ML20081E098
| ML20081E098 | |
| Person / Time | |
|---|---|
| Site: | Catawba  |
| Issue date: | 06/21/1982 |
| From: | DUKE POWER CO. |
| To: | |
| Shared Package | |
| ML20081E097 | List: |
| References | |
| NUDOCS 9008060151 | |
| Download: ML20081E098 (54) | |
Text
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O DUKE POWER COMPANY NORTH CAROLINA MUNICIPAL POWER AGENCY NUMBER 1 i
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RESTATED OPERATING AND FUEL AGREEMENT Dated June 21 1982 l
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9008060151 900727 PDR ADOCK 05000413 I
PDC i
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r (V) 19.3 Costs g Termination Duke shall submit a monthly statement to Power Agency covering the costs of teritination and payment therefor shall be due and payable as of the date of such statement.
Such costs shall Le payable by Power Agency as operation and maintenance costs in accordance with Sections 7.1(D) and 7.1(E) hereof.
Interest carrying charges will accrue on any such payment due but not received by Duke within 15 calendar days from the date of the statement.
The
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interest carrying charge shall be at a rate equal to one percent per month.
Unless full payment of any amount due hereunder is received within 60 days of the date payable, the Party failing to make the payment due shall be in default and the provisions of Article 18 hereof ', hall apply.
- l ARTICLE 20
.1 O DEC = ss - c 20.1 General The Owners, with the concurrence of NCEMC and Saluda River, may, at
- l any time, decide to decommission Unit 1 or Unit 2 or the entire Catawba Nuclear L
Station..
Any Owner may require that the question of whether or not to j
decommission br. submitted to arbitration pursuant to Article 14.
If such issue is submittad to arbitration, the Arbitrator shall consider economic and any other relevant f actors in making his decision, t
20.2 Costs g Decomeissionin In consideration of the Catawba Reliability Exchange, pursuant to the i
Interconnection Agreement, the NCEMC Interconnection Agreement and the Saluaa River Interconnection Agreement, Duke and the Buyers shall aear all costs incurred for decommissioning in proportion to their respective ownership ll interests in two Catawba Units for whatever period of time is necessary, L
whether pursuant to regulatory requirements or otherwise, to complete the l.
t 100
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, ]ecomissioning process so that no further expenditure of funds is required.
i Decommissioning costs shall include, but not be limited to, any' costs which must be provided for in advance of decommissioning, and any costs which are 1
incurred during or after decommissioning, whether such costs result from regulatory requirements or otherwise.
-20.3 Decommissioning Agreement
)
After the decision to decommission has been made, Duke and the Buyers shall arrange, pursuant to an agreement (the " Decommissioning Agreement")
5 separate from this Agreement, to carry out the decommissioning of the Catawba 1
Nuclear Station, or either of its Units, by Duke or some other qualified engineers and/or contractors.
Such agreement shall contain the provisions set
-forth'in Section 20.2 hereof.
If Duke is to carry out the decommissioning, the Decommissioning Agreement shall contain the provisions of Article 13 and O
V ection 22.10(C) of this Agreement, the NCEMC Operating Agreement and the Saluda River Operating Agreement and the provisions of the Sales-Agreement, the NCEMC Sales Agreement and the Saluda River Sales Agreement with respect to Duke acting as engineer-contractor and e ii contain no provision which is inconsistent with any term of this Agreement, the NCEMC Operating Agreement or the Saluda River Operating Agreement or the Sales Agreement, the NCEMC Sales Agreement or the Saluda River Sales Agreement with respect to Duke acting as engineer-contractor.
20.4-Repurchase In the event the Catawba Nuclear Station, or either of its Units, is
' decommissioned, Duke shall have the right of first refusal to purchase any L
materials parts, supplies or other facilities therefrom.
The proceeds.of such sale to Duke, or of any sale to any other entity, shall be credited to Duke and the-Buyers.
Power Agency's share shall be 37.5% of the proceeds of such sale.
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Appendix B Calculation of Minimum Financial' Assurance Amounts for Catawba Unit 1 and Catawba Unit 2.
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yT Appsndix B li NORTH CAROLINA MUNICIPAL POWER AGENCY NUMBER ONE Calculation of Minimum Financial Assurance I"T Amounts for Catawba Unit 1 and Catawba Unit 2 (Page 1 of 2)
A.
Minimum Financial Assurance Amounts in 1990 Dollars 1.
NRC minimum in January 1986 dollars (10 C.F.R.$. 50.75 (c) (1)) for a PWR greater than or equal to 3,400 MWt = $105 million per unit 2.
1986 amount esenlated to January 1990s a.
$105 million times adjustment factor
)
b.
Adjustment factor from 1986 base values (10 C.F.R.$
50.75 (c)(2)) =
.65L +.13E +.22B, where (i)
L = 147.3/127.7 = 1.153 (ii) E =.58P +.42F, where P = 113.8/119.3 =.954 F = 68.1/82
.830
=
()
(.58 *.954) + (.42 *.830) =.902 2.007/1
= 2.007 (iii) B
=
- .902) + (.22
- 2.007)
(iv) Factor = (.65
- 1.153) + (.13
=
1.308
$137,340,000 per
$105,000,000
- 1.308 c.
January 1990 amount =
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unit d.
Power Agency's 37.5% share = $51,502,500 per unit B.
Minimum Financial AsJurance Amount Escalated to Month of Expiration of Operating Licenses 1
1.
Catawba Unit 1 a.
$51,502,500 times adjustmcnt factor b.
Adjustment factor = (1+E)n, where (i)'
E = escalation factor of 4.5% per year (ii) n = period in years from January 1, 1990 to December 1, 2024 = 34.91667
()
(iii) Factor = (1 +.045) 34.91667 = 4.65026 December 1, 2024 amount = $51,502,500
- 4.65026 = $239,500,000 c.
Appendix B
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NORTH CAROLINA MUNICIPAL POWER AGENCY NUMBER ONE fp Calculation of Minimum Financial Assurance v
Amounts for Catawba Unit 1 and Catawba Unit 2 (Page 2 of 2) 2.
Catavba Unit 2 a.
$51,502,500 times adjustment factor b.
Adjustment factor = (1 + E)n, where (1)
E = escalation factor of 4.5% per year (ii) - n.= period in years frem January 1,1990 to February 1, 2026 =
36.08333 (iii) Factor = (1 +.045) 36.08333 = 4.89530 February 1, 2026 amount = $51,502,500
- 4.89530 = $252,120,000 c.
0
- O (B6F/664)
Appendix.C A copy of the DeJommissioning Trust. Agreement between North Carolina Municipal Power Agency Number 1 and Wachovia Bank & Trust Company.
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CERTIFICATE I,
William H.
Batt, Assistant Secretary-Treasurer of North Carolina Municipal Power Agency Number 1
(" Power Agency"), hereby certify that:
I am charged with the duty of keeping and have custody of the minutes and official records et Power Agency; attached hereto is a
- full, true and complete copy of the Decommissioning Trust Agreement approved by the Board of Commissioners (the " Board") of-Power Agency at a regular meeting of the Board duly called and held on June 20, 1990; 'and said Decommissioning Trust Agreement has not been amended, modified, superseded or repealed and is in full force and effect as of the i
date hereof.
-IN WITNESS WHEREOF, I have hereunto set my hand and the seal of Poter Agency this /4Yd day of July,1990, th,',:,,.l:p,Vl R.-
William ti. Batt Assistant Secretary-Treasurer (SEAL)
Attachment:
Decommissioning Trust Agreement b
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- h; DECOMMISSIONING. TRUST AGREEMENT L$:
THIS TRUST AGREEMENT (" Agreement") made and entered into this N
h b-day of June, 1990, effective as of the 29th. day of June,
- 1990, by and between NORTH CAROLINA MUNICIPAL POWER AGENCY NUMBER *1, a public body and body corporate'and politic organized and existing under and by virtue of the laws of the State of North Carolina ("the Power Agency"), as Grantor, and WACHOVIA BANK &
TRUST COMPANY, N. A,, a banking corporation having trust powers with' its principal office located in Winston-Salem, North Carolina (the
" Trustee"), as Trustee.
H I I H E E E E 2 H:
THAT WHEREAS, the Power Agency is the owner of a seventy-fite percent (75%) undivided ownership interest in a nuclear power plant and associated facilities known as Catawba Unit No. 2; and WHEREAS, pursuant to the Restated Operating and Fuel Agreement
-between the Power Agency and Duke Power Company dated as of June 21, 1982,'the Power Agency is obligated to pay thirty-seven-and one-half percent (37.5%)
of the costs of operations, maintenance, fueling, capital additions, and decommissioning of the Catawba Nuclear Station, which consists of Catawba Unit No. 1 and Catawba Unit No. 2; and WHEREAS, the plant and associated facilities in which the Power Agency has undivided ownership interests are subject to the jurisdiction of the United States Nuclear Regulatory Commission (the "NRC"), an agency of the United States Government; and O
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- WHEREAS, pursuant to the Atomic Energy Act of
- 1954, as gi amended, and the Energy Reorganization Act of 1974,. the NRC has promulgated regulations in Title 10, Chapter 1 of the code of Federal Regulations, Part 50, which require that a holder of, or an applicant for, a license to operate a nuclear power plant provide certain financial assurance that funds will be available when needed for-required decommissioning costs and activities; and
- WHEREAS, the Power Agency, in order to. comply with the
'i foregoing regulations, among other reasons, desires to establish' l
this trust and to place funds hereunder for future decommissioning j
costs-and activities for the Power Agency's undivided ownership I
interests in the plants and associated facilities hereinafter described; and WHEREAS, the Power Agency has selected the Trustee to act as h the Trustee hereunder; and WHEREAS, the Trustee is willing to act and serve as Trustee hereunder upon the terms, provisions and conditions hereinaf ter set forth; i
NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained, the Power Agency hereby agrees 1
to convey, and the Trustee hereby agrees to accept, all that i
property specifically set forth and described in Schedules A and B attached hereto and by reference made a part hereof, to have and hold the same in trust for the uses and purposes and subject to the terms, provisions, conditions and powers hereinafter set forth.
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ARTICLE I TRANSFER AND ACCEPTANCE 1.1 Transfer to Trustee.
The Power Agency hereby grants, releases, assigns, transfers, conveys and delivers unto the Trustee all of that property specifically set forth and described-in
- chedules "A" and "B" attached hereto and by reference incorporated herein and made a part hereof, which Schedules bear the signature of the Power Agency and the Trustee, to have and to hold the same,-
l in trust, for the uses and purposes and subject to the terms, provisions, conditions and powers hereinafter set forth.
1.2-Accentance by Trustee.
The Trustee hereby acknowledges receipt of all-that property described in and on Schedules "A" and all of said property being sometimes hereinafter referred to e
"B",
as the " Trust Estate" or " Trust Property," and the Trustee hereby agrees to hold, manage and distribute the same as from time to time constituted, upon the terms, provisions and conditions hereinaf ter set out.
The Power Agency may also, from time to time and at any time' hereaf ter, contribute additional property to the Trustee to be held under the terms hereof, subject to the provisions of Section 5.2 of this Agreement.
1.3 Instruments of Further Assurance. The Power Agency will, upon reasonable request of the Trustee, execute, acknowledge and deliver such further instruments and do such further acts as may be necessary or proper to transfer any of the property intended to be.
covered hereby and to vest in the Trustee, its successors and O assigns, the Trust Property.
1-ARTICLE II l.
I DEFINITIONS 2.1 Certain Terms Defined.
For all purposes of this L
Agreement, unless the context otherwise requires, the following terms shall have the following meanings:
(a)
" Agreement," " Trust Agreement" and the terms " hereof",
"herein," " hereto" and " hereunder," when used in this_ Agreement, shall mean and include this Agreement as the same may from time _to time be amended,. modified or supplemented.
(b)
" Authorized Representative" shall mean the persons i
designated parsuant to Section 8.1 hereof.
g (c) dPower Agency" shall mean North Carolina Municipal Power Agency Fumber 1, a public body and body. corporate and politic
. organized and existing under and by virtue of the-laws' of the State 1
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of North Carolina, and its successors or assigns.
(d)
" Code" shall-mean the Internal Revenue Code of 1986, as the same may be amended from time to time.
1 (e)
" Decommissioning Costs" shall mean the Qualified Costs directly or indirected incurred or to be incurred by the PowerL Agency in the future with respect to decommissioning of the Plants and associated faciliti.es hereinafter described, as provided by L
Article 20 of the Restated operating and Fuel Agreement between the V
Power Agency and Duke Power Company, dated June 21, 1982.
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T
(f)
" Disbursement Certificate" shall mean a document properly completed and' executed by an Authorized-Representative of the Power 5
Agency and delivered to the Trustee, certifying that the amounts shown therein to be paid are Qualified costs incurred hereunder, in the form of Exhibit A hereto.
(g)
" Trust Fund" shall mean any one of the separate trust i
funds established hereunder, and " Trust Fundd"-shall mean all of the trust funds established hereunder, collectively, as listed en
'the separate schedules attached to this Agreement, as such schedules may be supplemented from time to time by the Power Agency by written notice to the Trustee.
(h)
" Future Orders" shall mean any orders of the NRC or any federal or state agency having jurisdiction over the Power Agency's ownership interests in the Plants, or any federal or state laws e
adopted in connection with the retention, investment and utilization _of funds-for the costs of decommissioning any of the Plants'herein described, which are applicable to the Power Agency.
(1)
" Investment Manager" shall mean any fiduciary or fiduciaries designated as an Investment Manager hereunder by the 1
Power Agency.
(j)
"NRC" shall mean the United States Nuclear Regulatory Commission, - an agency of the United States Government, and its successors and assigns.
(k)
" Plant" shall mean the Power Agency's undivided ownership interests in and to each, and " Plants" shall mean the Power Agency's undivided ownership interests in and to all, of the h
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O nuclear -power plants and facilities now owned or. hereafter 9 acquired, as listed and described herein and as supplemented from
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time to time by the Power Agency by written notice to the Trustee, and shall mean and include all common facilities associated with each such Plant and facility.
Each unit of a multi-unit nuclear l
power plant site shall be considered as a separate Plant for the a
purposes of this Agreement.
(1)
" Qualified Costs" shall mean the Power Agency's costs
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incurred or to be incurred, directly or indirectly, from time to'
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time to remove safely the Plant from service and reduce residual radioactivity thereof to a level that permits release of the Plant for unrestricted use and termination of the Plant license.
(m)
" Resolution R-16-78" shall mean the resolution adopted by the. Board of Commissioners on November 16, 1978, as from time to g sime amended or supplemented by supplemental resolution.
(n)
" Trust" shall mean the Trust established under this Agreement, and all of the separate Trust Funds established hereunder.
(o)
" Trustee" shall mean Wachovia Bank & Trust Company, N. A.,
the original Trustee named herein, and its successors and assigns, a
which shall be deemed to include any bank or trust company into-which it may hereafter be merged or consolidated.
Trustee shall also mean any successor Trustee subsequently appointed under the provisions of this Agreement.
(p)
" Trust Estate" or " Trust Property" shall mean all of the property held from time to time by the Trustee under this Q l e
Agreement, including cash, dividends, income, interest, proceeds and other receipts of or from the Trust Estate or Trust Property.
(q)
" Withdrawal Certificate" shall mean a document properly conpleted and executed by an Authorized Representative of the Power Agency and delivered to the Trustee, in the form of Exhibit-B hereto, certifying that the amounts shown therein have been paid by.
the Power Agency as Decommissioning Costs hereunder.
2.2. Meanina of other Terms.
Except when the context otherwise requiros, words importing the singular number shall include the plural number and vice versa, and words importing persons shall include
- firms, associations, partnerships, corporations, and other entities.
All references herein to
- Articles, Sections and other subdivisions refer to the corresponding Articles, Sections and other subdivisions of this O
Agreement; and the words "herein", " hereof", "hereby", " hereunder" and words of similar import refer to this Agreement as a whole and not to any particular Article, Section or subdivision hereof.
ARTICLE III.
PURPOSE OF TRUST AGREEMENT; ESTABLISHMENT OF SEPARATE TRUSTS 3.1 Intent and Purnose of Trust Aareement.
The Power Agency's intent in establishing this Trust and the separate Trust Funds hereunder is, among other purposes, to comply with the applicable NRC regulations regardaing decommissioning costs, and with any future regulations or orders by or from any federal or state agency or any court of competent jurisdiction to which the O
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9 Power-Agency's interest in the Plants is subject with respect to g such decommissioning.
The Trust Pr< party shall be held and distributed in accordance with this Agreement solely for the purpose of providing funds to pay Decommissioning Costs and for no other uses or purposes and it is intended that no third party have 1
access to any Trust Property except as provided herein.
3.2 Irrevocability and Termination.
Subject to the right of the parties to amend or modify this Agreement as provided in Section 5.1 hereof, this Trust shall be irrevocable and shall continue until such time as all Decommissioning Costs tre satisfied, or until such time as the NRC or other then appropriats entity having jurisdiction over the Power Agency's ownership interests in the Plants determines that such Decommissioning Costs l
have been satisfied and that this Trust is no longer required. h Upon termination of the Trust, all remaining Trust Property, less final.eust administration expenses, shall be returned to the Power Agency or its successor.
3.3 Seearate Trust Funds.
The Trustee shall initially establish two (2) Trust Funds hereunder, one for each Plant as hereinaf ter described, each such separate Trust Fund to be known as follows:
(a)-
Catawba Unit No. 1 Decommissionina Trust Fund. Pursuant
.to the Restated Operating and Fuel Agreement between the Power Agency and Duke Power company dated June 21, 1982, the Power Agency is. obligated to pay thirty-seven and one-half percent
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(37.5%) of the costs of operations, maintenance, fueling, capital additions O _ _.
and decommissioning, including Decommissioning
- costs, of the h
Catawba ' Nuclear
- Station, which includes the nuclear power facilities known as Catawba Unit No. 1 and which is identified and described in License Number NPF-35 issued by the NRC, which license currently expires December 6, 2026.
(b)
Catawba Unit No. 2 Decommissionino Trust Fund. Pursuant to the Restated Operating and Fuel Agreement, the Power Agency is
- obligated to pay thirty-seven and one-half porcent (37.5%) of the-
. costs of operations, maintenance, fueling, capital additions, and decommissioning, including Decommissioning costs, of the Catawba Nuclear Station, which includes the nuclear power facilities known as Catawba Unit No. 2 and which is identified and-described in License Number NPF-52 issued by the NRC, which license currently expires-February 24, 2026.
3.4 Seearate Records. Comminalina of InvestmeD.tg.
The initial contribution by the Power Agency to each of the two (2) separate Trust Funds is described on Schedules "A" and "B" hereof.
' The Trustee shall maintain separate records for each separate Trust Fund and shall credit thereto the prorata share of all income of the Trust and charge thereto the prorata share of all expenses (other than expenses solely attributable to a particular Plant which shall be expenses charged solely to the separate Trust Fund named'for such Plant) and any losses.
Unless otherwise instructed in writing by the Power Agency, however, nothing contained in this Section - 3.4 or elsewhere herein shall be deemed to require the Trustee to segregate or separately invest the assets of the
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4 separate Trust Funds, it bhing intended that the assets of the O-separate Trust' Funds may be held, managed, invested and reinvested in undivided interests in the same property, but shall not be required to be so maintained or invested.
ARTICLE IV DISPOSITIVE PROVISIONS 4.1 Payment of Nuclear Decommissionina Costs.
The Trustee shall make disbursements from the' Trust Fund or Trust Funds in' accordance with the following procedures:
(a)
Disbursements to Third Parties.
The Trustee shall make payments of Decommissioning costs to any person (other than the Power Agency) for goods provided or labor or other services
-rendered to the Power Agency, or in the Power Agency's behalf, g.
on the data specified in a Disbursement Certificate delivered to the Trustee by the Power Agency.
(b)
Reimbursement to-the Power Aaency.
.The Trustee shall make payments to the Power Agency to reimburse the Power Agency for its payment of Decommissioning Costs, on the date specified in-a L
Withdrawal Certificate delivered to the Trustee by the Power Agency.-
The Trustee shall be under no duty to inquire into the correctness or accuracy of matters contained in any properly' executed Disbursement Certificate or Withdrawal-Certificate.
4.2 Power Aaency's Default or Inability to Direct.
In the event of the Power Agency's default in the payment of or inability 0 -
f to direct theLdisbursement of payments for Decommissioning Costs, the Trustee shall make payments from the separate Trust Funds as the NRC or other then appropriate entity having jurisdiction shall direct in writing, whether to third parties or to the Power Agency.
ARTICLE V GENERAL PROVISIONS RELATING TO THE TRUST 5.1
/ Alterations and Amendments.
The Power Agency and the Trustee understand and agree that modifications or amendments may be. required to this Agreement from time to time to effectuate the purposes of this Agreement and to comply with amendments to or-changes in NRC rules and regulations, any Future Orders, and any other changes in the laws applicable to the Power Agency, the Plants or this Trust.
One of the purposes of this Trust is to O--
comply with applicable NRC regulations concerning nuclear decommissioning costs, and the Power Agency expressly reserves the right to amend or modify the Trust Agreement from time to time to conform as necessary or appropriate to any rulings or requests of the NRC applicable thereto.
The Power Agency and the Trustee may amend this Agreement to the extent necessary or desirable to effectuate such purpose or to comply with such Future Orders or changes.
This Agreement also may be modified or amended - to effectuate the-handling of investments and administrative reports and details.
Any modification or amendment to this Agreement shall be by an instrument in writing signed by the Power Agency, the Trustee and filed with the NRC or other then appropriate entity
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having' jurisdiction, or, if the Power Agency ceases to exist,-by g the Trustee and the NRC cr such then other appropriate entity.
Notwithstanding the foregoing, the Trustee may decline to adopt any such amendment if such amendment materially increases the expenses r;
or responsibility of the Trustee and no adequate provision is made i
to compensate the Trustee.for such increase, or if the Trustee I
would be unable, with reasonable effort, to comply with its duties as amended.
5.2 Additions to Trust.
From time to time prior to the termination of any separate Trust Fund hereunder, the Power Agency may make, and the Trustee shall accept, additional contributions to any one or more of the separate Trust Funds, provided that any such contribution is acceptable to the
- Trustee, to be held and l
administered pursuant to the provisions of this Agreement.
h The making of a contribution by the Power Agency shall constitute the certification of the Power Agency that all required consents and approvals-to such contribution, if.any, have-been obtained.
-5.3 Return of Excess Funds.
From-time to tiime prior to the termination of any separate Trust Fund established hereunder, the Power Agency may determine that the assets-in any one or more of the separate Trust Funda exceed the amount required for the Decommissioning costs of the related Plant.
Upon delivery to the Trustee of a written certification of the Power Agency, which is joined in by the NRC or other then appropriate entity having jurisdiction, stating that there is an excess amount, specifying the amount of the excess and the Trust Fund or Trust Funds 9 )
r involved, and requesting payment of such excess amount, the Trustee shall distribute such excess amount to the Power Agency.
The delivery of such a certificate by the Power Agency shall constitute the certification of the Power Agency that all required consents and approvals to such distribution, if any, have been obtained.
5.4 No Trancfarability of Interest in Any Trust.
Except as provided in Sections 6.1 and 6.2, the interest of the Power Agency in any Trust hereunder is not transferable, whether voluntarily or involuntarily, by the Power Agency, nor subject to the claims of-general or secured creditors of the Power Agency;
- provided, however, that any creditor of the Power Agency as to which a Disbursement Certificate for a separate Trust Fund has been properly completed and submitted to the Trustee may assert a claim directly against such separate Trust Fund in an amount not to O
exceed the amount specified in such Disbursement Certificate.
In the event of an attempted transfer by.the Power-Agency of its interest herein, or by any third. party of its interest herein, whether voluntarily or involuntarily by the Power-Agency, a third party or otherwise, the Power Agency's ability to direct payment of
.any portion of the Trust Estate shall cease and thereafter payments from the Trust or any separate Trust Fund shall be made solely in accordance with the written direction of the NRC or other appropriate entity having jurisdiction.
5.5 No Authority to conduct Business.
The purpose of this Trust Agreement is limited to the matters set forth herein and this l
i Agreement shall 'not be construed to confer upon the Trustee -any authority to conduct business.
ARTICLE VI TERMINATION 6.1-Time of Termination.
Each separate Trust Fund estab-lished hereunder shall continue until terminated upon the first to occur of the following events:
(a)
Upon the substantial completion of the nuclear decommissioning of'the Plant for which a separate Trust Fund is
.. y created and named hereunder, as evidenced by a written certifi-cation of such substantial completion executed by the Power Agency and delivered to the Trusten; (b)
Upon the sale or other disposition by the Power Agency of h its interest in the Plant for which a separate Trust Fund is created and named ' hereunder,. as evidenced by a ' written certifi-cation of-such sale or other disposition executed. by the Power Agency and delivered to the Trustee, provided, however, that any such certification delivered pursuant to this 6.1(b) or 6.1(a) abovey shall be' accompanied.by an appropriate rule or order from the NRC os other then appropriate entity having jurisdiction stating that;such separate Trust Fund is no longer required and j
direction as to distribution of the separate Trust Fund, whether to the Power Agency or to or for the benefit of the entity succeeding to the Power Agency's ownership interest in the Plant; O l 1
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(c)~ Upon an applicable rule or order. of the NRC or other then appropriate entity having jurisdiction, or a final decision of any court of competent jurisdiction, that a Trust Fund for a Plant for which a separate Trust Fund is created and named hereunder is no' longer required, but in such event only upon written notification by the Power Agency to the Trustee within thirty (30)-days of such rule, order or final decision that the Power Agency desires to terminate such separate Trust Fund; (d)
Upon the distribution for the purposes of such separate' Trust Fund as provided herein of all the assets and property then held by the Trustee in a separate Trust Fund created and named hereunder.
The termination of any separate Trust Fund hereunder shall not affect or cause the termination of this Trust Agreement or any-other separate Trust Fund hereunder, and.this Trust Agreement shall terminate only_when all of the separate Trust Funds hereunder have terminated and all assets held by the. Trustee hereunder have been distributed.
6.2 Distribution of Trust Assets Uoon Termination.
Upon-termination of each separate Trust Fund hereunder, the Trustee shall distribute the entire remaining amount-of assets then held by it in such Trust Fund, if any, including all accrued, accumulated and undistributed-net income, to the Power Agency, or otherwise as
'E the Power Agency may direct in writing within thirty (30) days of
-termination.
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6.3 certification by Power Aaency. Notwithstanding anything g
-herein to the contrary, in connection with any termination under k
the preceding sections of-this Article VI, the Trustee shall act only-upon receipt (a) of an order of the NRC, or the appropriate
' entity having jurisdiction, or of any court of competent juris-diction having jurisdiction over the Power Agency's interest in the Plants, specifically authorizing such distribution, as evidenced to the Trustee by the written certification of the Power Agency, or (b) of an opinion of legal counsel to Power Agency to the effect that no such orders are necessary to authorize such distribution.
1 In addition, any certification by the Power Agency to the Trustee under this-Article VI shall inform the Trustee of which of tho subparagraphs of Section 6.2 a termination has or is about to take
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place, (ii) request the Trustee to make a termination distribution h hereunder, and (iii) direct the Trustee as to the delivery of any property to be distributed; it-being understood and agreed by the Power Agency that the; Trustee shall be under no duty or obligation
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to inquire into or determine when and if a termination has occurred hereunder-and that the Trustee shall make any terminating distribution only in reliance upon the Power Agency's certifi-cation.
6.4-. Continuation of Trust For Windina UD.
After' the termination of any separate Trust Fund or of all of the separate e
2 Trust Funds, and for'the purpose of liquidating and winding up its affairs, the Trustee shall continue to act as such until its duties have been fully performed.
Upon the distribution of all of the
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Trust Estate-for the purposes of this Trust, or to the Power Agency h
or as the Power Agency directs, upon termination, and-the payment and discharge of all debts, liabilities and obligations of the Trust, the Trustee shall have no further duties or obligations hereunder.
ARTICLE VII GENERAL PROVISIONS RELATED TO THE TRUSTEE 7.1 Manaaement of Trust Pronertv.
The Trustee shall hold,-
manage, invest and reinvest the Trust Property and shall accumulate in 'the Trust and allocate prorata to each separate Trust Fund (based. on the principal balances of each Trust Fund) all not income, after payment of expenses and other disbursements as herein provided, from the Trust Property and add the same to the principal 9
of each separate Trust Fund annually.
The Trustee accepts and undertakes to-discharge the Trust and the separate Trust Funds
. created by= this Agreement, upon the
- terms, provisions and conditions hereof.-
7.2 Comnensation of Trustee.
The Trusteesshall receive as-compensation for its services hereunder those amounts as set out and agreed to in a letter of even date herewith from the Trustee to
'the_ Power Agency signed by the parties hereto.
Such compensation may be adjusted from time to time in such amounts as may be agreed upon,in writing by the Trustee and tho' Power Agency.
7.3 Payment of Ernenses of Administration.
Subject to the written approval of the Power
- Agency, which shall not be )
V unreasonably withheld or delayed, the Trustee shall be authorized 9 to make payments from the Trust Estate of.all administrative costs
-reasonably incurred by it in the performance of its duties under this-Agreement, including, but not limited to, the Trustee's fees, legal, accounting and actuarial expenses, reasonable out-of-pocket expenses and other incidental expenses incurred by the Trustee in connection wsth the administration of this Trust and each separate y-l :-
Trust Fund.
The Trustee is also authorized to make payments from i-the Trust Estate of all administrative costs incurred by or on behalf of the Power Agency, including, but not limited to, ths fees and expenses of accountants, - actuaries, attorneys, consulting engineers, Investment Managers, and other consultants, advisors and agents, general administrative fees and costs, and any other fees and expenses determined by the Power Agency to be reasonably g connected with the purpose for which this Trust was established and appropriate for payment from the Trust, upon written request from the Power Agency, or to reimburse the Power Agency therefor upon i
its written request.. All such administrative expenses of a general nature shall be allocated among the separate Trust Funds estab-lished hereunder prorata (based on the principal balances of each-Trust Fund), and the Trustee -shkil maintain such records as are necessary to reflect the allocation of costs and expenses in accordance with.this section.
7.4 Financial Records and Accounts.
The Trustee shall keep accurate and detailed records and accounts of all investments, receipts and disbursements and otnar transactions hereunder and all 9,
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-n,-
t
-accounts, books and records relating thereto shall-be open to inspection and audit at all reasonable time by any person designated by the, Power. Agency.
7.5 Financial Statements.
The Trustee shall furnish monthly
-financial statements for each separate Trust Fund to the Power Agency' not later = than the seventh (7th) business day of the following month, or at such other less frequent interval as the Power Agency may. require.
The financial statements shall show the financial condition of the separate Trust Fund, including without' l i m i t a t i o n,- t h e market value of the assets, and the receipts, income, expenses, disbursements and other transactions of each separate Trust Fund for the period since the preceding statement.
Financial statements may be approved by the Power Agency by written notice thereof to the Trustee and the Power Agency's failure to
' object to any such financial statement within six (6) months of its receipt of the annual _ audited statements of the separate Trust Funds shall constitute the Power Agency's approval thereof.
The approval of any such financial statement shall constitute a full and complete discharge of the Trustee as to all matters set forth in such financial statement; provided, however, that the foregoing shall not relieve or absolve the Trustee from any liability associated with a
failure to perform its fiduciary responsibilities.
The financial statements of each separate Trust Fund shall be audited annually by the firm of independent certified -
public accountants _ then employed by the Power Agency or by any other firm of. independent certified public accountants selected by
c the Power Agency for such purposes, and the Trustee agrees to make available and furnish such information as may be required for such 9 audit and to cooperate fully in connection therewith.
7.6 Tax Information Returns and Other Reports.
The Power i
Agency represents to the Trustee that it believes the income of the j
Trust and the separate Trust Funds will be exempt from federal and i
i state income taxes under current law and regulations.
However, the Trustee agrees to prepara or cause to be prepared such incose or other tax information returns and reports as may be required from j
1 time to time, ar.d shall provide copies thereof to the Power Agency for its review in advance of their filing.
The Trustee shall provide to the Power. Agency all statements, documents, lists, or other information reasonably requested by the Power Agency.
The Trustee shall also sign all such information returns or reports g p
which may be required and file them or cause them to be filed on a timely basis with the approprir.:e federal and/or state governmental agencies.
The Trustee shall cooperate with all requests made by l
federal 'and/or: state governmental agencies end shall provide copies to the Power Agency in advance of submitting any information in
(
connection therewith.
At the Power Agency's request, the Trustee
(,
shall. testify with respect to the Trust and the separate Trust l
Funds in any proceedings before federal'and/or state governmental agencies or judicial.or administrative bodies.
7.7 Transactions with Third Parties.
No person c organi-zation dealing with the Trustee hereunder shall be required to inquire into or to investigate its authority for entering into any 9
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t:..
transaction or to see to the application of the proceeds of-any such transaction.
Any person dealing,with the Trustee shall be fully protected in relying upon the Trustee's certificate that it has authority to take any action under this Trust Agreement.
No person dealing with the Trustee shall be required to following the application by the Trustee of any money or property which may be paid or transferred to the Trustee.
7.8 Exoneration from Bond and Court Returns.
'The Tructes shall not be required to give bond or surety and shall not be required to file any inventory or appraisal or any annuai, c; other o
returns or reports with any court whatsoever; provided, however, that the Trustee shall furnish the financial statements and reports to the Power Agency as provided in Sections 7.5 and 7.6, Sereof, i
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7.9 Removal of Trustee.
The Power Agency may at any time n
l' remove the Trustee then serving and appoint a qualified successor
- Trustee by instrument in writing signed by the Power Ager.cy and-delivered to the then-serving Trustee, which instrument shall designate and appoint the successor Trustee and which shall be effective no later. than sixty (60) days from the date thereof or upon such shorter notice as may be acceptable to the then serving Trustee, provided that the. successor Trustee-has signified its acceptance of such appointment by instrument in writing delivered-to the-Power Agency and the then serving Trustee.
Any Trustee so.
removed shall promptly deliver all property. then held by it hereunder: to 'the successor Trustee so-appointed and shall thereafter be relieved of any further duties and obligations 1
0 >
't 1
-hereunder.-
g 7.10 Resianation of Trustee.
Any Trustee then serving hereunder may at any time resign upon sixty (60) days' notice, or i
upon such shorter notice as may be acceptable to the Power Agency, by an instrument in writing, signed by it and delivered to the i
Power Agency, and such resignation shall become effective upon the appointment of the qualified successor Trus*.ee by the Power Agency as provided herein.
7.11 Annointment of Successor Trustee.
In the event of the resignation of the Trustee hereunder, the Power Agency shall p
1 appoint a qualified successor Trustee by written instrument, signed by the Power Agency, and delivered to such successor and to the Trustee.
Should the Power Agency fail or refuse within ninety (90) days of receipt of notice of resignation to appoint such successor, h then such successor may be appointed by order of the superior Court of Wake County, North Carolina, upon application of the Power Agency, or the then serving Trustee-or of any person interested in the Trust or any separate Trust Fund.
7.12 Accentance of Annointment by Successor Trustee.
Any successor Trustee appointed hereunder shall execute an instrument-accepting such appointment heraunder-and shall deliver-a counterpart thereof to the Power Agency and, in case of a
- f resignation or removal, to the retiring Trustee.
Thereupon such-
. successor Trustee shall, without any further act, become vested with all the estates, properties, rights, powers,
- trusts, and duties.of its predecessor in the Trusts hereunder with like effect O
as if originally naaed Trustee herein; but the retiring Trustee shall nevertneleza, when requested in writing by the successor Trustee or the Power Agency, and upon payment of lawful fees, chargec and disbursements then unpaid, if any, execute and deliver an app *opriate instrument or instruments conveying and transferring to such successor Trustee, upon the trusts herein expressed, all
~"
the estates, properties,
- rights, powers, and trusts of such retiring Trustee, and shall duly assign, transfer, and deliver to such successor Trustee all property and money helo by it hereunder.
7.13 Successor Trustee.
No successor Trustee shall be required to inquire into er audit, and shall have no liability for,
}
the acts or doings of any predecessor Trustee or be required to 2
make any claims against any predecessor Trustee, and any successor Trustee shall have and may exercise any and all of the powers, O
privileges, immunities, an'$ exemptions herein conferred upon the
$3 original Trustee as fully and te the same extent as if such M
g successor originally had been named as a Trustee hereunder.
7.14 Future OrdtIA.
The Power Agency shall promptly advise
[
the Trustee in writing of the existence of any Future Orders of which Power Agency is aware having the effect of imposing new or different responsibilities on the Trustee under this Agreement.
7.15 Certain Duties and Resnonsibilities of the Trustee.
'a)
In the absence of bad faith on its part, the Trustee may rely conclusively upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Agreement; but in the case of any such certificates or opinions which by any 9 __
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- - -.. - -. - - - - - - - = -
-~--
= - - - - - _
A provision hereof arc specifically required to be furnished to the g Trustee, the Trustee shall have no duty to examine the same to determine whether they conform to the requirements of this Agreement unless the representative of the Trustee involved with the certificate in question has actual knoi'indce that any statement made therein is not true.
(b)
No provision of this Agreement shall be construed to relieve the Trustee from liability for its own negligent acts, its own negligent failure to act, its own willful misconduct or any breach of its fiduciary duties, except that (1) this Subsection shall not be construed to limit the effect of Subsection (a) of 1
this Section; (ii) the Trustee shall not be liable for any error of
)
judgment made in good faith by a responsible officer of Trustee, unless it shall to proved that the Trustee was negligent in $
ascertaining the pertinent facts or was otherwise negligent in making the judgment; and (iii) no provision of this Agreement shall require the Trustee tu expand or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or' adequate indemnity against such risk or liability is not reasonably assured to it.
l 7.16 Certain Riahta,of Trustee.
Excent as otherwise provided i
in Section 7.15 hereoft (a)
Any request or direction of the Power Agency mentioned i
i herein shall be sufficiently evidenced by a written request or O l
l I
direction signed, prepared or furnished by an authorized repre-sentative of the Power Agency, or by a verbal, telephonic or electronic facsimile request or order confirmed within such reasonable time as may be required by t' # % ' tee by such a written request or direction, and any action c th+ Joard of Commissioners of the Power Agency shall be suff..iently evidenced by a
certificato attesting to such action signed by the Power Agency's secretary or assistant secretary; (b)
Whenever in the administration of the Trust or any separate Trust rund created under this Agreement the Trustee shall deem it desirable that a matter be proved.or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless ott.or evidence be herein specifically prescribed) may, in
,0 the absence of bad faith or willful neglect on its part, rely upon the certificate of an Authorized Representative of the Power Agency; (c)
The Trustee may consult with legal counsel and any written advice or opinion of such counsel shall be full and complete authorization for the Trustee to act in accordance therewith.
The Trustee shall not be liable for and shall be protected against any action taken or omitted by it hereunder in good faith and in reliance thereon, except to the extent the Trustee is negligent in selecting counsel.
(d)
The Trustee shall be under no obligation to exercise coy of the rights or powers vested in it by this Agreement at the request or direction of the Power Agency pursuant to this O
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Agreement, unless the Power Agency shall have offered to the 9
Trustee reasonable security or indemnity againa,t the
- costs, expenses and liabilities which might be incurred by it in-compliance with such request or direction.
ARTICLE VIII LIMITATIONS ON AND DIRECTIONS TO TRUSTEE
+
AS TO INVESTMENTS 8.1 Investment.
The Trustee shall invest and reinvest all of the Trust Property without distinction between principal and income, initially as set forth in Section 8.2 or in accordance with the general investment policies and guidelines which may, from time to time, be communicated in writing to the Trustee by the l
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Authorized Representatives.
The Power Agency shall provide the l'
Trustee with a written certification setting forth the names and e-specimen signatures of the Authorized Representatives.
The Authorized Representatives shall have authority to communicate the I
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Power Agency's general investment policies or direct the acquisition, retention and disposition of any specific investments hereunder.
Unless otherwise notified in writing by the Power Agency, the Trustee shall be protected in relying on all certi-fications, directions and instructions received from any Authorized Representative and reasonably believed to be genuine and to be signed by any Authorized Representative that direct.the acquisition, retention and disposition of any investments of Trust e
Property.
The Trustee shall be undrr no duty to make any investigation or inquiry as to the truth or accuracy of any g -... -
(.
statement contained in any such certification, direction or j
instructions.
To the extent the assets of the Trust Funds have not been invested at the direction of the Power Agency on any given day, the Trustee shall invest such uninvested assets including any i
uninvested cash, in permitted investments described in Section 8.2, from which such investments or cash (including any earnings thereon) may be withdrawn on a daily basis.
The Power Agency and the Trustee shall establish appropriate systems, guidelines and procedures in order to effectuate such handling of investments by' the Trustee hereunder.
8.2 Limitations on Investmenta.
Initially the Power Agency i
i intends that investments under this Trust be limited to those permitted from time to time by Resolution R-16-78 and, to the extent not inconsistent therewith, by the State of North Carolina j
and its political subdivisions for public funds, and intends to establish policies, procedures, guidelines and restrictions for handling investments under this' Trust, which it may from time to time modify, change or scpplement by written direction to the Trustee (the " Investment Policy").
To the extent permitted by applicable law, the Power Agency may, by notice to the Trustee, expand, contract or otherwise change the Investment Policy.
The Power Agency has determined that investments under this Trust may f
include, but shall not necessarily be limited to, the following described assets and securities (" Permitted Investments"):
(a)
Direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United O 1
States of America; (b)
Bonds, debentures, notes, participation certificates or other evidences of indebtedness issued, or the principal of and interest on which are unconditionally guaranteed, by the Bank for Cooperatives, the Federal Intermediate Credit Bank, the Federal llome 1,oan Bank System, the Export-Import Bank of the United States, the Federal Financing Bank, the Federal Land Banks, the Federal National Mortgage Association, the United States Postal Service or any other agency or instrumentality of or corporation wholly owned-by the United States of America; (c)
New Housing Authority Bonds or Project hotes issued by public agencies or municipalities and fully secured as to the payment of both principal and interest by a pledge of annual contributions to be paid by the United States of America or any g i
agency thereof; (d)
Direct and general obligations, to the payment of which the full faith and credit of the issuer is pledged, of the State of s
North Carolina or any political subdivision thereof which at the time of investment is rated by any nationally recognized bond rating agency and assigned by such agency a rating which denotes a security with investment characteristics at least equal to the investment characteristics of a security presently rated by Moody's Investors Service, Inc., as "A".
(e)
Repurchase agreements with the Bond Fund Trustee or Construction Fund Trustee or any government bond dealer reporting to the Federal Reserve Bank of New York, each of which agreements O i
~_ _ _. _ _ _ _ _.. _ _._.~ _._. _ __. _ _ _
b I
shall nature within nine (9) months from the date it was entered O-into and shall be fully secured on a market value basis by obligations described in subparagraphs a,
b, c,
or d of this paragraph which mature not later than ten (10) years from the date the repurchase agreement was entered into.
(f)
Bank time deposits evidenced by certificates of deposit, and bankers' acceptances, issued by any bank, trust company or national banking association whose principal place of business is in the State of North Carolina, provided that the aggregate of such'
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bank time deposits and bankers' acceptances issued by any bank, trust company or banking association do not exceed at any one time fif ty per centum (50%) of the aggregate of the capital stock, surplus and undivided profits of such bank, trust company or l
banking asscciation and provided further that such capital stock, surplus and undivided profits shall not be less than Twenty Million Dollars ($20,000,000); and (g)
Bank time deposits evidenced by certificates of deposit,
)
and bankers' acceptances, issued by any bank, trust company or
]
national banking association which is a member of the Federal Reserve system and authorized to do business in any state of the United States of America other than the State of North Carolina,_
provided that the aggregate of such bank time deposits and bankers' acceptance issued by any bank, trust company or banking association do not exceed at any one time twenty-five per cent (25%) of the aggregate of the capital stock, surplus and undivided profits of such bank, trust company or banking association and provided O
_2,.
l
. -. -.,1
further that such capital stock, surplus and undivided profits g shall not be less than Fifty Million Dollars ($50,000,000).
8.3 certain Dutlem of Trustee as to Power Aaency-Directed Investments.
The Trustee shall have no duty or obligation to make any recommendations with respect to the acquisition, retention and disposition of any investment acquired at the direction of the Power Agency, and shall have no liability or responsibility to the Power Agency or the Trust Funds for acting on the direction of, or for failure to act in the absence of direction from the Power Agency.
However, the Trustee shall review the transactions of the Power Agency and the Trust Funds on a daily basis for the purposes of (i) investing uninvested assets in accordance with the provisions of Section 8.1 and (11) determining whether any assets acquired or to be acquired are permissible investments under the h guidelines established by the Power Agency for the Trust Funds or the provisions of section 8.2 hereof, as from time to time modified, and shall notify the Power Agency within one (1) business day by telephone, confirmed in writing, if it determines as a result of any such daily review that an investment is not permissible under either the guidelines established for the Trust Funds or the provisions of Section 8.2 hereof.
8.4 Annointment of Investmant Manaaer.
The Power Agency shall have the right from time to time to appoint and remove one or more Investment Managers for any separate Trust Fund held hereunder and to direct the segregation of any part or all of any such separate Trust Fund into one or more accounts to be known as 0 !
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)
" investment manager accounts" and, if it does so, it shall appoint an individual, partnership, association or corporation as Investment Manager to manage that portion of any separate Trust Fund so segregated.
Written notice of any such appointment and/or removal shall be given to the Trustee and the Investment Manager so appointed.
The appointment shall be accomplished using an investment manager agreement signed by the Power Agency and the Investment Manager and acknowledged by the Trustee.
As long as the Investment Manager is acting as such, the Investment Manager shall-i have full authority to direct the acquisition, retention and disposition of the assets which from time to time constitute the 1
investment manager account being managed by the Investment Manager and except as otherwise set forth in this Section 8.4, the Trustee O
shall have no duty or obligation to review the assets which from t
time to time constitute such investment manager account.
The Trustee may assume that any investment manager account j
previously established and the appointment of any Investment Manager for that account continues in full force until receipt of l
j written notice to the contrary from the Power Agency.
Pending l
t receipt of directions from the Investment Manager, any cash i
received by the Trustee from time to time for any investment manager account shall be invested upon receipt in Permitted i
Investments from which such cash (including any earnings thereon) may be withdrawn on a daily basis.
So long as the Investment L
Manager is directing the investments in an investment manager account, the Trustee shall have no duty or obligation to make any
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recommendations with respect to the acquisition, retention or g disposition thereof, and shall have or incur no liability or responsibility for acting on the direction of, or for failure to act in the absence of direction from, the Investment Manager for any investment manager account.
However, the Trustee shall r wi.ew the transactions of the Investment Manager and the separate Trust Funds on a daily basis for the purpose of determining whether any assets acquired or to be acquired are permissible investments under the guidelines established by the Power Agency for the Trust Funds or the provisions of Sectiors 8.2 hereof, as from time to time modified, and shall notify the Power Agency and the Investment Manager within one (1) business day by telephone, confirmed in writing, it it determince as a result of any such daily review that an investment is not permissible under either the guidelines h established for the Trust Funds or the provisions of Section 8.2 hereof.
The Trustee shall advise the Investment Manager of information it receives from an issuer or similar source regarding i
calls, redemptions,. purchase offers and similar matters relating to assets held in any Trust Fund hereunder.
The Power Agency will indemnify the Trustee and hold it harmless from any liability or expense it may incur in connection with or arising out of (i) any action taken or omitted to be taken in connection with or any investment of, the investment manager account made by the Trustee at the direction of the Investment Manager, or t11) any action taken by the Trustee pursuant to notification of an order issued by 9
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the Investment Manager to purchase or sell securities directly to O
a broker or dealer under a power of attorney.
ARTICLE IX TRUSTEE'S POWERS 9 '.1 Powers of the Trustee.
In the management, care and disposition of this Trust and the separate Trust Funds, the Trustee hereunder, subject to the specific provisions hereof, shall have the discretionary power to do all things and to execute such' instruments as may be deemed necessary or proper, including, but not limited to, the following powers, all of which may be exercised e
without order of or report to any courtt (a)
Subject to the provisions of Article VIII of this Agreement, to invest and reinvest all Trust Property and other cash making up a part of the Trust Estate as the Trustee shall deem advisable; (b)
To sell, exchange or otherwise dispose of any property at any time held or acquired under this Trust or any separate Trust Fund, at public or private sale, for cash or other terms and conditions, without advertisement, including the right to lease and to grant options to buy for any term notwittitanding the period of the Trust and to transfer or convey any such property or any interest therein in fee simple absolute or otherwise, free and clear of trust; (c)
To retain for investment for such time as the Trustee deems advisable any property transferred to this Trust by the Power O,
.i
)
- Agency, without regard to any law now or hereafter in force g
limiting the investments of fiduciaries, and, except as provided in Article VIII of this Agreement, the Trustee shall be under no l
obligation to diversify the investments of the Trust or any separate Trust Fund, either as to kind or amount; 3
(d)
To collect, receive and hold any and all dividends, interest, income profits, and other property of whatsoever kind or nature due, owing or belonging to the Trust or any separate Trust l
Fund; (a)
To vote in person or by special, limited or general proxy, with full power of substitution, and to agree to or take any other action in regard to any reorganization,
- merger, consolidation, liquidation, bankruptcy or other procedure or proceeding affecting any stock, bond, note, security or other asset h held as part of the Trust Estate; 1
(f)
To register any stock, bond or other security in the name i
1 of any nominee, without the addition of words indicating that such security is held in a riduciary capacity; provided, however, that f
accurate records shall be maintained showing that such security is a trust asset, and the Trustee shall be responsible for the acts of such nominee; (g)
To exercise all options, rights and privileges with
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respect to any Trust Property; (h)
Subject to approval of the Power Agency, which shall not i
be withheld unreasonably, to employ, retain and remove attorneys, accountants, insurance consultants, custodians, engineers and other O
- agents, if such employment is deemed necessary, and to pay reasonable compensation for their services; (i)
To compromise, settle, arbitrate, sue or defend, abandor l
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or adjust any claim or demand by or against the Trust or any separate Trust Fund, and to agree to any rescission or modification of any contract or agreement affecting the Trust or any separate Trust Fund; (j)
To perform any act authorized, paraitted, or required under any instruments relating to or forming a part of the Trust l
Estate whether in the nature of an approval, consent, demand, or notice thereunder or otherwise, unless such act would require the consent of the Power Agency in accordance with the express L
provisions of this Agreement; (k)
To make contracts and to execute instruments, under seal or otherwise, as may be necessary in the exercise of the powers herein granted; (1)
To pay taxes, assessments, compensation of the Trustee and other expenses incurred in the collection, care, administration and protection of the Trust Estate; l
(a)
To determine, irrespective of statute or rule of law, l
L what items shall be fairly and equitably charged or credited to income and what items to principal, and to so allocate or apportion receipts and expenditures, regardless of whether such items are i
charged as credited to income and principal as provided in L
Chapter 37 of the General Statutes of North Carolina.
O
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To do and perform any acts or things and only those acts g (n) or things necessary or appropriate for the conservation and protection of the Trust Estate.
)
ARTICLE X i
i MISCELLANEOUS PROVISIONS 10.1 Headings.
All Article and Section headings set forth in I
this Agreement are for convenience only and shall not be deemed to be a part of this Agreement for any other purpose and shall not be taken as in any way limiting or interpreting any s7ction or subsection of.this Agreement.
l 10.2 severability.
In the event any provision of this Agreement or its application to any person or in any circumstance i
shall be invalid or unenforceable to any extent, the remainder of h this Agreement, or the application of such provision to persons or circumstances other than those as to which it is held invalid or j
-unenforceable, shal,', not be affected thereby, and each provision of 1'-
this Agreement shalL be valid and enforced to the fullest extent permitted by law.
l 10.3 Governina Law..
This - AgreenCt is entered into and executed in the State of North Carolina, _and all questions _
pertaining to its validity, construction and administration shall be governed by and determined in accordance with the laws of the State of North Carolina.
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10.4 Notices.
All notices required to be given by this Agreement shall be in writing and be deemed to have been properly 0 s
J t
given if del "ared by hand or when mailed by registered or O
1 certified mail, return receipt requested, postage prepaid, to the 4
parties hereto as followst If to the Power Aaenevt North Carolina Municipal Power Agency No. 1 1427 Meadowwood Boulevard Post Office Box 29513 Raleigh, North Carolina 27626-0513 Attentiont General Manager If to the Trusteet Wachovia Bank & Trust Company, N.A.
First Wachovia Employee Benefit Services 1
301 North Main Street Winston-Salem, Nc"th Carolina 27510 or at such other address or addresses, or to the attention of such.
other per, son or persons, as the Power Agency or the Trustees may Q
hereafter notify the other party in accordance herewith.
10.5 Fiscal Year.
The fiscal year of the Trust shall and on December 31 of each year.
10.6 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Power Agency, the Trustee, and their respective successors and assigns.
10.7 counterparts.
This Agreement may be executed in any y
number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the Power Agency and the Trustee have each hereunto caused their respective corporate names and seals to be j
l affixed and this Agreement to be executed and delivered by and O l.
through their duly-authorized officers, all as of the effective day V
9 and year first above written.
I NORTH CAROLINA MUNICIPAL POWER AGENCY NUMBER 1 t
By:
c((/
., d, g 'g Chairman Attest d da j,o Assistant Secretary-Treasurer (CORPORATE SEAL) i WACH0VI N & TRUST COMPANY, N.A.
I By (
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)
12 l
Its: SaNior Vice President k-
- Attestt, v
a-t It.,_
lb.h.:n lb._ Sc,o h ~
l (CORPORATE SEAL) 4 9
9
-3.-
l3 j
i.
SCHEDULE A 4
t l-L
.s CATAWBA UNIT No. 1 DECOMMISSIONING TRUST FUND i
i I
1 l
i l
l.
1 O
1 l
l.
i i
l' NORTH CAROLINA MUNICI3AL POWER WACHOVIA BANK & TRUST COMPANY
[
AGENCY NUMBER 1 l.
Byt By:
Chairman Senior Vice President O
.. _ _ _. ~ _ _ _.. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - _ _,
s SCHEDULE B CATAWBA UNIT No. 2 DECOMMISSIONING TRUST FUND 1
G-
)
l l
NORTH CAROLINA MUNICIPAL POWER WACHOVIA BANK & TRUST COMPANY AGENCY NUMBER 1 Ch0irman Senior Vice President O
M/'
i
(
Appendix D i
A copy of Resolution R-7-90 of Power Agency's
)
Board of Commissioners (adopted June 20, 1990).
i i
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t o
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R-7-90 6
i RESOLUTION OF THE BOARD OF COMMISSIONERS OF O
NORTH CAROLINA MUNICIPAL POWER AGENCY NUMBER 1 AUTHORIZING THE FILING OF A FINANCIAL ASSURANCE i
PLAN FOR THE DECOMMISSIONING OF THE CATAWBA NUCLEAR STATION, APPROVING A FORM OF DECOMMISSIONING TRUST AGREEMENT AND APPOINTING A TRUSTEE THEREUNDER J
North Carolina Municipal Power Agency Number 1
(" Power Agency") is the owner of a seventy-five percent (75%) undivided ownership interest in a nuclear powered electric generating unit I
and associated facilities known as Catawba Unit No. 2; and WHEREAS, pursuant to the Restated Operating and Fuel Agreement between Power Agency and Duke Power Company dated as of June 21, 1982, Power Agency is obligated to pay thirty-seven and one-half i
percent (37.5%) of the costs of operations, maintenance, fueling, l
capital additions, and decommissioning of the Catawba Nuclear O
se tion, whica==a t *
=r cat wo uate
- 1, c t w6 uait "=- 2 and certain common fai:llities; and WHEREAS, the generating unit and associated facilities in Which Power Agency has undivided ownership interests are subject to the jurisdiction of the United States Nuclear Regulatory Commission
-l
-(the "NRC"), an agency of the United States Governuent; and
- WHEREAS, pursuant to the Atomic Energy Act of
- 1954, as amended, and the Energy Reorganization Act of 1974, the NRC has promulgated regulations in Title 10, Chapter 1 of the Code of Federal Regulations, Part 50 (the " Regulations"), which require that a holder of, or an applicant for, a license to operate a nuclear power plant provide certain financial assurance that funds will be available when needed for required decommissioning costs i
O and activities, and n
1.
l l
- WHEREAS, Power
- Agency, in order to comply with the g Regulations, among other reasons, desires to provide such financial assurance and approve a decommissioning trust agreement.
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COMMISSIONERS OF NORTH CAROLINA MUNICIPAL POWER AGENCY NUMBER 1:
1.
It is in the best interests of Power Agency that it comply with the Regulations and provide the required financial assurance to the NRC and, to that end, the statf is hereby directed to prepare the necessary and required information and documentation for filing.
2.
The establishment of an external trust fund is determined to be the most advantageous method of providing assurance of funds for nuclear decommissioning, based on financial, economic and I
practical considerations; 3.
The Decommissioning Trust Agreement, substantially in the form as that presented at this meeting, is hereby approved, with e
I such modifications as the Chairman or Vice Chairman of the Board, upon the advice of counsel to Power Agency, approves.
4.
The Chairman or Vice Chairman and Secretary or any Assistant Secretary of Power Agency are hereby authorized and directed to execute the Decommissioning Trust Agreement and to deliver it to the NRC and the Trustee.
5.
The Chairman or Vice Chairman and Secretary or any Assistant Secretary of Power Agency are hereby authorized and directed to execute the financial assurance plan and to file it, and any necessary supporting documentation, with the NRC.
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6.
Wachovia Bank & Trust company, N.A., is hereby appointed i
O rro. tee una.,
an.
ir.
.ccoraance
.ith the sera.
of the Decommissioning Trust Agreement.
7.
A copy of the financial assurance plan alid the Decommissioning Trust Agreement shall be filed.ith the minutes of the meeting.
8.
This Resolution shall become effective upon its adoption.
1 Adopted this m day of func 1990.
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Appendix E opinion of Poyner & Spruill, counsel to Power Agency, concerning the Decommissioning Trust-runds.
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POYNER & SPRUILL ATTORNEYS AT LAW
,m ff FRANRLIN AT WESTERN U
POST OFrict DOR 353 i
ROCKY MOUNT. NC 37802-0353 t
19691446-2341 3
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I June 29, 1990 Board of Commissioners 73 North Carolina Municipal V
Power Agency Number 1 l
Post Office Box 29513 Raleigh, North Carolina 27626-0513 Re:
North Carolina Municipal Power Agency Number 1 Decommissioning Trust Agreement Gentlemen We have examined a copy of the Decommissioning Trust Agreement (the " Agreement") of the North Carolina Municipal Power Agency Number 1 (the " Power Agency") that is to be used to establish an external trust fund as required by Title 10, Chapter 1 of the Code of Federal Regulations, Part 50, to provide for the payment of a
. portion of Decommissioning Costs of the Power Agency as defined in and pursuant to the Agreement.
We have also examined such other related matters of North Carolina and federal law as we' have deemed necessary to render our opinion herein.
Capitalized terms used
'herein have the same meaning as in the Agreement.
Based upon the provisions of currently existing North Carolina I
and federal law, we are of the opinion that:
1.
A creditor of the Trustee should not be able to reach the assets comprising the Trust Estate to apply toward or to satisfy (U
any independent liability of the Trustee not connected with and not S
arising from the administration of the Trust and the duties of the Trustee thereunder; lw
[.
POYhER & SPRUILL t
'~'
Page 2 June 29, 1990 i
2.
A creditor of a third party who is entitled to be paid froin the Trust Estate for services rendered or labor performed in connection with Decommissioning Costs should not be able to reach thc assets comprising the Trust Estate to apply toward or to l
satisfy any liability of such third party to such creditor except to the same extent, and subject to the same limitations, that such third party would be entitled to payment from the Trust Estate; and 3.
A creditor of the Power Agency should not be able to reach the assets comprising the Trust Estate to apply toward or to satisfy any liability of Power Agency to such creditor except to the came extent, and cubject to the same limitations, that the Power Agency is entitled to withdraw assets from the Trust Estate j
for its own benefit or upon a reversion of the Trust Estate to i
Power Agency as provided in and pursuant to the terms of the Agreement.
In rendering the opinions expressed above, we have assumed c
that the Power Agency will be solvent immediately prior to the
(
making of any transfer or contribution to the Trust and will not be i
rendered insolvent by the making of any such transfer or i
contribution.
We have also assumed that the making of any such transfer or ~ contribution to the Trust will not constitute a fraudulent conveyance under North Carolina or federal law.
We are admitted to practice only in the State of North Carolina.
We express no opinion as to matters under or involving the law of any jurisdiction other than the laws of the United States and the State of North Carolina.
Very truly yours, e-ej,,
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j Fit 2: CTF95 W5efM CAAOLlet SWWfC19et MBER mEEWCT IRSWER 1 Dete: 21-Jies-99 Cist; F M Tie Projected Wim of Estervet Decenesionivg Fwats T ime:
16:99 et l
Sect: EF-5158-PG4-AA totade metteer stetten iuser: Jes (9889) i Cose: NRC minieme to Esternet Fwai Cotodo tmit 1 totad e tmit 2 Erufins Endwg arouset interest Fwat assimet interest Fwid assinyttens teor severuses [1] Earnirge Sotence Gewesuses (13 Earnivge Botence l
t a
{ secessioelening:
1998 19,963 (23 18* 159 E23 t>lt 1 1991 1,238 752 12,933 1,238 12.950 i
i cost Estleste (ERC teiniense)(11 st37,348 1992 1,238 SB1 15,952 1,238 SET M,M3 i
veer of Estleste 1998 1993 1,238 1,919 17,Il:e 1,235 961 M M3 j
sporettas Licence Empiration 12/6/29M 1994 1,238 1,105 19,713 1,2M 1,106 18,795 Pre}ected Cast 9638,667 1995 1,238 1,322 22,273 1,238 1,256 21,199 l
agency shore of Cost (37.5E) s239,500 1996 1,238 1,45 M,999 1,238 1,418 23,SM 199T 1,2M 1.ee5 2T 993 1,2M 1.591 26,485 1 _ thit 2 1998 1,2M 1,954 38,995 1,2M 1,7F5 29,488 i
cost Estleste (uRC minieseptt}
S13T 340 1999 1,238 2,955 34,2GB 1,238 1,975 32,99T veer of Estleste b
2000 1,2M 2,24*
37,796 1,2M 2,179 36,325 l
eperating Licence E giretion 2/24/2926 2001 1,238 2,49T 41,531 1,Z35 2,491 39,904 i
Projected Cost 9672,321 2002 1,238 2,748 45,589 1,235 2,&M 43,861 agency shore of Cost (37.51) s252,129 2005 1,238 2.958 49,746 1,735 2,089 47,999 Re6 1,235 3,UE 54,258 1,23B 3,158 52,385 i Rotes:
2t95 1,235 3,56T 59,963 1,2M 3,444 57,948 9ecomuniselening Cost Esceletion 4.SSE 2006 1,238 3,f:??
64,181 1,ZM 3,748 62,935 Interest Earnirge 6.50K 296T 1,2M 4,212 69,631 1,2M 4,972 4T.M5 298B 1,23B 4,566 75,4 %
1,238 4,458 73.9#1 IT) Estimate tooed en unr),555 in 2999 1,ZM 4,944 81,618 1,ZM 4,755 79,925 1986 detters, eeceleted to 1990 2010 1,238 5,345 m,282 1,235 5,1TF E5,448 hr Dee.
2911 1,23E 5,TT3 95,213 1,23B 5,596 92,2F3 2tr12 1,23s 6.229 te2.eSt 1,238 6,e3e ve,549 2613 1,238 6,714 110,6 %
1,238 6,511 SST,298 20M 1,2M T,231 119,103 1,2M T,915 115,951 2915 1,2M 7,782 128,1M 1,2M 7,551 126,M1 f
RM 1,238 8,388 13T,738 1,2M 8,122 133,791 l
201T 1,238 8,993 147,961 1,2B 8,731 M3,679 l
2918 1,238 9,658 158,958 1,238 9,3M 154,2 5 2019 1,238 19,366 179,462 1,2M 18,999 105,995 i
2029 1,238 11,129 182,821 1,2M 10,884 1FT,63T 2821 1,238 11,9M 195,953 1,238 11,58T 199,462 j
2022 1,238 12.TFT 210,000 1,ZM 12,429 206,121 i'
2823 1,238 13,800 2M,929 1,2M 13,308 210,46T 20M 1,135 (31 13,436 239,588 1,Z38 M,254 234,159 I
2925 0
0 1,238 15.261 250,858 l
2026 0
0 193 143 1,358 252,129 Totels
'42,091 186,556 '
43,446 19e,514 (n arvesel rewmees cettected in ogset aantMy sasunits.
(23 Trerufer frees internet fwuf ef fective 12/31/99.
131 Eleven months.
l I41 One month.
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