ML20106B135
| ML20106B135 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 09/21/1992 |
| From: | William Cahill TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC) |
| To: | NRC OFFICE OF INFORMATION RESOURCES MANAGEMENT (IRM) |
| Shared Package | |
| ML20106B138 | List: |
| References | |
| 2.206, TAC-M84073, TXX-92451, NUDOCS 9210010011 | |
| Download: ML20106B135 (36) | |
Text
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i WA Log # TXX-92451 r File # 10004 Ref. # 10CFR2.206 7UELECTRIC September 21, 1992 William J. Cahlit, Jr.
a nrna e, ,am U. S. Nuclear Regulatory Commission Attn: Document Control Desk Washington, DC 20555
SUBJECT:
COMANCHE PEAK STEAM ELECTRIC STATION (CPSES)
DOCKET NOS. 50-445 AND 50-4d6 RESPONSE TO REQUEST FOR DOCUMENTS TO SUPPORT NRC STAFF REVIEW OF 2.206 PETITION (TAC NO. M84073) 4 REF: NRC letter from Martin J. Viroilio to William J, Cahill, Jr dated September 15, 1992 Gentlemen:
Pursuar* to the referenced NRC letter, TV Electric hereby encloses o copy of the following documents to complete the subject review.
Exhibits L through 0, to the agreemert between Tex-ta Electric Cooperative of Texas, Inc. end Texas Utilities -
Electric Company dated January 30. 1990: -
Agreement between Brazos Electric Pcwer Cooperative. Inc.
and Texas Utilities Electric Company dated July 5, 1988, with Exhibits J through 0:
Agreement between 'exas Municipal Power Agency and Texas ,
lit il i t Electric Company dated Febr iry 12, 1988, with ,
Exhib' E. I through M.
- ) I 9210010011 920921 PDR C
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-TXX-92451
--Page Z of 2 if you have any further questions, please contact Mr. Richard 5. Berk at (214) 812-8952.
Sincerely.
I William J. Cahill. Jr, N
\ -
g, Ltg D. R. Woodlan Docket Licensing Manager ,
4 RSB/'.g Enclosures :
c Mr. M. J. Virgilio, NRR (w/ enclosures) -
Mr. 1. A. Bergman, NRR (v/o enclosures)
Mr. B. E. Holian. NRR (w/o enclosures)
Mr. J. L. Milhoan, Region IV (w/o enclosures)
Resident i n s pe c t o rb ., CPSES (2) (w/o enclosures) t h
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EXHIBIT L RELEASE STATE OF TEXAS S
- S COUNTY OF NACOGDOCHES S For and in consider & tion of the agreements, undertakings, promises, and covenants of TU Electric se t forth in the Agree me nt, including without limitation the contemporaneous delivery to Tex-La by TU Electric of (1) the Release attached to the Agreement as Exhibit N, (2) the Covenant Not to Sue attached to the Agreement as Exhibit O, and (3) the Assumption and Indemnity Agreement attached to the Agreement as Exhibit P, the adequacy and sufficiency of such consideration being hereby acknowledged and confessed, Tex-La nereby agrees to the followi ig:
- 1. Definitions. As used herein, the following terms have the following meanings:
i A. " Agreement" means that certain Agreement dated March 23,1989, by and between Tex-La and TU Electric.
B. "Brazos" means Brazos Electric Power Cooperative,Inc.
C. " Comanche Peak" means the nuclear-fueled electric generating facility I
under construction on certain lands situated in Hood and Somervell Countits, Texas, and consisting of two un.ts having a nominal capacity of 1,150 megawatts each, and related properties, and is the aggregate and combination of the Station, Fuel, and Transmission Pacilities, and all other rights and interests associated with or relating thereto.
l D. " Fuel" means the Comanche Peak nuclear fuel, irrespective of chemical and/or physical form, and the rights and interests related thereto.
E. " Joint Ownership Agreement" means that certain instrument entitled on the cover page thereof " JOINT OWNERSHIP AGREEMENT BETWEEN DALLAS POWER &
LIGHT COMPANY, TEXAS ELECTRIC SERVICE COMPANY, TEXAS POWER & LIGHT COMPANY, TEXAS UTILITIES GENERATING COMPANY, TEXAS MUNICIPAL POWER AGENCY- AND BRAZOS ELECTRIC POWER COOPERATIVE, INC. FOR COMANCHE l 1
l L _ _- _ _ _ ~ _ -
PEAK STEAM ELECTRIC STATION," executed on January 2,1979, together with and as modified by that certain instrument entitled on the cover page thereof " Modification of Joint Ownership Agreement Between Dallas Power & Light Company, Texas Electric Service Company, Texas Power & Light Company, Texas Utilities Generating Company, Texas Municipal Power Agency and Brazos Electric Power Cooperative, Inc.: For Comanche Peak Steam Electric Station," executed on June 1,1979, together with and as amended by (i) the Amendment of Joint Ownership Agreement, executed on December 9, 1980, between Dallas Power & Light Company, Texas Electric Service Company, Texas Power & Light Company, Texas Utilities Generating Compeny, TMPA, Brazos, and Tex-La, together with and as amended oy (ii) the Second Amendment of Joint Ownership Agreement, executed on February 12, 1982, between Dallas Power & Light Company, Texas Electric Service Company, Texas Power & Light Company, Texas Utilities Generating Company, TMPA, Brazos, and Tex-La.
F. " Members" means the seven (7) Texas non-profit electric cooperative corporations that are members of Tex-La, as set out in Exhibit C to the Agreement.
G. " Owners" means collectively TU Electric, Brazos, TMPA and Tex-La, as owners of Comanche Peak in accordance with the terms of the Joint Ownership Agreement, or singularly any of such parties.
H. "Pending Litigation" means Cause No. 399,336 - Tex-La Electric Cooperative of Texas, Inc. v. Texas Utilities and Texas Utilities Electric Company, - in the District Court of Travis County, Texas, 98th Judicial District; and Cause No. 36-6809-A - Texas Utilities Electric Comoany v. Tex-La Electric Cooperative of Texas, Inc.
- in the District Court of Dallas County, Texas,14th Judicial District.
- 1. " Project Manager" means TU Electric designated and acting as such in acardance (or purportedly in accordance) with the terms of the Joint Ownership Agree ment.
l - -
l i
J. " Site" means approximately 7,669 acres owned (in fee or other estate or interest) by the Owners, as tenants in common, and located in Hood and Somervell Counties, Texas.
K. " Station" means the Site, all improvements thereon (including Squaw Cre 3k Lake and Park) and all fixtures and attachments thereto, as well as (i) all personal property thereon and associated therewith or related thereto and owned by the Owners, and 'il) all rights (tangible or intangible), and all casements and other interests of any nature associated therewith or related thereto and owned by the Owners, excluding, however, the Fuel, and the Transmission Facilities.
L. " Subject Claims" means any and all claims, actions, controversies, causes of action, d!sputes, demands, and complaints of whatsoever kind or nature and whether known or unknown.
M. ' Tex-La" means Tex-La Electric Cooperative of Texas, Inc.
N. "TMPA" means Texas Municipal Power Agency.
O. " Transmission Facilities" means the Comanche Peak - Cleburne Junction and Cleburne Junction-Everman 345 kV electrical transmission lines, aggregating approximately 51.5 miles in length, and associated rights-of-way, equipment, fixtures and _
personal property.
P. "TUC" means Texas Utilities Company, which is a Texas corporation and the parent of TU Electric.
Q. 'TU Electrie" means Texas Utilities Electric Company, which is a Texas corporation.
II. Release. Tex-La, for itself and on behalf of any person or entity, private or governmental, claiming by, through or under Tex-La, including without limitation, to the extent it has the standing and right under law to do so, its Members and customers (including the customers of Tex-La's Members and other wholesale customers) and its or their respective insurers, agents, servants, employees, officers, directors, consultants, attorneys and representatives, does hereby waive, release, discharge, renounce and
relinquish any and all Sut, ject Claims involving, concerning, accruing in, arising out of, or relating to the period of time prior to the delivery hereof which it has or they have claiming by, through or under Tex-La, or may have, whether known o.' unknown, contingent or absolute, including, without limitation, those based on common law, whether contract (express or implied, including express or implied warranty) or tort (including, without limitation, intentional tort, negligence or gross negligence, sole, joint or concurrent) or strict liability or fraud, and those based upon any Federal, state or local statute, law, order or regulation, including, without limitation, the Atomic Energy Act of 1954, as amended, the regulations of the NRC, the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended, and any rule or regulation under either, the Texas Securities Act (Title 19, Articles 581-1, et seo., V. A.T.S ), the Texas Declaratory Judgment Act (Sees. 37.0001 .011 of the Texas Civil Practice and Remedies Code) and the Texas Deceptive Trade Practices and Consumer Protection Act, against TU Electrie or TUC, or both, in any capacity, whether individually, as Project Manager of Comanche Peak or otherwise, and their respective insurers, agents, servants, employees, officers, directors, shareholders, consultants, attorneys and representatives, past and present, and any and all of their respective successors, subsidiaries and affiliates, and their respective insurers, egents, servants, employees, officers, directors, shareholders, consultants, attorneys and representatives, past and present, except (1) Subject Claims arising out of or under the Agreement or any of the other agreements or instruments executed and delivered pursuant thereto, (2) Subject Claims which do not relate to ,
Comanche Peak and are based upon circumstances or facts unknown (and which could not reasonably have been known) to Tex-La at the times of execution of the Agreement and this Release, (3) any defenses which Tex-La has or may have to Subject Claims asserted against Tex-La by any persons or parties whomsoever, provided that Tex-La may not seek any type of affirmative relief hereunder against TU Electric, TUC, or both, their successors, subsidiaries and affiliates, or its or their respective insurers, agents, servants, employees, offleers, directors, shareholders, consultant 3, attorneys and representatives,
_4_
e and (4) any counterclaims which Tex-La has or may have against any party other than TU Electric, TUC, or both, their successors, subsidiaries and affiliates, or its or their respective insurers, agents, servants, employees, officers, directors, shareholders, consultants, attorneys and representatives, acting in such capacity, with respect to any Subject Claims being asserted against Tex-La by anyone other than TU Electrie, TUC, or both, their successors, subsidiaries and affiliates, or its or their ""spective insurers, agents, servants, employees, officers, directors, shareholders, consultants, attorneys and representatives. In connection with clause (2) of the immediately-preceding sentence, Tex-La represents that it presently is unaware of any Subject Cla'-n e ith TU Electric which has not been addressed and resolved by the Agreement and the exhibits thereto.
Tex-La hereby covenants and warrants that it has not assigned any Subject Claims that are hereby released.
EXECUTED this the day of ,1989, as duly authorized
- by an appropriate resolution of its Board of Directors.
l TEX-LA ELECTRIC COOPERATIVE OF TEXAS, INC.
(Corporate Seal) By:
l l ATTEST: Its:
I By:
-Its:
5 EXHIBfr M COVENANT NOT TO SUE STATE OF TEXAS S S
COUNTY OF NACOGDOCHES S For and in consideration of the agreements, undertakings, promises, and covenants of TU Electric set forth in the Agreement, including without limitation the contemporaneous delivery to Tex-La by TU Electric of (1) the Release attached to the Agreement as Exhibit N, (2) the Covenant Not to Sue attached to the Agreement as Exhibit O, and (3) the Assumption and Indemnity Agreement attached to the Agreement as Exhibit P, the adequacy and sufficiency of such consideration being hereby acknowledged and confessed, Tex-La hereby agrees to the following:
- 1. Definitions. As used herein, the following terms have the following meanings:
A. " Agreement" means that certain Agreement dated March 23,1989, by and between Tex-La and TU Electric.
B. "Brazos" means Brazos Electric Power Cooperative, Inc.
C. " Comanche Peak" means the nuclear-fueled electric generating f acility under construction on certain lands situated in Hood and Somervell Counties, Texas, and consisting of two units having a nominal capacity of 1,150 megawatts each, anu related properties, and is the aggregate and combination of the Station, Fuel, and Transmission I
Facilities, and all other rights and interests associated with or relating thereto.
D. " Fuel" means the Comanche Peak nuclear fuel, irrespective of chemical and/or physical form, and the rights and interests related thereto.
E. " Joint Ownership Agreement" means that certain instrument entitled on the cover page thereof " JOINT OWNERSHIP AGREEMENT BETWEEN DALLAS POWER &
LIGHT COMPANY, TEXAS ELECTRIC SERVICE COMPANY, TEXAS POWER & LIGHT COMPANY, TEXAS UTILITIES GENERATING COMPANY, TEXAS MUNICIPAL POWER AGENCY AND BRAZOS ELECTRIC POWER COOPERATIVE, INC. FOR COMANCHE
__.__.___m. -
PEAK STEAM ELECTRIC STATION " executed on January ?,1979, together with and as modified by that certain instrument entitled on the cover page thereof ' Modification of -
Joint Ownership Agreement Between Dallas Power & Light Company, Texas Electric Service Company, Texas Power & Light Company, Texas Utilities Generating Company, Texas Municipal Power Agency and Braz,a Electric Power Cooperative, Inc.: For Comanche Peak Steam Electric Station," executed on June 1,1979, together with and as amended by (i) the Amendment of Joint Ownership Agreement, executed on December 9, 1980, between Dallas Power & Light Company, Texas Electric Service Company, Texas Power & Light Company, Texas Utilities Generating Company, TMP A. Brazos, and Tex-La, together with and as amended by (ii) the Second Amendment of Joint Ownership Agreement, execute'! on February 12, 1982, between Dallas Power & Light Company,
, Texas Electric Service Company, Texas Power & Light Company, Texas U tilities Generating rampany, TMP A, Brazos, and Tex-La.
F. " Members" means the seven (7) Texas nort-profit electric cooperative corporations that are members of Tex-La, as set out in Exhibit C to the Agreement.
G. " Owners" means collectively TU Electric, Brazos, TMPA and Tex-La, as owners of Comanche Peak in accordance with the terms of the Joint Ownership Agreement, or singularly any of such parties.
H. "P ending Litigation" means Cause N o. 399,336 -T ex-L a Electric Cooperative of Texas, Inc. v. Texas Utilities and Texas Utilities Electric Company, - in
- the Di
- Court of Travis County, Texas, 98th Judicial District; and Cause No. 86-6809-i l A - Texas Utilities Electric Company v. Tex-La Electric Cooperative of Texas, Inc. - in i
l the District Court of Dallas County, Texas,14th Judicial District.
- 1. " Project Manager" means TU Electric designated and acting as such in l
- j. accordance (or purportedly in accordance) with the terms of the Joint Ownership-i
- A greement.
l l
l J. " Site" means approximately 7,669 acres owned (in fee or other estate or interest) by the Owners, as tenants in common, and located in Hood and Somervell Counties, Texas.
K. " Station" means the Site, all improvements thereon (including Squaw Creek Lake and Park) and all fixtures and attachtr, nts thert:*o; as well as (i) all personal property thereon and associated therewith or related thereto and owned by the Owners, and (ii) all rights (tangible or intangible), and all ensemeats and other interats of any nature associated therewith or related thereto and owned by the Owners, excluding, _
however, the Fuel, and the Transmission Fe % ties.
L. " Subject Claims" means any and all claims, actions, controversies, causes of action, disputes, demands, and complaints of whatsoever kind or nature and whether known or unknown.
M. " Tex-La" means Tex-La Electric Coopcrative of Texas,Inc.
N. "TMPA" mean, Texas Municipal Power Agency.
O. " Transmission Facilities" means the Comanche Peak - Cleburne Junction and Cleburne Junction-Everman 345 kV electrical transmission lines, aggregating r ' proximately 51.5 miles in length, and associated rignts-of-way, equipment, fixtures and persona' property.
P. "TUC" means Texas Utilities Company, which is a Texas corporation and the parent of TU Electric.
Q. rU Electric" means Texas Ut3ities Electric Company, which is a Texas corporation.
II. Covenant Not to Sue and Agreement Not to Challenge.
(a) Except as provided for in Section 4.2(f) of the Agreement, Tex-La, for itself and on behalf of any person or entity, private ce governmental, claiming by, through or under Tex-La, including without limitation, to the extent it tas the standing and right under law to do so, its Members and customers (including
. - __ = -, . _ . --.. -.
the customers of Tex-La's Members and other wholesale customers) and its or their respective insurers, agents, servants, employees, officers, directors,-
consulta.ts, attorneys and representatives does hereby agree and covenant that it ud they, individually, collectively or in any combination, will forebear from asserting against, and never sue for or look for satisfaction with respect-to, TU Electric and TUC and their respective insurers, agents, servants, employees, officers, directors, shareholders, consultants, attorneys and representatives, past and present, and any and all of their respective successors, subsidiaries and affiliates and their respective insurers, agents, servants, employees, officers, directors, shareholders, consultants, attorneys and representatives, past and present, any Subject Claim (including without limitation any Subject Claim against any contractor, subcontractor, supplier, consultant, vendor or other person, firm or entity in privity in any manner with any of them which may therefor or as a result thereof have a right over or Subject Claim in subrogation) in any manner involving, concerning, arising out of, or relating to, the planning, design, construction and licensing of Comanche Peak and the management of such planning, design, construction or licensing, or any other matter relating to the planning, design, construction or licensing -
of Comanche Peak, and the management, procurement, conversion, enrichment, fabrication, shipping, transportation and storage of the Fuel, which it has or they have claiming by, through or under Tex-La, or may have, whether known or unknown, contingent or absolute, including, without limitation, those based on common law, whether contract (express or implied, including express or implied warranty) or tort (including, without limitation, intentional tort, negligence or gross negligence, sole, joint or concurrent) or strict liability or fraud, and those based upon any Fedral, state or local l
statute, law, order or regulation, including, without limitation, the Atomic l
l
i Energy Act of 1954, as amended, the regulations of the NRC, the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended, and any rule or regulation under either, the Texas Securities Act (Title 19, Articles 581-1, et seq., V.A.T.S.) and the Texas Deceptive Trade Practices and Consumer Protection Act, against TU Electric or TUC, or both, in any capacity, whether individually, as Project Manager of Comanche Peak or otherwise, and their respective insurers, agents, servants, employees, officers, directors, shareholders, consultants, attorneys and representatives, past and present, and any and all of their respective successors, subsidiaries and affiliates and their respective insurers, agents, servants, employees, officers, directors, shareholders, consultants, attorneys and representatives, past and present.
(b) Except as provided in Section 4.2(f) of the Agreement, Tex-La, for itself and on behalf cf any person or entity, private or governmental, claiming by, through or under Tex-La, including without limitation, to the extent it has the standing and right under law to do so, its Members and customers (including the customers of Tex-La's Members and other wholesale customers) and its or their respective insurers, agents, servants, employees, officers, directors, consultants, attorneys and representatives hereby further agrees and covenants that neither it nor they claiming by, through or under Tex-La, individually, collectively or in any combination, will directly or indirectly, oppose, challenge, contest or assct any complaint in any court or before any administrative agency or body or in any other forum whatsoever with respect to, or in any manner involving, concerning, arising out of, or relating to, Comanche Peak and the incidents and attributes thereof including, without limitation, the planning, design, construction and licensing of Comanche Peak and the management of such planning, design, constniction or 11eensing or any
i l
> l other aspect of such planning, design, construction or licerding, the costs and l schedule of construction and completion of Comanche Peak, and the reasonableness, prudency or efficiency of the planning, design, construction I and licensing of Comanche Peak and the management of such planning, design, construction or licensing, and the reasonableness, prudency or efficiency of the management, procurement, conversion, enrichment, fabrication, shipping, transportation and storage of the Fuel, and the costs incurred in connection with the management, procurem ent, conversion, enrichment, fabrication, shipping, transportation and storage of the Fuel, and the breach of the Joint Ownership Agreement and any express or implied warranties arising out of the Joint O wnership Agreement, and any representation, misrepresentation, disclosure or non-disclosure in connection with the negotiations or preceding the execution by Tex-La of the Joint Ownership Agreement, and in connection with the performance or nonperformance by TU Electric of its duties, responsibilities or obligatiors under the Joint Ownership Agreement as Project Manager or otherwise, and the failure of TU Electric to pursue any remedies, either at law or otherwise, that may be, or may have been, available against any and all contractors, subcontractors, suppliers, consultants, vendons or others with respect to Comanche Peak (including separately the Station, Fuel or Transmission Facilities) and on account of anything that has occurred or may have occurred, in -whole_ or in part, with respect to Comanche Peak, (instxing separately the Station, Fuel or Transmission Fu.ilities) and the incidents and attributes thereof and eny of the foregoing whether known or unknown. Notwithstanding any other provisions of the Agreement, nothing therein shall limit Ter-La's right to defend the prudency of its participation in Comanche Peak or the settlement of the Pending Litigation before any court or regulatory agency, provided, however, since TU Electric by the Agreement
is reimbursing Tex-La for its attorneys' fees and other litigation costs related to the Pending Litigation, in no event shall Tex-La use any information obtained by it or its attorneys, through discovery in the Pending Litigation in any manner adverse to TU Electric and in no event shall Tex-La contend, plead, assert, or claim in any proceeding that TU Electric or the Project Manager under the Joint Ownership Agreement acted in prudently or that any costs associated with the planning, design, construction and licensing of Comanche Peak and the management of such planmng, design, construction or licensing were imprudently incurred, provided however, this sentence shall not prohibit Tex-Le from furnishing factual information in response to a specific discovery request and shall not require any repecsentative of Tex-La to violate any obligation to tell the truth under oath in respome to a specific request tur efor.
(c) Notwithstanding anything contained in paragraphs (a) or (b) hereof or in the Agreement, Tex-La specifically does not covenant not to sue, and specifically does not agree to not assert, challenge or contest, with regard to:
(1) Subject Claims arising out of or under the Agreement or any of the other agreements or instruments to be delivered pursuant thereto; (2) Subject Claims which could not have been brought in the Pending Litigation and which accrue on or after the Date of Commercial Operation (as that term is defined in the Joint Ownership Agreement) and which are based upon the acts or omissions of TU Electric or the Project Manager other than,in connection with the planning, design, construction and licensing of Comanche Peak and the management of such planning, design, construction and licensing; (3) any defenses which Tex-Lt has or may have to Subject Claims asserted against Tex-La by any persors or parties whomsoever, provided that Tex-La may not seek any type of affirmative relief hereunder against TU Electric, TUC, or both, their successors, subsidiaries and affP'ates, or its or their respective insurers, agents, servants, employees, officers, directors, shareholders, consultants, attorneys and representatives; (4) any counterclaims which Tex-La has ce may have against any party other than TU Electric, TUC, cr both, or their successors, 7_
subsidiaries and affiliates, or its or their respective insurers, agents, servants, employees, officers, directors, shareholders, consultants, attorneys and representatives, acting in such capacity, with respect to any Subject Claims being asserted against Tex-La by anyone other than TU Electrie, TUC, or both, or their successors, subsidiaries and affiliates, or its or their respective insurers, agents, servants, employees, officers, directors, shareholders, consultants, attorneys and representatives; or (5) any proceeding in which TU Electric's retes are being determined, provided that Tex-La shall not oppose, or assist any third party opposition to, the inclusion in TU Electric's rates of any and all costs related to Comanche Peak.
EXECUTED this the day of ,1989, as duly authorized by an appropriate resolution of its Board of Directors.
TEX-LA ELECTRIC COOPERATIVE OF TE XAS, INC.
(Corporate Seal) By:
ATTEST: Its:
By:
Its:
d l
I i
EXHIBfr N RELEASE STATE OF TEXAS S S
COUNTY OF DALLAS S For and in consideration of the agreements, undertakings, promises, and covenants l of Tex-La set forth in the Agreement, including without limitation the contemporaneous I delivery to TU Electric by Tex-La of (1) the Release attached to the Agreement as !
i Exhibit L,(2) the Covenant Not To Sue attached to the Agreement as Exhibit M, and (3) ;
the Indemnity Agreement attached to the Agreement as Exhibit Q, the adequacy and sufficiency of such consideration being hereby acknowledged and confessed, TU Electric hereby agrees to the following:
- 1. Definitions. As used herein, the following terme have the following meanings:
A. " Agreement" means that certain . Agreement dated March 23,1989, by and between Tex-La and TU Electric.
B. "Brazos" means Brazos Electric Power Cooperative, Inc.
C. " Comanche Peak" means the nuclear-fueled electric generating facility under construction on certain lands situated in Hood and Somervell Counties, Texas, and consisting of two units having a nominal capacity of 1,150 megawatts each, and related properties, and is the aggregate and combination of the Station, Fuel, and Transmission Facilities, and all other rights and interests associated with or relating thereto.
D. " Fuel" means the Comanche Peak nuclear fuel, irrespective of chemical ar.d/or physical form, and the rights and interests celated thereto.
E " Joint Ownership Agreement" means that certain instrument entitled on the cover page thereof " JOINT OWNERSHIP AGREEMENT BETWEEN DALLAS POWER &
\
LIGHT COMPANY, TEXAS ELECTRIC SERVICE COMPANY, TEXAS POWER & LIGHT COMPANY, TEXAS UTILITI?3 GENERATING COMPANY, TEXAS MUNICIPAL POWER
\GENCY AND BRAZOS CLECTRIC POWER COOPERATIVE, INC. FOR COMANCHE 1_
PEAK STEAM ELECTRIC STATION," executed on January 2,1979, together with and as modified by that certain instrument entitled on the cover page thereof " Modification of Joint Ownership Agreement Between Dallas Power & Light Company, Texas Electric Service Company, Texas Power & Light Company, Texas Utilities Generating Company, Texas Municipal Power Agency- and Brazos Electric Power Cooperative, Inc.: For Comanche Peak Steam Electric Station," executed on June 1,1979, together with and as amended by (i) the Amendment of Joint Ownership Agreement, executed on December 9, 1080, between Dallas Power & Light Company, Texas Electric Service Company, Texas Power & Light Company, Texas Utilities Generating Company, TMP A, Brazos, and Tex-La, together with and as amended by (ii) the Second Amendment of Joint Ownership Agreement, executed on February 12, 1982, between Dallas Power & Light Company, Texas Electric Service Company, Texas Power & Light Company, Texas Utilities Generating Company, TMPA, Brazos, and Tex-La.
F. " Members" means the seven (7) Texas non-profit electric cooperative corporations that are members of Tex-La, as set out in Exhibit C to the Agreement.
G. " Owners" raeans collectively TU Electric, Brazos, TMPA and Tex-La, as owners of Comanche Peak in accordance with the terms of the Joint Ownership Agreement, or singularly any of such parties.
H. " Project Manager" means TU Electric designated and acting as such in accordance (or purportedly in accordance) with the terms of the Joint Ownership A greement.
I. " Site" means approximately 7,669 acres owned (in fee or other estate or interest) by the Owners, as tenants in common, and located in Hood and Somervell Counties, Texas.
l J. " Station" means the Site, all improvements thereon (including Squaw
- j. Creek Lake and Park) and all fixtures and attachments thereto, as well as (1) all personal property thereon and associated therewith or related thereto and owned by the Owners,
, l l
l
and (ii) all rights (tangible or intangible), and all easements and other interests of any nature associated therewith or related thereto and owned by the Owners, excluding, however, the Fuel, and the Transmission Facilities.
K. " Subject Claims" means any and aJl claims, actions, controversies, causes of action, disputes, demands, and complaints of whatsoever kind or nature and whether known or unknown.
L. " Tex-La" means Tex-La Electric Cooperative of Texas, Inc.
M. 'TMPA" means Texas Municipal Power Agency.
N. ' Transmission Facilities" means the Comanche Peak - Cleburne Junction and Cleburne Junction-Everman 345 kV electrical transmission lines, aggregating approximately 51.5 miles in length, and associated rights-of-way, equinment, fixtures and personal property. .
O. 'TUC" means Texas Utilities Company, which is a Texas corporation and the parent of TU Electric.
P. "TU Electric" means Texas Utilities Electric Company, which is a Texas eorporation.
- 11. Release. TU Electric, for itself and on behalf of its parent, TUC, and their subsidiaries and affiliates and on behalf of any person or entity, private or governmental, claiming by, through or under TO Electric or TUC, including without limitation, to the extent it has the standing and right under law to do so, their customers and shareholders and their respective insurers, agents, servants, employees, officers, directors, consultants, attorneys and representatives does hereby waive, release, discharge, renounce and relinquish any and all Subject Claims involving, concerning, accruing in, arising out of, or relating to the period of time prior to the delivery hereof which it has or the'; xe claiming by, through or under TU Electric or TUC, or may have, whether known or unknown, contingent or absolute, including, without limitation, those based on common law, whether contract (express or implied, including express or implied warranty) or tort
(including, without limitation, intentional tort, negligence or gross negligence, sole, joint or concurrent) or strict liability or fraud, and those based on any Federal, state or local statute, law, order or regulation, including, without limitation, the Atomic Energy Act of 1954, as amended, the regulations of the NRC, the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended, and any rule or regulation under either, the Texas Securities Act (Title 19, A rticles 581-1, et seq., V. A .T.S .), the Texas Declaratory Judgment Act (Secs. 37.0001 .011 of the Texas Civil Practice and Remedies Code) and the Texas Deceptive Trade Practices and Consumer Protection Act, egainst ._
Tex-La, its Menibers aM customers (including the customers of Tex-La's Members and other wholesale customers)in any capacity, whether individually or otherwise, and its and their respective insurers, agents, servants, employees, officers, directors, consultants, attorneys and representatives, past and present, and any and all of their respective successors, subsidiaries and affiliates, and their respective insurers, agents, servants, employeer, officers, directors, members, consultants, attorneys, and representatives, past and r asent, except (1) Subject Claims arising out of or under the Agreement or any of the other agreements or instruments executed and delivered pursuant thereto, (2) Subject Claims which do not relate to Comanche Peak and are based upon circumstances or facts unknown (and which could not reasombly have been known) to TU Electric at the times of execution of the Agreement and this Release, (3) any defenses which TU Electric has or may two to Subject Claims asserted against TU Electric by any persons or parties whomsoever, pecvided that TU ElecLe may not seek any type of affirmative relief hereunder (other than rate relief pursuant to the provisions of the Public Utiuty Regulatory Act, Article 1446c, V.A.T.S) against Tex-La, its Members and customers (includ!ng the customers of Tex-La's Membens and other wholesale customers), their respective insurers, agents, employees, officers, directors, consultants, attorneys and representatives, and (4) any munterclaims which TU Electric has or may have against any party other than Tex-La, its Members and customers (including the etatomers of Tex-La's l
l l
i Members and other wholesale customers), their respective insurers, agents, employees, i l
officers, direators, consultants, attorneys and representatives, acting in such capacity !
)
(other than in connection with rate relief pursuant to the provisions of the Public Utility !
Regulatory Act, Article 1446c, V.A.T.S.) with respect to any Subject Claims being asserted against TU Electric by anyone other than Tex-La, its Members and customers (including the custom ers of Tex-La's Members and other wholesale cus tom ers),
individually or otherwise, or their respective insurers, agents, employees, officers, directors, consultants, attorneys and representatives. In connection with clause (2) of the immediately preceding sentence, TU Electric represents that it presently is unaware of any Subject Claim with Tex-La which has not been addressed and resolved by the Agreement and the exhibits thereto. Notwithstanding the foregoing, nothing herein shad prohibit TU Elcetric from charging Tex-La, or collecting from Tex-La, for any electric powe~ and energy purchased by Tex-La from TU Electric in accordance with the rates set forth in TU Electric's tariff as ums may be approved and in effect from time to time i
even though said rates may it.clude costs related to Comanche Peak. TU Electric hereby covenants and warrants that it has not assigned any Subject Claims that are hereby released.
f EXECUTED this the day of ,1989, as duly authorized by an appropriate resolution of its Board of Directors.
TEXAS UTILITIES ELECTRIC COMPANY (Corporate Seal) By:
Its: -
ATTEST:
By: __
lts:
, ,- , - , ,,y .- r- --,e . , n. ,,-4 en + , . ~ , - , . , -,e.-w_ ,. e .- - - - - - - - - - - - -
EXIFBrl' O COVENANT NCyr TO SUE STATE OF TEXAS S S
COUNTY OF DALLAS S For and in consideration of the agreements, undertakings, promises, and covenants of Tex-La set forth in the Agreement, including without limitation the contemporaneous delivery to TU Electric by Tex-La of (1) the Release attached to the Agreement as Exhibit L, (2) the Covenant Not To Sue attached to the Agreement as Exhibit M, and (3) the Indemnity Agreement attached to the Agreement as Exhibit Q, the adequaev and sufficiency of such consideration being hereby acknowledged and confessed, TU Electric hereby agrees to the following:
1.
Definitions. As used herein, the following terms have the following meanings:
A. " Agreement" means that certain Agreement dated March 23,1989, by and between Tex-La and TU Electric.
B. "Brazos" means Brazos Electric Power Cooperative, inc.
C. " Comanche Peak" means the nuclear-fueled electric generating facility under construction on certain lands ituated in Hood and Somervell Counties, Texas, and consisting of two units having a r.ominal capacity of 1,150 megawatts each, and related properties, and is the aggregate and combination of the Station, Fuel, and Transmission Facilities, and all other rights and interests associated with or relating thereto.
D. " Fuel" means the Comanche Peak nuclear fuel, irrespective of chemical and/or physical form, and the rights and interests related thereto, l E. " Joint Ownership Agreement" means that certain instrument entitled on the cover page thereof " JOINT OWNERSHIP AGREEMENT BETWEEN DALLAS POWER &
LIGHT COMPANY, TEXAS ELECTRIC SERVICE COMPANY, TEXAS POWER & LIGHT COMPANY, TEXAS UTILITIES GENERATING COMPANY, TEXAS MUNICIPAL POWER I AGENCY AND BRAZOS ELECTRIC POWER COOPERATIVE, INC. FOR COMANCHE u
PEAK STEAM ELECTRIC- STATION," executed on January 2,1979, together with and as modified by that certain instrument entitled on the cover page thereof " Modification of Joint Ownership Agreement Between Dallas Power & Light Company, Texas Electric Service Company, Texas Power & Light Company, Texas Utilities Generating Company, Texas Municipal Power Agency and Brazos Electric Power Cooperative, Inc.: For Comanche Peak Steam Electr! Station," executed on June 1,1979, together with and as amended by (i) the Amendment of Joint Ownership Agreement, executed on December 9, 1980, between Dallas Power & Light Company, Texas Electric Service Company, Texas Power & Light Company, Texas Utilities Generating Company, TMP A, Brazos, and Tex-La, together with and as amended by (ii) the Second Amendment of Joint Ownership Agreement, executed on February 12, 1982, between Dallas Power & Light Company, Texas Electric Service Company, Texas Power & Light Company, Texas U tilities Generating Company, TMPA, Brazos, and Tex-La.
F. " Members" means the seven (7) Texas non-profit electric cooperative corporations that are members of Tex-La, as set out in Exhibit C to the Agreement.
G. " Owners" means collectively TU Electric, Brazos, TMPA and Tex-La, as owners of Comanche Peak in accordance with the terms of the Joint Ownership Agreement, or singularly any of such parties.
H. " Project Manager" means TU Electric designated and acting as such in accordance (ce purportedly in accordance) with the terms of the Joint Ownership Agreement.
I. " Site" means approximately 7,669 acres owned (in fee or other estate or interest) by the Owners, as tenants in common, and located in Hood and Somervell Counties, Texas.
J. " Station" means the Site, all improvements thereon (including Squaw I
Creek Lake and Park) and all fixtures and attachments thereto, as well as (i) all personal property thereon and associated therewith or related thereto and owned by the Owners, l
L .__
t and (ii) all rights (tangible or intangible), and all easements and other interests of any nature associated therewith or related thereto and owned by the Owners, excluding, however, the Puel, and the Transmission Facilities.
K. " Subject Claims" means any and all claims, actions, controversies, causes of action, disputes, demands, and complaints of whatsoever kind or nature and whether known or unknown.
L. " Tex-La" means Tex-La Electric Cooperative of Texas, Inc.
M. 'TMPA" means Texas Municipal Power Agency.
N. ' Transmission Facilities" means the Comanche Peak - Cleburne Junction and Cleburne Junction-Everman 345 kV electrical transmission lines, aggregating approximately 51.5 miles in length, and associated rights-of-way, equipment, fixtures and personal property.
O. 'TUC" means Texas Ut'lities Company, which is a Texas corporation and the parent of TU Electric.
P. 'TU Electric" means Texas Utilities Electric Company, which is a Texas corporation.
II. Covenant Not to Sue and Agreement Not to Challenge.
(a) Except as provided for in Section 4.2(f) of the Agreement, TU Electric, for -
itself and on behalf of its parent, TUC, and their subsidiaries and affiliates, and any person or entity, private or governmental, claiming by, through or under TU Electric or TUC, including without limitation, to the extent it has the standing and right under law to do so, their customers and shareholders, and their respective insurers, agents, servants, employees, officers, directors, consultants, attorneys and representatives does hereby agree and covenant that it and they claiming by, through or under TU Electric or TUC, individually, collectively or in any combination, will forebear from asserting against, and never sue for or look for satisfaction with respect to, Tex-La and
its - Members and their respective insurers, agents, servants, employees, officers, directors, members, consultants, attorneys and representatives, past and present, and any and all of their respective successors, subsidiaries, and affiliates and their respective insurers, agents, servants, employees, officers, cirectors, shareholders, members, consultants, attorneys and representatives,
, past and present, any Subject Claim in any manner involving, concerning, arising out of, or relating to Comanche Peak, and the m anage r..ent, procurement, conversion, enrichmern, fabrication, shipping, transportation and storage of the Fuel.
(b) Except as provided for in Section 4.2 (f) of the Agreement, TU Electric, for itself and on behalf of its parent asidiaries and affiliates, and any person or entity, private or governmental, claiming by, through or under them, including without limitation, to the extent it has the standing and right under law to do so, its or their customers and shareholders, and its or their respective insurers, agents, servants, employees, officers, directors, consultants, attorneys and representatives hereby further agrees and covenants that neither it nor they claiming by, through or under TU Electric or TUC, individually, collectively or in any combination, will directly or indirectly oppose, challenge, contest or assert any complaint against Tex-La or its Members in any court or before any administrative agency or body or in any other forum whatsoever with respect to, or in any manner involving, concerning, arising out of, or relating to, Comanche Peak and the Joint Ownership Agreement and in connection with the performP: ice or nonperformance by Tex-La of its duties, responsibilities or obilgations under the Joint Ownership Agreement, and on account of anything that has occurred or may have occurred, in whole or in part, with respect to Comanche Peak, (including separately the Station, Fuel, or Transmission
-4
Facilities) and the incidents and attributes thereof and any of the foregoing whether known or unknown.
(c) Notwithstanding anything contained in paragraphs (a) and (b) hereof or in the Agreement, TU Electric specifically does not covenant not to sue, and-specifically does not agree not to assert, challenge or contest, with regard to:
(1) Subject Claims arising out of or under the Agreement or any other agreement or instrument executed and delivered pursuant thereto; (2) any right or authority to charge T ex-L a, its Members and customers (including the customers of Tex-La's Members and other wholesale customers), for any electric power and energy purchased by any of them from TU Electric in accordance with the rates set forth in TU Electric's tariff as same may be approved and in effect from time to time even though said rates may include costs related to Comanche Peak; (3) any defenses which TU Electric has or may have to Subject Claims asserted against TU Electric by any persons or parties whomsoever, provided that TU Electric may not seek any type of affirmative relief hereunder (other than rate relief pursuant to the provisions of the Public Utility Regulatory Act; Article 1446c, V.A.T.S.)
against Tex-La, its, Members and custom ers (including the customers of Tex-La's Members and other wholesale customers),
their respective insurers, agents, employees, officers, directors, consultants, attorneys and representatives; or (4) any counterclaims which TU Electric has or may have against ar.y party other tnan Tex-La, its Members ard customers (including the customers of Tex-La's Membert and otner wholesale customers),
their respective insurers, agents, employees, officers, directors, consultants, attorneys and representatives, acting in such capacity (other than in connection with rate relief pursuant to the provisions of the Public Utility Regulatory Act, Article 1446e, V.A.T.S.), with respect to any Subject Claims being asserted against TU Electric by anyone other than Tex-La,its Members and custorners (including the customers of Tex-L a's Members and other wholesale customers), individually or otherwise, or thair respective insurers, agents, employees, off'cers, directors, consultants, attorneys and representatives.
1
.- l EXECUTED this the day of ,1589, as duly authorized by an appropriate resolution of its Board of Directors.
TEXAS UTILfTIES ELECTRIC COMPANY (Corporate Seal) By: _
Its:
ATTEST:
By:
Its:
1 1
i
,,.--...-.,.-.-,,a
EXHIBfr P ASSUMPTION AND INDEMNTTY AGRREMENT STATE OF TEXAS S S
COUNTY OF DALLAS S For and in consideration of the agreements, undertakings, promises, and covenants of Tex-La set forth in the Agreement, including without limitation the contemporaneous delivery to TU Electric by Tex-La of (1) the Release attached to the Agreement as Exhibit L, (2) the Covenant Not To Sue under attached to the Agreement as Exhibit M, and (3) the Indemnity Agreement attached to the Agreement as Exhibit Q, the adequacy and sufficiency of such consideration being hereby acknowledged and confessed, TU Electric hereby agrees to the following:
I. Definitions. As med herein, the following terms have the following meanings:
A. " Agreement" means that certain Agreement dated March 23,1989, by and between Tex-La and TU Electric.
I l
B. "Brazos" means Brazos Electric Power Cooperative,Inc.
j C. " Comanche Peak" means the nuclear-fueled electric generating facility i
under construction on certairs lands situated in Hood and Somervell Counties, Texas, and consisting of two units having a nominal capacity of i,150 megawatts each, and related properties, and is the aggregate and combination of the Station, Fuel, and Transmission Facilities, and all other rights and interests associated with or relating thereto.
D. "Puel" means the Comanche Peak nuclear fuel, irrespective of chemical and/or physical form, and the rights and intet ests related thereto.
E. " Joint Ownership Agreement" means that certain instrument entitled on the cover page thereof" JOINT OWNERSHIP AGREEMENT BETWEEN DALLAS POWER &
LIGHT COMPANY, TEXAS ELECTRIC SERVICE COMPANY, TEXAS POWER & LIGHT COMPANY, TEXAS UTILITIES GENERATING COMPANY, TEXAS MUNICIPAL POWER AGENCY AND BRAZOS ELECTRIC POWER COOPERATIVE, INC FOR COMANCHE
- -. . -. _ - - - .- = - -
t PEAK STE AM ELECTRIC STATION," executed on January 2,1979, together with and as modified by that certain instrument entitled on the cover page thereof " Modification of Joint Ownership Agreement Between Dallas Power & Light Company, Texas Electric Service Company, Texas Power & Light Cu.spany, Texas Utilities Generating Company, Texas Municipal Power Agency and Brazos Electric Power Cooperative, Inc.: For Comanche Peak Steam Electric Station," executed on June 1,1979, together with and as amended by (i) the Amendment of Joint Ownership Agreement, executed on December 9, 1980, between Dallas Power & Light Compeny, Texas Electric Service Company, Texas Power & Light Company, Texas Utilities Generating Company, TMP A, Brazcat. and Tax-La, together with and as amended by (ii) the Second Amendment of Joint Ownership Agreement, executed on February 12, 1982, between Dallas Power & Light Company, Texas Electric Service Companye Texas Power & Light Company, Texas U tilities Generating Company, TMP A, Brazos, and Tex-La.
F. " Members" means the seven (7) Texas non-profit electric cooperative corporationr that are members of Tex-La, as set out in Exhibit C to the Agreement.
G. "Owntrs" means collectively TU Electric, Brazos, TMPA and Tex-La, as owners of Comanche Peak in accordance with the terms of the Joint Ownership Agreement, or singularly any of such parties.
H. "Pending Litigation" means Cause No. 399,336 -Tex-L a Electric Cooperative of Texas, Inc. v. Texas Utilities and Texas Utilities Electric Company, - in the District Court of Travis County, Texas,98th Judicial District; and Cause No. 86-6809-A - Texas Utilities Electric Co.npany i. Ter-La Electric Cooperative of Texas, Inc. - in the District Court of Dallts County ' N,14th Judicial District.
I. "Pending Houstor. sait" means Cause No. 83-29889 - Charles A.
Atchison, et al v. Brown & Root, Inc., et al, - in the District Court of Harris County, Texas, 215th Judicial District, removed in April,1988, to the United States District Court for the Southern District of Texas, Houston Division, and numbered Civil Action No.
H 1409.
i y -
,, - +
-. _ - . - _ , . . _ - . - . _ - . ~ . . . - . - - - - _ . .. .. . - - -.
J. "Pending Somervell County Su.t" means Cause No. 2692 - Clementine Mathews and her husband DolpNn Mathews v. ComaneN Peak Electric Steam Station, et l
al,- la the District Court of Somervell County, Texas,18th Judicial District.
K. " Project Manager" means TU Electric designated and acting as such in accordance (or purportedly in accordance) with the terms of the Joint Ownershly A greement, r
L. " Site" means approximately 7,669 acres owned (in fee or other estate or interest) by the Owners, as tenants in common, and located in Hood and Somervell ,
Counties, Texas.
M. ' Station" means the Site, all improvements thereon (including Squaw ,
Creek Lake and Park) and all fixtures and attachments thereto, as well as (i) all personal property t$ereon and associated therewith or related thereto and owned by the Owners, and (ii) all rights (tangible or intangible), and all easements and other interests of any ,
nature associated therewith or related thereto and owned by the Owners, excluding, however, the Puel, and the Transmission Facilities. .
N. "Subjec'. Claims" means any and all claims, actions, controversies, causes of action, disputes, demanch, and complaints of whatsoever kind or nature and whether ;
known or unknown.
O. ' Tex-La" means Tex-La Electric Cooperative cf Texas, Inc.
P. 'TMPA" means Texas Municipal Power Agency.
Q. "Trar smission Facinues" means the Comanche Peek -
(" sburne Junction and Cleburne Junction-Everman 345 kV electrical transmission lines, aggregating approxirnately 51.5 miles in length, and associated rights-of-way, equipment, fixtures and personal property.
R. "UC" means Texas Utilities Cc,mpany, which is a Texas corporation and the part of TU Electric.
IL Assumption of Liabilities and Obligations and Indemnification. TU Electric agrees to assume all of the duties, responsibilities, liabilities and obligations of Tex-La under the Joint Ownership Agreement. Further, TU Electric agrees to indemnify, hold harmless and defend Tex-La and its Members and customers (including the customers of Tex-La's Members and other wholesale customers) from and against all Subject Claims or any alleged acts of the Project Manager, its agents, servants, employees or independent contractors acting on behalf of the Project Manager which may be asserted against Tex-La and its Members and customers (including the customers of Tex-La's Members and other wholesale customers) by any third party (other than Tex-La's Members and customers and the customers of Tex-La's Members or other wholesale customers acting in such capacity), including without limitation Subject Claims predicated upon the alleged actual or imputed negligence or gross negligence of Tex-La and its Members and customers (including the customers of Tex-La's Members and other wholesale customers) arising out of or connected with, the location, planning, design, construction, licensing, condition, maintenance, operation and decommissioning of Comanche Peak, including but not limited to all claims asserted or which might have been or might herea/Cr be asserted in the Pending Houston Suit and in the Pending Somervell County Sult; provided, however, that TU Electric specifically shall not indemnify Tex-La and its Members and customers (including the customers of Tex-La's Members and other wholesale customers) in connection with any Subject Claims which may be asserted by Tex-La's Members and customers, and the custoiners of Tex-La's Members or other wholecale customers, or creditors, acting in such capacity, which in any manner relate to Tex-La's participation as an Owner of Comanche Peak or as a party to the Joint Ownership Agreement or Tex-La's decision to enter into the Joint Ownership Agree:nent, or by reason of Tex-La's involvement in the Pending Litigation, or by reason of Tex-La's decision to purchase an interest in Comanche Peak or the manner of its oversight of the project or its decision to sell its interest pursuant to the Agreement to settle the Pending Litigation, or by reason of the execution of the Agreement and participation in the transactions provided for 4
-- _ _ _ . . - _ _ . _ _ = . - - - - . . _- . -. . _ - - -. .. . .
therein, and provided further, that TU Electric specifically shall r.ot indemnify Tex-La and its Members and customers (including the customers of Tex-La's Members and other wholesale customers) in connection with any Subject Claims which may be asserted by Brazos or TMPA or others which arise by reason of Tex-La's participation in the Pending Litigation, or which are asserted solely by reason of the actiorn of Tex-La in connection with the execution of the Agreement and participation in the transactions provided for therein. TU Electric will, in addition to providing such indemnity, assume the defense of Tex-La and its Members and customers (and the customers of Tex-La's Members and other wholesale customers)in any tribunal where any such claim is asserted. '
EXECUTED this the day of ,1980, as duly authorized by an appropriate resolution of its Board of Directors, t
TEXAS UTILITIE" ELECTRIC COMPANY (Corporate Seal) By:
ATTEST: Its:
By:
Its:
j$kOUkOO G
EXHIBrr Q INDEMNTTY AGREEMENT STATE OF TEXAS S S
COUNTY OF NACOGDOCHES S For and in consideration of the agreements, undertakings, promises, and covenants of TU Electric set forth in the A greement, including without limitation the 1
contemporaneous delivery to Tex-La by TU Electric of (1) the Release attached to the !
l Agreement as Exhibit N, (2) the Covenant Not to Sue attached to the Agreement as l Exhibit O, (3) the Assumption and Indemnity Agreement attached to the Agreement as Exhibit P, and (4) the payment by TU Electric to Tex-La of the Signing Payment and the Closing Payment (as those terms are defined in the Agreement), the adequacy and _
sufficiency of such consideration being hereby acknowledged and confessed, Tex-La-hereby agrees to the followingt
- 1. Definitions. As tsed herein, the following terms have the following meanings:
A. " Agreement" means that certain Agreement dated March 23,1989 by and-between Tex-La and TU Electric.
B. "Brazos" means Brazos Electric Power Cooperative,Inc.
C. " Comanche Peak" means the nuclear-fueled electric generating facility under construction on certain lands situated in Hood and Somervell Counties, Texas, and consisting of two units having a nominal capacity of 1,150 megawatts each, and related ,
properties, and is the aggregate and combination of the Station, Fuel, and Transmission Facilitice and all other rights and interests associated with or relating thereto.
D. " Fuel" means the Comanche Peak nuclear fuel, irrespective of chemical and/or physical form, and the rights and interests related thereto.
E. " Joint Ownership Agreement" means that certain instrument entitled on the cover page thereof " JOINT OWNERSHIP AGREEMENT BETWEEN DALLAS POWER &
LIGHT COMPANY, TEXAS ELECTRIC SERVICE COMPANY, TEXAS POWER-& LIGHT i
.. . . _ . - = - _.
COMPANY, TEXAS UTILITIES GENERATING COMPANY, TEXAS MUNICIPAL POWER AGENCY AND BRAZOS ELECTRIC POWER COOPERATIVE, INC. FOR COMANCl!E PEAK STEAM ELECTRIC STATION," executed on January 2,1979, togetter W.th and as modified by that certain instrument entitled on the cover page thereof " Modification of Joint Ownership Agreement Between Dallas Power & Light Company, Texas Electric Service Company, Texas Power & Light Company. Texas Utilities Generating Company, Texas Municipal Power Agency and Brazos Electric Power Cooperative, Inc.: For Comanche Peak Steam Electric Station," executed on June 1,1979, together with and as amended by (i) the Amendment of Joint Ownership Agreement, executed on December 9, 1980, between Dallas Power & Light Company, Texas Electric Service Company, Texas Power & Light Company, Texas Utilities Generating Company, TMPA, Brazos, and Tex-Le, together with and as amended by (ii) the Second Amendment of Joint Ownership Agreement, executed on February 12, 1982, between Dallas Power & Light Company, Texas Electric Service Company Texas Power & Light Company, Texas U tilities Generating Company, TMP A, Brazos, and Tex-La.
F. " Members" means the seven (7) Texas non-profit electric cooperative corporations that are members of Tex-La, as set out in Exhibit C to the Agreement.
G. " Owners" means collectively TU Electric, Brazos, TMPA and Tex-La, as owners of Comanche Peak in accordance with the terms of the Joint O wne.Thip Agreement, or singularly any of such parties.
H. "Pending Litigation" means Cause N o. 399,336 -T ex-La Electric Cooperative of Texas, Inc. v. Texas Utilities and Texas Utilities Electric Company, - in the District Court of Travis County, Texas, 98th Judicial District; and Cause No. 86-6809-A - Texas Utilities Electric Companv v. Tex-La Electric Cooperative of Tens, Inc. - in the District Court of Dallas County, Texas,14th Judicial District.
.c _. - _ _ _ _ _ _ . _ __ _ _
l l
I 1 " Project Manager" means TU Electric designated and acting as such in :
t P mee (or purportedly in accordance) with the terms of the Joint Ownership A greement.
J. " Site" means approximately 7,669 acras owned (in fee or other estate or interest) by the Owners, as tenants in common, and located in Hood and Somervell Counties, Texas.
K. " Station" means the Site, all improvements thereon (including Squaw Creek Lake and Park) and all fixtures and attachments thereto, as well as (i) all personal property thereon and associated therewith or related thereto and owned by the Owners, and (ii) all rights (tangible or intangibic), and all easements and other interests of any nature associated therewith or related thereto and owned by the Owners, excluding, however, the Fuel, and the Transmission Facilities.
L. "Sut' ject Claims" means any and all claims, actions, controversies, causes of action, disputes, demands, and complaints of whatsoever kind or nature and whether known or unknown.
M. ' Tex-La" means Tex-La Electric Cooperative of Texas, Inc.
N. "TMPA" means Texas Municipal Power Agency.
O. ' Transmission Facilities" means the Comanche Peak - Cleburne Junction and Cleburne Junction-Everman 345 kV electrical transmission lines, aggregating ayroximately 51.5 miles in length, and associated rights-of-way, equipment, fixtures and personal property.
P. "TUC" means Texas Utilities Company, which is a Texas corporation and the paren, of TU Electric.
Q. 'TU Electrie" means Texas Utilities Electric Company, which is a Texas corporation.
II. Assumption of Liabilities and Obligations and Indemnification. Tex-La agrees to indemnify, hold harmless and defend TU Electrie, TUC and their respective
subsidiaries, affiliates and customers from and against any and all Subject Claims of Tex-La or anyone related to or affiliated with Tex-La, including Tex-La's Members, customers (including the customers of Tex-La's Members and other wholesale customers) and creditors, acting in such capacity, relating to Tex-La's execution of, or participation in, the Joint O wnership A greem ent. Tex-L a's execution of the A greem ent and participation i'i the transactions provided for therein, and Tex-La's activities as an Owner separate and apart from joint activities with all other Owners or activities by, through and under the Project Manager. Further, Tex-La agrees to indemnify, hold harmless and defend TU Electric, TUC and their respective subsidiaries, affiliates and customers from and against any and all Subject Claims of Tex-La or anyone related to or affiliated with Tex-La, including Tex-La's Members and, to the extent they are acting in such capacity, Tex-La's customers (including the customers of Tex-La's Members and other wholesale customers) and creditors, with respect to, or in any manner involving, concerning, arising out of, or relating to: (i) the acts or omissions of TU Electric or the Project Manager referred to or in question in the Pending Litigation or which could have been brought into question in the Pending Litigation, including wit! nut limitation Subject Claims based upon the negligence or gross negligence, sole, joint or concurrent, of TU Electric or the Project Manager; and (ii) the acts or omissions of TU Electric or the Project Manager with respect to Comanche Peak that occur, in whole or in part, prior to the Date of Commercial Operation (as said term is defined in the Joint Ownership Agreement), including without limitation Subject Claims based upon the negligence or gross negligence, sole, joint or concurrent, of TU Electric or the Project Manager.
4_
EXECUTED this the day of ,1989, as duly authorized by an appropriate resolution of its Board of Directors.
TEX-LA ELECTRIC COOPERATIVE OF TE XAS, IN C.
(Corporate Seal) By:
NITES T: Its:
By:
I ts:
y
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AGREEMENT
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between BRAZOS ELECTRIC POWER COOPERATTVE, [NC.
l Brasos l
l and TEXAS UTILITIES ELECTRIC COMPANY
- I l / TU Electric I Dated as of Atly 5,1988 I
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TABLE OF CONTENTS 1 PAGE
. . . . . . . . . . . . ... . . . . . . . . . . . . . . 1 DEFINITIONS
]
5 gECIT ALS . . . . . . . . . . . . . . . . .. . . . . . . . . . .. . -
\RTICLE I, S ALE AND PURCHASE . . . . .. . . . . . . . . . . . . . . . 9 i 1.1 Properties and Assets Sold and Purchased . . . . . . . . . . . . 9 1.2 Closing . . . . . . . . . . . .. . . . . . . . . . . . . . . . 10 1.3 Transfer of Purchased Assets . . . . . . . . . . . . . . . . . . . 19
, 1.4 Method of Payment . . . . . . .. . .. . . . . . . . . . . . . 10 l.5 Payment of Total Payment . . . .. . . . . . . . . . . . . . . 10 (a) Payment Upon Signing . . . . . . . . . . . . . . . . . . . . 10 I (b) Payment at the Closing. .. . . . . . . . . , . . . . . . . . . 10 (c) Deferred Payment . . . . . .. . . . . . . . . . . . . . . . . 10 ARTICLE II. REPRESENT 4.TIONS, WARRANTIES AND AGREEMENTS OF BRAZOS 11 2.1 Legal Status . . . . . . . . .. . . . . . . . . . . . . . . . . 11 j 2.2 Authority for Agreement. . . . . . . . . . . . . . . . . . . . 11 2.3 Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 2.4 Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . 13 I 2.5 Taxes . . . . . . . . . . . . .. . . . . . . . . . . . . . . . 14 y 2.6 Title to R eal Property . . . . . . . . . . . . . . . . . . . . . . 14 2.7 Title to Personal Property . . . . . . . . . . . . . . . . . . . 15 2.8 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 2.9 Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . 16 2.10 Exclusion of implied Warranties. . . . . . . . . . . . . . . . . . 16 2.11 Accuracy of Representations and Warranties . . . . . . . . . . . . 16 i
ARTICLE III. REPRESENTATIONS. WARRANTIES AND '.GREEMENTS O F T U E L E CT RI C . . . . . . . . . . . . . . . . . . . . .. . . . 16 3.1 Corporate Status . . . .. .. ... . . . . . . . . . . . . . . 16 i 3.2 Authority for Agreement. . . . . . . . . . . . . . . .. . . . . 17 I 3.3 A pprovals . . . . . . . . . ... . . . . . . . . . . .. . . . 17 3.4 A uthority for TUC Guaranty . . . . . . . . . . . . . . . . . . . 18 "g 3.5 Accuracy of Representations and Warranties . .. . . . . .. . . . 18 A RTICLE IV, PRE.-CLOSING OBLIGATIONS . .. . . .. . .. . . .. . . 19
/ 4.1 Representations, Warranties and Covenants. . . . . . . . . . . . . 19 j 4.2 Abatement of Participallon in Pending Litigation . . . . . . . . . . 19 23 4.3 A gree m en t to ObtMn A pprovals . . . . . . . . . . . . . . . . . .
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ARTICLE V, CONDITIONS TO OBLIG ATIONS TO CLOSE. ........... 23 5.1 Conditions to Ooligation of Brazos to Close. ............ 23
) (a) Representations and Warranties . ................ 23 (b) Compliance With Agreement . ................. 24 j' (c) Receipt of Payment . . .. . ................. 24 (d) Receipt of Closing Documents. . . . . . . . . . . . . . . . . . 24 (e) Consent to Assignment Agreement. ............... 24 (f) Receipt of LR.S. Determination . ................ 24 5.2 Conditions to Obligation of TU Electric to Close .......... 24 (a) Representations and Warranties . . . . . . . . . . . . . .... 25
.' (b) Compliance with Agreement . ................. 25 (c) Delivery of Pending Litigation Docus, ntation . . . . . . ..... 25 (d) Receipt of Closing Documents. . ............... 26 i 5.3 Conoitions to Obligation of Both Parties to Close . ......... 26 (a) No Adverse Proceeding. . . . ................. 26 (b) Waiver of Right of First Refusal. . . .............. 26 I (c) Approval by PUC . . . . . . ................. 28 (d) Approval by NRC . . . . . . ................. 29 (e) Approval of REA, CFC and FFB . ................ 31 (f) Execution of Transmitsion Services Agreement .......... 32 i ARTICLE VI, C LOSING DOC UMENTS FROM BR AZOS . .. ......... 32 6
6.1 Deeds and Transfers, etc. . . . ................. 32 l
6.2 Lien Search . . . . . . . . . .............. .. 32 6.3 Certifict.te of Secretarial Officer . . . . . . . . . . . . . .... 32
) 6.4 Counsel Opinion . . . . . . . ................. 33 l
l ARTICLE Vll, CLOSING DOCUMENTS FROM TU ELECTRIC . . ........ 33 7.1 Proof of Payment. . . . . . . ................. 33 7.2 Ot h e r In str u m en ts . . . . . . . . . . . . . . . . . . . . . . . . 33 7.3 Certificate of decretarial Officer . . . . . . . . . . . . . . . . . 33
-)' 7.4 Counsel's Opinion . . . . . . . ................. 34 ARTICLE Vill CLOSING AND INDEMNIFIC ATION .............. 34 8.1 Indemnification by Brazos . . . . . . . . . . . . . . . . . . . . 34 I 8.2 Indemnification by TU Electric . . . . . . . . . . . . . . . . . 31 1 8.3 Survival of Representation and Warranties . . . . . . . . . . . . . 35 l 9.4 Notice and Opportunity to Participate in Defense . . . . . . .... 35 ARTICLE 1X, SETTLEMENT OF PENDING LITIG ATION . . . . . . . . . . . . 35 I 9.1 Dra z os R e le ase . . . . . . . . . . . . . . . . . . . . . . . . . 35 I 9.2 Brazos Covenant Not to Sue . . ................. 36 9.3 T U Elec tr ic R e le a se . . . . . . . . . . . . . . . . . . . . . . . 40 9.4 TU Electric Covenant Not to Sue. . . . .............. 41 9.5 Assumption of Liabilities and Obligations and Indemnification . . . . . 44
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- 9. 6 Co v en an t o f Cooper a tion . . . . . . . . . . . . . . . . . . . . . 46 9.7 Ter mina tion o f Par ticipa tion . . . . . . . . . . . . . . . . . . . 46 9.8 TU Electric Actions and Litigation Costs . . . . . . . . . . . . . . 48 9.3 Termf astion of Joint Ownership Agreement Relationship . . . . . . . 49
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ARTICLE X, TERMINATION OF AGREEMENT . ............... 49 10.1 Termination of Agreement by TU Electric . ............ 49
- f 10.2 Termination of Agreement by Brazos ............... 50
,I 10.3 Automatic Termination .... ................. 50 ,
10.4 Termination of Covenants, Releases and indemnifications. ...... 51 1
.ggTICLE XI, MISCELLANEOUS PROVISIONS ................ 51 l 11.1 Bulk Sales Law Waiver. .... ................. 51 l .
11.2 Further Assurance ... . .. ................. 51 ll.3 No Third Party !3eneficiaries . . . . .............. 51 11.4 Default . .. ... .. ... ................. 52 11.5 Property and Transfer Taxes . .......... ........ 52 (a) Property Taxes . . . . ..... ............... 52
, (b) Transfer Taxes . . . .. .... ............... 52 11.6 Expenses. . . . . . . ..... ................ 53 11.7 Governing Law . .. ... . . ................ 53 I 11.8 Announcements . .. ....... ............... 53 ,
11.9 Entire Agreement, Amendments ................. 53
! ! .10 A ssigns, etc. . . . . . . . . . . ............... 53 11.11 Notices . .. .. .. . .... ............... 53 11.12 H eadings. ..... ..... ................ 54 i
11.13 Execution and Counterparts . ................. 54 i
4 11.14 Interest on Past Due Payments . ................ 54 11.15 Use of Representations or Recitals ...
........... 55 11.16 Separate Litigation . . . . .................. 55 l
i 11.17 Construction of Comanche Peak ................ 55 f 1 1.18 S e verabili ty. . . . . . . . . . . . . . . . . . . . . . . . . . 55 l
11.19 Time of the Essence. . ... ................. 56 i . .
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LIST OF EX1HBrrS i
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PAGE l
Exhibit A - Assigrment Agreement 1 Exhibit B - Guaranty 2 Brazos Members Exhibit C - 3 Exhloit D - Mortgage 3 i
Exhibit E - Note 4 I
Exhibit F - Special Warranty Deed With Vendor's Lien and Bill of Sale 7 Exhibit G - Notice of First Rignt of Refusal 26 Exhibit H - Joseph Robert Riley Opinion 33
! Exhibit ! - W: ,4.s a, Forsythe, Sampels & Wooldridge Opinion 34 Exhibit J - Brazos Release 36 l
Exhibit K - Brazos Covenant Not to Sue 38
- ' Exhibit L - TU Electric Release 41 I Exhibit M - TU Electric Covenant Not to Sue 42 i Exhibit N - TU Electric Assumption and Indemnity Agreement 45 l
Exhibit O - Brazos Indemnity Agreement 46
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8 THIS AGREEMENT is made and entered into this 5th day of July,1988 by and
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detween the following parties:
l l BR AZOS ELECTRIC POWER COOPER ATIVE, U4C., a Texas non-profit electric 1 cooperative corporation, having its principal office at 2404 LaSalle Avenue, Wsco,
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yeLennan County, Texas ("Brazos"), and TEX AS UTILITIES ELECTRIC COMPANY, a Texas corporation, having its principal office at 2001 Bryan Strect, Suite 1900, Dallas, 8 Dallas County, Texas ("TU Electric", and where appropriate in the context of this l
Agreement, TU Electric may include TU Electric's corporate predecessors, Dallas Power
)
& Light Company, Texas Electric service Company and Texas Power & Light Company),
1 DEFINITION 3 1 I
, As used in this Agreement and in the Exhibits attached hereto, unless otherwisc l l
specified therein, the following terms shall have the following meanings: l (a) " Agr e e m en t" means this Agreement and the Schedule and all Exhibits
$ attached to this Agreement.
(b) " Assignment Agreement" means the Assignment Agreement attached hereto
, as Exhibit A.
I (c) "Brazos Comanche Peak Debt" means the aggregate of the indebtedness of l
Brazos to the REA, the CFC and the FFB with respect only to Comanche j Peak, which at the date hereof is the unpaid principal amount of One Hundred I
Ninety Four MlUlon, Six Hundred Ninety Rousand, Dree Hundred Fifty and I
14/100 Dollars ($194,690,350.14), and is evidenced and represented by
) documentation previously delivered by Brazos to TU Electric.
l (d) " Business Day" means a day on which banks in Dallas, Texas are open for regular banking business.
J (e) "CFC" means the National Rural Utilities Cooperative Finance Corporation, 1
or its successor.
i (f) " Closing" means the consummation, pursuant to this Agreement, of the sale of the Purchased Assets by Brazos to TU Electric and the purchase of the Purchased Assets by TU Electric from Drazos, as described herein.
I (g) " Closing Date" means such date as may be agreed upon by the parties for the 1
l Closing, which date shall be within thirty (30) days after the last to occur on
, the NRC Affirmative Date, the PUC Affirmative Date or the granting of the nece:sary approvals of the REA, the CFC and the FFB with respect to the Brazos Comanche Peak Debt referred to in Section 5.3(e) hereof.
(h) " Closing Payment" means the aggregate of (i) Two Million, Four Hundred I
, Fif ty Four Thousand, Eight Hundred Ninety Dollars ($2,454,890), plus (ii) the
)
trrount of principal paid by Brazos with respect to the Brazos Comanche Peak Debt from (and including) March 1,1988 until the Closing Date and not previously paid as part of the Signing Payment, plus (iii) an incremental amount calculated at a rate equal to nine and one-half percent (91/2%) per g annum on said principal outstanding from time to time from (and including) l March 1,1988 until the Closing Date and not previously paid as part of the Signing Payment.
I (i) " Comanche Peak" means the nuclear-tueled electric generating facility under
.! construction on certain lands situated in Hood and Somervell Counties, Texas, I
] and consisting of two units having a nominal capacity of 1,150 megawatts each, and related properties, and is the aggregate and c;mbination of the Station, Fuel and Transmission Facilities, and all other rights and interests l associated with or relating to all of the same.
! tj) "Defs ed Payment" shall have tta merming set out in Section 1.5(c) hereof.
1
'g (k) "FFB" means the Federal Financing Bank, or its successor.
l (1) " Fuel" means the Comanche Peak nuclear fuel, irrespective of chemical
- and/or physical form, and the rights and interests related thereto.
(m) " Guaranty" means the form of Guaranty of TUC attached hereto as Exhibit B.
(n) " Joint Ownership Agreement" means that certain instrument entitled on the
! cover page thereof " Joint Ownership Agreement Between Dallas Power &
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Ught Compeny, Texas Electric Servae Compeny, Texas Power a L ght Company, Texas Utilities Generating Company, Texas 51uaicipal Po w er Agency and Brazos Electric Power Cooperative, Inc. for Comanche Peak
} Steam Electric Station," executed on January 2,1979, together with and as modifieu by that certain instrument entitled on the ^over page thereof "51odifiestion of Joint Ownership Agreement Between Dallas Power & Light Company, Texas Electric Service Company, Texas Power a Light Company, Texas Utilities Generating Company, Texas 51unicipal Power Agency and Brazos Electric Power Cooperative, Inc. For Comanche Peak Steam Electric i
Station," executed on June 1,1979, together with and as amended by (i) the
} Amendment of Joint Owr.trship Agreement, executed on December 9,1980, bet *veen Dallas Pow er & Light Company, Texas Electric Service Company, Texas Power & Light Company, Texas Utilities Generating Company, T51PA, Brazos and Tex-La, together with and as amended by (ii) the Second Amendment of Joint Ownership Agreement, executed on February 12, 1982, between Dallas Power & Light Company, Texas Electric Service Company, s
Texas Power & Light Company, Texas Utilities Generating Company, TS1P A, I Brazos and Tex-La.
j (o) "Slembus" means the twenty (20) Texas non-profit electric cooperative I
corporations that are the members of Brazos, as set out in Exhibit C attached l
hereto.
I J (p) "Slortgage" means the purchase money mortgage in the form of the Deed of
'l Trust and Security Agreement attached hereto as Exhibit D ereaung a first Ifen and granting to Drazos a first and prior security interest in the Purchased
) Assets to secure payment of the Note.
I (q) "New lawsuit" means the lawsuit that, pursuant to Section 4.2(e) of this Agreement, may be filed by Brazos or TU Electric, end if filed will be filed in d
Dallas County, Texas, in the event that nonsults are taken by Brazos and
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TU Electric in the Pending Dallas Suit pursuant to Section 4.2(d) of this Agreement or this Agreement is terminated under Article X hereof.
1 (r) " Note" means the non fiegotiable promissory note, in the form attached hereto as Exhibit E, to be made and delivered at Closing by TU Electric as provided in Section 1.5(c) of this Agreement.
l (s) "N RC" means the United States Nuclear Regulatory Commission, or its successor.
(t) "NRC Affirmative Date" shall have the meaning set out in Section 5.3(d)
,' hereof.
(u) " Owners" means collectively TMPA. TU Eltetric, Tex-La and Brazos, as i
- owners of Comanche Peak in accordance with the terms of the Joint Ownership Agreement, or singularly any of such parties.
, (v) "Pending Austin Suits" means Cause No. 399,482 - Brazos 31ectric Power Cooperative, Inc. v. Texas Utilities Company, Texas Utilities Electric Company, Texas Utilities Mining Co mpany, and Texas Utilities Services l Incorporated. -in the District Court of Travis County, Texas, 345th Judicial
[ District, and ;ause No. 399,336 - Tex-La Electric Cooperative of Texas, Inc., and Texas Municipal Power Agency v. Texas Utilities and Texas Utilities Electric Company, - in the District Court of Travis County, Texas, 98th I
Judicial District.
I l (w) "Pending Dallas Sult" means Cause No. 86-6809-A - Texas Utilities Electric t
j Company v. Tex-La Electrie Cooperative of Texas, Inc., et al. - in the i
j District Court of Dallas County, Texas,14th Judicial District.
I fx) "Pending Houston Sult" means Cause No. 83-29889 - Charles A. Atchison, et al v. Brown & Root, Inc., et al. - in the District Court of Harris County, I
Texas, 215th Judicial District, removed in April,1988, 'o the United States l
} District Court for the Southern District of Texas, Houston Division, and l numbered Civil Action No. H-88-1409, 1
(y) "Pending Litigation" means the Pending Dallas Suit and the Fending A,, tin l
Suits.
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(z) "Pending Somervell County Sult" means Cause No. 2692 - Clementine Mathews and her husband Dolphin Mathews v. Comanche Peak Electric Steam Station, et al,, - in the District Court of Somervell County, Texss,18th 1 l Judicial District. I
- (sa) " Permitted Exceptions" means Matters affecting Brazos' title to all or any part of the Purchased Acsets existing immediately prior to the time the same were acquired oy Brazos from or through TU Electric or TU Electric's predecessors-
, in-title;
) -
Matters affecting Brazos' title to all or any part of the Purchased
, Assets created by the acts or omissions of (i) all parties owning 4
interests in Comanche Peak at the time involved acting collectively, or (ii) the Project Manager or TU Electric or both; l
The lien for unpaid te-r: nd assessments relating to taxes and i
assess.c.ents unpaid by parties other than Brazos or imposed with respect to the periods prior to which Brazos owned the property i
f interest involved and after the Closing; I -
The rights of third parties r and to the Purchased Ascets created by l
l the acts or omissions of parties other than Brazos an(' not arising by, 1
) through or under ivazos;
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The Joint Ownership Agreemeat and all licenses, permits, leases, I
i franchises and contracts relating to the Purchased Assets applied for, obtained or created by the acts or omissions of (i) any Owner other I than Brazos, (11) all parties owning interests in Comanche Peak at the I
ij time involved acting collectively, or (iii) the Project Manager or l TU Electric or both; and
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Liens (existing or inchoate) in favor of mechcies, materialmen, laborers and suppliers of materials, goods, services, equipment, inventory (of subcontractors) and labor to or for the Station, the Fuel
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or the Transmi.aion Facilities created by the acts or omissions of (i) any Owner other than Brazos, (ii) all parties owning interests in
)
Comanche Peck at the time involved acting collectively, or (iii) the l
l Project Manager cr TU '?lectric or both.
I (bb) "Projec t Manager" means TU Electric designated and acting as such in i
accordance (or purportedly in accordance) with the terms of the Joiat
, Ownersato Agreement.
(ce) "PUC" means the Public Utility Commission of Texas, or ;ts successor.
I (dd) "PUC Affirmative Date" shall have the meaning set out in Sectior. 5.3(c)
I i hereof.
(ee) " Purchased Assets" means the aggregate of all that part of Comanche Peak (as Comanche Pc >< exists and is constituted on the Closing Dcte) owned by th azos or to whici: Brazos has a right, title or interest, including without l limitation the following, to the extent of Brazos' ownership interest therein:
l all real property and rights appurtenent thereto, and improvements thereon and fixtares thereto that portion of Brazos' Certificate of Convenience and Necessity heretofore issued by the PUC relative to Brazos' ownership interest I
in the Station and the Dansmission Facilities; all personal property and rights I
j thereb, tangible or intangible, incluoing all machinery, equipment, furniture j and vehicles; all rigt.ts and entitlements to electric power and energy that J
g may herestter be generated at Comanche Pec.k; all rights or claims with l respect to charges, payments or prepaid items; all warranties and claims and proceeds therefrom; all rights under all agreements, permits, licenses, 1
l franchises and authorkations; all intellectual property rights; ett computer f hardwa:e and software and related rights and interestJ; all books and records in the possession of the Project Manager cc otherwise owned by all of the 1
l Owners in combination; the Fuel; the Transmission Pacilitjes; and all other prcperties and assets peataining to Comanche Peak; but excluding, however, any Subject Claim of Brazos arising out of or under this Agreement or the l:.__..____.
. _ _ , _ _ .x _ -
Jther cecuments delivered to Brazos pursuant hereto; and exclucind 811 docaments and other written material relating to Comanche Peak in the custody, control or possession of Brazos, and its agents, attorneys and a
l
! consultants, except all such documents and other written material pertaining l I
l to or invalting the Pending Litigation other than copies of those which have i
been filedin the Pending Litigation or at the NRC or which ara privileged or l
l w hich mey be the vork product or t e proriact of Brazos' attorneys' o-consultants' joiht -iciense activities or correspondence to or from TU Electric I
or ;ts attorneys or other correspondence or documents copies of which have a
bee.i prw;ded to TU Electric or its attorneys.
(ff) "REA" means the Rural Electrification Administrutivr. of the United Statec
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Department of Agriculture, or its successor.
(gg) '3igning Payment" means the aggregato of (i) Fif teen Million, Three liundrec Twenty Two thousand, Five llundred Eighty One Dulars ($15,322,581), plus
'I i (ii) the amount of principal paid by Brazos with respect to the brazos k
Cornanche Peak Debt during the period from (and including) March 1,1988 until the date hereof, plus (iii) an incremental amount calculated at a rate equal to nine and one-half percent (91/2%) per annum on said principal outstandins from time to time from (and includiAg) March 1,1988 until the J
l date hereof.
) (r.5) " Site" means approximately 7,669 acres owned (in fee or other estate or interent) by the Owners, as tenants in common, and located in liood and J
l Somervell Counties, Texas, and more particularly described on the Schedule attached hereto.
j (ii) "Special Warranty Deed with Vendor's Lien and Bill of Sale" means the form l of Special We.rranty Deed with Vendor's Lien and Bill of Sale attached hereto es Erhibit F.
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(jj) " Station" means the Site, all improvements thereon (including Squaw Creek
.l Lake and Park) and all fixtures and attachments thereto, as well as (1) all personal property thereon and associated therewith or related thereto and owned by the Owners, and (ii) all rights (tangible or intangible), and sll 1
easements and other interests of any nature associated therewith or relatec ;
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thereto and owned by the Owners, excluding, however, the Fuel and
)
Transmission Facilities.
I (kk) " Subject Claims" means any and all alaims, actions, controversies. causes of I
action, disputes, demands and complaints of whatsoever kind or na'ure and l
whether known or unknown.
4 (11) " Tex-La" means Tex-La Electric Cooperative of Texas, Inc.
(mm) "TNIP A" means the Texas 31unicipal Power Agency.
' ,an) " Total Payment" means the amount to be paid by TU Electric to Brazos I
nereunder (n connection with the purchase of the Purchased Asseis and in l
I connection with the hettlement of the Pending Litigation; which shall De the total of (i) the Signing Payment, (ii) the Closing Payment and (iii) the Deferred Payment, as described in Section 1.5 hereof.
1 (oo) " Transmission Facilities" means the Comanche Peak - DeCordova 345 kV electrical transmission Une approximately 14.4 miles in length, and
, associated rights-of-way, equipment, fixtures and personal property, t
. (pp) "TUC" means Texas Utilities Company, a Texas corporation, which is the i
f corporate parent of TU Electric.
I RECITALS I
A. TU Electric is an investor-owned utility which, pursuant to a statutory merger that J
j occurred on January 1,1984, sue.eeded to all the rights, title and interests and I
g assumed and became liable for all obligations of Dallas Power & Light Company, l Texas Electric Service Company, Texas Power & Light Company, and Texas Utilities Generating Company under the Joint Ownership Agreement, and is engaged in the 1
generation, purchase, transmisalon, distribution and sale of electric energy within l
j the State of Texas.
B. Brazos is a Texas non-profit cooperative corporation, established pursuant to Tex.
j Rev. Civ. Stat. Ann. art.15286, which is engaged in the generation, transmission and sale of electric energy within the State of Texas.
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' i c, Brazos and TU Electric have previously entered into the Jou.t Own e. ship Agreement, j
- p. Brazos and TU Llectric each own an undivided interest in Comanche Peak, which in l
} the case of Brazos consists of such interest in the Station and Fuel (stated to be an I
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undivided 3.8% interest in the conveyance involved) that was conveyed and l j transferred to Brazos by TU Electric (or its predecessors) and such interest in the i
Transmission Facilities (stated to be an undivided 32.2% interest in the relevant i
instrument but is subject to adjustment) that was conveyed and transferred or !
agreed to be conveyed and transferred to Brazos by rU Electric (or its I
- predecessors).
F Brazos and TU Electric have bren involved in the Pending Litigation and would like to settle their disputes involved in the Pending Litigation and otherwise relating to Comanche Peak and Brazos would like to sell its interest in Comanche Peak and be i relieved of its obligations under the Joint Ownership Agreement and TU Electric would like to acquire such interest and is willing to relieve Brazos of such i obligations under the Joint Ownersnip Agreement.
1 4 F. B.a2os and TU Electric have concluded this Agreement in order to provide for the I
t sale by Brazos and the purchase by TU Electrie of all of Brazos' right, title and h interest in Comanche Peak and the settlement of all SueW', ClaLms between Brazos I
and TU Electric and between Brazos and TU Electric's affiliates pertaining to Comanche Peak, the Pending Litigation, and all matters in connection therewith, I upon and subject to the terms and conditions set out herein.
l ARTICLE I
! 1 j SALE AND PURCH ASE l
I l
l 1.1 Propertlet and Assets Sold and Purchased. Subject to the terms and j conditions of thir Agraement, Brazos hereby agrees to sell, transfer, assign, convey and deliver to TU E4ectrie and TU Electric herehy agrees to purchase from Drazos, and pay
,j Brazos for, the Purchased Assets in the manner and at the times hereinafter described.
1.2 Closing. De Closing will occur at 10:00 a.m., Dallas, Texas time, on the Closing Date. De Closing wlU be held at the offices of Worsham, Forsythe, Sampels &
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gooldridge, 2001 Bryan Street, Suite 3200, Dallas, Dallas County, Texas or at such other address as the parties may agree. The fact that the Closing is or was intended to be held in Dallas County shall not be used by TU Electric as evidence for venue purpcses in any proceeding related to a Subject Claim arising out of or under this Agreement.
1.3 Transfer of Purchased Assets. At the Closing, Bratos will sell, convey, assign l
I and transfer to TU Electric, and TU Electrie will purchase, under and pursuant to a form of the Special Warranty Deed with Vendor's Lien and Bill of Sale, the Purchased Assets.
I 1.4 Method of Payment. All payments made by TU Electric to Brazos under this
). Agreement shall be made by wire transfer of immediately available funds through the l
l federal reserve system to Brazos' bank designated in writing to TU Electric. If the due -
date of any payment under this Agreement falls on a day that is not a Business Day, such payment shall be paid on the first Busaess Day following the date on which such paymer't I
is due.
l 1.5 Payment of Total Payment. TU Electric shall pay to Brazos the Total i
Payment as follows:
i (a) Payment Upon Signing. On the date of execution of this Agreement, TU Electric will pay to Brazos the Signing Payment. The Signing Payment f shall be held in a separately segregated fund by Brazos until Closing, but h Brazos may invest same in its sole discretion. The Signing Payment will be I
q subject to refund prior to the Closing as provided in Article X of this Agreem ent. Upon the Closing, the Signing Payment will be deemed a part of I the Tota. Payment.
1 (b) Payment at the Closing. At the Closing, TU Electric will pay to Brazos the Closing Payment.
I Deferred Payment. At the Closing, TU Electric will execute and deliver to (c) l Brazos in payment of the remaining portion of the purchase price the Note, in an original principal amount equal to the total unpaid principal amount of the I
Brazos Comanche Peak Debt at the Closing Date, the payment of which will
]
be secured by the Mortgage given as a purchase money mortgage and the vendors lien provided for in the Special Warranty Deed with Vendors Lien and
Bill of Sale, it being understood and agreed that Brazos will contemporaneously therewith assign and transfer the Note and the 51ortgage together with the vendor lien retained in the Special Warranty Deed with Vendors Lien and Bill of Sale to the REA pursuant to and in accordance with j the Assignment Agreement as a mechanism for payment of tha Brazoi
! Comanche Peak Debt. The Note shall bear interest at the rate of nine and one-half percent (9-1/2%) per annum on the principal balance unpaid from time to time for the period described therein and at the rate of eight and
) one-half percent (8-1/29b) per annum on the principal balance unpaid from I
l time to time for the remainder of the term thereof, which term shall be the same as the remaining term of the Brazos Comanche Peak Debt at the Closing Date.
AR11CLE D l REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF BRAZOS I
Drazos represents and warrants to, and agrees with, TV Electric as follows:
l
\) 2.1 Legal Status. Brazos 14 a non-profit electric cooperative corporation, duly
\ organized, validly existing and in good standing under the laws of the State of Texas, with j
i I full, requisite corporate power and authority to carry on its twsiness as now conducted and I to own, sell and transfer the Purchased Assets as provided for in this Agreement.
I
]
2.2 Authority for Agreement. Brazos has full, requisite corporate power and authority to execute, deliver and perforin this Agreement, the Spacial Warranty Deed l with Vendor's Lien and Bill of Sale and each other agreement and instrument to be I
executed and delivered in connection with this Agreement, and to carry out its obtigations i
hereunder and thereunder. Brazos has full, requisito corporate power and authority to act I
for itself and the other persons or entitles, private and governmental, acting by, through and under Brazos, in connection with this Agreement, the Special Warranty Deed with Vendor's Lien and Bill of Sale and the other agreements and instruments to be executed and delivered by it pursuant hereto. This Agreement has been, and at the time of the l Closing, the Special Warranty Deed with Vendor 4 Lien and Bill of Sale and such other 1 agreements and instruments af, are delivered by Brazos will have been, duly authorized, l
l i
_m
.m exrcuted and delivered by Drazos ano this Agreer,ient does, and at the time of Closing, J
the special Warranty Deed with Vendor's Lien and Bill of Sale and such other agreements and instruments as are delivered by Brazos will, constitute valid and legally Dinding l obligations of Brazos and the other persons or entitles, private and governmental, acting l by, through and under Brazos, enforceable against such parties in accordance with their j respective terms. Except for the approvals set out in Section 2.3, the execution, delivery and performance of this Agreement, the Special Warranty Deed with Vendor's Lien and
)
Bill of Sale and such other agreements and instruments will not conflict with or result in l any violation of, or constitute a default under, (i) the Articles of 'acorporation or by-laws of Brazos, or (ii) any material provision of any mortgage, indenture, lease, agreement or
, othcc instrument, including any evidence of indebtedness, including without limitation the Brazos Comanche Peak Debt, to which Brazos, or any of Brazos' properties or assets, is I
subject or a party, or (iii) any permit, concession, grant, franchise, license, judgment, l order, decree, statute, law, ordinance, rule or regulation applicable to Brazos or any of its property, including the Purchased Assets; or with the passage of time or the giving of
'k notice or the taking of any action by any third party, have any of the effects desc..ibed
[
herein, except no representation is made with respect to any instrument, ;.er rn i t, I
concession, grant, franchise or license (and the laws and regulations with respect thereto)
I made or obtained by TU Electric or the Project Manager on behalf of the Owners.
.J l 2.3 Approvals. Brazos has obtained all necessary consents, approvals, orders E d I
authorizations of, and made all necessary registrations, declarations and filings with, each governmental authority or other entity required in connection with the execution, delivery, and performance by Brazos of this Agreement, the Special Warranty Deed with Vendor's Lien and Bill of Sale and the other agreements and instruments to be executed
]I J and delivered by Brazos hereunder, except (i) for any such required to be obtained by the Project Manager, (ii) with respect to the rights of first refusal referred to in Section 5.3(b) hereof,(iii) for any such required to be effected from the PUC and NRC referenced in Sections 5.3(c) and (d) hereof, and (iv) those that must be obtained from the REA, the CFC and the FFB referenced in Section 5.3(e). No other filing or registration with, and no
__. m_ . _ . . . . _ _ __ -- -- -- -
other consent, approvel, euthorization, permit, certificate or order of any court, tribunst or governmental agency or authority, Federal, state, county or municipal, or any other entity is or will be required by any applicable statute or other law or by ar.1 - Jg m en t, j erder or decree or any rule or regulation of any court, tribunal or governmental agency or l
authority, Fedei state, county or municipal, or agreement with any other entity to permit Brazos to execute, deliver and perform this Agreement, the Special Warranty Deed I
with Vendor's Lien and Bill of Sale or any agreement or instrument required hereby to be executed and delivered by si at the Closing.
2.4 Liabilities. There are no obligations or liabilities or other obligations or
) other evidence of indebtedness, cf Brazos, including without limitation the Brazos t
Comanche Peak Debt, whether accrued, absolut e, con tingent or otherwise, which I
! TU Electric may become liable for or is assuming as a result of the purchase of assets f provided for herein or which may apply with respect to the Purchased Assets, except such as currently exist with respect to Comanche Peak and which were entered into or incurred 1 by (i) all parties owning interests Comanche Peak at the time involved acting
} collectively, or (ii) the Project Manager or TU Electric or both. Brazos has no debt for j financing its interest in Comar che Peak except for the Brazos Comanche Peak Debt and
) all mortgages, other tiens and security interests for all debt which applies to Brazos' interest in Comanche Peak will be released or terminated prior to or at the Closing.1he I
documentation previously delivered by Brazos to TU Electric with regard to the Brazos j Comanche Peak Debt comprises all relevant information with respect thereto and omits I
no information which would be material to an understanding thereof. The amounts specified by Brazos to TU Electric as the amounts paid or payable by Drazos with respect J to the Brazos Comanche Peak Debt during the periods of March 1,1988 until the date
}
hereof and frorr. the date hereof until the Closing Date and the amount specified by Brazos to TU Electric as the unpaid principal balance of the Ikazos Comanche Peak Debt at the Closing Date and the payment and other terms of such debt at such time are and will be at the Closing Date true and correct in all respects.
l 2.5 Taxes. Apart from all taxes and similar charges owed by the Projec t Manager on behalf of all the Owners collectively, Brazos owes no taxes or similar charges or impositiot 3 with respect, or the nonpayment of which would apply, to, or result in any l lien or other encumbrance upon, the Purchased Assets to any taxing authority. No tax charge, tax expense or tax claim against the Purchased Assets orijrinating with or caused
} by the action or inaction of Brazos individually or in combination with any of the Owners other than TU Electric or the Project Manager will attach to or affect any portion of the
)
Purchased Assets conveyed at the Closing.
~
l 2.6 Title to Real Property. Brazo9 has such title in and to the Site and all real
) property interests therein and the real property interests included in the Transmission Facilities as was conveyed to Brazos by or through TU Electric or by TU Electric's t
predecassors-in-title. Except in combination with, or in conjunction with action by, all of the Owners of the Site and the real property interests included in the Transmission i
Facilities acting collectively either direc*.ly or through the Project Manager, Brazos has not encumbered the Site or any of the real property interests therein or the real property interests included in the Transmission Facilities with any mortgages, tiens, claims, charges, security interests or encumbrances, except in connection with the Brazos f
' Comanche Peak Debt and other Brazos debt, all of which liens and security interests pertaining to the Site or any of the real property interests therein or the real property J
l interests included in the Transmission Facilities will be released prior to or at the Closing.
J g
Brazos, separately or in combination with any or all of the Owners other than l TU Electric or the Project Manager, has not taken any action which would result in the structures, improvements and fixtures on swh real property constituting a part of the Site 1
not being in conformity with all applicable Federal, state and local zoning, building, l
f health, safety and environinental laws, ordinances, rules or regulations. No notice from any governmental body, which has not otherwise been disclosed to TU Electric or the Project Manager in writing, has been served upon Brazos claiming any violation of any
,] such law, ordinance, rule oc regulation or requiring any work, repairs, constrt.;ction, alterations or installation on or in connection with such real property or the buildings, I
-..h - - - - - _ _ . _ _ - - _ - _ _ _.m___.___m. . _ _ _ _ _ _ _ _ _ - _ _ . . . _ . - _ _ _ _ _ _ . _ _ . _ _ _ _ _ - - _ _ _
structures, fixtures or improvements thereon, nor to Brazos' knowledge has any such violation, which has not otherwise been disclosed to TU Electric or the Project Manager in writing, been claimed or action with respect thereto threatened.
j 2.7 M1e to Personal Property. Drazos has the title to such interest as was conveyed to Brazos by or through TU Electric or TU Electric's predecessor-in-title in all g of the equipment, vehicles, fixtures, machinery *a d other items of personal property, tangible and intangible, to the extent the same are parts cf the Purchased Assets to be
) conveyed at the Closing. Except in combination or in conjunction with action by I
l TU Electric, the Project Manager or all of the Owners acting collectively, and except in connection with the Brazos Comanche Peak Debt and other Brazos debt, the security I
interests in connection with which pertaining to the equipm en t, vehicles, fix t ures, machinery and other items of personal property, tangible and intangible, which are part of I
the Purchased Assets will be released prior to or at the Closing, Brazos has not, apart i
from any personal property and similar charges owed by the Project Ma. anger on behalf of u
g all of the Owners collectively, encumbered the equipment, vehicles, fixtures, machinery b-snd other items of personal property, tangible and intangible, which are part of the k
l Purchased A sse ts, with any mor tgages, Uens, claims, charges, security interests, I
encumbrances or other restrictions or limitatioris, and assuming payment by TU Electric l
' .g of any and all transfer taxes that may beenme due on account of the transfer of the l Purchased Assets contemplated by this Agreement and except for the liens for ad valorem I
taxes not ydt due and payable.
1 2.8 Litigation. hre are no Subject Claims, suits or proceedings, administrative l or otherwise, pending (i.e. Brazos having been served with process with respect thereto or I
otherwise having knowledge thereof) against Brazos or, to the best of Brazos' knowledge, 1
] threatened against Bri.zos affecting the Purchased Assets, whether su::h be at law, in equity or in arbitration, or before or by any governmental des,artment, commission, board, bureau, agency or instrumentality which, if adversely determined against Brazos, would J affect Brazos' ability to perform its obligations under this Agreement, except the Pending l Litigation, the licensing proceedings to which TU Electric is a party, the Pending flouston l l
Suit and the Pending Somervell County Suit; and Brazos, separately and apart from the Owners in combination or in conjunction with action by m.1 of the Owners acting collectively either directly or through the Project Manager (but without acknowledgment l that such exists with reference to the Owners), is not in default with respect to any order, writ, injunction or decree of any court, arbitrator or governmental department, l commissior, board. Dureau, egency or instrumentality affecting the Purchased Assets.
l 2.9 Con tr ac ts. There is not in effect any executory contract, agreement, order or commitment to which Brazos is subject or a party, and to which TU Electric or the I
l project Mnager is not a party, which would bind TU Electric after the Closing with l respect to the Purchased Assets and which would adversely affect the value of the I
Purchased Assets after the Closing, l
f 2.10 Exclusion of Implied Warranties. THE PURCH ASED ASSETS ARE BEING SOLD " AS-IS". BRAZOS M A K ES NO W ARR A NTIES CONCERNING THE I
MERCHANTABILITY OR CONDITION OF THE PURCH ASED ASSETS OR OF THEIR FITNESS FOR ANY PARTICULAR PURPOSE. EXCEPT TO THE EXTENT OTHERWISE I
EXPRESSLY SET FORTH HEREIN.
2.11 Accuracy of Representations and Warranties. All representations and I
warranties of Brazos contained herein are, and will be at the time of the Closing, l
accurate and complete in all material respects and all documents delivered by Brazos to l
l TU Electric incident hereto are, and will be at such time, valid and authentic in all I
respects.
g ARTICLE E REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF TU ELECTRIC l TU Electric represents and warrants to, and agrees with, Brazos as follows:
1.1 Corporate Status. TU Electric Is a corporation duly organized, valldly exir .g and in gooo standing under the laws of the State of Texas with full, rnuisite corp <. Ite power and authority to carry on its business as now conducted and to own, buy and accept the transfer of the Purchased Assets as provided for in this Agreement.
i l
3.2 Authority for Agreement. TU Electric has full, requisite corporate power and authority to execute, c aver and perform this Agreement, to receive delivery of the Special Warranty Deed with Vendor's Lien and Bill of Sale, and t'. execute, deliver and l perform the Note, the Mortgage and each other agreement and instrument to be executed and delivered by TU Electric in connection with this Agreement, and to carry out its I obligations hereunder and thereunder. TU Electric has full, requisite corporate power and authority to act for itself and the other persons or entities, private and governmental,
, acting by, through and under TU Electric in connection with this Agreement, the Note, I the Mortgage and the other agreements and instruments to be executed and delivered by 1
I it pursuant hereto. This Agree. ment has been, and at the Closing the Note, the Mortgage and such other agreements and instruments will have been, duly authorized, executed and delivered by TU Electric, and this Agreement constitutes, and at the Closing the Note, I
I the Mortgage and such other agreements and instruments will constitute, valid and legally einding obligations of TU Electric en forceable against it in accordance with their
\ respective terms. The execution, delivery and performance of this AgrG. .r.t, the Note, I
the Mortgage and such other agreements and instruments will not conflict with or result f in any violation of, or constitute a default under, (i) the Articles of Incorporatioi. or by-
- laws of TU Electric, or (ii) any material provision of any mortgage, indenture, lease.
8 J agreement or other instrument to which TU Electric is subject or a party, including any l bonds or other cbligation or other evidence of indebtedne a, or (iii) any permit, i
j concession, grant, franchise, license, judgment, order, decree, statute, law, ordinance, l
l rule or regulation applicable to TU Electric or any of its property, including Comanche Peak; or with the passage of time or the giving of notice or the taking of any action by t I l ] any third party, have any of the effects described herein.
) 3.3 _Aporovals. TU Eleetric has obtrJned all necesaary consents, approvals, orders and authorizations of, and has made all necessary registrations, declarations and filings l with, each governmental authority or other entity required in connection with the l
execution, delivery, and performance by TU Electric of this Agreement, the Note, the
s.lortgage and the other agreements and instruments to be executed and delivered by TU Electric hereunder, except (i) with respect to the rights of first refusal referred to in Section 5.3(b) and (ii) for the filings with the PUC and NRC referenced in Sections 5.3(c)
} and (d) of this Agreement. No other filing or registration with, and no other consent,
} spproval, authorization, permit, certificate or order of any co rt, tribunal or governmental agency or authority, Federal, state, county or municipal, or other entity is I
or will be required by any applicable statute or cther law or by any judgment, order or
- decree or any rule or regulation of any court, tribunal or governmental agency or I
l authority, Federal, state, county or municipal, or agreement with any other entity to f permit TU Electric to execute, deliver or perform this Agree ment, the Note, the Mortgage or any agreement or instrument required hereby to be executed and delivered by
.I l it at the Closing, except as referred to above.
3.4 Authority for TUC Guaranty. TUC has full, requisite corporate power and authority to execute, deliver and perform the Guaranty and to carry out its obligations I thereunder. At the Closing, the Guaranty will have been duly authorized, executed and 1
[ delivered by TUC, and will constitute the valid and legally binding obligation of TUC enforceable against it in accordance with its terms. The execution, delivery and I performance of the Guaranty will not conflict with or result in any violation of, or l
constitute a default under, (1) the Articles of Incorporation or by-laws of TUC, or (ii) any l
l material provision of any mortgage, indenture, lease, agreement or other instrument to l
I which TUC is suoject or a party, or (iii) any permit, concession, grant, franchise, license, I
l ludgment, order, decree, statute, law, ordinance, rule or regulation applicable to TUC ot-
. ,y of its property; or with the passage of time or the giving of notice or the taking of I
any action by any third party, have any of the effects described herein.
l 3.5 Accuracy of Representations and Warranties. All representations and warranties of TU Electric contained herein are, and will be at the time of the Closing, I
accurate and complete in all material respects and all documents delivered by TU Electric to Brazos incident hereto are, and will be at such time, valid and authentic in all respects.
i l
-= .
7
_4-ARTICLE IV PRE-CLOSING OBLIG ATIONS Brazos and TU Electric, as appropriate, covenant that between the date of this Agreement and the Closing Date:
4.1 Representations, Warranties and Covenants. Brazos shall not take any action which would result in the representations and warranties sei forth in Article !! hereof being inaccurate, incorrect or incomplete to the extent applicable as of the Closing Date i
and Brazos shall take all such action as may be necessary to insure that all covenants and agreements of Brazos set forth in this Agreement which are required to be performed by it at or prior to the Closing Date will have been so performed.
4 TU Electric shall not take any action which would result in the representations and warranties set forth in Article til hereof being inaccurate, incorrect or incomplete to the extent applicable as of the Closing Date and TU Electric shall take all such action as may be necessary to insure that all covenants an_ agreements of TU Electric set forth in this Agreement which are required to be performed by it at or prior to the Closing Date will have been so performed.
Aba te m ent of Participation in Pending Litigation. For purposes of this l
4.2 Section 4.2, the term "TU Electric" shall include not only TU Electric but TUC and its subsidiaries, Texas Utilities Mining Company and Texas Utilities Services Inc., all of which are parties to the Pending Litigation.
+
i Immediately after the execution hereof and to the fullest extent that would not violate court orders in effeat in the Pending Dallas Suit, Brazos shall abate all of its voluntary activities in connection with the Pending Litigation, including cessation of the
- j furnishing of any assistance, financial or otherwise, to any party to such litigation and the d
retention and furnishing of adtfee or direction to any attorneys of or consultants to any
'k party to such litigation, and any other activity adverse to TU Electric pertaining thereto.
I )
.I In such regard, Brazos agrees that it will immediately direct any attorneys and consultants retained solely by it in connection with the Pending Litigation to abate their 1
l
a work, and, consistent with any agreements Brazos may have with TMPA and/or Tex-IA and consistent with any agreements Brazos may have with consultants hired jointly with l TMP A and/or Tex-La (all of which agreements are terminable and will be abated by
) Brazos immediately after the date hereof and terminated by Brazos upon the Closing),
Brazos will as soon as possible withdraw its authorization to any other attorney or i consultant employed jointly by it and any of the other parties to the Pending Litigation to 1
incur fees or expenses chargeable to Brazos. Specifically with regard to the Pending l Litigation, Brazos (and TU Electric to the extent specified herein) agrees to take the following actions:
(a) Brazos agrees to the cotinued abatement of the Pending Austin Suitn and 1 agrees not to revive such actions during the pendency of this Agreement and
, to take any action necessary to oppose such revival as to Brazos. In the i
, event the Pending Dallas Suit is nonsuited in accordance with paragraphs (d) l and (e) hereof, Brazos shall not claim that such nonsuit entitles e .cos to revive the Pending Austin Suits; l (b) Brazos and TU Electric agree to file within three (3) days af ter the date hereof and diligently pursue a joint motion to sever each of their respective
{
Subject Claims against each other in the Pending Dallas Suit;
) (c) Brazos and TU Electric agree as part of the joint motion required by paragraph (b) hereof to request jointly that the Court in the Pending Dallas 1
] Suit approve a standstill agreement with respect to the severed Subject
! Claims whereby the current scheduling order is withdrawn with respect to the I
severed Subject Claims and no new scheduling order or trial setting is made, and no discovery or any other steps to advance the litigation between Brazos q and TU Electric shall be tkken unless this Agreement is terminated or the transactions contemplated hereunder to be consummated prior thereto are J not consummated on or prior to the Closing Date, provided, however, any I
', costs incurred and assessed against Brazos by the Court in the Pending Dallas
=
4 Suit af ter approval of such standstill agreement shall be paid by TU Electric until such time as this Agreement is ter minated or the transactions j contemplated hereunder to be consum mated prior thereto are not l consummated on or prior to the Closing Date; (d) If for any reason the Court in the Pending Dallas Suit refuses to grant the severance or refuses to approve the standstill agreement referenced above
' prior to the end of three (3) weeks after the date hereof, Brazos and I
g TU Electric agree to immediately nonsuit each of their respective Subject Claims against each other filed in the Pending Dallas Suit on such date which f
I shall be three (3) weeks after the date hereof (or the next day the Court is f
open for business if such date is a holiday), provided that, as specified in
! Section 9.7 of this Agreement, TU Electric shall have the right to retain 6
Brazos as a party to the Pending Dallas Suit bt.t only for the purposes l specified in said Section 9.7; k (e) If it is necessary for Brazos and TU Electric to nonsult the Subject Claims I filed against each other in the Pending Dallas Suit, Brazos and TU Electric
?
agree that such nonsults will not operate to prejudice either party's position l
with respect to the Subject Cisims they have made and legal positions they g
have taken in the Pending Litigation. In the event this Agreement is l
I terminated or the transactions contemplatec hereunder to be consummated l
prior thereto are not consummated on or prior to the Closing Date, Brazos i
(
L and TU Electric agree that their Subject Claims in the Pending Dallas Suit i
shall be refiled in Dallas County in the New IJtwsuit in the 14th Judicial
[
District Court (and if such suit is not assigned laltlajly to such Court, Scazos I and TU Electric agree to thereafter file a Joint Motion to transfer such suit l
to such Court), within five (5) Business Days after such termination of this Agreement or failure to close hereunder on the Closing Date, with TU Electric as the plaintiff and Brazos as defendant and counter-plaintiff, l
.. ._ - - ~ _ _ . - - - - - - - - - -.-
8 and that Brszos will not oppose venue in Dallas County, Texas except to the extent that Brazos could on the date of this Agreement contest venue in 6 Dallas County, Texas in the Pending Dallas Sult. In the event this Agreement is terminated or the transactions contemplated hereunder to be consummated f
prior thereto are not consummated on or prior to the Closing Date, Brazos will retain, without limitation, any and all rights Brazos may now have to l
f appeal the order of the Court in the Pending Dallas Suit dated September 19, I
g 1986. For all purposes, including, without limitation, (i) any statute of l limitations claim, (ii) any claim concerning S16.069 of the Texas Civil Practice and Remedies Code, and (iii) any claim asserted in the Pending i
Austin Suits (including .without limitation, any Subject Claim concerning which suit was first filed), the New Lawsuit will be considered as having been filed by TU Electric on May 29, 1986, and Brazos' counterclaim in the New Lawsuit will be considered as having been filed by Brazos on June 20, 1986.
k All discovery, including documents produced and depositions taken, which had i
i been conducted in the Pending Dallas Suit up to the execution of this f Agreement, shall be for all purposes considered as having been taken in the i
New Lawsuit, and all orders issued by the Court in the Pending Dhllas Suit ur I
to the execution of this Agreement (except the scheduling order) shall have f
I the same force and effect as if they had been issued in the New Lawsuit; I
(f) No efforts msde or cooperation given by Brazos' officers, employees, agents, I, consultants, experts or attorneys (including, without limitation, Joseph Robert Riley, Spiegel & McDiarmid and Locke Purnell Rain Harrell) pursuant i
i to or under any provision of this Agreement shall create any conflict of interest which would . prevent any such employees, agents, consultants or attorneys from participating adversely to TU Electric in any legal proceeding brought by TU Electric against Brazos and/or by Brazos against TU Electric should this Agreement be terminated or should the transac11ons eontemplated under this Agreement to be consummated prior thereto not be consummated on or before the Closing Date. TU Electric hereby waives any such conflict of interest which might otherwira exist because of any such effort or cooperation; and l (g) If it is necessary to nonsuit the current Subject Claims, as set forth in i
paragraphs (d) and (e) above, then in such event upon or at any time af ter the f Closing, if TU Electric requests, Brazos and TU Electric agree that their I
Subject Claims in the Pending Dallas Suit shall be refiled in the New Lawsuit 1
l la Dallas County and that the New Lawsuit and all such Subject Claims shall then immediately be dismissed with prejudice.
f Agreement to Obtain Approvals. Brazos shall use all reasonable efforts to 4.3 obtain with respect to Brazos and TU Electric shall use all reasonable efforts to obtain
' with respect to TU Electric all necessary consents, approvals, authorizations, permits, I
certificates or orders of any laurt, tribunal or governmental agency or authority, Federal,
{
1 state, county or municipal, or other entity which are required by any applicable statute or other law or by any judgment, order or decree or any rule or regulation of any court, I tribunal or governmental agency or authority, Federal, state, county or municipal, or any k agreement or other requirement to permit each of them, respectively, to execute, deliver l.
l j or perform this Agreement and any agreement or instrument required hereby to be
( executed and delivered by either of them at the Closing.
I ARTICLE V
,CONDFTIONS TO OBLIG ATIONS TO CLO6E
! f 5.1 Conditions to Obligation of Brazos to Close. The obligation of Brazos to i
consummate and close the transactions contemplated by this Agreement at the Closing is subject to the satisfaction of each of the following conditions at or prior to the Closing:
(a) Representations and Warranties. The representations and warranties of l
TU Electric contained in this Agreement shall have been true and correct on l ;
j and as of the date hereof and shall be true and correct on and as of the l
Closing Date in all material respects as though such representations and
werranties hId becn c,ade on and as of the Closing Date, and TU Electric shall have dalivered to Brazos a certificate, dated as of the Closing Date, of its Chairman of the Board, a Division President or a Vice President to the foregoing effect; (b) C,ompliance With Arreement. TU Electric shall have fully performed and complied with all of the covenants, agreements and conditions to be performed or compljed with by it at or prior to the Closing (including without l limitation its assumption obligations with respect to the Joint Ownership I
1 Agreement), and TU Electric shall have delivered to Brazos a certificate, l dated as of the Closing Date, of its Chairman of the Board, a Division k
President or a Vice President to the foregoing effect; (c) Receipt of Paym en t.
TU Electric shall have delivered to Brazos tne l
payments referenced in paragraphs (a) and (b) of Section 1.5 hereof; I
(d)
Receipt of Closing Documents. Brazos shall have received the fully executed Closing documents described in Article VII hereof to be delivered at the
{ Closing; and (e)
Consent to Assignment Agreement. De REA shall have entered into the f Consent to Assignment Agreement attached to the Assignment Agreement, l
thereby accepting assignment of the Note as a mechanism for paying the 1
i k
Brazos Comanche Peak Debt and assignment of the Mortgage and the vendors i
[
lien contained in the Special Warranty Deed with Vendocs Lien and Bill of i Sale as security for the payment of the Note.
l [ (f)
( ! Receipt of LR.S. Determination. Brazos shall have received an acceptable Internal Revenue Service determinat!ca or Letter Ruling that no payments to be made under this Agreement and the Note will, when added to other f
j nonmember revenues of Brazos, adversely affect Brazos' tax-exempt status under Section 501(cX12) of the aternal Revenue Code of 1986.
5.2 Conditions to Obligation of TU Electric to Close. The obligation of TU Electric to consummate the transactio'ta contemplated by this Agreement at the Closing is subject to the satisfaction of each of the following conditions at or prior to the Closing:
ta) Representations end Warran ties. The representations and warranties of Brazos contained in this Agreement shall have been true and correct on and as of the date hereof and shall be true and correct on and as of the Closing Date in all material respects as though such representations and warranties p had been made on snd as of the Closing Date, and Brazos shall have delivered l to TU Electric a certificate, dated as of the Closing Date, of its President or i
g Executive Vice President and General Manager to the foregoing effect; f (b) Compliance with Agreement. Brazos shall have fully performed and complied I
with all of the covenants, agreements and conditions to be performed or l complied with by it at or prior to the Closing, and Brazos shall have delivered to TU Electric a certificate, dated as of the Closing Date, of its President or l
Executive Vice President and General Manager to the foregoing effect; (c) Delivery of Pending Litigation Documentation. At the Closing, Brazos shall have delivered to TU Electric the originals and all copies of all documents and other written material in its custody, control or possession (including
.l. without limitation those held by Brazos' agents, attorneys and consultants)
I i pertaining to or involving the Pending Litigation, other than copies of those I which are filed in the Pending Litigation or at the NRC or which are privileged or which may be the work product or the product of Brazos' l
- attorney's or consultant's joint defense activities, if any, prepared in I connection with the Pending Litigation or certespondence to or from TU Electric or its attorneys or other corresponcence or documents copies of which have been provided to TU Electric or its attorneys. Such docume.nts or other written material which are essential to the conduct of Brazos' on-going business activities may ba retained by Brazos except for one copy which will l l have been delivered to TU Electric prier to the Closing. As concerns privileged oc joint defense documents or written material, Brazos shall, to I i
j the full extent permitted by law, exercise such privileges and claims of confidentiality = may be available to prevent disclosure thereof to any person or entity, private or governmental; and c
(c) Receipt of Closing Documents. TU Electric shall have received the Closing l documents described in Article Vi hereof to be delivered at the Closing.
3.3 Conditions to Ooligation of Both Parties to Close. The obligation of the parties to consummate the transactions contemplated by this Agreement at the Closing Date is subject to the satidacticn of each of the following conditions at or prior to the l
Closing Date:
(a) No Adverse Proceeding. There shall not be pending any suit, action or other l proceeding by any person before any court or arbitrator or any governmental I
espartment, commission, board, bureau, agency or instrumentality in which it l is sought to restrain or prohibit any of the (ransactions contemplated by this (-
Agreement.
(b) Waiver of Right of First Refusal Immediately upon execution of this Agreem ent, Brazos will notify TMPA and Tex-la of the execut%n of this i Agreement by means of the notice attached hereto as Exhibit G. By the Closing Date, TMPA and Tex-La will have executed an irrevocable walver or
{ other sufficient relinquishment of any rights of first rsfusal or consent to f sale that TMPA and Tex-La may have under the Joint Ownership Agreement (it being agreed that failure to exercise such right in accordance with the terms of the Joint Ownership Agreement by TMPA or Tex-la in response to l -
the notice from Brazos within the time period specified in the Joint
,I l Ownership Agreement will constitute sufficient relinquishment of the rights of first refusal of TMPA or Tex-La as the case may be) with respect to any transaction provided for herein or such rights shall have been validly exercised, in whole or in part, by either or both of TMPA and Tex-La and the j purchase which arises as a result of such exercise fully consummated. In the J event that either or both of TMPA and Tex-14 shall have exercised any such rights of first refusal to the extent that TMPA and/or Tex-La acquire all of a
Drazos' interest in the Purchased Assets, Brazos shall promptly refund to j TU Electric the full amount of the Signing Payment less $15,322,581 and Brazos shall in consideration for retaining said $15,322,581 of the Signing I
_ _ _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . . . _ _ _ _ _ _ . _ _ _ _ _ _ _ _ . _ _ _ _ . _ _ _ __ _ . _ . . _..__o J
Payment, perform its obligations pursuant to Article IV, Sections 5.2(c),
Section 8.1, Section 9.1, Section 9.2, Section 9.5, Section 9.6 and Section 9.7 j hereof. It is agreed by Brazos and TU Elee'ric that the purchase price under
,1 this Agreement of the Purchased Assets includes an amount, in addition to
! the payment of cash and delivery of the Note by TU Electric, which I
l represents the forgiveness of certain indebtedness of Brazos to TU Electric under the Joint Ownership Agreement which TU Electric contends Brazos l
g owee it but which &azos does not admit is owing to TU Electric (the "Brazos f JO A Debt"). h such connection, it is understood that inasmuch as such
}
forgiveness of the Brazos JOA Debt is part of the purchase price of the i
Purchased Assets, Brazos shall require either T MPA or Tex-La, as purchaser f of Brazos' interest in the Purchased Assets pursuant to any right o' first i
refusal or consent to sale under the Joint Ownersnip Agreement to pay, and, therefore, such purchaser would be required to pay TU Electric and fully
[ satisfy it with respect to the Brazos JOA Debt pertaining to Drazos' interest
(
in the Purchased Assets, purchased by TMPA and/or Tex-La. In the event P
that TMPA and/or Tex-La exercise any such rights of tirst refusal to the extent that all of Brazos' interest in the Purchased Assets has not been acquired by TMPA and/or Tex-la, after consummation of the sale to TMPA and/or Tex-La, Brazos shall promptly refund to TU Electric a proportional amount of the Signing Payment (calculated after deducting $15,322,581)
( equivalent to the proportion of the Purchased Assets which TMPA and/or Tex-La has elected to acquire. Brazos shall be entitled to retain the
! $ 15,322,581, together with the balance of the Signing Payment not refunded to TU Electric and Brazos and TU Electric agree to perform this Agreement with respect to the portion of the Purchased Assets not acquired by TMPA l
and/or Tex-la in the manner set forth herein, with appropriate proportional I l
modifications to the payment obligations of TU Electric herein, and to the i obligations of Brazos herein to deliver all of the Purchased Assets, as well .s all of the other provisions of this Agreement. In addition, Brazos shall refund to TU Electric a proportional amount of the payments that TU Electric has
.I made with respect to the Brazos Comanche Peak Debt equivalent to the proportion of the Purchased Assets being acquired by TMPA and/or Tex-La, and TMPA or Tex-La shall pay TU Electric the Brazos JOA Debt to the l extent set forth hereinbefore.
(c) Approval by PUC. By final action subject to no further appeal, the PUC shall l
have approved the transfer to TU Electric of Brazos' certificate of l
) convenience and necessity with respect to the Station and the Transmission Facilities permitting TU Electric's acquisition and ownership of Bra zos' ownership interest in the Station and the Transmission Facilities in I accordance with the terms hereof. In such connection, TU Electric and Brazos will file within fifteen (15) Business Days of the date of this
{ Agreement and prosecute to the best of their ability a joint application for i
, approval of the transfer of such certificate of convenience and necessity rights and such other applications or filings with the PUC as shall be necessary and essential in connection with the transactions contemplated under this Agreement. In connection with all such proceedings, each party l will bear its own cost and expense of prosecuting such applicatioris or filings.
I Upon the issuance by the PUC of any order or other document purporting j
4 to give the approval contemplated under this Agreement with or withot.
conditions, the parties, with their respective attorneys and other consultants, shall promptly confer and endeavor in good faith to determine if such order j or other document evidences the final approval contemplated by this Agreement without any condition that is deemed by either party to be inconsistent with the provisions of this Agreement. It is understood and
/ agreed that, in connection with such applications and filings, TU Electric will
request the PUC not to prejudge either the reasonableness or the recoverability in TU Electric's rates of the consideration payable hereunder and to defer any such determinations to a subsequent TU Electric rate esse; however, should the PUC refuse to defer such determination and determine in such certification proceedings that all or any portion of the consideration payable hereunder is uareasonable or shall not be recoverable in TU Electric's
}
l rates, such determination shall be deemed by TU Electric to be inconsistent l
with the provisions of this Agreement and therefore shall be inconsistent for l
l the purposes hereof. If such determination is affirmative the parties shall promptly execute a stipulation dated currently to such effect. If such h determination is negative, the parties, at their own cost and expense, j
f respectively, will undertake to cause the PUC to issue such further order or I
document evidencing its approval as contemplated by this Agreement, including the elimination of any such condition that was deemed by either
( party to be inconsistent with this Agreement and upon the issuance of any l
l further order or other document by the PUC in such proceedings the same l
procedures will be followed by the parties as providSd in the case of the order or other document first issued by the PUC in such proceedings, including the execution of a stipulation ttated currently evidencing the affirmative action
- l by the parties in respect of the order or other document issued by the PUC.
I ne date of any stipulation executed by the parties under this paragraph is referred to as the "PUC Affirmative Date." The provisions of this paragraph shall not affect or detract from the rights of Brazos or TU Electric under
] Sections 10.1 or 10.2 hereof.
c (d) Approval by NRC. De NRC shat! have granted all necessary and essential approvals and consents with respect to the transactions provided for herein, j including without limitation the entry of a final non-eppealable order l
approving the sale of Brazos' right, title and interest in the Station and Fuel to TU Electric in accordance with the terms hereof. In such connection, it is understood and agreed that TU Electric will file within fifteen (15) Business j Days of the date of this Agreement at'd prosecute to the best of its ability all o j applications or filings with the NRC as shall, in its judgment, be necessary I ano essential in connection with the transactions contemplated under this I
j Agreem ent. TU Electric will deliver promptly to Brazos copies of all such applications and filings and will advise Brazos on a current basis with respect l
g to the status of any such proceeding. In connection with all such proceedings,
~
Brazos will, at Brazos' reasonable cost and expense, at the request of TU Electric, render all such assistance as may be appropriate under the I
circumstances, including without limitation, providing such of its personnel as I may be appropriate to testify and otherwise participate in any such I
proceedings in support of this Agreement.
Upon the issuance by the NRC of any order or other document b purporting to approve the transactions contemplated under this Agreement I
with or without conditions, TU Electric will promptly deliver to Brazos a reproduced legible copy of such order or other document, and the parties,
)
with their respective attorneys and other consultants, shall promptly confer j and endeavor in good faith to determine if such order or other document I evidences the final approval of the NRC of such transactions contemplated l
by this Agreement without any condition that is deemed by either party to be inconsistent with the provisions of this Agreement. If such determination is affirmative the parties shall promptly execute a stipulation dated currently f to such effect, if such determination is negative, TU Electric, with the assistance of Brazos, which shall be at Brazos' rt .sonable cost and expense, will undertake to cause the NRC to issue such further order or document i
evidencing its approval of such transactions including the elimination of any such condition that was deemed by either party to be inconsistent with this
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i l
Agreement and upon the issuance of any further order or other document by the NRC in such proceedings the same procedures will be followed by the y parties as provided in the case of the order or other document first issued by the NRC in such proceedings, including the execution of a stipulation dated currently evidencing the affirmative action by the parties in respect to the j order or other document issued by the NRC. The date of any stipulation executed by the parties under this paragraph is referred - as the "NRC Affirmative Date." The provisions of this paragraph shall not affect or detract from the rights of Brazos or TU Electric under Sections 10.1 or 10.2 hereof.
(e) Approval of REA, CFC and FFB. The REA, the CFC and the FFB shall have
- granted all necessary and essential approvals and consents with respect to the l
transactions provided for herein, including without limitation, their consent to the Assignment Agreement and the acceptance by them of the assignment 1, of the Note, the Mortgage and the vendors lien contained in the Special 1
Warranty Deed with Vendors Lien and Bill of Sale as a payment mechanism i
and security for such payment mechanism with respect to all mmissory notes, mortgages, or other evidences of indebtedness and security agreements or arrangements with respect to the payment thereof, that Brazos may have i
l in favor of the REA, the CFC and the FFB with respect to the Brazos I
l Comanche Peak Debt, so that at the Closing Date Brazos, TU Electric and l
the REA will enter into the Assignment Agreement and pursuant thereto deliver to the REA the Note and the Mortgage in return for which the REA, j j the CFC and the FFB will execute and deliver to Brazos all such receipts, c releases, termination statements and other documents as shall be n;cessary I or appropriate in the estimation of Brazos and TU Electric to provide for and l evidence the termination and release of all mortgages, liens and other i
security instruments in connostion with the Brazos Comanche Peak Debt, in i
such connection, it is understood and agreed that Brazos will carry on discussions with the REA, the CFC and the FFB in order to obtain their j consent and agreement in the foregoing respects. In connection with all such I undertakings, TU Electric will, at TU Electric's cost and expense, at the request of Brazos, render all such assistance as may be appropriate under the l circumstances, including without limitation, providing such of its personnel as may be appropriate to participate in any such undertakings i t support of this Agreement.
(f) Execution of Transmission Services Agreement. Brazos and TU Electric shall have executed an appropriate amendment of the Transmission Agreement between Brazos and TU Electric's corporate predecessors, executed en July 25,1979, to reflect Brazos' sale of the Transmission Facilities to TU Electrie.
i AR*1CLE VI x
CLO6ING DOCUMENTS PROM BRAZOS l'
As a condition of Closing, Brazos and the referenced attorney, in each case as appropriate, willdeliver to TU Electric on the Closing Date the following:
6.1 Deeds and Transfers, etc. (i) An executed and acknowledged Special r
]
Warranty Deed with Vendor's Lien and Bill of Sale; (ii) duplicate counterparts of the amendment contemplated under Section 5.3(f) hereof; and (iii) the Release, Covenant Not to Sue and Indemnity Agreement specified in Sections 3.1,9.2 ani 9.5 hereof.
I 6.2 IJen Search. Real property search certificates from a reputable title i company and a UCC search certificate from the Secretary of State of Texas disclosing no security interests, judgments or other liens outstanding against Brazos' ownership interest in the Purchased Assets, other than the Permitted Exceptions and tiens securing the Brazos Comanche Peak Debt and other Brazos debt to be relecsed at or prior to the Closing.
6.3 Certificate of Secretarial Officer. A certificate af the Secretary or an Assistant Secretary of the Board of Directors of Brazos, dated the Closing Date, with
g .
gy _. . - - - .
re 5 Pee t to the incumbency of officers and their signatures, the existence and good standing af Brazos, and the due adoption of resolutions by the Board of Directors of
{ 3razos ar.d the requisita number of the Members of Brazos authorizing the execution, delivery and performance of this Agreement and the other agreements and instruments to be delivered to TU Electric at the Closing.
} 6.4 Counsel Opinion. An opinion of Joseph Rcbert Riley, counsel for Brazos, l dated tne Closing Date and addressed to the TU Electric in the form set forth in Exhibit H f
[
attached hereto.
4 ARTICLE VII I
CLOSING DOCUMENTS PROM TU ELECTRIC As a condition of Closing, TU Electric snd the referenced attorneys, in each case as I
appropriate, will deliver to Brazos on the Closing Date the following:
I 7.1 Proof of Payment. Proof of the payment to Brazos pursuant to Section 1.5(b) hereof, b
j 7.2 Other instruments. (i) The executed Note and Mortgage; (ii) duplicate counterparts of the amendment contemplated under Section 5.3(f) hereof; and (iii) the Release, Covenant Not to Sue, Assumption and Indemnity Agreement specified in Sections j 9.3, 9.4 and 9.5 hereof; and (iv) the executed Guaranty.
) 7.3 Certificate of Secretarial Officer. A certificate of the Secretary or an t
Assistant Secretary of TU Electric and TUC, dated the Closing Date, with respect to the l j l
I incumbency of officers and their signatures, corporate existe.nce and good standing, and, in the case of TU Electric, the due adoption of resolutions of the Board of Directors of TU Electric authorizing the execution, delivery and performance of thic Agreement and the other agreements and instruments to t>e delivered by TU Electric to Brazos pursuant hereto at the Closing and, in the case of TUC, the due adoption of resolutions nf the Board of Directors of TUC authorizing the execution, delivery and perforrnance of the Guaranty to be delivered by TUC to Brazos purmant hereto at the C'.osing.
i k_ . .
e 7.4 Counsel's Opimon. An opinion of Worsham, Forsythe, Sampels & Wooldridge, counsel for TU Electric and TUC, dated the Closing Date and addressed to Brazos in the 7 form set forth in Exhibit I attached hereto.
ARTICLE VIII CLOSING AND INDEMNIFICATION 8.1 Indemnification by Braza m Bra?.os agrees to indemnify, hold harmlens and defend TU Electric and anyone rela \ed to or affiliated with TU Electric, including its I parent, subsidiaries and affiliates and anyone related to or affiliated with such parent, subsidiaries or affiliates, from and against any and all claims, demands, liabilities, losses, costs and expenses, including reasonable atterneys' fees, which TU Electric or anyone related to or affiliated with TU Electric, including its parent, subsidiaries and affiliates and anyone related to or affiliated with such , aent, subsidiaries or affiliates, may sustain and which arise out of or are based upon or relate to the inaccuracy or falsity of any I
representation or warranty made by Brazos set forth in this Agreement or in any other k
y agreement or instrument delivered pursuant hereto or the breach or no'Derformance by Brazos of any covenant or agreement with TU Electric or anyone related to or affiliated I
with TU Electric, including its parent, subsidiaries and affiliates and anyone related to or affiliated with such parent, subsidiaries or affiliates, made by Brazos set forth in this Agreement or in any other agreement or instrument delivered pursuant hereto.
l 8.2 Indemnification by TU Electric. TU Electric agrees to indemnify and hold i .
l harmless and defend Brazos and Brazos' Members and anyone related to or affiliated with Brazos and Brazos' Members from and against any and all c!v.ns, demands, liabilities, losses, costs and expenses, including reasonable attorneys' fees, which Brazos, its Members or anyone related to or affiliated with Brazos or its Members may sustain and I
which arise out of or are based upon or relate to the inaccuracy or falsity of any representation or warranty made by TU Electric set forth in this Agreement or in any l
other agreement or instrument delivered pursuant hereto or the breach or nonperformance by TU Electrie of any covenant or agreement with Brazos, its Members or anyone related
_A k.
.- x_- -.
= -
t to or affiliated with Brazos or its Members made by TU Electric set forth in this Agreement or in any agreement or instrument delivered pursuant hereto.
8.3 Survival of Representation and Walr antias. The representations, warranties, covenants and agreements of the parties hereto shell survive tne execution and delivery of this Agreement and the consummation of the transactions contemplated hereunder for a
{
period of four (4) years af ter the Closing Date or for such longer period as may be f commensurate therewith for any document delivered pursuant hereto which is in effect for a longer period than such four years.
8.4 Notice and Opportunity to Participate in Defeg. In the event that Brazos, e
l its Members or TU Electric or any of its parert, subsidiaries or affiliates, or anyone l
related to or affiliated with any of them, receives notice of the commencement of any I
action or proceeding or the assertion of any claim in respect of which Brazos, its Members l
I or TU Electric or any of its parent, subsidiaries or affiliates, or anyone related to or affiliated with any of them, may be entitled to indemnification, the party receiving such notice shall give the indemnifying party written notice within ten (10) calendar &ys
, thereof (except that failure to so notify will not relieve the indemnifying party of its obligations hereunder except to the extent it has been prejudiced thereby) and the opportunity to participate in the defense thereof and in any settlement negotiations with 1
respect thereto, and will cooperate with the other party in all reasonable respects and make available to the other party all recorda, evidence and personnel for consultation and testimony reasonably requested by the other party in connection therewith. The l settlement of any such action, proceeding or claim without the prior written approval of f
the indemnifying party shall relieve such party of any obligations to the indemnified party in respect of the subject matter of the settlement of such action, proceeding or claim.
ARUCLE IX l
SETTLEMENT OF PENDING LITIGAMON 9.1 Brazos' Release. Upon the Closing, Brazos, for itself and on behalf of any l
person or entity, private or governmental, claiming by, through or under Brazos, including i
m .
without limitation, to tne extent it has the standing and right under law to do so, its Members and customers (including the customers of Brazos' Members and other wholesale customers) and its or their respective insurers, agents, servants, employees, officers, l
3irectors, consultants, attorreys and representatives, shall wabe, release, discharge, renounce and relinquish any and all Subject Claims reMting to Comanche Peak it has or they have, or may have, whether known or unknown, contingent or absolute, including, I
s without limitation, those based on common law, whether contract (expressed or implied, including express or implied warranty) or tort (including, without limitation, intentional tort, negligence or gross negligence, sole, joint or concurrent) or strict liability or fraud,
)
I and those based upon any Federal, state or local statute, law, order or regulation, l
including, without limitation, the Atomic Energy Act of 1954, as amended, the regulations of the NRC, the Securities Act of 1933, as amended, or the Securities Act of 1934, as I
amended, and any rule or regulation under either, the Texas Securities Act (Title 19, Articles 581-1, et seq., V. A.T.S.) and the Texas Deceptive Trade Practices and Consumer Protection Act, against TU Electric or TUC, or both, in any capacity, whether individually, as Project Manager of Comanche Peak or otherwise, and their respective msurers, agents, servants, employees, officers, direc tors, shareholders, consultants, attorneys and representatives, past and present, and any and all of their respective successors, subsidiaries and affiliates and their respective insurers, agents, servants, employees, officers, directors, shareholders, consultants, attorneys and representatives, past and present, except Subject Claims arising out of or under this Agreement or any of
{
the other agreements or instruments to be delivered by TU Electric or TUC pursuant hereto. Brazos hereby covenants and warrants that it has not assigned any Subject Claims
> l that are to be released at the Closing. At the Closing, Brazos will execute and deliver to l TU Electric the form of Release attached hereto as Exhibit J.
9.2 Brazos Covenant Not to Sue. Except as provided for in Section 4.2(g) hereof, )
upon the Closing, Brazos, for itself and on behalf of any person or entity, private or governmental, claiming cy, through or under Brazos, including without limitation, to the
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extent it has the standing and right under law to do so, its Members and customers
, (including the customers of Brazos' Members and other wholesale customers) and its or their resoective insurers, agents, servants, employees, officers, directors, consultants, I
attorneys and representatives, shall agree and covenant that it and they, individu..sy, collectively or in any combination, will forebear from asserting against, and never sue for or look for satisfaction with respect to, TU Electric and TUC and their respective insurers, agen ts, servan ts, s mployees, offictrs, directors, shareholders, con 'an ts, I
attorneys and representa -:ves, past and present, and any and all of theic respective successors, subsidiaries and affiliates and their respective insurers, agents, serv an ts, I
l employees, officers, directors, shareholders, consultants, attorneys and representatives, past and present, any Subject Claim (including without limitation any Subject Claim against any contractor, subcontractor, supplier, consultant, vendor or other person, firm I
or entity in privity in any manner with any of them which may therefor or as a result thereof have a right over or Subject Claim in subrogation) in any manner involving, concerning, arising out of, or relating to, the design, construction, management and 4
licensing of, or any other matter relating to, Comanche Peak, and the management, procurement, conversion, enrichment, fabrication, shipping, transportation and storage of the Fuel, except for claims arising out of or under this Agreement or any of the other l agreements or instruments to be delivered by TU Electric, or any of TU Electric's I
affiliates, subsidiaries or parent company, pursuant hereto; and Brazos, for itself and on behalf of any person or entity, private or governmental, claiming by, through or under Brazos, including without limitation, to the extent it has the standing and right under law to do so, its Members and customers (including the customers of Brazos' Members and other wholesale customers) and its or their respecti'.e insurers, agents, servan ts, employees, officers, directors, con.;ultants, attorneys and representatives hereby further agrees and covenants that, upon and after the Closing, neither it nor they, individually, collectively or in any combination, will directly or Indirectly cnallenge, contest or assert any complaint in any court or before any administrative agency or body or in any other
1 forum whatsoever with respect to, or in any manner involving, concerning, arising out of, or relating to, Comanche Peak and the incidents and attributes thereof including, without limitation, the design, construction, management and licensing of Comanche Peak or any l
l other aspect thereof, the costs and schedule of construe' ion and completion of Comanche I
Peak, and the reasonableness, piadency or efficiency of the planning, design, construction, management and licensing of Comanche Peak, and the reasonableness, prudency or T
efficiency of the managem en t, procur e m ent, conversion, enrich m en t, f abrica tion, shipping, transportation and storage of the Fuel, and the costs incurred in connection with the m anagem en t, procurement, conversion, enrichm ent, f abrica tion, I shipping, transportation and storage of the Fuel, and the breach of the Joint Owhership Agreement l
and any express or implied warranties arising out of the Joint Ownership Agreement, and any representation, misrepresentation, disclosure or non-disclosure in connection with the I
negotiations or preceding the execution by Brazos of the Joint Ownership Agreement, and in connection with the performance or nonperformance by TU Electric of its duties, responsibilities or obligations under the Joint Owr.ership Agreement as Project Mar.ager or otherwise, and the failure of TU Electric to pursue any remedies, either at law or d
otherwise, that may be, or may have been, available against any and all contractors, subcontractors, suppliers, consultants, vendors or others with respect to Comanche Peak (including separately the Station, Fuel or Transmission Facilities) and on account of anything that has occurred or may have occurred, in whole or in part, with respect to Comanche Peak, (including separately the Station, Fuel or Transmission Facilities) and the incidents and attributes thereof and any of the foregoing whether known or unknown, except with regard to Subject Claims arising out of or under this Agreement or any of the other agreements or instruments to be delivered by TU Electric, or any of TU Electric's affihates, subsidiaries or parent company, pursuant hereto. At the Closing, Brazos will execute and deliver to TU Electric the form of Covenant Not to Sue attached hereto as Exhibit K. Further, Brazos covenants and agrees that it will cooperate and assist i
TU Electric in connection with all necessary approvv.ls of this Agreement and that it will
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T encourage and solicit its attorneys, including Joseph Robert Riley, Spiegel & McDiarmid and Locke Purnell Rain Harrell, and &azos' separately employed consultants, not to oppose or assist any third party in opposing TU Electric in connection with any matters l relating to Comanche P , , (except that nothing herein shall be construed to prohibit said k
attorneys and consultants from representing &azos in connection with proceedings in l which TU Electric's rates are being determined provided that no opposition, or assistance 1
to any third party opposition, to Comanche Peak related costs is made); and, if necessary l
to prevent a anflict of interest, it being uralerstood and agreed that &azos' separa*.ely employed consultants and attorneys may have obtained or developed information regarding Comanche Peak in the course of the Pending Litigation that arguably could be I
inequitable for them to otherwise utilize in view of the consideration being rendered by i
TU Electric hereunder in order to obtain a final settlement of the matters referred to in I
this Agreement, &azos covenants and agrees that it will take all such action as may be necessary or appropriate in order to prevent the consultants and attorneys, including Joseph Robert Riley, Spiegel & McDiarmid and Locke Purnell Rain Harrell, separately a employed by it in connection with, the Pending Litigation, from participating or assisting in any manner adverse to &azos' duty of cooperation herein or to TU Electric in connection with the Pendiig Litigation, the Pending Houston Suit, the Pending Somervell County Suit or any current or future proceedings or matter before the PUC (except that I
nothing herein shall be construed to prohibit said attorneys and consultants from representing &azos in connection with proceedings in which TU Electric's rates are being determined provided that no opposition, or assistance to any third party opposition, to l
i Comanche Peak related costs is made) or the NRC involving or relating to Comanche l Peak, oc any current or future proceedings (except that nothing herein shall be construed l
\ to prohibit said attorneys and consultants from representing &azos in connection with proceedings in which 1 U Electric's rates are being determined provided that no opposition, or assistance to any third party opposition, to Comanche Peak related costs is made) i before any court or before any administrative agency or body or in any other forum l
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whatsoever with respect to, or in any manner involving, concerning, arising out of, or relating to:(i) the acts or omissions of TU Electric or the Project Manager referred to or in question in the Pending Litigation or which could have been brought into question in the l Pending Litigation; or (ii) the acts or omissions of TU Electric or the Project Manager oth respect to Comanche Peak that occur, in whole or in part, prior to the Date of Commercial Operation (as said term is defined in the Joint Ownership Agreement). The covenant set forth in the prior sentence shall survive Closing hereunder and remain in force until the expiration of any Subject Claim covered thereby.
9.3 TU Electric Release. Upon the Closing, TU Electric, for itself and on behalf 3f its parent, TUC, and their subsidiaries and affiliates and on behalf of any person or l
entity, private or governmental, claiming by, through or under TU Electric or TUC, including without limitation, to the extent it has the standing and right under law to do so, I
their customers, and on behalf of their respective insurers, agents, servants, employees, o f fic ers, direc tors, consultants, attorneys and representatives shall waive, release, discharge, renounce and relinquish any and all Subject Claims relating to Comanche Peak (including separately the Station, Fuel or Transmission Facilities) it has or they have, or f may have, whether known or unknown, contingent or absolu t e, including, without limitation, those based on common law, whether contract (express or implied, including j express or implied warranty) or tort (including, without limitation, intentional tort, I negligence or gross negligence, sole, joint or concurrent) or strict liability or fraud, and those based on any Federal, State or local statute, law, order or regulation, including, without limitation, the Atomic Energy Act of 1954, as amended, the regulations of the NRC, the Securities Act of 1933, as amended, or the Securities Act of 1934, as amended, and any rule or regulation under either, the Texas Securttles Act (Title 19, Articles 581-1, et seq., V. A.T.S.) and the Texas Deceptive Trade Practices and Consumer Protection Act, against Brazos, its Members and customers (including the customers of Brazos' Members and other wholesale customers) in any capacity, whether individually or otherwise, and its and their respective insurers, agents, servants, employees, officers, directors, consultants,
attorneys and representatives, pa::t and present, and any and all of their respective successors, subsidiaries and affiliates and their respective insurers, agents, servants, employees, officers, directors, members, consuitants, attorneys, and representatives, past I and present, except Subject Claims arising out of or under this Agreement or the other k agreements and instruments executed and delivered pursuant hereto and except that nothing herein shall prohibit TU Electric from charging Brazos for any electric power and energy purchased by Brazos from TU Electric in accordance with the rates set forth in I
TU Electric's tariff as same may be approved and in effect from time to time even though i
said rates may include costs related to Comanche Peak. TU Electric hereby covenant; and warrants that it has not assigned any Subject Claims that are to be released at the I
Closing. At the Closing, TU Electric will execute and deliver to Brazos the form of Release attached hereto as Exhibit L 9.4 TU Electric Covenant Not to Sue. Except as provided for in Section 4.2(g) hereof, upon the Closing, TU Electric, for itself and on behalf of its parent, TUC and their i
subsidiaries and affiliates, and any person or entity, private or governmental, c' aiming by, through or under TU Electric or TUC, incdng without limitation, to the extent it has
[ the standing and right under law to do so, their customers, and their respective insurers, agents, servants, employees, officers, directors, consultants, attorneys and representatives shall agree and covenant that it and they, individually, collectively or in
, any combination, will forebear from asserting against, and never sue for or look for satisfaction with respect to, Brazos and its Members and their respective insurers, agents, servan ts, employees, officers, directors, me mbers, consultants, attorneys and representatives, past and present, and any and all of their respective successors, subsidiaries, and affiliates and their respective insurers, agents, servants, employees, officers, directors, shareholders, members, consultants, attorneys and representatives, past and present, any Subject Claim in any manner involving, concerning, arising out of, or relating to Comanche Peak, and the management, procurement, conversion, enrichment,
]'
fabucation, shipping, transportation and storage of the Puel, exc_ept for claims arising out 1
s r of or under this Agreement or any of the other agreements or instruments '.o be delivered by TU Electric pursuant hereto; and TU Electric for itself and on behalf of its parent, subsidiaries and affiliates, and any person or entity, private or governmental, claiming by, j through or under them, including without limitation, to the extent it has the standing and right under law to do so, its or their customers, and its or their respective insurers, eg en ts, servants, employees, officers, direc tors, consultan ts, attorneys and 1
representatives hereby further agrees and covenants that, upon and after the Closing, neither l'. nor they, individually, collectively or in any combination, will directly or i indirectly challenge, contest or assert any complaint against Brazos or its Members in any I
l court or before any administrative agency or body or in any other forum whatsoever with respect to, or in any manner involving, concerning, arising out of, or relating to, n Comanche Peak and the Joint Ownership Agreem ent and in connection with the l
performance or nonperformance by Brazos of its duties, responsibilities or obligations under the Joiat Ownership Agreement, and on account of anything that has occurred oc may have occurred, in whole or in part, with respect to Comanche Peak, (inclucing i separately the Station, Fuel, or Transmission Facilities) and the incidents and attributes 4
thereof and any of the foregoing whether known or unknown, except with regard to Subject Claims arising out of or under this Agreement or any of the other agreements or j
instruments to t. i delivered by TU Electric pursuant hereto and except that nothing herein shall prohibit TU Electric from charging Brazos for any electric power and energy purchased by Brazos from TU Electric in accordance with the rates set forth in j
TU Electric's tariff as same may be approved and in effect from time to time even though said rates may include costs related to Comanche Peak. At the Closing, TU Electric will execute and deliver to Brazos the form of Covenant Not to Sue attached hereto as Exhibit M. Further, TU Electric covenants and agrees that it will encourage and solicit its attorneys, including Worsham, Forsythe, Sampels & Wooldridge, Jackson, Walker, Winstead, Cantwell & Miller, Hunton & Williams, Ackles, Ackles & Ackles and Roy L
Minton, and TU Electric's consultants, not to oppose or assist any third party in opposing
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Bra;os in connection with any matters relating to Comanche Peak (except that nothing herein shall be construed to prohibit said attorneys and consultants from representing TU Electrie in connection with proceedings in which TU Electric's rates are being I determined even though said rates may include costs related to Comanche Peak and Brazos may purchase electric power and energy pursuant to said rates); and, if necessary to prevent a conflict of interest, it being understood and agreed that TU Electric's separately employed consultants and attorneys may have obtained or developed information regarding Brazos in the course of the Pending Litigation that arguably could De inequitable for them to otherwise utilize in view of the consideration being rendered by I Brazos hereunder in order to obtain a final settlement of the matters referred to in this Agreement, TU Electric covenants and agrees that it will take all such action as may be necessary or appropriate in order to prevent the consultants and attorneys, including i
Worsham, Forsythe, Sampels & Wooldridge, Jackson, Walker, Winstead, Cantwell & Miller, i
Hunton & Williams, Ackles, Ackles & Ackles and Roy Minton, separately employed by it in connection with the Pending Litigation or otherwise, from participating or assisting in any
( manner adverse to TU Electric's duty of cooperation herein or to Brazos in connection I
with any current or future proceedings or matter before the PUC (except that nothing herein shall be construed to prohibit said attorneys and consultants from representing TU Electric in connection with proceedings in which TU Electric's rates are being determined even though said rates may include costs related to Comanche Peak and Brazos may purchase electric power and energy pursuant to said rates) involving or relating to Comanche Peak, or any current or future proceedings (except that nothing herein shall be construed to prohibit said attorneys and consultants from representing TU Electric in connection with proceedings in which TU Electric's rates are being determined even though said rates may include costs related to Comanche Peak and Brazos may purchase electric power and energy pursuant to said rates) before any cou;t or before any administrative agency or body or in any 'orum whatsoever with respect to, or in any manner involving, concerning, cising . of, oc relating to the acts or i
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o nissions of Brazos referred to or in question in the Pending Litigation or which could have been brought into question in the Pending Litigation. The covenant set forth in the prior sentence shall survive the Closing and remain in force until the expiration of any l Subject Claim covered thereby.
9.5 4.ssumption of Liebilities and Obligations and indemnification. Effective upon the Clusing, TU Electric agrees to assume all of the duties, responsibilities, I
labilities and obligations of Brazcs under the Joint Ownership Agreement. Further, I
effective upon the Closing, TU Electric agrees to indemnify, hold harmless and defend Brazos and its Members and customers (including the customers of Brazos' Members and I
other wholesale customers) from and against all Subject Claims or any alleged willful or g
intentional act:, of the Project Manager, its agents, servants, employees or independent contractors acting on behalf of the Project Manager which may be asserted against Brazos I
g .nd its Members and customers (including the customers of Brazos' Members and other wholesale customers) by any third party (other than Brazos' Members and customers and f
the customers of Brazos' Members or other wholesale customers acting in such capacity),
including without limitation Subject Claims predicated upon the alleged actual or imputed 4
negligence or gross negligence of Brazos and its Members al. customers (including the customers of Brazos' Members and other wholesale customers) L ising . of or connected
/ witb, the location, planning, design, construction, licensing. :or# tion, n. intenan I
operation and decommissioning of Comanche Peak, including but r. 4 limited to all clat?
asserted or which might have been or might hereafter be asserted in the Pending Houston Suit and in the Pending Somervell County Suit; provided, however, that TU Electric specifically shall not indemnify Brazos and its Members or customers in connection with any Subject Claims which may be asserted by Brazos' Members and customers, and the l customers of Brazos' Members or other wholesale customers, or creditors, acting in such I capacity, which in any inanna* relate to Brazos' participation as an Owner of Con.uche i
Peak or as a party to the Joint Ownership Agreernent, or by reason of Brazos' involvement j in the Pending Litigation, or by reason of the execution of this Agreement and l l 1
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part:0!pation in the transactions provided for herein, and provided fortner, that TU Electric speci;ically shall not indemnify Brazos in connection with any Subject Claims wnien may be asserted t>y Tex-La or TMPA or others which in any way relate to Brazos' execution of the Joint Ownership Agreement, or which arise by reason of Bra z o s'
{ prt40 ipa tion in the Pencing Li tig a tion, or by r ea son of Brazos' execution of this Agreement and participation in the transactions provided for herein. TU E:ectric will, in adcition to providin S such indemnilj, assume the defense of Brazos and its Members and customers (and the customers of Brazos' Members and other wholesale customers) in any 4
tribunal where uny such claim is asserted. Pursuant hereto, at the Closing TU Electric l
will execute and deliver to Brazos the form of Assumption and Indemnity Agreement attached hereto as Exhibit S. Effective upon the Closing, Brazos agrees to indemnify, hold harmless and defend TU Electric, TUC and their respective subsidiaries, affiliates I
and curtomers from and against any and all Subject Claims of Brazos or mayone , elated to or affiliated with Brazos, including Brazos' Members, customers (including the customers of Brazos' Nembers and other wholesale customers) and creditors, acting in such capacity, relating to Brazos' execution of, or participation in, the Joint Ownership Agreement, Bazos' execution of this Agreement and participation in the transactioas provided herein, and Piazos' activities as an Owner separate and spart from joint activities with all other 6
Owners or activities by, through and under the Project Manager. Further, effective upon l the Closing, Brazos agrees to indemnify, hold harmless and defend TU Electric, TUC and their respective subsidiaries, affiliates and customers from and against any and all Subject Claims of Ekazos or anyone related to or affiliated with Brazos, including Brazos' Members and, to the extent they are acting in such capacity, Brazos' customers (including the customers of Brazos' Members and other wholesale customers) and creditors, with respect to, or in any manner involving, concerning, arising out of, or reisting to: (i) the acts or omissions of TU Electric or the Project Manager referred to or in question in the Pending Litigation or which could have been brought into question in the Pending 1.i tiga tion, cluding without limitation Subject Claims based upon the negligence or gross
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negbgence, sc;e, joint or concurrent, of TU Electric or the Project Manager; end (io the acts or omissions of TU Electric or the Project Manager with respect to Comanche Peak that occur, in whoir, or in part, prior to the Date of Commercial Operation (as sat term is gefined in the Joint Ownership Agreement), >ncluding without limitatfora Subject Claims f.ed upon the negligence or gross neghgence, sole, joi .t or ecncurrent, of TU Electric or tne Project Manager. Pursuant hereto. at the Closing Brazos will execute and dehver to Tt, Electric the form of indemnity Agreement attached hereto as Exhibit O.
9.6 Covenant of Cooperation. The parties hereby covenant and agree to assist, cooperate with, and support each other (other than financial support) in the event that u i
l third party institutes any action against either cf them with respect to Comanche Peak and any incident or attribute thereof, except that neither of them shall be ree;uired to
- take any position which it beheves is contrary to its material pecuniary interests or
) contrary to the truth; provided, however, that in any event, Brazos shall not cooperate with or support any party in the Pending Litigation with regard to the Subject Claims being made therein by Tex-la and TMPA.
, 9.7 Termination of Participation. To the extent that Brazos can, and not be in t
violation of Section 210 of the Energy Reorganization Act, 42 USC Section 5851 (1983),
upon the execution of this Agreement, Brazos, for itself and on behalf of any person or entity, private or governmental, cla! ming by, through or under Ikazos, including without l limitation, to the extent it has the standing and right under law to do so, its Members and customers (including the customers of Brazos' Members and other wholesale customers) and its or their respective insurers, agents, servants, employees, officers, directors, consult nts, attorneys and represe.ntatives, agrees and covenants to immediately abate any and all currently pending actions whatsoever, directly or indirectly, involving or relating to the prosecution or processing of any Subject Claims in any way relating to Comanche Peak against TU Electric or TUC, or their respective directors, officers, employets, agents, insurers, consultants or attorneys, pa.st or present, and any and all of their respective successors, subsidiaries and affiliates and their respective insurers,
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m agents, Servants, employees, officers, directors, shareholders, consultants, attorneys and representatives, past and present, presently or hereafter pending in any court or before any administrative agency or body (except Subject Claims being made in the Pending g.igation, which shall be gaverned by the previsions of Article IV of this Agreement). In geh esparity and to the extent Brazos can and not be in violatio,. of Section 210 of the gnergy Reorganization Act, 42 USC Section $851 (1983) (Brazos hereby representing and I
.stranting that it knows of no violation, actual or elleged, of Section 210 of the Energy 4 eanization Act, 42 USC Section 5851 (1983) which has not heretofore been disclosed
- Electrie in writing), Brazos agrees and covenants that Brazos for itself and on 3ehalf of any person or entity, private or governmental, claiming by, through or under n
razos, including without limitation, to the extent it has the standing and right under law to do so, its Members and customers (including the customers of Brazos' Members and other wholesale customers) and its or their respective insurers, agents, servants, employees, officers, directors, consultants, attorneys and representatives, shall not prosecute, directly or indirectly, any Subject Claims, objections, motions or other actions
- adverse to TU Electric in connection with applications far granting the requisite licenses and approvals for Comanche Peak pending before the NRC and its Atomic Safety and t.ieensing Boards and Atomic Safety and Licensing Appeal Boards, including, without i limitation, in NRC Dockets Nos. 50-445-OL, 50-446-OL and 50-445-CPA, the ongoing l
antitrust review relative to the licensing of Comanche Peak, and any and all appeals from rulingt and orders of the NRC related to, or growing out of, said Dockets which are pending before any court. Within three (3) Businers Days after the Closing, Brazos shall eeuse the dismissal, with prejudice to the refiting of same in any forum and in any form whatsoever, of all of its Subject Claims against TU Electric, TUC and their subsidiaries and affiliates in the Pending Litigation, and shall withdraw all of its Subject Claims adverse to TU Electric in connection with the granting of the requisite licenses and approvals for ComancLt Peak pending in the NRC Dockets Nos. 50-445-OL, 50-46-OL and 50-445-CPA and any and all proceedings in any manner related to, or arising out of, said Dockets.
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Brazos agrees and covenants, from and af ter the Closing, to fully cooperate with 3 e acetric and provide all reasonably requestec: assistance, including providing the legal amstance of its attorneys (including Joseph Ilobert lilley, Spiegel & McDiar'nid And J peLe Purnell Itain lierrell), in a timely manner in conr ection with any legal proceedings (escludmg the Pending Litigation) involving Comunche Peak, including the licensing of comanche Peak by the NitC, including without limitation the ongoing antitrust review in connection therewith, and all proceedings involvibg Comanche Peak before the PUC to the extent of not opposing, or assisting any third party in opposing, the position being advocated by TU Electrie. Except as specifically provided otherwise in this Agreement, TU Electric shall promptly reimburse Brazos for any and al! reasonable outef-pocket expenses and any and all reasonable outside professional fees, including, without
, limitation, attorneys fees, incurred by Brazos in !'.oviding such cooperation.
l 9.8 TU Electric Actions and Litigation Costs. Within three (3) Uusiness Days after the Closing, TU Electric shall cause the dismissal, with prejudice to the refiling of same in any forum and in any form whatsoever, of all of its Subject Claimt against 13razos in the Pending Litigation; provided, however, that TU Electric shall have the right to retain Brazos as a party to the Pending Dallas Suit, not for the purpose of seeking any affirmative rehef against or from Brazo; but for the purpose of defeating a possible contention on the part of the other partjes thereto with respect to the absence of a i
necessary party to TU Electric's Subject Claims against the other parties in said case (it being understood that TU Electric's position is that any such contention would not be vahd). TU Electric shall promptly reimburse Brazos for any and all expenses reasonably incurred because of any such retention of Brazos by TU Electric in the Pending Dallas Suit. It is expressly understood that nothing herein shallin any manner affect, diminish or impair TU Electric's right to fully prosecute any and all of its Subject Claims against the other parties in the Pending Litigation. Except as provided otherwise above, all costs and expenses related to or incurred in connectior, with the Pending Litigation shall be borne and paid by the party by whom incurred or to which they are related.
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g,9 i Termina tion of Joint Ownership Agreement Relationship. Except as otherwise provided in Section 9.5 hereof with respect to TU Electric's assumption of Srazo5' obligations under the Joint Ownership Agreement, Brazos and TU Electric hereoy t
j q.ree that, upon the Closing, trae Joint Ownership Agreement, as between Brazos and i TU Elcetro- shall be deemed terminated and of no further force and effect as between t
them, it being understood that under the circumstances described in Article !!, Section 6 I
of the Deed of Trust ths Jomt Ownership Agreement may be reinstated.
ARTICLE X TERMINATION OF AGREEMENT l
10.1 Termination of Agreement by TU Electric. In the event at any time af ter TU Electric's having given written notice of intent to terminate this Agreement and the lapse of two (2) Business Days of discussion (which shall take place within five (5) days of I
said written notice of intent) between Brazos and TU Electric with respect thereto, TU Electric reasonably determines that the Closing cannot occur for reasons that are beyond TU Electric's control, TU Electric may terminate this Agreement upon seven (7)
Business Days' written notice of termination from TU Electric to Brazos, and Brazos i
agrees to promptly refund and pay to TU Electric the Signing Payment, plus in addition thereto an incremental amount calculated from the date of receipt of the Signing
) Payment by Brazos at the rate of eight and one-half percent (8-l/2%) per annum. Brazos g
agrees that it shall have no right to withhold payment of any amounts it agrees to pay herein in respect to or on the basis of its alleged claims in the Pending Litigation.
Payment by Drazos of such funds to T1) Electric shall constitute acceptance by Brazos of TU Electric's right to terminate this Agreement under the circumstances. In the event of such termination, the rights of the parties with respect to Comanche Peak shall be l
i governed by the Joint Ownership Agreement, the Transmission Agreement executed on July 25, 197 9, and the appilcable law as determined and applied in the Pending Litigation i
or the New lawsuit.
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10.2 Termination of Ai'reement by Brazos, in the event at ar.y time alter brazos' uving given written notice of intent to terminate this Agreement and the lapse of two (2)
Bus: ness Days of discussion (which shall take place within five (5) dhys of said written
, natice of intent) between Brazos and TU Electrie with respect thereto, Brazos reasonably
{ 3,termines that the Closing cannot occur for reasons that are beyond Brazos' control, Brazos may terminate this Agreement upon seven (7) Business Days' written notice of
- ermiration from Brazos to TU Electric and Brazos will immediately refund and pay to TU Electric the Signing Payment pits in addition thereto an incremental amount esiculated from the date of receipt of the Signing Payment by Brazos at the rate of eight 5
and one-half percent (8-1/2%) per annum. Brazos agrees that it shall have do right to althhold payment of any amobnts it a e,rees to pay herein in respect to or on the basis of its alleged claims in the Pe'iding Litigation. Acceptance by TU Electric of the return of ruch funds from Brazo*, shall constitute acceptance by TU Electric of Brazos' right to terminate this Agreement under the circumstances. In the event of such termination, the rights of the parties with respect to Comanche Peak shall be governed by the Joint Ownership Agreement, the Transmission Agreement executed on July 25, 1979, and the appbeable law as determined and applied in the Pending Litigation or the New lawsuit.
10.3 Automatic Termination. Unle:;s either the Closing has occurred or there is a written agreement signed by TU Electric and Brazos to extend the date set out in this i
l paragraph, this Agreement shall automatically terminate at 5:00 p.m., Dallas, Texas time, on the date which is at the end of nine (9) months after the date hereof, without any need for the giving of notice or any other action by either TU Electric or Brazos. In the event such termination occurs, Brazos will itnmediately refund and pay to TU Electric the Signing Payment, plus in addition thereto an incremental amount calculated from the date
, of receipt of the Signing Payment by Brazos at the rate of eight and one-half percent (8-1/2%) per annum. Payment by Brazos and acceptance by TU Electric of the amount set forth in this paragraph shall constitute acceptance by TU Electric and Brazos of termination of this Agreement. In the event of such termination, the rights of the parties
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with respect to Comanche Peak shall be governed by the Joint Ownership Agreement, the
! nansmission Agreement executed on July 25,1979, and the applicable law as determined and applied in the Pending Litigation or the New Lawsuit, g 10.4 Termination of Covenants, Releases and Indemnifications. If this Agreement l i3 ter ninated pursuant to the provisions of Article X hereof and all amounts specified therein are refunded and paid by Brazos to TU Electric, all releases, covenants not to sue, indemnifications, assumptions and guaranties hereunder or contained in any exhibit hereto shall be void and of no ef fect whatsoever.
AltTICLE XI i
MISCELLANEOUS PROVISIONS I
11.1 Dulk Sales Law Waiver. To the extent it may lawfu!!y do so, TU Electric hereby waives compliance by Brazos with the bulk Sales law of any jurisdiction, if applicable, with respect to the transactions contemplated hereby, and Brazos agrees to nold TU Electric harmless from and against any liability, loss, cost or expense, including reasonable attorneys' fees, which TU Electric may sustain by reason of such l noncompliance. TU Electric agrees to give Brazos prompt notice of the assertion of any claim resulting from such noncompliance.
11.2 Further Assurance. Brazos agrees that, af ter the Closing, it will from time i
to time, upon the reasonable request of TU Electric, execute, acknowledge and deliver in I
proper form any instrument of conveyance or further assurance necessary for perfecting in TU Electric or its successors and assigns, as the case may be, the title to tne Purchased Assets or for carrying out the purpose and intent of this Agreement.
11.3 No Bird Party Beneficiaries. De parties hereto acknowledge and agree that this Agreement is entered into for the sole benefit of TU Electric, TUC, Brazos and l
Drazos' Members, their respective successors and assigns (to the extent permitted) and, to the extent specifically and expressly set forth elsewhere in this Agreement, their respective insurers, agen ts, servants, employees, officers, directors, suosidiaries, affiliates, representatives and customers, and that nothing in this Agreement shall be
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construed as giving any right. benefit, aemedy or claim to any person, firm, corporation or other entity, ct'ler than TU Elect"ic, TUC, Brazos and Brazos' Members, their respective successors and assigns (to the extent perrnitted) and, to it.e extent specifically snd l expressly set fceth elsewhere in this Agreement, their respective insurers, egents, servants, employees, o f ficers, directors, subsidiaries, affiliates, representatives and casto.1ers. Without in any way limiting the foregoing provisions, it is expressly I
understood that nothing in this Agreement shall affect any of the rights, obligstions and remedies among 1 U Electric and TMP A and Tex-La under the Joint Ownership Agree"1ent
, or otherwise.
11.4 Default. In the event of default in performance hereunder by either Brazos or TU Electric, the nondefaulting party shall be entitled to all remedies legally available to it including the remedy of specific performance, the parties hereto agreeing that no l
odequate remedy at law exists.
11.5 Property and Transfer Taxes.
(a) Proper ty Taxes. All real and personal property taxes, and other j similar taxes, charges, and fees imposed on or with respect to or measured by the Purchased Assets not heretofore paid by Brazos shall l be the responsibility and liability of TU Electrie, except for such
) taxes, charges and fees caused by the action or inaction cf Brazos I
individually or in combination with any of the Owners other than TU Electric or the Project Manager.
(b) TYansfer Taxes. The payment of any and all real estate transfer, stamp, documentary, deed and recording taxes and fees, and all sales and excise taxes imposed in connection with the Purchased Assets or the sale or trans."er of the Purchased Assets shall be the responsibility and liability of TU Electric.
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11.6 Expensep Brazos and TU Electric shall each pay all expenses incurred by them respectively in connection with this Agreement, including the fees of their respective counsel and account.ints, if any, except as may be otherwise provided, j 11.7 gverning Law. 1his Agreement shall be construed, and the provisions hereof l
3ns11 be enforced, in accordance with the laws of the State of Texas.
11.8 Announcements. All press releases or other announcements by TU Electric or Brazos prior to or in connection with the execution of this Agreement shall be approved by Brazos and TU Electric prior to the issuance thereof, which approval shall not be i
unreasonably withheld.
11.9 Entire Agreement, Amendments. 'this Agreement, and the other documents delivered pursuant hereto, constitute the entire agreem ent between Brazos and TU Electric relating to the subject matter hereof and supersede all other prior e
agreements, representations and understandings between the parties. No supplement to, or modification or amendment of, this Agreement shall be binding, unless executed in writing by both Drazos and TU Electric, i 11.10 Assigns, etc. This Agreement shall be binding upon and inure to the benefit of Brazos and its Members, and TU Electric and TUC, and their respective successors and assigns but shall not confer any rights upon any third persons except to tn( extent
, expressly provided hercin. ois Ag eement may not be assigned by Brazos without the I
written consent of TU Electric or by TU Electric without the written consent of Brazos.
11.11 Notices. All notices, requests, demands and other communications under this L Agreement shall be in writing and shall be deemed to have been duly given (a) if served i personally on the party to whom notice is to be given at the addresses and to the attention i of the persons named as follows, or (b) if sent by telex or nationally recognized overnight 1
i delivery service, or (c) by first class mail, postage prepaid, certified and return receipt i
> requested, and properly addressed as follows:
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g) To Drazos att Drazos Electric Power Cooperative, Inc.
P. O. Dox 2585 Waco, Texas 76702-2585 Attention: Richard E. McCaskill For Federal Express:
Brazos Electric Power Cooperative, Inc.
, 2404 LaSalle Avenue Waco, Texas 76706 Attention: Richard E. McCaskill (with copy to) i Joseph Robert Riley Law Offices of Joseph Robert Riley 500 RepublicBank Tower P. O. Box 153 Waco, Texas 76703 (b) To TU Electric at:
Texas Utilities Electric Company 2001 Dryan Street Suite 1900 Dallas, Texas 75201 Attention: Erle Nye v
(with copy to)
Worsham, Forsythe, Sampels & Wooldridge 2001 IWyan Street Suite 3200
- Dallas, Texas 75201 1
Attention: Robert A. Wooldridge 11.12 Headings, The division of this Agreement into Articles and Sections and the l l insertion of headings are for convenience of reference only and shall not affect the
- construction or interpretation of this Agreement.
11.13 Execution and Counterparts. '!his Agreement may be executed in any number of counterparts, each and all of which shall be deemed for all purposes to be one l agreement.
11.14 Interest on Past Due Payments. In the event that Crazos oc TU Electric fails to timely make any payments to the other which become due under this Agreement, the
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j incrernental amount due on the past due payment for the period between t.nd includmg the due date and the date actually paid shall be calculated at the rate of twelve and one-nalf percent (12-1/2%) per annum.
g 11.15 Use of Representations or Recitals. Any representations or recitals made oy )
l 97,zos and TU Electric in this Agreement are for the purposes of this Agreement only. In the event that this Agreement is terminated or does not timely close at the Closing Date,
,either Brazos nor TU Electric shall use, as evidence or otherwise, any such representations or recitals against the other in any way in the New Lawsuit or any other lawsuit concerning any Subject Claims which have been made in the Pending Litigation.
11.16 Separate Litigation. Any Subject Claims arising out of or under this tgreement shall be prosecuted in a lawsuit separate from the inwsuit in which any Subject Claims which have been made in the Pending Litigation are prosecuted, 11.17 Construction of Comanche Peak. If TU Electric continues to believe that the completion of Comanche Peak is economically and otherwise feasible, TU Electric covenants that it will use its best efforts to complete, or cause to be completed, the construction of Comanche Peak and placing the same in operation.
I
, 11.18 Severability. The parties hereto agree that the various obligations and undertakings specified in this Agreement and iri the other agreements or instruments referred to herein are each mutually dependent upon one another and, in the event that any fundamental or essential provision of this Agreement or any of such other agreements I
or instruments is finally determined to be invalid, illegal or unenforceable by a court or
{ administrative body having jurisdiction, TU Electric and Brazos hereby agree to conduct l
good faith negotiations for the purpose of reaching a mutually acceptable written agreement to replace the deleted provision with a provision which will most nearly accomplish the purpose and intent of the deleted provision. Falling to reach such a 1
mutually acceptable agreement, the parties shall rescind the transactions provided for herein and therein.
l 1
l -5 5 -
_ ~ - --.- .
_ y
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11.19 Time of the Esser.ce. Time is of the essence in the performance of this I
Agreement.
{
ig WITNESS WilEREOF, the parties hereto have executed this Agreement as of the l
l date set forth at the outset hereof.
1 c
i l
TEXAS UTILITIES ELECTRIC COMPANY (Corporate Seal)
ATTEST:
.:< 0L-Its:Ch5r$an of the Board and (
Chief Executive gy: M &cf W b b Corporate Secretary f BRAZOS ELECTRIC POWER
, COOPERATIVE, INC.
i (Corporate Seal)
&'f. '
/ f /
Its: Executive V.P./ G.M. '
f l ATTEST:
- ~ A=J n
- tst / secTetv4
)
-6 6 -
_ - . - . . - . . . . 1
EXHIB!T J RELEASE S
STATE OF TEXAS S
COUNTY OF MC LENNAN 5 1
For and in consideration of the agreements, undertakings, promises, and covenants
,', of TU Electric, TUC, and their subsidiaries and affiliates set forth in the Agreement, I
including without limitation the contemporaneous delivery to Brazos by TU Electric of (1) a Release releasing certain claims which TU Electric, TUC, and their subsidiaries and i
f affiliates have or may have against Brazos, its Members and customers (including the customers of Brazos' Members and other wholesale customers), (2) a Covenant Not in Sue
' under which TU Electric, for itself and on behalf of TUC, and their subsidiaries and I
affiliates and on behalf of any person or entity, private or governmental, claiming by, through or under TU Electric or TUC, covenants not to sue upon certain claims which they may have against Brazos or its Members, and (3) an Assumption and Indemnity Agreement i
under which TU Electric assumes certain duties, responsibilities, liabilities and obligations I of Brazos, its Members and customers (including the customers of Brazos' Memters and l
i other wholesale customars), and grees to indemnify Brazos, its Members and customers 3
(including the customers of Brazos' Members and other wholesale customers), against certain claims, the adequacy and sufficiency of such consideration being hereby 1 acknowledged and confessed, Brazos hereby agrees to the following:
1 L Def aitions. As used herein, the following terms have f.he fouowing meanings:
)
A. " Agreement" means that certain Agreement dated July 5,1986, by and k between Erazos and TU Electric.
"Brazos" means Brasus Electric Power Cooperativa, he.
- 5) B.
C. " Comanche Peak" means the nuclear-fueled electric generating facility
) under construction on certain lands situated in Hood and Somervell Counties, Texas, and 1
E consisting of two units having a nominal carecity of 1,150 megawatts each, and related
. M k.. __ .____
i
prop,, ties, and is the aggreg:te end combination of the Station, Pu21, and Transmtssion getlities, and all other rights and interests associated with or relating thereto.
D. " Fuel" means the Comanche Peak nuclear fuel, irrespective of chemical
- and'or physical form, and the rights and interests related thereto.
I E. "JOA" means that certain instrument entitled on the cover page thereof JOINT OWNERSHIP AGREEMENT BETWEEN DALLAS POWER & LIGHT COMPANY, TEXAS ELECTRIC SERVICE COMPANY, TEXAS POWER & LIGHT COMPANY, TEXAS I
UTILITIES GEN E R ATING COMPANY, TEXAS M U NICIP A L POWER AGENCY AND BRAZOS ELECTRIC POWEP COOPERATIVE, INC. FOR COMANCHE PEAK STE AM I
ELECTRIC STATION," executed on January 2,1979, together with and as modified by that certain instrument entitled on the cover page thereof " Modification of Joint Ownership Agreement Between Dallas Power & Light Company, Texas Electric Service I
g Company, Texas Power & Light Company, Texas Utilities Generating Company, Texas Municipal Power Agency and Brazos Electric Power Cooperative, Inc.: For Comanche Peak Steam Electric Station," executed on June 1,1979, together with and u amended by 1 (i) the Amendment of Joint Ownership Agreement, executed on December 9, 1980, between Dallas Power & Light Company, Texas Electric Service Company, Texas Power &
I Light Company, Texas Utilities Generating Company, TMPA, Brazos, and Tn-La,
- together with and as amended by (ii) the Second Amendment of Joint Ownership Agreement, executed on February 12, 1982, between Dallas Power & Light Company, h Texas Electric Service Company, Texas Power & Light Company, Texas Utilities I Generating Company, TMP A, Brazos, and Tex-La.
I F. " Members" means the twenty (20) Texas non profit electrie ecoperative i ectporations that are members of Brazos, u set out in Exhibit C to the Agreement.
I y
G. " Owners" means collectively TU Electric, Brazos, TMPA and Tex-La, as owners of Comanche Peak in accordance with the terms of the JOA, or singularly any of
]
f such parties.
A 4
. . . ;- ;w= -. -
H, "Pending Litigation" means Cause No. 399,48: ~. Brazos Electric Power gperative, Inc. v. Texas Utilities Company, Texas Utilities Electric Company, Texas gties Mining Company, and Texas Utilities Services Incorporated, - in tne District t Court of Travis County, Texas, 345th Judicial District; Cause No. 3 99,336 -Tex-la i Electric Cooperative of Texas, Inc., and Texas Municipal Power Agency v. Texas Utilities g Texas Utilities Electric Company - in the District Court of Travis County, Texas, 98th Judicial District; and Cause No. 86-6809-A - Texas Utilities Electric Company v.
Tex-te Electric Cooperative of Texas, Inc., et al. - in the District Court of Dallas j County, Texas,14th Judicial District.
L " Project Manager" means TU EJectric designated and acting as such in
, accordance (or purportedly in accordance) with the terms of the JOA.
j J. " Site" means approximately 7,669 acres owned (in fee or other estate or interest) by the Owners, as tenants in common, and located in Hood and Somervell Counties, Texas.
K. " Station" means the Site, all improvements thereon (including Squaw I'
Creek Lake and Park) and all fixtures and attachments thereto, as well as (i) all personal property thereon and associated therewith or related thereto and owned by the Owners, and (ii) all rights (tangible or intangible), and all easements and other interests of any nat. ire associated therewith or related thereto and owned by the Owners, excluding, however, the Fuel, and the Transmission Facilities.
I L '%bject C1 alms" means any and all c! aims, actions, controversies, causes of action, disputes, demands, and complaints of whatsoever kind or nature and whether known or unknown.
j M. " Tax-La" means Tex-La Electric Cooperative of Texas, Inc.
N. "TMPA" means Texas Municipal Power Agency.
O.
" Transmission Facilities" means the Comanche Peak - DeCordova 345 kV electrical transmission line approximately 14.4 miles in length, and associated rights-of-way, equipment, fixtures and personal property.
~ - - - - - -
- - - ~
C 3 I
p.
"TUC" means Texas Utilities Company, which is a Texas corporation and g, parent of TU Electrie.
g, "TU Electric" means Texas Utilities Electric Comptny, which is a Texas
- corpora tion.
[t, Release. Brazos, except as provided in paragraph !!! herein, for itself and on nehalf of any person or entity, private or governmental, claiming by, through or under i
Bretos including withous limitation, to the extent it has the standing and right under law to do so, its Members and customers (including the customers
'g of Brazos' Members and other wholesale customers) and its or their respective insurers, l ,g en ts, servants, e mployees, o ffic ers, directors, consultants, a ttorneys, and l
representatives does hereby waive, , elease. discharge, renounce, and relinquish any and all l Sodject Claims relating to Comanche Peak which it has or they have, or may have, whether known or unknown, coillingent or absolute, including, without limitation, those Dased on common law, whether contract (expressed or implied, including express or implied warranty) or tort (including, without limitation, intentional tort, negligence or I
gross negligence, sole, joint, nr concurrent) or strict liability or fraud, and those based I
upon any Federal, state, or local statute, law, order or regulation, including without 8
limitation, the Atomic Energy Act of 1954, as amended, the regulations of the United States Nuclear Regulatory Commission, the Securities Act of 1933, as amended, or the Securities Act of 1934, u amended, and any rule or regulation under either, the Texas I
j Securities Act (Title 19, Articles 581-1, et seq., V. A.T.S.) and the Texas Deceptive Trade I
Practices and Consumer Protection Act, against TU Electric or TUC, or both, in any capacity, wilether individually, as the Project Manager, or otherwise, and their respective j i: surers, agents, servants, employees, officers, directors, shareholders, consultants, l
attorneys and representatives, past and present, and any and all of their respective 4
successors, subsidiaries, and affiliates, and their respective insurers, agents, servants,
) employees, officers, directors, shareholders, consultants, attorneys, and representatives, past and present.
I i
((L Exceptions to Release. Brazos specifically does not release the following:
(a) Any Subject Claims arising out of or under the Agreement or any of the t
agreements or instruments to be delivered by TU Elcetric or TUC pursuant to the
} Agree men t, j (b) Any Subject Claims which could not have been brought in the Pending I
(
Litigation and which accrue on or after the Date of Commercial Operation (as that I
term is defined in the JOA) and which are based upon the acts or omissions of TU Electric or the Project Manager other than acts or omissions in connection with
} the planning, design or construction (or the management thereof) of Comanche Peak.
, IV. Covenant. Brazos hereby covenants and warrants that it has not assigned any l Subject Claims that are hereby released.
V. Con trol. To the extent any provision of this Release conflicts with any provision in Section 9.1 of the Agreement, this Release shall control as to the agreement of the parties.
l I
EXECUTED this the day of ,1988, as duly authorized I
by an appropriate resolution of its Board of Directors.
l 3
BRAZOS ELECTRIC POWER COOPER ATIVE, INC.
I (Corporate Seal) By:
ATTEST: Its:
3 By
. IlS I
.M k_ __
ggg* ~ *-
P.XilIBIT E COVEN ANT NOT TO SUE 5
STATE OF TEX AS
) COUNTY OF MC LENN AN 5 i For and in consideration of the agreements, undertakings, promises, and covenants l
of TU Electric, TUC, and their subsidiaries and affiliates set forth in the Agreement,
)
including without limitation the contemporaneous delivery to Brazos by TU Electric of (1) a Release releasing certain claims which TU Electric, TUC, and their subsidiaries and I
affiliates have or may have against Brazos, its Members and customers (including the l
l customers of Brazos' Members and other wholesale customers), (2) a Covenant Not to Sue under which TU Electric, for itself and on behalf of TUC, and their subsidiaries and I
affilletes and on behalf of any person or entity, private or governmental, claiming by, through or under TU Electric or TUC, covenants not to sue upon certain claims which they may have against Brazos or its Members, and (3) an Assumption and indemnity Agreement
,1 under which TU Electric assumes certain duties, responsibilities, liabilities and obligations of Brazos, its Members and customers (including the customers of Brazos' Members and I
other wholesale customers), and ag ees to indemnify Brazos, its Members and customers i
(including the customers of Brazos' Members and other wholesale customers), against certain claims, the adequacy and sufficiency of such consideration being hereby acknowledged and confessed, Brazos he eby agrees to the following:
1.
Definitions. As used herein, the following terms have the following meanings:
l A. "Agre6.nent" means that certain Agreement dated July 5,1988, by and l
l between Brazos and TU Electric.
B. "Brazos" means Drazos Electric Power Cooperative, Inc.
C. " Comanche Peak" means the nuclaar-fueled electric generating facility
(
under construction on certain lands situated in Hood and Somervell Counties, Texas, and 4
l consisting of two units having a nominal capacity of 1,150 megawatts each, and related I
l
_M k E
ertics. and ts th2 aggrcgato and comoination of tha Station, Fu21, and Tratismission 7,elities, and an other rights and interests associated with or relating thereto.
D. " Fuel" means the Comanche Peak nuclear fuel, irrespective of chemical and/or physical form, and the rights and interests related thereto.
E. "JOA" means that certain instrument entitled on the cover page thereof 10lgi OWNERSHIP AGREEMENT BETWEEN DALLAS POWER & LIGHT COMPANY.
TEXAS ELECTRIC SERVICE COMPANY TEXAS POWER & LIGHT COMPANY, TEXAS UTILrTIES GEN ER ATING COMPANY, TEXAS M U NICIP AL POWER AGENCY AND SRAZOS ELECTRIC POWER COOPERATIVE, INC. FOR COMANCh2 PEAK STEAM l ELECTRIC STATION," executed on January 2,1979, together witti and as nadified by that certain instrument entitled on the cover page thereof " Modification of Joint l
Ownership Agreement Between DaBas Power & Light Company, Texas Electric Service I
Company, Texas Power & Light Company, Texas Utilities Generating Company, Texas I
Municipal Power Agency and Brazos Electric Power Cooperative, Inc.: Por Comanche Peak Steam Electric Station," executed on June 1,1979, together with and as an. ended by (i) the Amendment of Joint Ownership Agreement, executed on December 9, 1980,
, between Dauas Power & Light Company Texas Electric Service Company, Texas Power &
) Light Company, Texas Utilities Generating Company, TMPA, Brazos, and Tex-La,
- together with and as amended by (ii) the Second Amendment of Joint Ownership Agreement, executed on Petruary 12, 1982, between DaHas Power & Light Company, Texas Electric Service Company, Texas Power & Light Company, Texas Utilities Generating Company, TMPA, Brazos, and Tex-La.
F F. " Members" means the twenty (20) Texas non-profit electric cooperative
( corporatiorts that are members of Brazos, as set out in Exhibit C to the Agreement.
[ G. " Owners" means conectively TU Electric, Brazos, TMPA and Tex-La, as owners of Comanche Peak in accordance with the terms of the JOA, or singularly any of such pnrties.
.- ~ ' O .L_.7
}{, "P:nding Litigation" means Cause No. 399,482 - Brazos Electric Poaer rative, Inc. v. Texas Utilities Com;>ag Texas Uttlities Electric Company, Texas M'-
bties Mining Company, and Texas Utilities Services incorporated, - in the District tt of Travts County, Texas, 345th Judicial District; Cause No. 399,336 'ex-La I
M,-< etric Cooperative of Texas, Inc., and Texas Municipal Power Agency v. Texas Uttlities
,1 and Texas Utihties Electric Company. - in the District Court of Travts County, Texas, 99th Judicial District; and Cause No. 86-6809-A - Texas Utihties Electric Company v.
I rex-La Electric Cooperative of Texas, Inc., et al. - in the District Court of Dauas County, Texas,14th Judicial District.
l !. " Project Manager" meats TU Electric designated and acting as such in accordance (or purportedly in accordance) with the terms of the JOA.
J. " Site" means spproximately 7,669 acres owned (in fee or other estate or I
interest) by the Owners, as tenants in common, and located in ilood and Somervell Counties, Ter.as.
K. " Station" means the Site, all improvements thereon (including Squaw Creek Lake and Park) and all fixtures and attachments thereto, as well as (i) ad >ersonal property thereon and associated therewith or related thereto and owned by the Owners,
, and 01) all rights (tanoble or intangible), and all easements and other biterests of any j nature associated therewith or related thereto and owned by the Owners, excluding, however, the Fuel, and the Tranrmission Pacilities.
L. " Subject Claims" means any and all claims, actions, controversies, causas of action, disputes, demands, and complaints of whatsoever kind or r.ature and whether known or unknown.
I M. " Tex-La" means Tex-La Electric Cooperative of Texas. Inc.
, N. "TMPA" means Texas Municipal Power Agency.
O. " Transmission Facilities" means the Comanche Peak -
DeCordova 345 kV electrical transmission line approximately 14.4 miles in length, and associatt.1
( rights-of-way, equipment, fixtures and pranal property.
W
l p.
"TUC" means Texas Utilities Company, which is a Texas corporation and the Parent of W ElecW.
Q. "TU Electric" means Texas Utilities Electric Company, which is a Texas corpora tion, j [1, covenant Not to Sue and Agreement Not to Challenge. Brazos, except as
\
j provided in paragraph !!! herein, for itself and on behalf of any persori or entity, private or I
governmental, c'.alming by, through, or under trazos, including without limitation, to the extent it has the standing and right under law to do so, its Members and customers i
bneluding the customers of Drazos' Members and other wholesale customers) and its or their respective insurers, agents, servants, employees, officers, directors, consultants, attorneys, and representatives, does hereby covenant and sgree I (a)
Dat it and they, individually, collectively, or in any combination, will forebear from asserting against, and never sue for or look for satisfaction with respec t to, TU Electric, TUC, and their respective insurers, agents, servants, t' employees, o f ficers, direc tor s, shareholders, consultants, attorneys, and
)
i i representatives, past and present, and any and all of their respective successors, subsidiaries, and a f filiates and their respective insurers, agents, serv ants, employees, officers, direc tors, shareholders, consultants, a ttorneys, and _
representatives, past and present, with respect to any Subject Claims (including without limitation any Subject Claim against any contractor, subcontrac tor, supplier, consultant, vendor or other person, firm or entity in privity in any manner with any of them which may therefor or as a result thereof have a right over or i Sublxt claim in subrogation)in any manner involving, concerning, arising out of, or relating to, the design, construction, management, and licensing of, or any other matter relating to, Comanche Peak, and the management, procurement, conversion, enrichment, fabrication, shipping, transportation, and storage of the Puol.
l
l (b) Trot neith2r it nor thsy, individually, collectively, or in e.ny combmation, l l
will directly or indirectly challenge, contest, or assert any complaint in any court or i l eefore any administrative agency or body or in any other forum whatsoever with respect to, or in any manner involving, concerrung, arising out of, or relating to, t
Comanche Peak and the incidents and attributes thereof including, witnout limitation: (1) the design, construction, management, and licensing of Comanche Peak or any other aspect thereof, (2) the costs and schedule of construction and i
completion of Comanche Peak, (3) the reasonableness, prudency, or efficiency of the planning, design, constri'etion, management, and licensing of Comanche Peak, (4) i the reasonableness, prudency, or efficiency of the managem ent, procurement, conversion, enrichment, fabrication, shipping, transportatien, ruid storage of the Fuel, (5) the costs incurred in connection with the management, procurement, conversion, enrichment, fabrication, shipping, transportation, and storage of the fuel, (6) the breach of the JOA and any erpress or implied warranties arising out of
, the JOA, (7) any representation, misrepresentation, disclosure, or non-disclosure in connection with the negotiations, or preceding the execution by Brazos of the JOA, J
l (8) in connection with the performance or nonperformance by TU Electric of its
( ,
duties, responsibilities or obligatiora under the JOA as Project Manager or
! , otherwise, (9) the failure of TU Electric to pursue any remedies, either at law or otherwise, that may be, or may have been, available against any and all contractors, l
subcontractors, suppliers, consultants, vendors, or others with respect to Comanche Peak (including separately the Station, Puel or Transmission Facilities), and (10) on t
1 l account of anything that has occurred or may have occurred, in whole or in part 1
with respect to Comanche Peak (including separately the Sta tion, Puel or Transmission Facilities) and the incidents and attributes.thereof, and any of the foregoing whother known or unknown.
t
[
l -s-l J,L
, g], Exe:ptions to Covenant Not to Sue end Agrument Not to Challenge. Bra zos jfjeaily does not covenant not to sue, and specifically does not agree to not assert, enallenge or contest, with regard to (a) Any Subject Claims arising out cf or under the Agreement or any of tne otner agreements or instruments delivered pursuant to the Agreement.
, (o) Any Subject Claims which could not have been brought in the Pending Litigstion and which accrue on or af ter the Date of Commercial Operation (as that I
term is defined in the JOA) and which are based upon the acts or omissions of TU Electric or the Project Manager other than acts or omissions in connection with I
the planning, design or construction (or the management thereof) of Comanene 1
Peak.
(c) Any defenses which Brazos has or may have to Subject Claims asserted I
against Brazos by any persons or parties whomsoever, provided that Brazos may not seek any type of effirmative relief hereunder against TU Electric, TUC, or both,
, their successors, sutzsidiaries and affiliates, or its or their respective insurers, agents, servants, employees, officers, directors, shareholders, consultants, attorneys and representatives.
4 (d) Any counterclaims which Brazoo has or may have against any party other j
than TU Electric, TUC, or both, their successors, suosidiaries and affiliates, or its or l their respective insurers, agents, servants, employees, officers, directors, shareholders, consultants, attorneys and representatives, acting in such capacity, with respect to any Subject Claims being asserted against Brazos by anyone other
, )
than TU Electric, TUC, or both, their successors, subsidiaries and affiliates, or its or i b their respective insurers, agents, servants, employees, officers, directors, shareholders, consultants, attorneys and representatives.
l <
l l
l 2
4 (e) Any proce: ding in which TV Electric's rates cre being determined, provided that Brazcs shall not oppose, or assist any trurd paty opposition to, tne inclusion in TU Electric's rates of any and au costs related to Comanche Peak.
gy. Control. To the extent any provision of thu Covenant Not to Sue conniets k witn any provision in Section 9.2 of the Agreement, this Covenant Not to Sue shall control 35 to tne agreement of the parties.
EXECUTED this the day of ,1988, as duly autnorized g
py an appropriate resolution of its Board of Directors.
i t
BRAZOS ELECTRIC POWER
{ COOP E R ATIV E, IN C.
i e
(Corporate Seal) By:
ATTEf its:
I By:
lts:
i
-i i
I i
3 4
4 1
1 1
1 k.
l EXHIBIT L RELEASE S
STATE OF TEX AS S
COCm OF DAM For and in consideration of the agreements, undertakings, promises, and covenants of Brazos, including withe 1 timitation the contemporaneous delivery to TU Electric by Brazos of (1) a Release w easing certain claims which Brazos and any other person or l
1 entity, private or gove...mr .tal, claiming by, through, or under Israzos, inclue.ing, to the extent it has the standing and right under law to do so, Brazos' Members and customers (and the customers of Brazos' Members and other wholesale customers), have or may have against TU Electric, TUC, or their subsidiaries and affiliates, (2) a Covenant Not To Sue under which Brazos, for itself and on behalf of any person or entity, private or .,
governmental, claiming by, through or under Drazos, including, to the extent it has the
, standing and right under law to do so, Brazos' Members and customers (and the customers i of Brazos' Members and other wholesale customers), covenants not to sue upon certain l claims which they have or may have against TU Electrie, TUC, or their subsidiaries and l
affiliates, and (3) an Indemnity Agreement under which Brazos indemnifies TU Electric against certain claims, the adequacy and sufficiency of such consideration being hereby acknowledged and confessed, TU Electric hereby agrees to the following:
L Definitions. As used herein, the following terms have the following meanings:
A. " Agreement" means that certain Agreement dated July 5,1988, by and between Brazos and TU Electric.
1 B. "Brazos" means Brazos Electric Power Cooperative, Inc.
C. " Comanche Peak" means the nuclear-fueled electric generating facility under construction on certain lands situated in Hood and Somervell Counties, Texas, and consisting of two units having a nominal capaclty of 1,150 megawatts each, and related
.t.
perties, and is the eggregate end combination of the Station, Fuel, and Transmasien g,cilities, and all other rights and interests associated with or relating thereto.
D. " Fuel" means the Comanche Peak nuclear fuel, irrespective of chemical
,ngor physical form, and the rights and interests related thereto.
! E. "JOA" means that certain instrument entitled on the cover page thereof
-JOINT OWNERSnfP AGREEMENT BETWEEN DALLAS POWER & LIGHT COMPANY, I
TEXAS ELECTRIC SERVICE CO' PANY, TEXAS POWER & LIGHT COMPANY, TEXAS UTILITIES GEN ERATING COMPnNY, TEXAS MUNICIPAL POWER AGENCY AND I
i 3RAZOS ELECTRIC POWER COOPERATIVE, INC. FOR COMANCHE PEAd STEAM ELECTRIC STATION," executed on January 2,1979, together with and as modified by j
that certain instrument entitled on the cover page thereof " Modification of Joint
' Ownership Agreement Between Dallas Power & Light Company, 'Pexas Electric Service Company, Texas Power & Light Company, Texas Utilities Ge'erating Company, Texas stunicipal Power Agency and Brazos Electric Power Cooperative, Inc.: For Comanche Peak Steam Electric Station," executed on June 1,1979, together wi' J as amended by (i) the Amendment of Joint Ownership Agreement, executed on De imber 9, 1980, l
3etween Dallas Power & Light Company, Texas Electric Service Company, Texas Power &
) Light Company, Texas Utilities Generating Company, TMPA, Brazos, and Tex-Ls, together with and as amended by (ii) the Second Amendment of Joint Ownership Agreement, executed on February 12,19G2, between Dallas Power A Light Company,
( Texas Electric Service Company, Tex:.s Power & Light Company, Texas Utilities Generating Company, TMP A, Brazos, and Tex-Lem F. "Mambers" means the twenty (20) Texas non-prefit electrie cooperative g cor;x> rations that are members of drazos, as set out in Exhibit C to the Agreement.
G. " Owners" means collectively TU Electric, Brazos, TMPA and Tex-La, as owners of Comanche Peak in accordance with the terms of the JOA, or singularly any of d
such parties.
)
l l
H. " Project Manager" means TU Electric designated and acting as such in l
,e ;rdance (or purportedly in accordance) with the bms of the JOA.
! " Site" means approx.imately 7,669 acres owned (in fee or other estate or mterest) oy the Owners, as tenants in comrnon, and located in Hood and Somervell counties. Texas.
J. " Station" means the Site, all improvements thereon (including Squaw I
Creeg Lake and Park) and all fixtures and attachments thereto, as well as (i) all personal property thereon and associated therewith or related thereto and owned by the Owners, l
I and (ii) all rights (tangible or intangible), and all easements and other interests of any i
nature associated therewith or related thereto and owned by the Owners, excluding, however, the Fuel, and the Transmission Facilities.
l 8
K. " Subject Claims" means any and all claims, ac' ions, controversies, causes of action, disputes, demands, and complaints of whatsoever kind or nature and whether known or unknown.
L. " Tex-La" means Tex-La Electric Cooperative of Texas, Inc.
M. 'TMPA" means Texas Municipal Power Agency.
I N. ' Transmission Facilities" means the Comanche Peak - DeCordova l
345 kV electrical transmission line approximately 14.4 miles in length, and associated rights-of-way, equipment, fixtures and personal property.
O. "Y UC" means Texas Utilities Company, which is a Texas corporation and the parent of TU Electric.
P. "TU Electric" means Texas Utilities Electric Company, which is a Texas corporation.
) II. Release. TU Electric, except as set out In paragraph III herein, on behalf of itself, TUC, their subsidiaries and affiliates, and on behalf of any. person oc entity, private or governmental, claimirg by, through or under TU Electrie or TUC, incitxhng without limitation, to the extent it has the st.anding and right under law to do so, their customers, 3
and on behalf of their respective insurers, agents, servants, employees, officers, directors, consultants, a ttorneys, and representatives, does hereby waive, release, discharge, renounce, and relinquish any and all Subject Claims relating to Comanche Peak which it has or they have, or may have, whether known or unknown, contingent or absolute,
.I including without limitation those based on commoi, law, whether contrar .xpressed or I
gplied. including express or implied warranty) or tett (including, without limitation, intentional tort, negligence or gross negligerca, sole, joint, or concurrent) or strict i
rability or fraud, and those based upon any Federal, State, or local "ute, law, order or regulation, including, w(*hout limitatier, the Atomic Energy Act c' as amended, the j
regulations of the United States Nuclear Regulatory (.,mmission, the Securities Act of i ;g33, as amended, or the Securities Act of 1934, as amended, and any rule or regulation under either, the Texas Securities Act (Title 19, Articles 581-!, et seq., V. A.T.S.) and the Texas Deceptive Trade Practices and Consumer Protection Act, against Brazos, its Members and customers (including the customers of Brazos' Members and other wholesale customers), whether individually or otherwise, and their resgective insurers, agents, servants, employees, officers, directors, consultants, attorneys and representatives, past i
i and present, and any and all of their respective successors, subsidiaries, and affiliatt., and their respective insurers, agents, servants, employees, officers, directors, me mbers, consultants, attc?ays, and representatives, past and present.
!!L Exceptions,+o pelease. TU Electric specificauy does not release with regard to:
(a) Any Subject Claimt arising out of or under the Agreemeit or any other 3 agreemeat or instrument e, ecuted and delivered punuant to the Agreement.
2 (b) Any rQht or authority to charge Brazos, its Members knd customers for any electric poww and energy purchssed by any of them from TU Electric in accordance wM. the rates set forth I. U Electric's tariff as same may be approved l
l f , , .
_...u__ - - - - ---- --
N.
and in effect from time to time even though said rates may include costs related to Comanche Peak.
(c) Any defenses which TU Electric has or may have to Subject Claims asserted against TU Electric by any persoris or parties whomsoever, provided that TU Electric may not seek any type of affirmative relief hereunder (other than rate l
.elief pursuant to the provisions of the Public Utility Regulatory Act, Article 1446c,
, V.A.T.S.) against Brazos, its Members and customers (including the custoniers of I
F:azos' Members and other wholesale customers), their respective insurers, agents, employees, officers, dire.etors, consultants, attorneys and representatives.
(d) A y counterclaims wnien TU Electrie has or may have agamst any party l other than brazos, its Members and customers (including the customers of Brazos' Members and other wholesale customers), their respective insurers, a gents, employees, officers, directors, consulttnts, attorneys and representatives, acting in i
such capacity (other than in connection with rste relief pursuant to the provisions of the Public Utility Regulatory Act, Article 1446c, V.A.T.S.) with respect to any l Subject Claims being asserted against TU Electric by anyone other than Brazos, its t
l Membe and customers (including the customers of Brazos' Members and other i
wholesale customers), individually or otherwise, their respective insurers, agents, employees, officer *, directors, consulants, attorneys and representatives.
IV. Covenant. TU Electric hereby covenants and warrants that it ha? not assigned L any Subject Claims that are hereby released.
V. Control. To the extent any provision of this Release conflicts with any provision in Section 9.3 of the Agreement, this Release shall control as to the agreement c the parties.
EXECUTED this the day of ,1988, as duly authorized j by an appropriate resolution of its Board of Directors, l
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. . , . .. : _ 7 TEXAS UTILITIES ELECTRIC COMPANY By:
pate Seal)
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EXilIBIT M COVEN ANT NOT TO SUE S
STATE OF TEX AS S
S cocNTY OF DALLAS I
l For and in consideration of the agreements, undertakings, promises, and covenants of Brazos, including without limitation the contemporaneous delivery to TU Electric by l
Brazos of (1) a Release releasing certain claims which Brazos and any other person or
, entity, private or governmental, claiming by, through, or under Brazos, includins, to the l
extent it has the standing and right under law to do so, Brazos' Members and customers (and the customers of Brazos' Members and other wholesale customers), have or may have against TU Electric, TUC, or their subsidiaries and affiliates, (2) a Covenant Not To Sue .
under which Brazos, for itself and on behalf of any person or entity, private or governmental, claiming by, through or under Brazos, including, to the extent it has the standing and right under law to do so, Brazos' Members and customers (and the customers j of Brazos' Members and other wholesale customers), covenants not to sue upon certain claims which they have or may have against TU Dectric, TUC, or their subsidiaries and
$ affiliates, and (3) an Indemnity Agreement under whl2h Brazos indemnifies TU Dectric against certain claims, the adequacy and sufficiency of such consideration being hereby acknowledged and confessed, TU Doctric hereby agrees to the following:
L Definitions. As used herein, the following terms have the following meanings:
A. " Agreement" maans that certain Agreement dated July 5,1988, by and between Brazos and TU Dectric.
l I
B. "Brazos" means Brazos Sectric Power Cooperative, Inc.
C. " Comanche Peak" means the nuclear-fueled electric generating facility under construction on certs a leads situated in liood and Somervell Counties, Texas, and consisting of twc, units having a nominal capacity of 1,150 megawatts each, and related l
- 4
operties, and is the aggrogate and combination of the Station, Fuel, and Transmtssion 7,eilities, and all other rights and interests associated with or relsting thereto.
D. " Fuel" means the Comanche Peak nuclear fuel, irrespective of chemical
,or physical form, and the rights and interests related thereto.
E, "JOA" means that certain instrument entitled on the cover page therof
,, JOINT OWNERSHIP AGREEMENT BETWEEN DALLAS POWER & LIGHT COMPANY, TEXAS EL ECTRIC SERVICE COMPANY, TEXAS POWER & LIGHT COMPANY. TEXAS I
UTILITIES GEN ERA TING COMPANY, TEXAS MUNICIPAL POWER AGENCY AND BRAZOS ELECTRIC POWER COOPERATIVE, INC. POR COMANCHE PEAK STEA M i
t ELECTRIC STATION," executed on January 2,19/9, together with and as modified by l
that certain instrument entitled on the cover page thereof " Modification of Joint Ownership Agreement Between Dallas Power & Light Company, Texas Electric Service I
l Company, Texas Power & Light Company, Texas Utilities Generating Company, Texas Municipal Power Agency and Brazos Electric Power Cooperative, Inc.: For Comanche Peak Steam Electric Station," executed on June 1,1979, together with and as amended by (i) the Amendmer.t of Joint Ownership Agreement, executed on December 9, 1930, detween Dallas Power & Light Company, Texas Electric Service Company, Texas Power &
Light Company, Texas Utilities Generating Company, TMP A, Brazos, and Tex-La, together with and as (mended by (ii) the Second Amendment of Joint Ownership Agreement, executed on February 12, 1982, betwwn Dallas Power & Light Company, Texas Electric Service Company, Texas Power & Light Company, Texas Utilities Generating Company, TMP A, Brazos, and Tex-La.
P. " Members" means the twenty (20) Texas nor profit electric cooperative I
corporations that are members of Brazos, as set out in Exhibit C to the Agreement.
G. " Owners" means collectively TU Electrie, Brazos, TMPA and Tex-La, as owners of Comanche Peak in accordance with the terms of the JOA, or singularly any of such parties.
2
H. " Project Manager" means TU Electric designated and acting as such in secordance (or purportedly in accordance) with the terms of the JOA.
L " Site" means approximately 7,669 acres owned (in fee or other estate or interest) by the Owners, as tenants in common, and located in Hood and Somervell Counties, Texas.
.l J J. " Station" means the Site, all improvements theresh (including Squaw l Creek Lake and Park) and all fixtures and attachments thereto, as well as (i) all personal property thereon and associated therewith or related thereto and owned by the Owners, and (ii) au rights (tangible or intangible), and all easements and other interests of any nature associated therewith or related thereto and owned by the Owners, excluding,
)i however, the Fuel, and the Transmission Facilities.
K. " Subject Claims" means any and all claims, actions, controversies, causes of action, disputes, demands, and complaints of whatsoever k' d or nature and whether known er unknown.
L. " Tex-La" means Tex-La Electric Cooperative of Texas, Inc.
N.
" Transmission Facilities" means the Comanche Peak - DeCordova 345 kV electrical transmission line approximately 14.4 miles in length, and associated rights-of-way, equipment, fixtures and personal property.
O. "TUC" means Texas Utilities Company, which is a Texas corporation and the parent of TU Electrie.
P. "TU Electric" means Texas Utilities Electric Company, which is a Texas corporation.
H.
Covenant Not to Sue and Agreement Not to Chauenre. TU Electric, except as provided in paragraph III hereof, for itself and on behalf of TUC and their subsidiaries and affiliates and any person or entity, private or governmental, claiming by, through or under TU Electric or TUC, including without Ilmitation, to the extent it has the standing and 1
under law to'do so, their customers, and their respective insurers, agents, servants,
, ernployees, officers, directors, consultants, attorneys and representatives, does hereby covenant and agreet (a)
That it and they, individually, collectively, or in any combination, will forebear from asserting against, and never sue for or look for satisfaction with l
respect to, Brazos, its Members, and their respective insurers, agents, servants, employees, o fficers, directors, m embers, consultan ts, attorneys, and A,
i representatives, past and present, and any and all of their respective successors, subsidiaries, and affiliates and their respective insurers, agen ts, servants, i employees, officers, directors, shareholders, members, consultants, attorneys, and representatives, past and present, with respect to any Subject Claims (including without limitation any Subject Claim against any contractor, subcon trac tor, supplier, consultant, vendor or other person, firm or entity in privity in any manner with any of them which may therefor or as a result thereof have a right over or Subject Claim in subrogation)in any manner involving, concerning, arising out of, or relating to, the design, construction, .nanagement, and licen:ing of, or any other matter relating to, Comanche Peak, and the management, procurement, conversion, enrichment, fabrication, shipping, transportation, and storage of the Fuel (b)
That neither it nor ther, individually, collectively, or in any combination, will directly or indirectly challenge, contest or assert any complaint against Brazos or its Members in any court or before any administrative agency or body or in any other forum whatsoever with respect to, or in any manner involving, concerning, arising out of, or relating to, Comanche Peak and the JOA and in connection with the performance or nonperformance by &azos of its duties, responsibilities or obligations under the JOA, and on account of anything that has occurred or may I
L have occurred, in whole or in part, with respect to Comanche Peak (including 1
l l
g sepacately the Station, Fuel or Transmission Facilities) and the incidents and attributes thereof, and any of the foregoing whether known or unknown, tit.
Exceptions to Covenant Not to Sue and Arreement Not to Challenge.
TU Electrie specifically does not covenant not to sue, and specifically does not p ee to not assert, challenge or contest, with regard to:
(a)
Any Subject Claims arising out of or under the Agreement or any other I agreement or instrument executed and delivered pursuant to the Agreement.
(b)
Any right or authority to charge Brazos, its Members and customers for any electric power and energy purchased by any of them from TU Electric in accordance with the rates set forth in TU Electric's tariff as same may be
}
' and in effect from time to time even though said rates may include costs r Comanche Peak.
i
} (c)
Any defenses which TU Electric has or may have to Subject Claims asserted against TU Electric by any persons or parties whomsoever, provid TU Electric may not seek any type of affirmative relief hereunder an rate (other th relief pursuant to the provisions of the Public Utility Regulatory , Article 1446c,Act .
I V. A.T.S.) against Brazos, its Members and customers (including th e customers of s
Brazos' Members and other wholesale customers), their respective insurers
, agents, employees, officers, directors, consultants, attorneys and representatives .
(d)
Any counterclaims which TU Electric has or may have against an other than Brazos, its Members and customers (including the customers o M embers and other wholesale customers), their respective insur employees, offleees, directors, consultants, attorneys and represent ,
such capacity (other than in connection with rate relief pursuant to the pr the Public Utility Regulatory Act, Article 1446c, ... V. A T S ) with re spect to any Subject Claims being asserted against TU Electric by anyone zos, its other than Members and customers (including the customers of Brazos' er Members 1
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.m . c7 i
5 wholesale customers), individually or otherwise, their respective insurers agents.
employees, officers, directors, consultants, attorneys and representatives.
IV. Control To the extent any provision of this Covenant Not to Sue conflicts with any provision in Section 9.4 of the Agreement, this Covenant Not to Sue shall control as to the agreement of the parties.
- EXECUTED this the day of !
a 1988, as duly authorized by an l
j appropriate resolution of its Board of Directors.
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TEX AS UTILITIES ELECTRIC COMPANY l (Corporate Seal) g:y 1 Its:
l ATTEST:
By:
, .ts:
i
EXHIBIT N ASSUMPTION AND INDEMNTTY AGREEMENT S
STATE OF TEX AS S
COUNTY OF DALLAS S 6
for and in consideraticn of the agreements, undertakings, promises, and covenants of Brazos as set forth in the Agree m ent, including without limitation the contemporaneous delivery to TU Electric by Brazos of (1) a Release releasing certain i claims which Brazos and any other person or entity, private or governmental, claiming by, through, or under Brazos, including, to the extent it has the standing and right under law to do so, Brazos' Members and customers (and the c'tstomers of Brazos' Members and other wholesale customers), have or may have against TU Electric, TUC and their subsidiaries and affiliates, (2) a Covenant Not To Sue under which Brazos, for itself and on behalf of any person or entity, private or governmental, claiming by, through or under Brazos, including, to the extent it has the standing and right under law to do so, Brazos' Members and customers (and the customers of Brazos' Members and other wholesale customers), covenants not to sue upon certain claims which they have or may have again:t TU Electric, TUC and their subsidle-les and affiliates, and (3) an Indemnity Agreement j under which Brazos indemnifies TU Electric against certain claims, the adequacy and sufficiency of such consideration being nereby acknowledged and confessed, TU Electric hereby agrees to the following:
- 1. Definitions. As useo herein, the following terms have the fotbwing meanings:
, A. "Agreementt" means that certain Agree'nent dated July 5,1988, by and i
between Brazos and TU Electric.
B. "Brazos" means Brazos Electric Power Cooperative, Inc.
C. " Comanche Peak" means the nuclear-fueled electric generating facility under construction on certain lands situated in Hood and Somervell Counties, Texas, and consisting of two units having a nominal capacity of 1,150 megawatts each, and related I
properties. and is the aggregate and combination of the Station, Puel, and Transmission f acilities, and all other rights and interests associated with or relating thereto, D. " Fuel" means the Comanche Peak nuclear fuel, irrespective of chemical and'or physical form, and the rights and interests related thereto.
E. "JOA" means that certain instrument entitle.d on the cover page thereof
,, JOINT OWNERSHIP AGREEMENT BETWEEN DALLAS POWER & LIGHT COMPANY, TEXAS ELECTRIC SERVICE COMPANY, TEXAS POWER & LIGHT COMPANY, TEXAS UTILITIES GEN ERATING COMPANY, TEXAS M UNICIP A L POWER AGENCY AND BRAZOS ELECTRIC POWER COOPERATIVE, INC. FOR COMANCHE PEAK STEA M ELECTRIC STATION," executed on January 2,1979, together with and as modified by l that certain instrument entitled on the cover page thereof " Modification of Joint Ownership Agreement Between Dallas Power & Light Company, Texas Electric Service l Company, Texas Power & Light Company, Texas Utilities Generating Company, Texas Municipal Power Agency and Brazos Electric Power Cooperative, Inc.: For Comanche Peak Steam Electric Station," executed on June 1,1979, together with and as amended by
- (i) the Amendment of Joint Ownership Agreement, executed on December 9, 1980, between Dallas Power & Light Company, Texas Electric Service Company, Tex.a Power &
h Light Company, Texas Utilities Generating Company, TMPA, Brazos, and Tex-La, together with and as amended by (ii) the Second Amendment of Joint Ownership Agreement, executed on February 12, 1982, between Dallas Power & Light Company, Texas Electric Service Company, Texas Power & Light Company, Texas Utilities Generating Company, TMPA, Brazos, and Tex-La.
F. " Members" metas the twenty (20) Texas non profit electric cooperative corporations that are members of Brazos, as set out in Exhibit C to the Agreement.
G. " Owners" means collectively TU Electric, Brazco, TMPA and Tex-La, as owr.ers of Comanche Peak in accordance with the terms of the JOA, or singularly any of stuh parties.
H. "Pending Litigation" means Cause No. 399,482 - Brazos Electric Power perative, Inc. v. Texas Utilities Company, Texas Utilities Electric Company, Texas gities Mining Company, and Texas Utilities Services Incorporated, - in the District court of Travis County, Texas, 345th Judicial District; Cause No. 399,336 -Tex-La gtric Cooperative of Texas, Inc., and Texas Municipal Power Agency v. Texas Utilities and Texas Uttlities Electric Company, - in the District Court of Travis County, Texas, 98th Judicial District; and Cause No. 86-6809-A - Texas l'tilities Electric Company v.
px-La Electric Cooperative of Texas, Inc., et al. - in the District Court of Dallas County, Texas,14th Judicial District.
I. " Project Mant.ger" means TU Electric designated and acting as such in accordance (or purportedly in accordance) with the terms of the JO A.
l J. ' Site" means approximately 7,669 acres owned (in fee or other estate oc interest) by the Owners, as tenants in common, and located in Hood and Somervell Counties, Texas, i< . " Station" means the Site, all improvements thereon (including Squaw Creek Lake and Park) and all fixtures and attachments thereto, as well as (i) all personal property thereon and associated therewith or related thereto and owned by the Owners, i
and (ii) all rights (tangible cr intangible), and all casements and other interests of any nature associated therewith oc related thereto and owned by the Owners, excluding, however, the Fuel, and the Transmission Facilities.
L. "Sub}ect Claims" means any and all claims, actions, controversies, causes of action, disputes, demands, and complaints of whatsoever kind or nature and whether known or unknown.
M. " Tex-La" means Tex-La Electric Cooperatjve of Texas, Inc.
N. "rMPA" means Texas Munleipal Power Agency.
-3 2
O. ' Transmission Factlities" means the Comanche Peak - DeCordova 345 ky electrical transmission line approximately 14.4 miles in length, and associated
.I right3.or.way, equipment, fixture: and personal property.
P. "TUC" means Texas Utities Company, which is a Texas corporation and tne parent of TU Electric.
Q. 'TU Electric" means Texas Utilities Electric Company, which is a Texas corpora tion.
D. Assumption of Liabilities. TU Electric assumes all the duties, responsibilities, liabilities, and obligations ci :'razos under the JOA and under the Atomic Energy Act of 1954, as amended, and the rules and regulations of the Nuclear Regulatory Commission thereunder pertaining to Comanche Peak.
, III. Indemnification. TU Electric further agrees to indemnify, hold harmless, and defend Brazos and its Members and customers (including the customers of Brazos' Members and other wholesale customers) from and against any and allliability, loss, cost, damage, or expense (including without limitation reasonable attorneys' fees, court costs, costs of appeal, supersedeas bonds, and costs of investigating, defending, attempting to settle, and, if TU Electric approves the settlement, settling any claim, demand, or cause of action) arising out of the following:
j (a) all Subject Claims (INCLUDING WITHOUT LIMITATION SUBJECT CLADIS PREDICATED UPON THE ALLEGED ACTUAL OR IMPUTED NEGLIGENCE, GROSS NEGLIGENCE OR STRICT LIABILITY OF BRAZOS AND ITS MEMBERS) arising out of or connected with the location, planning, design, l construction, lleensing, condition, maintenance, operation, and decommissioning of
('
Comanche Peak, including without limitation all claims asserted or which might have been or might hereafter be asserted in Cause No. 83-29889 in District Court of Harris County, Texas, 215th Judicial District, removed in April,1988, to the United States District Court for the Southern District of Texas, Houston Division,
-_ j numbered Civil Action No. H-6 8 -14 0 9, and styled Charles A. Atchison, et al v.
, Brown & Root, Inc., et al., and in Cause No. 2692 in the District Court of Somervell County, Texas, 18th Judicial District, and styled Clementine Mathews and her husband Dolphin Mathews v. Comanche ' Peak Dectric Steam Station, et :21.
(b) all Subject Claims arising out of any alleged act (includin willful or intentional acts) of the said Project Manager, its predecessors, agents, servants, employees or independent contre.ctors acting for or on behalf of the Project Manager or its predecessors.
l IV. Exceptions to Indemnification.
Without limitation, TU Electric specifically does not agree to indemnify Brazos, its Members or customers in connection with the following:
4 (t !
Any Subject Claims which may be asserted by Brazos' Me mbers, customers, the customer: of Brazos' Members or other wholesale customers, or creditors, acting in such capacity, which relate to Brazos' decision to participate as an Owner of Comanche Peak, or which relate to Brazos' decis'.on to become a party to the JOA, or which relate to Brazos' involvement in the Pending Litigation, or which relate to Brazos' execution of the Agreement and participation in the transactions provided for in the Agreement.
(b)
Any Subject Claims which may be asserted by Tex-La, TMPA, or others (except TU Doctric, TUC, and their affiliates, subsidiaries, successocs and assigns, and except for their insurars, agents, servants, employees, officers, directors, shareholders, eonsultants, attornays, and ropeesentatiyes, past and pcesent, aeting in f such capacities) which relate to Brazos' decision to become a party to the JOA, oc which arise by reasco of Brazos' participation in the Pending utigation, or which arise by reason of Brazos' execution of the Agreement and participation in tne transactions provided for in the Agreement.
l l
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(e) Any liabi.lity, cost or Gxpense pursuant to TU Electric's races set fortn in TU Electric's tariff as same may b2 approved and in effect from time to time, even tnough said rates may include costs related to Comanche Peak, for electric power i
and energy purchased by Brazos, its Members and customers from TU Electric.
(d) Any Subject Claims rela ting to Brazos' performance under the Agreement or any other agreement or instrument executed or delivered pursuant to
! the Agreement.
V. Assumption of Defense. TU Electric will, in adcition to providing the foregoing indemnity, assume the defense of Brazos and its Members and customers (including the customers of Brazos' Members and other wholesale customers) in any tribunal where any claim set out in paragraph III, and not ex:epted in paragraph IV, is
, asserted. Provided, however, that, in the event Brazos or any of its Memt>ers or customers (including the customers of Brazos' Members or other wholesale customers) receive notice of the commencement of any action or proceeding or the assertion of any
- claim with respect to which any of them may be entitled to indemnification hereunder or under the Agreement, the party receiving such notice shall give TU Electric written notice within ten (10) calendar days of such notice (the failure to so notify will not relieve TU Electric of its obligations hereunder except to the t rtent it has been prejudiced by a failure to so notify) and shall give TU Electric the opportunity to participate in the defense and in any settlement negotiations with respect thereto, and will cooperate with TU Electric in all reasonable respects and make available to TU Electric all records, j evidence and personnel for consultation and testimony reasonably requested by i
TU Electric in connection therewith. The settlement of any such action, proceeding or l
claim without the prior written approval of TU Electric shall relieve TU Electric of any obligations to the indemnified party in respect of the subject matter of the settlement of such action, proceeding, or clair ,
e yg, Control.
To the extent any provision of this Assumption and Indemnity Apeement conflicts with any provision in Section 9.5 of the Agreement, this Assumption and Indemnity Agreement sha.ll control as to the agreement of the parties.
EXECUTED this the _
day of ,1988, as duly authorized 3y an appropriate resolution of its Board of Directors.
TEXAS UTILITIES ELECTRIC COMPANY 9
- (Corporate Saal) By:
ATTEST: Its:
d By:
Its:
1 i
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. - - _ _ _ _ - _ _ _ _ _ - = = -.
:---------------- ; .. =.'
1 I
l EX HIBIT O l LNDEMNITY AGREEMENT S
- STATE OF TEX AS 5
COUNTY OF MC LEliNAN S For and in eensideration of the agreements, undertakings, promises, and covenants of TU Electric, TUC and their subsidiaries, and affiliates, set forth in the Agreement, including without limitation the (i) contemporaneous delivery to Brazos by TU Electric of
, a Release releasing certain claims which TU Electric, TUC, and their subsidiaries and _.
affiliates have or may have against Brazos, (2) a Covenant Not to Sue under which TU Electric, for itself and on behalf of TUC, and their subsidiaries and affiliates and on i behalf of any person or entity, private or governmental, claiming by, through or under TU Electric or TUC, covenants not to sue upon certain claims which they may have against Brazos or its Members, (3) the contemporaneous delivery to Brazos by TU Electric d
of an Assumption and Indemnity Agreement under which TU Electric assumes certain duties, responsibilities, liabilities, and obligations of Brazos and agrees to indemnify Brazos against certain claims and (4) the payment by TU Electric to Brazos of the Signing Payment and the Closing Payment (as those terms are defined in the Agreement), the adequacy and suffieler.cy of sut... consideration being hereby acknowledged and confessed, ~
j Brazos hereby agrees to the following:
6 l L Definitions. As used herein, the following terms have the following meanings:
A. " Agreement" means that certain Agreement dated July 5,1988, by and i between Brazos and TU Electrie.
B. "Brazos" means Brazos Electric Power Cooperative, Inc.
C. " Comanche Peak" means the nuclear-fueled electric genersting facility under construction on ce'tain lands situated in Hood and Somervell Counties, Texas, and consisting of two units having a nominal capaelty of 1,150 megawatts er.ch, and related
roPerties, and is the aggregate and combination of the Station, Fuel, and Transmission y,eilities, and all otner rights and interests associated with or relating thereto.
D. "Puel" means the Comanche Peck nuclear fuel, irrespective of chemical and/or physical form, and the rights and interests related thereto.
E. "JOA" means that certain instrument entitled on the cover page thereof l J0!NT OWNERSHIP AGREEMENT BETWEEN DALLAS POWER & LIGHT COMPANY, TEXAS ELECTRIC SERVICE COMPANY, TEXAS POWER & LIGHT COMPANY TEXAS UTILITIES GENERATING COMPANY, TEXAS M UNICIP AL POWER AGENCY AND BRAZOS ELECTRIC POWER COOPERATIVE, INC. FOR COMANCHE PEAK STEAM ELE 3RIC STATION," executed on January 2,1979, together with and as modified by that certain instrument entitled on the cover page thereof " Modification of Joint ownership Agreement Between Dallas Power & Light Company. Texas Electric Service Company, Texas Power & Light Company, Texas Utilities Generating Company, Texas vlunicipal Power Agency and Brazos Electric Power Cooperative, Inc.: For Comanche Peak Steam Electric Station,' executed on June 1,1979, together with and as amended by (i) the Amendment of Joint Ownership Agreement, executed on December 9, 1980, between Dallas Power & Light Company, Texas Electric Service Company, Texas Power &
d L4ht Company, Texas Utilities Generating Company, TMPA, Brazos, and Tex-La, together with and as amended by (ii) the Second Amendment of Joint Ownership Agreement, executed on February 12, 1982, between Dallas Power & Light Company, Texas Electric Servies Company, Texas Power & Light Company, - Texas Utilities Generating Company, TMPA, Brazos, and Tex-La.
P. " Members" means the twenty (20) Texas non profit electric cooperative corporations that are members of Brazos, as ut out in Exhibit C to the Agreement.
G. " Owners" means collectively TU Electrie, Brazos, TMPA and Tex-La, as owners of Comanche Peak in accordance with the terms of the JOA, or singularly any of such parties.
l
~
1 H. "Pending Litigation" means Cause No. 399,482 - Brazos Electric Power gperative, Inc. v. Texas Utilities Company, Texas Utilities Electric Company, Texas gilities Mining Company, and Texas Utilities Services incorporated, - in the District Court of Travis County, Texas. 345th Judicial District; Cause No. 399,336 -Tex-La getric Cooperati'.y of Texas, ine., and Texas Municipal Power Agency v. Texas Utilities and Texas Utilities caectric Company, - in the District Court of Travts County, Texas, 98th Judicial District; and Cause No. 86-6809-A - Texas Utilities Electric Company v.
} Tex-La _ Electric Cooperative of Texas, Inc., et at - in the District Court of Dallas County, Texas,14th Judicial District.
" Project Manager" metas TU Electric designated and acting as such in accordance (or purportedly in accordance) with the terms of the JOA.
J. " Site" means approximately 7,669 acres owned (in fee or otner estate oc I
1 interest) by the Owners, as tenants in common, and located in Hood and Somervell Counties, Texas.
K.
" Station" means the Site, all improvements thereon (including Squaw l
Creek Lake and Park) e .d all fixtures and attachments thereto, as well as (i) all personal property thereon an.1 associated therewith or related thereto and owned by '.he Owners, i and (ii) all rights (tangible or intangible), and all casements and other interests of any nature associated therewith or related thereto and c i ned by the Owners, orcluding, however, the Fuel, and the Transmission Facilities.
L. " Subject Claims" means any and all claims, actions, controversies, causes of action, disputes, demands, and complaints of whatsoever kind or nature and whether known or unknown.
M. " Tex-La" means Tex-La Electric Cooperative of Texas, Inc.
N. "TMPA" means Texas Municipal Power Agency.
l O.
' Transmission Facilitios" means the Comanche Peak - DeCordova 345 ky electrical transmission line approximately 14.4 miles in length, and associated rignts-of-way, equipment, fixtures and personal property. j
, P. "TUC" means Texas Utilities Company, which is a Texas corporation and the parent of TU Electric.
Q. 'TU Electric" means Texas Utilities Electric Company, which is a Texas corporation.
l g II. Indemnification. Brazos hereby agrees to indemnify, hold harmless, and i defend TU Electric, TUC, and their subsidiaries, affiliates and customers, from and 4
against any and all liability, loss, cost, damage, or expense (including without limitation reasonable attorneys' fees, court costs, cost of appeal, supersedeas bonds, and costs of
) investigating, defending, attempting to settle, and, if Brazos approves the settlement, t
] settling any claim, demand or cause of action) arising out of Subject Claims % Brazos, or I
anyone related to or affiliated with Brazos, ineluding Brazos' Members, customers (including the customers of Brazos' Members and other wholesale customers) and
- creditors, acting in such capacity, relating to (1) Brazos' execution of, or participation in, i
the JOA, (2) Brazos' execution of the Agreement and participation in the transactions provided therein, and (3) Brazos' activities as an Owner separate and apart from joint I
activities with all other Owners or activities by, through, and under the Project Manager.
Further, Brazos hereby agrees to indemnify, hold harmlees and defend TU Electric, TUC, and their subsidiaries, affiliates and customers, from and against any and all liability, loss, cost, damage, or expense (including without limitation reasonable attorneys' fees, court 1
costs, cost of appeal, supersedeas bonds, and costs of investigating, defending, attempting ;
to settle, and, if Brazos approves the settlement, settling any claim, demand ce cause of action) arising out of Subject Claims of Brazos, or anyone related to or affiliated with Brazos, including Brazos' Members and, to the extent they are acting in such capacity, Brazos' customers (including the customers of Brasoe' Members and other wholesale
.- XCm customers) and creditors, with respect to, or in any manner involving, concerning, arising out of, or relating to: (1) the acts or omissions of TU Electric or the Project Manager referred to or in question in the Pending Litigation or which could have been brought into f question in the Pending Litigation, INCLUDING WITHOUT LIMITATION S UBJECT l
CLAIMS BASED UPON THE NEGLIGENCE OR GROSS NEGLIGENCE, SOLE, JOINT Oh I
l CONCURRENT, OF TU ELECTRIC OR THE PROJECT MANAGER; and (2) the acts or omissions of TU Electrie or the Project Manager with repect to Comanche Peak that occur, in whole or in part, prior to the Date of Commercial Operation (as said term is i
I defined in the Joint Ownership Agreem en t), INCLUDING WITHOUT LIMITATION I
SUBJECT CLAIMS BASED UPON THE NEGLIGENCE OR GROSS NEGLIGENCE, SOLE, JOINT OR CONCURRENT, OF TU ELECTRIC OR THE PROJECT MANAGER, IIL Exceptions to Indemnification.
l Without limitation, Brazos spe'ifically does I
net agree to indemnify TU Electric, TUC, and their subudiaries, affiliates and customers in connection with the following:
1 (a) Any Subject Claims which may be asserted by TUC's or TU Electric's shareholders, customers or creditors, acting in such capacity, which relate to TU Electric's decision to become a party to the JOA, or which 4
relate to TU Electric's involvement in the Pending Litigation, or which relate to TU Electric's execution of the Agreement and particcipetion by TU Dectric and TUC in the transactions provided for in the Agreement.
i (b) Any Sub}ect Claims which may be asserted by Tex-La, TMPA, or others (szeept Birasos, its Members and their affiliates, subsidiaries, successces and etaigns, and except for their insurers, agents, servants, employees, officers, directors, members, consultanta, attorneys, and reptesentatiyes, past and present, acting in such capacities) which relate to TU Electric's decision to become a party to the JOA, or which arise by reason of TU Electric's participation in the Panding Litigation, or which arise by 2
i reason of TU Electric's execution of the Agreement and participation by TU Electric and TUC in the transactions provided for in the Agreement.
6
, (c) Any liability, cost or expense pursuant to Brazos' rates set forth in Brazos' tariff as same may be approved and in effect from time to time, even though said rates may include costs related to Comanche Peak, for electric power and energy purchased by TU Electric from Brazos.
(d) Any S,'bject Claims relating to TU Electric's or TUC's performance under the Agreement or any other agreement or instrument executed and delivered pursuant to the Ayeement.
IV. Assumption of Defense. Brazos will, in addition to providing the foregoing l indemnities, assume the defense of TU Electric TUC, and their subsidiaries, affilist*.s and i
t customers, in any tribunal where any claim set out in paragraph 11, and not excepted in paragraph III, is asserted. Provided, however, that in the event TU Electric, TUC, or their subsidiaries, affiliates or customers, receive notice of the commencement of any 9
sction or proceeding or the assertion of any claim with respect to which any of them may be entitled to indemnification hereunder or under the Agreement, the party receiving such notice shall give Brazos written notice within ten (10) calendar days of receiving such i
notice (the failure to so notify will not relieve Brazos of its obligations hereunder except _
to the extent hazos has been prejudleed by a failure to so notify) and the opportunity to participate in the defense and in any settlement negotiations with respect thereto, and i
will cooperate with Brazos in all reasonable respects and make available to Brazos al2 recorda, ..idence, and personnel for consultation and testimony reasonably requested by Brazos in connection therewith. The settlement of any such action, proceeding, or claim without the prior written appcoval of Brazos shall relieve Brazos of any obligations to the indemnified party in respect of the subject matter of the settlement of such action, proceeding, or claim.
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, y. Control.
To the ertent any provision of this Indemnity Agreement conflicts th any provision of Section 9.5 of the Agreement, this Indemnity Agreement shall control as to the agreement of the parties.
EXECUTED this the day of 1988, as duly authorized oy an appropriate resolution of its Board of Directors.
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I BRAZOS ELECTRIC POWER COOPERATIVE, INC.
4 (Corporate Seal) By:
AMEST: Its:
i j By:
Its:
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