any action or proceeding in a
' court of competent jr.risdiction to settle its account or for such other relief as it may deem appropriate.
7.5.
Necessary Parties.
No Person other than the Company shall be a necessary party in any proceeding under Section 7.4 or may require the Trustee to account or may institute any other
'ction or' proceeding against the Trustee.
a 7.6. Interim Reports.
In-addition to its annual account, the Trustee shall furnish to the Company such interim reports on the status of the Funds as the Company and the Trustee may from time to time agree.
1 Sic 1
ARTICLE'VIII
]
' Compensation, Taxes and Expenses 8.1.. Compensation and Expenses.
Any reasonable expenses i
incurred by.the Trustea in connection with the Master Nuclear Decommissioning Trust and any Fund established hereunder, including, but not limited to, fees for legal services rendered to the1 Trustee, such compensation-to the Trustee as shall be agreed upon from time to time between1the Trustee and an' officer of the Company, and all other_ proper charges and disbursements of
(
the Trustee, shall be charged to and paid as Administrative L
Expenses.from the appropriate Fund upon notice to the Committee
-without the issuance of a Payment Certificate.
Anything in the
. preceding _sentenceito the contrary-notwithstanding the Trustee's entitlement thereto shall constitute a. lien on the assets of the Fund and the Company shall reimburse the Trustee for any such expenses if for any reason such expenses are not paid out of the Fund.
The Trustee's entitlement to reimbursement hereunder shall.
not be affected by the resignation or removal of the Trustee or by the termination of the Agreement or of any Fund.
8.2.
Taxes.
A.11 taxes of any and all kinds whatsoever that may be levied GE assessed under existing or future laws, domestic or foreign, upon any Fund or the income thereof.shall be paid from-the Fund.
8.3.
Allocation.
Any tax or expense paid from incurred y
hereunder which-is specifically allocable to more than one Fund shall be charged against such Funds in a manner which the Committee shall determine tc be equitable and appropriate in its sole-and absolute discretion.
l 8.4.
Indemnity..
In consideration of Harris' agreeing to i
L enter into this Agreement and act as Trustee hereunder, the L
Company hereby' agrees to hold harmless Harris, individually and as Trustee, and Harris' directors, officers, and employees, from and against all amounts, including without limitation taxes, l-penalties, expenses (including reasonable counsel fees),
liabilities,. claims, damages, actions, suits or other charges,
,' incurred by or assessed against Harris, individually or as p
Trustee, or its directors, officers or employees, arising out of ll this Agreement or its acting as Trustee, other than those
. incurred as a result of its or their own bad faith, negligence or willful misconduct.
The undertaking made in this Section 8.4 shall be binding on the Company, its successors or assigns and shall~ survive termination, amendment or restatement of this
. Agreement, or the resignation or removal of the Trustee.
Notwithstanding the foregoing, the Trustee (and not the Trust) shall be liable, and shall not be entitled to indamnity, for any _
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taxIimposed pursuant =to section 4951 of the Code (or any applicable-successor provision) as such section'is made-applicable.to the. Trust,_the assets held in trust hereunder, or.
the Trustee.
ARTICLE IX Resignation or Removal of Trustee
-9.1.
Resignation or Removal.
The Trastee may be removed.by the Company at any time upon. sixty- (60) days' notice in writing i
to the. Trustee.
The Trustee may resign at any time upon sixty
.(60) days' notice in writing to the Company.
9.2.
Designation of a successor.
Upon the removal or-resignation of the Trustee, the Company shall appoint a successor trustee who shall1have'the same powers and duties as those conferred upon=the Trustee _ hereunder, and upon acceptance of.such' appointment by_the-successor trustee, the Trustee shall assign, transfer and_ pay over the Funds then held under the Trust to such l
successor trustee. If, for any' reason, the Company cannot or does
-not-act promptlyf to-appoint a successor _ trustee in the event of the resignation or removal of the Trustee, the Trustee.may apply to a court of competent jurisdiction for the appointment of a successor trustee.
Any expenses incurred by the Trustee in
- connection therewith shall be' charged to and paid as an Administrative Expense.
9.3..
Deserve for Expenses.
The Trustee is-authorized to
. reserve such amount as to it may seem advisable for payments of c
its fees.and expenses-in connection.with the-settlement of its account or otherwise, and any balance of such reserve remaining after the' payment:of such fees and expenses shall be paid over in accordance with Section 9.2.
ARTICLE X Amendment or Termination 10.1.
Amendment.
The Company reserves the right at any time and from time-to time to amend, in whole or in part, any or all of the provisions of this Agreement by notice thereof in writing delivered to the Trustee; provided, however, no amendment which affects the rights, duties or responsibilities of the 3
Trustee may be made without its prior written consent.
10.2.
Termination.
The Company reserves the right to terminate any Fund established under this Agreement by notice in,
. writing thereof delivered to the Trustee, upon the satisfaction of the purpose for which the Fund was established or a change in
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any applicab2e law or regulation removing the desirability or
. necessity of maintaining an externally segregated fund to provide for Decommissioning. In the event of ternination, the Trustee shall dispose of the. Fund, after the payment of-or other provision for all of its expenses.(including any compensation to which the Trustee may be entitled), in accordance with the Payment Certificate delivered to Trustee in connection with the
- termination.-
Any other provisions of this Agreement to the contrary notwithstanding, each Fund established under this Trust terminate no later than the twenty-first anniversary of the date of death of the survivor from among a class consisting of all of the descendants of the late Joseph P.
Kennedy, the former Ambassador to the Court of Saint James, who are living on-the date of the establishment of such-Fund, and if such Fund is'still in existence on such anniversary date, the Trustee shall dispose of the Fund as the Company shall direct.
In the event that termination results from the removal of the Trustee, then such disposition shall be implemented in accordance with the provisiens of Article IX.
10.3.
Trustee's Authority to Survive Termination. Until the final' distribution of each Fund the Trustee shall continue to
'have and may exe eise all of-the powers and discretions conferred upon it by this Agreement.
10.4 Anti-diversion.
No amendment or termination shall permit or authorize any part of any cualified Fund to be'used for or diverted to purposes other than those described in Section 2.1, prior to the substantial completion'(within the meaning of
=the Regulations) of Decommissioning.
10.5.
Trustee's Feliance.
The Trustee shall be entitled to
. assume without further inquiry that any notices, regulatory approvals or procedures required to be given, obtained and observed, as the case may be, have been given, obtained or observed and that any action taken by the Company under this
' Article X does not violate the provisions of Section 10.4.
ARTICLE XI Authorities 11.1.
Company.
Whenever the provisions of this Agreement specifically require or permit any action to be taken by "the
-Company", such action must be authorized by the Board of Trustees or by'a Person to whom such authority has been delegated by the Board of Trustees.
Any resolution adopted by the Board of Trustees or other evidence of such authorization shall be certified to the Trustee by the Secretary or an Assistant Secretary of the Company under its corporate seal, and the i
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Trustee may. rely upon any authorization so certified until-1 revoked or-modified by a further action of the Poard of Trustees n
similarly certified to the Trustee.
f 11.2.
Subsidiary or Affiliate.
Any action required or permitted to be.taken under this Agreement by a subsidiary or j
affiliate of the-Company shall be taken and evidenced by the-
-board.of directors thereof in-the manner described in Section 11.1.
11.3.
Committee.
The Company shall furnish the Trustee from time to time with a list of the names and signatures of all Persons. authorized to act as an Authorized Person, as members of the Commi* tee, or in.any other manner authorized'to issue orders,.
notices,-requests, Instructions and objections to the Trustee j
pursuant to the provisions of this Agreement.
Any such-list
)
shall be certified.by the Secretary or an Assistant' Secretary of the. Company and may be relied upon for accuracy and completeness by the Trustee.-Each such Person who is authorized to-delegate or allocate its authority shall thereupon furnish the Trustee with a list of the names and sigt.atures of those individuals who are authorized, jointly or severally, to act for such Person hereunder, and the Trustee shall be fully protected in acting upon any notices, Instructions or-directions received from any of j
them.
11.4.
Investment Manacer.
The Committee shall cause each Investment Manager to furnish the Trustee from time to time with the names and signatures.of those persons authorized to direct
-the Trustee on its behalf hereunder.
j 11.5.
Form of Communications.
Any agreement between the Company and any Person (including-an Investment Manager) or any other provision of this Agreement to the contrary notwithstanding, all notices, Instructions, and other communications to the Trustee shall be in writing or in such other. form, including transmission by electronic means through the facilities of third parties or otherwise, specifically agreed to in writing by the Trustee.
The Trustee shall not be responsible to the Company or any other Person for any errors or L
inaccuracies in any notices, Instructions, or other 1
communications, or for acting in accordance therewith.
11.6.
Continuation of Authority.
The Trustee shall have l
the right to assume, in the absence of written notice to the
- contrary, that no event constituting a change in the membership l
of the Committee or terminating the authority of any Authorized Person, including, but not limited to, any Investment Manager or any Person designated under the procedures specified in Section '
11.3, has occurred.
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No Obligation to Act on Unsatisfactory _ Notice.
6The s
' Trustee shall incur no liability under this Agreement for any
- /
1 failure to act pursuant to any notice,-Instructions, or'any.other'm y
communication from any Asset Manager, the Company, the Committee,,.P or any other Authorized Person unless and until-it'shall have i
' received such notice, Instructions or other communic.ation iniformt /
reasonably satisfactory to it.
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i ARTICLE XII l
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,; al General Provisions 12.1.. ' Governing Law.
ThisAgreementhasbeenenteredinto[;q!'
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by the Trustee in and shall.be administered, construed and hh 1 enforced accordingfto the laws of the State of New York.
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.1 12.2.
Submission to Jurisdiction.
To.the extent thatlany,3,o claim.cnr controversy shall arise out of the execution, delivery,
.t.:,
1 performance, administration, construction or enforcement of,this,,,
[(
or the-disposition of the assets held ini rust-the courts and administrative t
LAgreement, s
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, hereunder, Harris agrees that agencies of,the State of-New York and its subdivisions, inc1'udingi l' without limitation the Newt York Public Service' Commission, shall
'I have jurisdiction to the same extent as if Harris.were.a New3 York V corporation doing business in New York State.
For such purpose' only, Harris agrees to accept, without objection to form, manner f,L or subjectLmatter, service of prescess by registered mail directedJ.
-to:
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H, Q(j Harris Trust and Savings Bank i,O' 3
r i-111 W. Monroe Street - SW Chicago, Illinois 60603
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Attention:
Katherine A.
Freytag Trust Officer
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or to such other address as Harris shall have notified.the is Company? n accordance with Section 12.7 ' not less 'than 60 ' days k, ::
i prior to delivery of such service of process.
The foregoing
,q g consent to: service of process is not intended nor shall it b,e.
'i
" construed to extend to any claim, controversy, cause of action or,.'
other matter, other than as stated in this Section 12.2.
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Entire Agreement.
The Trustee's duties and
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[t responsibilities to the company, any Commission or any other i
-Person interested therein shall be limited to'those.specifically set forth in this Agreement.
12.4.
Mistake.
No mistake made in good faith pnd in the k.
exercise of due. care in connection with the administration of'a Pund shall be deemed to be a breach of the Trustee's duties"if,' ',.
.promptly after discovery of the mistake, the Trustee takes j
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- lr whatever action may be precticable in the' circumstances to remedy the mistake.
_12.5, Reliance on Expe??ts.
The Trustee may consult wi'th 4
l r$ b rts (who may be experts employed by the Company),z including itgal counsel, appraiscrs, pricing services, accountants or
actuaries, selected by it with due care with respect to the meaning and construction-'of this Agreement or any provision,j i
hereof, or concerning its powers and duties hereunder, and shall <
be fully protected for any action taken or omitted by it in good faith pursuant to or on the basis of the opinion of,any such':
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-expert.
lt Any successor, by merge l.
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12.6.
Successor to the Trustee.
fc or otherwise, to substantially all of the trust business ofj: l L~.
Harris shall automatically and without further action become',the;!!'
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-Trustee hereunder, subject to all the terms and conditions and entitled to all the benefits and immunities hereof.
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,;;t 12.7.
Notices.. All notices, reports, annual accounts'and other communications to the Company, Committee, Investment J i
- 1 Manager, or any.other Person shall be deemed to have been duly given if mailed, postage prepaid, or delivered in hand to such.. j
-Person at -its address appearing on the records of the Trustee,'
which address shall.be filed with the Trustee at the time oi the' establishment of the Trust and shall be kept current thereafter.
by the Committee.
The company initially designates as its- 'i address:for-notice the address of the Company's principal place,
i of business set forth at the beginning of this Agreement, to,thef Attention of the Company's Treasurer.
All directions, Instructions, notices, statements, objections and other q
j communications shall be deemed to have been given when received by the addressee in the manner provided in-this Section 10.7. i.+
Notices to the Trustee shall be given in accordance with this J
Section 12.7 and shall be addressed to the Trustee at the address specified in or pursuant to Section 12.2.
m.
12.8.
No Waiver; Reservation of Rights.
The rights, remedies, privileges and immunities expressed herein are h
cumulative and are not. exclusive, and the Trustee shall be.,l r
entitled to. claim all other rights, remedies, privileges andl immunities to which it may be entitled under applicable law.i J n
4 12.9.
Descriptive Headings.
The captions in this Agreement' are solely for convenience of reference and shall not defineior y
limit the provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have~ caused this.I-
+ Agreement to.be executed:by their respective officers; thereunto duly._ authorized-and'their. corporate. seals'to be hereunto-. affixed c
and.' attested tol'as.of the day and_ year first above written,s ;
y1 (Corporate-Seal)
CONSOLIDATED EDISON COMPANY i
OF-NEW YORK, INC.
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' Attest; h k h g By h thrt ' A '."'I.A.W d 4 h,I
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. HARRIS TRUST AND. SAVINGS BANK
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,i Attest:
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STATE OF NEW YORK )
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COUNTY OF NEW YORK) on the A P day of December, in the year one thousand-nine hundred and eighty-eight before me personally came Alfred R.
Wassler.to me known',-who being by me duly sworn, did depose;and say:
that he resides at 76-27 265th Street, New Hyde' Park,jNew York: '11040; that he is the Treasurer ~of Consolidated Edison, Company of-New York, Inc., the corporation described'in and'which'
. executed the above instrument; that he knows the seal of said.-
corporation; that the seal' affixed to said instrur.:ent is such-corporate seal; that it was so affixed by order of the Board of Trustees of said corporation, and that he signed his name thereto by like order.-
-W A
,r PETTR A. IRWIN Henry Public. Swee cd Nuw M l
No, JI 4509W5
.i OmWied in New Yort Caser 4
1== Laoirm msnm 30, im.
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__ STATE - OP ' IIJ.INOIS)
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(COUNTY OF COON
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e On'the O b ay of December, in the year one thou nd nine L
hundred and eighty-eight before me personally came KA W
sworn, did
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D Frem to me knowS, who being by me duly bMu cL'c s0_ '
Jepo'se and say t that -he/she resides at 3/n M LL W*V/ ; that 49e/she is the *W%# v.'a nrisk.#-of Harris Trust and '
p' Savings Bank, the corporation described in and which executed the that 4tedshe knows the seal of said corporation;
. bove: instrument;
.athat 'he seal' affixed to said instrument is such corporate lseel;, I_
that it vas so affixed by order of the Board.of Directors,'of said 1
corporation, and that Mshe signed Wher name thereto by.like "
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order.-
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'I SCHEDULE I J.
To Master Nuclear Decommissioning n;,
Trust Agreement
-between
-Consolidated.-Edison Company of New-York, Inc.-
and Harris Trust and Savings-Bank.
Effective December 30, 1988
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The Nuclear: Power Plants referred to in the recitals and'in-.
Section ?.1 of the above Agreement are the. Company's Indian 1 Point 1=-and Indian Point 2. nuclear units,ilocated in Buchanan, New
- York.
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