ML20055H704
| ML20055H704 | |
| Person / Time | |
|---|---|
| Site: | 07001201 |
| Issue date: | 07/13/1990 |
| From: | Ihde R BABCOCK & WILCOX CO. |
| To: | Haughney C NRC OFFICE OF NUCLEAR MATERIAL SAFETY & SAFEGUARDS (NMSS) |
| References | |
| NUDOCS 9007270176 | |
| Download: ML20055H704 (10) | |
Text
,
f02/)d{
}
- c-y c
B&W'FuelCongsmy
" 2llll" *""""' **
38d 5 g lo,' y
- a Lynchburg, VA 24506 0935
- (804) 385-2000 s
1
. July 13, 1990-i i
-J Mr. C.J. Haughney, Chief Fuel Cycle Safety Branch-Division of Industrial and Medical Nuclear Safety, NMSS --
United States Nuclear Regulatory Commission Washington, DC 20555 i
Dear Mr. Haughney,
j On behalf of the B&W Fuel Company..a Delaware Partnership and holder of license-i number SNM-1168, transmitted Ierewith is a copy of a Letter of Credit and related Staniby Trust Agreement. to certify our financial assurance for decommissioning costs as required by 10 CFR Part 70.
If you have questions or need additional. information, please call l-me '.at i
804/385-2653,
.)
i Vfrtrulyyours, f
(hllN R.H. Thde President-
~
. /j ck J90A/003 ene.
I l-f f
I 9007270176 900713
{DR ADOCl;0700g1 4
[ ),.
+ i-s
+.,,
J i
)
. J'
]
BANQUE FRANGAISE 645 Fikh Avenue Du COMMERCE EXTERIEUR New York,N.Y.10022 NEW YORK BRANCH
- Tel:(212) 872-5000 I
1 IRREVOCABLE STANDBY LETTER OF. CREDIT No. SB 7523 This. Credit Expires' July 27, 1991 Issued to :
U.S. Nuclear Regulatory Commission Washington, DC 20555
^
$sar Sir or Madam:
1 We hereby establish our Irrevocable. Standby Let'
?~ edit No.
SB7523 in your favor, at the request and for-t t of.B&W Fuel Co. up to the aggregate amount of seven hund*
. thousand U.S.' dollars ($750,000), available upon presentawion ota (1) your sight draft, bearing reference to this Le s er of
- lit-No. SB7523, and (2) your' signed statement reading as follows:
"I certify that the amount of the draft is payable pursuant to 10 Code of Federal Regulations Part 70."'
2 l
This letter of credit is issued in accordance with regulations issued under -the authority. of 'the U.S..
Nuclear Regulatory-Commission (NRC), an agency of the U.S.- Government, pursuant to the Atomic Energy Act of-1954,_
as
- amended,
'and
_the. Energy Reorganization Act of 1974.
The NRC has promulgated regulations in Title 10, Chapter I of the Code of Federal Regulations, Part:70 which requires that a holder of, or-an applicant for, a. license r
j issued under 10 CFR Part.'70 provide assurance that_ funds will be available when needed for decommissioning'.
This-letter of credit is effective as of July 27, 1990 and shall expire on July 27,
- 1991, but :such expiration date-shall. be automatically. extended for a period of (at least11 year) on July I
27, 1991, and on each successiv_e expiration.date, unless; at least L
90 days before the current expiration date, we' notify both_you and-L the B&W Fuel Co.-as shown on the: signed. return receipts.
If the B&W7 Fuel Co. is unable' to secure - alternative financial' assurance to replace this letter of credit within 30 days of notification _of cancellation, the NRC may draw upon the full value of this letter
.of credit prior ' to cancellation.
The bank shall give.immediate i
notice to the applicant and the'NRC of any' notice received. or i
action filed alleging (1) the insolvency; or bankruptcy of'the financial. institution or (2) any violations.of regulatory _
requirements that could' result in suspension or revocation of the a
bank's charter ~or license to do business.-
The financial institution also shall give immediate-notice if the-bank, for any reason, becomes unable to fulfill its obligation under the letter.
of credit..
i i
DANQUE FRANCAISE DU CoMMEHCE EXTERIBUH NEW YORK DRANCll Whenever this letter of credit is drawn on under and in compliance r
with the terms of this letter of credit, we shall duly honor such draft upon its presentation to'us within 30 days, and we'shall-
. deposit the amount of the draft directly into the standby. trust fund of the B&W Fuel Co. in cordance wf'h your instructions.
Each draft must bear on its face the clause:
" Drawn under Letter af Credit No. SB'523, dated' July 27, 1990, and the total of this draft ~and all other drafts previously drawn under this letter of credit does not exceed $750,000."
s.
Josh Gonzalez
/
J e a n - L o u i,s S i'm o n Assistant Vice President ic9 Preside'nt This credit is subject to the Uniform Customs'and Practice for Documentary credits (1983 Revision), International Chamber of Commerce Publication No. 400.
F m._.
J STANDBY TRUST AGREEMENT
- TRUST AGREEMENT, the Agreement entered into as of July 27,1990 by and between THE B&W FUEL COMPANY, a Delaware Partnership, herein referred to as the " Grantor", and MORGAN GUARANTY TRUST COMPANY OF NEW YORK,60 Wall Street, New York, New York 10260, the " Trustee" WHER5AS, the U.S. Nuclear Regulatory Commission (NRC), an agency of the U.S.
Government, pursuant to the Atomic Energy Act of 1974, has promulgated regulations in Title 10, Chapter i of the Code of Federal Regulations, Part (30,40, or 70]
These regulations, applicable to the Grantor, require that a holder of, or an applicant for, a Part 30,' 40, and 70 license provide assurance that funds will be: available when needed for required decommissioning activities.
WHEREAS, the Grantor has elected to use a Letter of Credit to provide all of such financial assurance for the facilities identified herein; and i
WHEREAS, when payment is made under a Letter of Credit, this standby trust shall be used for the receipt of such payment; and WHEREAS, the Grantor, acting through its duly authorized officers, has selected the Trustee to be the trustee under this Agreement, and the Trustee is willing to act as trustee, NOW, THEREFORE, the Granter and the Trustee agree as follows:
1
_Section 1. Definitions. As used in this Agreement:
(a)
The term " Grantor" means the NRC licensee who enters into this Agreement and any l
successors or assigns of the Grantor.
(b)
The term " Trustee" means the trustee who enters into this Agreement and any successor Trustee.
Section 2.
Costs of Decommissionina.
This Agreement _ pertains to the costs of decommissioning the materials and activities identified in License Number SNM-1168 issued -
pursuant to 10 CFR Part (30, 40, or 70].
Section 3. Establishment of Fund. The grantor and the Trustee hereby establish a standby trust fund (the Fund) forthe benefit of the NRC. The Grantor and the Trustee intend that no third party have access to the Fund except as provided herein. l
Section 4. Payments Constituting the Fund. Payments made to the Trustee for the Fund shall consist of cash and Eligible Securities. The Fund is established initially as consisting of the property. Such property and any other property subsequently transferred to the Trustee are referred to as the " Fund", together with all earnings and profits thereon, less any payments or distributions made by the Trustee pursuant to this Agreement. The Fund shall be held by the Trustee, IN TRUST, as hereinafter provided. The Trustee shall not be responsible nor shall it i
undertake any responsibility for the amount of, or adequacy of the Fund, nor any duty to co! lect from the Grantor, any payments necessary to discharge any liabilities of the Grantor established by the NRC.
Section 5.
Pavment for Reouired Activities Soecified in the Plan. The Trustee shall make payments from the Fund to the Grantor upon presentation to the Trustee of the following:
a.
A certificate duly executed by the Secretary of the Grantor attesting to the occurrence of the events, and in the form set forth in the attached Specimen Certificate, and b.
A certificate executed by the Grantor attesting to the following conditions:
(1) that decommissioning is proceeding pursuant to an NRC-approved plan.
(2) that the funds withdrawn will be expended for activities undertaken pursuant to that Plan, and (3) that the NRC has been given 30 days' prior notice of The B&W Fuel Company's intent to withdraw funds from the escrow fund.
No withdrawal from the fund can exceed 20% percent of the outstanding balance of the Fund or $100,000 dollars, whichever is gieater unless NRC approval is attached.
in the event of the Grantor's default or inability to direct decommissioning activities, the Trustee j
shall make payments from the Fund as the NRC shall direct, in writing,-to provide for the L
payment of the costs of required activities covered by this' Agreement. The Trustee _ shall reimburse the Grantor or other persons as specified by the NRC, or State agency, from the Fund for expenditures for required activities in such amounts as the NRC, or State agency, shall direct in writing, in addition, the Trustee shall refund to the Grantor such amounts as the NRC specifies in writing. Upon refund, such funds shall no longer constitute part of the Fund as defined herein.
SEtIDOS. Trust Management. The Trustee shallinvest and reinvest the principal and income of the Fund and keep the Fund invested as a single fund, without distinction between principal and income, in accordance with instructions from the Grantor which the Grantor may communicate in writing to the Trustee from time to time; exceot that:
t 2-l
F
^(a)1. Securities or other obligations of the Grantor, or any other owner or operator _ of the-l 1
facilities, or any of their affiliates as defined in the Investment. Company Act of 1940, as-amended (15 U.S.C. 80A 2(a)), shall not be acquired or held, unless they are securities
- or other obligations of the Federal or a State government; I
-(b): : The Trustee is authorized to invest the fund in Eligible Securities as hereinafter defined.
Eligible Securities shall be securities or other obligations of the Federal Government, i.e.,-
1 GNMA, FNMA, and FHLM bonds and certificates or State and Municipal bonds rated BBB or higher by Standard & Poor's cr Baa or higher by Moody's investment Services.-
Section 7. Exoress Powers of Trustee. Without in any way limiting the powers and discretion conferred upon the Trustee by the other provisions of this Agreement or by law, the Trustee.
is expressly authorized and empowered:
(a)
To sell, exchange, convey, transfer, or otherwise dispose of any property held by ;t, by -
public or private sale, as necessary to allow duly authorized withdrawals or to' reinvest in Eligible Securities at the direction of the Grantor.
7 (b). To 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 carry out the powers herein granted;-
(c)
To register any securities held in % Fund in the name of the Grantor, and to hold any security in bearer form or in b - t entry, to reinvest interest payments and funds from-matured and redeemed instrure $ts in Eligible Securities, to file proper forms concorning securities held in the fund in a n,nely fashion with appropriate government agencies, or to deposit or arrange for the deposit of such securities in a qualified central depository, or to deposit or arrange for the deposit of any securities issued by the U.S. Government, or any agency.or instrumentality thereof, with a Federal Reserve Bank in book entry form, but the books and records of the Trustee shall at all times show'that all such securities are part of the fund.
(d)
To compromise.or otherwise adjust all claims in favor of'or against the Fund.
Section 8. -Taxes and Excenses. All taxes of any kind that may be ' assessed or levied against
'I or in respect of the Fund and all brokerage commissions incurred by the Fund shall.be paid
~
p from the Fund. All other expenses incurred by the Trustee in connection with the administration of this Trust, including fees for legal services rendered to the Trustee, the comrensation'of the t
l Trustee to the extent not paid directly by the Grantor, and all other proper charges'and disbursements of the Trusteo shall be paid from the Fund.
I l
l Section 9. Annual Valuation. After payment has been made into this standby trust fund,- the Trustee shall annually, at least 30 days before the anniversary date of receipt of payment into the standby trust fund, furnish to the Grantor and to the NRC a statement confirming the value of the Trust. Any securities in the Fund shall be valued at market value as of no more than 60 I
days before the anniversary date of the establishment of the Fund. The failure of the Grantor i
to object in writing to the Trustee within 90 days after the statement has been furnished to the grantor and the NRC, or State agency, shall constitute a conclusively binding assent by the Grantor, barring the Grantor from asserting any claim or liability against the Trustee with respect to the matters disclosed in the statement.
Section 10. Advice of Counsel. The Trustee may from time to time consult with counsel, who may be counsel to the Grantor, with respect to any question arising as to the construction of this Agreement or any action to be taken hereunder. The Trustee shall be fully protected, to the extent permitted by law, in acting on the advice of counsel.
Section 11. Trustee Comoensation. The Trustee shall be entitled to reasonable compensation for its swvices as agreed upon in writing from time to time with the Grantor.
Section 12. Successor Trustee. Upon 90 days notice to the NRC, or State agency, the Trustee may resign; upon 90 days notice to NRC, or State. agency, and the Trustee, the Grantor may replace the Trustee; but such resignation or replacement shni! not be effectlve entil the Grantor has appointed a successor Trustee and this successor accepts the appointment.
The successor Trustee shall have the same powers and duties as those conferred upon the Trustee hereunder. Upon the successor Trustee's acceptance of the appointment, the Trustee shall assign, transfer, and pay over to the successor Trustee the-funds and properties then constituting the Fund. If for any reason the Grantor cannot or does not act in the event of the resignation of the Trustee, the Trustee may apply to a court of competent jurisdiction for the
[
appointment of a successor Trustee or for instructions. The successor Trustee shall specify l
the date on which it assumes administration of the trust in a writing sent to the Grantor, the l
NRC or State agency, and the present Trustee by certified mail 10 days before such change becomes effective. Any expenses incurred by the Trustee as.a result of any of the acts contemplated by this section shall be paid as provided in Section 8.
Section 13. Instructions to the Trustem. All orders, requests, and instructions by the Grantor to the Trustee shall be in writing, signed by such persons as are signatories to this agreement or such other designees as the Grantor may designate in. writing. The Trustee shall be fully l
protected in acting without inquiry in accordance wk.h the Grantor's orders, requests, and l
instructions. If the NRC or State agency issues ordcrs, requests, or instructions to the Trustee, these shall be in writing, signed by the NRC, or State agency, or their designees, and the Trustee shall act and shall be fully protecbd in acting in accordance with such orders, j
l requests, and instructions. - The Trustee small have the right to assume, in the absence of -
written notice to the contrary, that no event constituting a change or a termination af the I
l authority of any person to act on behalf of the Grantor, the NRC, or State agency, heraunder l
has occurred. The Trustee shall have no duty to act in the absence of such orders, requests, l t
and instruction from the Grantor and/or the NRC, or State agency, except as provided for -
herein.
1 Section 14. Amendment of Aareemsnt. This Agreement may be amended by an instrument l
In writing executed by the Grantor, the Trustee and the NRC, or State agency,'or by the Trustee and the NRC or State Agency, if the Grantor ceases to exist.
1' Section 15. Irrevocability and Termination. Subject to the right of the parties toamend this Agreement as provided in Section 14, this trust shall be irrevocable and shall continue until terminated at the written agreement of the Grantor, the Trustee, and the NRC or State agency, or by the Trustee and the NRC or State agency, if the Grantor-ceases to exist. Upon termination of the trust, all remaining trust property, less final trust administration expenses, -
shall be delivered to the Grantor or its successor, Section 16. Immunity and IndemnificatiOD. The Trustee shall not incur personalliability of any t
l nature in connection with any act or omission, made in good faith, in_ the administration of this l
trust, or in carrying out any directions' by the Grantor, the NRC; or State Agency, issued in accordance with this Agreement. The Trustee shall be indemnified and saved harmless by the Grantor or from the trust fund, or both, from and against any personal liability to which the Trustee may be subjected by reason of any act or conduct in its official capacity, including all expenses reasonably incurred in its defense in the event the Grantor fails to provide such defense.
Section 17. This Agreement shall be administered, construed, and enforced according to the I
laws of the State of New York.
Section 18. Interoretation end Severability. As used in this Agreement, words in the singular include the plural and words in the plural include the singular. The descriptive headings for each section of this Agreement shall not affect the interpretation or the legal efficacy of this Agreement. If any part of this agreement is invalid, it shall not affect the remaining provisions which will remain valid and enforceable.
1 L
IN WITNESS WHEREOF the parties have caused this Agreement to be executed by the.
]
respective officers duly authorized and the' incorporate seals to be hereto affixed and attested i
as of the date first written above.
ATTEST:
THE B&W FUEL COMPANY 4
Y.
N[II k' w
~ DD[
By:
R. Hi thde By:
.J.F..bervais
Title:
Presid3nt
Title:
Chief Administrative Officer ATTEST:
MORGAN GUAHANTY TRUST OF NEW YORK :
/PJL[ticq, PATRICIAF EWING By: lMM.8/ggy _
l
Title:
(^ yta presiden(j/
[ Title) ASSISTANT SECRETARY
[ Seal) l
-s
.___.-J
L L
[
-ACKNOWLEDGEMENT.
t STATE OF NEW YORK CITY OF NEW YORK-i i
On this 19th. day of July, before me,;a notary public in j
and for the City and State aforesaid,-personally appeared Marlene Fahey and-she did depose-and say.that xj c:
she is a Vice President of Morgan Guaranty: Trust
-Company,of New York,-a New-York Statt. banking association, Trustee, which executed the above'-
instrument, that-she knows the seal of said i
association; that the1 seal affixed to such instrument is such corporate seal;; that it was so affixed L by-order of the association; and that she~ signed'her-name thereto by like order.
1 mrra, b fr hin
[ Signature of~ notary public]
SIMONE G. VINOCOUR l
My Commission Expires:
NOTARY NDUC State of New York N' "?";
Qualified in New York County Certificato Filed in New York County Commission Expires November 7,1990 -
q A
.k a
- _ -