ML20055J342
| ML20055J342 | |
| Person / Time | |
|---|---|
| Site: | Trojan File:Portland General Electric icon.png |
| Issue date: | 07/26/1990 |
| From: | Cross J PORTLAND GENERAL ELECTRIC CO. |
| To: | NRC OFFICE OF INFORMATION RESOURCES MANAGEMENT (IRM) |
| References | |
| NUDOCS 9008020117 | |
| Download: ML20055J342 (86) | |
Text
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gm W G8ner81 BSCtricOostymriy James E, Cross Vice President, Nuclear
' July 26, 1990 Trojan Nuclear Plant i
Docket-50-344 License NPF-1 U.S. Nuclear Regulatory Commission Attn:
Document Control Desk l
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Washington DC 20555 u-s
Dear Sirs:
I Decommissioning Financial Assuranco j
Certification Report for Docket Number 50-344 l
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The Nuclear Regulatory Commission's (NRC's) regulations require that, on or before July 26, 1990, all production or utilization facility licensees submit to the NRC "information in the form of a report as described in Title 10, of the Code of Federal Regulations, Part 50.75 (10 05R 50.75) indicating how roasenable assurance will be provided that funds will be available to decommission the facility." This. Decommissioning Financial Assurance Certification Report addresses the Commission's decommissioning financing requirements applicable to the Trojan Nuclear P.iant'.
1 The Trojan Nuclear Plant is a Pressurized Water Reactor pr*>ducing-greater i
than 3400 Megawatts, for which NRC Licenso No. NPF-1 is currently and will continue to be in offect on July 26, 1990.- This Report is sebmitted on behalf of Portland Coneral Electric Company (PCE), the City of Eugone, Oregon, acting by and through the Eugeno Water & Electric. Board {EWEB) and Pacific Power und Light Company (PPL).
o In accordance with 10 CFR 50.75(c), PCE, EWEB, and PPL hereby certify,that financial assurance utilizing the methodology described below, of at least
$111.3 million in 1988 dollars will be available to decommission the Trojan Nuclear Plant. This figure will be annually revised during the licensed operating life of tuo Trojan Nuclear Plant by the adjustmont factor defined l
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9008020117 900726 "121 SW Salmon St, Portland, OR 97204 gDR ADOCK 05000344 503/464 8897 PDC
Pordzuid W BeddcCor113eniy Document Control Desk July 26,.1990 Page 2' I
PCE, EWEB, and PPL have established external trusts' for Trojan decommis-sioning funds. Coples of each of the signed trust agreements are in Attachments 1 through 3.
PCE has filed a rate case with the Oregon Public Utility Commission to-adjust electric rates to include increased funding for the decommissioning of Trojan. Assuming that the normal process for rate filings proceeds, it would allow for the collectlun of funds prior to July 26, 1993. PPL plans to file a rate increase with the appropriate regulatory bodies in auf-ficient time to allow collection of funds prior to July 26, 1993.
EWEB
'l plans to adjust net billing requirements with the Bonneville Power Adminis-trations in sufficient time'to allow collection of funds prior to July 26, 1993.-
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Sincerely, l
Attachments c:
Mr. John B. Martin Regional Administrator, Region V U.S. Nuclear Regulatory Commlusion Mr. David Stewart-Smith State of Oregon Department of Energy Mr. R. C. Barr NRC Resident Inspector Trojan Nucicar Plant
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.i Attachm:nt 1-to
'VPN-082-90.
Page 1 of 33 -
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1 MASTER NUCLEAR DECOMMISSIONING TRUST AGREEMENT.
BETWEEN.
PORTLAND GENERAL ELECTRIC COMPANY i
AND
. BANKERS TRUST COMPANY r
l' Effective July-10, 1990'.
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.. Attachment 1.to VPN-082-90
- Page 2 of 335 i
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TABLE OF CONTENTS Page l
Section f
ARTICLE I - TITLE-DEFINITIONS 2
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-.g 1.1 ' -Name.
2 1.2 iDefinitions J
2.
I a
ARTICLE II -' ESTABLISHMENT.OF TRUST 8
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-2.1-Purpose 8
2 '. 2 Construction 8'
2.3 Domestic Trust 8
2.4.
Separate Trusts 8
2.5 ' Contributions i
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t ARTICLE III - ADMINISTRATION AND POWERS OF TRUSTEE 9-3.3 -Disbursement.of Assets.
9' 3.2 Disburcements of Excess Contributions:
9 3.3 -Disbursement-of Excess Funds 9
3.4 ' Transfer of Ownership.
'10 3.5-Reliance =on: Payment Certificate
. 10 '
3.6 Additional. Powers of Trustee 11 l
3.7. Duty to.. Enforce Claims 12 i
ARTICLE IV - MANAGEMENT OF ASSETS' 13 4.1 -Asset Managers-13 4.2 Investment Discretion
.13 a
4.3 Limitations on Investment and Other Discretion-13 4.4 Responsibility for Diversification 14 l'
i This Table of Contents is for the convenience of the parties-only and is not a part of the ' attached Agreement.
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(1)
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l to VPN-082-90 Page 3 of 33 Section P_ age ARTICLE V - RESPONSIBILITY FOR DIRECTED FUNDS 14 5.1.
Responsibility for Selection of Agents 14 5.2 Trustee Not Responsible for Investments 14 in Directed Funds 15 5.3 Investment Vehicles 15 5.4 Reliance on Asset Manager 16 5.5-Merger of Funds 16 5.6 Restrictions on Transfer 16 ARTICLE VI - POWERS OF ASSET MANAGERS 16 6.1 General Powers 16 6.2 Prior Consent 19 1
ARTICLE VII - RECORDS,. ACCOUNTS AND TAX RETURNS 19 7.1 Records-19 7.2 Valuations 19 7.3 Annual Account 20 7.4 Account Stated 20 i
7.5 Judicial Accountings 20 7.6 Necessary Parties 20 7.7 Tax Returns 20 ARTICLE VIII - COMPENSATION, TAXES AND EXULNSES 21 8.1 Compensation and Expenses 21 8.2 ' Taxes 21 8.3 Allocation 21 8.4 Indemnity 21 ARTICLE IX - RESIGNATION OR REMOVAL OF TRUSTEE 22 9.1 Resignation or Removal 22 9.2 Designation of a Successor 22 9.3 Reserve for Expetises 22 1
ARTICLE X - AMENDMENT OR TERMINATION 23 (ii)
. to VPN-082-90 Page 4 of 33 l
Section-Page 10.1 Amendment 23 10.2 Termination 23 10.3 Trustee's Authority to Survive Termination 23 10.4 Anti-diversion 24 10.5 Trustee's Reliance 24 i
ARTICLE XI - AUTHORITIES 24 11.1 Company.
24 11.2 Committee 24 11.3 Subsidiary or Affiliate 24 11.4 Certification 25 11.5 Investment Manager 25 11.6 Form of Communications 25 11.7 Continuation of Authority 25 11.8 No Obligation to Act on Unsatisfactory 26 J
Notice ARTICLE XII - GENERAL PROVISIONS 26 12.1 Governing Law 26 12.2 Entire Agreement 12.3 Mistake 26 26 12.4 Reliance on Experts 26
'12.5 Successor to the Trustee 26 12.6 Notices 27 12.7 No Waiver; Reservation.of Rights 27 12.8 Descripkive Headings 27 l
(iii)
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- to VPE-082.
Page 5 of 33 Master Agreement and Declaration of Trust (this
" Agreement") made as of 7/10/90, by and between Portland General Electric Company (the " Company") an oregon corpo-ration having its principal place of business at 121 S.W.
Salmon Street, Portland, Oregon 97204, and BANKERS TRUST COMPANY, a New York banking corporation.
HITUgggETH:
- WHEREAS, the Company' has a
direct ownership interest in the nuclear generating facility known as the Trojan Nuclear Generating Plant (the " Nuclear Power Plant")
which will be Decommissioned (as hereinafter defined) in the future; and
- WHEREAS, the Company desires to establish' two separate, externally-maintained ' decommissioning trusts into which the company shall contribute certain amounts in order to provide funds for the future Decommissioning of the Nuclear Power Plant 7 and
- WHEREAS, the Company desires to
_ establish a
Qualified Fund within one such separate trust and a Non-Qualified Fund within such other separate - trust, and to-treat each Fund so established as a separate trust for all purposes hereunder.
- WHEREAS, the company desires to maintain the Qualified Fund so that, to the extent permitted by law, all payments thereto will be eligible for a Federal and/or state income tax deduction by the Company.
- NOW, THEREFORE, the-Company and Bankers Trust company declare and agree that Bankers Trust Company 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:
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Attechu nt 1 to VPN-082-90 Pege 6 of 33 ART 1CLE I Titie-Definitions 1.1.
Name.
The two separate decommissioning trusts established ur. der this Agreement shall be referred to collectivley as the "PGE-Trojan Nuclear Decommissioning Trust" and are sometimes hereinaf ter collectively referrsJ to as the " Trusts".
1.2.
Definitions.
Where-used in this Agreement, unlesr. the context otherwise requires, or unless otherwise expressly provided, or unless otherwise required pursuant to Section 2.2 (a)
" Accounting Period" shall mean either the two've consecutive month period coincident with the Tax Year or the shorter period within any such year in which the Trustee accepts appointmett as Trustee hereunder or ceases to act as Trustee for any reason.
(b)
Administrative Costs and Other Incidental Expenses" or " Administrative Expenses" shall mean all ordinary and necessary expenses incurred in connection with the administration of either Fund, including the tax, if any, imposed by Section 468A(e)(2) of the Code, i
any state or local tax imposed on the Company or either Fund which is attributable to the income or the assets of the Fund, le arial expenses, gal expenses, accounting expenses, actu-investment management fees, indemnifi-cation costs incurred by the company and all fees and expenses of the Trustee arising out of either Fund.
Administrative Expenses with respect to the Qualified Fund shall not include auch amounts which under Section 468A of the Code and the Regulations,,may not be considered permissible expenses.
Administrative Expenses shall not include 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 excise tax unless it is determined that the Trustee or other disqualified person is not liable for such excise tax and any expense incurred in connection therewith is concidered reasonable and necessary under Section 4951(d)(2)(c) of the Code.
(c)
" Agreement" shall mean this Master Agreement and Declaration of Trust and shall include all of the l
Attechment 1 to YPN-082-90
[
Page 7 of 33 provisions of this instrument and of all other instruments amendatory hereof.
(d)
" Applicable Laws and Regulations
- shall mean Federal and State laws and regulations adopted thereunder applicable to the Trusts, as the same may be amended from time to time, including, but not limited to, Section 468A of the Internal Revenue Code cf 1986, as amended, and the regulations promulgated thereunier.
(e)
" Asset Manager" shall mean the Committee, or with respect to those assets over which it exercises, or to the extent it is authorized to exercise, discre-tionary investment authority or control under Article IV, the Trustee or any Investment Manager, individually or collectively as the content shall require.
(f)
" Authorized Person" shall mean any Person acting jointly, severally or as a committee, designated to represent the Company or Committee and take any action required or authorized to be taken by either the Company or the Committee under this Agreement, the identity of whom shall be certified to the Trustee in accordance with Article XI.
(g)
" Bank business day" shall mean a day on which the Trustee is open for business.
(h)
" Bankers" shall mean Bankers Trust Company.
(1)
" Board of Directors" shall mean the Board of Directors of the company.
(j)
" Code" shall mean the Internal Revenue Code of 1986, as the same may be amended from time to time.
Any reference in this Agreement to a section of the Code shall include that section of the code and the regulations promulgated thereunder, and chall be deemed to include any applicable successor provisions.
(k)
" Commission (s)"
shall mean any public regulator or regulatory body or instrumentality, agency or official (judicial or otherwise) directly or indirectly of the United States, or any State or political subdivision thereof, as the case ny be, having authority to fix rates for the furnishing or sale of electrical energy.by the company, to set stan-dards for the maintenance of and/or to supervise the Decommissioning of the Nuclear Power Plant.
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Attachment I to VPN-082-90 Page 8 cf 33 (1)
" Committee" shall mean the Committee or Com-
- mittees, individually or collectively, appointed and established by the Board of Directors, the composition of which shall be determined by the Board of Directors, which shall have the authority to appoint, rr a.
or remove committee members from time to tir.u e
Committee shall havt such responsibilities as
.re hereinafter provided in this Agreement, and 6 i / be delegated thereto by the Board of Directo a The company shall certify to the Trustee the composition and identity of the Committee in accordance with Article XI.
(m)
" Common Trust" shall mean any common, com-mingled or collective trust created and maintained by
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Bankers Trust company in which the Funds may ba eligible to participate.
(n)
" company" shall mean Portland General Electric Company or any successor thereto.
(o)
" Contributions" shall mean amounts contri-buted by the company to a Fund.
1 (p)
" Cost of Service Amount" shall mean the amount of Decommissioning Costs included in the Com-pany's service costs for ratemaking purposes for the Tax Year.
(q)
" Decommission" or
" Decommissioning" shall mean all activities to remove the Nuclear Power Plant safely from service and to reduce residual radioactiv-ity h a level that permits release of the property for unrestricted use and termination of license.
(r)
" Decommissioning Costs" shall mean all costs and expenses for Decommissioning, provided that, with respect to the Qualified Fund, such term shall have such meaning as provided under Applicable Laws and Regulations, and
- shall, with respect to the Non-Qualified
- Fund, mean the costs and expenses of Decommissioning as determined by the company, in its sole discretion, under then Applicable Laws and Regulations.
(s)
" Directed Fund" shall mean either Fund or part thereof which is subject to the discretionary management and control of the Committee or any Invest-ment Manager other than the Trustee.....
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Attcchn nt 1 to VPN-082-90 Page 9 of 33 (t)
" Discretionary Fund" shall mean either Fund or part thereof which is subject to the discretionary management and control of the Trustee.
tions(u)
" Excess Contributions" shall mean contribu-in excess of the Cost of Service Amount but, with respect to the Qualified Fund, shall mean contributions in exce.ts of the lesser of the Cost of Service Amount and the Ruling Amount.
(v)
" Excess Funds" shall mean any money and other property which, subsequent to substantial completion of Decommissioning, is not required to satisfy Decommissioning Costs which, at the option of the Company, may be set aside and accumulated in a separate account.
(w)
" Fund (s)"
shall mean either the Qualified Fund or the Non-Qualified Fund, or both Funds, as the context shall indicate.
(x ly sign)ed " Instructions" shall mean written and manual-instructions of any Authorized Person, Asset Manager or the Committee.
" Instructions" shall also include
" Instructions Received By Any Other Means" provided that the parties hereto shall have agreed in a manually signed 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).
(y adviser) registered" Investment Manager" shall mean an investment under the Investment Advise of 1940 or a domestic bank or insurance company.r's Act (z)
" Investment Vehicle" shall mean any invest-ment product offered by any investment company, ration functioning as an investment intermediary, corpo-t insurance contract entity or arrangem,ent to which, partnership, joint venture or other-i i
or pursuant to which, assets of a Fund may be transferred or in which a Fund has an interest, beneficial or otherwise.
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Attechment I to VPH-082-90 Page 10 of 33 (aa)
"Non-Qualified Fund" shall mean that Fund established hereunder with respect to which thu company has advised the Trustee it does not intend to make an election under Section 468A of the Code.
The Non-Qualified Fund shall be deemed to include all cash or other property contributed or paid to the Trustee under this Agreement, along with all investments made therewith and proceeds thereof and all earnings and profits thereon, less amounts that are allocated to the Qualified Fund, and less payments, transfers or other I
distributions from the Non-Qualified Fund which, at the time of reference, shall have been made by the Trustee, i
as authorized herein.
(bb)
" Nuclear Power Plant" shall mean the Trojan Nuclear Generating Plant located near Rainer, Oregon.
(cc)
" 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.
(dd)
" Payment certificate" shall mean a written authorization of the company signed by an Authorized Person direc':ing the delivery of monies or transfer of assets.
(ee)
" Permitted Investments" shall mean such investments as are presently authorized under Section 46BA of the Code and the Regulations, as the same may be amended from time to time, including any additional investment options which may become permissible investments under the Code and any applicmble laws in the future.
The company shall have cole responsibility for determining which investment optiens are Permitted Investments.
(ff)
" Person" shall mean a natural person, trust,
- estate, corporation of any kind or purpose, mutual
- company, commission, joint-stock company, unincorpo-rated organization, association, partnership, joint
- venture, employee organization, committee (including i
the Committee),
- board, participant, beneficiary, trusteo, partner, or venturer acting in an individual, fiduciary or representative capacity, as the context may require.
(gg)
"PGE-Trojan Nuclear Decommissioning Trust" shall also be known as the " Trust" and shall include 1
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1 Attschm:nt 1 to l
VPN-082-90 1
Page 11 of 33 both the Qualified Fund and the Non-Qualified Fund i
established hereunder.
(hh)
" Qualified Fund" shall mean that Fund established hereunder with respect to which the Company has advised the Trustee it intends to make an election under Section 468A of the Code.
The Qualified Fund shall be deemed to mean all cash contributed or paid to the Trustee under this Agreement, along with all investments made therewith and proceeds thereof and all earnings and profits thereon, less amounts that are allocated to the Non-Qualified Fund, and less payments,
.j transfers or other distributions from the Qualified Fund, which, at the time of reference, shall have been made by the Trustee, as authorized herein.
(ii)
" Ruling Amount" shall mean with respect to any Tax Year the amount which the Secretary of the Treasury determines in accordance with Section 46BA(d) of the Code and the Regulations, as the same may be amended from time to time.
(jj)
" Tax Year" shall mean the company's tax year used in filing its federal income tax returns.
(kk)
" Time or Demand Deposits"
'shall mean checking accounts, certificates of deposit or other time or demand deposits.
-(11)
" Trust" shall refer to the PGE-Trojan Nuclear Decommissioning Trust or each separate trust established hereunder, as the context shall indicato.
(mm)
" Trustee" shall mean Bankers Trust Company, as Trustee of the Trust and both Fundn established hereunder.
6
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(nn)
" Valuation Date" shall mean the last day of the Accounting Period, Accounting Period quarter or any more frequent reporting date agreed to by the Trusteo.
The plural of any term shall have a meaning cor-responding to the singular thereof as so defined and any neuter pronoun used herein shall include the masculine or feminine, as the context may require.
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m Attach = nt 1 to VPN-082-90 Pege 12 of 33 ARTICLE II Establishment of Trust 2.1.
_Pu rpose.
The PGE-Trojan Nuclear Decommissioning Trust is established to provide a source of funds to Decommission the Nuclear Power Plant.
Except as may otherwise be permitted by Applicable Laws and Regulations, at no time prior to the satisfaction of all Decommissioning Costs and Administrative Expenses of the Nuclear Power Plant shall any part of the Qualified Fund be used for, or diverted to, any other purposes i 2.2.
Construction.
The provisions of this Agreement, and the definitions contained
- herein, are intended to be construed in accordance with and consistent with any laws, regulations and policies of the federal government, any state government and any other governmental body, as the same may be amended from time to time, which are applicable to the Trust established hereunder.
The company shall have the authority to construe all such applicable laws, regulations and policies and have sole responsibility hereunder for determining the scope of same, which determinations shall be final and binding upon the Trustee and all persons interested in the Trust, 2.3.
Domestic Trust.
The Trust shall at all times be maintalned as a domestic trust in the United States.
2.4 Separate Trusts.
Each Qualified Fund and each Hon-Qua11 fled Fund established hereunder shall constitute a separate trust, 2.5.
Contributions.
From time to time, the Com-pany shall make Contributions to the Trust.
The Company i
shall determine the amount of Contributions to be allocated to each Fund.
Contributions to the Qualified Fund shall be in cash and shall not exceed the amount deductible by the Company under Section 46BA of the Code for the Tax Year on account of which such Contribution was made or deemed made.
The Trustee shall have no responsibility to any Person for enforcing payment of any contributions, or for the timing, computation, deductibility or amount thereof, or for the adequacy of the Funds or the funding standards adopted by the Company in connection with Decommissioning the Nuclear Power Plant. -
. to VPN-082-90 Page 13 of 33 ARTICLE III Administration and Powers of Trusty 3.1.
Disbursement of Assets.
Upon the delivery of a Payment certificate, the Trustee shall deliver monies or transfer assets, free of trust, to or on the order of an Authorized Person.
The Payment certificate shall include (1) the name and address of the person or entity to whom payment is due (which may be the company);
(2) the amount of money to be paid or assets to be transferred; and (3) 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 company shall be solely responsible for ensuring that assets of a Pund are disbursed hereunder solely for the purposes of paying Decommissioning costs and Administrative Expenses, or when circumstances permit or require and upon obtaining any required approval of the Commission or any other Person, to the company as Excess contributions or Excess Funds, or to a successor trustee in connection with the transfer of an ownership interest in the Nuclear Power Plant.
3.2.
Disbursement of Excess Contributions.
If any Contributions or part thereof are subsequently determined by the company in its sole and absolute discretion to be Excess Contributions, then anything in this Agreement to the contrary notwithstanding, upon Delivery of a
Payment certificate within the time prescribed by Applicable Laws and Regulations for the withdrawal of Excess Contributions advising the Trustee of the amount of the 4
Excess Contributions, the Trustee shall pay over to or on 4
the order of the company the amount stated therein.
3.3.
Disbursement of Excess Funds.
Excess Punds, if any, shall revert to the company, and upon the delivery of a Payment Certificate to the Trustee, the Trustee shall pay over to or to the order of the company the amount stated therein. l k
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. to VPN-082-90 Page 14 of 33 4
3.4.
Transfer of Ownership.
(a)
If the Company's direct ownership interest in the Nuclear Power Plant is sold, exchanged, or otherwise disposed of, in whole or in part, and the company elects to transfer any portion of the Qualified Fund which is deemed distributed to the Company 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 same terms as set forth herein and shall transfer the amount stated in the Payment Certificate to the separate trust.
In the event that the Company's successor selects another trustee to administer i
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 with respect to the amount transferred or with respect to the transferee trust.
Transfers made pursuant-to this subsection (a) shall only be made in a manner that is consistent with Applicable Laws and Regulations.
1 (b)
The Company shall not have the right at any time to transfer any portion of its interest in the Non-Qualified Fund.
However, if the Company's direct ownership 1
interest in the Nuclear Power plant is sold, exchanged, or otherwise disposed of, in whole or in part, the Company may terminate the Trust established hereunder which contains the Non-Qualified Fund and shall transfer the assets of the Non-Qualified Fund to the Company's successor in interest to the extent required by Applicable Laws and Regulations.
The Trustee may enter into a separate trust agreement with the company's successor in interest containing substantially the same terms as set forth herein and shall transfer the amount stated in the Payment Certificate to the separate trust.
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 fur-ther duties or obligations with respect to the amount trans-ferred or with respect to the transferee trust.
3.5.
Reliance on Payment Certificate.
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 of the Funds as the Payment Certificate shall direct.
Each direction to the Trustee in a Payment Certificate shall constitute a certification by the Company _.. _
Attachm:nt 1 to VPN-082-90 Page 15 of 33 that such direction is in accordance with Applicable Laws and Regulations and the terms of this Agreement, and that all requisite
- consents, waivers or approvals of tha 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 Payment certificate and shall have no duty to make any independent inquiry or investigation before acting upon any direction contained
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therein.
3.6.
Additional Powers of Trustee.
Without in any way limiting the powers and discretions conferred upon the Trustee by any other provision of this Agreement, the Trustee is hereby authorized as Trustee and not as an Asset Managert (a) to register any securities held for either Fund in its own name or in the name of a nominee and to hold any securities in bearer form, and to combine certificates representing such securities with certificates of the same iss.te held by the Trustee in other fiduciary or represestative capacities or as agent for customers, or to deposit or to arrange for the deposit of such securities in any qualified central depository even though, when so deposited, such securi-ties may be merged and held in bulk in the name of the nominee of such depository with other securities depos-ited therein by other depositors, or to deposit or arrange for the deposit of any securities issued by the United States Government, or any agency or instru-mentality thereof, with a Federal Reserve Bank, but the books and records of the Trustee shall at c11 times show that all such investments are part cf the appropriate Fund; i
(b) to employ suitable agents, depositories and counsel, domestic or foreign, and to charge their rea-sonable expenses and compensation against the appropriato
- Fund, and to confer upon any such depository the powers conferred upon the Trustee by paragraph (a) of this Section 3.6 as well as the power to appoint subagents and depositories, wherever
- situated, in connection with the retention of securities or other property; (c) to deposit funds in interest bearing account deposits maintained by or savings certificates issued by Bankers, in its separate corporate capacity, or in any other banking institution affiliated with Bankers; i
e Attachment I to VPN-082-90 Page 16 of 33 l
provided, however, that the assets of the Qualified l
Fund may only be so deposited if all Applicable Laws and Regulations are met; I
(d) at the direction of the Board of Directors or the Committee, if such authority has been delegated, to compromise or otherwise adjust all claims in favor of or against a Funds l
l (e) to make any distribution or transfer of assets in cash or in kind as the Trustee, in'its abso-lute discretion, shall determine and,- in furtherance l
thereof, to value such assets, which valuation shall be conclusive and binding on all Persons; i
(f) upon the direction of the Board of Directors or the committee, if such authority has been delegated, 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 Applicable Laws and Regulations 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
-the exercise of the powers hereinabove granted, to hold any property deposited as collateral by the borrower pursuant to any master loan agreement in bulk, either as provided in paragraph (a) of this Section 3.6 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 investment in such property'is author-ized under this Agreement,.and to receive' compensation therefor out of any amounts paid by or charged to the account of the borrower; and l
(g) to hold utsinvested cash awaiting investment and such additional cash balances as it shall-deem reasonable or necessary, without incurring any lia"-i-lity for the payment of interest thereon.
l 3.7.
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 Board of Directors or the Committee, if such authority has been delegated, and unless the Trustee is either in possession of-funds sufficient for such purpose or unless it has been 1
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.v-m. - -...,
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Attachment I to VPN-082-90 Page 17 of 33 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 maintaining 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 shall at all time be retained by the Board of Directors.
The Board of Directors may, in its absolute discretion, from time to time allocate or delegate, as the case may be, such discretionary authority to the committee and/or to and among the Asset Managers.
The terms and conditions of appointment, authority and retention of any Asset Manager shall be the sole responsibility of the Board of Directors, unless the Board of Directors has delegated such responsibility to the committee.
The Board of Directors or the Committee, whichever the case may be, shall promptly notify the Trustee in writing of the appointment or removal of an Asset Manager.
4.2.
Investment Discretion.
Subject to the pro-visions of Section 4.3, the assets of a Fund shall be invested and reinvested, without distinction between principal and
- income, at such time or times in such investments and pursuant to such investment strate or courses of action and in.'uch shares and proportions,gies as the Board of Directors, or the r'omnittee -or any Asset Manager, if such authority has been del g ated, shall deem advisable.
4.3.
Limitations on Investment and Other Discre-I tion.
The Board of Directors, or the Committee, if such authority has been delegated, may limit, restrict or impose guidelines affecting the exercise of the powers or discretions conferred by this Agreement on any Asset Managor, provided, however, that any assets of the Qualified Fund shall be invested only when they are not currently required to pay Decommissioning costs and Administrative
- Expenses, and shall be invested exclusively in Permitted Investments.
The Board of Directors, or the committee, if such authority has been delegated, shall be responsible for communicating and monitoring adherence to any limitations or guidelines imposed on any Asset Manager (other than the Trustee) by this Agreement or the Board of Directors or the Committee or Applicable Laws and Regulations, and the
.~
Attachmcat 1 to VPN-082-90 Page 18 of 33 Trustee shall have no responsibility therefor. Any limita-tions, restrictions or guidelines a pplicable to the Trustee, as Asset Manager, shall be communteated 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.
4.4.
Responsibility for Diversification.
The Board of Directors, or the Committee, if such authority has been delegated, shall be responsible for determining the diversification policy, if any, for a Fund, for monitoring adherence 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 of the assets of a Fund imposed on such Fund by the Company, the Commission or Applicable Laws and Regulations.
ARTICLE V Responsibility for Directed Funds 5.1.
Responsibility for Selection of Agents.
All 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 Trustee except where the Trustee is permitted to and shall make available its facili-ties solely for such purposes.
This Section 5.1 shall in no way limit or otherwise affeet the
- rights, powers and authorities conferred on the Board of Directors under Article IV hereof.
5.2.
Trustee Not Responsible for Investments in Directed Funds.
The Trustee shall be under no duty or obli-gation to review or to question any direction of the Board
~
of Directors or of the Committee or any Asset Manager appointed by the Board of Directors, or to review securities or any other property held in any Directed Fund with respect to prudence or proper diversification or compliance with any limitation of any kind or nature imposed by the Board of i
Directors or by the Committee on any Asset Manager's authority, or to make any suggestions or recommendation to the Board of Directors, the Committee or any Asset Manager with respect to the retention or investment of any assets 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
-l
, 1
Att.achment 1 to VPN-082-90 Page 19 of 33 to do so by the Board of Directors or of the Committee or any Asset Manager appointed by the Board of Directors.
No provision of this Agreement is intended to confer any authority upon the Trustee to invest the cash balances of any Directed Fund unless and until it receives directions from the Board of Directors or by the Committee or any Asset Manager appointed by the Board of Directors.
5.3.
Investment Vehicles.
Any Investment Vehl-cle, or interest therein, acquired by or transferred to the Trustee upon the directions of the Asset Manager saall be allocated to the appropriate Directed Fund, and the Trust-ee's duties and responsibilities under this Agreement shall not be increased or otherwise affected thereby.
The Trustee shall be responsible solely for the safekeeping of the evi-dence of the Fund's ownership of or interest or participa-tion in such Investment Vehicle.
5.4.
Reliance on A3sst Manager.
The Trustee shall be required under this Agreement to execute documents, to settle transactions, to take action on behalf of or in the name of the Trust 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 (3) that the transaction will not constitute a
prohibited transaction under Section 4951 of the Code made applicable to the Qualified Fund by Section 468A of the Code, (ii) that the investment is authorized under the terms of this Agreement and any other instrument or law affecting the Asset Manager's authority to deal with the Directed Fund, (iii) that any contract, agency, joinder, adoption, partici-pation or partnership agreement, deed, assignment or other document of any kind which the Trustee is required to exe-cute to ef fectuate the transact Aon has been reviewed by the Asset Manager and, to the ext.ent it deems advisable and prudent, its counsel, (iv) that such instrument or document is in proper form for executian by the Trustee, (v) that, where appropriate, insurance protecting the Fund acninst loss or liability has been or will be maintained in the name of or for the benefit of the Trustee, and (vi) that all other acts to perfect and protect the Trust's rights have
'i been taken, and the Trustee shall have no duty to make any independent inquiry or investigation as to any of the fore-going before acting upon such Instructions.
In addition, the Trustee shall not be liable for the default of any Person with respect to any investment in a Directed Fund or for the form, genuineness, validity, suf ficiency or ef fect of any document executed by, delivered to or held by it for any Directed Fund on account of such investment, or if, for Attachment I to VPN-083-90 Page 20 of 33 any reason any rights of suu. Directed Fund therein shall lapse or shall become unenforceable or worthless.
5.5.
Merger of Funds.
The Trustee shall not have any discretionary responsibility or authority to manage or control any asset told in a Directed Fund upon the resigna-tion or removal of an Asset Manager unless and until it has been notified in writing by the Board of Directors or the Committee that the Asset Manager's authority has terminated and that such Direi:ted Fund's assets are to be integrated with the Discretionary Fund.
Such notice shall not be deemed effective until two bank business days after it~has been received by tie Trustee.
The Trustee shall not be liable for any losses resulting from the disposition by it of any investment made by the Asset Manager or for the re-tention of any 1111guld or unmarketable investment or any investment which -is not widely publicly traded or for the holding of any other investment acquired by the Asset Man-ager if the Trustee is unable to dispose of such investment because of any restrictions imposed by the Oecurities Act of 1933 or other Federal or state law, or if an orderly liqui-dation of such investment is impractical under prevailing conditions, or for failure to comply with any investment limitations imposed pursuant to Section 4.3, or for any other violation of the terms of this Agreement or applicable law as a result of the addition of Directed Fund assets to the Discretionary Fund.
I 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 Section 6.1.
ARTICLE VI Powers of Asset Managers 6.1.
General _ Powers.
Subject to Section 4.3 of this Agreement but without in any other way limiting the 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 dis-c retions with respect to the assets of the Funds subject to
.ts management and control.
Upon the directions of the Asset Manager of a Directed Fund, and, if the circumstances
- require, also in furtherance of its own powers and discretions as an Asset Manager, the Trustee shall make, execute, acknowledge and deliver any and all documents of
- i 1
l
Attachment I to VPN-083-90 Page 21 of 33 transfer and conveyance and any and all other instruments that may be necessary or appropriate to enable the carrying out of the following powers and discretions:
(a) to purchase, hold, sell, invest and reinvest assets of the Trust, together with income therefrom, in common stock, preferred stock, convertible preferred
- stock, bonds, debentures, convertible debentures, mortgages,
- notes, mutual fund
- shares, public debt securities of the United States, obligations of state or local governments, time certificates of deposit in a bank or an insured credit union, commercial paper and other evidences of indebtedness.
(b) to transfer from time to time any part or all of the assets of the Trust to any common, commingled or collective trust fund (the " Common Trust") created by Bgnkers Trust Company, subject to all of the provisions
- thereof, to be commingled with the assets of other trusts participating therein; provided, however, that i
any transfer of assets which are subject to the management and control of the Board of Directors or the Committee or any Asset Manager to the Common Trust may be made only with the-prior approval of the Trustee and shall be invested only in one or more short term investment funds established thereunder, and provided that the assets of the Qualified Fund may only be deposited if all Applicable Laws and Regulations are j
- met, j
(c) to sell, exchange, convey, transfer or other-wise dispose of any property by private contract or at public auction, and no person dealing with the Asset Manager shall be bound to see to the application of the purchase money or to inquire into the validity, expedi-ency or propriety of any such sale or other disposi-tion; (d) to enter into contracts or to make commit-monts either alone or in company with others to sell or acquire property, including but not limited to the purchase of part interests 'in real property or in mortgages on real property, wherever such real property may be situated; (e) 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 Attechnent 1 to VPN-082-90 Page 22 of 33 therewith, to deposit, hold (or direct Bankers, as Trustee or in its individual capacity, to deposit or hold) or pledge assets of the Trusti (f) to lease to others for any term not exceeding the duration of the Trust any real property or part interest in real property; (g) to delegate to a manager or the holder or holders of a majority interest in any real property or nortgage on real property or in any oil, nineral 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 carry out the decisions of such nanager or the holder or holders of such majority interest);
(h) to vote upon any stocks, bonds or other secu-rities (but subject to the suspension of any voting rights as a result of any broker loan or similar agree-ment); to give general or special proxies or powers of attorney with or without power of substitution; to exercise any conversion privileges, subscription rights or other options and to make any payments incidental theretot to consent to or otherwise participate in corporate reorganizations or other changes affacting corporate securities and to delegate discretionary powers and to pay any assessments or charges in connec-tion therewith; and generally to exercise any of the l
powers of an owner with respect to stocks, bonds, secu-rities or other property (i) to organize corporations under the laws of any state to acquire or to hold title to property to direct the Trustee to organize such corporations (or or to appoint an ancillar trustee acceptable to the Trustee for such purpose)y; i
(j) to invest in a fund consisting of securities issued by corporations and selected and retained solely because of their inclusion in, and in accordance with, one or more commonly used indices of such securities, with the objective of providing investment results for the fund which approximate the overall performance of such designated indext (k) to enter into any partnership, as a general or limited partner, or joint venturet
, i
4-I Attachment I to VPN-082-90 Page 23 of 33 1
to purchase units or certificates issued by an inv(es)tment company or pooled trust or comparable en-titys insuranc)e company issuing an insurance contract; and (m
to transfer money or other property to an (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.
6.2.
Prior Consent.
The discretionary powers conferred under paragraphs (c), (d), (e), (f) (g), (i), (j),
(k), (1) and (m) and (n) of Section 6.1 shall be exercised only with the prior written consent of the Board of Directors or the Committee if such authority has been delegated to the Committee,.and no investment shall be made f or the Qualified Fund in an Investment Vehicle unless the Board of Directors or the committee, whichever the case may be, has adviced the Asset Manager that the particular Investment Vehicle is a Permitted Investment.
ARTICLE VII i
Records, Accounts and Tax Returns 7.1.
Records.
The Trustee shall keem accurate and detailed accounts of all investments, recenpts, dis-bursements and other transactions in each Fund and all accounts, books and records relating theraio shall be open to inspection and audit at all reasonable times during nor-mal business hours by any Person designated by the Commit-tee.
The books and records shall be maintained in a manner to enable the company to verify that Applicable Laws and Regulations are satisfied. with respect to the Qualified k
Fund.
7.2.
Valuations.
The Trustee shall determine the value of the assets of each Fund as of each Valuation Date.
Assets will be valued at their market values at 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 accordance with methods consis-tently 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 4 1
jr Attachment I to
\\TN-082-90 Page 24 of 33 rely for all purposes of this Agreement on the latest valua-tion and transaction information submitted to it by the Person responsible for the investment of such assets even if such information predates the 911uation Date.
The Committee will provide or will cause to be provided to the Trustee all information reasonably needed by the Trustee to discharge its obligations to value such assets and to account under this Agreement.
7.3.
A n n u a l __ A c c o u n t.
Within ninety (90) days following the close of each Accounting Period, the Trustee shall file with the Committee, a written account setting forth the receipts and disbursements of each
- Fund, 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, and the value of the assets in each Fund.
7.4.
Account Stated.
Upon the expiration of one l
hundred eighty (180) days from the date of filing its annual account with the Committee, the Trustee shall be forever re-leased and discharged from all liability and further ac-countability to the Company or any other Person with respect to the accuracy of such accounting and the propriety of all acts and failures to act of the Trustee reflected in such account, except with respect to such accounting or any such acts or transactions which the Committee shall be unable to fairly evaluate for accuracy or propriety due to the Trustee's bad faith, gross negligence or willful misconduct, or with respect to which the Committee shall, within such 180-day period, file with the Trustee specific written objections.
7.5.
qudicial Accountings.
Nothing herein shall in any way limit the Trustee's right to bring any action or proceeding in a court of competent jurisdiction to settle its account or for such other relief as it may deem appro-priate.
7.6.
Necessary Parties.
No Person other than the company shall be a necessary party in any proceeding under Section 7.5 or may require the Trustee to account or may l
Institute any other action or proceeding against the Trust-ec.
7.7 Tax Returns.
The Trustee, with respect to the Qualified Fund, and the company, with respect to the Non-Qualified
- Fund, shall
- prepare, file and make _any periodic returns, reports, deposits or payments to be flied
, to
\\TN-082-90 Page 25 of 33 or made on account of such Funds with any Federal, state or local taxing authority, within the time and in the manner as may be required by such authority.
The Trustee and the Company shall provide to one another all information they may possess that is needed by the other to timely prepare, file and make any such
- returns, reports, deposits or
- payments, and each shall sign any return on which its signature is required.
1 ARTICLE VIII Compensation, Taxes and Expenses 8.1.
Compensation and Expenses.
Any expenses incurred by the Trustee in connection with the Trust or either Fund, including, but not limited to, reasonable fees for legal services rendered to the
- Trustee, such e
compensation to the Trustee as shall be agreed upon from time to time between the Trustee and an officer of the Company, and all other proper and reasonable charges and disbursements of the Trustee, shall be charged to and paid as Administrative Expenses from the appropriate Fund upon thirtyissuance(30)days' notice to the Committee without the of a
payment Certificate.
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 either Fund.
8.2.
Taxes.
All taxes of any and all kinds what-soever that may be levied or assessed under existing or future laws, domestic or foreign, upon either Fund or the income thereof shall be paid from such Fund.
8.3.
Allocation.
Any tax or expense paid or incurred hereunder which fii specifically allocable to either Fund shall be charged against such Fund in a manner which the Committee shall determine to be equitable and appropriate in its sole and absolute discretion.
8.4.
Indemnity.
In consideration of Bankers Trust Company's agreeing to enter into this Agreement and act as Trustee hereunder, the Company hereby agrees to hold harmless Bankers, individually and as Trustee, and Bankers' directors, officers, and employees, from and against all
- amounts, including without limitation
- taxes, penalties, expenses (including reasonable counsel fees), liabilities, l
l 1 i
n
. to VPN-082-90 Page 26 of 33 claims, damages, actions, suits or other charges, incurred by or assessed against Bankers, individually or as Trustee, or its directors, officers or empicymes, arising out of this Agreement or its acting as
- Trustee, other than those incurred as a result of its own bad faith, gross negligence or wilful 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.
ARTICLE IX Resignation or Removal of Trustee 9.I.
Resignation or Removal.
The Trustee may be removed by the company at any time upon sixty (60) days' notice in writing to the Trustee.
The Trustee may resign at any time upon sixty (60) days' notice in writing to the company.
9.2.
Design _ation_of a successor.
Upon the remov-al or resignation of the Trustee, the company shall appoint a successor trustee and upon acceptance of such appointment by the successor trustee, the Trustee shall assign, transfer and pay over any and all amounts then held under the Trust i
to such successor trustee..
If, for any reason, the company cannot or does not act promptly to appoint a successor trustee in the event of the resignation or removal of the
- Trustee, the Trustee me.y 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.
Reserve for Expenses.
The Trustee is au-thorized to reserve sul:h amount as it may deem advisable for payments of its fees and expenses in connection with the settlement of its account, and any balance of such reserve l
remaining af ter the payment of such fees and expenses or-after sixty (60) days following the removal or resignation of the Trustee, if enr11er, shall be paid over in accordance with the directions of the company under Section. 9.2.
Any fees and expenses nst paid from such reserve shall be paid by the company.
l
- t l
l l
y
u
~
. to VPN-082-90 Page 27 of 33 ARTICLE X Amendment or Termination 10.1. _ Amendment.
The Company reserves the right at any time and from time ~to t.tme 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; pro-
- vided, however no amendment which affacts the
- rights, duties or respo,nsibilities of the Trustee may be made with-out its prior written consent.
10.2.
Tericination.
(a) Subject to Section 10.4, the Company reserves the right to terminate the Trust established hereunder which contains the Qualified Fund by notice in writing thereof delivered to the Trustee, upon the satisfaction of the purpose for which the Qualified Fund was established or a change in any Applicable Laws and Regulations removing the desirability of or necessitating the maintenance of an-externally segregated fund to provide for Decommissioning.
In the event of termination, the Trustee shall dispose of the assets of a Fund, after the payment of or other provi-sion for all of its expenses (including any compensation to i
which the Trustee may be entitled),
l in accordance with the Payment Certificate delivered to Trustee in connection with the termination.
the removal of the Trustee,In the event that termination results from then such disposition shall be i
implemented in accordance with the provisions of Article IX.
1 the company (b) Except as provided, in section 3.4(b) hereof, shall not have the right to terminate the Trust established hereunder which contains the Non-Qualified Fund.
(c)
Any other provisions of this Agreement to the contrary notwithstanding, each Fund established under this Trust shall 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 j
Joseph P.
Kennedy, the formnr 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 company shall direct.the Trustee shall dispose of the Fund as I
10.3.
Trustee's Authority to Survive Termination.
In the event of termination, until the final distribution of each Fund, the Trustee shall continue to have and may i j
Attechment 1 to VTN-082-90 Page 28 of 33 exercise all of the powers and discretions conferred upon it by this Agreement.
10.4.
Anti-diversion.
No amendment or termina-tion shall permit or authorize any part of the Qualified Fund to be used for or diverted to purposes other than those described in Section 2.1, prior to the substantial comple-tion of Decommissioning (as such term is defined by Applicable Laws and Regulations).
10.5.
Trustee's Reliance.
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 or on behalf of the company under this Article X does not violate any Applicable Laws and Regulations.
ARTICLE XI Authorities 11.1.
_Compa ny.
Whenever the provisions of this Agreement specifically require or permit any action to be taken by "the company", such action must be DJthorized by the Board of Directors or by a Person to whom such authority has been delegated by the Board of Directors.
Any resolu-tion adopted by the Board of Directors or other evidence of such authorization shall be certified to the Trustee by the Secretary or an Assistant Secretary of the Company, and the Trustee may rely upon any authorization so certified until revoked or modified by a further action of the Board of Directors similarly certified to the Trustee.
11.2 Comm1Etee.
Whenever the provisions of this Agreement specifica~11y require or permit any action to be taken by "the Committee," such action must be authorized by the Board of Directors or the Committee or by a Person to whom such authority has been delegated by the Committee.
Evidence of delegation of authority by the committee to any t
Person shall be certified to the Trustee by the Chairman of the Committee or, in the absence of the Chairman, any other member of the Committee, 11.3.
-~ Subsidiary or Affiliate.
Any action re-quired or permitted to be taken under this Agreement by a subsidiary or affiliate of the Company shall be given by the U
Attachment I to e
\\TN-082-90 Page 29 of 33 board of directors thereof in the manner described in Sec-tion 11.1.
11.4.
Certification.
The Trustee, from time to
- time, shall be furnished with a list of the names and signatures of the members of the committee and all other Persons authorized to act as an Authorized Person, or in any other manner authorized to issue orders, notices, requests, Instructions and objections to the Trustee 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 l
delegate or allocate its authority shall thereupon furnish the Trustee with a list of the names and signatures of those individuals who are authorized, jointly or severe 11y, 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 them.
11.5.
Investment Manager.
Unless the Trustee shall have received from the Committee or from the Investment Manager the names and signatures of those persons l
authorized hereunder to direct the Trustee on behalf of the Investment Manager, the Trustee may, in its sole discretion, refuse to act upon any direction from such Investment Manager.
11.6.
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 inaccuracies in any notices, Instructions, or other communications to the Trustee, or for acting in accordance therewith.
11.7.
Continuation of Authority.
The -Trustee chall have the r16 Tit to assume, in the absence of written notice to the contrary, that no event constituting a change in the membership of the Committee or terminating the authority of any Authorized Person, including, but not lim-ited to, any Investment Manager or any Person designated under the procedures specified in Section 11.4, has occurred.
l Attachment I to VPN-082-90 Page 30 of 33 11.8.
No Obligation to Act on Unsatisfactory Notice.
The Trustee shall incur no liability under thls Agreement for any failure to act pursuant to any notice, Instructions, or any other communication from any Asset Manager, the company, the Committee, or any other Authorized Person unless and until it shall have received such notice, Instructions or other communication in form reasonably satisfactory to it.
ARTICLE XII General Provisions 12.1.
Governing Law.
This Agreement has been entered into by the Trustee in and shall be administered, construed and enforced according to the laws of the State of New York.
12.2.
Entire Agreement.
The Trustee's duties and responsibilities to the company, the Commission or any other
{
Person interested therein shall be limited to those specifi-cally set forth in this Agreement.
12.3.
Mistake.
No mistake made in good faith and in the exercise of due care in connection with the adminis-tration of a Fund shall be deemed to be a breach of the Trustee's duties if, promptly after discovery of the mis-take, the Trustee takes whatever action may be practicable in the circumstances to remedy the mistake.
12.4.
Reliance on Experts.
The Trustee may con-sult with experts (who may be experts emplo appraisers,yed by the Com-pany), including legal counsel, pricing serv-Ices, accountants or actuaries, selected by it with due care with respect to the meaning and construction of this Agree-ment or any provision 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 expert.
12.5.
Successor to the Trustee.
Any successor, by merger or otherwise, to substantially all of the trust business of Bankers Trust Company shall automatically and without further action become the Trustee hereunder, subject to all the terms and conditions and entitled to all the benefits and immunities hereof. <
g
_ to VPN-082-90 Page 31 of 33 12.6.
Notices.
All notices,
- reports, annual accounts and other communications to the company, Committee, Investment Manager, or any other Person shall be deemed to have been given when received by such Person at it's office at the address appearing on the recoLJs of the Trustee, which address shall be filed with the Trustee at the time of the establishment of the Trust and shall be kept current thereafter by the committee.
All directions, Instructions, notices, statements, objections and other communications to the Trustee shall be deemed to have been given when received by the Trustee at its offices.
12.7.
No Waiver; Reservation of Rights.
The rights, remedies, privileges and immunities expressed herein are cumulative and are not exclusive, and the Trustee and the company shall be entitled to claim all other rights, remedies, privileges and immunities to which either may be entitled under applicable law.
12.8.
Descriptive Headings.
The captions in i
this Agreement are solely for convenience of reference and shall not define or limit the provisions hereof.-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective of ficers thereunto duly authorized and thel corporate seals to be hereunto affixed and attested to as of the day and year first above written.
(Corporate Seal)
PORTLAND GENERAL ELECTRIC COMPANY f//
Attost:
By R
o (TitI~e)
Treasurer (Corporate Seal)
BANKERS TRUST COMPANY d!//do[
Attest:
By_
/
p'itle)g gg4 4
l 7
i to Attechn:nt I to
,O VPN-082-90 Page 32 of 33 I
i STATE OF Oregon
)
COUNTY OF Multnomah )
ss.1
)
On the - 13th day of July in the year one thousand nine hundred and ninety before me personally.
i cameJoseph M. Hirkoto me known, who being by me duly sworn, did depose and says that he/shn resides in.. Orecon that he/sha is the of Portland General Treasurer ~ described Electric Company, the corporation in and which executed the above instrumenti that he/she knows the seal of
~
l said corporation; that the seal af fixed to said instrument is such corporate seal; that it Waw so affixed by order of the Board of Directors of said corporation, and that he/she signed his/her name to said instrument under authority of the Board of Directors of said corporation.
f u
=
p 5
m Atttchm:nt 1 to o
VPN-082-90 Pega 33 of 33 STATE OF CALIFORNIA
)
) ss.:
COUNTY OF IDS ANGELES
)
On the 16th day of July, in the year one thousand nine hundred and ninety,before me personally came Nellie J. Myers to me known, who being by me-dully sworn, did depose and say:
that he/she resides in Los Angeles; that he/she is the Vice President of Bankers Trust Company, the corporation described in and which executed the above instrument; that he/she wows the deal of said corporation; that the seal affixed to said instrument is such corporate seal; that It was so affixed by order of the Board of Directors of said corporation, and that he/she signed his/her name thereto by like order.
/l)r.1 (int. sM-1.,
X
)"* Nan hee ammaus.wm m
._ m _ m i
OTTICIAL St AL l
4 ELLEN G CANNEN i
n.11
' LOS ANGLLLG COUlJTY NOtAf y PuthC-C8%Fhad
(
Q L _ _ y' }'
{. v Gem. bo Ma<
1 12,1991
(
s
'Attcchment 2 to VPN-082-90.
- Pago.1 ofL34-i i
_j MASTER-NUCLEAR DECOMETSSIONING TRUST AGREEMENT BETWEEN
,j 1
H
' ' "PACIFICORP ' ELECTRIC ' OPERATION,%
aniassumed business =name~of:Pacificorp.
AND i
-l BANKERS TRUST' COMPANY 1-
.).
Effactive July 16, 1990s i
i q'
\\
Attachment l2 to_
VPN-082-90.
P Pets 2 of'34:
TABLE OF CONTENTS Page I
Section-i i
' ARTICLE I - TITLE-DEFINITIONS...,...........~....
2:
1.1
,Name.............................................-
2-
- 1. 2 - - De f in it i o n s '....................................... !
ARTCLE II
- ESTABLISIOCNT OF TRUST..............
8 :-
i 221 Purpose.................................
8 V2. F, Construction............;........-......
4........
k6,,
i 8-
'i 2.3' Domestic Trust......................-............
8-2.4-Separate Trusts..............-...................
8
- 2. 5'-
Contributions.......................
8 i
ARTICLE III -. ADMINISTRATION-AND POWERS OF TRUSTEE......................
9 i
.1 3.1-Disbursement of-Assets..
=
'9
~3.2 : Disbursement' of1 ExcesseContributions.......'.....
29 3.3 Disbursament of Excess, Funds...............
9' 3.4 Trans f er o f : Ownership.................. '. '.......... -
10-3.5 Reliance on Payment Certificate...e..............
- 10 j
3.6 Additional Powers of Trustee.....................
11
.i 3.7 Duty to Enforce ~ Claims.'...........................
121 ARTICLE.IV - MANAGEMENT OF ASSETS...=.........;...
13' s
4.1 Asset Managers........................
13 4.2.: Investment Discretion...........................
13 4.3
, Limitations' on4 Investment-and other Discretion.'.
- 13:
4.4 Responsibility for Diversification..............
14 i
,i ti This Table of contents. is' for the conv'enience of thn parties'only and is not a part of the-attached' Agreement.
4 1
\\
(i) i l
-l
-Attcchu nt 2 to l
VTN-082-90 Page 3 of 34 Section Page
-ARTICLE V'- RESPONSIBILITY FOR DIRECTED FUNDS...
14 5.1 Responsibility for Selection of Agents..........
14-5.2 Trustee Not Responsible for Investment in Directed 1 Funds..............'..........
14
'5. 3
' Investment Vehicles.............................
15 5.4 Reliance on Asset Manager.................
15-i 5.5 Merge r o f Funds................................
16-5.6 Restrictions on Transfer........................
16 i
ARTICLE VI - POWERS OF ASSET MANAGEPJ 16 i
6.1 General Powers.........................
16 1
-6.2 Prio r Cons ent...................................
19.
,;l j
ARTICLE VII - RECORDS, ACCOUNTS:AND TAX RETURNS.
19 7.1 ' Records..........................................
19 7.1 Valuations........................................
19 7.3 Annual Account..................................
20 l.
7.4 Account Stated.......................
20 7.S Judicial Accountings.................
20 i
7.6 Necessary Parties...............
-7.7 Tax. Returns.....................
21 21 i
ARTICLE VIII'- COMPENSATION, TAXES AND EXPENSES.-
21-Compensation and Ex 8.1 Taxes..............penses.......................-
21 8.2 21 8.3 Allocation................
' i 22 8.4 Indemnity.......................
22-i ARTICLE IX - RESIGNATION OR' REMOVAL OF TRUSTEE..
22 Resignation or Remova1..........................
9.1 22-9.2 Designation of a Successor...........
22 9.3 Reserve.for Expenses............................
23 k
(ii) l 1
u_
Attrchr:nt-2 to -
VPN-082-90 Pcgs 4 of 34 Section Page ARTICLE X - AMENDMENT OR TERMINATION...........
23 10.1-Am e n dm e n t......................................
23 10.2 = Termination....................................
23 10.3 Trustee's Authority' to Survive Terminution.....
24 10.4 Anti-diversion.................................
24 10.5 Trustee's Reliance.............................-
24-l l
ARTICLE XI - AUTHORITIES.......................
24-
)
3 11.1 Company........................................-
24 4
11.2 Committee......................................
25 i
11.3 Subsidiary or Affiliate........................
25 l
11.4 Certification..................................
25 s
11.5 Investment Manager.............................
25 j
11.6 Form of Communications.........................
26 l
11.7 Continuation of Authority......................
26 11.8-No obligation to Act on Unsatisfactory'
-Not1ce.....-.........;........................
26 i
ARTICLE XII - GENERAL PROVISIONS...............
26 12.1 Governing Law..................................
26 i
12.2 Entire Agreement...........................
26.
12.3 Mistake........................................=
27 12.4 Reliance on Experts............................
27
- )
12.5 Successor to. thu Trustee..........
27 12.6 Notices........................................
27 12.7 No Waiver Reservation:of Ri 27 Descriptive Headings........ghts...............
12.8-l28 i
'k (iii)
Attachunt 2 to VPN-082 l' Page 5'of 34-
. Mast.or Agreement and ' Declaration of Trust (this.
" Agreement"); ande.as of M y 16,1990
,. ; by and between:
- Pacificorp Electric Operations, an assumed business name of PacifiCorp an Gregon corporation having 'its principal-place of business at Portland, Oregoa
,_'and BANKERS TRUST?
COMPANY, a New York banking corporation.
j i
-E I IEEsg1I g::
J i
- WHEREAS,
-the: Company-has a'
direct' ownership interest. - in ' the nuclear. generating facility known as n the Troj an. Nuclear Generating Plant - (the " Nuclear Power Plant") --
)
which will. be Decommissioned- (as hereinafter defined) -in> the -
i future; and-
- WHEREAS, the. Company desires.to~ establish two
'3
. separate,, externally-maintained decommissioning trusts-into which ' the Company.. shall contribute certainn amounts.in order-to. provide' funds for*'the. future Decommissioning of ' the '
Nuclear Power Plants. and WHEREAS,.
the Company ~ desires
. to -establish
'a Qualifind Fund-within; ' one such. separate trust J and a - Non '
, Qualified Fund within such ' iother separate - trust, and to i
treat - each Fund - so ' established; as -an separate ' trust for all j
purposes hereunder.
- WHEREAS,
'tho' Company desires <,to : maintain 'the' Qualified Fund so-that, to the extent permitted:by law, all'-
. payments thereto will be eligible for a, Federal'and/or, state; income tax deduction by the company.
l
- NOW, THEREFORE,. the. Company: andl Bankers' Trust Company declare and-agree' that Bankers L Trust company ' will receive, hold and administer all suas-~of: money or other property as shall from time to time be contributed Lor paid -
over to it hereunder,. IN TRUST, upon > alli of 1the following
-terms: and conditions:
-i t
'r'
f-Attechunt-2 to VPN-082 Page 6lof 34 j
l ARTICLE I i
i Title-Definitions
-1.1.
Name.
The two separate decommissioning
. trusts established-under this-Agreement shall be_ referred to=
-t collectively as-the
" Pacific Power-Trojan Nuclear Decommissioning Trust" and ars' sometimes-hereinafter collectively reterred to as the " Trusts".-
1.2.
-Definitions.
Where used-in this Agreement, unless - the context,otherwise requires, or : unless otherwise-expressly.provided, or unle.s otherwise: required pursuant to Section 2.2:
-(a)
" Accounting Period" shall 'mean either.'the-twelve cor secutive month period > coincident with the Tax Year-or the ~ shorter period' within any;.such year' in.-
i* which othe iTrustee" accepts?: appointment.'as Trustee-hereunder or ceases.to-act as Trustee for any' reason.
1 L
(b). Administrative Costs and-Other Incidental Expenses" or " Administrative Ex shall mean - all 4
~;
ordinary and necessary ~ expensas'penses" incurred in connection'.
with the ' administration of either Fund,. including; the tax, if.any,. imposed by-Section 468A(e)-(2) of=the Code,;
any state or ~ local tarimposed 'onethe company"or either Fund ; which is attributable to ' the Jincome or the assets '
j of the Fund, legal expenses, accounting" expenses, f actu-arial expenses,. investment management fees,- indemnifi.
cation; costs incurred by the companyiand all: fees and.
expenses of the Tzustee arising out-~ of ' either1 Fund, f
~
Administrative - Expenses with respect : to the - QualifiedL
.-Fundc -shall :not include' sucht amountsi"which,. under:
Section 468A of the Code' and = the. Regulations, - may not =
l.!
be considered permissible expenses.
- Administrative' 4
Expenses shall not include any' excise tax that may be imposed on tho ' Trustee or other disqualified. person-under-Section 4951 of the Code'or.the reimbursementof 1
.any expense incurred in connection.with the assertioni of such excise tax unless ~ it is Ldetermined that the J
Trustee-or other disqualified ' person = is not liable for such excise. tax and -any expense incurred in connection i
therewith is considered reasonable'~ and' necessary under:
Section 4951(d) (2) (C) of the Code.
(c)
" Agreement" shall mean this Master Agreement and Declaration of Talst and shall include'all of the 4
\\ttechant.2 to h
JPN-082 Pago 7 of 34 provisions of - this instrument and of all other-
. instruments. amendatory hereof.,
(d)~
" Applicable Laws and Regulations"'shall mean Federal. and State laws and regulations-adopted thereunder applicable _to the Trusts,--as the same may be-amended from-time to' time, _ including, but not-limited.
to, Section'46aA of the Internal Revenue Code of 1986, as amended, and the regulations: promulgated' thereunder.
(e)
" Asset Manager" shall mean the Committee, or with respect to those assets e over. which 1.it exercises,
~
or to the extent :it is authorized to: exercise, discre-tionary investment authority or control underi Article -
IV, the Trustee or any Investment Manager, individually-or collectively as the conte:,e shall' require.
(f)
" Authorized: Person" shall= mean any Person?
. acting jointly, severally or as a. committee,. designated 0 H
+ rto:, represent s the, Company, or.. Committee and ltake 1 anyl
, action required or authorized to 'be taken by either the Company or i the Committee ;under this Agreement, the identity of whom shall be certified to tho' Trustee"in' accordance with Article XI.
(g)
" Bank business day" shall.mean a.' day on which-the Trustee is open for business.
(h)
" Bankers" shall mean-Bankers Trust Company.
1 (i)
" Board of Directors" - shall mean : the Board.' of Directors of-the Company.
(j)
" Code" shall mean 'the Internal -Revenue Code
- of 1986, as the same may beaamended
- from.. timer to time.-
Any reference in this Agreement. to a :sectionn of - the -
Code shall include that section of the Code '. and i the.-
a regulations promulgated thereunder, and shallibe'. deemed to includ.'Any applicable, successor provisions.
(k)
" Commission (s)"
shall
.mean any public regulator or regulatory body or instrumentality, agency,
or official (judicial-or otherwise)=
directly ~
or j
indirectly of the United
- States, or any -State or H
political subdivision thereof, as the case may' be, having authority to fix rates for the furnishing or sale.of electrical energy by-the-Company, to set stan-i dards for~ the maintenance of and/or to supervise the Decommissioning of the Nuclear' Power' Plant. !
m to VPN-032-90.
Page 8 of.34 (1)
" Committee" shall_ mean the Committee-or Com-
- mittees, individuallyL or collectively, appointed and established by the Board of. Directors, the composition of which shall be-determined by the Board of Directors, which shall have the. authority to appoint, retain or s
remove committae members :from-time-to time.
The -
Committee-shall have such responsibilities as are T
hereinafter provided in this Agreement and; as may be j
delegated thereto by the Board of_ Directors. _The -
H Company: shall certify to the Trustee the composition
(
and~ identity ofl thei Committee in; accordance with-
- j Article
- XI.
.j g
(m)--
" Common Trust"' shall mean any common, com-
-l mingled, or collective trust created-and maintainedq by Bankers Trust Company.'in: which' the Funds may_-be l
sligible to. participate.;
mean S
(n)
" Company" shall _
_ Pacificorp Electric-3 eoperations, an:' assumed ~ business name ~ of 'Pacificorp, or j
any -successor thereto.
- i
. \\
(o)
" contributions" shall mean amounts - Entri-i buted by the company to a Fund.
(p)
" Cost of. _ Service Amount" shall ;mean the 1
amount of.. Decommissioning Costs ' included in the Com-l pany's service - costs f or - ratemaking purposes c for 1the-Tax Year, that-'is properly, allocable to-a nuclear power
}
plant for which a-fund has been or may be established..
1 (q)
"Decomm!ssion" or- " Decommissioning" shall mean all activities to remove the' Nuclear Power Plant-safely from service and: to reduce Dresidual radioactiv-q
.ityttona:1evel_that permits release.of the property for unrestricted use and termination of license.-
l; (r)
" Decommissioning _ Costs" shall. mean all costs and expenses. for, Decommissioning, provided. that, with 1
respect to the Qualified. Fund, such term shall have such meaning as provided under Applicable-Laws and-Regulations, and.shall, with respect to ~the Non-1, Qualified
- Fund, mean the - costs. and -
1xpenses of Decommissioning as determined by. the Company, in its j
sole-discretion, under-- then. Applicable Laws-and Regulations.
J (s)
" Directed-Fund" shall mean either Fund or.
part thereof which is subject to ' the discretionary
. 'I 1
l 1
_Attachmnt 2'to
- VPN-082-90s q
Pass.9 of 34 I
i management and' control of tho' Committee or; any Invest-ment Manager ~other than the Trustee.
(t)
" Discretionary - Fund" shall mean either Funds or part thereof which is subject to - the 7 discretionary -
management ano control of the Trustee.
)
(u)- - Excess. Contributi'ons" shall mean Contribu-tions' in excess, of: the~ Cost. of service Amount; but, with.
respect to the Qualified Fund,!shall mean Contributions i
.in excess 1 of; the lesser - of. the Cost of Service Amount-and the Ruling Amount.:
(v)
" Excess Funds" shall mean any money _and'other property which,e subsequent to. substantial: completion of :
Decommissioning, is-not required to
- satisfy Decommissioning Costs which, - at. the ' option "of the company, may be set.aside.and accumulated _in a= separate:
i
. account.
l (w)
" Fund (s)"
shall mean 'either the:,Qualifind-1 Pund or then Non-Qualified Fund, or? both. Funds, as the context shall-indicate.
4 (x)
" Instructions" shall mean written and. manual i
-ly signed instructions of any: Authorized. Person', - Asset Manager or 1 the c Committee..
" Instructions" shall also 1
- include
" Instructions. Received; By-Any: ~ Other: Means" 3{
provided.that the:partiesihereto shall;have: agreed in a manually sig.1ed writing to itheJ form,. the_ means of-
- l transmission and the-means of identification of such i
Instructions.
" Instructions Received: by. Any Other:
Means" shall include, but shalls not lbe limited to, (i) i oral instructions-(whether.or.not confirmed 1in writing) y and '(11) ~ instructions receivedHby computer, electronic instruction. system ior;; telecommunications terminals q
(including telex, TWXS, ' facsimile transmissionL or bank
+
wire).
(y)
" Investment Manager" shall.mean anEinvestment adviser registered under.~ the Investment. Adviser's ~ Act i
a of 1940 cr a domestic bank or. insurance company.
I (z)
" Investment - Vehicle" shall mean any invest-ment product offered by - any investment company, corpo-ration functioning as an investment. ' intermediary,..
l insurance contract, partnership, joint venture or other.
entity or arrangement to which, _
or pursuant to which,
-s-4 ii
Attachn nt 2 to VPN-082-90' Pcge 10 of-34 assets of a Fund may bei transferred: or in which as Fund has an interest, tensiicial or otherwise.
( aa *, -"Non-Qualified Fund" shall' mean that-Fund establi'shed hereunder' with respect to which the company-has. advised the Trustee it does not intend L to make an :
elect'.on under Section 468A of the: Code... -The Non-Qualf.fied Fund shall be' deemedL to e include all cash or other property contributed or paid to the Trustee under -
i thisc Agreement, alongi with
'all investments ~ made-therewith ' and> proceeds 7 thereof and n all; ~ earnings and-profits thereon, less amounts that are allocated' to the-Qualified Fund,- ' and c less payments, transfers or; other distributions from the Non-Qualified Fund which, at the-time of reference, shall;have been._made by the Trustee,
_as authorized'herein.
(bb). Nuclear Power ' Plant" shall mean the - Troj an:
Nuclear Generating Plant located near Rainer, - Oregon.
_(cc)
" obligations.of'a State or Local. Government" shall mean : obligations of-a State or Local Governmental j"
unit the interest on which '-is exempt from tax? under 7 Section 103(a) of.the Code.
(dd)
"Pa authorization ysant Certificate" shall mean a ' written of the company signed; by 'an Authorized Person directing the, delivery of ' monies or transfer of.
assets.
(ee)
" Permitted: Investments" Ishall-mean such investments as -are presently ' authorized under section -
468A'of the Code. and the Regulations,- ~as the 4 same'may 1
be amended from time to time, including anyJadditional:
investment options-which may become. permissible
-investments ' under the Code' and any applicable laws in il the future.
The. Company.shall have. sole responsibility 0
for determining which investment options are Permittedt Investments.
1 (ff)
" Person" shall mean a natural person, trust,-
- estate, corporation of any kind or purpose mutual
- company, commission, joint-stock company, - un,incorpo-
. }
rated organization, association,n partnership,. joint
- venture, employae organization,. committee (including the Committee),
board,-
participant, beneficiary, i
trustee, partner, or venturer acting in an individual, i
fiduciary or representative capacity, as the context i
may requa.re,
-W
s
'Attachssnt 2 to '
j VPN-082-90 Page 11 of 34-l
)
(gg)
" Pacific Power-Trojan Nuclear j
t<
-Decommissioning Trust"- shall-also be-known as-the
- {
" Trust" ; and. shall-include both the Qualified ' Fund.. and the' Non-Qualified Fund ' established Mreunder.
\\
L (hh)'
"Qualifind Fund"
- shall mean that-Fund established hereunder with respect to which the company I
- has advised. the ' Trustee it intends to make an ' election under Section '. 4 68A. - of the code.
The s Qualified FundT shall'be deemed to mean'all cash contributed or paid to
'the. Trustee under this_ Agreement,,along. with. all' invertments made therewith and proceeds thereof and f all earnings and f profits _ thereon, less ; amounts that are allocated to the Non-Qualified Fund,'and less: payments, transfers or other-. distributions-from the -Qualified
-l Fund, whict, at _ the time of - refarance, sha11fhave been.-
2 made by the Trustee, as. authorized.herein.'
(11)
- Ruling. Amount" shall mean with respect. to 2.i x
, any Tax ; Year" the7 amountiwhich ' the Secretary, of - the Treasury detarmines -in accordance 3with ' Section' 468A(d)-
1 of the Code and the Regulations,- as-the ~ same 'may be amended from time to time.
(jj)
" Tax Year" shall mean the company's L tax year used in filing its federalcincome tax returns.
t (kk)
" Time-or. ' Demand < Deposits" shall
.mean-checking accounts, certificates of. deposit or other time or demand deposits.
(11)
" Trust" shall refer; to the Pacific - Power-Trojan Nuclear Decommissioning -Trust or each separate.
trust established hereunder, as: the context shall.
indicate.
(mm)
" Trustee" shall mean Bankers Trust. Company, as Trustee of the Trust and both Funds established
- i hereunder.,
(
1 (nn)
" Valuation ' Date" shall. mean the last day of
~
the Accounting Period, Accounting Period-quarter or any more frequent reportings date agreed to by the. Trustee.
The plural of.iny term shall.have a ' meaning cor-responding to the singular thereof : as so defined. and any neuter pronoun used herein shall' include the masculine or
- feminine, as the context may require..,
1
.--e.,.U.
.._--e.-,_
, - - -. - = ~, _ _ _ _.,
m m
m
. m
Attachmsnt 2 to-VPN-082-90 Page 12 of 34 ARTICLE II I
Establishment of Trust 2.1.
Purpose.
The Pacific. Power-Trojan Nuclear Decommissioning Trust is established to provide a source of
'l funds to Decommission the Nuclear Power. Plant.
Except as
~!
may otherwise _ be permitted by Applicable Laws andL Regulations,. at no time prior' to the satisfaction of. all Decommissioning Costs. and - Administrative Exp6nsas' of tha 3
Nuclear Power Plant shall any part of the Qualified Fund' be used for, or diverted to, any other purposes, i
2.2.
Construction.
The provisions-02' this i
Agreement, and the definitions-contained herein,. are intended to be construed in accordance with and' consistent with any
- laws, regulations and pr'.icies of the-federal-government, any acate government-and any other governmental body, as the same may be : amended from time' to time, which-j
, + -,are mapplicable..to the Trusti established hereunder.
The company shall have the authority So. construe all
- applicable laws, regulations. and po icies and -have-such
.i sole responsibility hereunder'for determining the scope of same,-
{
which determinations -shall be final-and binding. upon the Trustee and all persons interested in the Trust.
j 2.3.
Domestic Trust.
The Trust shall at all times be maintained as a domestic trust in 'the United I
states.
2.4.
Separate Trusts.
Each fQualified Fund' and =
i sach Non-Qualified Fund
. established.
hereunder. 'shall constitute a separate trust.
'2.5.. Contributions.
From timento, time, the Com-party shall - make contributions to the Trust.-
.The Company.
shall determine the amount of Contributions to be allocated i
to each Fund.
Contributions to the' Qualified. Fund'shall-be in cash and shall not exceed - the.' amount ; deductible bylthe n
Company under Section 468A of the Code fort the Tax Year on l
account of which such Contribution was madeEor deemed - made.--
The Trustee shall have no responsibility-- to any Person for.
enforcing payment of-any contributions ;or for 1the. timing, computation, deductibility or amount thereof, or ' for. the -
i adequacy of the Funds ' or the funding : standards adopted by-the company in connection with Decommissioning the Nuclear
' Power Plant.
l
-g
Attachcr.t'[tu VPN-082-90 Page-13 of-34 ARTICLE III j
Administration and Powers'of Trustee 3.1.
Disbursement of ' Assets.
Upon the delivery of a Payment Certificate, the Trustee - shall deliver -monies.
or transfer assets, free of trust,_to or on.the order of an-
-j
{
Authorized' Person.
The Payment Cartificate shall include:-
(1)-
the name :and address of-' the person or entity,
to whom payment is due-(which may,be the company);=
(2) the - amount of money ~to be-paid or assets.to-f be transferred; and i
'(3) the Fund against which the payment is f toibe '
4 charged.
i The. Payment-Certificate need not disclose' the.
purpose for which. the ~ payment or.. transfer is.. being made.
1 Tha Company-- shall be solely responsible ~ ' for ensuring. that -
assets of a Fund are disbursed hereunder solely for-the purposes of _ paying Decommissioning Costs and Administrative t
1 Expenses, or when circumstances permit or, require and upon H'
obtaining any required approval ofD the l commission-or _ any other. Person, to the company as Excess - Contributions - or Execas Funds, or to a successor trustea in ' connection :with 1
the : transfer of an ownership interest in-the Nuclear Power
- Plant, 3.2.
Disbursement of Excess Contributions.
' If any Contributions or part thereof are subsequently _
determined by thel Company-in. its. sole:
ande absolute discretion to be Excess contributions,_then--_anything in this j
Agreement to-the contrary notwithstanding, upon - Delivery _of -
ai ' Payment > -Certificate within the timei prescribed by Applicable Laws and Regulations for the withdrawal-of Excess-contributions advisin the Trustee ' of the amount - - of ' the contr.i but ions, g Excess the Trustee _shall pay over c to or on the order of the Company the amount. stated therein.
t 3.3.
Disbursement of Excess: Funds.
Excess Funds, y
if any, shall revert to the Company, and upon the, delivery -
j of.a Payment-Certificate to - the' Trustee, the Trustee shall pay over to or to the order. of the : Company the amount stated
,i therein.
> 1 l
Netachsent 2 to -
-VPN-082 Page.14 of 34 ic 3.4.
Transfer of ownership.
(a)
If the Company's direct ownership-interest in' the Nuclear Power Plant is sold, - exchanged.
or otherwise disposed of, in whole or in part, and the Company elects to-
- transfer any? portion of the Qualified - Fund which is deemed distributed-to the - Company -- 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 same terms as set forth herein and-shall transfer the amount stated in the-Payment =
Certificate to - the separate trust.
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 with respect to the amount transferred.or with respect to.the,transteroe-trust.
Transfers made pursuant to.
this subsection- (a)' shall only be made :in.a manner that is.
, consistant with-Applicable Laws.and Regulations.
.(b)
The Company shall not have the right at any time to transfer, any portion of its interest in the Non-Qualified Fund.
However, if. the company's-direct' ownership-interest in the Nuclear Power Plant is = sold, " exchanged, or otherwisa disposed of, min whole or in part, the Company may terminate the Trust, established hereunder _which contains the Non-Qualified Fund and shall transfer, the. assets of the-
- Non-Qualified Fund to the Company's successor in= interest to the. extent required by Applicable Lawayand: Regulations.-
The'
- Trustee' n;ay-enter into a separate trustEagreement - with the Company's successor in interest containing substantially-the same terms as set.forth herein and shall; transfer the amount stated 1in the-Payment Certificate to the: separate trust.
In the event that the Company's ' successor selects another trustee to administer. the separate trustL the Trustee shall transfer the amount specified in the Payment' Certificate to the ' transferee trustee, and the Trustee: shall*have.no fur-ther duties or obligations with respect to the" amount trans-ferred.or with respect to the transferee trust'.
3.5.
Reliance on Payment Certificate.
The. Trust-em 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 -of the Funds as the ' Payment Certificate shall direct.
Each directior to the Trustee in a Payment..,,.
,,,c
.m
Attach::nnt 2 to VPN-082-90
.i Page 15 of 34 certificate 'shall constitute a certification by the company; that such direction is in accordance with Applicable Laws and Regulations and the terms of this Agreement, and that all requisite
- consents, waivers or approvals of the commission or any other PerNn have been duly - and validly obtained,.given or waived, as the-case may be.-
The Trustee may rely conclusively on any Payment Certificate and shall have no duty to make any independent inquiry-or investigation before acting upon any direction contained-therein.
3.6.
Additional Powers of Trustee.
Without -in any way limiting the powers and - discretions conferred upon the Trustee-by any other provision of this Agreement, ' the Trustee is hereby authoris:ed as Trustee and not as an Asset Manager:
(a) to register any securities - held for either Fund in its own.name or in the name of a nominee and to hold-any securities in. 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. as agent for customers, or to deposit or to arrange for the deposit of such securities in any qualified central depository even though, when so deposited, such securi-ties may be merged and held in bulk in the name of the 1
j nominee of such depository with: other securities depos-ited therein by other depositors, or to. deposit. or i
arrange for the-deposit of any, securities issued by'the United States Government, or any agency or instru-mentality thereof, with a Federal Reserve Bank,_but the books and records of the Trustee - shall at all times show that all ~ such investmenta are part of the appropriate Fund; (b) to employ suitable agents, depositories and counsel, domestic or foreign, and to charge chair rea-sonable expenses and compensation
'against-the appropriate
- Fund, and to confer-upon any such depository the powers conferred upon the Trustee by L
paragraph (a) of this Section 3.6 as well as the power i
to appoint subagents and depositories,
.wherever
- situated, in connection with the retention of securities or other property; (c) to deposit funds in interest bearing. account deposits maintnined by or savings certificates issued by Bankers, in its separate corporate capacity, or in t,
4 4
,._w.
m
Attachm nt 2 to VPN-082-90 Page 16 of 34 any other banking institution affiliated with Bankers;
- provided, however, that the assets of the Qualified Fund may only be so deposited if all Applicable Laws, and Regulations are met; (d) at the direction of the Board of Directors or the Committee, if such authority has been delegated, to compromise or otherwise adjust all claims in favor of i
or against a Fund; (e) to make any distribution or transfer of assets in cash or in kind as the Trustee, in its abso-lute discretion, shall determine and, in furtherance thereof, to value such assets, which valuation shall be conclusive and binding on all Persons; (f) upon the direction of the Board of Directors or the Committee, if such authority has been delegated, to loan securities to brokers or dealers or other borrowers under such terms and conditions as the
- Trustee, in its absoluta discretion, deems advisable, to secure the same in any manner permittad by
{
Applicable Laws and Regulations and the provisions of i
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 the exercise of the powers hereinabove granted, to hold any property deposited as collateral by the borrower pursuant to any master loan agreement in bulk, either as provided 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 investment in such property is author-f ized under this Agreement, and to receive compensation i
therefor out of any amounts paid by or charged to the j
account of the borrower; and
{
(g) to hold uninvested cash awaiting investment and such additional cash balances as it shall deem reasonable or necessary, without incurring any liabi-lity for the payment of interest thereon.
3.7.
Duty to Enforce Claims.
The Trustee shall have no duty to commence or maa.ntain any action, suit or legal proceed..ng on behalf of the Trust or any Fund unless the Trustee has been directed to do so by the Board of Directors or the Committee, if such authority has been delegated, and unless the Trustee is either in possession of l
l
- 1. 2 -
. to VPM-082-90 Page 17 of 34 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 maintaining such action, suit or legal proceeding.
~
ARTICLE IV Management of Assets r
4.1.
Asset Managers.
Discretionary authority for the management and control of assets from time to time held in a Fund shall at all times be retained by the Board of Directors.
The Board of Directors may, in its absolute k
discretion, from time to time allocate or delegate, as the g
case may be, such discretionary authority to the Committee and/or to and among the Asset Managers.
The terms and conditions of appointment, authority and retention of any Asset Manager shall be the so]e responsibility of the Board of Directors, unless the Board of Directors has delegated such responsibility to the Committee.
The Board of Directors or the Committee, whichever the case may be, shall promptly notify the Trustee in writing of the appointment or removal of an Asset Manager.
4.2.
Investment Discretion.
Subject to the pro-visions of Section 4.3, the assets of a Fund shall 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 Board of Directors, or the Committee or any Asset Manager, if such authority has been delegated, shall deem advisable.
4.3.
Limitations on !nvestment and Other Discre-tion.
The Board of Directors, or the Committee, if such authority has been delegated, 5ay limit, restrict or impose guidelines affecting the
- ..arcise of the powers or discretions conferred by this Agreement on any Asset Manager
- provided, however, that any assets of the Qualified Fund shall be invested only when they are not currently required to pay Decommissioning Costs and Administrative Expenses and 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.
~L3-E m
g
i Attachmtnt 2 to VPN-082-90 Page 18 of 34 The Board of Directors, or the Committee, if such authority has been delegated, shall be responsible for communicating and. monitoring adherence to any limitations or guidelines imposed on any Asset Manager (other than the Trustee) by
~ his Agreement or the Board of Directors or the Committee or t
Applicable Laws and Regulations, and the Trustee shall have i
no responsibility therefor.
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.
4.4.
Responsibility for Diversification.
The
{
Board of' Directors, or the Committee, if such authority has i
been delegated, shall be responsible for determining the diversification policy, if any, for a Fund, for monitoring :
i adherence by the Asset Managers (other than the Trustee) to such
- policy, and for advising the Asset-Managers with respect to any other elimitations on ' investments of the assets of a Fund imposed on such Fund by' the Company, the-Commission or Applicable Laws and Regulations.
ARTICLE V Responsibility for Directed Funds 5.1.
Responsibility for Selection of Acents.
All 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 Trustee except where the
-Trustee is permitted to and shall make-available its'facili-ties solely for such purposes.
This Section 5.1 shall.in no way limit or otherwise -affect the
- rights, powers and-1 authorities conferred on the Board of Directors under Article IV hereof.
5.2.
Trustee Not Responsible' ~ for Investments in Directed Funds.
The Trustee shall be under no duty or obli-gation to review or to question any direction 'of the Board of Directors or ' of - the committee or any Asset Manager appointed by the Board of Directors, or to review securities or any other property held in any Directed Fund with respect to prudence or proper diversification or compliance with any limitation of any kind or nature imposed by the Board of Directors or by the Committee on any Asset Manager's l l
L Attachesnt 2 to VPN-082-90 Page 19 of 34 j
authority, or to make any suggestions or recommendation to =
the Board of Directors, the Committee or any Asset Manager j
with respect to the retention or investment of any assets 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 Board of Directors -or of the committee or any Asset Manager appointed by the Board of Directors.
No provision of this Agreement is intended to confer any authority upon the Trustee to invest the cash balances of any Directed Fund unless and until it receives directions from the Board of Directors or by the Committee or any Asset Manager appointed by the Board of Directors.
5.3.
Investment ~ Vehicles.
Any Investment Vehi-cle, or interest therein, acquired by or transferred to the Trustee -upon the - directions of the Asset - Manager shall be-allocated to the appropriate Directed Fund, and the Trust-ee's duties and responsibilities under this Agreement shall
.not be-, increased or otherwise affected thereby.
The Trustee 3
shall be responsible solely for ' the safekeeping of the evi-dance of the Fund's ownership of or interest or participa-tion in such Investment Vehicle.
5.4.
Reliance on Asset Manager.
The Trustee shall be requirnd under this-Agreement to execute documents, to settle transactions, to take action on. behalf of - or in the name of the Trust and to make and receive payments on i
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 Section 4951 of-the Code made applicable to the Qualified Fund by Section 468A of the code,-(ii) that the investment is authori::ed under the terms of this Agreement.and-any. other.. instrument or law. affe:fcing - the Asset Manager's authority to deal with the Directed Fund, (iii) that any contract, agency, joinder, adeption, partici-pation or partnership agreement, deed, assignment or other document of 0.ny hind which the Trustee is required to exa-cute to effectuate the transaction has been reviewed by the Asset Manager-and, to the extent it deems advisable - and prudent, its counsel, (iv) that such instrument or document is in r - per form for. execution by the Trustee, (v) that, where cpropriate, insurance protecting the Fund against loss c. liability has been or will be maintained in the name of or for the benefit of the Trustee, - and (vi) that all other acts to perfect and protect the Trust's rights have been taken, and the Trustee shall have no duty to make any independent inquiry or investigation as to any of the fore-f
Attachmant 2 to VPN-082-90 Page 20 of 34 going before acting upon such Instructions.
In addition, the Trustee shall not be liable for the default of any Person with respect to any investment in a Directed Fund or for the form, genuineness, validity, sufficiency or effect of any document executed by, delivered to or held by it for any Directed Fund on accounu~ of such investment, or if, for any reason any rights. of such Directed Fund therein shall lapse or shall become unenforceable or worthless.
5.5.
Merger of Funds.
The Trustee-shall not have any discretionary responsinility or authority ~ to manage or i
control any asset held. in a Directed Fund upon the resigna-tion or removal of an Asset Manager unless and until it has been notified in writing by the Board of Directors or the Committee that the Asset Manager's authority has terminated and' that such Directed Fund's assets are to be integrated with the Discretionary Fund.
Such notice shall not be deemed effective until two bank business days after it has been received by the Trustee.
The Trustee shall. not be
' liable ? for ~any - losses resulting from the disposition by it of any investment made by the Asset Manager or for the re-tantion of any 1111guid or unmarketable investment or any investment which is not widely publicly traded or. for the holding of any other investment acquired by the Asset Man-ager if the Trustee is unable to dispose of such investment 4
because of any restrictions imposed by the Securities Act of 1933 or other Federal or state law, or if an orderly liqui-dation of such investment is impractical under. prevailing cenditions, or for failure to comply with any investment limitations imposed pursuant to Section 4.3, or for any other violation of the terms of this Agreement or applicable law as a - result of the addition of. Directed, Fund ass,ets 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 Section 6.1.
)
ARTICLE VI Powers of Asset Managers 6.1.
General Powers.
Sub' ject to Section 4.3 -of this Agreement but without in any other way limiting. the 4
powers and discretions conferred upon-any Asset Manager by.
the other provisions of this Agreement or by ]aw, each Asset Manager shall be vested with the following powers and dis-A r
~ - -,.
-,n,--
,w, e
A
\\\\
Attachasnt 2 to VPN-082-90 Page 21 of 34 l'
cretions with respect to the assern of the runds subject to.
its ~ management and control.
Upon the directions of the Asset Manager of a Directed Fund, and, if the circumstances i
- require, also in' furtherance of its own _ powers and discretions as an Asset Manager, the Trustee shall make, execute.. - acknowledge and deliver any and all documents of transfer and conveyance and any and all other instruments i
that nr.y be necessary or appropriate to enable the carrying out of the following powers and discretions:
(a) to= purchase, hold, sell, invest and reinvest assets of the Trust, together with income therefrom, in common stock, pref erred ' stock, convertible preferred-
- stock, bonds, debentures,. convertible debentures, mortgages,
- notes, mutual fund
- shares, public debt securities of the United States, obligations - of State or local governments, time certificates of deposit in a-bank or an insured credit union, commercial: paper and other evidences of indebtedness.
(b) to transfer from time to time any part or all of the assets of the Trust to any common, commingled or collective trust fund (the " Common Trust") created by Bankers Trust Company, subject to all.of the provisions
- thereof, to - be conningled with the assets of. other trusts participating therein; provided, however, that i
any transfer of assets which are_ subject to the management and control of the Board of Directors or the l
Committee or any Asset Manager to the Common Trust'may be>made'only with the prior approval of the Trustee and j
shall be invastad only in one or more short term investment funds established thereunder, and-provided that the assets of the Qualified Fund may only be so 1
deposited if all Applicable Laws and Regulations are met.
(c) to sell, exchange, convey,-transfer or other-wise dispose of any property by private contract or at public auction, and no _ person ' dealing. with the - Asset Manager shall be bound to see to the application of the purchase money or to inquire into_the validity, expedi-ency-or propriety of - any such sale or other. disposi-tion; (d) to enter into contracts. or to make commit-ments either alone or in company with others to sell or acquire property, including but not limited to the purchase of part interests in real property or in i i
Attachmsnt 2 to VPN-082-90
-Page 22-of 34-mortgages on real property, wherever such real property may'be situated;.
4
_'(e) to purchase or sell, write : or - issue, puts, l
calls or other options, covered or' uncovered, to entar
.j into financial futures contracts,. forward placement-contracts and standby = contracts, and..in connection therewith, to deposit, hold (or L direct. Bankers, as-Trustee - or in its individual capacity, to deposit-or hold) or pledge assets of the Trust; (f) to lease to others for any term not exceeding q
the duration 'of. the Trust any. real-. property.or. part j
' interest in real property; (g) to - delegate to
- a. manager or the holder or holders of a majority. interest: in any real property or..
H mortgage on real property or-in:any oil, mineral:or gas.
j properties, the management and operation of any. part
..interestt in.such property or properties 1(including - the '
l s
authority to sell such r part interests. or otherwise a
carry out the decisions of'such : manager or the holder y
or holders of such majority; interest),
i 1
(h) to vote upon:any stocks, bonds or other secu-rities (but subject to the:' suspension of any voting
,j rights as a result ~ of.any broker loan -or.similar agree,
3 ment) ;- to give general or specialyproxies-or powers of -
attorney with or without power : of : substitution;. to exercise =any conversion privileges, subscription' rights
.i or other. options and to make : any payments ' incidental thereto;- to consent to. or otherwise: participate - in -
, corporate ' = reorganizations : - or other w changes affecting-
.O corporate securities-and to delegate; discretionary powers and,to paymany; assessments (or; charges iniconnec-
.e tion therewith; and generally to exercise any v of the j
powers of an owner with: respect to stocks,' bonds, secu-a rities or other property; (i) to organize corporations under the laws of-any state -to. acquire or to hold' title to property (or to^ direct ths Trustee to organize such corporations or to appoint-an ancillary trustee-acceptable-to the Trustee for such purpose);
/
1 (j) to -. invest ~in a fund consisting of securities issued by corporations and selected'and' retained solely because of their inclusion in, -and in 'accordance with, one or more commonly used indices. of such. securities,
, \\
Attachrant 2 to VPN-082-90~
Page.23 of 34 with the objective of providing investment results for the fund which _ approximate the overall performance of such deeignated-index; (k) to enter.into any partnership, as a general or limited partr.ar, or joint ventures
. (1) to purchases units or certificates -issued by an investment company or pooled trust or comparable en -
tity; (m)
'to transfer _ money -or other_ property to an :
j insurance company -issuing an insurance. contract; _ and t
(n). to be reimbursed for the expenses _ incurred in -
1 exercising any of the foregoing. powers or to. pay the -
reasonable expenses' incurred by any ' agent, manager or trustee appointed: pursuant hereto.
s6.2.
Prior-consent.
- The ~ discretionary powers conferred under paragraphs- (c),.
(d),
(e),
(f), L(g),:
(i), (f),
(k),. (1) - and (m) and (n) :of Section 6.1 Phall' be exercised.only with the prior written: consent of: thel Board of Directors or: the Committee _ if. such - authority j
has been delegated to the-Committee,. and no1 investment.
shall, be made for the-Qualified Fund int an ' Investment
- Vehicle unless the Board. of ' Directors ort the Connaittee, whichever the case; may1 be, :haal1 advised the' Asset Manager that the particular ~ Investment Vehicle is a Permitted Investment.
3 4
ARTICLE VII Records, Accounts and Tax ~ Returns.
7.1.
Records.-
The Trustee-shall. keep j
accurate and detailed accounts.'of all investments, receipts, disbursements and :other transactions rin each
~
Fund and all
- accounts, books and records'.relatinq thereto shall be open to, inspection and audit'. at all reasonable times. during - normal business hours by any =
i Person designated by the - Committee.
The books iand records shall be maintained in almanner to - enable : the Company to verify that Applicable Laws and Regulations are satisfied ~with respect to the Qualified Fundi 7.2.
Valuations.
The Trustee
--shali' determine the value of the assets' of each Fund as of.,,,
Attachmant 2 t0-VPN-082-90 Page 24 to 34-s
- each valuation Date.
Assets will be valued at their market values at=the close of business =on the Valuation
- Data, or, in-the absence. of readily ascertainable-
-1 market values, at such values as the - Trustee shall-determine in accordance with methods consistently followed and uniformly applied.
Anything in this Agreement to the contrary notwithstanding,:with respect j
to assets constituting part of a - Directed 1 Fund,- the i
Trustee may rely for all purposes of this Agreement on-the latest' valuation and transaction.
information-1 submitted to it by the Person: responsible. for the investment of such assets even if such information2 I
predates the Valuation Date.
The committee will-provide, or will - cause to be provided to the Trustee all intormation reasonably ~ needed by the ? Trustee to discharge its obligations to value such assets and - to -
account-under this Agreement.
7.3.
Annual Account.
Within' ninety (90)
- days following the close of each Accounting Period, the 4
j
-Trustee-shall file with the ; committee,. a written!
account setting forth the receipts and disbursements ofi each
- Fund, the-investments -and other transactions:
)I effected -by it upon its own authority or pursuant to the directions of any - Person as herein provided during the Accounting Period,- and the value of the' assets. in 1
each Fund.
7.4.
Account Stated.
Upon:the' expiration of j
hundred-eighty (180) days from - the : date of filing one its annual account with the committee,> the -' Trustee -
shall-be forever released: and::. discharged > front all-liability and - further; accountability ; to the company or.
any other Person with respect to the accuracy- ~ of such
]j
~ accounting cand the. propriety, of c all' acts.and. fr.iluru s a
i to act'of the Trustee reflectedJin such account,-except j
with respect to such accounting or any such ~ acts or j
transactions which the ' committee shall'. be unable to i
fairly evaluate for accuracy or propriety due' to the Trustee's bad faith,. gross. negligence or willful misconduct, or with respect to which the : committee
- shall, within such-180-day
- period, file = with-the Trustee. specific written' objections.
7.5.
Judicial Accountings.
Nothing herein shall in any way 11mJ.t the Trustee #s right~to bring any I
action or proceeding in.
a court of competent.
jurisdiction to settle its account or for such other.
relief.as it may deem appropriate. 1
Attach m t 2'to VPN-082-90
-Pags 25 of 34 7.6.
Necessary Pa?. ties.
No Person other--
than the Company sna11 be. a necessary! party in any.
proceeding under Section'/.5.or'may require.the Trustee to^ account ora may ' institute any-~other action or=
proceeding against the Trustee, l
7.7.
Tax Returns.
The > Trustee, ' with respect to the Qualified Fund, and the Company, with respect to i
i the Non-Qualified - Fund, shall-- prepare,. file and make i:
any periodic returns, report; J deposits or payments. to j
l be - filed or made ~ on account 'of such _- Funds. with 'any Federal, state 1or local. taxing authority, withinE the:
D
. time and in the - manner _ as mayL be required by such.
authority.
The Trustee - and the : Company ' shall : provida :
~
to one another'all'infornation they.may possess that isc l
needed by the other to timely prepare, file. anda make.
any such returns, reports, deposits or - payments, and '
each shall sign any return on-which -its signature is =
J required.
~
j ARTICLE VIII Compensation,-Taxes and Expenses 8.1.
Compensation and h enses.
Any expenses incurred by-the Trustee.in connection with the Trust or either Fund, ^ : including, but t not flimitedt to,-
r reasonable fees for legal' _ services. : rendered :.to the
- l Trustee,- such compensation to t thei Trustee nas 'shallt be agreed-upon from time to time 1between. the Trustee : and
- )
an officer of the ' Company, ~ and all1 other; proper and reasonable charges - and.disbursementsL of ~ the a Trustee, shall be charged to and paid as Administrative; Expenses i
from the appropriatecFund'upon1 thirty.(30)Tdays notice to the Committee without the -issuance.ofc a? : Payment Certificate.
The Company shall reimburse L thej Trustee-i i
for any such expenses if : for any reason J such - expenses are not paid 'out :of ~ the Fund. - - The Trustee's entitle-ment to reimbursement hereunder shall not ' be : affected l
by the resignation,or removal of-the Trustee or by the d
termination of the Agreement!or of either Fund.
8.2.
Taxes.>
All taxes of any and' all kinds whatsoever that may be levied
-or-assessed under existing-or future laws, domestic or foreign, upon either Fund or the income thereof shall be paidL from such Fund.
4 k,
!)
Attachssnt 2 to-VPN-082-90 Page 26_of 34 i
8.d.
Allocation.
Any tax or expense paid or incurred hereunder _ which is specifically allocable to
, either Fund ' shall be charged against 1such Fund "in. a manner.which. the committee ~ shall-determine to be-equitable - and appropriate in its sole and absolute discretion.
8.4.
Indemnity.
In consideration of Bankers =
1 Trust company's agrees.ng to enter into thisi Agreement and act as Trustee hereunder,.the company hereby agrees to hold t harmless Bankers, individually and: as. Trustee, j
and Bankers' directors,' officers, and employees, from' 3
and -against all amounts,, including without: limitation 1
- taxes, penalties, expenses (including-reasonable-counsel. fees),. liabilities, claims, damages,- L actions,.
suits or other charges, Lincurred by-or, assessed against
'i Bankers, individually. or as Trustee',- or its directors,-
- officers or employees, arising out _.of this Agreement. or-j) its' acting as Trustee, other than those incurred 'as a 1
-i
"' result 'of ~its own badt f aith,. gross > negligence or wilful-misconduct.
The undertaking made. in this Section-8.4 shall be binding. on the company, its successors or
'i assigns and shall survive termination, amendment' _or
~
i restatement - of this Agreement, or the resignation. or j
removal of the Trustee.
a ARTICLE.IX Resignation or Removal-of Trustee' 9.1.
Resignation ' or Removal'.
The, ' Trustee j
may be' removed by the company at any time upon. sixty (60) days' notice in t citing to the Trustee.
The
)
,s s w.-Trustee may resign at ' any-time _ upon sixty -(60) days':
J 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 andi upon acceptance j.
of such appointment' by' the. successor trustee, the-j Trustee shall' assign, ' transfer and - pay
- over any and all' amounts then. held. under-- the Trust ' to such successor trustee.
If, for any reason, the : company cannot Vor does not act promptly 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
'l jurisdiction for the appointment. :of a
successor-trustee.
Any expenses incurred 'by the Trustee in:.
J
Attachnsnt-Ito
+
VPN-082-90~
-Page-27 of.34 connection' therewith shall be charged to and paid as an-Administrative Expense..
9.3.
Reserve for Expenses.-
The ' Trustee ' is -
authorized to reserve such amount as.it may deem advis.
~-
able for payments of 4 its fees and expenses in; 1
connection with the settlement ofiits account, and any balance of such reserve remaining after the payment of such fs-a. and-expenses or after sixty (60): ' days-fo11owing.che removal-or resignation ~of the Trustee, if
- earlier, shall be paid = over -in : accordance with the-directions of the Company-under Sectioni9.2.
Any fees and expensesLnot paid. from such. reserve : shall - be paid by_tho' company.
a i
i ARTICLE X Amendment or Termination ~
d 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-
-i Agreement by-notice thereof in writing delivered to the-Trustee; provided, however,a no amendment which affects-1 the rights, duties or responsibilities of the Trustee
_may be made without its prior written consent.
10.2.
Termination.
(a)
. Subj ect - to Section' 10. 4, the; company j
resa'rves: the right to terminate the Trust established:
here.under which contains the Qualfied Fund by notica'_in' writing thereof delivered < to theJ Trustee, L upon ' the_
j
. satistaction of the: purpose for which lthe:Qualfied Fund'
+
wr.s established or a change 'in any Applicable - Laws and-J negulations removing the;
-desirability
, of -
or necess2,tating.
the maintenance of
.an externally" segregated fund to provide for -Decommissioning. 'In :the event of-termination, the 7:astaa shall. dispose of ' the -
i assets of a Fund, after the payment of or othar provi -
. I sion for all of its _ expenses.
(including. _any compensation to which the Trustee may be entitled), in-
- y q
accordance with the Payment certificate c delivered to Trustee -in connection. with the - termination.
In the event. that termination results ' from the removalt of'the Trustee, then such disposition shall be, implemented ' in g
accordance with the provisions of Article IX.. l
Attachn nt 2 to' VPN-082-90>
- Paga.28 of 34-(b)_
Except as - provided, in. Section 3.4 (b).
- hereof, the company shall not- -have the right to-A terminate the Trust established hereunder which contains the Non-Qualified' Fund.-
.(c) Any other provisions of this. Agreement to the contrary
_notwithstanding, each-Fund - established under this Trust shall' terminate no later than the twenty-first anniversary of the date ;of death of the survivor from camong a class consisting of all. of. the
- descendants of the late ' Joseph P.
Kennedy, _- ( the former
<l Ambassador to the Court of-Saint ~ James, who are living on the date of tho' establishment of 4 such - Fund and,. if such Fund: is = still in existance on. such anniversary
- date, the Trustee shall dispose u of the Fund as 1the-l Company shall direct.
-l 10.3.
Trustee's Authority to Survive'.
Termination.
In the event of termination, until the J
cfinals., distribution - of s each. Fund, - the Trustee shall t
m 1
y continue to have.and may. exercise all of the_ powers and-4 discretions conferred upon,it.by thisLAgreement.,
10.4.
Anti-diversion.-
No amendment-.or -
termination shall perms.t or authorize 1anyi part i of the1
' Qualified Fund. to be used for or-. diverted" to; purposes -
j other than those described in:Section 2.1, prior to the.
substantial completion of Decommissioning:(asosuch term is defined.by Applicable: Laws and, Regulations).:
s 10.5.
Trustee #s Reliance.
Thel Trustee shall be entitled to assume without-furtherc 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 ;andXthatL any action taken by or on behalf of the company under:this Article X - does not violate any _ Applicable Laws and Regulations.
i i-ARTICLE XI j
W Authorities-
.L 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 Directors or by La, Person to whom such authority has been-delegated = by the Board i
4 f
-1 e i
L m
,~4
~.
s
Attecheent 2 to VPN-082-90 Page 29.of 34 of Directors.
Any resolution adopted by the Board of Directors or other evidence of such authorization shall be certified to - the Trustee - by the Secretary or an Assistant secretary of the company, and the Trustee may rely upon any authorization so certified until revoked or modified by ~ a further action of the-Board of Directors similarly certified to the Trustee.
11.2.
Committee.
Whenever the provisions of this Agreement specifically require or permit any' action ; to be taken by "the committee,
- such action sust be. authorized by the Board of Directors or. the Committee or by a Person to whom such. authority has been delegated by the committee.
Evidence of delegation of authority by the committee to any Person
[
shall be certified to the Trustee by the Chairman of the Committee or, in the absence of the chairman, any other member of the Committee.
- 11. 3. - Subsidiary or Affiliate.
Any action required or permitted to be taken under this Agreement by a subsidiary.or affiliate of the. Company shall be
('
given by the board of directors thereof in the manner described.in Section 11.1.
11.4.
Cartification.
The Trustee, faha time to, time, shall be. furnished with a list of ths names -
and, signatures of the members of the Committee and all other Persons authorized to act.
as an-Authorized
- Person, or in any other manner authorized to issue-I orders, noticos, requests, Instructiona and objections to the Trustee pursuant to the provisions of this Agreement.
Any weh 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 signgtures 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 them.
11.5.
Investment-Manager.
Unless the Trustee shall have received from the ~ Committee or from the Invesment Manager the. names and signatures of those. persons authorized hereunder to direct the Trustee on behalf of the Investment
- Manager, the l
i Attech= nt 2 to VPN-082-90 Pago 30 of 34 Trustee may, in its sola discretion, refuse to act upon any direction from such Investment Manager.
1 i
11.6. ' 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, Iastructions, and other communications to the Trustee 1
i shall be in writing-or in such other form, including transmission by electronic means through the facilities a2 third parties. or othezvise, specifically agreed -to E
in writing by the Trustee.
The Trustee shall not be responsible. to the Company or any other Person. for any i
armrs or inaccuracies in any notices,. Instructions, or other communications to the Trustee, or for acting in accordance therewith.
11.7.
Continuation of Authority.
The Trustee shall have the ragnt to assume, in the absence 3
- of written notice, to the
- contrary, that no event constituting a
change in the membership of. the Cr% ittee or terminating the authority of.
any 1
Authorized Person, including, but not limited to, any Investment - Manager or any Person. designated under the procedures specified in Section 11.3, has occurred.
s 11.8.
No oblicatdon to Act on Unsatisfactory Notice.
The Trustee shalb incur no liability under this Agreement. for any failure to act pursuant to any-r notice, Instructions, or any other communication from any Asset Manager, the company, tho' Committee, or any ether Authorized Person unless and until it shall have rusived such
- notice, Instructions or other l
colaunicutdon in for1a reasonably satisfactory to it, l
l l
ARTICLE XII 1
General Provisions j
12 1.
Governina Law.
This Agreement has barn antored into by the Trustee in and shall be t
l administered, construed and enforced according to the laws of the State of New York.
Ll 12.2.
Entire Attroement.
The Trustee's duties and rarfdiisibilities to the
- Company, the l
L Commission or any other Persou indirested therein shall 1
1
~26-1 1
1-to VPN-082-90 Page 31 of 34 be limited to those specifically set forth in this Agreement.
12.3.
Mistake.
No mistake made in good faith and in the exercise of due care in connection with the administration of a Fund shall be deemed to be a breach of the Trustee's duties if, promptly after discovery of the mistake, the Trustee takes whatever action may be practicable in the circumstances to remedy the mistake.
12.4.
Reliance on Exnerts.
The Trustee may consult with experts (wno may be experts employed by the company),
including legal
- counsel, appraisers, pricing services, accountants or actuaries, selected by it with due care with respect-to -the meaning and constructio of this Agreement or any provision hereof, or concerning its powers. and duties hereunder, and shall.be fully protected for any action taken or omitted by it in good falth pursuant to or on the basis of the opinion of any such expert.
12.5..
Successor to the Trustee.
Any successor, by merger or otherwise, to substantially all of the trust business of Bankers Trust Company shall automatically and without further. action become the
)
Trustie hereunder, subject to all the1 terms and cond$ : ions and entitled to all the benefits and 1
immu'ities hereof.
l 12.6.
Notices.
All notices, reports, annual accounty and other communications to the company or committee, J.nvestment Manager, or any other Person shall.be deemed to have been duly given if mailed, pestage prepaid, or delivered in hand to such Person at its address appearing on the records of the Trustee, which address shall be filed with the Trustee at the time of the establishment of the Trust and shall be kept current thereafter by the committee..
All directions, Instructions, notices, statements, objec-tions and other ccamunications to the Trustee. shall be deemed to have been given when received by the Trustee at its offices.
i 12.7.
No Waivert Reservation of Richts.
The rights, remedies, privileges and immunities expressed herein are cumulative and are not exclusive,-and the Trustee and the Company shall be entitled to claim all '
j Attechent 2 to VPN-082-90
)
Pogs 32 of 34
)
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I i
)
other rights, remedies, privileges and immunities to which either may be entitled under applicable law.
j I
~
12.8.
Descriative Head 4Ms.
The captions in this Agreement are solely for convenience of l
reference and shall. not define-or limit the provisions hereof.
i
[
(
IN WITNESS WHEREOF, the parties hereto-have caused this Agreement to be executed by their l,
l respective officers thereunto duly authorized-and their-corporate seals to be hereunto affixed and attested to as of the day and year first above written.
(Corporate Seal)
-PacifiCorp Electric Operation 4 l
'an assumed business name of Pacificorp.
5 By M
A Attest:
M (Title)p (Corpo e Seal)
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BANKERS TRUST COMPANY
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Attast:
By Eu (Title)
VICEAtES/LSW~
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Attach = nt 2 to VPN-082-90 Page 33 of 34 STATE OF OREGON
)) sa COUNTY OF Multnomah )
On the 16th day of July in the year one thousand nine hundred,and ninety.before ma personally came David F. Bolander-to me known, who being by me duly sworn did depose.and say ' that he resides in Portland, Oregon; that he is the President-Electric Operations of PacifiCorp, d/b/a PacifiCorp ElectricLoperations, c.
athe corporation. described:in and which executed.the above instrument; that he knows the seal' of said corporation; that the seal affixed to said instrument is such corporate sealt and~that he is authorized to sign his nana to said. instrument.
lutml /A. Sis /
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Attccharnt 2 to VPN-082-90 Peg 2 34 of 34 STATE OF New York
)) ss.:
COUNTY OF New York
)-
on the
/7 day of -
YY in the year one t
thousand hqndred and. ninety W before me personally came48 Vin a^
to me known, who being by u y sworn, that he/she is tJuer.v,,/t 8 'p he she-resides in pt.
did depose and say:
ttu Md
,hM rest of Bankers Triplet Congpty, the corporation described in - and which executse the above instrument; that he/abe knows the soci of said. corporation; that the seal affixed to said instrument-is such corporate seal; that it was so.tffixed by order of the loard of Direc-tors of said corporation, and that he/she signed his/ hee name thereto by like order.
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e gemeennlapse Mrb J,84iV i
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1 I
i i
4 Attechm:nt 3 to 4
VPN-082-90 Page 1 of 17 TROJAN DECOMMISSIONING TRUST FUND AGREEMENT This TRUST AGREEMENT (the Agreement), entered into this 23rd day of July,1990 by and between the City of Eugene, Oregon, acting by and through the Eugene Water &
Electric Board (Board), an administrative unit of the City
- Eugene, and Seattle First National Bank, a national bank association, hereinafter referred to as the " Trustee."
WiiEREAS, the 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, has promulgated regulations in Title 10, Chapter I of the Code of Federal Regulations (CFR), Part 50 and these regulations require that a holder of a license issued pursuant to 10 CFR Part 50 provide assurance that funds will be available when needed for required decommissioning activities; and WilEREAS, the Board is a joint hc! der of License Number NPF 1 (Docket No. 50-344),
pursuant to 10 CFR Part 50, for the Trojan Nuclear Plant (Trojan), located in Columbia County in the State of Oregon; and i
W11EREAS, the Board owns thirty (30) percent of Trojan, Portland General Electric Company (PGE) operates and owns sixty seven and one half (67.5) peiecnt of Trojan and PacifiCorp dba Pacific Power & Light Company (PP&L) owns two and one half (2.5) percent of Trojan; and WilEREAS, the Board, PGE and PP&L have elected to use separate trust funds to provide financial assurance for paying their proportionate shares of all Costs of Decommissioning of the facilities identified in License Number NPF-1; and WIiEREAS, the Board, 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, TliEREFORE, the Board and the Trustee agree as follows:
1
Attechm:nt 3 to VPN-082-90 Pcg2 2 of 17 i
I Section 1. Definitions.
As used in this Agreement:
' Authorized Omcer' when used with reference to the Board shall mean the President, Vice-president, the Secretary, the Treasurer, or the chief executive officer thereof or such other officer designated by resolution of the Board, i
' Board" shall mean the Eugene Water & Electric Board of the City of Eugene, Oregon, which is an agency of the City of Eugene, Oregon, or, if said Board shall be abolished, the person, board, body, commission or agency succeeding to the principal functions thereof or to whom the powers and duties granted or imposed by this agreement shall be given by any law, including the Charter of the City, or any ordinance or resolution of the City Council.
'Bonneville" means the Bonneville Power Administration, an agency of the United States Department of Energy, and its successor (s).
)
'f
' Costs of Decommissioning" means all costs incurred by the Board in connection with the
]
planning, preparing or accomplishing decommissioning, restoring, removing or otherwise disposing of the facilities identified in License Number NPF-1. Such costs may include costs of PGE, the Board and their contractors for costs such as staff, engineering, legal, accounting and management expenses and any other costs relating to the above activities.
~
-f 1
' Fund" means the Trojan Decommissioning Trust Fund created by this Agreement. The Fund shall include all assets transferred to the Trustee together with all earnings thereon, less any payments or distributions made by the Trustee pursuant to this Agreement.
' Market Value" of investments means the bid quotation price as reported in the' Wall Street
.I Journal as of said date, or in the event such newspaper is not published or such price is not reported in said newspaper, sources selected by the Trustee such as Interactive Data Services, Inc. and Merrill Lynch Market Master System, or the price at which such 2-i
r Attechmnt 3 to VPN-082-90 Page 3 of 17 obligations are then redeemable by the holder at his option. Market Values are priced and updated each Friday.
'NRC' means the United States Nuclear Regulatory Commission and its successor (s).
' Trustee' means Seattle First National Bank and its successor (s).
'Value of the Fund' means, as of any date, the sum of (a) all cash and cash equivalent held in the Fund as of such date and (b) without duplication the Market Value of all securities held in the Fund as of such date.
l Scrtion 2. Establishment of Fund.
The Board hereby creates the Trojan Decommissioning Trust Fund (Fund) for the benefit of Bonneville for the purpose of paying costs of decommissioning. The Fund is established with the Trustee as a special and irrevocable trust solely to provide for payment of Costs of Decommissioning and for expenses, pursuant to Section 7, which are associated with the administration of the Fund. The Fund is to be held in the custody of the Trustee and accounted for separate and apart from other funds of the Trustee and from funds of the Board. The Board and Trustee intend that only the Board and Bonneville shall have the l
tight to take any action to enforce the terms of the trust created hereby; and no other party shall have any rights in any portion of this Fund for any purpose, including, witaout limitation, satisfaction of any debt of the Board.
Section 3. Assets Constituting the Fund, a)
On or about the effective date of this agreement, the Board will deliver to the Trustee funds heretofore collected by the Board for decommissioning purposes.
From time to time the Board may deliver additional funds or securities from the Trojan General Fund to the Trustee for deposit in the Fund. Such property and any other property subsequently transferred to the Trustee, together with all earnings thereon, less any disbursements made by the Trustee pursuant to this Agreement, shall be held by the Trustee. The Fund shall be held by the Trustee, IN TRUST, as hereinafter provided.
3
i Attechm:nt 3 to
)
VPN-082-90 j
Page 4 of 17 b)
The Trustee shall not be respomible nor shall it undertake any responsibility for the amount of or adequacy of the Fund or for collection of any amounts from the Board.
l t
.Sgtion 4. Disburseltimts From the Fund.
a)
Disbursements for Decommissioning Activities, i
1)
The Trustee shall be authorized to begin making disbursements for Costs of l
Decommissioning from the Fund after presentation to the Trustee of a certificate duly executed by an Authorized Officer of the Board attesting to
{
the occurrence of the events, and in the form set forth in Attachment A,
- Certificate of Events."
l 2)
The Trustee shall make disbursements from the Fund as directed by the Board upon receipt of a certificate duly executed by an Authorized Officer of the Board, stating:
i)
That decommissioning is proceeding pursuant to an NRC approved decommissioning plan; ii)
That disbursement is for a Cost of Decommissioning and that said
{
activities have been performed; iii)
That the funds withdrawn from the Fund will be expended for the sole and exclusive purpose of paying Costs of Decommissioning and that no funds will be withdrawn from the Fund for any other stated purpose, t
except as provided in paragraph 4b below; and L
3)
Upon receipt of such certificate, the Trustee shall pay the certificate amount to the Board, its Paying Agent or as otherwise directed and within the time specified by the Board.
t 4)
In the event the NRC, Bonneville and the Board mutually determine in writing that the Board is unable to direct decommissioning activities, the NRC 4
\\
Attech=nt 3 to VPN-082-90 l.
Page 5 of 17
[
or Bonneville, as mutually agreed in writing, may upon ninety (90) days written notice to the Board, direct the Trustee to make disbursements for Costs of Decommissioning to the Board or other entities or persons, b)
Other authorized disbursements.
1)
The Trustee shall make disbursements as directed and within the time specified by the Board for taxes and expenses pursuant to Section 7.
2)
The Trustee shall make disbursement to Bonneville in the event the actual year end Value of the Fund pursuant to Section 8(a) exceeds requirements as specified below, i)
Prior to Encof Operating License. If the Value of the Fund on December 31 of any year exceeds the present value, at a two (2)~
percent discount rate of the greater of 30 percent of: a) the Board's then currently approved estimate of decommissioning costs, or b) the minimum amount required to demonstrate reasonable assurance of the availability of funds for decommissioning activities, as such amount is determined by 10 CFR 50, both stated in End of Operating License-year dollars, then the Board may direct the Trustee to transfer any or all of such excess to Bonneville.
li)
After End of Operating License.
If the Value of.the Fund on December 31 of any year exceeds 110% of the greater of 30 percent of: a) the Board's then currently approved estimate of decommis-sioning costs; or b) the minimum amount required to demonstrate reasonable assurance of the availability of funds for decommissioning activities, as such amount is determined by 10 CFR 50, both stated in then current year dollars, then the Board may direct the Trustee to transfer any or all of such excess to Bonneville.
5 I
Attechment 3 to VPN-082-90 Page 6 of 17 c)
Prior to making any disbursements from the Fund, the Trustee shall ensure that the certificates referred to in Section 4(a) are present and complete.
Upon disbursement, such funds shall no longer constitute part of the Fund.
Section 5. Trust Mananement, a)
All assets, including principal and earnings, held in the Fund shall be invested, reinvested, exchanged or sold by the Trustee at the direction of the Board or its designee (s) to the fullest extent practicable and reasonable, in investments which are legal investments for the Fund under Oregon State law as in effect from time to time and in accordance with the written investment policy for the Fund.-
b)
The Trustee shall exercise its investment duties pursuant to the written direction of the Board or its designee. If the Board falls to direct investments, the Trustee shall, to the fullest extent reasonable and practicable within two business days of receipt, invest the funds received in the then current three-month (91-Ay) U.S. Treasury Bill or successor instrument.
c)
All principal and earnings received from investment of amounts on deposit in the Fund shall be retained as a single fund in the Fund and be reinvested and applied to payment of Costs of Decommissioning and/or expenses as povided herein.
I d)
During the term of the Agreement, the Trustee shall give the Board and Bonneville (or their designees) full access, during Trustee's normal business hours, to all books and records relating to the Fund, and shall provide the Board and Bonneville (or l
their designees) with all such information regarding the Fund as the Board or Bonneville 6.r their designees) may reasonably request.
e)
The Trustee shall discharge it.c duties in good faith and with the degree of care, skill and diligence under the circumstances then prevailingwhich a prudent person, acting in a like manner and familiar with such matters, would use in the conduct of an enterprise of like character and with like aims.
6
Attechm:nt 3 to VPN-082-90 Page 7 of 17 Section 6. Exoress Powers of Trustec.
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 receive and hold all assets delivered to it by the Board and all carnings derived from those assets in the Fund; l
b)
To invest, sell, exchange, convey, transfer or otherwise dispose of any property held by it,in accordance with the terms of this Agreement, as necessary for the prudent management of the Fund; l
c)
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.
l Section 7. Taxes and Expenses.
All taxes of any kind that may be assessed or levied against or in respect to the Fund and all expenses incurred by the Trustee in connection with this Agreement, including but not limited to brokerage commissions, fees for legal or audit services and Trustee compensation, to the extent not paid directly by the Board, shall be paid from the Fund.
Section 8. Renorts by Trustee a)
Annual Valuation. Beginning in 1991, on or about each February 1, the Trustee shall provide to the Board, NRC and Bonneville, a written accounting of the status of the Fund. Said accounting shallinclude:
1)
An inventory and statement of the Value of the Fund. All securities in the Fund shall be valued at the Market Value as of December 31 of the previous year; 7
i
4 Attcchu nt 3 to VPN-082-90 Page 8 of 17 2)
An accounting of all receipts and disbursements for the year ending December 31;and 3)
Such other information as the Board may from time to time request be included in such an accounting.
b)
.hioyhly Statement. The Trustee will provide to the Board, by the 15th day of each month, written statements of account, including at a minimum:
1)
The beginning and ending monthly Fund balances; i
2)
All current month Fund transactions; 3)
An inventory of all Fund investments; and 4)
Such other information as the Board may from time to time request be included in such a statement.
Section 9. In dependent Audit.
To provide a.surance to the NRC and Bonneville that the Board and the Fund are in compliance w.th all NRC Regulations regarding decommissioning funds, the Board and/or Bonneville may cause to be conducted audits of the Fund and all transactions relating thereto. The audits may be conducted by either outside or internal auditors.
Reports of all audits shall be submitted to the Board, Bonneville and the Taistee promptly upon completion of the audit. Such reports shall contain, in addition to an analysis of the Fund and the transactions relating thereto, a certification by the auditor that all payments from the Fund were made pursuant to the terms of Section 4 herein and that the Value of
~
the Fund as reported in the most recent Annual Valuation is accurately presented.
8
Attcchment 3 to VPN-082-90 Page 9 of 17 Section 10. Trustec Compensation.
The Trustee shall be entitled to reasonable fees for its services and out of pocket expenses as set forth in Attachment B, Fee Schedule, to this agreement. Trustec's compensation may be amended from time to time as mutually agreed upon by the Trustee and Board.
l The Trustee shall submit invoices to the Board at least quarterly. Such invoices shall include separate amounts for necessary and reasonable fees and administrative expenses, if applicable, invoices shall be accompanied by adequate substantiating documentation.
P Within thirty (30) days of receipt of such invoices and substantiating documentation, the Board shall pay or shall authorize the Trustee to make disbursement from the Fund as specified in Section 4.
Section 11. Snecessor Trustee.
Upon ninety (90) days written notice to the Board, the Trustee may resign, provided that no such resignation shall take effect until a successor Trustee is appointed. If for any reason the Board 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. Such court may thereupon, after receiving such petition, appoint a successor Trustee.
The Board may replace the Trustee, provided no such replacement shall be effective until the Board has appointed a successoi Trustee and such successor Trustee accepts the appointment, s
A 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. Should the Trustee resign or be replaced for any l
reason, an independent audit of the Fund, pursuant to the terms of Section 9 herein, shall i
be conducted prior to the appointment of any successor Trustee. The successor Trustee shall specify the date on which it assumes administration of the trust in a writing sent to the
Attechm:nt 3 to VPN-082-90 I
Page 10 of 17 1
Board, Bonneville, the NRC and the present Trustee by certified mail at least fifteen (15) q days before such change becomes effective.
s Section 12. Instructions to the Trustee.
All orders, requests and instructions by the Board to the Trustee shall be given or promptly confirmed in writing and signed by an Authorized Officer. The Trustee shall be fully protected in acting without inquiry in accordance with the Board's orders, requests and 1
instructions. The Trustee shall also be fully protected in acting in accordance with written Bonneville or NRC orders, requests and instructions pursuant to Section 4a. The Trustee shall have the right to assume, in the absence of written notice to the contrary, that no event constituting a change or a termination of the authority of any person to act on behalf of the Board, Bonneville or the NRC hereunder has occurred. The Trustee shall have no-i duty to act in the absence of such orders, requests and instructions from the Board,-
Bonneville and/or the NRC, excent as provided for herein.
Section 13. Amendment of AerWintal.
This Agreement shall be amendod by an instrument in writing executed by the Board and
[
the Trustee. The Board shall provide the NRC and Bonneville a copy of any such amendment upon request.
t Section 14. Irrevocability ana Termination.
Sabject to the rights of the parties to amend this Agreement as provided by Section 13, this Agreement shall continue until: 1) decommissioning is completed; or 2) terminated by -
written agreement between the Board, Trustee, Bonneville and NRC, or the Trustee, Bonneville and NRC if the Board ceases to exist, whichever occurs earlier. The completion of decommissioning will be as agreed by the Board and the NRC. Upon termination of this Agreement, the Fund herein established shall terminate and all assets in the Fund shall be disbursed to Bonneville. If under any circumstances, the Fund herein established is determined to be an invalid trust, the assets in the Fund chall be deposited in a successor trust furid or dichursed to Bonneville for the sole purposes herein provided.
l 10
Attechu nt 3 to VPN-082-90 Page 11 of 17 Section 15. Liability of Trustee, a)
The Trustee shall not be liable in connection with the performance of its duties hereunder except for its own negligence or willful misconduct. The Trustee shall not be liabic for any loss resulting from any investment made pursuant to the terms and provisions of this Agreement. The Trustee shall have no lien, security interest or right of set off whatsoever upon any of the monies or investments in the Fund for the payment of fees and expenses for services rendered by the Trustee under this.
Agreement, b)
So long as the Trustee complies fully with the terms of this Agreement, the Trustee shall not be liable for any deficiencies in the amounts necessary to pay the Costs of Decommissioning. Tim Trustee may rely on any statement which may be contained in a certificate, notice, request, direction, order or other paper or document signed by an Authorized Officer of the Board.
c)
The Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Agreement and no implied covenants or obligations shall be read into this Agreement against the Trustee.
d)
The Trustee shall be under no obligation to inquire into or be in any way responsible for the performance or nonperformance by the Board of any of its obligations with respect to this Agreement or activities related thereto.
e)
The Trustee may from time to time consult with counsel, who may be counsel to the Board, with respect to any question. arising as to the construction of this Agreement or any action to be taken hce.-der. The Trustee shall be fully protected, to the extent permitted by law, in acting on the advice of counsel.
l Section 16. Indemnification of Trustee.
The Board hereby agrees to indemnify, with moneys in the Trojan General Fund, the l
Trustee, and hold it harmless from any and all claims, liabilities, losses, actions, suits or 11
% ~
Attechment 3 to VPN-082-90 Page 12 of 17 proceedings at law or in equity, or any other expense, fee, or charges of any character or nature, which it may incur or with which it may be threatened by reason of its acting as Trustee under this Agreement. In connection therewith, the Board also agrees to indemnify the Trustee against any and all expenses, including attorney's fees and the cost of defending any action, suit or proceeding or resisting any claim, including appellate proceedings. The provisions of this Section shall not apply in the case of the Trustee's own negligence or willful misconduct or that of their employees or agents.
l Section 17. Applicable I,aw.
This Agreement shall be administered, construed, and enforced according to the laws of the Seite of Oregon.
Section 18. Interpretation and Severabilliy.
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 provision of this agreement is finally determined to be invalid by a court of competent jurisdiction, such provisions shall be construed to be severable from and shall not affect the remaining provisions which will remain valid and enforceable.
Section 19. Notices.
Any notices to be given or to be served upon any party hereto in connection with this Agreement must be in writing (including telecopy or similar writing) and may be delivered personally when delivered at the address specified below, may be telecopied when such telecopy is transmitted to the telecopy number specified below and its receipt is J
acknowledged cr may be sent by certified or registered mail at the address specified below provided, that if so mailed, such notice shall be deemed to have been given and received seventy two (72) hours after a registered or certified letter containing such notice postage prepaid, is deposited in the United States mail. Such notice shall be given to the parties at their following respective addresses or telecopy numbers or at such other address or telecopy number as either party may hereafter designate to the other party in writing:
12
l Attachmtnt 3 to VPN-082-90 Page 13 of 17 If to the Board:
Eugene Water & Electric Board 500 E. 4th Avenue Eugene, OR 97401 Attention:
David C. Johnson, Assistant Treasurer Telephone No.:.
(503) 484 2411 Telecopier No.:
(503) 484 3762 If to the Trustee:
Seattle First National Bank 1001 Fourth Avenue Plaza Building lith Floor Seattle, WA 98154 Attention:
Dennis Egan, Manager Institutional Custody Telephone No.:
(206) 358 0034 Telecopier No.:
(206) 358 0080 Section 20. Entirety of Anreement.
This Agreement contains all the agreements and understandings among the parties with respect to the s aject matter hereof; provided, however, the terms and conditions of this agreement are subject to the terms and conditions of the Bond Resolution and Project Agreement.
i 13:
1 1
Attcch=nt 3 to VPN-082-90 Pegs 14 of 17 i
IN WITNESS WilEREOF the parties have caused this Agreement to be executed by the
]
respective officers duly authorized and the incorporate seals to be hereunto affixed and attested as of the date first written above, CITY OF EUGENE EUGENE WATER & ELECTRIC BOARD
[ SEAL]
By:
S u l -_- #
_-_h L_
SEATTLE FIRST NATIONAL BANK By:
)_ AA _( )
l][}TAALJ A
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ff V
I l/
n _,k
/
14
.Attcchment 3 to VPN-082-90 pago 15 of 17 (State of Washington)
(County of King)
'Ihe undersigned, James B. Gilchrist, Vice President and hianager, Personal Trust Department, appointed to serve as Assistant Secretary of the Board of Directors, being first duly sworn, deposes aad says: That he is an officer of Seattle-First National Bank (* Bank *) as so descrited; that the attached is a true and correct copy of Bank's Articles of Association amended toJune 15,1978, By Laws as amended to Octoter 17,1985, and General Signature Resolution as amended to Septemter 20,1984, by the Board of Directors of Bank; that said Articles of Association, By laws and General Signature Resolution are in full force and effect and are not in conflict with any other rules or Regulations of Bank; that Timothy D. Whitty, Vice President &
hianager, Securitics Services Department, Signatuic Group D; and David L. llenwood, Vice President &
hianager, Bond Trustec Services, Signature Group D; and David A. Pringle, Assistant Vice President, Signature Group D; Diane C. hioran Assistant Vice President, Signature Group D; Shirley D. Young, Assistant Vice President, Signature Group D; Thom.:s E. hiann, Assistant Vice President, Signature Group D; Cheryle D. Richardson, Assistant Vice President, Sign., = Omap D; R. Bruce Colwell, Jre Assistant Vice President, Signature Group D; Kenneth hi. Puro, Assistant Vice President, Signature Grop D; Nancy D. Stahl, Assistant Vice President, Signature Group D; Mona E. Yurk, Assistant V ce r,?s!%n i Signature Group D; Jane D. Towery, Assistant Vice President, Signature Group D; Kathleen Gy!!aad, Trust Officer, Signature Group D; Lori hiontoya, Assistant Vice President & hianager, Signa are Group D; Detorah Saner, Trust Officer, Signature Group D; hiark D. Thomas, Assistant Vice President. Signature Group D; Bruce A. Carrick, Trust Officer, Signature Group D; and Debra R. Wight, Trust Officer, Signature Group D; have teen duly appointed officers of Bank and are now serving as such. 'Ihe following are their true and genuine signaturn, 0/h /{ b
/JarAes B.Gilchrist, Assistant Secretary
"""y*0 hl,,,j vBoard of Directors
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,unda E. Ilouston, Notary Public
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VPN-082-90 Pega 16 of 17 A'lTACHMENT A CERTIFICATE OF EVENTS Seattle First National llank 1001 Fourth Avenue Plaza Building lith Floor Seattle, WA 98154 Attention: Dennis Egan, Manager Institutional Custody 1
Gentlemen:
In accordance with the terms of the Trojan Decommissioning Trust Agreement with you dated July 23, 1990, 1,
, an Authorized Officer of the Board, hereby certify that the following events have occurred:
1.
The Board is required to commence the decommissioning of its share of Trojan located in Columbia County in the State of Oregon (hereinafter called the decommissioning).
2.
The plans and procedures for the commencement and conduct of the decommissioning have been approved by the United States Nuclear Regulatory Commission (NRC), on (copy of approval l
attached).
3.
The Board has adopted the attached resolution authorizing the commencement cf the accc:nmissioning.
i 4.
The NRC has been given thirty (30) days prior notice of the Board's intent j
to begin withdrawals from the Fund.
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Date
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Page 17 of 17 A'ITACHMENT 11 FEE SCHEDULE
. ACCEPTANCE FEE
$ 3,000.00
. IIASE ANNUAL FEE First $100 million
.03% of market value Over $100 million
.01% of market value The balances in the Eugene Water & Electric Board Nuclear Decommissioning Trust Account will be netted with the Washington PublMower Supply System Nuclear DecommissioningTrust for the purposes of assessing an onnual fec.
. PROCESSING FEES (per transaction) i s
Purchases / Sales
$ 21.00 Maturity 15.00 i
Free Receipt / Delivery 15.00 Paydowns of mortgage pass-throughs 10.00 each i
I interest / dividend distribution 5.50 each 1
i e CORRESPONDENT llANK EXPENSES Transaction (purchase / sale)
$ 21.00 IIolding (per security) 2.50/ month
. Expenses including, without limitation, postage / shipping charges and ontgoing Fed wire charges will be billed in addition to the above referenced fees, t
. Monthly and annual statements of holdings and transactions are provided at-no additional charge.
. Fees quoted above will be billed on an agreed periodic basis.
. Addhlonal fees may be charged for services not specified above or for extraordinary services performed.
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