ML20141M334
| ML20141M334 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 07/29/1992 |
| From: | NORTH ATLANTIC ENERGY SERVICE CORP. (NAESCO) |
| To: | |
| Shared Package | |
| ML20141M331 | List: |
| References | |
| NUDOCS 9208110351 | |
| Download: ML20141M334 (213) | |
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l l [ l TABLE OF CONTENTS
- 1. Seabrook Project Managing Agent Operating Agreement
- 2. First Amendment to Seabrook Project Managing Agent Operating.
Agreement J
-1
- 3. First Amendment to Seventh Amendment to and Restated Agreement for Seabrook Project Disbursing Agent, dated as of November 1, 1990 L l
- 4. -l Second Amendment to Seventh Amendment to and Restated !
Agreement for Seabrook Project Disbursing' Agent, dated as of November 1, 1990 L i 5. Composita of Agreement for Seabrook Project Disbursing Agent l Through Second Amendment to Restated Agreement
- 6. Serv $ce Agreement between Northeast Utilities Service Company and North Atlantic Energy Service Corporation Acting as Agent for the Joint Owners of Seabrook t
! 7. First Amendment to Service Agreement between Northeast i Utilities Service Company and North Atlantic Energy-Service L Corporation Acting as Agent for the Joint Owners of Seabrook
- 8. Nuclear Support Services Agreement between Yankee Atomic Electric Company and North Atlantic Energy Service
, Corporation Acting as Agent for the~ Joint Owners of S,eabrook
- 9. First Amendment to Nuclear Support Services-Agreement between Yankee Atomic Electric Company and North. Atlantic Energy Service Corporation Acting as-Agent,for the Joint Owners of Seabrook
- 10. Service Agreement between Public Service Company of New Hampshire and North Atlantic Energy Service' Corporation Acting as Agent for the Joint Owners of Seabrook
- 11. First Amendment to Service Agreement between.Public Service Company of New Hampshire and North Atlantic Energy Service Corporation Acting as Agent for.the Joint Owners of Seabrook
- 12. Assignment'and Assumption Agreement-
CnMPosImr CONF 0* men copy SEiBROOK PROJECT MANAGING AGENT OPERATING AGREEMENT Effective as of June .29, 1992
-mim hum-se in 88Hu"n ' ' = =m ' ' ' '
SEABROOK PROJECT ' ~ MANAGING AGENT OPERATING AGREEMENT . TABLE 5F CONTENTS PMLt ,
- 1. Definitions 5-
- 2. Basic Understandings 6
- 3. Managing Agent -9
- 4. Services 12 q
- 5. Contracting Authority 15-
- 6. Periodic Reporting 18
- 7. Access to Information 26
- 8. Payments; Budgeto 31 Ba, Certain Transitional Rules- 40
- 9. Insurance 41-
- 10. Decommissioning .
41
- 11. Limitation of Liability 42-
- 12. Term and Effectiveness 44 13.- No Setoff 46
- 14. Assignment 47
- 15. No Third Party Beneficiaries 47
-16. Several Obligations of Participants- 47
- 17. Applicablo Law and Enforceability._ 48
- 18. Arbitration .4 8 -
19 . - Notices: :50
- 20. ' Counterparts , 50:
- 21. Amendment 151L Signatures- -52=
e
- -- 9
. - =
SEABROOK PROJECT EANAGING AGENT OPERATING'AGRE[HERI 4 This Managing' Agent Operating Agreement-(" Agreement")fis; made as of June 29 , 1992, ontween: North: Atlantic Energy-S6rvice Corporation, a corporation organised as a wholly-owned: oubsidiary of Northeast Utilities ("NU")na nd a:public utility-organised under the laws of the State of New Hampshire-(the
' Operator"), and those signatories to.the Joint. Ownership-Agreement (as defined in the next paragraph hereof)-which.have oxecuted and delivered or which hereafter execute and deliver this Agreement (the " Signatories"). - The Signatories;which:are signatories of the Joint Ownership Agreement colleccively with the other parties which are now or from time t'o time'hereafterL become signatories of the-Joint OwnershipDAgreement are. '
a hereinaf ter- referred to :an the " Participants" ., WHEREAS, the Participants are-.the:partiesnto the' Agreement: for Joint Ownarship, Construction-and Operation;of-New: Hampshire Nuclear' Units, dated May.1, 1973, as heretofore amended through;- the Twenty-Third Amendment-(which agreement'as from time toltime, amended lis hereafter referred to:asithe'" Joint'Dwnership Agreement"), which sets forth their: respective: rights-and obligations with respect to the nuclear electriefgenerating;
-planti("Seabrook Station" or the " Unit":orithe " Plant" or:the'
- project") which the Participants haveiconstructedLin/Seabrook, f
]
t 1 New Hampshire, consisting of unit one and all common facilities ("Seabrook l?) which is completed and unit two ("Seabrook 2") which has been cancelled; and WHEREAS, pursuant to the Joint Ownership A,reement and actions taken by the Participants, menagement responsibility for Seabrook Station, subject to the limited oversight and direction functions of the Executive Committee described in Paragraph 37 of the Joint Ownership Agreement (the " Executive Committee"), currently resides in Public Service Company of New Hanpshire ("PSNH"), acting through its New Hampshire Yankes Division (the
" Division"); and WHEREAS, pursuant to a plan of reorganization'for PSNH filed by Northeast Utilities Service Company in bankruptcy case No. 88-l 006.3 pending in the United States Bankruptcy Court for the l District of New Hampshire with respect to PSNH, it is contemplated that PSNH will become a wholly-owned subsidiary of NU, and that PSNH's Ownership Chare of Seabrook Station (the "Seabrook Interest *) will be transferred to a subsidiary of NU to be known as North Atlantic Energy Corporation ("NAEC"); and WHEREAS, Paragraph 36.2 of the Joint Ownership Agreement permits the appointment by Participants owning 51% or more of
~
the ownership Sh res of Seabrook Station of a managing agent to'
i cet on behalf of all the Participants in the management of the i operations of the Seabrook Station, and it is intended that this Agreement implement Paragraph 36.2 of the Joint Ownerghip-Agreement; and WHEREAS, it la recognized that under the Joint Ownership Agreement the Participants are each saverally responsible for their respective Ownership Sharas of tha costs of operating and ctintaining Seabrook 1 and of the ultimate disposition of Socbrook 2 and are entitled to their Ownership Shares of the capacity and electric energy produced by Seabrook 'l; and i WHEREAS, by order in File No. 70-7787 , the Securities and Exchange Commission ("SEC") has appr,ved and authorized, under the Public Utilities Holding Company Act.of 1935 (the "Act"), the-organization and conduct of business of Operator as a wholly owned subsidiary of NU, a public utility holding company rogistered under the Act; and WHEREAS, Operator desires to assume the responsibilities of M naging Agent for Seabrook Station on behalf of the Participants and to perform such responsibilities and duties all in accordance with Prudent Utility Practice (as defined in ' Paragraph B.1 of the Joint Ownership Agreement); and
~
1 I WHEREAS, economies, increased efficiencies and other benefits vill accrue to the Participants as a result of Operattr's assumption of those responsibilities; and WHEREAS, it is the intent of the Operator and the Signatoxies to promote the safe, efficient and reliable operation of SeC rook Station and the Signatories desire that the Operator shall have responsibility for the day-to-day operation and l maintenance of Seabrook Station consistent with this goal; and WHEREAS, the Operator and the Signatories, which hold in the aggregate Ownership Shares totalling 70.60921% of all ownership Shares, wish to implement, as of the Time of Effectiveness (as hereinafter defined) the provisions of their Agreement made as of July 19, 1990 which can be implemented under the Joint Ownership Agreement with the approval of less than 80% of the Ownership Shares, and this Agreement is intended to accomplish that result; and WHEREAS, the Signatories and the Operator desire that all Participants shall have the unrestricted access to project information, with the limited restrictions set forth herein, and the Operator desires to keep the Participants regularly and fully advised of significant activities and developments. __-.__.n.--A
1 1 1 i ~5-
.l
. -l
, NOW, THEREFORE, in consideration of the premises and the-
- ^
j mutual covenants contained herein, the parties hereby agree as i-follows: , 4 i
- 1. - Definiti.n12 4
J-t (a) Terms defined in the Joint _Dwnership AgreemenU are- . used in this Agreement with'the same meanings:as
- therein provided.
j (b) Tho: term "NRC" shall mean the United States Nuclear
- Regulatory Commission or any governmental agency or agencies which succeed.to'the powers thereof.
f
, (c) The term "NRC License" shall mean the full-power-1 J operating license, No. NPF-86, as amended from time to time,.and all other licenses relating to Seabrook-Station issued by-the NRC.
(d) The term "NRC Amendment" shall mean thefamendment to-NRC License, which, inter alia,1 des'ignates Operator =as
-the entity technically qualified to operate Seabrook11.
~(e). The., term " Time of Effectiveness" shall mean 11:59 p.m.-
on the 'last day of the ca'lendar month in whichithe NRC - Amendment, and any otter federal,--state'or' local-S wyw +w fiy re -- =g, y a rmv rfe-,5-y
l regulstory, judicial or other approvals - necessary for-4 the performance of this Agreement (collectively
" Regulatory Approvals"), sh'all all have become effective.
(f) The term " Unaffiliated Participants" shall me'an those Participants which are not under-common control.
- 2. Basic Underttandines (a) (i) This Agreement relates to the transfer =and delegation to Operator by the Participants of authority with respect to the. operation of Seabrook 1 under the NRC License and thel
~
supervision of the disposition of Seabrook.2,. which has been cancelled and abandoned by the Participants, by appointing the Operator as-' Managing Agent pursuant to Paragraph 36.2 of the- ; i. Joint Ownership. Agreement.-
.(11)- The parties. hereto recognize thatLauch transfer-i and delegation 1can only beiaccog.plished after the;
~
I NRC Amendment is.issuediand becomesfeffective, i The' parties. agree to cooperate in= good faith and: use all reasonable: efforts to'obtain,'and not L a 1-l L , . . _ - . . _ . -
, .~.......;. , . . ~ . . _ . ,,-.e ,_,.-..,- _.
1 l
- 1- l l
.l oppose directly_or indirectly,.the,issuanceLof thel L
j; NRC Amendment and other Regulatory Approvals on an , l appropriate schedule recognizing the overriding: . ; interest of the Participants in maintaining the' i safe, efficient and reliable, operation of the l Plant and in assuring a smooth transition to a new i
- operator. The provisions _of this Agreement j relating to the transfer and delegation of such' e
l operating authority and the exercise thereof' l shall become operative at1the Time of 1
- Effectiveness.
3 L - - (iii) The Operator shall use all-reasonable effortsuto i
- operate the Unit in a safe,' efficient and-reliable.
l= manner in compliance with all applicable safety j . requirements, including but not. limited to'the i technical specifications _and:the other terms andT 1, conditions of the.NRC Licenses, the rules and' , regulations of;the NRC, and any; applicable orders i.
- issued by it.
i (iv) The Operator shall.use all reasonable effortsLto. :, operate:-and maintain the-Unit-in a~ manner that- - c v111t(a) promote the safety'of workers at the Unit and the safety ofithe'generalLpublic; _ (b) promote-j , { T e 9 -- - -e ~5 g=%c- e- c',e.--.-..rews. g.-y- --,g- ,..,,e,,-.,,,y, .,-,n y, v.-,. w=wi.-- #- .f.,%i.,2, yqq.-%.w., , .m [ .y,e~ , ..,ww. ,e w.- p..w, wh y- e t-
1 reliable Unit per'formance, highLUnit availability, a low forced: outage rate and short
- outage-durations; (c) conform to all.ree 46 tory-requirements and binding-industry standards; and ,
- (d) consistent with the goals described in the foregoing clauses (a), (b) and-(c),-produce busbar. I costs as-low as-reasonably possible; through-control of operating and-maintenance expenses and restraint in the commitment'of capital funds.
(b) On or as soon as practicable after the Time of Effectiveness the Signatories will take theffollowing
~
actions in order to implement the transfer of authority contemplated hereins (i) PSNH shall effect.theJassignment to.the Operator-of-the responsibilities of~the Divisione(as agent for' Participants) under;all; outstanding contracts-and agreementaLrelatingTto-Seabrook Station 1which have heretofore been entered'into-by-PSNF.or.the-Division ~either expressly or implicitly.on behalf' of all_ Participants-and will cooperate with.the-Operator in negotiating appropriate modifications
~
reflecting Ehe sh'ift of authority being; implemented-hereby ro-any; contracts' relating.-tof l 1 1 r v +-yg-y, - v y. yw y n e v m--.-w,- ,y,, e e
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i l Seabrook Station (such as the NEIL- nsurance . f policy) which are subject to requirements which-preclude execution by, or assignment to, the ) Operator as Managing Agent;.and (ii) Subject to the reasonable direction of the Executive Committee, the Operator shall assume responsibility on behalf of the Participants for- , all property tax negotiations with local-communities relating to Seabrook Station facilities as to matters arising after the Time of Effectiveness.
- 3. Manacino Acent (a) Commencing at the Time of Effectiveness and until.the-expiration or termination.of this Agreement,-(i).-the Signatories, owning collectivelyJ51% or more of the Ownership. Shares as required by Paragraph 36.2 of the Joint Ownership Agreement,'hereby designate the Operator as Managing Agent'of Seabrook Station under-the Joint Ownership Agreement'on behalf of1the Participants, and (ii) the Participants;hereby employ: >
the Operator,.andLthe Operator:hereby.agreesi to perform the engineering; operational and other.
l l I profassional services and respor sibilities of such Managing Agent on behalf of the Participants, in accordance with this Agreement and the Joint Ownership. Agreement. Subject to the provisions of this Agreement which assign certain authority to the Participants-and/or the Executive Committee, the parties hereto agree that, as Managing Agent, Operator shall have complete and ultimate responsibility for day-to-day management of the operation of Seabrook 1, includir, those duties, functions, responsibilities, prerogatives, discretionary rights and authorizations to act on behalf of the Participants which are described in the Joint Ownership Agreement. Such responsibilities, inter alia, include authority on all operational issues respecting Seabrook 1 to the extent necessary to comply with the NRC License, responsibility for all licensing actions with respect to Seabrook 1, and ultimate responsibility for the effective implementation of the quality asrurance program at Seabrook 1. (b) The Operator shall promptly advise the Participants of its significant actions in discharging its responsibilities, consistent with Section~6'of this Agreement.
^
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- 11-
)
i (c) The Participants shall approve or disapprove in-advance, by a vote-of 514-or more of the Ownership
- Shares, the Operator's selection of the senior on-site manager for the Plant.
(d) The Participants shall approve or' disapprove in advance, by a vote of 51% or more;of the Ownership Shares, significant government affairs and public. relations policies pertaining'to the Plant.
~
(e)- The Participants shall approve'or-disapprovefin: , advance, by a' vote of 51% or more of the Ownership , Shares, the incentive compensation prog uns and-- aggregate payments associated therewith Mr Operat'or > personnel assigned to the Plant. (f) The Participants expresaly.~ withhold-.from the" Operator:
- any authority to marketter broker =the capacity _or; energy produced by'the Plant on their: behalf, Land-nothing.herein shall be interpreted-as delegatingrto_-
the Operator any such; authority.j _ O t W , .re,w -~ 2 a .w , . # mew e -,~ w e-er + ++a, . -p ea n,-y,r.mv ,-< m-++c--+.,c- v e ,wer wmw w ye --v e by ,,, ', N :-,e w , tw,--ep+v--*T- *e r* T e- '7
- 2
- 4. Services The Operator agrees to perform or cause to be performed all 4
the services and responsibilities assigned to it hereunder in conformance with professional standards of care and ! practice appropriate to the nature of the technical and professional services involved and in accordance viia-Prudent Utility Practice (as defined in Paragraph 8,1 of the Joint Ownership Agreement), including, but not limited to (a) selecting, employing, training and maintaining I sufficient persennel to staff Seabrook Station in accordance with license and regulator 3 equirements + l applicable to ths operation of Seabrook Station and to 1 provide or cause to be provided any support services for such activities; )
- (b) planning for nuclear. fuel utilization at Seabrook 1 and procuring on behalf of the Participants the requisite nuclear fuel therefor, including arranging for all 4 stages of uranium processing, fuel design and fabrication and eventual storage, transportation, disposition and/or reprocessing of irradiated nuclear fuel and'the disposition-of or use of-reprocessed -
material; q 1 l
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i l: l (c); purchasing and maintaining-on behalf of the l " l Participants, at appropriate levels,' inventories of materials, supplies and spara parts required for s
- operation and maintenance of Seabrook-Station; l (d) after consultation withithe Executive Committee to the-extent reasonably required by that ! Committee, selecting
! and retaining consultants and contractors:to assist in- !
- the perfc.3ance of the Operator's responsibilities'with l respect to Seabrook Station; l-1 (e) subject to paragraphs 24.2 and 37.4'(d)jof the-. Joint-1
) Ownership Agreement and the resolution regarding the f disposition of Seabrook'2 adopted by the-Participants , on November 6, 1986, recommending to the_ Participants ! specific actions concerning the disposal of Seabrook-p 2; l- (f) ' reporting to the Executive Committee and Participants; a ] on-the operations and finances:of,-and the insurance l for,-Seabrook-Station in accordance withLSectionc6 of-
- this Agreement; and, I
4 i f' D
1 i (g) taking all other actions necessary in order to keep the Operating Licenses and other necessary regulatory permits in full force and effect. Other than its responsibilities with respect to the operation of Seabrook Station, in carrying out its obligitions as Managing Agent hereunder and under the Joint Ownership Agreement, the Operator may retain or appoint a service company or agent (which service company or . agent shall be affiliated with Operator) to act on behalf of and perform the responsibilities of the Operator hereunder and under the Joint Ownership Agreement, so long as such appointment is consistent with the terms of the Operating License and the rules and regulations of the NRC. No such-retention or appointment shsil become effective unless the agreement (s) between the Operator.and any such service company or agent has been approved by;et least three or more Unaffiliated Participants, owning collectively 60% or more-of the Ownership Shares. The Participants shall not withhold their approval of any such. agreement.if it is fair and equitable to'all affected parties. l g aw w c-ww. ,, -.7 --
i
' 5. Contractina Authority l In conformity with the paragraphs 9 and 10 of the Joint
! Ownership Agreement and subject to Section 3 of this Agreement and this Section 5, the Participants hereby authorize the Operator, as Managing-Agent for the ! Participants, to enter into, and to execute and deliver, such contracts with third parties for design, engineering, construction and technical-support services or for insurance for Seabrook Station or for the purchase of. materials, equipment, and nuclear fuel for Seabrook Station and for the . acquisition of interests (other than title) in real estate f essential to Seabrook 1, as the Operator deems necessary and prudent, provided that such contracts shall expressly
- provide that the Participants are severally liable in-proportion to their respective Ownership Shares, and neither jointly nor jointly and severally liable thereon; and-provided, further, that such contracts'shall provide for title to any such property which becomes a fixture or integral part of Seabrook Station to pass to the respective
; Participants in proportion to their respective Ownership Shares. Without limiting the generality of the foregoing, the Participants intend that.this authorization includes authority to enter into operating leases for automobiles,'
equipment and other facilities necessary,.in the Operator's r 4 , s , , ,
opinion, to the operation of Seabrook Station'or to the-proper performance of the Operator's responsibilities hereunder. The Operator will use its best efforts to-negotiate contracts that do not include provisions for indemnification and/or payment of special and consequential damages to third parties. In the event that the Operator finds it necessary to include one or more such provisions, it shall, to the extent practicable, advise the Participants of such condition in advance of the execution of such agreement. In any event the Operator shall promptly advise the Participants of the inclusion of such provision (s) after tho execution of such agreement (s). The Operator, without the prior approval of the Executive Committee, shall not enter into an agreement related to Seabrook Station with a vendor, contractor or consultant that would require the Operator to refuse to furnish any Seabrook-related.information_that.could be requested by a Participant on the basis that such vendor, contractor or consultant claitna such information to be propristary, provided that such agreement may provide that any , L ' I Participant which wishes to obtainLany information-treated l as confidential or proprietary by a vendor, contractor or consultant shall sign an appropriate no,ndisclosure agreement
~
requested by such vendor, contractor or consultant.- ,
-I l
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1 Major contracts and material modifications to such a contracts for a) nuclear fuel and fuel services (excluding short-term spot market purchases); b) employment contracts with Seabrook Station personnel (excluding union labor contracts); c) contracts having a dollar value exceeding 510 million and either presenting significant liability issues or presenting long-term (at least two years) political, regulatory or public relations policy issues; and d) the acquisition of intereste (other than title) in real estate essential to Seabrook 1 shall not be executed unless approved in advance bi 'rticipants owning collectively 51% or more of the Owr.arsh.p Shares. The criteria governing the types of major contracts requiring prior approval by the Participants, in addition to those specifically identified herein, may be reasonably expanded from time to time by the Executive Committec. Such additional major contracts shall be of tre same magnitude and importance to Seabrook Station as those described above. The Participants and Operator agree that, whether or-not the operator fulfills its obligation to provido that the several liability of the Participants is referred to therein, the Participants.shail be severally liable, and
~
neither jointly nor jointly and severally liable, for their l i I I I e v - , <
1
-le- l respective Ownership Shares of all obligations performable, and all payments due, under or with respect to any con. tracts entered into concerning Seabrook Station executed on their behalf as contemplated by Paragraphs 9 or 10.1 of the Joint Ownership Agreement or this Section 5.
- 6. Periodie Reoortina (a) The Operator shall meet with the Participants no less frequen y than quarterly to report on the status of Seabrook Station and discuss other matters regarding Seabrook Station. Each Participant shall endeavor, in advance of the meeting, to notify t'ne Operator of the matters of intere'st to that Participant for discussion.
(b) For each quarterly Participants' meeting, the Operator shall distribute, at least seven days in advance, a written operational report which shall include, but not be limited to, the fo.owing: ; i 1 (i) A brief summary of the Plant's operation since the last meeting of the Participants;
i (ii) A_ summary of Plant shutdowns and unusual load. reductions since the last meeting of the t-
- participants; '
i I (iii) The status of major capital projects-(the . 1 criteria governing.the! Pro,4ects to be reviewed { shall be reasonably established from time to time __ i ! by the Executive Committee);- + . (iv) A summary _of_any NRC,-U.S. Environmental' Protection Agency, New' Hampshire Departmentfof ~. Environmental Protection,-or OSHA. violations -and i the Operator's response thereto,-since..the last; : meeting of-the Participants; - (v) A list of.the NRC elevated'enforcementLactions including _ confirmatory: action: letters,., enforcement-conferences _and NRC-requested management? ! conferences; s (vi)- A - sursary o T tiew significant- industry concernsi-
.thatLhave a.high potentialLimpact.on the Plant that would result in?significant. increased costs or/a Plant shutdown;
('vii ) A summary of major exposure items for the upcoming refueling outage; (viii) A list of other issues that the Operator believes
~
should-be brought to the Participants _' attention,- e.g., related federal, state or local specific issues; , (ix) A summary of'any= event-~at the-Plant declared by - the NRC to have.'been an Abnormal;(Occurrence; (x) A. report _on industrial safety, including status of; i the lost-time: accident-incidence rate since the-last meeting:and the:beginning of the: year; and (xi) Other items -which the Executive! Conanittee- shall, l-from time--te-time,, reasonably-request.- o i At-the? Participants' meeting, the officer of the Operator _with operational:: responsibility _.for the' Plant
-shall-give a: presentation on.the significant items 1 - _
containedsincthe written. operational' report,Las.well as-the current stat'us of th'e' Plant.= The' officer will"alsor ,
^
'brief-the--Participants on_the results of evaluations 1
,<w - , -
,,n-g-,-r- ,m-w --,w. , , , , , w- yai,e-[- y. y ,w <, y,,-y~+y,,,<gw- , -gw...-,epy Aw .h , -- w.b,,,,y'y,y-,.yye-w h- - p
1. and as.scssments of the Plant by the Institute of l duelear Power Operations ("INPO") since.the last meeting of the Participants. (c) Fcr each quarterly Partic/aants' meeting, the Operator shall distribute, at least seven days in advance, a written financial report which shall include, but not be limited to, the following: (1) Actual operating expenses for the prior quarter and year-to-date comparing same to the approved budget. (The Operator shall explain, in detail,. all line item expenses which are budgeted to be greater than 1% of the approved operating budget and which are at variance from the approved budget by greater than 10%. Each report shall identify actual expenditures not within the approved budget and actual withholding of expenditures which have been approved.); (ii) A projection as to any significant year-end variances from the approved budget. (The Operator shall explain, in detail, all.line item expenditures which are budgeted to be; greater than 1% ce t'e approved operating budget and projected 2
- + -
to be at variance from the approved budgtt by greater than 104. The Operator shall also explain whether the total level ot operating or capital expenditures is expected to exceed the respective approved badget by 5%. Each report bhall identify proposed expenditures not within the approved budget or proposed withholding of expenditures 1 which heve been approved.); and (iii) Other items which the Executive Committee shall, from time to time, reasonably request. (d) Between tha quarterly Participants' meetings, the Operator shall distribute, on a timely basis, operational information which shall include, but not be limited to, the followings (i) A copy of the NRC Systematic Assessment of l Licensee Performance ("SALP") report, or equivalent, and the Operator's respense thereto. (Copies of SALP reports are to be provided as soon as reasonably possible after '. hey are released to the public by the NRC,?;
+
o
/ am NA\ NW
j l i I ! l . (ii) A copy of the year end INPO performance indicator report, or equivalent, for the Plant; ! (iii) A copy of the Plant's post refuel outage report; (iv) A description of any event which results in a Plant shutdown or could extend a refueling l shutdown by greater than two weeks; (v) A copy of the NRC report for any NRC violations in Severity Levels I, II, or III, and the Operator's response thereto; (vi) A copy of any NRC report containing a proposed l civil penalty enforcement action; and (vii) Other items which the Executive Committee may, from tire to time, reasonably request; (e) Between the quarterly Participants' meetings, the Operator shall distribute, on a timely basis, financial information which'shall include, but not be limited to, the followings l . I
l (i) Honthly reports which'will enable each Participant to meet its accounting, statistical, and financial disclosure requirements, including the requirements of any regulatory bodies having jurisdiction over such Participant. (The Operator shall provide such accounting information in electronic format (i.e., magnatic tape or diskette) for those Participants which specifically request such. Subject to Section 7(a), covering the cost of providing additional information, if any Participant shall reasonably request accounting or other information required , by this Section 6 in a special or different format, such request shall be granted to the extent practicable.); and (ii) Other items which the Executive Committee shall, from time to time, reasonably request. (f) Notices of an Unusual Event, Alert, Site Area Emergency, or General' Emergency (as such terms are defined in the Emergency Plans for the Plant) shall be distributed by the Operator to-the. Participants immediately according to the Emergency Notification Procedures adopted by NEPEX, o.r equivalent. 4 i
P (g) The Operator shall report to the Participants, no less than quarterly, on the status of all decommissioning trust funds and all activity associated therewith. At least annually, consistent with the timing of the activities of the New Hampshire Nuclear Decommissioning Finance Committee, or its equivalent, the Operator shall issue a written report to the Participants on the performance of the investment manager / trustee, as well as the specific investments comprising each trust
- fund.
(h) By the end of the first quarter of each year, the Operator shall furnish each Participant with a detailed list of insurance policies in effect'for the Plant. Such list shall identify the insurer, coverage amounts, deductibles,_ premiums and other relevant information. To the extent that premiums on policies , providing coverage for facilities other than the. Plant are allocated to the Plant, the Operator shall so l 1 identify and fully docume.t the basis for such l allocation. Tho Operator shall promptly notify each Participant of any material adverse change to any_ policy. - 5 t 1 4
- . - , . . ,,---...-,,,--eImc.yn.--
y op ,, ,. -, o . . - y
f 1 i ! l l (1) Upon the execution of,an appropriate confidentiality agreement between the Operator and an individual Participant, the Operator will provide such Participant with copies of all evaluations and assessments of I Seabrook Station and the Operator by INPO. (j) ine Operator shall report to the Participants, no less ! than quarterly, on the status of any material litigation involving possible liability of all of the Participants in the project before any Federal or state courc or administrative agency. (k) Semiannually, the Operator will furnish to the Participants-data showing actual performance for the plant compared to estimates and goals contained in the approved Annual Seabrook Plan as described in Section 8 of this Agreement.
- 7. Access to Information (a) Each Participant shall'have the unrestricted right to all-information relating to seabrook Station including, but not limited to, records and correspondence within-the control of the Operator, or any_ service companyfor agen't retained or appointed-pursuant to.Section~4 of- !
4 4 4 0 b
l this Agreement, wherevor located except for information l which is a) protected by law, b) restricted by contract with third parties, or c) deemed commarcially sensitive by such service company or agent. If requested Anformation is restricted by contract with third parties, the Operator, and such service company _or agent, will use its best efforts to obtain the consent [ of third parties to disclose confidential information to Participants, with the understanding that Participants may be required to sign a non-di;clo;ure agreement. For information which is considered commercially sensitive to a service company or agent appointed or retained by the Operator, upon the request of one or more Participants, such servics pany or agent shall allow for its review by an independent third party, selected by the parties involved (other than the Operator and such service company or agent)- and acceptable to the Operator (provided that the l Operator may not unreasonably withhold its acceptance) to determine, using an informal, simplified procedure, whether the information in question is commercially. sensitive. In any event, if reasonable under the circumstances, the Operator.may require a Participant to sign a nondisclosure agreement covering,information - that it considers commercially sensitive. 4
1 i 1 I i Review of information by Participants at the offices of 4- f i the operator, or a service company or agent appoint.s ! or retained by the-operator, shall occur at reasonable ! i times-during normal business hours, and shall be arranged in advance. The Participants shall-use + reasonable efforts to avoid disrupting the' business ; operations of the Operator.or such-service company or ~ agent. The Operator shall coordinate and facilitate the dissemination of information between the project and , the Executive Committee and/or the Participants.; Upon request, the Operator shall assist the Participants in regulatory proceedings =-an6 other- , contested matters relative-to the Plant,' including-the ' i provision of witnesses.and of current andLaccurate data on a timelyfbasis. Information, including witness-support, that will: l require.'s substantial' commitment of" time or a
]
substantial: effort to assemblefor develop,1and;isi t
, -neither a) requi' red byfa=substantin1'humber of ,
Participants, norf b) requested by) heLExecutive:
'fl 4
. 1 I. - -- ,,a_....~.. ., .. -
, - v.. -~~_e, , ..-..J,.., , , , , , - ~ - , , . - .. . ,, -.
1 1 l
\
Committee, shall be paid for by the Participant (s) requesting such information. The Operator, in consultation with the Executive Committee, shall 4 develop a reasonable standard by which it will determine how and when a Participant is to be charged for information requested. Subject to the limitations set forth elsewhere in this section 7 any information relating to Seabrook Station shall be provided to any ~ Participant requesting it, l with the understanding that the Farticipant may be required to pay for the cost of providing it in the - circumstances described in the preceding paragraph. l (b) Without limiting the generality-of this Section 7, any-Participant or the Executive Committee may ' request an audit of the accoonts and records of the Operator, at its offices, at reasonable times, by an-independent l certified accountant or other representative-of the Participant (s) requesting the audit; provided however
'that, absent extraordinary-circumstances, and subject to the rights of the Participants under Section 18-l (Arbitration) of this Agreement, a full-scope audit-shall_not'be performed at the request-of'the Executive committee or one or more Participants not affiliated v , w- ,,p, 4 ,
- - , 4 -m , , 7-
- 30-
)
2 with the operator more frequently than once each year. l i If an audit is requested by the Executive Committee, ( the costs thereof shall be borne by all Participants in proportion to their Ownership Shares. If an audit is ; requested by one or more, but 1&&: than all, of the Participants, the costs thereof shall be borne by the , Participant (s) making such request. If an audit is performed in connection with an arbitration proceeding, the costs of the audit shall be allocated among.the-Participants in accordance with the decision of the-arbitrator. 1 4 (c) Each Participant shall be notified by the Operator, sufficiently in advance, of exit interview meetings , with INPO, on its evaluation report, and the NRC, on . its SALP report and enforcement conferences. Representatives of any Participant may attend such meetings as observers.- (d) Each Tarticipant shall have.the right to have its representatives visit the. Plant,itour facilities,- inspect project records-(subject to Sectionf7(a) hereof).and observe Plant activities, provided that-these activities 1will not interfer,e with the operasion- -
'of the Plant, Plant safety or security.. Such '
t 3
I representatives shall comply with all applicable rules and regulations in effect at the Plant whether imposed by governmental authority or by the Operator.
- 0. Pavrentst Budcets I
(a) All services rendered by the Operator, or by a service comp.ny or agent retained or appointed pursuant to i Section 4 of this Agreement, under this Agreement will be at actual cost thereof, fairly and equitably allocated and calculated, all consistent with the requirements of the Act and the rules and regulations 4 and orders thereunder. Direct charges will be made for I services where a direct allocation of cost is possible. Charges not directly assignable shall be determined and allocated on a reasonable and equitable basis in accordance with PUHCA requirements and as approved by the Executive Committea, which approval shall not be unreasonably withheld. The Operator shall obtain Executive Committee approval, which approval shall not be unreasonably withheld, of the methodology utilized, as well as changes thereto, for allocating _ costs to the project, prior to the implementation of such methodology. Such-allocation methods will be . appropriately documented and available for' review by 9
the Participants upon request. Without limiting the generality of the foregoing, allocable costs include executive salaries and fringo benefits paid by the i Operator, the employee wages and benefits paid by the Operator, the insurance expenses incurred pursuant to Section 9 of this Agreement, and other general overhead-expenses incurred by the Operator. The Operator shall keep complete and accurate accounts of all receipts and expenditures hereunder in accordance with the rules and regulations of the Securities and Exchange Commission t and the Uniform System of Accounts prescribed for. , i Public Utilities and Licensees subject to the Federal Power Act, as amended from time to-time (or such-similar accounts'as may.hereafter become appropriate). q (hereinafter the " Uniform system of Accounts"). (b) The Participants shall pay faa Operator fcr all project costs and: expenses incurred by the Operator in i accordance with the Joint Ownership l Agreement. l (c) In each calendar l year during the term hereof, - commencing with the.first such, year which begine after; the Time.of Effectiveness, the Op3rator shall prepare and present to the Executive Committee 1(with' copies to :
* + j each Participant) therfollowing budgetLinformation:
L . L > i l I 1 i
- 33- ;
(1) by November 1 of each calendar yeart (A) a detailed estimated budget for operating and maintenance expenses, disposal costs of i nuclear fuel, and any other funding j requirements not contained-in (1)(B) below, in a reasonable format selected by the ; Executive committee, for the succeeding-calendar year (the " Proposed Annual Operating i Budget"); (B) a six-year forecast of capital expenditures, including a detailed-budget.of expenditures
-for tenstruction activities-(plant additions.
i and removals), and procurement of. nuclear fuel for the succeeding calendar-year'(such t capital budget for the' succeeding. calendar-l year being.herein called the " Proposed Annual capital Budget");1and-s
~-(C) a propose'd annual plan which_shall comprehensively-addressLall' operating goals l- and objectives-for the Plant and;its staff' ..
i _(" Proposed Annual Seabrook Plan") and the , 4 p- Nr y ,-, , w- y , -, $m 2 .i. f . , . -., f ,, .e-y , w w -
basis thereof and shall include any planned changes in the authorized staffing level for f the Plant; and (ii) by June 1 of the subsequent year,-a five-year I forecast of all expenditures defined in (1)(A) above, including a preliminary detailed estimated budget for the succeeding calendar year for ; expenditures defined in (1)(A) and (i)(B) above using a reasonable; format selected by the -i Executive committee and a five-year plan for the nanagement of radioactive waste, including , projected volumes, spent fuel inventory, processing and disposal plans and estimated costs. The Proposed-Annual Operating Budget land the Proposed q Annual Capital Budget,' defined in (i)(A) and.(i)(B). above, shall collectively comprise the " Proposed Annual: Seabrook Budgets". All expenditures that the Participants are expected to fund to the Disbursing i Agent over the succeeding calendar' year, areLto be contained in the Proposed Annual Seabrook Budgets and presented on a monthly basis. l' , W L-- _. - . _ _ _ _ _ _ . _ . _ _ _ _ _ _ . - _m___. m _ ..-_._._._'. ._E...bm_ _ __._
i ] The Operator shall, as part of the development'of the j Proposed Annual Seabrook Budgets, provide,a forecast. i of other project related expenditures,'such as property i
- tax payments and decommissioning funding requirements, l I which each Participant is required to remit.directly i l to an entity other than the Disbursing Agent. Such l
l direct pay expenditures forecast-shall.not be included in the total Proposed Annual'Seabrook Budgets.
-1 3
i i ) In advance of the-meeting of the. Participants at which= l l the Proposed Annual Seabrook Budgets:and Proposed' j Annual Seabrook Plan will be considered, which meeting
~
! shall be held on-or prior _to December 15 of each year, j { the Executive Committee shall review such; Proposed Annual Seabrook Budgets.and' Proposed Annual deabrook~ ! 4 ! Plan and, after consulting with the other Participants,1 i shall confer with the Operatorirogarding such Proposed l- Annual Seabrook. Budgets and-Proposed. Annual.Seabrook- .I 1 . Plan for such calendar year._ Subject tolthe-provisions. f of Section-37.3(c) of the JointL0wnership~ Agreement,_ ,
'the Participants shall, by a vote cofLfifty-one: percent (514) or-more of the ownershipfshares, either approve; ;
~
or modify the aggregate dollar amount of either or both the Propos'ed-Annual Operating: Budget'or-:the Proposed
- Annual Capital: Budget. .Uponyapproval-by the 4
__ _ . ~ f- g4nf e -it'-.4ey Wy. pm, -w- w-" $' y vpg'y q see yq
i l i Participants, the Proposed Annual Seabrook Budgets, reflecting any modifications made thereto by the Participants, and the Proposed Annual Seabrook Plan, , reflecting any modifications made thereto by the Participants, shall be deemed to be the final annual - Seabrook budgets (the " Final Annual. Seabrook' Budgets") , and final annual Seabrook plan, (the
- Final Annual ;
Seabrook Plan")~, respectively,-for such year. To ; become effactive, the Final Annual Seabrook Budgets and
~
Final' Annual Seabrook Plan for such year shall,-subject-to the provisions of.Section 37.3(c) of the Joint Ownership Agreement, require approval by Participants, [ owning fifty-one percent.(51%) or-more of the ownership-Shares in the Seabrook Project before the prior ._ December 31, provided'that.if Participants owning more j than 49% of the ownership Shares'doinot.' disapprove of l the Proposed Annual Seabrook Budgets and ProposedL Annual Seabrook Plan in writing by;the . tenth:dayy af ter.. , the meeting called-and held to consider it,ithen~it shall'be deemed-tv be'the Final Annual Seabrook Budgets -- and Final Annual Seabrook. Plan.Lrespectively, for suchf ! i
--year. ;
The: Participants'may review'the pl,anning and. budget ~ j
. process and'requestichanges,< subject to approvallby '
~
a 1 h __1
the Executive Committee. The Operator shall make every reasonable effort to implement the changes reasonably requested by the Participants and approved by the Executive Committee. A decision by the Executive Committee to approve or disapprove any such requested change may be overridden by a vote of 51% or more of the Ownership Shares. (d) Subsequent to approval of the Final Annual Seabrook Budgets, the Executive Committee may, in the reasonable exercise of its discretion, approve the redistribution of expenditures arong budget categories or budget items to which the Operator shall conform. The Participants shall approve or disapprove in advance, by a vote of Participants owning fifty-one percent (51%) or more of the ownership Shares, increases in expenditures contained in the Final Annual Operating Budget or the Final Annual Capital Budget if such projected expenditures are expected to result in. total-expenditures which exceed the respective approved annual budget by 5% unless there in an immediate need to proceed in order to maintain or restore the, Unit to safe reliable operation, in which case similar Participant approval is required if such increases are r expected to result in expenditures which exceed the 4 L_____________.____
. g i l budget by.10%. In no event shall the Operator fail to comply with applicable law, the NRC's' rules, i regulations or orders, or the terms of the NRC License or Technical Specifications due to the need *o obtain' 1 t i such approval. The operator will make re*~ sble ; efforts to mitigate expenditures and avoid ..icreases in approved budget amounts. Expenditures made for the- [ i purposes of regulatory compliance which were not i anticipated in the approved = budget and which result in ] ! exceeding the'approvod budget shell be-reported by the-Operator promptly to tr.e Executive Committee.- ] P (e) The operator shall submit to the, Participants for~their' I approval, by a 51% vote of the 0wnershipf5 hares,.a- t deta'iled-plan and budget pertaining to'all:its. i activities covering the' period from'the; Time of_. , Effect reness to the and of-that calendar year.: Such l plan shall beLaubmitted'at'least 60 days prior to the l Time of Effectiveness, and~shalliincludeirbut not bei limited to,- staffing: changes, significant contracts "
-which the Operator _ proposes toiterminateland/or. assets ;
I which it= proposes to abandon!and the costs associated ~
~
therewith. ! p,
. 4- -
q I e s s i
, .i i
.. = .
l (f) In the event that.the~ Operator has obtained services from an affiliated company, as contemplated in Section t of this Agreement, such affiliated company shall, ! unless the Executive Committee otherwise directs, submit bills for such services to the Operator, and the l Operator shal) in turn bill the Participants for such services in accordance with the Agreement for Seabrook Project Disbursing Agent, as amended. l (g) In the event of a dispute as to the amcunt of any payment to be made to the Operator hereunder, the Participant or Participants disputing such payment shall notify the Operator of the amrunt in dispute and shall pay to the Operator the total payment including l the disputed amounts- The Operator shall promptly refund, with interest from the date of payment until the date'of refund at an annual rate equal to the
- lowest (i.e., " base") interest rate, in effect from l
l time to time, at the Bank of Boston on 90-day commercia. loans, any disputed amount ultimately found to be not payable. E _ 1
i i
\
Ba. Certain Transitieng W gg In the event thet North Atlantic Energy Service Company shall be appointed by the Participants to act as Disbursing i Agent for the project and such appointment shall become effective prior to the time that Participants owning eighty percent (80%) or more of the ownership Shares have voted to amend Section 37.2 of the Joint Ownership Agreement to authorize the annual preparation of twelve-month buagets (rather than the quarterly preparation of six-month budgets, as presently requJted by said Section 37.3), then North Atlantic Energy Service Company shall comply with the requirements of the Joint Ownership Agreement and the First Amendment to the Seventh Amendment to and Restated Agreement for Project Disbursing Agent (such Agreement, as the same ray from time to time be modified, supplemental or amended, being hereinafter called the " Disbursing Agent Agreement") with respect to the manner, timing and other matters affecting the budgets for the project and the oilling and disbursement of Project Costs, unless and until 1 Participants owning eighty percent (80%) or more vote to-amend Sea. tion 37.3 of the Jcint Ownership Agreement to authorize the annual preparation of twelve-month budgets;
. provided, however, that until, said Section'37.3 shall be so-amended, in addition to complying with'the requirements of
r
- - - 4--
l [ l Section 37.3 of the Joint Ownership Agreement and the Disburning Agent Agreement, the Operator shall, for informational purposes only, also annually prepare and distribute to the Participants twolve-month budgets, as contemplated by Section 8 hereof. l l I 3- ISEMance The ParticipLatt hereby direct the Operator to-implement i Paragraph 10 of the Joint Awnership Agreement. The Participants further direct the Operator to obtain and
-l naintain for the benefit of its officers,: directors and trustees while acting in su6h capacities, Directors and Officers Liability Insurance in such amount as the Opr.rator may from timo to time determino, after consultation with the Participants.
- 10. Decommissigning in furtherance of the provisions of Paragraph 13A of the Joint Ownership Agrewment,.the Participants herebyfdesignate the Operator as ' lead company" (as that term is defined in Chapter 162-F df-the New Hampshire Revised' Statutes '
Annotated) and delegate to the Operator authority to userve
, w- .:
as spokesman for the Participants, under the reasonable direction of the Executive Committee, in dealings with the State of New Hampshire with respect to the Seabrook Nuclear Decommissioning Financing Fund as contemplatud by that statute. The Operator shall also perform all of the obligations of a Nonaging Agent under the Pre-Operational Decommissioning Funding Agreement, the Seabrook Pre-Operational Trust Agreement and the Seabrook Nuclear Decommissioning Financing Fund Master Trust Agreement, all dated as of February 11, 1989, as the same may be amended from time to time.
- 11. Limitation of Liability For and in consideration of the fact that-the Operator is undertaking responsibility for design, engineering, construction, operation and maintenance of Seabrook Station for and on behalf of the Participants without any compensation or charge other than recovery of its costs for such services, no Participant shall be entitled to recover from the Operator or the directors, trustees, officers,
! employees, egents or affiliates of the Operator (or the I directors, trustees, of ficers, employees or agents of such affiliates) (collectively " Protected Pa,rties") any damages resulting from the performance or non-performance of its
! i respective responsibilities hereunder or under the Joint Ownership Agreement, or for any damage to Seabrook Station, ! J any curtallment of power, or any other damages of any kind, i including direct, incidental , consequential, speciki, ' indirect or punitive damages occurring during the course of i the design, engineering, procurement,-installation, construction, operation, maintenance, refueling or; l i decommissioning of seabrook. Station or otherwise arising out j l of the performance or non-performance of this Agreement, f unless such damages shal!-have resulted directly from the 4 , willful misconduct of.the Operator, or, to the extent 1 j legally attributable to the-Operator, directly from the ? , willful misconduct of a' Protected Party.- Notwithstanding the preceding sentence, no' Participant shall be-entitled to i i recover any such damages if such damages resulted from the 4
- Operator's or Protected Party's actions or omissions'that
! have been expressly approved in advance by the Executive
- i
- committee or by the Participants.
- j. All' goods and services provided to th; project by a i Protected Party shall be under a written contract having;the same limitation of liability as above; provided, however, that the same limitation of i liability shall;also apply'even.
if goods and services,are provided without.a< written- ,
~
contract. , 4 I i S S 1
, .pi ri -* y 4w- e.<m.= , f .-w,,
The provisions of this Section 11 chall apply , i notvithstanding any provision of this Agreement to the contrary and shall survive the expiratien or termination of this Agreement.
- 12. Term and Ef fectiventuut (a) The term of this Agreement shall commence at the Time of Effectiveness, provided that it has been executed by operator and Participants owning at least 51% of the Ownership Shares of Ssabrook Station,-and shall continue until the date, after the cessation of ;
commercial operation of Seabrook 1, on which the Participants and Operator are ultimately relieved by the NRC of any further obligations with respect to the decommissioning of Seabrook.1, unless sooner terminated as hereinafter provided. , l (b) This Agreement maylbe terminated:-
-(i) By-the Participants,'at any time, with or without cause, by the affirmative vote ofL51% of all
. Ownership Shares. , ,
.l l' 1
(ii) By the Oparator,'with or without cause, upon twelve months prior notice to the Participants;- provided that the-oporator may not.give such' notice of termination during the first twelve: months following the Time of Effectiveness. (c) Any party terminating this Agreement aball give wriscon notice of such termination to the other partics' hereto, stating the date on which termination-is to' occur (the
- Termination Date"). 'Notwithstanding such notice,-the Termination Date shall not occursuntil any requisite amendment to the operating License has been issued and is in effect. The operator-agrees to cooperate with i the Participants to accomplish.the orderly transfer ~of its responsibilities-hereunder to any successor designated by the' Participants. On-the-Termination-Date, as a precondition to any terminationihereof, the Participants shall pay.to the operator allo amounts'due-to it hereunder and shall: execute and deliver:to operator such. instruments as it may! reasonably: request which evidence the continuing obligations ofLthe Participants in accordancelwith Section111'ofethis-Agreement.
. t
(d) If the Participants or the operator terminate this Agreement, the Participants shall reimburse the Operator for direct costs actually incurred resulting from such termination. The operator shall fully substantiate all direct costs actually and' reasonably incurred and supply supporting documentation of such costs in reasonable detail. The Operator shall use its best efforts to mitigate the costs of termination. (e) This Agreement shall also be subject to termination and shall terminate, without any action by any of the parties hereto, to the extent and from the time that performance may conflict with the Act or with any rule, regulation or order of the SEC adopted before or after the making hereof.
- 13. do Setoff The Participants' obligation to make payments to the operator hereunder is absolute and unconditional and a Participant shall not be entitled to set off against the payments required to be made hereunder any amounta owed to it by the Operator or any affiliate of the Operator or by any other Participant or the. amount of any' claim by it '
l l . 9
against the. Operator or any affiliate of the Operator or any other Participant. i
- 14. Assionment ,
i I This Agreement shall be binding upon and inure to the benefit of the Operator and the Participants and_the Participants' successors and assigns, subject to the-limitations herein set forth. The _ Operator may not assign its rights and obligations hereunder. A Participant say.not
~
assign part or all of its interests hereunder except as an integral part of a transaction involving an assignment of a corresponding portion of its Ownership Share which complies with the Joint Ownership Agreement.
- 15. No Third Party Beneficiaries The provisions of this Agreement are solely for the benefit of the parties hereto _and-the other Participants and are not intended to benefit or create rights ~1n any third parties.-
- 16. Several Oblications of Perticicant'- s 4
The obligations of the Participants under this Agreement:and any contract entered into pursuant to-this Agreement shall
4
~48- :
i l be several, and neither joint nor joint and several, in ; proportion to the respective Ownership Shares of the Participants. Every document delivered to any third party , by the operator which may bear on the nature of the i Participants' obligations shall specify such several (and not joint or joint and several) nature of the Participant's obligations.
- 17. Aeolicable Law and Enforceability ~i This Agreement is'made under and shall-be governed by and interpreted in accordance with the lawslof the State of New Hampshire.
In the event that any clause or provision of this Agreement, or any part thereof,-shall be declared invalid or unenforceable by any regulatory body or. court-having ' l jurisdiction, such invalidity or unenforceability shall not affect the validity or enforceability of the remaining . I portions of'this Agreement. 18.- Arbitration-Any dispute among a) any of the;
Participants:
and(Operator.or b) any Participant'and other-Participant (s) with respect1 to i k 7 w - - - e , - g , g<w.' y n-4er w , L, p- A
this Agreement (" Disputing parties") shall be submitted to arbitration on the request of any Disputing Party. Copies of any such request shall be served on 11 Participants and the operator. Such request shall specify the issue or issues in dispute and summarize the submitter's claim wA*.h respect thereto. Within ten business days after receipt of
-such a request authorized representatives of the Participants and the Operator shall confer and attempt to agree upon appointment of a-single arbitrator. If such-agreement is not accomplished, any Disputing Party-may-request the = American1hrbitration' Association- to appoint- an arbitrator in accordance with its commercial Arbitration.
Rules, which rules shall govern the conduct cf the arbitration in the absence of contrary agreement byLthe Disputing Parties. The arbitrator shall conduct'a' hearing-in Manchester, New Hampshire, or at any other. location mutually agreed to among the-Disputing-Parties, and within: thirty' days thereafter, unless:such time.is extended by-agreement by the Disputing-Parties, shall1 notify the- ~ Participants a.sd Operator.in writing of his decisioni stating his reasons for1Such decision and listing his-findings of fact and conclusions'of-law. 1TheLarbitrator shall not have power _to amend or' add to thisM orLany other, Agreement,> including the Joint-Ownership _ Agreement. Subject; to such- limitatien,1 the:decisioniof the arbidrator-'shall: be 1 g 1 t L _ w
m - fAnal and binding on the Disputing Parties except that any Disputing Party may petition a court of competent jurisciction for review of errors of J aw. The decision of the arbitrator shall determine and specify how the expenses of the arbitration shall be allocated among the Disputing Parties:
- 19. Notices
-I 1
l Any notice, demand, request or documentation to be furnished i I to any P.rticipant or the Operator pursuant to any provision of this Agreement shall be provided in writing and shall be delivered either in person, by prepaid telegram, by registered or certified mail, or by telecopier, telef ax, or ! ( other electronic means with verification of receipt thereof I to the officer, official, or agent of such Participant or Operator at the address indicated on Schedule A hereto or at l such address as may hezaafter be designated from time to j time by such Participant or Operator by written notice to 1 the other Participants and the Operator, i I
- 20. Countercarts I
4 Any number of~ counterparts of this. Agreement may be executed j i and each shall have the same. force and effect as an origir.al !
-j G
m_-_ - _
and as if-all of the-Signatories to all of the counterparts-- had signed the.same instrument..
- 21. Amendment This Agreement may be amended from time to time by agreement I
! in writing executed:by Participants' owning 51%_or.more of t the ownership Shares, except that voting requirements of_ greater than 51%, contained herein, may not be amended, and actions requiring a voteLgreater than 514, contained-herein,'may not be rescinded'or superseded, except in writing by? Participants owning such greater percent'of the, Ownership Shares.
)
5 k I J E
h IN WITNESS WHEREOF, each of the undersigned has caused this Agreement to be duly signed by an authorized-officer, and its respective seal to be duly-affixed hereto and attested-(or such signature by an authorized officer to be attested to by a witness) on the date indicated but as of the date first'above written. [ ATTESTED SEAL OR SIGNATURE OF WITNESS) NORTH ATLANTIC ENERGY SERVICE CORPORATION 0- N .1 By: NJ bbd L Its Eva ax Va 9eth -bJ.\ c - t Date He M WT NORTH ATLANTIC-ENERGY CORPORATION W- b Bya b, dt u u Its b *c.M . m. ' 'N.) e m OmM -dJah Date:- Es -19, M'll THE' UNITED ILLUMINATED COMPANY ! By:. L Its Dates i EUA POWER CORPORATION-l By: Its
- Dates v- v v , ,~ f y - -, ..w..
IN WITNESS WHEREOF, each of the undersigned has caused this Agreement to be duly signed by an authorized officer, and its. respective seel to be duly affixed hereto and attested (or such signature by ar. authorized officer to be attested to by a witness) on the date indicated but as of t'ae date first abcve written. [ ATTESTED SEAL OR SIGNATURE OF WITNESS) NORTH ATLANTIC ENERGY SERVICE COMPANY By: Its Dates
, PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE By:
Its Date: THE UNITED Tm NA CQfilb JJ b/LULLC B M *
'o s&MAe,c Date: 8!9A EUA POWER CORPORATION By:
Its - Dates _ _ _ _ 1
l 1 MASSACHUSETTS MUNICIPAL WHOLESALE ELECTRIC COMPANY __ . By: Its Dates a
'/ NEW ENGLAND POWER COMPANY 1!, -[ #
#c'44 ~ By: - I C Its I/' < r Nv 5 e'-" E e
Date % "e f Ink THE CONNECTICUT LIGHT AND POWER COMPANY By:
, Its Dates ;
1 , 1 CANAL ELECTRIC COMPANY ! 1 ., l l By: i
'b Its _
l 1' Date: ,_ MONTAUP ELECTRIC COMPANY By: 1 Its ! Dates j ! i ! I i l t
'l l
._. - - . . - . , . ~ . . . . _ - . _ - . . . . _ - _ . - . . . . - . . . .
- - .- - .-...,. .. . .. . - , . , , _ , . , . . - - . . . . . . ~ . - . - - . . - . , , , - .
MASSACHUSETTS MUNICIPAL WHOLESALE .j ELECTRIC COMPANY l l l
- By
- l Its Date:
i NEW ENGLAND POWER COMPANY
- BY8
- Its i Date:
THE CONNECTICUT LIGHT AND POWER COMPANY d By: a Its .( } Date: l, 4 CANAL ELECTRIC COMPANY By: I Dates MONTAUP ELECTRIC COMPANY 1 By: Its Dates 4 MA
- , v ... ,
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w h e MASSACHUSETTS MUNICIPAL WHOLESALE
' ELECTRIC COMPANY By:
Its Dates NEW ENGLAND POWER COMPANY By: Its Date: THE CONNECTICUT LIGHT _AND POWER COMPANY-.. By: Its Dates CTRIC COMPANY- i CANA By: t7.vanu mp,s n a4; L , _ Dates @ ' l- SO ; bSb r MONTAUP ELECTRIC COMPANY - By: Its Dates 4 e t-i.
.. _ . . _ _ _ . .1_. . . _ . ~~~. _.. ._ _ _ _ _ _ _ . _ _ _ . _
NEW HAMPSHIRE ELECTRIC COOPERATIVE, INC.
/Md h-[m By: _ % Ms' -
Its M* h 4-9 Dates ] ~ E N ~0 D VERMONT ELECTRIC GENERATION AND TRANSMISSION COOPERATIVE, INC. By: _. Its Date:
) TAUNTON MUNICIPAL LIGHTING PLANT By:
Its J Dates HUDSON LIGHT & POWER DEPARTMENT By: 0 Its Dates e f l
-g I
}
e NEW HAMPSHIRE ELECTRIC COOPERATIVE, INC. By: _ Its e; , Dates f E h VERMONT ELECTRIC GENERATION AND
; TRANSMISSION COOPERATIVE, INC.
By: Its Date I TAUNTON. ICIPAL LIGHTING. PLANT
~
- ltv A / $7. V Y By: % MD is I Ls_ SM mal- l A4W4W Dates Q/E/lVM-1
~
HUDSON LIGHT & POWER DEPARTMENT By: Its Dates-I W @ W 9SP- D -3" *
. - . - - .. -~ .
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I ~ SCHEDULE A-I- h j' Addresses of-Agents for Operator and Participants-l Mr. William B._E1115 . Mr'. David A. Sjosten ! President and CEO GeneralsManagerland Secretary) !- North Atlantic Energy Mass.1 Municipal Wholesale: 1 Corporation- = Electric 1,3. .. , b 1000 Elm St. - P.O. Box 330 Randall Rd.J- P.0L Box-'426 , !L Manchester, NH 03105 Ludlow < MA 01056. . i .Tel: (603):634-2259 Tel: ~(413) 5 8 9-0141 ~,, x'. 3 2 8 L + 4 FAX: (603) 634-2438 = FAX: (413) 589-1585 l Mr. Richard J. Grossi Mr.-Horst-Huehmer,;HanagerZ l ' ! ChairmLn and CEO Hudson' Light _and PoweriDepartment_- 3 The United Illuminating Company - Town- House 49 Forest: - Ave. l 80 Temple St. - P.O.. Box 1564 Hudson, MA';01749-i- New Haven, CT 06506 Tel:? _(508)L 568-8736
- Tel: (203)-787-7756 FAX: . (508) 562-1389 FAX: (203) 777-7163
[- I Mr. Donald G. Pardus- Mr. Joseph M. Blain- >
- Chairman and CEO GenerallManager
' Montaup Electric Company TauntoniMunicipallLightinel Plant- . One-Liberty' Square-P.O. Box 2333 55~ Weir St. - P.O. Box-870: ' Goaton, MA 02107 Taunton,-'MA -02780 , ' i Tel: (617).357-9590. :Tel: .-(508) L 824-5 844 - FAX: (617) 357-7320 3 FAX: L (508)n 823-69311 , j Mr. William B. Ellis- . ! Chairman and CEO 'Mr. Charles 2A, Farrington The Connecticur. Light Vice President- O Executive: Manager--
- and' Power Company-. . Vermont Electric. Generation;and
[ 107 Selden:St. Berlin, CT 06037 TransmissionrCooperative Inc. {- , Schoolist. 5-(P.O. Box 270 JohnsonJ VT5056561 - Hartford, CT 06141-0270) 1Tel: (832) 635-2331i Tel: .(203) 665-5123- ~ FAX:M(BJ2)-635-7645t [ FAX: (203) 665-3581 .
- Mr. Jon-A.;Bellgowan; Manager :
- Mr. William G. Poist ;N.H.: Electric-Cooperative,-Ince-President:and CEO-4 -TenneyyMountain-Highwayf
}- Canal = Electric Company-. . RFD #4, --; Box 2 2100 21_ ' ' ~ F One. Main St. --: P . O.. Box 915 0 - ! Plymouth,sNH-03264i Cambridge,:MA 02142-9150 Tel: -(603)1536-18001 . - Tel: o (617) 4 225-4200 : iFAXi-H (603)'- 53 6-2830 7
~ FAX: (617) 225-44SI--
~
(Canal Electric). f . Mr.iJohn RoweJ _. iMr.LTed C.deigenbaumt ..' i . President and CEO;. ? North : Atlantici Energy Service: + 2 New England-ElectriciSystem ' __ Corporation - E - j 25-Research Drive- ' Lafnyette-Dri L Rte.11'
- Westborough.oMA 01581- P.O.' Box 300' ~ -
G 'Tel: (508)J366-2701 Seabrook,'New Hampshire. ?! FAX:-(508)-366-5498 ' Tel:1 (603) -47.4-9521 - x.4 4 00 t FAX :' ' ( 603)1474-2987-4 - f 1; 4
- , , - . - ,,%w - ,- . . + . - ~ . - - , , , -- w e d -e , m-am,J. w ...~ . b , . .- ,
- J 4 - --- i ,-e
Mr. John R. Stevens President EUA Power Corporation P.O. Box 2333 One Liberty Square Boston, MA 02107 Tel: (617) 357-9590 FAX: (617) 357-7320 4 l i l
, COUDOSITE COMPo# MFD 'CnpY 4 5 FIRST AMENDMENT-TO
- SEABROOK PROJECT MANAGING AGENT OPEP.ATING AGREEMEET 4
This FIRST AMENDMENT, made as of the2Elb day of Jun. , 1932, to the Seabrook Project Managing Agent Operating Agreement i (che "MADA") between North Atlantic Energy Service Corporation ("NAESCO*) and those signatories to the Agreement for Joint-Ownership, Construction and Operation of-New Hampshire Nuclear Units dated May 1,:1973, as amended (the " Participants")_which have executed and delivered or which hereafter execute and deliver the MADA. WITNESSETH THAT: , l- WHEREAS, the MAOA calls for NAESCO to assume responsibility l as Managing Agent for the management, operation and maintenance of the Seabrook nuclear generating unit;("Seabrook") at 11:59 l p.m. on the last day of-the calendar month in wh'ch i the final rogulatory approval needed to ef fect the transition from the New l Hampshire Yankee Division ("the Division") of Public Service l Company of New Hampshire to NAESCO as Managing Agent is received; and L WHEREAS, NAESCO and the' Participants wish to have the ficxibility.to. accomplish that transition-at the earliest date ,
-possible,.regardless of-whether that dateils_the last dayJof a
~ month; and
4 , , i a ! l 1 r , E 4'
~ 2-i i
i < i j WHEREAS, the language presently in the MAOA would delay that I transition until the last day of a month: 1 NOW THEREFORE, in consideration of the foregoing and for - - ! other good and valuable consideration, the Joint Owners and -
+
i< NAESCO agree to amend the MAOA as follows:- l
- 1. Section 1(e) is amended to read as follows:
l' i 1 The term ' Time of Effectiveness" shallImean tho'date of-
~
(e) closing of the transactions necessary to accomplish-the ] transfer of responsibility for the management, operation and maintenance of Seabrook from the-4 Division to the Operator, which may occur on any date. after the NRC Amendment-.and other_ federal,.-; state or' local regulatoryt _ judicial' or other: approvalsi necessary. for the performance of this Agreement (collectively,
;
- Regulatory Approvals")1have become effective.
- 2. Section 12(a) is amended to add"the-following~at the n - end thereof:
- Promptly-following;the
- occurrence ~of the-closing-of the-transactions 1necesscry to accomplish the .
b s - 4 v 9 ,...s y--
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- .. -- .. ~ - - . . - -- .- .- -
(- i; f i- . 3 - F transfer of responsibil'ity for the management, . operation and maintenance:of seabrook from the- _,_._ i- Division to the Operator, the Operator shall' provide written 1 notice to the Participants , advising them that the ' Time of Effectiveness" occurred on the date of-such closing. IN WITNESS WHEREOF, each of the undersigned-has caused this First Amendment to be duly signed.by_an authorised: officer,:and-- - its respective seal to be-duly-affixed hereto'and attested-(or: cuch signature of an authorised officer to"beLattested to bygn. - witness) on the date indicated but as of the-datecfirst'above-. t written. [ ATTESTED SEAL OR SIGNATURE OF WITNESS) NORTH ATLANTIC ENERGY l SERVICE CORPORATION O O.Q Y ny: 5[Yi n Its ^ Tri F. ( Ae Nn; mt tiive Victhe'$Nd-lhCb Dates- 7% ' OT , MT4' NORTH-ATLANTIC ENERGY.. CORPORATION 1 d b 3 SC ' - By - bA- 1 d u Its ',[VpNt4 we VCC kP"dfN- Udol(n,b l 1 Date: ~~8 L d i; tti"Y 9 , e
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f -THE UNITED ILLW T N#1M 1 w. E2t By: m e' e - Chairman ryecutive Officer-Dates her41 27. 1947 EUA POWER CORPORATION By: 4 Its Dates
~ MASSACHUSETTS MUNICIPAL WHOLESALE ELECTRIC COMPANY By:
Its-Dates - NEW ENGLAND POWER COMPANY By: Its _ Dates. THE CONNECTICUT LIGHT AND POWER COMPANY By: Its- I Dates CANAL ELECTRIC COMPAhT .I By:- . Its Date -
THE UNITED ILLUMINATED COMPAh7 _ BY8 Its Date: l l EUA POWER CORPORATION By: Its Date: 4 MASSACHUSETTS MUNICIPAL WHOLESALE ELECTRIC COMPANY By: I Its Dates NEW ENGLAND POWER COMPANY
.%< K -
By t t Ltt $AlbAs o L' *.,
/ f/ .
Its VI < - 0 esd r
- 5 Date: 'Jsee E ITS2 THE CONNECTICUT LIGHT AND POWER COMPAhT By: .,
Its
, Dates
' CANAL ELECTRIC COMPAhT I By:
Its Dates i e
i THE UNITED Il1UMINATED COMPAh7 By: Its Dates EUA POWER CORPORATION By: Its Date MASSACHUSETTS MUNICIPAL WHOLESALE ELECTRIC COMPANY By: Its Dates NEW ENGLAND POWER COMPANY By: Its Date: THE CONNECTICUT LIGHT AND POWER COMPAh7 Ad d 4* Py: ~h10) s a v o V Its Ev'9- Yu G - Date D4 3 7 1% L
- CANAL ELECTRIC COMPANY By:
Its l Dates
1 4 > THE UNITED ILLUMINATED COXPANY , BY8 Its Dates
'EUA POWER CORPORATION By8 I
4. Its Data: MASSACHUSETTS MUNICIPAL WHOLESALE-ELECTRIC COMPANY b By: 1 Its-Dates-NEW ENGLAND POWER = COMPANY By: Its
-Date:
THE CONNECTICUT LIGHT AND POWER CCMPANY Byt Its . Dates
- CANAL LECTRIC COMPANY-By: ,,
x's, ciaswg ItsLc.4%,- D.t.: wa so. *w - O
I > l l l i. 4
%CNTAUP ELECTRIC COMPANY 4
By: t Its _ , Dates a
$ NEY EAXPSHIRE ELECTR C COOPERATIVE, Itic ,
j . !b) W' $ By: l m f! Its Y1.+ 41 mW y I l Date: 7A7d~97v -- l VIP.*.ONT ELECTRIC GENERATION AND TRANSMISSION COOPERATIVE, INC. i By: _ , Its-2 Date , TAUNTOM s.UNICIPAL LIGHTING-PLANT-_. l l . By: Its I Date:
- h*UDSON LIGHT & PoirER DEPARTMENT--
1 By: Its
. Dater- )
4 ? g. 4 l
- 1 i
---..,s. , , - - - , . . . , , . - - , , . ,# .. . - , - _.-J,- . , -
-~ . . . . . .
4 l l
- 5- .
MONTKUP ELECTRIC COMPANY By: . Its Date: _ _ _ , NEW MAMPSHIRE ELECTE M COOPERATIVE, INC. By: Its'_ Dates VERMONT ELECTRIC GENERATION AND TRANSMISSION COOPERATIVE, INC. By: __ Its Date TAUNTON N IPAL LIGHTING
/ I' w b* t By: ' , .- /
z,.e
~
Its L /lIALI)443T- , Dates YNYW
'/ /
HUDSON LIGHT ~& POWER DEPARTMENT-By: Its-Dates I m O g-- 7g-r e # -
- * " gyyJg -g.e.p.9., yfg- es.q-te-t* w yv - d - -W+a
COMPOSITE CONFORMED COPY I FIRST AMENDMENT TO SEVENTH AMENDMENT TO AND RESTATED AGREEMENT FOR. . SEABROOK PROJECT DISBURSING AGENT, DATED AS OF MOVPEBER 1, 1990 This FIRST AMENDMENT, made 'as of the ' 29th day of I June , 1992, to the Seventh Amendment to and Restated Agreement for Seabrook Project Disbursing Agent, dated as of November 1, 1990 (" Disbursing Agent Agreement" or_" Agreement"), by and among North Atlantic Energy Corporation, The United Illuminating Company, Canal Electric Company _(successor in-interest to New Bedford and Edison Light Company), The Connecticut Light and Power Company, EUA Power Corporation, i- . l Massachusetts Municipal Wholesale Electric Company, Montaup j Electric Company, New England Power Company, New Hampshire Electric Cooperative, Inc., Taunton Municipal _ Lighting Plant,
~
.Hudsort Light and Power Department _and Vermont Electric.
L G:neration and Transmission Cooperative, Inc. (collectively, the
" Participants") and North Atlantic Energy" Service-Corporati'n o l
("NAESCO") (successor to_ Yankee Atomic Electric Company). L l WITNESSETH THAT: l L WHEREAS, ' by order 'in File No. 70 7787 , - the Securities ~and l Exchange Commission has approved and authorized, under the_Public Utility Holding Company Act of 1935 (the "Act"), the organization and conduct of business.of NAESCO as a wholly owned 1
+
- service company subsidiary of Northeast Utilities, a public utility holding company registered under the'Act; and WHEREAS,-pursuant to a Managing Agent-Operating Agreement between the Participants and NAESCO (" Managing Agent Operating Agreement"), NAESCO will assume responsibility -for~ mankging, I
operating and _ maintaining the Seabrook Project- as of the " Time 'of Effectiveness" (as hereinafter defined-in Article 15 nereof);1and-
~
WHEREAS, N;ESCO.is-willing to perform the responsibilities of the Disbursing Agent under the Disbursing Agent Agreement at. cost, in accordance with Section-2.10.thereof; and WHEREAS, economies, increased efficiencies and other Lenefits will accrue to the Participants as a result of NAESCO rendering the services provided'for-in'the Disbursing Agent Agreement; and WHEREAS, pursuant to Section 3 of the Disbursing; Agent ~ Agreement, Participants owning at least~62 percent of the Ownership Shares in the Sea' rook Project have agreed' to remove q
' Yankee Atomic Electric Company (" Yankee")-as Disbursing Agent, and Yankee has been given twenty-one-(21) days'. prior written notice of that removal'; and i
I
a i 't 4-l l 3 1 WHEREAS, pursuant to Section.3 ofJthe Agreement,:
~
Porticipants owning at'least 62 percentlof-the OwnershipEShares .
- in'the Seabrook Project have ag' reed to appoint NAESCO. Disbursing .
- -
Ag:nt, as evidenced by the. July 19,. 1990: Agreement between Northeast Utilities Service Company acting:on behalf'of-NAESCO, - l ! and certain Participants owning 70.60921-percent of the"Ownershipf . [ Shares in the Seabrook Project
- i. -
i. i: i NOW,-THEREFORE, in consideration of the--foregoingLand for - 1 A
- other good and valuable consideration,-the Participants'and {
NAESCO agree,to amend the Disbursing
- Agent:: Agreement-as=follovsk e
l 4 ! 1. The reference-to'" Yankee Atomic-Electric:Companyi j (" Yankee" or " Disbursing' Agent")" in;the - first paragraphLof :the - - l' I Agreement-is changed to'" North Atlantic Energy 1 Service: Company ("NAESCO" or " Disbursing Agent")".. 2.- All references to " Yankee"4 subsequent ~ toLthe first1 paragraph of.the Agreement are changed to'"NAESCO." 1
-1
- 3. 'The reference?in subparagraph 1(1)Hof Sectiontl.31 to q ths " Nuclear Support-Services Agreement =between;-Yankee-and?PSNH (as agent for .the; Participants),- effective as of LJuly: 1, fl983f. is .
changed-to.the " Managing Agent Operating' Agreement." 1
4
- 4. The definition of " Project Manager" in Section 1.6 is deleted a.nd replaced with the following: " Project Manager means-North Atl'ntic a Energy Service Company unless and_until a successor has received all necessary licenses and-authorization to replace North Atlantic Energy Service Company and has replaced Nort: Atlantic Energy Service Company _as Project Manager of the Seabrook Project."
- 5. The fourth sentence of Section-2.6 is hereby deleted..
- 6. In the second line of.Section 2.12, delete "PSNH-or other" and insert "the" before " Project Manager".. At the end.of Section 2.12, insert "or the Managing Agent-Operating Agreement."
- 7. The final two sentences of Section 2.9 are deleted and replaced with the following:
Each Participant shall have the unrestricted right to all financial. records relating ta) .the Seabrook project l-l within the control of the Disbursing Agent, and-its affiliates, wherever located,-except for information> vhich is a) protected by law, b).restrictedLby contract l with third parties, or-c) deemed commercially sensitive by an affiliate or affiliates of the Disbursing Agent. 1 If requested financial: records are restricted by. e
l E 1 contract with third parties, the: Disbursing Agent, Land- . its affiliates, will use their'best efforts ~to obtain
~
the consent of third parties to disclose confidential financial records to_ Participants,:with-the; understanding that Participants may-be required to sign 3 l a non-disclosure agreement. For-financial 1 records i which are considered commercially sensitive to,:(an)
- affiliate (s) of the Disbursing' Agent,LuponTthe' request j of one or more Participants, such affiliate-shall allow
, for their-review by an independent third party,. selected by the parties involvedE(other:than the-Disbursing Agent and its affiliates)_and acceptable to the Disbursing Agent (provided that the Disbursing Agent may not unreasonably withhold its acceptance);to determine, using.an informal,, simplified > procedure,- whether the financial records-in question are commercially sensitive. In any event,sif: reasonable: under the_ circumstances,_the Disbursing Agent may: require a Participant to sign a'non-disclosure agreement covering' financial: records:that:it considers commercially sensitive. Review of financial records at:the offices of'the D.isbursing Agent, or itsfaffiliate companies,Jshall
. occur at reasonable times'during normal business-hours,-
k[
t a > 1
-6 1 ;
s and shall be-arranged in advance:among theJinv%ved . parties. The- Participants ';- shalli use ' reasonable z offorts-to avoid disrupting the business, operations of
.the: Disbursing Agent or its-affiliates.
The Disbursing Agent shall coordinate andLfacilitate: the-dissemination.of financial records between Seabrook-_ , Station and the Executive, Committee land/or the: Participants.- Subject to the limitations set forth elsewhere~in this: Section 2.9,:any' financial ~ records'relatingit o;the: projact shall1be provided'to any Participant. requesting; them,.with-the understandingLthat-the Participant-may be~ required-to pay-for the cost of providing them in' the circumstances described-'in Section 2.13.-_ T Without limiting 1.te. generality offthis'Section32.9,, D any-Participant or?the Executive' Committee;mayirequest) an audit of:theLaccounts-and< records /of the? Disbursing 1 Agent, at its officesr at' reasonable times,;by an-independent' certified accountantTor~other;
- representative of the Participant'requestingfthe.' audit; providkd that]-absentiextraordinary c'ircumstances,.:
-subjectito the rights'of the-Participants-under Section' -
t _ 1 _ .._..__m... m._ a,, a _ . _ 2 . _ , ,; ,: -. ._._,u,-;,..-_.__:- ,,a :_.~,
-7 18 (Arbitration) of the Managing Agent Operating Agreement, a full-scope audit shall not-be performed'at the request of the Executive Committee or onO or more ,
Participants not affiliatto with the Disbursing Agent more frequently than once each year. If an audit is requested by the Executive Committee, the. costs thereof shall be borne by all Participants in proportion to their Ownership Shares. If an audit is requested by one or more,.but less than all, of the Participants, the costs thereof.shall be borne by the Participant (s)- making such request. If an audit is performed-in connection with an arbitration proceeding, the costs of l the audit shall be allocated mong the Participants in l l accordance with the decision of the arbitrator. l l l 8. Section 2.10 is amended to read as follows: 2.10 Payments. All-services rendered by the-Disbursing, Agent, or-its affiliates,:under this Agreement: i I shall be at actual. cost thereof, fairly and equitablyc allocated and calculated, all consistent with the-requirements of-the Act and, the rules and- regulations - and - orders thereunder.- Dire';t- charges will be made for services where-a direct' allocation-of' cost,is'possible.- Cherges not 9 4 l e v w ,- -g-y
directly assignable shall be determined and allocated on a reasonable and equitable basis in acccrdance with the Act e.nd as approved by the Executive Committee, which appro' val-shall not be unreasonably withheld. The Disburning Agent shall obtain Executive Committee approval,: which- approval- , shall not be unreasonably withheld,'of the methodology i utilized, as well as changes thereto, for allocating costs-to Seabrook Station' prior to the implementation of such methodology.. Such allocation-methods will be appropriately. ' documented and available for review by-the Participants upon request. Without limiting;the generality-of the foregoing, j allocable costs include executive salaries and fringe benefits paid by the Disbursing Agent, the employeeLwages and benefits-paid by the Disbursing Agent, the. insurance-expenses incurred by tne. Disbursing Agent and other general overhead expenses ine :rred by the Disburning - Agent. The Disbursing Agent shall keep-complete andEaccurate accounts-of all receipts and expenditures hereunder in'accordance with the rules and regulations of the Securities- and Exenange Commission'and the~ Uniform System 1of Accounts prescribed for Public-Utilities and: Licensees,ysubject to the provisions-Of *.he Federal. Power Act as amended from time to time-(or such similar accounts as:may hereafter become appropriate) (hereinafter the " Uniform Systerfof Accounts"). m w .s ,-- m.- .
.-.__,m . . _ . __
.p.
- 9. The following is inserted after section 2.12, and Soctions 2.13, 2.14 and 2.15 are renumbered as 2.14, 2.15 and 2.16, respective 1yt 2.13 Technical-Aasistanes. Upen request, 'the j Disbursing Agent shall- assist the -Participants in~ regulatory proceedings and other contested matters relative to the Plant, including the provision of witnesses and of current-and accurate data on a tinely basis.
Inf ormation, including witnebs - support,- that will require a substantial commitment of time or a substantial effort to assemble or develop, and is neitherLa) required by a . substantial number of Participants, nor b) requested by the Executive Committee,'shall be paid for by tha Participant (s) requesting such information. The Disbursing Agent, in-consultation with'the Executive Committee, shall develop a reasonable standard by which it will determine how and when-a Participant is to be charged for information requested.
- 10. All of Section 4.1 following.the firstitw. sentences thoreof to deleted and replaced with the following:
For and-in consideration of'the. fact that NA7200-is undertaking responsibility under'this Agreement.for. bi + "-
+
I i 1 10 I ~ i j and on behalf of the Participants without any - compensation or charge ether than recovery of its costs , for such service, no Participant shall be entitled to recover from NAESCO or the directors,-trustees, l officers, employees, agents or affiliates of NAESCO (or : . the directors, trustees, officers, employees or agents of such affiliates) (collectively, ' Protected Parties")
- i
- any damages resulting from performance or non-performance of its respective responsibilities hereunder or under the Joint Ownership Agreement, or for any damage to the Seabrook Project, any curtailment of power, or any other damages of any kind, including !
direct, incidental, consequential, special, indirect or . punitive damages occurring during the course of the t j design, engineering, procurement, installment, , construction, operation, maintenance, refueling ..: decommissioning of the Seabrook project or otherwise arising out of the performance or non-performance of 2 this Agreement, unless such damages shall have resulted , , directly from the wilful nisconduct of NAESCO, or, to the extent legally attributable to NAESCO, directly from the vilful misconduct of a Protected Party.- 1 Notvithstanding the above, no Participant shall be entitled to recover any such damages if such. damages , result from NAESCO's or-a Protected F&rty'6 actions or i
~
omissions that have been expressly approved by the Executive Committee or by the Participants. All goods ; and services provided to the Seabrook Project by a , Protected Party shall be under a written contract having the same limitation of liability as above; provided, however, that the same limitation of liability shall also apply even if goods and services are provided without a written contract. The provisions of this section 4.1 shall apply notwithstanding any provision of thds Agreement to the-contrary and shall survive the expiration or termination of this Agreement. NAESCO chall not have any duty to use its own. funds in carrying'out its responsibilities under this Agreement.
- 11. In the first line of Section 4.2, the phrase
'Notwithstanding the provisions of Section 4.1 of this. Ag. dement," should be inserted prior to the beginning of the first sentence.
- 12. A new Section 5.12 is.added, reading as follows: ,
5.12 contracts 'sith Af filiat33 NAESCO may retain or appoint a service company cr agent _(which ' service: company,.or' , agent shall be affiliated with NAESCO)1to act on its behalf
I. i 1 !
'i j and perform the responsibilities and assume the duties of ,
the Disbursing Agent hereunder and under the Joint Ownership- e l Agreement, so long as such appointment is consistent with ; the terms of the Operating. License and the rules and reguistion of the NRC. No such retention-or appointment ; shall become offactive unless the agreement (s) between NAESCO and such service company or agent (s)'has been approved by at least three or more-unaffiliated Participants, owning collectively 60 percent or more ofLthe~ ~ ' Ownership Shares. Participants shall not withhold their' i approval-of any such agreement-if it is fair.and_ equitable to all-affected parties. -Any service company or agent (s)- thich perform services under this section.shall, unless the - 7
?
Executive Committee otherwise directs, submit; bills for such. services to NAESCO, and NAESCO shall in turn bill the ! Participants for such services.- y
- 13. The address.in Section 5.11 is changed to 107 Selden
,- Street, Berlin, Connecticut 06037. 14 ' . A new Section'5.13 isLaddedf. reading.as;follows: L 3 5.13 Termination. This Agreement.shalltbe subject to.- termination and shall terminate, without.'any action by L _ l NALSCO cr tho' Participantsi f.to, the f.extont .and ' from; the timei
- l. -
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.. __.___-.-.-_-- .. ----._--_--_ --- - - -- e .--_-------__a..-n-- - . _ _ _ . - - - - <m,--.--.__-an____1 -u-- - - - . . _ . - - - - - . - - - - - . - - . -
b 1 j 2 that performance may conflict with the Pubile Utility 4 Holding Company Act of 1935 or with any rule, regulation or order of the Securities and Exchange commission beform or - after the making hereof. f
- 15. This Amendment shall become effective at the
- Tine t:,.f
- Effectiveness." A6 used herein, " Time of Effectiveness
- shall I coon 11:59 a.m. on the last day of the calendar month in which ;
i all federal, state or local regulatory, judicial or other cpprovals necessary for the performance of the Managing Agent Operating Agreement between'NAESCO and the Participants she.11 have become effective. 1 i . FURTHERMORE, NAESCO accepts the appointment as the Disbursing Agent pursuant to Section 3 of the Disbursing' Agent Agreement. ? J l- IN WITNESS WHEREOF, each of the undersigned has caused this. j Amandment to be duly signed by an authorized officer and attested 1 (or such' signature by an authorized officer to be attested to by. ] j 9
. . ~- . , . - - .i - ~ ,,nv , , , , . . -- , . . , - r -
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I 14 a witness) on the date indica'ted but as of the date first above written. CAN LECTRIC COMPANY
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A/b8 e gy N Ti es e ve.'A c glt rv v wr ,m# cam 69 THE CONNECTICUT LIGHT AND POWER COHPANY By Titles EUA POWER CORPORATION By Titles HUDSON LIGHT & POWER DEPARTMENT By
Title:
MASSACHUSETTS MUNICIPAL WHOLESALE ELECTRIC COMPANY By
Title:
MONTAUP ELECTRIC COMPANY By
Title:
NEW ENGI,AND POWER COMPANY . By-Titles i
a witness) on the date indicated but as of the date first above written. CANAL ELECTRIC COMPANY By _ T1t1e: . _ . THE CONNECTICUT LIGHT AND POWER COMPA!TY By
Title:
EUA POWER CORPORATION By
Title:
HUDSON LIGHT & POWER DEPARTMENT By
Title:
MASSACHUSETTS MUNICIPAL WHOLESALE ELECTRIC COMPANY DY
Title:
MONTAUP ELECTRIC COMPANY By Titles, NEW ENGLAND POWER COMPANY By
Title:
{ l a witness) on the date indicated but as of the date first above h written. [ t CANAL ELECTRIC COMPANY By.
Title:
THE CONNECTICUT LIGHT AND POWER COMPANY By Titla
. EUA POWER CORPORATION By Title HUDSON LIGHT t. POWER DEPARTMENT By _,_
Title:
MASSACHUSETTS MUNICIPAL WHOLESALE ELECTRIC COMPANY By Titles ,_ MONTAUP ELECTRIC COMPANY By Titles _ NEW ENGLAND POWER COMPANY l L'I y, ',- - By Title V;H C fS A rnY
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I s NEW liAMPSHIRE CLECTRIC COOPE (TIVE By 971 / ' Titl : Nb I NORTH ATLANTIC ENERGY SERVICE COMPANY By__
Title:
PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, DEBTOR AND DEBTOR IN POSSESSION By
Title:
TAUNTON MUNICIPAL LIGHTING PLANT By_ Title THE UNITED ILLUMINATING COMPANY By - Titles __ VERMONT ELECTRIC GENERATION AND TRANSMISSION COOPERATIVE, INC. By_ Titlet J
I i NEW HAMPS5(IRE ELECTRIC ' COOPERATIVE 8Y ; Title NORTN ATLANTIC ENERGY CORPORATION , By b
Title:
mub \}se 9muf.,4-bd% km: MORTN ATLANTIC ENERGY SERVICE CORPORATION By
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Title:
Lu.4,4 d su_ b A 4 - k;%Le TAUNTON NUNICIPAL LIGNTING PIANT By
Title:
THE UNITED ILLUMINATING. COMPANY _ By
Title:
VERMONT ELECTRIC GENERATION AND- ' TRANSNISSION-COOPERATIVE,'INC. By Titles i l-
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NEW MAMPSHIRE ELECTRIC . COOPERATIVE - By_ ,
Title:
NORTH ATLANTIC ENERGY SERVICE COMPAh"I Bf
Title:
PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE,. DEBTOR _AND DEBTOR IN POSSESSION By Titles-TAUNTON ICIPAL, LIGHTING 1. ANT By;f , , . ^&T/ dj Tit 1 ( efAL - AlAA'IAADE' THE UNITED ILLUMINATING. COMPANY' By Titles
--VERMONT. ELECTRIC GENERATION AND-TRANSMISSION COOPERATIVE, INC.
By Titlen z
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NEW HAMPSHIRE ELECTRIC COOPERATIVE By ,
Title:
NORTH ATLANTIC ENERGY. SERVICE COMPANY , By Titles _,
' PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, DEBTOR AND DEBTOR IN POSSESSION By
Title:
TAUNTON MUNICIPAL LIGHTING PLANT By
Title:
THE UNIT .INAJ 'G CO A!W
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B .2 , -- t1 A EO VERMONT ELECTRIC GENERATION AND TRANSMISSION COOPERATIVE, INC. l By Title l 1 l
CoMDof,2TE coyropugn copy SECOND A!!DiDM22iT TO SEVDfTH AMDIDMDiT TO AND RESTATED AGREEMP.2iT POR SEABROOK PROJECT DISDURSING AGENT, DATED AS OF NOVEMBER 1, 1990 4 This SECOND AMENDMENT to the Seventh Amendment to and R3 stated Agreement for Seabrook Project Disbursing Agent, dated Cs of November 1, 1990, as previously amended by a FIRST AMENDMENT to such Agreement dated as of the date herea' (the "First Amendment") (such Agreement, as amended by the First Amendment, is referred to herein as the " Disbursing Agent Agreement or the " Agreement") is made as of the 29th day of June . 1992, by and among North Atlantic Energy l Corporation. The United Illuminating Company, Canal Electric l Company (successor in in*erert to New Bedford and Edison Light Company), The Connecticut Light and Power Company, EUA Power i I Corporation, Massachusetts Mu.icipal Wholesale Electric Company. Montaup Electric Company, New England Power Company, New Hampshire Electric Cooperative, Inc. , Taunton Municipal Lighting Plant, Hudson Light and Power Department and Vermont Electric l G3neration and Transmission Cooperative. Inc. (collectively, the l l
- Participants") and North Atlantic Energy Service Corporation i
("NAESCO") (successor to Yankee Atomic Electric Company). WITNESSETH THAT:
- WHEREAS. the First Amendment calls for NAESCO to assume responsibility as Disbursing Agent for the Sesbrook nuclear gOnerating unit (the "Seabrook Project") at 11:59 p.m. on the y
i last day of the calendar month in which the final _ regulatory j
- approval necessary for the performance of the Managing Agent ,
Operating Agreement between NAESCO and the Participants (the "MACA") is received; and kHEREAS, the language in the First Amendment would delay ' NAESCO's assumption of responsibility as Disbursing Agent for the Seabrook Project until the last day of L month; and-kHEREAS, it is intended that NAESCO assume responsibility as i Disbursing Agent for the Seabrook Project at the. time when NAESCO begins performance _of the MA0A; and i kHEREAS, NAESCO and the Participants,have agreed to amend the MA0A to allow themselves the flexibility to begin performance of that agreement at the_ earliest date:possible, regardless-of whether that date is the last day of a-month;'and' kHEREAS, NAESCO and the Participants deFire to make similar amendments.to the First Amendment so that NAESCO may assume responsibility as Disbursing Agent simultaneously-with the" time when NAESCO begins performance'of the MADA;-and kHEREAS, certain other amendments to'the Disbursing: Agent AgreementLare needed to reflect a name change-for AESCO and'to
._E.._.___.m_.__m
_._._.i.._..-____im.-_.m. _ . _ -
-l J
3- ! Ancorporate certain provisions contemplated by the July 19,.1990- , , Agreement among Northeast Ut111 ties Service Company,.as agent for NAESCO, and certain
Participants:
NOW, THEREFORE, in consideration of the foregoing and-for other good and valuable consideration, the Participants and NAESCO agree to amend the Disbursing ' Agent Agreement and the . First Amendment as follows:
- 1. All references to " North Atlantic Energy' Service I Company" in the Disbursing Agent Agreement and in the_First -
Amendment are changed to " North Atlantic Energy _ Service Corporation."
- 2. The following is inserted in the Diabursing; Agent- 4
- Agreement as Sect 1on 2.17:
2.17 No Setoff. The Participants' obligation:to - l make payments to NAESCO-hereunder!is absolute?and unconditional:and a-Participant shall not be entitledL to set off against the payments required-to be'made- > hereunder any amounts owedi to it by;NAESCO or bysany: I
^
af filiate of NAESCO or by ank. other Participant ~ or, the-amount of any_ claim by:it against;NAESCO or;any ! affiliate of-NAESCO.or anyfother: Participant.- f
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- 3. Paragraph 15 of the First Amendment is amended to read as follows:
- 15. This Amendment shall become effective at the
" Time of Effectiveness." As used herein, " Time of Effectiveness" shall mean the date of the closing of the transactions necessary to accomplish the transfer of responsibility for the management, operation and inaintenance of the Seabrook Project from the New Hampshire Yankee Division of Public Service Con.pany of New Hampshire to NAESCO. Promptly following such !
closing, NAESCO shall provide Written notice to the Participants-advising them that the " Time of Effectiveness" occurred on the date of such closing. l 4 4
A Y IN WITNESS WHEREOF, each of the undersigned has caused this *' Amendment to be duly signed by an authorized officer and attested (or such signature by an authorized officer to be attested t3 by
- a witness) on such date indicated but as of the date first above ;
written. CANAL ELECTRIC COMPMW B 4Al
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Tit e:
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Attest' Y/u sat'-Q (kanky $W$ { THE CONNECTICUT LIGHT mfd POWER COMPMW > By
Title:
l Attest EUA POWER CORPORATION, DEBTOR AND DEBTOR IN POSSESSION-By
Title:
1 Attest -
IN WITNESS WHEREOF, each of the undersigned has caused this Arnen&nent to be duly signed by an authorized officer and attested (or such signature by an authorized officer to be attested to by a witness) on such date indicated but ao ct the date first above written. CANAL ELECTRIC COMPANY By
Title:
Attest THE CONNECTICUT LIGHT AND POWER COMPANY By v SbbIuy
Title:
6v'0- Mads-- 1 At st EUA POWER. CORPORATION, DEBTOR AND DEBTOR IN POSSESSION l By .
Title:
Attest l l l l i
HUDSON LIGHT & POWER DEPARTP2NT By
Title:
Attest MASSACHUSETTS MUNICIPAL WHOLESALE ELECTRIC COMPAW By
Title:
Attest MONTAUP ELECTRIC COMPANY By
Title:
Attest ' i NEW ENGLAND POWER COMPANY By. [M [ 41.2 %
/
Title:
UJa dn.,,be kW.2kp yr ~ '
/ Attest
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7 NEW HAMPSHIRE ELECTRIC COOPEPATIVE, INC.
/
By a- N Titla W wU h W Ym - Attest Il'
/
NCRTH ATLAli!IC ENERGY SERVICE CORPORATION By
Title:
Attest PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE By *
Title:
j Attest TAUNTON MUNICIPAL LIGHTING P'.Ahi By_
Title:
Attert 1 l
+
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1 I I
, s NEW HAMPSHIRE ELECTRIC COOPERATIVE.
- INC.
- By
Title:
Attest NORTH ATIKiTIC ENERGY CORPORATION By p AJJ &Ju
.v
Title:
7 v/Yu i br* VirY ' he emI f itlCIC(tJ' N Attest Jbw i NORTH ATLANTIC. ENERGY-SERVICE I CORPORATION i g By k U.bw
Title:
[V.)ffYN t 4 dc Virv P(ndml . ' f I-l dea f' Y* l Attest TAUNTON MUNICIPAL LIGHTIllG ~ PLANT ' By
Title:
. Attest L l 9 4 e e A I l t , _ . . _ . . . . - . _ , . , . . . . - . . , , _ _ . _ ,, - . _ ., ,_c-.. . . . _ _
t
. 7 NEW HAMPSHIRE ELECTRIC '
COOPERATIVE, INC. By
Title:
Attest NORTH ATLANTIC ENERGY SEPVICE CORPORATION By
Title:
Attest PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE By 9
Title:
Attest . TAUNTON MUNICIPAL LIGHTING PLANT By so Tit M _ ll 4 D P C/ A ' ' "*:' . - .D
- s W Attest-f l
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i
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- 1. ,
.g.
t ThE UNITED I UMINATING OMPANY i s_ __ . les Cha nd Chief Executive Officer
~ .i y Aw _L _.
Attest g/ VERMONT ELECTRIC GENERATION AND r TRANSMISSION COOPERATIVE INC.= l By__
Title:
Attest b E a
'h e
V 6 4 4 i
- )
1
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COMPOSITE OF AGREEMENT FOR SEABROOK PROJECT DISBURSING AGENT THROUGH SECOND AMENDMENT TO RESTATED AGREEMENT This Agreement for Seabrook Project Disbursing Agent, dated as of May 23, 1984 (" Disbursing Agent Agreement" or " Agreement"), as heretofore amended and herein restated to include all nine amendments, by and among Public Service Company of New Hampshire, : The United Illuminating Company, Canal Electric Company. (successor in interest to New Bedford and Edison Light Company), -' The Connecticut Light and Power Company, EUA Power Corporation, -' Massachusetts Municipal. Wholesale Electric Company, Montaup Electric Company, New England Power Compe.ny, New Hampshire . Electric Cooperative, Inc., Taunton Municipal Lighting Plant,. [ Hudson Light & Power Department and Vermont-Electric'Generationi and Transmission Cooperative, Inc. (collectively, the'
" Participants") and North Atlantic Energy ServiceLCorporation .j
("NAESCO" or
- Disbursing Agent"). ;
i WITNESSETH THAT: l j a This Agreement'is made pursuant 1to-the provisions,of Paragraph 35 of the Joint Ownership! Agreement 1to establish:the- ; I l' powers, duties,' responsibilities,iterms of?employmenttand' compensation of, and other matters respecting,xthe DisbursingL ' Agent appointed to receive, hold and disburse payments due from- y l-Participants in the Seabrook Project.. L-. I i l
' L L
~_ - - . -
- 1. AppointmeDLgf NAESCO as Disbursino Aagat under thR Joint Owners hip _Agte.ement.
1.1 App 2intment. The Participants hereby appoint NAESCO to act as their Disbursing Agent under the terms of the Joint Ownership Agreement as now in effect and as it may from time to time be amended or modified in the future, and NAESCO hereby accepts this appointment. The scope of the agency la as set forth in this Agreement. 1.2 Envers, etc. NAESCO's powers, duties and responsibilities under this Agreement shall be limited to activities reasonably incident to collection and disbursal of Participants' payments for their respective shares of costs of the Seabrook Project, an is more fully set out below in Paragraph 1.5 and Paragraph 2. 1.3 Acency. For purposes of this Agreement, the Participants agreo that NAESCO shall act as agent for each of the Participants individually (and not jointly or jointly and severally). With respect'to certain other agreements, the following provisions shall apply: L l (1) In the event'of any conflict between the l provisions of.this Agreement and the Managing Agent ;
- 1 I
Operating Agreement, the provisions of this Agreement shall prevail. (2) The parties to this Agreement on April 27, 1984 entered into an agreement entitled " Interim Agreement to Preserve and Protect the Assets of and Investment in'the Now Hampshire Nuclear Unita" (" Interim Agreement"). This Agreement 2oes not supersede the, Interim Agreement, and any billa.or i toices paid pursuant to that agreement shall not be paid or. deemed paid pursuant to this" Agreement. (3) In the event of any conflict-between-the-provisions of this Agreement and the provisions of the Joint. Ownership Agreement, the provisions of the Joint Ownership Agreement shall prevail. 1.4 Escrot_J ' funds. Notwithstanding anything to the contrary contained elsewhere in this Agreement, all monies paid to NAESCO under this Agreement,. including, without-limitation, vendor credits received under Paragraph 2.6 and-gains-from investment or interest under Paragraph 2.3.shall not be the property of;the' Participants but.shall be held at allLtimes in escrow by'NAESCO in the accounts established under Paragraph 2.3 hereof to be. disbursed by NAESCO. pursuant'to the provisions. hereof. Upon termination of this Agreement, the Executive-i
Committee will determine whe*.nor the moneys held by the Disbursing Agent exceed future Project Costs and any necessary i reserves and, if Lo, will issue instructions to the Dirbursing Agent ivr the distribution of such surplus consistent with the , intent and purpose of this Agreement. 1.5 Disbursements. Except as otherwise specifically set out herein, NAESCO shall disburse monies received from and credited to each Participant only to pay that Participant'e pin rata share, as defined in Paragraph S.1 below, of Project Costs as defined in Paragraph 1.6. Monies received by NAESCO from, or credited to, PSNH pursuant to Paragraphs 23.10 or 23.11 of the Joint Ownership Agreement may be applied only to pay MMWEC's prg IAla share of Project Costs as defined in the Joint Ownership Agreement. 1.6 Definitionq. As used in this Agreement, the following terms shall have the following meanings: costs of completion .seans and includes all Project Costs that are subject to cont ictual commiteent to be paid by or incurred by the Participants to complete construction of Unit 1 of the Seabrook Project, including, without limitation, costs resulting from suspension and. restarting after-suspension.(if any) of the construction of Unit 1. Without; limiting the l l __._m. __ _ _ _ _ _ _ _ - _ - _ _ _ _ _ . _ _ _ . _ _ . _ _ _ _ . _
c
.E ,
generality of the foregoing, Costs of Completion shall include the cost of the initial nucler.r fuel load for Unit 1 of the Saabrook Project. Project Costs means and includes those costa described in Paragraph 1.5 above and in Paragraphs 11 and 13 and the operating 4 Deposit described in 37.3(d)(1) of the Joint Ownership Agreement, including costs of the design, construction, operation, maintenance, renovation and termination or decommissioning (if any) of, and fuel for, elit 1 of the Seabrook Project, and with respect to the preservation, protection and termination of Unit 2 of the Seabrook Project. Costs incurred for one or more Participants' individual accounts are not Pr ject Costs but may be billed to such Participant or Participants by NAESCO directly. Proiect Manecer means North Atlantic Energy Service Corporation unless and until a successor has received all necessary licenses and authorizations to replace North Atlantic Energy Service Corporation and has replaced North Atlaraic Energy Servic.; Corporation as Project Manager of the Seabrook Project.
- 2. Billinos. Deoesits, __ Investments and Payments.
2.1 The Executive Committee. The Executive Committee established pursuant tx) Paragraph 37 of the Joint Ownership
.s a l
l l 1 l Anreement (the " Executive Committee"), or its successor, shall oversee the functions of the Disbursing Agent. The /4rch ipants authorize the Executive Committee or any designee of such i i Executive Committee (1) to perform the functions assigned to it { ) ir. this Agreement, and (ii) to provide direction to NAESCO in the fulfillment of NAESCO's responsibilities under this Agreement. { NAESCO agrees that it will operate under the direction of the Executive Committee or its designee. 2.2(a) Routine Monthly Billina. - Not later than the 15th day of each month, or the first bus.fnasa day-thereafter, the 1 Diebursing Agent shall, subject to the provisions of Paragra'ph 37.3(f) of the Joint Ownership Agreement, bill (" routine monthly 3 billing") each Participant for its pI2 IALn Ownership Share of the estimated Project Costs for the subsequent month under the approved then current six-months' budget, as establish 2d pursuant to Paragraphs 37.3(a), 37.3(b) and 37.3(c) of the Joint Ownership Agreement. Each invoice shall be due and payable on-the first business day of the next following month. Any amount not paid on such date shall bear interest from said dato until the date of payment at the rate provided in the Joint Ownership Agreement. In the event that one or more Participants have not paid their routine monthly billing by the due date, the Disbursing Agent shall notify the 1 :d.-ive Committee of such fact and the details thereof and obtain dr eclite direction from the Executive 4 S gg j - .
. j> -'
i t Committee. Succeeding routine monthly billings shall set forth a reconciliation-for the previous month between the estimated Project Costs previously billed, including any interim payments billed pursuant to Paragraph 2.2(c) below, and the actual Project Costs incurred. Such willings also shall set forth a credit or debit to the then current routine monthly billed amount.to reflect such reconciliation and interest due for lata payment or other adjustments such as vendor credits and interest. The routine L.onthly billings shall show as debits or credits the ! amounts necessary to restore the Operating Deposit (as defined in Paragraph 37.3(d)(1) of the Joint Ownership Agreement) to the target amount set from time to tir.s as provided in the Joint Ownership Agreement, and such amounts shall be funded by the Participants as provided in Paragraph 37.3(d)(1) and (d)(ii) of the Joint ownership Agreement. The Disbursing Agent shall not include in a routine monthly billing for Project Costs a bill for funds for a major expenditure unless such expense is to be paid by the Disbursing Agent during the month for-which the routine-rew .:e billing is made. Unless otherwise directed by_the txenst.ve Comaittee or provided by the Joint Ownership Agreement,_ c_ ay nF interest paid by any Participant with respect to its ovan a payment for any month's bill shall be credited by the-Disbursing Agent, DIE rata determined by Ownership Share, to-those Participants which made timely payment of their bills.for-each such month.
2.2(b) Operatino Denosit. - After Commercial Operation of Unit No. 1, the Disbursing Agent shall bill each Participant for its EI2 rata share of the target amount of the Operating Deposit as provided in Paragraph 37.3(d)(1) and (ii) of the Joint Ownership Agreement. Such billing shall be included in the routine monthly billing made by the Disbursing Agent under Paragraph 2.2(a) above. The Operating Deposit shall be. held by the Disbursing Agent with the routine monthly billing payments to
, provide sufficient working capital for the Project, in escrow as provided in Paragraphs-1.4 and 2.13 of-this Agreement and in Paragraph 37.3(h) of the Joint Ownership Agreement, solely for i
the benefit of creditors of the Project, to be. disbursed solely to pay each Participant's Ownership Share of-Project Costs, and at no time shall any of such funds be the property of the Disbursing Agent. 2.2(c) Interim Billing. Subject to the prior approval of the Executive Committee, the Disbursing Agent may, when and to the extent authorized by Paragraph 37.3(g) of.the Joint Ownership. Agreement, obtain an interim payment from each Participant by means of an interim billing to all Participants,'for payment of unanticipated expenditures which, in the absence of such-interim payment, would result in the reduction at the end of the. month of the sum of (1) the balance of the Operating Deposit arr' (ii) the
I amounts of funds then remaining from the routine monthly-billings to the minimum required amount set'forth in. Paragraph 37.3(g) of the Joint Ownership Agreement, or less. To the extent.that any interim billing would result in estimated Project-Costs exceeding-the then current six-months' budget, such interim billing ehall require approval, in advance, as provided in Paragraph 37.3(c)(1) and (ii) of the Joint Ownership Agreement. Upon receipt of the aforesaid required approvals, the Disbursing Agent shall without delay bill each Participant for its EE2 rata Ownership Share of the interim billing which shall be the amount necessary to restore said minimum required balance. Each ir.cerim billing shall be due and payable ten' business days after issuance by the Disbursing Agent and any amount not paid by such date shall bear interest from said due date until1the date of payment at the rate-provided in the Joint Ownership Agreement. Each interim billing shall be accompanied by a letter from the Project Manager or the. l Managing Agent confirming the amount required and the reason for the request. 2.3(a) DeDosit of Funds. The Disbursing Agent shall establish one or more bank accounts (" bank account (s)") at one or more banks or trust companies organized under the laws of the United States or one of the states with a combined capital and curplus of at least $10,000,000,. which is subject-to supervision-1 or examination by federal or state authority and is not a 1 l
h ! - 10-4 f: creditor of.any Participant. The Executive-Committee shall.have the'right to approve the selection of, and direct the Disburning_ f Agent to change banks if the-Executive. Committee determines such-l 1 i to be in the best interests of the. Project. The monies ~depoalted i l and held in all bank accounts shall at all times be subject to , the provisions of Paragraphs 1.4 and 2~.13 of this Agreement and- , b Paragraph 37.3(h) of the Joint ownership Agreement,-and each bank. ) account shall be denominated _to show that'it'is an escrow I j account. 1 J ' t 2.3(b) Investment of-Monies. To cheLextent that-moniem i held in bank accounts are=not immediately required to-pay Project 1 , i.
- Costs pursuant.to Paragraph 2.5?cf this Agreement, the_ Disbursing- ,
Agent shall to:the maximum extent practicable invest such-monies in one or more investment pool accounts (" investment pooli accounts") which have been selected by the Disbursing Agent; pursuant to investment guidelines developed and modified from time to. time by the Disbursing Agent,'all withithe approval-of
~
the Executive Committee. Annually,1a Participant.shall inform 1 the-Disbursing; Agent of the particularfinvestment-poollaccountTit
, j prefers. The monies' deposited and held.in all investment poo1~
accounts and.all earnings and gains thereon shell at: all times txt B subject to the provisions of' Paragraphs 1.4'and 2.13 cfithis;- Agreement and Paragraph _37.3(h) of the Joint Ownership Agreement,-
- and each investment pool accountfshall1be-_ denominated 1toishow i
4 M',,4 ed,n ,me.-. , + . -(- ess- h y q-,e,ge,-l, ga au1 v--'rgy v.~p p m -y-.,--.s 4 .e- .e. 9---,.i-- s- w g
. SI
- )
~
1 F 4 j . that it is an_ escrow account.- The DisbursingEAgentjshall-l
~
maintain records which!show the earnings-andigainsiof each-l_ investment poolJaccountland;the credits?from/such earnings and= l i= gains which are(attributable to-each;Participanti LSu'ch-credits .
/g shall be entered into the escrow account maintained _by thei y
T Disbursing Agent in the name-'of such Participant.xEach? , Participant;shall-directly pay-suchitaxes>on'auch;gainsLand-earnings on. investment pool accounts-asimay be: attributable to' it.
-2.3(c) ' Executive Committee Satisfaction.- The procedures I
for selecting,-establishing, maintaining andfehangihg bank? accounts and investmentipool accounts, andithe_ receipt,_holdingh investment'and disbursement-ofeall' monies.and-credits,--shalliatL i all times be satisfactory.to-thef Executive; Committee. 2.4 Daily Payment Certificates. OnfaLdailp basis,gthe; Project Manager shall presentJa:certificateito NAESCO signed:byl n an-officercor authorized agent of.the: Project 1 Manager,: certifying: (1) theEt otaliamount of payments!to beimade for bills,- ) invoices-and; requests:forLpayment. covering" Project' Costs;fand?-
4 (ii) that such expenditures have been authorized as provided in Paragraph 37 of the Joint Ownership Agreement. Such certificate, when accompanied by an invoice approved by the Project Manager, an audited voucher and a check-(if required by NAESCO) for each payment being made, shall be presented to NAESCO for NAESCO's review and oayment. 4 2.5 Proiect Costs Payments. NAESCO shall withdraw and disburse monies from the appropriate bank accounts to pay each Participant's EIQ rata share of Project Costa, but NAESCO shall ! pay only those Project bills that have been duly certified as provided in Paragraph 2.4 above. Before making payment, NAESCO l shall review all Project bills submitted for payment to ensure compliance with these requirements. After following these procedures, NAESCO shall pay such approved Project bills, in whole or in part, directly to the vendors, as provided in Paragraph 1.5 of this Agreement. In the event of, and as a condition to, a partial payment, NAESCO shall obtain from the payee a release or waiver, in a form approved by the Executive Committee, of liability, of each' Participant that has contributed-4 its EI2 rata share of such payment (including a waiver of liens on Seabrook Project raal_or personal property), unless the Executive Committee otherwise directs in each specific case. O O m e e
l 2.6 Vendor Credita. The Project F.anager will_ deliver to NAESCO, without delay, any and all monies derived from vundor credits, chargebacks and other reimbursements (" vendor credits") that it receives on the Seabrook Project. The Project Manager will notify all vendors to deliver all such vandor credits on the Seabrook Project to,.and to make such vendor credits payable to, NAESCO .ss Disbursing Agent for the Participants. Checks or other instruments representing such vendor credits, if payable to the 4 Project Manager, shall be properly endorsed by the-Project . Manager or its agent to be payable to the order of NAESCO as Disbursing Agent. Upon receipt of such vendor credirs,-NAESCO shall promptly deposit the same into the appropriate bank account and credit each Participant, RI2 IARA according to its' respective Ownership Share at the time the expense was billed to the Participants, except that if any Participant did'not pay its EIR , rata share of such expense, such Participant shall not be antitled to such credit. NAESCO shall. disburse all such vendor-credits solely to pay Project Costs. If any Participant has a ourplus of such vendor credits over its DIS rata share of disbursements for Project Costs, NAESCO shall retain such surplus cnd shall disburse it, in accordance with Paragraph 2.5 above, to pay such Participant's EIQ rata share of Project CostsLin cubsequent months.
.1
_14 _ 2.7- MMWEC Credita. -Notwithstanding-any:other provision of-this Agreement to the contrary,-credits, refunds, recoveries and-damages (collectively " Credits") to which MMWEC:would be-entitled-h but which arise on account of payments made by NAESCO from--funds provided by other Participants on or after July.28, 1988 (including payments made from funds deposited with NAESCO before= July 28, 1988) of MMWEC's EIS rata share of Seabrook Project Requirement Estimates, shall be applied by NAESCO to MMWEC's Supplementary Advance Payment Account in accordance with NAESCO's prior practice; provided, that if any Credit.is in'the. amount of , Twenty-Five Thousand Dollars ($25,000.00) or more, such Credit-i shall not be.so applied by NAESCO, but NAESCOfshall deposit.the Credit into the main' account of the Participant which made-the- - payment to which the Credit relates; except.that'any:such Credits related to MMWEC Supplementary Advance-Payments made under Paragraph'23.10 or 23.11 of the Joint Ownership Agreement, which Credit is received while-PSNH is-obligateditoimake_such-payments, shall1be deposited into the MMWEC SupplementaryfAdvance Payment Account. 2.8 Executive Committee Instructions. - NAESCOLahall re' port to the Executive-Committee or its designee (1) for.overalli direction in carrying out its function, (2) for specifictapproval: 1
'of or direction with respect -to payment of specific- Project-
~
bills, if NAESCO believes-that there is a question as to.whether;
+ - [ ~ .. y ,- ., - , - ,m , w , , -,, ,e, -, ,y-r y--- ,-
t such Project bills have been duly certified or-have been duly authorized under Paragraph 37 cf the Joint Owner 3 hip Agreement and (3) for specific approval for payment of~ bills related to any program adopted to reconcile past unpaid bills. NAESCO shall-also provide a monthly report to the Participants itemizing, in appropriate form and detail, and in any event in such form and detail as the Executive Committee _may direct, all Seabrook Project disbursements, credits, expenses, investment and interest income and monies received from Participants. $ 2.9 Records. NAESCO shall maintain separate records of' each Participant's payments, credits applied on its behalf and disbursements applied against 1ts payments and credits.- Each
~
Participant shall have the unrestricted right to all financial records relating to the Seabrook Project within the control of-J the Disbursing Agent, and its affiliatas, wherever located, except for information which is a) protected by law, b) restricted by contract -ith, third parties, or c) deemed commercially sensitive ., an affiliate or affiliates of.the Disbursing Agent.- If requested financial records are restricted by contract with third pcrties, the-Disbursing Agent, and!its affiliates, will use their best efforts-to obtain the consent of third parties to discloso confidential financial records'to Participants, with the understanding that Participants'may be required to sign a non-disclosure agreement. For financial - l
i-i 4 c
- 16-records which are considered commercially. sensitive to-(an) affiliate (s) of the Disbursing Agent, upon the request of one-or more Participants, such affiliate shall~ allow for their review by an independent third party, selected by the parties involved _
(other than the Disbursing Agent-and its affiliates) and 1 acceptable to the Disbursing Agent (provided that the Disbursing Agent may not unreasonably withhold-its-acceptance) to determine,- using an informal,. simplified procedure, whether the financial-records in question are-commercially sensitive. -In any event,rif
. reasonable under-the-circumstances, the' Disbursing Agent may_
require a Participant to sign a non-disclosure' agreement i covering financial records that it considers commercially. sencitive.
-Review of financial records at the offices of the Disbursing.
Agent, or-its affiliate companies,fshall occur at reasonable times _during normal _ business hours, and shallDbe arranged in-advance amor.g-the involved. parties', 'The'
Participants:
shallsuse reasonable efforts to avoid disrupting-the business operations 1of the Disbursing Agent or its affiliates.- The Disbursing Agent shall coordinate and facilitate 1the-- dissemination ofifinancial records between-Seabrook Station and: 1 the Executive. committee-and/or th' Participants. w 9 h
, + , . . . _ , . . , , .,,,,..r.,..- r ,- . ~ . , ' %
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I Subject to the limitations set forth elsewhere in-this Section 2.9, any financial records relating to the project shall be provided to any Participant requesting them, with the understanding that the Participant may be required to pay for the cost of providing them in the circumstances described in Section 2.13. . Without limiting the generality of this Section 2.9, any Participant or the Executive Committee may request an audit of-the accounts and records of the Disbursing Agent, at its offices, at reasonable times, by an independent certified accountant'or -
+
1 other representative of the Participant requesting the audit; provided that, absent extraordinary circumstances, subject.to the rights of the Participants under Section 18 (Arbitration) of the Managing Agent Operating Agreement, a full-scope audit shall-not be performed at the request of the~ Executive Committee or one or more Participants not affiliated with the Disbursing Agent more-frequently than once each year. If an audit is requested.by the Executive Committee, the costs thereof shall be borne by all
- Participants in proportion'to their'0wnership Shares. If an audit is requested by.one or more, but-less than all, of the-Participants, the costs thereof-shall be borne by the-Participant (s) making such request. If an audit is performed in-connection with an arbitration proceeding, the costs of the audit-w -
e v - r - w
shall be allocated among the Participants in accordance with the decision of the arbitrator. 2.10 Payments. All services rendered by tho Disbursing Agent, or its affiliates, under thie Agreement shall be at actual cost thereof, fairly and equitably allocated and calculated, all consistent with the requirements of the Act and the rules and regulations and orders thereunder. Direct charges will be made for services where a direct allocation of cost is possible. Charges not directly assignable shall be determined and allocated on a reasonable and equitable basis in accordance with the Act and as approved by the' Executive Committee, which approval shall not be unreasonably withheld. The Disbursing Agent shall obtain Executive Committee approval, which approval shall not be unreasonably withheld, of the methodology utilized, as well as changes thereto, for allocating. costs to Seabrook Station prior to the implementation of such methodology. Such allocation. methods will be appropriately documented and available for review by the Participants upon request. Without limiting the generality of the foregoing, allocable costs include. executive salaries and fringe benefits paid by the Disbursing Agent,.the employee wages and benefits paid by the Disbursing Agent,.the insurance expenses incurred by the Disbursing Agent and other general overhead expenses incurred by the Disbursing Agent. The Disbursing Agent shall keep complete and accurate accounts of all 1
receipts and expenditures hereunder in accordance with the rules and regulations of the Securities and Exchange Commiesion and the
^
Uniform System of Accounts prescribed for Public Utilities and Licensees, subject to the provisions of the Federal Power Act as amended from time to time (or such similar accounts as may hereafter_become appropriate) (hereinafter the " Uniform System of Accounts"). 2.11 Cnnsultants. The Executive Committee is authorized to engage such consultants as it sees fit to assist it in carrying-out its function under this Agreement and shall bill each Participant on a monthly basis for the cost thereof based upon cach such Participant's EIQ rata Ownership Share of such costs. Each Participant will pay its BIS rata share of such bills and shall only be liable for such pin rata share. 2.12 Reports. This Agreement shall not affect the obligations of the Project Manager to provide accounting reports to the other Participants pursuant to the Joint Ownership Agreement or the Managing Agent Operating Agreement. 2.13 Techntaal Assistance. Upon request, the Diebursing Agent shall assist the Participants in regulatory proceedings and other contested matters relative to the Plant, including the-
. - . , . - ~ . .- . . . . . - . . . - . . -
provision of witnesses and of current and accurate' data on a: :-) timely basis. Information, including witness _ support, that will_ require a a substantial commitment of time or'a-substantia 1' effort toi assemble or develop, and is neither=a)> required byJa: substantial" number of Participants, nor b)- requestied by the. ExecutiveJ q committee, shall be paid for by the' Participant (s)' requesting 'I such information. The-Disbursing: Agent,-_in consultation ~vith the Executive Committee, shall develop a reasonable! standard by which ,
~
it will determino how and when a Participant'is1to bel charged <for- , infonnation -requested. l
-2.14 NAESCO Covenant"re Escrowed Funds. NAESCO(agrees;and-stipulates that neither it nor any..of its? creditors shall.have--
any interest in the bank accounts,;the_-_ investment poolfaccou_nts,, or in monies deposited therein orfcredits1 applied thereto,-iand:-
+
that the bank accounts:and'investmentfpool" accounts:have?been: created and are being-heldJin_ escrow solely'fornthe. vendors whose-bills have been certifled'for-paymentLpursuant,to-Paragraph 3 2 .'4' above,: subject to the: terms-of, andito maintaining (and disbursingj
' funds in the-bank accounts inoaccordance:withi;this:Agreementr-q k
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. _ . . . . . . _ . . . . . . . . . . - . _ . . _ , , _ . - ,.. __ m .._..a.~ = _ & c. - -m _;.a ;
2.15 PSNH/MMWEC Settlement. Notwithstanding any other provision of this Agreement to the contrary, on and after August 1, 1989, and in order to give effect thereto (a) MMWEC shall have no liability for payment or ^ repayment to NAESCO of any amounts applied by NAESCO 4 for MMWEC Project Costs from funds held by NAESCO for MMWEC's account since June 1, 1988 (including payment or refunding any of the pre-funded amounts drawn down by MMWEC from June 1, 1988 through' July 28, 1988); (b) MMWEC shall have no liability to pay any. interest or penalties with respect to the aforesaid application of funds by NAESCO or with respect to MMWEC's non-payment of MMWEC Project Costs; (c) PSNH shall not incur any additional obligations or liability as a result of making payments' required under Paragraphs 1 and 6 of the Memorandum of Understanding of November 4, 1988 between PSNH and MMWEC, except-for the additional liability.that PSNH assumes with respect to the obligations of MMWEC under Paragraphs.23.10 and 23.11 of the Joint Ownership Agreement, as amended, and only to the extent sp'ecifically provided thersin; and
22-(d)' MMWEC shall not be liable _for any payment-whichE -1 PSNH is to mahe under Paragraphs 23.10.and 23.11'of the Joint Ownerrhip Agreement; as amended, whether or not PSNH makes such payment. 2.16 Further-AmendmtDL. The provisions of:this Agreement not npecifically amended by the Sixth Amendment, including . without limitation the provisions _of Section.5.1, shall be~ deemed - to have'been modified, without'the necessity of further formal. amendment, as may be necessary.to give effect to the provisions of Paragraphs 23.10 and 23.11 of the Joint-Ownership Agreement with respect to payments to be made by PSNH thereunder which MMWEC but for said Amendment would have been' obligated to make. 2.17 No Set 2ff. The-Participants' obligation'to make payments to NAESCO hereunder is absolute and unconditional'and a Participant shall not1bo~ entitled to set off against.the payments required to be made hereunder any amounts owed to itLby-NAESCOlor any 'af filiate of NAESCO 'or by. any other Participant (nr the amount of any claim by it'against NAESCO or.any affiliate of NAESCO or any other Participant. 4 y y e nr,y r v ow s , w< s-
- e -- * ' + < -r w w <e ~+ p -
t-+4 n*H-t sw'=- TH '**-' ~-V * '- 9"* f**W 4
- 3. Removal or Resionation of NAESCO and Accointment of-Successor, i
NAESCO may resign at any time by giving twenty-one (21) days' prior written notice thereof to each of the Participants. Such resignation shall become effective on the date specified in the notice, or upon the appointment of and acceptance by'a
'l '
cuccessor, whichever is earlier. Upon-agreement of Participants owning sixty-two percent (62%) or more of the Ownership Shares in the Seabrook Project, the Participants may at any time remove-NAESCO without cause upon twenty-one (21) days' prior written notice to NAESCO, and with cause upon seven (7) days' prior written notice to NAESCO. Such removal shall become effective on the date specified in the notice. In the event _of resignation or . removal, NAESCO chall be entitled to compensation under Paragraph j 2.10 of this Agreement until the effective date of such- j resignation or removal. In the~ event NAESCO resigns or is ! removed, the Participants shall use their best efforts to ! cppoint a successor upon agreement of Participants owning sixty-two percent (62%) or more of the Participants' Ownership Shares in the Seabrook Project. Any successor agent shall execute an instrument accepting such appointment and shall thereupon become vested with and subject to all procerties, rights,' powers and duties of NAESCO, as if originally named'in the provisions hereof _ ] (including this Paragraph 3). NAESCO shall duly assign, transfer i end deliver to the successor agent all records, property and f l 3
money held by it hereundor, provided that NAESCO may retain copies of such records.
- 4. Liability and Indemnifica119D.
4.1 NAESCO. NAESCO shall not be responsible for the genuinaass of any signature and may rely conclusively upon, and shall be protected in acting upon, any certificate, notice, request, consent, statement or other instrument believed by_it in good faith to be duly authorized and properly made. The duties and obligations of NAESCO hereunder shall be governed' solely by the provisions of this Agreement and Joint Ownership Agreeme'nt. For and in consideration of the fact that NAESCO is undertaking responsibility under thia _ Agreement for and on behalf of the Participants without any compensation or charge other than recovery of its costs for such service, no Participant shall be ! entitled to recover from NAESCO or the directors, trustees, l officers, employees, agents or affiliates of N.sESCO-(or the directors, trustees, officers, employees or agents of such affiliates) (collectively, "Protec?.ed Parties") any damages , resulting from performance or non-performance of its respective l responsibilities hereunder or under the Joint Ownership l Agreement,-or for any damage to the Seabrook Project, any l . curtailment of power, or-any other damages of any kind, including. l direct, incidental, consequential, special, indirect or punitive 1
damages occurring during the course of the design, engineering, procurement, installation, construction, operation, maintenance, refueling or decommissioning of the Seabrook-Project or otherwise arising out of the performance or non-performance of this Agreement, unless such damages shall have resulted directly^from the willful misconduct nf NAESCO, or, to the extent legally attributable to NAESCO, directly from the willful misconduct of a Protected Party. Notwithstanding the above, no Participant shall be entitled to recover any such damages if such damages result. from NAESCO's or a Protected Party's actions or omissions that have been expressly approved by the Executive Committee or by the. Participants. All goods and services provided to the Seabrook-Project by a Protected Party shall be under a written contract having the same limitation of liability.as above; provided, however, that the same limitation of liability shall also apply. even if goods and services are provided without a written contract. The provisions of this_Section 4.1 shall apply notwithstanding any provision of this Agreement to the contrary and shall survive the expiration or termination of this Agreement. NAESCO shal?. not have any duty to.use its own funds in carrying out its responsibilities under this Agreement. 4.2 Executive Committee. Notwithstanding the provisions of Section 4.1 of this Agreement, neither the Executive Committee nor any member nor designee thereof, when acting in such
capacity, nor any employer of any member or designee, nor any affiliate, agent or employee of such member, designee or employer, shall by virtue of its relationship to the Executive Committee or any Executive Committee member or designee acting in such capacity, be liable to any Party to thie Agreement for claims for direct, incidental, indirect, consequential or other damages of any nature, including, but not If.mited to, damages for loss of anticipcted profits, loss of use of revenue, loss by reason of construction shutdown or interruption, and cost of capite.1, connected with or resulting from the performance of this Agreement by the Executive Committee or by any member.or designen thereof or by any employee of any-member or designee or any affiliate, agent or employee of such member, designee or employer, except in the event of willful misconduct. In addition, the Participants, severally (and not jointly or jointly. and severally), in accordan':e with'their respective DI2 rata shares as specified in Paragraph 5.1, agree to defend, indemnify and hold the Executive Committee, each member and designee thereof and each of-the-other persons or entities referred to in. the preceding sentence, harmless against all losses, claims, expenses (including reasonable counsel fees) and liabilities,-not resulting from his or their willful misconduct, which may be asserted, imposed or-incurred in connection with the performance of his or its responsibilities hereunder, including any litigation arising from the foregoing.
- 5. Miscellaneous.
5.1 Liability of ParticiDants. All obligations of the Participants hereunder are RIQ rata and several (not joint or joint and several)'and, with respect to each Participant, limited to the proportion of such Participant's Ownership Share in the Seabrook Project to the total of all Ownership. Shares in the Seabrook Project (called a "gro rata-share" in the Agreement). As of the date of execution of this Agreement, the RIQ rata share-of each Participant is as follows: i Public Service Company of New Hampshire 35.56942': The United Illuminating Company -17.50000%- Canal Electric Company . 3.52317% The Connecticut Light and-Power Co. 4.05985% Hudson Light and Power Department 0.07737% Massachusetts Municipal Wholesale Electric Co. 11.59340% Montaup Electric Company 2.89989% New England Power Company 9.95766% New Hampshire Electric Cooperative 2.17391% Taunton Municipal Lighting Plant 0.10034% Vermont Electric Generation & Transmission Cooperative, Inc. 0.41259% EUA Power Corporation 12.13240% 100.00000%- The Executive Committee shall. notify NAESCO promptly of any changes in each Participant's BIQ rata share. Every document elivered to any third party by NAESCO pursuant to this Agreement which may bear on the nature of the Participants' obligations
l j hereunder chall specify such several (and not joint or joint and several) nature of the Participants' obligations. 5.2 Unpaid Proiect costa. Without limiting the generality of Paragraph 5.6, nothing in this Agreement shall consticute or , be construed as a waiver or limitation on the enforceability of, or an election of remediec with respect to, the rights of the Participants other than PSNH to recover PSNH's unpaid share of Project Costs, if any, or its share of interim care and protection costs paid by other-Participants pursuant to the Interim Agreement or to enforce other claims (whether now existing or arising in the future) against PSNH. 5.3 Governino Law. This, Agreement is made under and shall' be governed by, and construed in accordance with, the laws of the. State of New Hampshire. 5.4 Severability. In the event that any clause or provision-of this Agreement, or any part thereof, shall be declared invalid or unenforceable by any regulatory body or court ~ having jurisdiction, such invalidity or unenforceability shall not affect the validity of the remaining portions of this: Agreement. 4
- ,n- , y -
5.5 survival. All provisions of this Agreement providing for limitation of or protection against liability shall apply to the full extent permitted by law and shall survive termination of this Agreement. 5.6 Richt of Vendors. This Agreement is not intended, and shall not be construed, to create or acknowledge any rights in f avor of persons who or entitius that are not parties to this Agreement, except for rights of vendors whose bills have been certified for payment pursuant to Paragraph.2.4, subject to the terms of, and to maintaining and disbursing the. bank accounts and investment pool accounts in accordance with, this Agreement. Anything in this Agreement to the contrary notwithstanding, the Participants agree that this Agreement is made without prejudice to, and does not constitute a waiver of,.or election of remedies-with respect to, or limitation on the enforceability of, any rights or claims which any Party or Participant may now have or-in the future have against any other Party or Participant. 5.7 Coroorate Acts. This Agtuement-is the act and obligation of the Parties hereto in their corporate capacities. 5.8 Effectiveness. The Seventh Amendment hereto shall i become effective upon execution by NAESCO and by Participants i owning ninety-five percent (95%) or more of the Ownership Shares
~
1 i in the Seabrook Project, and upon its effectiveness, all Participants shall be, and be deemed to be, Parties to this Agreement as amended by the Seventh Amendment.1 5.9 Counterparta. Any number of counterparts of-this Agreement may be executed and each shall have the same force and 4 effect as thu original. 5.10 Amendments. Upon the Seventh Amendment becoming effective, this Agreement may thereafter be amended or modified by an instrument executed by Participants owning fifty-one= percent or more of-the Ownership Shares in the Seabrook Project and by NAESCO; crovided, however, that this Paragraph 5.10 and the definitions of " Project Costs" and " Cost of Completion" in Paragraph 1.7 hereof, may be modified or amended only;by consent
- of Participants owning ninety-five percent or more of the ownership Shares in the Seabrook Project and NAESCO, and provided further that any amendment to this Agreement which would have the effect of modifying the terms of the Joint Ownership Agreement 1
The Seventh Amendment hereto has received the required-Participant approval and become effective. The First Amendment to Seventh Amendment to and Restated Agreement for.Seabrook Project Disbursing Agent shall become effective at the " Time of Effectiveness," defined as "the date of the closirg of the transactione necessary to accomplish the transfer.of responsibility for the management, operation and maintenance of Seabrook from the New Hampshire Yankee Division of Public
-Service Company of New Hampshire to NAESCO." 4 1
i
I l l shall not become effoetive unless approved as provided in Article l 29 of the Joint Ownership Agreement. l l 1 5.11 Notices. Unless otherwise provided herein, notices and other communications required or permitted to be given or made under terms of thi.a ',reement shall be in writing, and shall l be deemed to have been duly made or given when delivered personally or when made or given by telex, telegraph or telecopier, prepaid, at, in the case of each Participar.t such address and to the attention of the chief executive o'.ficer or. such other person as may be designated from time to time by a Participant in accordance with the Joint Ownership Agreement; l and, in the case of NAESCO, to Nortl. Atlantic Energy Service Corporation, 107 Selden Street, Berlin, Connecticut 06037, l l Attention Treasurer, or to such other address or to the attention of such other person as'NAESCO may from time to time-designate by notice in writing to each Participant. 5.12 Contracts with Affiliates. NAESCO may retain or appoint a service company or agent-(whica service company or agent shall be affiliated with NAESCO) to act on its behalf and
- perform the responsibilities and assume the duties of the Disbursing Agent hereunder and under the Joint Ownership Agreement, so long as such appointment is consistent with the terms of the Operating License and the rules and regulation of
+
the NRC. No such retention or appointment chall become effective unless the agreement (s) between NAESCO land such service company or agent (s) has been approved by at least three or more unaffiliated Participants, owning collectively 60 percent or more of the Ownership Shares. Participants shall not withhold their approval of any such agreement if it is fair and equitable to all affected parties. Any service company or agent (s) which perform services under-this section shall, unless the Executive Committee otherwise directs, submit bills for such services to NAESCO, and NAESCO shall in turn bill the Participants for such services.
$.13 Termination. This Agreement shall be subject to termination and shall terminate, without any action by NAESCO or the Participants, to the extent and from the time that performance may conflict with the Public Utility Holding Company Act of 1935 or with any rule, regulation or order of the-l-
[ Securities and Exchange Commission before or after the making hereof. IN WITNESS WHEREOF, each of the undersigned has caused this-l Agreement to be duly signed by an authorized officer and attested (or such signature by an authorized officer to be attested to by a witness) on the date indicated by as of the date-first above I written. O
l-I CANAL ELECTRIC COMPANY. .g By , Titlet THE CONNECTICUT LIGHT AND-POWER COMPANY By
.Titlet l
.EUA POWER CORPORATION By-
Title:
HUDSON LIGHT & POWER:' DEPARTMENT' By -
-Title:
MASSACHUSETTSrMUNICIPAL WHOLESALE ELECTRIC' COMPANY By
Title:
MONTAUP; ELECTRIC COMPANY-By Titles NEW' ENGLAND: POWER COMPANY 0
-By Titie:
i d
---_-1
cm :s) . r.m m m NEW HANPSHIRE ELECTRIC COOPERATIVE I 3Y . ,. . Tit.lon Pil5LIC SERVICE COh/ANY OF NEW HAMT' SHIRE l By
Title:
TAU!"0N MUNICIPAL LIGHTING PLANT By
Title:
THE UNITED ILLUMINATING COMPANY ny
Title:
VERMONT ELECTRIC GENERATION AND TRANSMISSION COOPERATIVE, INC. By Titles l NORTH ATLANTIC ENERGY SERVICE CORPORATION Dy
Title:
4 e
co9tomurt copy SERVICE AGREEMENT Between NORTHEAST UTILITIES SERVICE COMPANY and 1 l NORTH ATIANTIC ENERGY SERVICE CORPORATION ACTING AS AGENT FOR THE JOINT OWNERS OF SEABROOK-Effective as of June 3,_1992-4 9 4 4 e i
l TEBLE OF CONTENTS Page
- ARTICLE I Agreement to Render Services . . . . . . . . . 2 AATICLE II Services to be Performed . . . . . . . . . . . 4 ARTICLE III Agreement to Pay for Services . . . . . . . . 4 ,
ARTICLE IV Access to Information . . . . . . . . . . . . 6 ARTICLE V Effectivs Date, Termination and Modifications 8 ARTICLE VI Limitation of Liability and Set-off . . . . . 9 ARTICLE VII Assignment and Third Party Beneficiaries . . . 10 ARTICLE VIII Miscellaneous . . . . . . . . . . . . . . . . 11 E1BIBITS Exhibit A Description of Methods and Procedure for 1.11ocating Costs of Services 4 e 4 l
, u m n ~ < -
y
l l l SERVICE AGREEMENT between NORS.iEAST UTILITIES SERVICE COMPANY
'and NORTH ATLANTIC ENERGY SERVICE CORPORATION ACTING AS AGENT FOR THE JOINT OWNERS OF SEABROOK -
This Agreement is made as of June 79 , 1992, by and between NORTHEAST UTILITIES SERVICE COMPANY (*NUSCO*), a l Connecticut corporation, and NORTH ATLANTIC ENERGY SERVICE CORPORATION (*NAESCO"), a New Hampshire corporation, acting as cgant for the joint owners (the " Joint Owners") of the Seabrook nuclear generating project (*Seabrook"). WHEREAS, by order in File No. 37-65, the Securities and Exchange Commission ("SEC") has approved and authorized, under tho Public Utility Holding Company Act of 1935 (the 'Act"), the organization and conduct of business of NUSCO as a wholly owned corvice company subsidiary of Northeast Utilities ("NU"), a public utility holding company registered under the Act; and WHEREAS, by order in File No. 70-7787, the SEC has approved cnd authorized, under the Act, the organization and conduct of business of NAESCO as a wholly owned electric utility and 00rvice company subsidiary of NU; and t l WHEREAS, NAESCO has entered into a Managing Agent Operating Agreement (the "MAOA*) with the owners of an hggregate ownership chore in Seabrook of 70.60921 percent, pursuant to which NAESCO i hos been appointed the Managing Agent to manage, operate and l 20intain Seabrook Unit No. I and supervise the disposition of S00 brook Unit No. 2 on behalf of the Joint Owners effective as of ) th0 " Time of Effectiveness" (defined as 11:59 p.m. on the last dOy of the calendar month in which all federal, state or local rcgulatory, judicial or other approvals necessary for the performance by NAESCO of its obligatiotas as Managing Agent for i Sacbrook shall have <ecome effective); and WHEREAS, Section 4 of the MAOA specifically confers on ! NAESCO the authority to contract with an affiliated service l i company to act as subagent on NAESCO's behalf in performing i cGrtain of NAESCO's dutiec relative to the management, operation ; cnd maintenance of Seabrook Unit No. 1, and the supervisior of tho disposition of Seabrook Unit No. 2; WHEREAS, pursuant to a First Amendment to the Seventh Am:ndment to and Restated Agreement For Seabrook Project Disbursing June Agent (" Disbursing Agent Agreement") dated as of. 29 , 1992, between NAESCO and the Joint Owners, Joint Owners with aggregate ownership shares in Seebrook of 70.60921% have designated NAESCO as the disbursing agent for Seabrook,
effective as of the Time of Effectiveness, and NAESCO has agreed to act as disbursing agent for Seabrook; and WHEREAS, NUSCO, which renders services to NU and its subsidiary companies, is willing to provide similar services to NAESCO consistent with the terms of the MAOA and the Agreement for Joint Ownership, Construction and Operation of New Hampshire Nuclear Units dated as of May 1, 1973, as amended (the "JOA"), and the Disbursing Agent Agreement; and WHEREAS, economies, increased efficioneles and other benefits will accrue to NAESCO as a result of NUSCO rendering those services as herein provided; and WHEREAS, notwithstanding the services provided hereunder by NUSCO, NAESCO will at all times remain responsible for the management, operation and maintenance of Seabrook NOW, THEREFORE, in consideration of the premises and of the mutual agreements herein, it is agreed as follows: ARTICLE I Agreement to Render Services Section 1.1 - In implementation of the authority granted to it in Section 4 of the MAOA, NAESCO hereby appoints NUSCO as agent on its behalf and on behalf of the Joint Owners to perform the services described in Article II hereof. To the extent requested by NAESCO, NUSCO agrees to furnish to NAESCO upon the terms and conditions provided herein, and NAESCO agrees to use, the services des'eribed in Article II of this Agreement at such times and for such periods as requested by NAESCO, and NUSCO will, as and to the extent required to provide such services to NAESCO, keep itself and its personnel available and competent so long as it is authorized to do so by federal and state regulatory agencies having jurisdiction. Section 1.2 - For the purpose of providing the services described in Article II of this Agreement and providing services to the other NU subsidiaries, NUSCO has established various
' partments, one or more of which will participate in providing a services described in Article II. NUSCO reserves to itself ae right, without amendment to this agreement or_the express l prior consent of NAESCO or the Joint Owners or any other NU subsidiary to which it provides services, from time to time to establish new departments, to subdivide or otherwise reorganize any of the departments established by it or to reallocate services among various departments.
c y l section 1.3 - NUSCO will continue to furnish services to NU cnd NU's other subsidiaries. NUSCO also furnishes services to cccpanies~not affiliated with NU, and it may provide services to cther unaffiliated companies if it determines in its own - discretion that furnishing those services will not increase the c st of the services it renders to NAESCO, NU or NU's other cubsidiaries. section 1.4 - With the prior approval of NAESCO, which cpproval shall not be granted without the prior approval of the Exccutive Committee of the Joint Owners (tae " Executive Committee") if the approval of the Executive Committee is rcquired under the MAOA, I abject to the limitations contair.ed h0 rein, NUSCO, in rendering the services provided herein, may crrange for the servicas of such executives, financial advisers, 4 cecountants, attorneys, technical advisers, engineers and other contractors (collectively ' Advisers and Contractors *) as it d3termines in its discretion are necessary or appropriate for the rcndition of those services. Nothing in this Agreement or the MADA shall be construed to require NUSCO to terminate or abrogate cny contract or arrangement with an Advisor or Contractor providing services to NUSCO at the Time of Effectiveness, section 1.5 - Except for suck c vices as are then being provided under the Nuclear Suppose S&< 'cy streement between Ycnkee Atomic Electric Company an1 MAfhu, fe t - L as Agent.for th3 Joint Owners, during tae term 4f tAth df#n>9nt, NAESCO chall, prior to contracting work tc c#34 wi'cor. cider giving NUSCO the opportunity to provido such wo;k. NAESCO chall decide in each instance who shall perform such work. Section 1.6 - NUSCO shall, at all times during the term of this Agreement, perform the services provided for in this cgreoment in accordance with the standard of ' Prudent Utility Prcetice." An used herein, the term " Prudent Utility Practice" chS11, at a particular time, mean any of the practices, methods cr acts which, in the exercise of reasonable judgment in the light of the facts known to NUSCO at the time the decision was code, could have been expected to accomplish the desired result at a reasonable cost and consistent wit 1 licensing and regulatory rcquirements, environmental considerations, reliability, safety cnd expedition and taking into account the interests of all Joint Owners. In determining whether any practice, method or act is in cecordance with Prudent Utility Practice, due consideration shall be given to the fact that the design and other aspects of the cperation of nuclear electric generating units involve the cpplication of advancing technology and are subject to changing rcgulatory and environmental limitations. Prudent Utility Practice is not intended to be limited to the optimum practice, m3thod or act to the exclusion of all others but rather to
t 4 i e'ncompass a spectrum of possible practices, methods or acts, . including those involving the use of new concepts or technology. t Section 1.7 - NUSCO shall cooperate to the extent reasonably requested with the Oversight Committee of the Joint Owners and with the Executive Committee. - Section 1.9 - Whenever NUSCO is providing a service to NAESCO hereunder which is subject to guidelines, direction, limitations or other provisions set forth in thk MADA, NUSCO agrees to be bound by, and shall be entitled to the benefit of, such provisions of the MAOA, subject to the other provisions of this Agreement. ARTICLE II servlees to be Performed Section 2.1 - NAESCO vill at all times remain primarily responsible for the management, operation and maintenance of Sea 3 rook. Subject to the provisions of Article I of this agreement, NUSCO will provide to NAESCO,- to the extent requested by NAESCO, and subject at all times to the direction and control of NAESCO, the following types.of. services fuel planning and procurement; purchasing and stores; recommendations related to ' the disposition of Seabrook Unit No 2; preparation of reports; corporate secretarial functions; personnel and employee ' relations; accounting; taxes; insurance; budgets; data processing; engineering and technical support; decommissioning and decontamination; nuclear waste disposal; licensing; and such other services as NAESCO may from time to time reasonably. request and which NUSCO determines that it has the capability and resources to provide. ARTICLE III Agreement to Pav for servlees Section 3.1 - NAESCO agrees to pay to NUSCO the cost, determined in accordance with Exhibit A attached hereto, of such services as are provided to NAESCO under:the terms of this , Agreement. Such payments will include reasonable compensation for necessary capital as permitted by Rule 91 of the SEC under ' the Act. j Section 3.2 - All services rendered;by NUSCO under this Agreement .will be at actual cost thereof, f airly and equitably allocated and calculated, all consistent with the requirements of ! the Act and the rules.and regulations and' orders thereunder. l Dire:t charges will be made for' services where'a direct allocation of cost is possible.- Charges not directly assignable, ! . 1 i 1
including without limitation costs of capital, shall be datermined and allocated on a reasonable and equitable basis in cecordance with the requArecents of the Act and as approved by NAESCO, which will not grant that approval without the prior cpproval of the Executive Committee of the Joint owners (the
' Executive Committee *). Neither NAESCO's nor the Executive Committee's approval of cost allocation methods shall be unreasonably withheld. NUSCO will not be obligated to provide corvices under this Agreement if the method of allocation cpproved by NAESCO and the Executive Committee would be in contravention of the Act, or the rules regulations or orders thOreunder. The method of determining the cost of a particular cervice and the method of allocating that cost to NAESCO and the other customer companies of NUSCO when such an allocation is n:cessary are set forth in Exhibit A hereto. Such allocation C0thods will be appropriately documented and available for review by NAESCO and the Joint Dwners upon request. Without limiting th0 generality of the foregoing, allocable costs include cxecutive salaries and fringe benefits paid by NUSCO, the cmployee wages and benefits paid by NUSCO, the insurance expenses incurred pursuant to Section 9 of the MAOA'and other general cvorhead expenses incurred by NUSCO. NUSCO shall keep complete cnd accurate accounts of all receipts and expenditures hereunder in accordance with the zules and regulations of the Securities i cnd Exchange Commission and the Uniform System of Accounts proscribed for Public Utilities and Licensees sitbject to the provisions of the Federal Power Act, as amended from time to time.
Section 3 6 2 - By the twentieth day of each calendar month, er the first business day thereafter, NUSCO shall submit to NAESCO an invoice for services rendered in the previous calendar month. All invoices submitted by NUSCO shall be prepared in cecordance with Exhibit A hereto. Monthly charges may be made in whole or in part for particular expenses on an estimated basis, subject to adjustmer.t. Each invoice shall be payable upon pr0sentation and not later than 30 days after the receipt th0reof, and an7 amount not paid on such data shall bear interest frcm the date of invoice to the date of paywsnt at an annual rate of two percent (2%) over the lowest (i.e. *bose") rate charged, from time to time, by The First National Bank of Boston on 90-day commercial loans. Satrion 3.4 - All sales, use, excise, gross receipts frcnchise, or other similar taxes which may be applicable to the 5 s0rvices to be performed by NUSCO for NAESCO shall be-paid by NAESC0; provided, however, ?, hat no federal,' state or local income tax incurred by NUSCO shall be paid by NAESCO pursuant'to this' Stction or otherwise.
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ARTICLE IV Access to Information Eection__4.1 - NAESCO and the Joint Owners shall have the unrestricted right to all information in the control of NUSCO relating to NUSCO's performance of its obligations hereunder for the benefit of the Seabrook project (the 'Seabrook Information" wherever located, except for information which is (1) protected), by law, (ii) restricted by contract with third parties, or (iii) deemed commercially sensitive by NUSCO. If the Seabrook - Information requested is restricted by contract with third parties, NUSCO will use its best efforts to obtain the consent of the third parties to disclose confidential Seabrook Information to NAESCO and to the Joint Owners, with the understanding that NAESCO and the Joint Owners may be required to execute a non-disclosure agreement. If NAESCO or one or more Joint Owners, requests Seabrook Information which NUSCO considers commercially sensitive, NUSCO shall allow an independent third party, selected by the parties involved (other than NUSCO) and acca;ptable to NUSCO (provided that NUSCO may not unreasonably vitahold its acceptance) to determine, using an informal, simplified procedure, whether the Seabrook Information in question is commercially sensitive. In any event, if reasonable under the circumstances, NUSCO may require NAESCO and the Joint Owner (s) requesting the information to execute a non-disclosure agreement covering information considered commercially sensitive by NUSCO. Section 4.2 - NAESCO acknowledges, on behalf of itself and the Joint Owners, that NUSCO will be providing services to The Connecticut Light and Power Company, Public Service Company of New Hampshire and North Atlantic Energy Corporation wit 1 regard to those companies' current or future ownership interests or power entitlements in Seabrook. NUSCO and NAESCO agree that the Seabrook Information does not include any information related solely to such services. NUSCO and NAESCO also agree that the Seabrook Information does not include any information within the possession of NUSCO related solely to NUSCO's performance of services for its customer companies other than NAESCO or solely to NUSCO's billings for such services. Section 4.3 - Unless otherwise agreed among the parties involved, review of the Seabrook Inforestion under this Article by either NAESCO or one or more Joint Owners shall occur at l NUSCO's general offices at reasonable. times between 8 a.m. and 4 p.m. on normal business days, and shall be arranged in advance - anong the partjes involved. NAESCO and the Joint' Owners shall use reasonable efforts to avoid disrupting NUSCO's business operations. , i l 1 l l 1
I 7 Section 4.4 - Upon request by NAESCO or any Joint Owner, NUSCO, on behalf of NAESCO, shall provide technical support to NAESCO or any Joint Owner in regulatory proceedings and other contested matters relative to Seabrook, including the prr71sion
- of witnesses and accurate data on a timely basis. Information, .
f including witness support, that will require a substantial { l commitment of time or a substantial effort to assemble or i dOvelop, and is neither a) required by a substantial number of I Joint Owners nor b) requested by the Executive Committee, shall be paid for by the Joint Owner (s) requesting such information. NAESCO, in consultation with the Executive Committee, shall d;velop a reasonable standard by which it will determine how and wh n a Joint Owner is to be charged for information requested. Section 4.5 - Without limiting the generality of this Article IV, NAESCO, the Executive Committee and any Joint Owner ! m0y request an audit of the accounts and records of NUSCO rolating solely to the performance of NUSCO's obligations under this Agreement at NUSCO's offices, at reasonable times, by an independent public accountant or other representative; provided that, absent extraordinary circumstances, a full-scope audit chall not be performed at the request of NAESCO, the Executive Committee or any of the Joint Owners more frequently than once occh year, and provided further that any such audit shall not include the right to examine any accounts or records of NUSCO which are not related to (1) NUSCO's billings to NAESCO under this Agreement, or (ii) the allocation of NUSCO's costs to NAESCO or Seabrook. If an audit is requested by the Executive Committee, the cost thereof shall be borne by all Joint Owners in pr: portion to their Ownership Shares. If an audit is requested by one or more, but less than all of the Joint Owners, the costs thoreof shall be borne by the Jofnt Owner (s) making such request. If an audit is performed in connection with an arbitration, the costs of the audit shall be allocated among the_ Joint Owners in cecordance with the decision of the arbitrator. Section 4.6 - NAESCO and any Joint Owner shall have the right to review the results of such portiens of internal or independent audit report of NUSCO as may be related to (i) NUSCO's billings to NAESCO under this-Agreement or (ii) the ellocation of NUSCO's costs to NAESCO or to Seabrook. Section 4.7 - NUSCO shall cooperate with the Audit committee of the Joint Owners and provide such support and assistance to th] Audit Committee as may be reasonably requested from time to t Lme . ,
' ARTICLE V Iffpetive Date Termination and Modifications Section 5.1 - The term of this Agreement shall commence at the Time of Effectiveness, provided that it has been executed by NAESCO and NUSCO, and shall continue until the date, af ter the cessation of commercial operation of Suabrook Unit No. 1, on which the Joint Owners and NAESCO are ultimately relieved by the U.S. Nuclear Regulatory Commission of any further obligations with respect to the decommissioning of Seabrook Unit No. 1, unless sooner terminated as hereinafter provided.
Section 5.2 - This Agreement may be terminated (i) By NAESCO,.without cause, following a vote of Joint Owners with at least 51% of all ownership shares in Seabrook to terminate the MAOA, provided that NAESCO gives written notice of Juch termination to NUSCO, which notice NAESCO shall be obligated to give under such circumstances. (ii) By NAESCO, with cause, upon written notice to NUSCO, following a vote of Joint Owners with at least 51% of all ownership shares in Seabrook to terminate this Agreement; provided, however, that NUSCO shall have a reasonable opportunity, not to exceed 90 days after the date of such notice, to cure the failure of performance. (iii) By NUSCO, without cause, at any time, upon twelve months prior written notice to NAESCO and the Joint Owners, provided that NUSCO may not give such notice of termir.ation during the first twelve months following the Time of Effectiveness. (iv) By NUSCO, with cause, upon written notice to NAESCO and the Joint owners, provided, however, that NAESCO shall have a reasonable opportunity, not_to exceed 90 days after the date of such notice, to cure the failure of performance. Section 5.3 - Either party terminating this Agreement shall give written notice of such termination to the other party hereto, stating the date on which termination is to occur (the
' Termination Date"). Notwithstanding such notice, the Termination Date shall not occur until any requisite amendment to the U.S. Nuclear Regulatory Commission Operating License for Seabrook has be'en issued and is in effect. NUSCO agrees _to cooperate with NAESCO to accomplish the orderly transfer of its responsibilities hereunder to any successor designated by NAESCO.
Section 5.4 - If either NAESCO or NUSCO terminates this Agreement, NAESCO shall reimburse NUSCO for direct costs actually e
!4. curred resditing from such termination, unless this Agreement is terminated for willful misconduct on the part of NUSCO as d: scribed'in Article VI hereof. NUSCO shall fully substantiate oil direct costs actually and reasonably incurred and supply -
Gupporting documentation of such costs in reasonable detail. NUSCO shall use its best efforts to mitigate the costs of tormination. Furthermore, as a precondition to any termination h reof, NAESCO shall pay to NUSCO on the Termination Date all amounts due to NUSCO hereunder and shall execute and deliver to NUSCO such instruments as it may reasonably request which cvidence the continuing obligations of NAESCO and/or the Joint Owners in accordance with Section 11 of the MAOA and Article VI hareof. section 5.5 - This Agreement shall also be subject to tormination and shall terminato, without any action by either NUSCO or NAESCO, to the extent and from the time that performance Cay conflict with the Act or with any rule, regulation or order of the SEC adopted before or after the making hereof. Notwithstanding the foregoing, the parties hereto will use rocsonable efforts to negotiate any amendments to this Agreement which are necessary for this Agreement to comply with the Act or cny rule, regulation or order thereunder. If this Agreement is tOrminated under this provision, NUSCO and NAESCO shall fulfill thoir obligations under Sections 5.3 and 5.4 of this Agreement. Section 5.6 - Modifications to the terms of this Agreement, l including changes in the scope of the services to be provided, l cay be made at any time only by written agreement between NUSCO cnd NAESCO and shall not be inconsistent with the requirements of the MAOA and the JOA. ARTICLE VI Limitation of Liability and Set-off Eeetion 6.1 - For and in consideration of the fact that NUSCO is undertaking its responsibility for the services provided harein without compensation or charge other than recovery of.its l costs for those services, neither NAESCO nor any Joint Owner l shall be entitled to recover from NUSCO or the directors, trustees, officers, employees, agents or affiliates of NUSCO (or tho directors, trustees, officers, employees or agents of such offiliates) (collectively, the ' Protected Parties") any damages rcsulting from the performance or non-performance of their r0sponsibilities hereunder'or for any. damage to'Seabrook, any - curtailment of power, or any other damages of any kind, including direct, incidental, consequential, special, indirect or punitive damages occurring during the course of the design, cngineering, procurement, installation, construe.c.on, operation, maintenance, refueling or decommissioning of Seabrook or
i otherwise arising out of the performance'or non-performance of , this Agreement, unless such damages shall have resulted directly l from the willful misconduct of NUSCO, or, to the extent legally attributable to NUSCO, directly from the willful misconduct of a Protected Party. Notwithstanding the above, neither NAESCO nor any Joint Owner shall be entitled to recover any such damages if such damages result from NUSCO's or a Protected Party's actions or omissions that have been expressly approved in advance by the Executive Committee or by the Joint Owners. section 6.2 - All goods and services provided to NUSCO or NAESCO for the benefit of Seabrook by a Protected Party shall be
- under written contract having the same limitation on liability as above; provided, however, that the same limitation on liability shall also apply even if the goods and services are provided without written contract.
Section 6.3 - The provisions of this Article VI shall apply notwithstanding any-provision of this-Agreement to the contrary and shall survive the expiration or termination of this Agreement. Section 6.4 - NAESCO's obligation to make payments to NUSCO hereunder le ebsolute and unconditional'and NAESCO shall not be entitled to cet off against the payments required to be made hereunder any amounts owed to it or any of the Joint Owners by NUSCO or any affiliate of NUSCO or the amount of any claim by.. NAESCO or any of the Joint Owners against NUSCO or any aff11 ate of NUSCO. Section 6.5 - All provisions of this Agreement providing for limitation of, or protection against, liability shall apply to the full extent perm;tted by law, regardless of fault, and shall survive either terminetion pursuant to this Agreement or l cancellation. ARTICLE VII Assionment and Third Party Beneficiaries section 7.1 - This-Agreement shall;be binding upon and inure to the benefit of NAESCO, the Joint Owners and NUSCO. Neither NAESCO nor NUSCO shall assign its rights or obligations hereunder without the prior written consent of the other. Eection 7.2 - The provisions lof this Agreement are solely' l for the benefit _cf NAESCO, NUSCO and the Joint Owners and are not intended to benefit or create rights in any third parties,-except for the benefits accruing to Protected Parties-under Section 6.1.-
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t 1 . l ARTICLE VIII l Miscellaneous- , Section B.1 - This Agreement shall be governed by and construed in accordance with the laws-of the State of New Hampshire regardless of any conflicts of laws provision to . ae contrary. - SECTION B.2 - Except as provided in Section 1.6 hereof, NO WARRANTIES OF ANY KIND, WHETHER. STATUTORY, WRITTEN,--ORAL OR IMPLIED (INCLUDING, WITHOUT LIMITATION, WARRANTIES OP; NERCHANTABILITY AND FITNESS-FOR A PARTICULAR PURPOSE) SHALL APPLY.
- TO THE SERVICES PERTORMED BY NUSCO NEREUNDER OR TO ANY GOODS OR OTHER PROPERTY PROVIDED BY NUSCO IN CONNECTION WITH SUCH SERVICES. The foregoing shall not be deemed to-affect in any-manner any warranties provided by other vendors or suppliers.
Section B.3 - This Agreement,. including the attached Exhibit.A, constitute the entire agreement between NUSCO.and: ." l NAESCO governing all rights and obligations arising out of l NUSCO's performance of services for NAESCO:in connection with-NAESCO's management, operation.and maintenance of'Seabrook. i section B.4 - This Agreement shall be subject to approval of cny federal or state regulatory body whose approval is a legal i prorequisite to its execution,-delivery,.and performance. 1 section B.5 - The work performed under this Agreement shall, at all times, beLin accordance with applicable federal and otote laws and regulations. Section B.6 - The obligations of the Joint Owners under. L this Agreement are several and not joint or joint.and several. U . 4
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IN WITNESS WHEREOF, the parties hereto have caused this' Agreement to be duly executed, by their respective officers thereunto duly authorized, all as of the day and year first above written. NORTHEAST UTILITIES SERVICE COMPANY c ny WfW [NameWJCho F CgW kCA. II
- IVf0ldtLM RM Cdtnl 1.kreirnG Attest:
N3 NORTH ATLANTIC ENERGY SERVICE CORPORATION, as agentJfor-the Joint Ow rs of embrook By e) ' b bfM(iLOt-Ohu(k)gCl(Ofi Attest bd(lCCf
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Exhibit A
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I Page 1 l l i EXHIBIT A , DISCRIPTION OF METHODS AND PROCEDURES FOR DETERMINING COST OF SERVICES WORK ORDERS FOR SERVICE There shall be work orders covering services to be performed by NUSCO for NAESCO. These orders, which may be either general cr specific, will specify the nature of the services to be performed thereunder in sufficient detail that charges therefor cay be determined as herein provided and properly accounted for by NAESCO under the rules and regulations of the SEC and the prescribed Federal Energy Regulatory Commission (FERC) Uniform System of Accounts. CHARGES _FOR SERVICES Specific Services Charges for specific services rendered to NAESCO will be made to specific work crder numbers assigned to accumulate the charges applicable to particular activities. These charges will be made on the bases of benefits conferred and will include both direct and indirect costs involved in providing the specific sarvices and reasonable compensation for necessary capital as permitted by Rule 91 under the Act. General Services Charges for general services rendered to NAESCO and to other NU system companies will be made to the appropriate general work order number assigned to accumulate the charges applicable to the particular activity. These charges will be made on the bases of benefits conferred and will include both direct and indirect costs involved in providing the general _ services and reasonable compensation for necessary capital as permitted by Rule 91 under tho Act. They will be allocated fairly and equitably to the companies receiving such general services. NATURE OF CHARGES AND METHOD OF ALLOCATION Direct Charets , Direct chargr.; consist of t' we costs which can practicably be recorded separately and ident_. led not only by work order number but also as to source, such as time. reports for each cmployce, vehicle reports, invoices and other source documents.
i l Exhibit A
, Page 2 I
Time reports will be maintained for each employee, including officers, in such detail as may'be appropriate for such employee and the nature of the services performed. Employees will record ] on their time reports hours chargeable to the appropriate work order numbers. Indirect Charaes or Overhead Exoenses Indirect charges or overhead expenses consist of all costs ! of NUSCO, other than direct charges deveribed above. These charges may be classified into the following two general categories:
- 1. General NUSCO Overheads - These charges include costs which cannot be identified as applicable to a particular work order number and which must be allocatad to the appropriate company on a fair and equitable basis. The following items are illustrative, and not all-inclusive, of the types of costs which may be so-allocated: rents, office supplies and expenses; depreciation; building operation and maintenance; insurance; reasonable compensation for necessary capital; general services, such as reprographic services, meilroom-services, etc. ; etaployee benefits, including payroll -
related state and federal taxes; and other general overheads.
' General NUSCO overhead costs will be allocated to NAESCO and each other NU system company on the basis of:the direct NUSCO payroll costs charged to each such company.
- 2. Non-Productive Time Overheads - Lost or nonproductive time i
for vacations, personal time off, sickness, holidays, etc., of all employees will be allocated to NAESCO and each other NU system company on the basis of NUSCO productive payroll costs charged ts cach such company. CHARGES TO NU SYSTEM COMPANIES Specific Services Charges for specific services recorded in the appro work order numbers, including overhead items, will be b'priate-41ed , monthly to NAESCO. ] General Services Charges for general services recorded in the' appropriate work order numbers, including overhead items, will be allocated , among and billed monthly to NAESCO and the other NU'aystem companies on a fair and equitable basis. The bsses may include, l \ l-
Exhibit A Page 3 but are not necessarily limited to, revenues, payroll costs, . customers, electric peak load, or such other bases as experience ! coy show will provide a more fair and equitable allocation of --; charges. i I BILLING Bills will be provided to NAEE0*) in sufficient detail so as to identify the services rendered and permit proper accounting distribution of the charges under the rules and regulations of the SEC and the prescribed FERC Uniform System of Accounts. Detail on the bill will includes (1) the department or group providing the service; (2) function or type of service; and (3) nature of charges, whether direct or indirect (overhead). l i L I P
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CONFORiiFD-COPY l i FIRST AMENDMENT TO
- SERVICE AGREEMENT Between NORTHEAST UTILITIES SERVICE COMPANY and ;
! NORTH ATLANTIC ENERGY SERVICE CORPORATION - l ACTING AS AGENT FOR THE JOINT OWNERS OF SEABROOX l ; This FIRS 7 AMENDMENT, made as of the 2 day of J" , , 1992, to the Service Agreement (the " Service Agreement") between-Northeast Utilities Sorvice Company ("NUSCO*) and North Atlantic Energy Service Corporation-("NAESCO") acting as agent for the Joint Owraars of Seabrook (the " Joint Owners"), i r WITNESSETH THAT: ) l WHEREAS, the Service Agreement calls for NUSCO to begin I rondering services thereunder to NAESCO at-11:59 p.m..on the last day of the calendar month in which the final ~ regulatory approval-nseded to effect the transition from the New Hampshire Yankee . Division of Public Service Company of~New-Hampshire'to NAESCO as~ Managing Agent for the Seabrook nuclear generating unit 1 ("Sembrook") is received; and I WHEREAS, the-language presently in the. Service Agreement
-4 would delay-NUSCO's provision to'NAESCO of services thereunder until the-last day of a month; and.
WNEREAS, it is? intended that'NUSCO begin rendering services' I to NAESCO sinatitaneously with the time-when NAESCO assumes (-
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l 4 1 *# responsibility for the management, operation and maintenance of Seabrook; and WHEREAS, NAESCO and the J. tnt Owners have agreed to amend the Seabrook Project Managing Agent Operating Agreement to allow themselves the flexibility to accomplish that transition at the earliest date possible, regardless of whether that date is the last day of a months and WHEREAS, NAESCO and NUSCO desire to make similar amelldments to the Service Agreement so that NUSCO may ? in rendering services to NAESCO simultaneously with the time when NAESCO assumes responsibility for the management, operation and maintenance of Seabrook, regardless of whether that date is the last day of a month: NOW THEREFORE. in consideration of-the foregoing and for other good and valuable consideration, NAESCO and NUSCO agree to amend the Service Agreement as follows: :
- 1. The parenthetical statement at the end of the third WHEREAS clause is amended to read as follows: -
- (defined as the date of closing of the trancactions j i
necessary to clomplish the transfer of responsibility for- 1 l
the management, operation and maintenance of Seabrook from the New Hampshire Yankee Division ("NHY") of Public Service Company of New F.%pshire to NAESCO)
- 2. Section 5.1 is amended to add the following at the end thereof:
Promptly following the occurrence of the closing of the transactions necessary to accomplish the transfer of responsibility for the management, operation and maintenance of Seabrook from NHY to NAESCO, NAESCO shall provide written notice to NUSCO advising it that the " Time of Effectiveness" occurred on the date of such closing. IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to be duly executed, by their respective officers thereunto duly authorized, all as of the day and year first above written. NORTHEAST UTILITIES SERVICE COMPA!N By: d b [d l Name: 3% f Cpe gg
Title:
fpfCuh m W N S M U@lfdI Attest:
_4 NORTH ATLANTIC ENERGY SERVICE-CORPORATION, as agent for the Joint Owners of Seabrook , By:- M ' Name: 7 - (. ChDMI s '
Title:
M UU N Sdini-GistC hh100(tr Nidtr Attest: iwdu P __- $49ns% J 3 s I i l l-t e 1
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CONF 00MED CBDY I I i NUCLEAR SUPPORT SERVICES AGREEMENT between YAi;KEE ATOMIC ELECTRIC COMPANY and NORTH ATLANT!C ENERGY SERVICE CORPORATION ACTING AS AGENT POR THE JOINT Oh'NEP.S OF SEABROOK STATION-i
. -.- - - - - .= .. - - .-.- - .-...-.- - . -- - . - ~ ~.-
4 TABLE OF CONTENTS Page ' l 1. GENERAL SCOPE OF NSD SERVICES . . . . . . . . . . . . . 2 i > l 2. GENERAL SCOPE OF NAESCO'S OBLIGATIONS . . . . . . . . . 3 .
'I j 3. PAYMENT POR SERVICES .
. . . . . . . . . . . . . . . . . . 4 i
i
- 4. TERM, TERMINATION AND MODIFICATION . . . . . - . . . . . . 6
! l j
- 5. ASSIGNMENT AND THIRD PARTY BENEFICIARIES . . . . . . . .
8
- 6. INSURANCE AND INDEMNIFICATION' . : . . . . . -. . . . . . . 8'-
- 4 4
- 7. GENERAL LIMITATIONS OF LIABILITY AND WAIVER . . . '. . . 10 f i-1 '
j 8. ACCESS TO=INTORMATION . . . . - . . . : . . . . . . . . . . .. 12_ i 1
- 9. MISCELLANEOUS PROVISIONS . . . . . . . . . . - .- . . . . - . 14 ,
I h l 1 - ! c a t . } l 1 3' i,
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1 i i . . . i - J 4.- 2 i h.
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This Agreement is made as of June 29. 1992 , by and b] tween YANKEE ATOMIC ELECTRIC COMPANY (Yankee), a Massachusetts corporation, acting by and through its Nuclear Services Division, and NORTH ATLANTIC ENERGY SERVICE CORPORATION (NAESCO), a New Hcmpshire corporation, acting as agent for the joint owners of the Seabrook Station (the Joint Owners). WHEREAS, the Nuclear Services Division (NSD) was - established as a division within Yankee to provide support as n3eded for Yankee's nue ear-fueled, electric generating plant in Rowe, Massachusetts, and the various individual nuclear projects undertaken by one or more of the 10 New England utilities who own the capital stock of Yankee (the sponsoring utilities) and their casociates and affiliates and the organizations in which they may have a substantial interest; WHEREAS, the Seabrook Station is such a nuclear project; WHEREAS, by order in File No. 70-7787, the Securities and Exchange Commission (SEC) has approved and authorized, under the Public Ut'iaty Holding Company Act of 1935 (the Act), the organization and conduct of business of NAESCO as a wholly owned olectric company and service company subsidiary of Northeast Utilities (NU), a public utility holding company registeied under the Act; WHEREAS, NAESCO has entered into a Managing Agent Operating Agreement ("MACA") with the owners of an aggregate ownership share in the Seabrook Station of 70.60921 percent, pursuant to which NAESCO has been appointed the managing agent for the Saabrook Station as of the " Time of Ef fectiveness" (defined as ' 11:59 p.m. on the last day of the month in which all federal, state, or local regulatory, judicial or other approvals nocessary for the performance by NAESCO of its obligations as canaging agent for the Seabrook Station shall have become offective); WHEREAS, Section 4 of the MAOA specifically confers on NAESCO the authority to contract with an affiliated service company to act as subagent on behalf of NAESCO and on behalf of the Joint Owners to perform certain of NAESCO's duties relative to the management, operation and maintenance of Seabrook Unit No. 1, and the supervision of the disposition of Seabrook Unit No. 2; cnd WHEREAS, Yankee, through NSD, has since 1972 been providing cartain services in cupport of, and in conjunction with, the engoing engineering, design, licensing, construction, startup, cnd operation of the Seabrook Stati'on;* WHEREAS, Yankee, which currently renders services to Seabrook Station, is willing to provide similar_ services to NAESCO consistent with the terms of the MADA and _ tha Agreemer.t for Joint Ownership, Construction ar.d Operation of New Hampshire i E
.g.
Nuclear Units dated as of May 1, 1973, as amende he "JOA"), and the First Amendment to the Seventh Amendment to and Restated Agreement for Seabrook Project Disbursing Agent, and NAESCO.is willing to accept such services; and WHEREAS, economies, increased efficiencies and other benefits will accrue to NAESCO as a result of Yankee rendering those services as herein provide; and WHEREAS, notwithstanding the se evices provided hereunder by Yankee, NAESCO will at all times remain responsible for the management, operation and maintenance of Seabrook; NOW, THEREFORE, IT IS HEREBY AGREED AS TOLLOWS:
- 1. GENERAL SCOPE OF NSD SERVICES A. In implementation of the authority granted to it in Section 4 of the MAOA, NAESCO hereby appoints Yankee as agent on its behalf and on behalf of the Joint Owners to perform the se'rvices described herein.
B. Yankee shall, to the extent requested by NAESCO, provide, and NAESCO shall use, various engineering, licensing, environmental, quality assurance, and other related support services for the Seabrook Station, including without limitation the services described in Exhibit A hereto, as provided for in the Annual Plan and Budget described in Section 2.A herein. In addition, subject to the availability of the NSD staff and the applicable provisions of this Agreement, Yankee chall provide such other services as may be requestec by NAESCO. In providing these services, personnel of Yankee shall at all times be subject to the control and direction of designated representatives of NAESCO. C. In providing services herttunder, Yankee shall utilize the capability of the NSD organization. If requested to perform services that are beyond the capability of the NSD organization, Yancee may, subject to prior _ written approval by NAESCO, arrange-to have services provided by other contractors or consultants and manage i these on behalf of NAESCO, which approval shall not be gr&nted by NAESCO without, the prior ' approval of the executive committee of the Joint Owners ("the Executive Committee") if the approval of the Executive Committee l is required under the MJ.OA. D. To maintal.n its expertise and to keep abreast of developing events in fields related to nuclear power
l _3 and engineering,~NSD shall maintain memberships on certain industry committees, codes and standards committees, and in other professional groups and organizations. Generally, these' memberships are of a generic nature as to benefit all plants and will be jointly funded, thus reducing costs to all. In addition, short-lived industry groups formed to address immediate industry problems may be joined at . NSD's discretion and the associated costs allocated proportionately over Yankee's service agreements, including this Agreement. In cases where the benefits of a membership are determined to be specific only to the Seabrook Station, cost will be wholly allocated under this agreement; provided, however, that any such membership specific only to Seabrook Station shall not be undertaken by Yankee without the prior written approval of NAESCO. E. NAESCO will at all times remain primarily responsible for the management, operation and maintenance of Seabrook. F. Yankee shall cooperate to the extent reasonably requested with the Oversight Committee of the Joint owners and with the Executive Committee.
- 2. GENERAL SCOPE OF NAESCO'S OBLIGATIONS A. NAESCO shall purchase support services from Yankee for Seabrook Station. Prior to September in the year preceding each calendar year during the term of this Agreement,.beginning with September, 1991, NAESCO and Yankee shall establish the scope of services and manpower requirements to be supplied by Yankee-hereunder during such calendar year, which support services shall be reflected in NAESCO's Annual Plan and Budget for Seabrook Station for such calendar year, and shall be subject to modification within the limits-herein specified, if such Annual Plan and Budget. ate subsequently modified pursuant to the MACA. In the course of formulating that Annual Plan and Budget, due consideration will be given to-Yankee's need for manpower requirements which are consistent from year to year,. as follows: To assist NAESCO'in schieving a cost effective reorganization of tho operatic.ial suppert for the Scabrock Station, HAESCO cay initially adjust, in 1991 (or in the year in which the Time of Effectiveness occurs), the current manpower level of 100.5 mhn-years by up to plus or minus a maxistum of twenty-five (25) percent, provided that (i) Yankee and
NAESCO shall have mutually discussed how the adjustments will be made on a departmental basis and (ii) Yankee is given written notice within five (5) days of the Time of Effectiveness specifying the initial adjustment. Following the receipt of such written notice, Yankee shall promptly take appropriate steps to effect staffing changes reflecting such initial adjustment and shall complete such changes within one hundred and eighty (180) days of receipt of said notice. Af ter said initial adjustment, ~1f any, the amount of services to be provided by Yankee shall be consistent from year to year and shall not vary by more than plus or minus a maximum of ten (10) percent l from one year to the next. B. NAESCO shall not make an initial assignment of work for the Seabrook Station to others, including affiliated companies, for services of the type being performed by NSD at the Time of Effectiveness, without prior discussion with Yankee. In addition, NAESCO shall, prior to contracting work to others, consider ' giving Yankee the opportunity to provide such work. NAESCO shall decide in each instance who shall perform such work. <
- 3. PAYMENT FOR SERVICES f A. NAESCO shall pay to Yankee the cost, determined in i accordance witi Exhibit B attached hereto, of such i
' services as are provided to NAESCO under the terms of this Agreement. Such payments will include reasonable compensation for necessary capital as permitted by Rule 91 of the SEC under the Act. 3 B. All services rendered by Yankee under this Agreement will be at actual cost thereof, fairly and equitably allocated and calculated, all consistent with the requirements of the Act and the rules and regulations and orders thereunder. Direct charges will be made for services where a direct allocation of cost is possible. Charges not directly assi;nable, including without limitation costs of capital, shall be determined and allocated on a reasonable and equitable basis in i accordance with the requirements of the Act and as-approved by NAESCO, which will not grant that approval witbr the prior approval-of the Executive Committee. Nei'ts, GAESCO's nor the Executive Committee's. ap .aval of cost allocation methods shall be ' unreasonably withheld. Yankee will not be obligated to provide services under this Agreement if the method of m__:__ u.... .. . . - - -
' ' ' ' - ~ ~ ' -
L g - - - _ _._ _s _ ___ 9 allocation approved by NAESCO and the1ExecutiveL Committee would be in contravention ofithe Act, or the rules, regulations or_ orders thereunder.-:The method =of determining-the cost of a particularEservice and the' a method of alloc-+1ng :that ; cost-- to NAESCO and 'the: other customer compani.s of Yankee-when--such-aniallocation-- is necessary_are set forth:-in: Exhibit'9 hereto.c-Such allocation methods will be appropriately documented-and. available for review by NAESCO and_the Joint' Owners upon request. Without limitingzthe generality'of.the foregoing,_ allocable costs-include-executive salaries and fringe benefits paid byfYankee, thelemployee wages and benefits paid:by Yankee, insurance; expenses, and other- general overhead expenses incurrediby-Yankee. Yankee shall keep complete-and; accurate _ accounts:afEall-receipts and expenditures: hereunder in!accordance with the rules and-regulations of th- Securities:and! ' Exchange Commission and the Unidarm SystemiofLAccounts-prescribedcfor.Public: Utilities'and Licensees subject to the provisions;of-the-Federal: Power Act, as' amended 1 from time to time. C. Yankee shall submit itemized invoices for services
.endered to-NAESCOLin anyfcalendar: month byfthe' fifteenth.(15th) business day _of-the next calendar month. All-invoices submitted by-Yankee 1shallishow-a e
breakdown of-laborfand materit1 costs 1 including! overheads with department,~ group, and: work orderfcosti listings. NAESCO shall pay _such invoice _from Yankeej within-thirty (30): days after receipt thereof.; Any payment' delayed:beyond.thirtyM(30)idays:after receipt: by NAESCO of a_ monthly invoice shall bear-interest:from the date of invoice to'the date'of payment-at-anLannual rate of (21) over the-lowest;(i.e.,." base")srate-charged, from time;to: time,Lby ThelFirstENational Bank of Boscon on 90-day commercial loans.. D. All. sales, use, excise, gross-receipts,Efranchise, or;
.other similar.: taxes,)which maylbeLapplicable:to the.
services-to be performedLby. Yankee-for)NAESCO,1shall be paliby NAESCO;- provided, howeveri; that no- federal, state, or local income, tax incurred by Yankee 1shall1be; paid byENAESCO)pursuantLto this}paragra)ph or.otherwise. E.
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NAESCO's-obligationito makelpayments to: Yankee
; hereunder;is absolute and unconditional!andsNAESC01 '
shall"not.be entitledite set.offlagainstithe; payments-required to;be madeihereunder any: amounts: owned--to:it- a or any of. theLJoint; Owners by Yankee -oriany af filiate-of -Yankee.or the amount of f any: claim by?NAESCOiorfany 4 9 _Jw -
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;L :. - - - -
- of. the Joint . Owners tagal'nst Yankee- or an'y, affiliate .orf:
- Yankee. '
- 4. TERM, TERMINATION AND MODIFICATION A. The Term of this:AgreementLshall commence at thNTime; of-Effectiveness, provided thatrit1has been executed-by NAESCO and Yankee, andLshallicontinueiuntil'the date, '
after-the-cessation-of commercial 1 operation:of the-Seabrook' Station, on which the- Joint Owners s'nd NAISCO : are ultimatelyErelieved-by the: U.S.-Nuclearz Regulatory: Commission of-any further obligations with respect to the decommissioning of:Seabrook: Unit No. 1, unless-a sooner terminated: as -hereinaf ter provided. B. This Agreement may be terminated " (1). ByfNAESCO, withoutecause,1following:a. vote'fd Joint Owners with at least-51 percent of all? ownership sharest in Seabrook Station-to terminate ! - this Agreement, provided_thatsYankeesissgiven at least1two years' p:ior written notice and no; reduction in the manpower 1to be provided hereunder; exceeding 10. percent =per year occurs during said; two-year-period.L In:-theieventithat-there ista-termination of the MAOA^which.becomesleffective-
- prior _to the! expiration of:the--_two-yearfper3od, I then the' Joint 40wners sha11 remaincresponsiblezand:
. 11ableLtorithe_perictmance:of this1 Agreement:and NAESCO shall be excused:from1 performance of this Agreement ar of the effective date of! termination--
of-_the: Managing AgentEOperating Agreement,?except for:its obligations-under Section14.Ciandl4.D.
- hereof.
- (li)-By NAC?CO,'with cause,-uponLwritten noticeLto. _
-Yankee, following agvote;of1 Joint OwnersLwith~at-- _
[. 1 least'51 percent of.all: ownership 1sharesLin-'
- Seabrook7 Station:to terminatelthisDAgreementri ;
-provided,Lhowever_that1Yankeelshall;be:given1a j reasonable: opportunity,1not tocexceed 90; days j after the-dateJoffsuch1 notice,1to: cure the; failure of? performance.;
-(iii); ByLYankee, withouticause; -;upon ~ two: years 'o priort written notice to NAESCOland=the.-JointLOwners; t
(iv)lBy-Yankee,'withicause, upon written notice to NAESCO'and the/JointiOwners;Jprovided,' however,- that"NAESCO_shallibe"given.a reasonable. , 4 1
i e I. - 3 l i opportunity, not-to exceed 90 days aftersthe_date- ' ! of such not' ice, to cure the failure of' j= performance.- 4 1 , C. Any party terminsting this(Agreement"shall;give writtens notice of such termination to.the other party hereto,_ !. stating the date-on which termination is to occur-(the
" Termination Late"). Notwithstanding such notice, the:
i Termination Date shall not occur until any-requisite n
- amendment torthe U.S. Nuclear Regulatory Commission Operating ~ License for-Seabrook Station has been issued.
and is in effect. J Yankee agrees--to' cooperate 1with NAESCO to accomplish the orderly transfer of responsibilities hereunder ~to-any' successor: designated by NAESCO. On the Termination Date,:as-a precondition to any termination hereof,.NAESCO shall pay.;[to Yankee-all amounts due hereunder _and shall: execute andideliver o to Yankee such instruments as Yankee may--reasonably j request which evidence the continuing obligations of3 I NAESCO and/or the Joint-_ Owners in accordance with ! Section Il of the MAc; andLSections;6.0'and 7;9 of this ! Agreement. . D. If either NAESCO or: Yankee terminatesithis. Agreement, NAESCO shall reimburse' Yankee-for' direct costs-actually-resulting: f rom: such termination, unless this Agreement ~ is terminated for1 willful misconductJon the partjof: ' Yankee as. described in Section;7thereof? = Yankee 7shall. fully substantiate all direct:corts actuallyJand1 i reasonably incurred and supply aupporting documentation 1 of such costs in reasonable detail.J Yankee shall usel its best efforts to mitigate the costsfof0 termination.
~
j 1 E. This~ Agreement shall also be subjectJto termination-and. sha111 terminate, without-any: action?by either Yankee.ory
~NAESCO,c.toLthe extent.and from the. time thati performance may conflict 1w!th the;ActLorfwith;any1 rule,.
regulation.'or; order of Lthe- SEC adopted before 'or .af teri the making' hereof. Notwithstanding :the foregoing, the; parties hereto will:-use; reasonable:effortsJto. negotiate p' any amendments toLthis~ Agreement which areJnecessary; ' for-this.AgreementJto-comply with the: Act or anycrule,. regulation'or order. thereunder._. IfLthis Agretmentiisi terminated under-this provision, Yankee'and NAESC01 shall fulfill their obligations under L Sections-4.C-::and' * . 4.D of;this_ Agreement. F. -ModificationsFt o~the termstof thisfAgreement, including changeslin the scope of-the services--'to be- - provided,:may be made:at anyftime only;by written O
agreement between. Yankee-and NAESCO-andishallHnot be inconsistent-with thefrequirements ofEthe=MADA a.nd-JOA,
- 5. ASSIGNMENT AND THIRD PARTY BENEFICIARIES-A. Neither. Yankee-nor NAESCOLaay; assign lany'of its rights or obligationsihereunder except with-the-written consent of the'other.- -
B. The provisions f'this Agreementz are solely for thet + benefit of NAESCO, the Joint Owners,-.and Yankee and: are not intended to benefit or.1 create. rights in'~any: third parties,_except-forothe1 benefits accruing /to-Protected Parties under Section~7.8 of this Agreement..
- 6. INSURANCE AND INDEMNIFICATION A. Yankee shall provide'and maintain the following_
coverages, and upon request from NAESCO, furnish certificatesJof,the same:
- a. Workmen's compensation Insurance with statutory:
limits of liability as1 required in anyystate-in which Yankee may be required;to pay-compensation related:to performance of services hereunder,
- b. Employer's.Liabilityilnsurance:with limits of.
$250,000 each accident.-
- c. Comprehensive General Liability with notiless than' the :following requirements:-
Bodily Injury Liability, having'a, combined
-single limit;of-$1,000,000;_
Property' Damage'J,iabliit'y, having-a; combined singleilimit_ofl$1~,000,000. ,
*. Such. insurance shall-'nameithe Joint Owners and'NAESCO as-additionalJinsureds.as.their.
- interests may appear.
Such< insurance;shall provide that.noi material change or1 cancellation can:be- ' Effective withcut thirtyf(30)_ days-prior writtenEnotice to.NAESCO.;
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- d. Automobile Liability, including owned, nonowned,- .
I and hired automobiles with not less than the , following requirements: " Bodily Injury, having a combined _ single limit i of $1,000,000. , i
- Property Damage, having a combined single limit of $1,000,000.
Such insurance shall name the Joint Owners ; i and NAESCO as additional insureds as their interests may appear, i j ' Suth_ insurance shall provide'that no material' change or cancellation-can be. effective i without thirty-(30) days prior written-notice to NAESCO. 4 .
- B. During those time periods when Yankee'is performing services hereunc'tr, NAESCO, acting on behalf _of J the 4
Joint. Owners, shall obtain and/or_ maintain, at-their own expense, for the Seabrook Station,.theLfollowing:
- a. Indemnification, as contemplated by
- Section 170 of
- the Atomic Energy Act of.1954, as amended; and - _
1
- b. -Nuclear Liability Insurance in such form andLin such amounts as will meet the financialiprotection requirements Of the NRC, pursuant to Secti~on:170 of the' Atomic Energy Act of 1954, as amended, or
- any provisions of other: federal- statutes substantially related to the'same subject matter.
, In the event that the nuclear liability protection ' system contemplated-_by.Section 170-of the-Atomic Energy Act of 1954, as amended,.is. repealed orLchanged,;
- -NAESCO,' acting as agent for the Joint Owners.'shall)use its best efforts ~to secure and maintainLi n effect, during those periods when -Yankee :is providing servicesi hereunder, substantially equivalent 11 ability protection and indemnification agreements from' governmental.and/or private-sources.from which.such coverage is available consistent with prudent; utility 3
L industry-practice. In the event that substantially; equivalent 11 ability lprotectionDisinot_provided, then Yankee shall'have the right.to terminate =this Agreement upon written notice to NAESCO, to be-effective on-the date on which the reduction-in liability protection- !=
- ,- . v. ... --
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i becomes effective. Notwithstanding any provision of this Agroement to the contrary, Yankee shall not.be - liable to NAESCO or the Joint Owners or any of their insurers for any loss of, damage to, or loss of use of, any property or equipment or for injury (including death) to persons located at such plant site or in the vicinity of such plant site arising out of or resulting from a " nuclear incident."
- 7. GENERAL LIMITATIONS 7F LIABILITY AND WAIVER A. Yankee shall, at all times during the term of this Agreement, perform the services.provided for in this Agreement in a professional and workmanlike manner, using well qualified and experienced personnel, and in accordance with the standard of " Prudent Utility Practice." As used herein, the term " Prudent Utility Practice" shall at a particular time mean any of the practices, methods, or acts which, in the exercise of reasonable judgment in the light of the facts known to Yankee at the time the decision was made, could have been expected to accomplish the desired result at a l reasonable cost and consistent with licensing and regulatory requirements, environmental considerations, reliability, safety, and expedition and taking into account the interests of all Participants. In determining whether any practice, method, or.act is in accordance with Prudent Utility Practice, due consideration shall be given to the fact that the design and other aspects of the operation of nuclear electric generating units involve the application of advancing technology and are subject to changing regulatory and environmental. limitations. Prudent Utility Practice is not intended to be limited to the optimum practice, method, or act to the exclusion of all others, but rather, to be a spectrum of possible practices, methods, or acts, including those involving the use of new concepts or technology.
B. For and in consideration of the fact that Yankee is undertaking its responsibility for the services provided herein without compensation or charge other than recovery of its costs'for those services, except to the extent.of the actual-proceeds of insurance provided and maintained pursuant to Section 6 hereof,' neitner NAESCO nor any Joint Owner sha33 be entitled to recover from Yankee or the directors, officers, ) employees, agents,.or. affiliates of Yankee (or.the directors, trustees, officers, employees, or agents of l such affiliates) (collectively, the " Protected
t [ , 4 Parties") any damages resulting from t,he performance or
- nonperformance of their responsibilities hereunder or for any damage to Seabrook-Station, any
- curtailment of
- power, or any other damages of any kind, including.
- 4 direct, incidental,-consequential, special, indirect, i or punitive damages occurring during the course of the-t design, engineering, procurement, installation, t
construction, operation, maintenance, refueling, or
- decommissioning of Seabrook Station or otherwise arising out of the performance or nonperformance of this Agreement, unless such damages shall have_resulted directly from the willful misconduct'of Yankee, or,-to j the extent legally attributable-to Yankee, directly from the willful misconduct of a Protected 1 Party.
Notwithstanding the preceding sentence,-neither NAESCO nor any Joint owner shall be entitled to recover any such damages if such- damages resulted f romiYankee's or a Protected Party's actions or omissions that have been
- expressly ~ approved in advance by the Executive-Committee or-by-thel Joint Owners. To the' extent not covered by or in excess of the insurance requirement in Section-6 hereof, NAESCO, acting on. behalf'of the Jeint Owners, shall indemnifyfand_ hold Yankee 1and the Protected Parties harmless against;all liability to third parties 'for injuries, losses, and -da:aages H occurring at Seabrook Station related to. Yankee's.
services hereunder unless such injuries,J1osses,.and damages shall have resulted directly.from the willful misconduct of_ Yankee, or to the extent legally attributable to' Yankee, directly from the willful misconduct of a Protected Party. -Notwithstanding the preceding sentence, NAESCO, acting on behalf of;the-Joint Owners,:shall indemnify and hold. Yankee =and the' Protected Parties harmless-if.suchrinjuries,31osses, or damages resulted from-Yankee's or a Protected Party's-actions or omissions expressly l approved,in advance by the Executive-_ Committee 1or:the. Joint Owners.'.NAESCO's obligation'tolindemnify~and hold' harmless sha11' apply.only if and to the-extent.that funds are provided to NAESCO fors such purpose ~byf the-JointLOwners,1and NAESCO shall haveuno obligation to provide fundslof its own.for_such purpose._-All goods and services provided to Seabrook. Station by;_a' Protected-Party.shall be under written contract 1having the same limitation on liability _as.above;.provided,
.however, that the same limitation on liability;shall also apply -even if - the _ goods 'and services 'are provided without' written contract. _The! provisions of thisL Section 7.B shall apply notwithstanding'any provision
l l I 1 of this Agreement to th'e contrary'and shall survive the' , expiration or termination of this-Agreement. 1 C. Neither NAESCO nor the Joint Owners shall be liable to Yankee for claims-for direct, incidental, indirect, 4 consequential, or other damages of any nature c9nnected . with, or resulting from,-performance of_this Agreement-j by NAESCO whether or-not due to negligence by NAESCO. d D. Except as may be provided in this Section 7, NOE i WARRANTIES OF ANY KIND, WHETHER STATUTORY, WRITTEN,- i ORAL, OR IMPLIED (INCLUDING WITHOUT LIMITATION WARRANTIES OF FITNESS FOR A'PARTICULAR PURPOSE AND 4 MERCHANTABILITY) SHALL APPLY TO THE= SERVICES PERFORMED BY YANKEE HEREUNDER OR TO ANY GOODS OR OTHER PROPERTY PROVIDED BY YANKES'IN' CONNECTION WITH SUCH SERVICES. i The foregoing shall not-be deemed to affect in any. , manner any warranties provided by other vendors or
- suppliers.
E. All provisions of this Agreement providing for limitation of, or protection against, liability shall , app 1/ to the full extent permitted by law,-regardless of fault, and shall survive either: termination pursuant
- to this Agreement or-cancellation. Nothing in this- '
Agreement shall-be construed as relieving Yankee of its obligations under the1 secondary financial protection
- requirements of the Pricef Anderson nuclear: liability i protection program, or as obligating NAESCO or the Joint Owners to indemnify. Yankee for any payment obligations thereunder.
- 8. ACCESS TO INFORMATION A. NAESCO and the Joint Ownersishall have'the unrestricted right to"all information in the control of Yankee relating to its performance of'its services hereunder forL the benefit of Seabrook Station :(the-
"Seabrook Information"), wherever located, except for information which i:s (1) protected by-law, (ii) restricted 1by contract;with third parties, or--(lii) deemed commercially sensitive by Yankee..'If the Seabrook Information requested-is restricted by contract with third parties, Yankee will'use its best efforts to obtain the consent of the--third parties to discloseLeonfidential Seabrook InCormation'to-NAESCO.
and to tne Joint Owners, with:the. understanding;that-NAISCO and the' Joint Owners;may be required to execute ~ a nondisclosure agreement: If:NAESCO orione or more Joint-Owners requests Seabrook.Information which l l i
Yankee considers commercially--sensitive, Yankee shall- ' allow an indepen' dent. third-party, selected by the" parties'involvedf(other thanrYankee)iand acceptable;to , Yankee (provided_that--Yankeeimay1not-unreasonablyf withhold its_ acceptance), to determine,'using an informal, simplified procedure,:whether the Seabrook-
.Information in: question-is commercially? sensitive. In-any event, _if reasonable underithe circumstances,-
Yankee may require-NAESCO and the Joint Owner (s) requesting the information to execute a nondisclosure agreement covering!information: considered commercially ' sensitive by Yankee. B. Review of information under this Section 8=shall occur 1 at Yankee's offices'at:580 Main-Street,;Bolton, Massachusetts,'at reasonable 1 times during Yankee's normal-business hours, and shall be_ arranged:In. advance ' among the' parties _ involved. NAESCO and the Joint-Owners sha?liuse reasonablefefforts-to avoid' disrupting Yankee's bu iness_ operations. m C. Upon request byLNAESCO,-Yankee ~shall provide technicalf support to _any Joint: Ownerfin - reguintory proceedings > and other contested matters relative--to-Seabrook
- Station,rincluding thefprovision of' witnesses and; accurate data on aEtimely basis.1 Information, including witnessxsupport,Jthat will requireia substantial commitment of time;or?a substantialreffort-to assemble orsdevelop, and:istneither a)' required byLa substantial numberiof Joint Owners-norib)4 requested by_
the Executive: Committee, shall_beipaidlfor;by thecJoint-Owner (s)-requesting such:informatlon.- NAESCO,iin; consultation with"the; Executive Committee',ishall develop-a reasonableJ standard by twhich;it Lwill: determine 1how andLwhen acJoint-Owner is to be. charged" for information; requested.: D. Without limiting 7the generality:of this: Section 8,- NAESCO,_the Executive Committee;and"any Joint Owner may-request an-auditEof the'_accountsiand+ records of Yankee. ci relatingtsolelyfto_the performance,ofuYankee's: .. obligations underJthis Agreementfat= Yankee'sloffices~; , at reasonable: times, byraniindependenti public; accountant.or othercropresentativerjprovidedithat, ;
- absent! extraordinary. circumstances,r:a f ull-scope: audit '
. j shall1 not- bef performed ati the? requestlof" NAESCO,.Jthe" l Executive Committeetorcany-of'the-Joint-Owners morez frequently than:ence each1 year, Mand provid,ed further- 1 that anylsuchfauditishall notJinclude-the right-_to! '
examine anyfaccounts.or records'of Yankee-not:related-
- .. 2_
I 14-to-(i) Yankee's billings to NAESCO under. this - Agreement,-or (ii) the-allocation 1of, Yankee's costs to NAESCO or the>Seabrook Project. Iftan audit is : requested by the Executive Committee, the cost thereof shall be borne by all Joint Owners-in proportion to-their Ownership Shares. 7 If an audit is1 requested by , one or more, but-less than all of-the Joint Owners, the' costs thereof shall be borne by the Joint Owner (s) making such request._ If an audit is performed in . connection with an arbitration, the costs.of the audit-shall be allocated among the-Joint Owners in accordance with the decision-of the arbitrator.. E. NAESCO and the Joint Owners whall:have the right;to review the results of such portions of' internal or
-independent audit reports of' Yankee as may be related to (i) Yankee's billings to NAESCO_under this Agreement, or-(11) the allocation of Yankee'sLcosts to NAESCO or the SeabrcokoProject.
F. Yankee shall cooperate with the Audit 1 Committee-of the Joint' Owners and provide such_ support and assistance to. the Audit Committee'as may be-reasonably requested from-time to time.-
- 9. MISCELLANEOUS PROVISIdNS' A. This Agreement shall be-governed by and construed in accordance with the laws of the State of.New Hampshire.
B. This Agreement-shall be subject-to. approval of any federal or state regulatory body whose approval :is za-legal prerequisite to its execution,-delivery,-and performance. C. The work performed under this Agreement shall,1st all-times,-be in accordance with applicable federal and. state laws and regulations. -1 1 . l - D. This: Agreement,-including the attached. Exhibits A and ,
.B,-constitutes the' entire-agreement between the I l Parties for the services to be'provided~ hereunder, and l supersedes all prior representations andl agreements, 1
-whether written or oral,_between the Parties asL -to such' j
services. 'l E. This Agreement specifically supersedes in: its entirety the Nuclear Support Service Agreement between Yankee and Public Service Company of New Hampshire effective-l 3 e,- ep , yy * -er-Q w .ey- w+ ..--4a, u- .y.4 - , , ,,-w p g- ,, my , g .p.y,,,,.---gw y- y .m-c , . y w 99
.i as of July 1, 1983, as amended by Amendment No. 1 thereto effective as of June I,.1985.
F. The obligations of the Joint Owners _under.this - < Agreement are several and not joint or joint and several. IN WITNESS WHEAEOP, the Parties hereto have caused this Agreement to be duly executed by their respective officers thereunto duly authorized, all as of-the day and year first above written. YANKEE ATOMIC ELECTRIC COMPANY-By 7 (pgnature) H. T. Tracy. Jr. (Typed Name) Vice President
, .M
(Title) W 8 June'29, 1992 (Date) NORTH ATLANTIC ENERGY' SERVICE CORPORATION, as agent for the Joint Owners of Seabrook Station-By (Signattute) U John F. Opeka (Typed Name).
. Executive Vice President - Nuclear (Title)
Y-Attest June 29, 1992
-(Date)
=
1 l EXHIBIT A6 . Description of Yankee Nuclear Services: Division Services The. service available'under?this---Agreement are-those L normally furnished by the Yankee Atomic Electric Company, Nuclear S3rvices Division, l'n the following areas: Construction Services Environmental Engineering: Services t Fuel Cycle Services Computer Science Services
- Licensing Services t
Nuclear Engineering Services
- Oparations' support Services
- Op2 rational. Quality Assurance
-Plant Engineering Services '<- -
Operational Project Management Supervision and Administrative Services: 4 l l I
+
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1
- EXHIBIT B l Determination of Cost of Service and Allocation Thereof l
1 1 l Cost of service will be determined in accordance with the 4 Public Utility Holding Company Act of 1935 and the rules and
- 1
- ragulations and orders thereunder, and will include all costs of. !
, doing business' incurred by the Nuclear Services Division. Records will be maintained to accumulate all costs of doing , business and to determine che cost of service. These costs will ! include wages and salaries of employees and-related expenses ! such as insurance, taxes, pensions, and other employee welfare expenses, general administrative- expenses, and rent, light, heat, telephone, supplies, and other housekeeping costs. i Charges-for services rendered and related expenses and nonpersonnel expenses (e.g., use of automotive equipment, etc.)
- will be billed directly to the serviced companies, either individually or, when the services performed are for_a' group of
, companies, by means of an equitable allocation formula. Each i formula will have_an appropriate basis such-as nuclear copacities, plant investments, fuel inventories, or operating ' 3 revenues. , Charges for services will be determined from'the time sheets of employees, and will be computed on the basis _of each
! cmployee's hourly rate plus a percentage factor to cover related Gxpenses and general administrative expenses. Records of such related expense and general administrative expenses will be maintained and subjected to periodic review.
i Out-of-pocket expenses which are incurred for-the serviced companies will be billed at cost. Charges forgnonpersonnel cxpenses, such as for use of automobiles, will normally be-computed on the basis of costs per hour or per mile. l 1 E 4 1
CONPOMMED COPY l 1 l i FIRST AMENDMENT TO NUCLF.AR SUPPORT ' SERVICES AGREEMENT Between YANKEE ATOMIC ELECTRIC COMPANY - and , 4 NORTH ATLANTIC ENERGYESERVICE CORPORATION' ACTING AS AGENT-FOR THE JOINT OWNERS OF SEABROOK. This FIRST AMENDMENT, made as of the22d2 day of June , 1992, to the Nuclear Support. Services Agreement (the " Service Agreement") between Yankee . Atomic Electric Company ' (" Yankee") ' and North Atlantic Energy Service Corporation l-("NAESCO") acting.as Ggent for the Joint Owners of-'Seabrook=(the " Joint Owners"). WITNESSETH THAT: WHEREAS, the Service Agreement-calls for Yankee'to-begin rGndering services thereunder to NAESCO at 11:59 p.m. onLthe.last-dEy of the calendar month in which the final regulatory, approval nteded to effect the transition from the New Hampshire Yankee ' Division of Public Service Company of New Hampshire'to NAESCO-as Mtnaging Agent for the Seabrook nuclear generating unit-("Se abrook") is received; and WHEREAS, the language presently in-the Service' Agreement' would delay Yankee's provision 1to NAESCO ofLservices thereunder' ; until the last day of a month; and WHEREAS. it is intended that Yankee begin rendering. services to NAESCO under the Service Agreement simultaneously with the
l l l k l time when NAESCO assumes responsibility for the management, operation anc maintenance of Seabrook; and WHEREAS, NAESCO e.nd the Joint Owners have agreed to amend the Seabrook Project Managing Agent Operating Agreement to allow themselves the flexibility to accomplish that transition at the earliest date possible, regardless of whether that date.is the last day of a month; and WHEREAS, NAESCO and Yankee desire to make similar amendments to the Service Agreement so that Yankee may begin rendering 1 services to NAESCO under the Service Agreement simultaneously with the time when NAESCO assumes responsibility for the management, operation and maintenance of Seabrock, regardless of whether that date is the last day of a month: NOW THEREFORE. in consideration of the foregoing and for other good and valuable consideration, NAESCO and Yankee agree to amend-the Service Agreement as follows:
- 1. The parenthetical statement at the end of the fourth-WHEREAS clause is amended to read as follows:
i (defined as the date of closing of the transactions 'I necessary to accomplish the transfer of responsibility for-the management, operation and n.aintenance of Seabrook
.3 Station from the New Hampshire Yankee Division - ("NHY")U of - - i. ;
Public Service Company of New Hampshire to NAESCO)
- 2. Section 4.A is amended to^ add the followingJat-the end'-- [
thereof: Promptly'following the occurrence of-the~ closing of the
. transactions necessary to-accomplish the transfer of responsibility for the management,. operation-and maintenance of-Seabrook Station from NHY to NAESCO,:
NAESCO shall provide written-notice to Yankee advising it that the " Time of Effectiveness" occurred on thel
-date of such closing.
IN WITNESS WHEREOF, the Parties hereto haveLcaused this-First Amendment to-be duly executed by their respective: officers thereunto duly authorized, all as-of the day.and year first
.above written.
YANKEE ATOMIC ELECTRIC COMPANY: By % 45fgnature)- '
- H . ' T.' ' Tra cy , J r. --
.,- (Typed Name)
Vice President A .
- / (Title).
ttest / ' ""* ' (Date) i-11 l
-. _,. ~ . . , . . - . ~ , .,_.-.._.w., . - . . . . . . - . _ - - ,. ~__.-.u . .
. - .. . . . .. - . - . .- . - . - ~ . . . .. - .. - , _ -
9. 4 NORTH ATLANTIC ENERGY SERVICE. CORPORATION,-as agent for'the. Joint Owners-of-Seabrook . - By' k-- d (Signgt3ke) U'
- John F. 'Opeka :
.(Typed Name)-
Executive'Vice Presiden.. - (Title):- Attest . June 29, 1992 (Date)' a 1
-i i --
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' ' ' * " F ' '
- 8*- ' ' ' " ' ' """ * * * '"
l couroRMrn copy l l i i s SERVICE AGREENENT Between PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE and NORTH ATLANTIC 2NERGY SERVICE CORPORATION ACTING AS AGENT'FOR THE JOINT OWNERS OF SEABROOK Effective as of June E , 1992-
- 4 9
) ,, . . . + , ., - . . - , . - - , _ , . , , . , . - -
-a i
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, TABLE OF CONTENTS i 1 s l Page ARTICLE I Agreement to Render Services . . . . . . : . . . . 2-l I ARTICLE II- Services to be Performed . . . . .- . . . . . - . . - . .3 , ARTICLE III Agreement to Pay for Services . . . . - . . . . 4 ARTICLE IV Access to Information 5 ARTICLE V Effective Date, Termination and Modifications 7 4 ARTICLE VI Limitation of Liability and Set-off- -
. --. - .- . . 9' ARTICLE VII Assignment ~and Third Party Beneficiaries-. . . 10 4
ARTICLE VIII Miscellaneous . - , . . . . . . . . . . . . - . . . - -10 EZHIBITS
- 'thibit A Description of Methods and Procedure for-j Allocating Costs of Services I
M 1 r .w -n- ,w s. ..~ ,e,,-. , , , - , ya[
c 1 . SERVICE AGREEMENT between ._ _ -. PUBLIC dERVICE COMPANY OF NEW:BAMPSHIRE .
. andi NORTH ATLANTIC ENERGY-SERVICE: CORPORATION ACTING AS AGENT POR '
THE JOINT OWNERS OF-SEARROOK' This Agreement is made as of June 29 , 1992 :by and between PUBLIC SERVICE CONPANY OF NEW HAMPSHIRE,("N NH"), a New Hampshire corporation, and NORTH _ ATLANTIC' ENERGY SERVICE-- < CORPORATION-("N\ESCO"), s New Hampshire corporation,-acting:as ' egent for tho' joint-owners-(the:" Joint Owners") of the Seabrook- l nuclear generating project ("Seabrook").. . WHEREAS, by order-in-File No. 70-7787,1thefSecurities and
~
Exchange Ctamission ("SEC") has approved =and authorised,1under? the Public UtilPv Holding Compar*' Act of 1935- (thec"Act"),1thee , organisation and conduct of-businessJof NAESCO as'a wholly ownedf olectric utility and serviceLeompany subsidiary of-NU; and.
.WHEREAS, NAESCO has-enteredninto a;Nanaging Agent-Operating.
Agreement (the "MAOA") with theTowners1of an aggregate!' ownership - chare ~1n Seabrook of 70.60921L percent,. pursuant to ' which NAESCO-- has been appointed the.Nanaging Agent to manageJ operate andy minintain Seabrook Unit-No.:11and supervise the-disposition of-S3abrook Unit No. 2 on behalf'of the Joint Owners effective >astof. the " Time-of Effectiveness":(defined 1 ass 11:59?p.m. con-the last) day-of the calendar month-in which all federal',7 state orclocal regulatory, judicial <or other_ approvals;necessary for the performance by NAESCO of its obligations;aseNanaging Agent?for-Scabrook shall'have become eifactive);land; WHEREAS,JSection.4'of the NAOA specific 511y confers:on: NAESCO.the authority to. contract with an affiliated:servicei company or agent-to act:asisubagent on:NAESCO'subehalf:-in-q performing certain1of:NAESCO's' duties /relativeito the management,- - operation'and maintenance of-Seabrook Unit No.c1,1and;the?' oupervision of theidisposition of.Seabrook Unit No.'2;: - WHEREAS,2PSNH,-which performsiservicesiforhitselfifits . s i cubsidiaries and'its:NewiHampshire Yankee Division ((PNHY")111kes those describedein Article:IIm hereof,vis willing to provide
'Olmilar' services-to;NAESCO. consistent _vith the. terms of the.NAOA orship, Construction and Operation and of_NewtheHampshire Agreement for: Jointi Nuclear: Units Owndated::asD oflNayc l,c1973,2-as -
amendedS(the *JOA");fand- ' _ WHEREAS,. economies,1increasedcefficiandies(andfotheb, benefits.will accrueito'NAESCO asLa result of'PSNH rendering. those services.as herein-provided;0and.
+
.j
l' 4 i i- , i U l i- - - }. WHEREAS, notwithstanding the services 'provided hereunder by j PSNH, NAESCO will at all-times remain respon61ble forfthe 4 management, operation'and maintenance of:Seabrook:
~
i \ ! NOW, THEREFORE, in consideration of the-premises and'of the j mutual agreements herein, it'is agreed as'follows: i l l ARTICLELI ! Acreament to-Rander=Earvices >
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- ;~
i g ntion'1.1.- In implementation:of the authority-granted,to i it in Section 4 of the MAOA,1NAESCO hereby' appoints PSNH as-F agent on its behalf and on behalf ofithe Joint' Owners to perform; ! the: services described in ~ Article IIL hereof. To the; extent
- requested.by NAESCO,zPSNHcagrees to' furnish 1to NAESCO upon'the.
l terms and conditions'provided:herein, andLNAESCO. agrees:-to use,-
- O the services dascribed11n-Article IIlof this1 Agreement 1st"such?
[ times and fortsuchiperiods as; requested?by NAESCO,cand PSNH; will,-as,and to the extent required to-provide such'servicesito i NAESCO, keep itself.and its1 personnel:available and competent so 'l long as it is authorised to do=so by'federaliandl state regulatory. l agencies having jurisdiction, i j Stetion 1.2 - For-the purpose of_providing the_ services
. l i described'in Article II-of this Agreement and performing services
! .for itself, its: subsidiaries and-NNY,1PSNH has established-l various departmentsi one or more of which will-participate in:
- providing the-services-described in Article;II. ~PSNH reserves
- to-1 ~itself.the right',-without" amendment toithisJogreementior thei l express prior consent"of NAESCO or the' Joint ~ Owners,ffrom time 1to F time to establish new departments, to? subdivide:orfotherwise ,
j reorganise any ofLthe departments: established;byjit.or tos m p reallocate services among4variousJdepartments'. h .Section'1.3 - PSNH will continue to perform. services =fori :) L itself and its--subsidiaries.- PSNH;may'also provide servicesito . i other unaffiliated companies if-it1 determines;inTits=own t discretion;that furnishing 1those: services will1Lnot-increase?the-E cost of:the services it renders toiNAESCO: U section-1.4 - with the-prior approval;of:NAESCOL which-- epproval.shall not:beigranted:without:the prior approval 1ofithe; 1 Executive Committee of the; Joint Owners (the?"ExecutiveL ! Committee") if the approval;of.the+ Executive.Committeeiis: j required under:the MAOA, subjectitoJther limitationsicontained - L herein,JPSNH, in;Isndering:the; services--provided'herein,Leay; > i _ arrange forftheLserviceslofisuch' executives,: financial 1advisersi: L accountants, attorneys, technical 5 advisers,tengineers r and:other' ; contractors (collectively:' Advisers'and Contractors") as11t3 1 1 p determines'in its discretion:arefnecessarytor.appropriateffor:the 1- . 4
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- - ~ - -- - --~.-- - . --- - -. . . .
1-1 1 l l 1 i rGndition of those services. N'othing in.this-Agreement or the MADA shall be construed to require-PSNH to terminate or abrogate
~
a cny contract or arrangement with.an Advisor'or Contractor ' l providing services to PSNH at the Time of Effectiveness. - i Section 1.5 - PSNH shall, at:all' times'during the term of ,
- this Agreement, perform the services providad for in this
, agreement in accordance with ths standard of1* Prudent Utility l Practice." As used herein, the_ term " Prudent' Utility Practice" _ j chall, at a.particu)ar time, mean any of'the tractices, methods , e or acts which, in the exercise of reascettia.jadgment in the - l . light of the facts known to PSNH a'. tne time the decision was' acde, could have been expected to accomplish the desired / result-
- :ct a reasonable cost and: consistent with_ licensing-and1 regulatory ~
j requirements',-environmental considerations,sreliability,isafety; , l cnd-expedition and-taking into: account.the interests'of-all Joint !- Dwners. In detarmining whether any practice,imethod_or1act is in'
- . cccordance with Prudent > Utility Practice,3 due
- consideration-shall' be given to tho' fact that.the design-and other aspects of the
- op3 ration of nuclear electric generating' units.involveithe opplication of advancing _ technology and_are subject _to=changingL ,
regulatory and environmental limitationsk Prudent'Utilityi Practice is not intended to be limited toLthe~ optimum practice,- method or act to the exclusion of:all~otherc-but ratner to oncompass n' spectrum of possible practices,. methods or-acts, including those involving the use of.new concepts or technology. Sectier i J - PSNH shall' cooperate to the extent reasonably r requested with the Oversight Committee of;the: Joint Owners,and-
-with the Ixwcutive Committee.
- Section 221 - Whenever PSNH is providing?a service to-NAESCO: hereunder which'is subject to guidelines,_ direction',~
limitations:or other provisions set forth in the'MAOA,;PSNH ogrees to be bound by, and'shall be entitled to:the. benefit.of, cuch provisions of the EAOA, subject'to the other provisions of - this Agreement. ARTICLE II . Services-to be Performed section 2.1,- NAESCO will.at-all_ times. remain primarily; responsible for- the management, operation land maintenancet of: 52abrook. Subject to the provisions of Article Icof this' Agreement,: PSNHi willi provide to' NAESCO,e to s the extent requested ' + by NAESCO, andJsubject at all-times;to the~ direction <and control , of NAESCO,'the following types-of'servicest- accounting,7 enefit b p lans an d-programs,; computer servi ces, emergency relay-and transmission maintenance services, emergency planning support, legal services, payroll, property tax support, insurance i 4 L, -,wJ,,. w -r.s :l u ...,*r . - . , , , , ,#w,c-ru.,--- ,. ...,,+c ,,v-%--wg, ..e.,, -= .aw.~,+, e-r-r w e ar- e e r--v^ 4W-
i administration and clairs adjustment, station service power supply (upon approval by the Jo. int Owners), dispatching and such other services as NAESCO may from time to time reasonably request i and which PSNH determines that it has the capability and ; resources to provide. I ARTICLE III Acreement to Pay for Services Section 3.1 - NAESCO agrees to pay to PSNH the cost, determined in accordance with Exhibit A attached hereto, of such services as are provided to NAESCO under the terms of this Agreement. Such payments will include reasonable compensation for necessary capital as permitted by Rule 91 of the SEC under the Act.
- Section 3.2 - All services rendered by PSNH under this Agreement will be at actual cost thereof, f airly and equitably allocated and calculated, all consistent with the requirements of the Act and the rules and regulations and orders thereunder.
Direct charges will be made for services where a direct allocation of cost is possible. Charges not directly assignable, including without limitation costs of capital, shall be determined and allocated on a reasonable and equitable basis in accordance with the requirements of the Act and as approved by NAESCO, which will not grant that approval without the prior approval of the Executive Committee o the Joint Owners (the
" Executive Committee *). Neither NAESCO's nor the Executive Committee's approval of cost allocation methods shall be unreasonably withheld. PSNH will not be obligated to provide services under this Agreement-if the method of allocation approved by NAESCO and the Executive Committee would be in-contravention of the Act, or the rules regulations or orders thereunder. The method of determining the cost of a particular service and the method of allocating that cost to NAESCO and the
- other customer companies of-PSNH-when such an allocation is necessary are set forth in Exhibit A hereto. Such allocation methods will be appropriately documented and available for review by NAESCO and the Joint Owners upon request. Without limiting the generality of the foregoing, allocable costs include executive salaries and fringe benefits paid by PSNH, the employee wages and benefits paid by PSNH, insurance expenses and other general overhead expenses incurred by PSNH.- PSNH shall keep complete and accurate accounts of all receipts and expenditures hereunder in accordance with the rules and regulations of the Securities and Exchange Commission and the Uniform System of Accounts prescribed for Public Utilities and Licensees subject to the provisions of the Federal Power Act, as amended from time to time.
e
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i l > i 3 Section 3.3 - By the twentieth day of-each calendar month, or the first business day thereafter, PSNH shall submit to NAESCO an invoice for services rendered in the. previous calendar-~ , month. All invoices-submitted by PSNH-shall be prepared-in= . Cecordance with Exhibit A hereto.- Monthly. charges may.be made-in-whole or in part for particular expenses on an estimated basis,
~
i cubject to adjustment. Each invoice.shall be payable'upon prosentation and'not later than 30 days after the receipt th9reof, and any amount not-paid on-such date shall bear interest ' frcm the date of invoice to the date of payment at an annual rate of two percent (2%) over the lowest (i.e. " base") rate charged,
- from time to time, by The First National Bank-of Boston on 90-day ccmmercial loans.
Eection 3.4 - All sales,-use, excise,. gross receipts . frenchise, or other similar. taxes which may be applicable-to the corvices to be performed.by PSNH-for NAESCO shall be paid by NAESCO; provided,;however, that no' federal, state or local income tex incurred by PSNH shall be paid by.NAESCO pursuant to this S0ction or otherwise. ARTICLE.IV i Access to Information section 4.1 - NAESCO and the Joint Owners shall: have the unrestricted right to all information in the control'of-PSNH rclating to PSNH's performance of its obligations hereunder for tha benefit of the Seabrook project-(the "Seabrook Information"),- whorever. located, except for information which is (1) protected by law, (ii) restricted by contract with. third parties, or (lii) dacced commercially sensitive by PSNH. If;the Seabrook Information requested is restricted by contract with third _ parties, PSNH Jill use its'best efforts'to obtain-the consent of tha third parties to disclose' confidential Seabrook Information= to NAESCO and to the Joint Owners, with the understanding that-NAESCO and the-Joint Owners may be required'to-execute a non- .; disclosure agreement'. If NAESCO or one.or more Joint Owners, ; rcquests Seabrook Information'which FSNH considers-commercially. consitive, PSNH shall allow an independent' third party, sclected ,
- by the. part'p?s involved (other than PSNH) and acceptable' to ' PSNH' )
(provided t'nac PSNH may not unreasonably; withhold its j ecceptance) to determine,'using an-inforwal -simplified i procedure, whether the Seabrook Information in question is: commercially sensitive.- In any. event, if: reasonable under the , circumstances, PSNH may require NAESCO and the Joint Owner (s)
~
d rsquesting the information to execute a non-disclosure agreement l
. covering information considered commercially sensitive:by-PSNH.
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f l J
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Y [ I - Section 4.2 - NAESCO acknowledges, on' behalf.of itself=and j i the Joint Owners, that PSNH-will have in its possession. information relating solely to its ownership: interest and power -
- entitlement in Seabrook and the transfer ofithat interest and. '
i entitlement to North Atlantic Energy Corporation. .PSNH and-NAESCO agree that the Seabrook'Information does notz include any-i such information. PSNH and NAESCO also agree ~that,the Seabrook-
- Information does-not include any information withinsthet possession of PSHH related solely to PSNH's performance of j services' for itself or its customer- companies other than NAESCO ,
j or solely to PSNH's billings for such-. services.. , Section 4.3 - Unless otherwise agreediamongLthe parties: involved,~ review of the SeabrookLInformatientunder this Article- i by either NAESCO or one or:more JointtOwners-shall occurDat- _ l ! PSNH's-general offices'at reasonable: times during= normal business j- hours, and shall'be arrange 4 in.edvancoramong,the parties; 4 involved. NAESCO and the Saint Owners shall.use reasonable' l efforts to' avoid. disrupting-PSNH's business operations.: f Section 4.4-- Upon request by NAESCO:or any Joint _ Owner, !
- PSNH, on behalf.of NAESCO, shall1 provide 1 technical ~ support to_ i
! NAESCO or any Joint Owner in: regulatory proceedings _and'other 1 contested matters relating to_PSNH's performance of its' u i obligations hereunder for-the: benefit offthe Seabrook! project, i including'the provision of witnesses and accurate data.on a=
- timely basis. Information,-includingLwitnassisupport, that;will "
1 require a-substantial. commitment of timeforLalsubstantialieffort
- to = assemble or develop, and is neither a) ? required
- by a t .- ;
substantialcnumber of Joint Owners nor b}Lrequested:byithe l Executive Committee,-shall?be paid ~for bytthe' Joint' Owner (s) l - requesting-such;information. NAESCO, in consultation 1withithe- [ Executive Committee,4 shall: develop a reasonable? standard:by;which. i_ it will determine how and when a Joint Owner is toibe charged.for) ! information requested. j' _ Section 4.5'-'Withoutilimiting the! generality 1of:this-Article IV, NAESCO, the Executive-Committee and;any Joint Owneri
- ma.yJrequest an-audit of the accountscand recordsLof PSNHJ 1 1- relating solely to the performance of PSNH's obligations under~ '
l this' Agreement at PSNH.'s1 offices,-.at reasonable! times', byJan [ independent public. accountant:or other representative;Lprovided that, absent.extraordinaryJcircumstances,:a: full-scope (audit-t shall..not'be performed at the requestiof NAESCO,rthe Executive L Committee or-any ofmthe JointLOwners-more frequently than'once
- each year,
- and provided further :that' any t such: audit shalli not . -
- include the right to examine-any
- accounts or recordssofDPSNH
- which are=not related'to.(i) PSNH's billingsftoLNAESC01 under this
j! -Agreement,:or-(ii) the; allocation of PSNH's: costs.to!NAESCO. :Ift any auditf is ' requested by the Executive Committee, the cost-
- thereof-shall be borne byLall Joint Owners in
- proporcion to their:
L . 3
.. , - , . . _ . , ,- -- ,- a ;, A .- - ---,~.~__-a,--,.w,_6%. . . . , - 4. il. _ - . . R
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- l ,
Ownership Shares. If an audit is request'd by one or"more,Tbst- -' loss than all of the Joint owners, tho'costsLthereof=shall:bei . borne by the Joint Owner (s) making such-request. - If'an: audit is- uj performed in-connection with~an; arbitration,/the costs of the-oudit shall be allocated-among_the Joint Owners:in accordance with the decision of the arbitrator.. Section 4.6 - NAESCO and anyLJoint 0wner shcIl have the-right to review the results of such portions of internal or independent audit report of:PSNH as:may_be related toe (1) PSNH's-billings to'NAESCO under this. Agreement or (ii) the allocation-of' - PSNH's costs-to NAESCO.- Section 4.7 - PSNH shallicooperate with the1AuditLCommittee - of the Joint Owners and provide such support and assistance to-the Audit Committee as mayLbe reasonably requested >from time to-time. ARTICLE-V Effective Date.-Termination and Modificational J section 5.1 -~The term;of this Agreement:shall commence at; tho Time of Effectiveness,. providod;that it has been executed by< NAESCO and PSNH, and:sh'all terminate on the dateltwo-years immediately-following the--Time of-,Effectivenesstunless"this; Agreement is terminatedEsooner:as provided in;Section 5.21 hereof; Notwithstandingithef foregoingi_the=termiof.--this Agreement may'be-- cxtended byxtwo years by mutual" agreement;.ofithe parties 1 hereto 1 prior tofthe termination-hereof. ;No such extension =shallJbecomei = ' offective unless-itfhas--been approved byHthres'or more1 Joint Owners: unaffiliated with'each other; owning collectively,60%;or; t more of the ownership.sharestin seabrook.' t section 5.2 -LThis Agreement.may beiterminated:-
.- ( i ) . ByLNAESCO, withouticause,:following a: Votei.of:
Joint owners with ct leastf 514 of .all ownership tshares ini - - 1 Soabrook to terninate:this? Agreement, providedEthatLNAESCOfgivesi 60 days = written notice of . such. termination' to. PSNH,5which' notice NAESCO shall be2obligatedLto-give-under such circumstances.- (ii) 'By NAESCO, with:e+use, upon Uritten-not'ce!to- i PSNH, following a vote _of-JointLOwners with at;leastt51L of all ownership sharesfin:Seabrooklto terminate thisfAgreementh
-provided,;howevern that'PSNH shail'have1acreasonable'~ ,
opportunity, notsto exceed-30-daysiafterithe=date;ofJsuch notice, to cure the' failure'of performance.1 (iii) ByyPSNH, without cause, at.any time,Lupon!60 days prior written notice-to NAESCO and-'the Joint Owners, provided~ _ se e . p w ,w"
4 f. !: o d V e
- q i
l ! that PSNH may not give such notice ofLtermination during the l first twelve months following: the Time.-of Ef fectin ness. 1 (iv): By PSNH, with cause, upon Fritten notice- to 1 NAESCO and the Joint Owners, provided, hot sver, that- NAESCO shall i have a reasonable opportunity, not to exceed 30. days after the
- aate of such-notice, to cure the failure of performance.- q i .
Section_ima - Either-party terminating:this Agreement shall i , ! give written notice of such termination to the other, party ._ i ! hereto, stating the date on which termination _is to occur (thel ' j ! ' Termination:Date"). - PSNH agrees to cooperate with:NAESCO to:~ l l accomplish the orderly _ transfer of.its responsibilities hereunder. , to any successor designated.by NAESCO.-
~
{ p a ! Eection 5.4 --If either NAESCO or PSNH terminates this: Agreement,-NAESCO shallDreimburse PSNH for_ direct: costs actually: i - j incurred resulting-from such: termination, unless thissAgreement- ~,
- is terminated for willful misconduct on-tho'partiof?PSNH as=
L described in Article VI-hereof.- PSNH shallifullycsubstantiate l all direct costs:actually and reasonably, incurred andJsupply { cupporting documentation _of~such: costs'in-reasonable: detail. -1
- PSNH shall'useLits;bestiefforts.to mitigate;the costs ofL. -l
[ termination.- Furthermore,Las al precondition-to any; termination hereof,; NAESCO shall. pay to PSNH onithe TerminationL Date all-
-1 l-4 amounts duezto PSNH hereunder-and sha11' execute andJdeliver to - ,
! PSNH such instruments-asLit may^ reasonably request-which; .. J j evidence the'. continuing 1 obligations:of=NAESCO and/or:'the Joint
- Owners-in accordance with Section 11 of.the"MADALand Article VI-hereof.
- section'3.5; -ThisfAgreement shall
- also beJsubjectitos i termination and shall_ terminate, without anyLaction:by either-.
I PSNH:or-MAESCO,Lto the extent-andlfrom'theEt imeLthatiperformance 1 j mayl conflict with thecAct or with/any_ rule, regulation)or' order
~
i
- - of the SEC adopted 1before
- or after;the making' hereof.
Notwithstanding :the foregoing, the parties: horeto ;willc use; [- 4 reasonable efforts;to l which are.ne.cessary fo, rnegotiate this Agreement any-amendments to comply toLthis 1with Agreement- the Actior-2 E any1 rule, regulation;or_orderathereunder.: Ifcthis Agreement 11s; i terminated under this provision,rPSNH andENAESCO shall fulfilli ; ; j - their obligations under Sections:5.3 and.5.4"of?this1 Agreement., R i .
- . Section 5.6
- -' Modifications' to theOcerms*of Lthian Agreement, n
!' including changes-in.the: scope:ofLthe? services 7 to_be1provided, , may be-made attany-time _only'by--written agreement between PSNH" + ! and NAESCO and1shallinot be inconsistentJwith the' requirements' - of the MAOA and theTJOA.
^
l-i- d: 4; 9 h'~t- - 4 es t '> m , 4mv9 e v r p. % i,-,. *r.9,w- w 'w w w. , y ,o .yp.., , - hv w e 4;.-ewer,-,.=ea- M e e r *=-v+++~veert br+ u rs"N '*wh*W6-r+-em** m - p -v4 M*W f
_g. ARTICLE VI Limitation of Liability and Set-off . Section 6.1 --For an1 1n-consideration of the fact thati PSNH is undertaking 10. responsibility-for.the services-provided-horein without compensation or charge other than-recovery of its -costs for those services,-neither NAESCO nor-any Joint Owner chall be entitled to recover from PSNH-or the~ directors',. trustees, officers, employees, agents or'affiliatosief PSNH-(or the directors, trustees, officers, employees or__ agents of such ,' offiliates) (collectively, the " Protected: Parties?) any damages-rosulting'from the performance or non-performance-of their rosponsibilities hereunder or:for any-dr. mage-to Seabrook,canyf curta11 ment of power, or any other damages of any kind,- including : direct, incidental,1 consequential, special,' indirect =or-
- punitive damages occurring:during the courselof the design, 3 engineering, procurement, installation,t- construction,. operation, maintenance, refueling or decommissioning of Seabrook or.
otherwise arising out of the performance ormnon-performance of-this Agreement, unless such damages--shall have resultedTdirectly from the willful misconduct.of-PSNH, Lor, to the extent legally-attributable to_PSNH,-directly from the willful misconduct ofLa-Protected Party. Notwithstanding the;above, neither?NAESCO nor any Joint Owner shall be entitled to recover any suchs damages if ouch damages result from PSNH's!or a_ Protected-Party's' actions. or omissions that have been' expressly approved-in advancochs the: Executive Committee or by the ' Joint: Owners. Section 6.2 _All goods and services providedito PSNH or-NAESCO for the benefit of Seabrook:bysa ProtectedfParty shall be under written contract having thetsame-limitation 4onrliabilityfas above; provided, however,xthat the'same limitation ons11 ability chall also apply even.if the goods and: services'are provided; without written contract. '
=1 Section 6.3 - The provisions.of this Article VI shallLapply_
notwithstanding_any provision of this Agreement--tojthe contrary-cnd shall survive: the expiration or termination"of this - ~ -Agreement. I Lection-6 1 - NAESCO's_ obligation to make. payments 1to PSNH-hareunder -is - absolute and unconditional ' and NAESCO, shallTnot be' H ontitled tol set off against_the-payments required-to be er.aeL hareunder any amounts: owed to:it.or any?of the Joint Owners by;, PSNH or'any affliiate of-PSNH or the amount of anySclaim-by: - NAESCO or any-of-the Joint Owners against PSNH or any. affiliates of PSNH. n
--l
Section 6.5 - All provisions of this Agreement providing for limitation of., or protection against, liability shall rpply to the full extent permitted by law, regardless of fault, and shall survive either termination pursuant to this Agreement or canec11ation. ARTICLE VII Assiennent ar.d Third Party Beneficiaries section 7.1 - This Agreement shall be binding upon and inure to the benefit of NAESCO, the Joint Owners and PSNH. Neither NAESCO nor PSNH shall assign its rights or obligacions hereundas eithout the prior written consent of the other. beetion "i.? - The previsions of this Agreement are solely for the benefit of NAESCO, PSNH and the Joint Owners and are not intonded to benefit or create rights in any third parties, except for the benefits accruing to Protected Parties under Section 6.1. ARTICLE VIII Miscellaneous S-etion B.1 - This Agreement shall be governed by and construed in accordance with the laws of the State of New Hampshire esgardless of any conflicts of laws provision to the contrary. SECTION B.2 - Except as provided in Section 1.5 hereof, 10 WARRANTIES OF ANY KIND, WHETHER STATUTORY, WRITTEH, ORAL OR IMPLIED (fuCLUDING, WITHOUT LIMITATION, WARRANTIES OF NERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE) SHALL APPLY TO THE SERVICES PERFORMED BY PSNH HEREUNDER OR TO ANY GOODS OR OTHER PROPERTY PROVIDED BY PSNH IN CONNECTION WITH SUCH SERVICES. The foregoing shall not be deemed to affect in any manner any we' anties provided by other vencors or suppliers. Section i - This Agretment, including the attached Exhibit A, co. .itute the entire agreement between PSNH and NAESCO governing all rights and obligations arising out of PSNH's performance of services i r NAESCO in connection with NAESCO's management, operation and maintenance of Seabrook. Egetion Bi4 - This Agreement shall be subject to approval of any federal or state regulatory body whose approval is a legal prerequisite to its execution, delivery, and performance. Section 8.5 - T1.3 work performed under this Agreement 1 ' shall, at all simes, be in accordance with applicable federal and state laws and regulations.
geetion 9.6 - The obligations of the Joint Chiners under this Agreement are several and not joint or joint and several.
- IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed, by their re:;pective officers thereunto duly authorized, all as of the day and year first above written. .
PUBLIC SERVICE COMPANY OF NEW MAMPSHIRE By A A- [Name F7anp[ d ,cc A - ' 3,,,,,, tTiti )ibcttnF ionicFCWohng CGeer JW'lA .. Oh NORTH ATIANTIC ENERGY SERVICE CORPORATION s agent for the Joint Owners of Seabrook By b ' Nb iNamQ Jonn F4g;e.g o_.__., gg,,g, [ Title) f vect tw.L VtCA lif 5tdtok- fdtLCl d h) 1bh G 4
Exhibit A Page 1 EXHIBIT A , DESCRIPTION OF METHODS _AND PROCEDURES FOR DETERMINING COST OF SERVICES WORK ORDERS FOR SERVICE There shall be purchase orders covering services to be performed by PSNH for NAESCO. These orders, which may be either general or specific, will specify the nature of the services to be performed thereunder in sufficient detail that charges therefor may be determined as herein provided and properly accounted for by NAESCO under the rules and regulations of the SEC and the prescribed Federal Energy Regulatory Commission (TERC) Uniform System of Accounts. CHARGES FOR SERVICES Soecifle Services Charges for specific services rendered to NAESCO will be made to specific work order numbers assigned to accumulate the charges applicable to particular activities. These charges will be made on the bases of benefits conferred and will include both direct and indirect costs involved in 9toviding the specific sorvices and reasonable compensation for necessary capital as permitted by Rule 91 under the Act. General Services Charges for general services rendered to PSNH, NAESCO and PSNH's other customer companies will be made to the appropriate general purchase order number assigned to accumulats the charges applicable to the particular activity. These charges will be made on the bases of benefits conferred and will includo both direct and indirect costs involved in providing the general services and reasonable compensation for necessary capital as permitted by Rule 91 under the Act. They will be allocated fairly and equitably to the companies receiving such general services. NATURE OF CHARGES AND METHOD OF ALI^ CATION - Direct Charoes Direct charges consist of those costs which can practicably be recorded separately and identified not only by purchase order number but also as to source, such as time reports or their
Exhibit A Page 2 4 equivalents for each employee, vehicle reports, invoices and other source documents. Time reports or their equivalents will be maintained for each employee, including officers, in such detail as may be appropriate for such employee and the natur1 of the services performed. Employees will record on their time reports or their equivalents hours chargeable to the appropriato purchase order numbers. Indirect Chareer or Overhead Eroenses Indirect charges or overhead expenses consist of all costs of PSNH, other thnr 4 tract charges described above. These charges may be clatsiO.td into the following two general categories:
- 1. General PSNH Overheqd; - These charges include costs which cannot be identified as applicable to a particular purchase order number and which must be allocated to the appropriate company on a fair and equitable basis. The following items are illustrative, and not all-inclusive, of the types of costs which may be so-allocated rents, office supplies and expenses; depreciation; building operation and maintenance; insurance; reasonable compensation for necessary capital; general services, such,as reprographic services, mailroom J services, etc.; employes benefits, including payroll -
related state and federal tax *s; and other general overheads. General PSNH overhead costs will be allocated to PSNH, NAESCO and PSNH's other custemer companies on the basis of the direct PSNH payroll costs charged to each such company.
- 2. Non-Productive Time Overheadt - Lost or nonproductive time for vacations, personal time off, sickness, holidays, etc.,
of all employees will be allocated to PSNH, NAESCO and PSNH's other customer companies on the basis of PSNH productive payroll costs charged to each such company. CHARGES TO NU SYSTEM COMPANIES Specific Services Charges for specific services recorded in the appropriate purchase order numbers, including overhead items, will be billed monthly to NAESCO. - General Services Charger for general services recorded in the appropriate purchase order numbers, including overhead items, will be i
- l. .. . .
Exhibit A Page 3 allocated among and billed monthly to NAESCO and PSNH's other customer companies on a fair and equitable basis. The bases may - include, but are not necessarily limited to, revenues, payroll costs, customers, electric peak load, or such other bases as ox rience may show will provide a more f air and equitable al ocation of charges. { RILL 1HG Bills will be provided to NAESCO in sufficient detail so as to identify the services rendered and permit proper accounting _ distribution of the charges under the rules and regulations of the SEC and the prescribed FERC Uniform System of Accounts, Datail on the bill will includes (1) the department or group providing the service; (2) function or type of service; and (3) nature of charges, whether direct or indirect (overhead).
COMPo#MED copy FIRST AMENDMENT TO SERVICE AGREEMENT Between PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE and NORTH ATLANTIC ENERGY SERVICE CORPORATION ' ACTING AS AGENT FOR THE JOINT OWNERS OF SEABROOK This FIRST AMENDMD4T, made as of the 2,9,t,hday of June , 1992, to the Service Agreement (the " Service Agreement") between Public Service Company of New Hampshire ("PSNH") and North Atlantic Energy Service Corporation ("NAESCO") acting as agent for the Joint Owners of Seabrook (the " Joint Owners"). WITNESSETH THAT: WHEREAS, the Service Agreement calls for PSNH to begin rendering services thereunder to NAESCO at 11:59 p.m. on the last day of the calendar month in which the final regulatory approval needed to effect the transition from the New Hampshire Yankee Division of PSNH to NAESCO as Managing Agent for the Seabrook nuclear generating unit ("Seabrook") is received; and WHEREAS, the language presently in the Service Agreement would delay PSNH's provision to NAESCO of services thereunder until the last day of a month; and VHEREAS, it is intended that PSNH begin rendering services to NAESCO simultaneously with the time when NAESCO assumes respontibility for the management, operation and maintenance of Seabrook: and
2 WHEREAS, NAESCO and the Joint Owners have agreed to amend the Seabrook Project Managing Agent Operating Agreement to allow themselves the flexibility to accomplish that transition at the earliest date possible, regardless of whether that date is the last day of a month: and WHEREAS, NAESCO and PSNH desire to make simila.' amendments to the Service Agreement so that PSNH may begin rendering services to NAESCO simultaneously with the time when NAESCO assumes responcibility for the management, operation and maintenance of Seabrook, regardless of whether that date is the last day of a month: NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, NAESCO and PSNH agree to amend the Service Agreement as follows:
- 1. The parenthetical statement at the end of the second WHEREAS clause is amended to read as follows:
(defined as the date of closing of the transactions necessary to accomplish the transfer o'f responsibility for the management, operation and maintenance of Seabrook from the New Hampshire Yankee Division ("NHY") of PSNH to NAESCO) l.
- 2. Section 5.1 is amended to add the following at the end thereof:
Promptly following the occurrence cf the closing of the transactions necessary to accomplish the transfer of responsibility for the management, operation and maintenance of Seabrook from ImY to NAESCO, NAESCO shall provide written notice to PSim advising it that the " Time of Effectiveness" occurred on the date of such closing. IN WITNESS WHEREOF, the parties hereto have ca01ed this First Amendment to be duly executed, by their respect 1\tt, officers thereunto duly authorized, all as of the day and year first above written. PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE By: Name: J & M
Title:
g,3 O b 9 (Cd A-- l Mf9dcni 4 CNc4 C(crcd1 C#Kcr I Attest: Obib. b
4-NORTH ATLANTIC ENERGY SERVICE CORPORATION, as agent for the Joint Owners of Seabrook By:
" == :
Titiri t 2Rn fyecu4.ur ope A_hes[&nf
- u. vec t - )Jucicar Attent:
bit h \ 4
CONFORMED COPY ASSIGNMENT AND ASSUMPTION AGREEMENT THIS AGREEMENT, made as of this 29th day of June,1992 between Public Service Company of New Hampshire, a New Hampshire corporation, of 1000 Elm Street, Manchester, New Hampshire, acting individually and through its New Hampshire Yankee Division ("PSNH"), in either case in the capacity of agent, managing agent, project manager and operator (such roles being collectively referred to herein as " Managing Agent") for the Participants (as defined herein), and North Atlantic Energy Service Corporation ("NAESCO"), a New Hampshire corporation, of Lafayette Road, Seabrook, New Hampshire, acting as successor Managing Agent for the Participants. WITNESSETH WHEREAS, the Agreement for Joint Ownership, Construction and Operation of New Hampshire Nuclear Units dated as of May 1, 1973, as amended (the " Joint Owntiship Agreement *), among PSNH and the other Participants as defined therein (together with their respective successors and assigns, collectively, the
" Participants") with respect to the Seabrook nuclear generating project (the "Seabrook Plant") confers upon PSNH certain rights and obligations as Managing Agent for the Seabrook Plant; and i,,, ... .............r....
...n. . - . . . . . , - - - - . . . . . . - . . .
WHEREAS, in 1984 PSNH created its New Hampshire Yankee Division ("NHY") to perform its role as Managing Agent for the Seabrook Plant; and WFEREAS, Northeast Utilities Service Company, as agent for NAESCO, and Participants with a collective 70.60921 percent ownership interest in the Seabrook Plant have entered into an agreement dated as of July 19, 1990 (the " July 19, 1990 Agreement") which calls for NAESCO to assume from NHY the Managing Agent's role for the Seabrook Plants and WHEREAS, pursuant to the terms of the July 19, 1990 Agreement, Participants with a collective 72.96695 percent ownership interest in the Seabrook Plant have entered into a Seabrook Project Managing Agent Operating Agreement, dated as of the date hereof, as amended by a First Amendment to Seabrook Project Managing Agent Operating Agreement dated as of the date hereof (the "MADA"), which appoints NAESCO as Managing Agent for the Seabrook Plant and which directs PSNH to effect the assignment to NAESCO of the responsibilities of PSNH under all outstanding contracts and agreements relating to the Seabrook Plant which have been entered into by PSNH either expressly or implicitly on behalf of all Participants; and
l l l l WHEREAS, PSNH is a party to and/or holds certain contracts, agreements, purchase orders, leases, easements, governmental permits, approvals and licenses, and other tangible and 1 l intangible property, in its role as Managing Agent for the Seabrook Plant; and WHEREAS, PSNH desires to assign to NAESCO all of its right, title and interest in, to and under all contracts, agreemento, purchase orders, leases, easements, governmental permits, approvals and licenses and other tangible or intangible property held by it or to which it is a party as Managing Agent for the Participants; and WHEREAS, NAESCO desires to assume from PSNH all obligations of PSNH as Managing Agent for the Participants; and WHEREAS, this Agreement is intended to effect such assignment and assumption: NOW, THEREFORE, in consideration of the foregoing, the parties agree as follows:
- 1. Ar.signment and Acceptance of Seabrook Agreements, Permits, Managing Agent Rights and Other_ Property. PSNH does hereby assign, transfer, grant, convey and deliver to $1AESCO, its
l
-4 successors and permitted assigns,.and NAESCO, for itself and l
its successors and permitted assigns, does hereby accept, both such assignment and acceptance beir.g subject to the receipt of any necessary authorization, approval or consent from any third party, (a) all right, title and interest of PSNH, as Managing Agent for the Participants, in, to and under all contracts, agreements, purchase orders, leases, easements and governmental permits, approvals and licenses with respect to the Seabrook Plant (collectively hereinafter called " Agreements and Permits"), whether such ; property is owned, held or used by the Participants or by PSNH or any other agent for or on behalf of the Participants, including, without limitation, all Agreements and Permits granted by any state or local authority or any other person in the State of New Hampshire and the commonwealth of Massachusetts with respect to the Radiological Emergency Response Plan for the Seabrook Plant; (b) all rights, privileges, easements, prerogatives, discretionary rights and authorizations of PSNH, as Managing Agent for the Participants, with respect to the Seabrook Plant, as provided by the Joint Ownership Agreement; and (c) all right, title and interest of PSNH, as Managing Agent for th6 Participants, in, to and under all other tangible or , intangible property, whether such property is owned, held or used by the Participants or by PSNH or any other agent for
or on behalf of the Participants; including rights in real property located in the municipalities of Brentwood, East , Kingston, Exeter, Greenland, Hampton, Hampton Falls, Kensington, Kingston, New Castle, Newfields, Newton, North Hampton, Portsmouth, Rye, Seabrook, South Hampton and Stratham; but excepting and excluding, however, and reserving to PSNH, its successors and assigns, all rights, licenses and authority of PSNH, in its own capacity and not as an agent for the Participants, under the Certificate of Site and Facility, Commission Report and f 'er 11,267 (the " Certificate") issued by the New Hampshire Public Utilities Commission on January 29, 1974 which relate to the authority to do business as an electric utility in the Towns of Seabrook, Hampton, Hampton Falls, South Hampton, Danville, Kensington, East Kingston and Kingston for the purpose of transmitting electricity and constructing, operating and maintaining the transmission lines which ar'.> not between the plant and the switch yard and the overhead river crossings addressed in the certificate; and also excepting and excluding all special rights, privileges, easements, prerogatives, discretionary rights and authorizations (i.e., those not enjoyed in common hy all Participants) formerly held by PSNH as a lead Participant or an Original Participant or otherwise '(but not those. held by PSNH as Managing Agent) with respect to the Seabrook Plant, as
~
-i i
provided by the Joint ownership Agreement or otherwise, ' which rights, privileges, casements, prerogatives, l discretionary rights and authorizations have been conveyed to North Atlantic Energy Corporation by Deed and Bill of Sale (the "PSNH/NAEC Deed") dated June 3, 1992, recorded in the Fockingham County, New Hampshire, Registry of Deeds (the
" Registry") at Book 2928, Page 1003.
- 2. Assignment and Acceptance of Exclusion Area Rights. PSNH does hereby assign, transfer, grant, convey and deliver to I
NAESCO, its successors and permitted assigns, and NAESCO, for itself and its successors and permitted assigns, does hereby accept, all rights and authorP y (the " Exclusion Area Rights") to determine all activities (including exclusion l and removal of personnel and property) as is required to qualify land witPin the First and Second Unit Site and the l Adjacent Property (as such terms are defined and as such Exclusion Area Rights were reserved to PSNH in the PSNH/NAEC Deed) (including, without limitation, the land encumbered by the easement of PSNH for transmission lines on said Adjacent Property), such land being located in the Towns of Seabrook and Hampton Falls, New Hampshire, as an " exclusion area" as defined in the regulations of the Nuclear Regulatory Commission (10 CFR 100) with respect to the Seabrook Plant, and to exercise control over and to exclude any and all
persons and property from such exclusion area, if so required, pursuant to the Atomic Energy Act of 1954, as - amended (or other comparable legislation) and regulations of the Nuclear Regulatory Commission (or other comparable regulations) to protect the public health and safety, and NAESCO, for itself and its successors and permitted assigns, agrees to be bound by the covenants entered into by PSNH in its deeds to other Participants dated September 12, 1979 and October 16, 1981, recorded in the Registry at Book 2348, Page 287 and Book 2400, Page 117, respectively, and in the PSNH/NAEC Deed with respect to such qualification, and that the Exclusion Area Rights will be exercised in such a m'anner as may be necessary to maintain such qualification in full force and effect. Without limiting the generality of the foregoing, the Exclusion Area Rights include those rights granted to PSNH by The Boston and Maine Corporation under an agreement dated March 31, 1986 between The Bosten and Maine Corporation and the Participants and those rights granted.to PSNH by Exeter and Hampton Electric Company under an agreement dated May 29, 1986 between Exeter and Hampton Electric Company and the Participants.
- 3. Assumotion'of oblications and Liabilities. NAESCO,, acting as Managing Agent for the Participants, hereby assumes and in connection therewith agrees to pay, discharge and perform e
l
.g.
l
~
i all of PSNH's obligations and liabilities with respect to , all of the interests transferred to NAESCO by this Agreement, but excepting and excluding, however, all of PSNH's obligations under the Certificate to indemnify and save harmless the State of New Hampshire, the commissioner of Public Works and Highways and the Commissioner of the Department of Resources and Economic Development from any liability relating to the rights excluded from the transfer to NAESCO described in paragraph 1.
- 4. Reeresentat12na. PSNH, acting as Managing Agent for the Participants, hereby represents and warrants that all of its rigi. . title and interest in, to and under the assets assignett hereby is free and clear of any recorded or filed lien, that such interest has not been previously assigned or pledged, and that PSNH, acting as Managing Agent for the Participants, will warrant and defend such interest against the claims and demands of others claiming by, through or under PSNH as auch Managing Agent.
- 5. Further Actions. PSNH hereby covenants and agrees that it will execute, deliver and acknowledge (or cause to be executed, delivered and acknowledged), from time-to, time at the request of NAESCO and without further consideration, all such further instruments of conveyance, transfer, assignment
I l l l and further assurance and perform or cause to be performed all such other acts as may reasonably be required in order
- to vest in and confirm to NAESCO the_ title of /SNH as Managing Agent for the Participants to, and its right to use and enjoy, the assets agreed to be and intended to be conveyed to NAESCO hereunder.
- 6. Ano11 cable Law. This Agreement shall be construed and enforced in accordance with the laws of the State of New Hampshire.
- 7. Bindino Acreement Successors and Assiona. This Agreement shall be binding on and inure to the benefit of the parties hereto and their respective successors and permitted assigns. NAESCO acknowledges that a successor Managing Agent may only be appointed, and NAESCO's rights hereunder may only be assigned to such a successor, in accordance with the Joint Ownership Agreement and the MAOA.
i-..-,,.
i IN WITNESS WHEREOF, each of the parties hereto has caused this agreement to be executed on its behalf by its duly authorized officer, all an of the day and year first above written. PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, individually and through its New Hampshire Yankee Division, in either case as Managing Agent for the Participants ATTEST By I b- h Names Ted C. Fdgenbaum
Title:
Senior Vice President and Chief Nuclear Officer C Li a d n -1, $ uAle f g "Witneis NORTH ATLANTIC ENERGY SERVICE CORPORATION, as successor Managing Agent for the Participants
; ATTEST By ~[ b Names n 7, og gc
Title:
VECLthvt \Acc )(CSdc/d - Aktelecu-W Witness s 0 1 4 4
STATE OF New Hampshire )
) .s s :
COUNTY OF Rockingham ) . The foregoing instrument was acknowledoed before me this M day ofOuq, 1992 by Ted C. Feigenbaum, Senior Vice President and Chief Nuclear Of fice: of Public Service Company of New Hampshire, a New 1:ampshire corporation, on behalf of the corpo, ration, including its New Hampshire Yankee Division. Swk?S$w a Notary Public My Commission Expires 2/28/95 STATE OFCconeck1Cu4 ) ss: COUNTY OF4MLrNot\ ) ) The foregoing instrument was eknowled day of Jare,1992 byJohn F. CWko ,[yecu.hve.ged Vcc ~Pusdent before me this IN Mucleaf of North Atlantic Energy Service Corporation, a New Hampshire corporation, on behalf of the corporation. 6dti _
'>>f " Y Notary Pub My Commission Expires
%ComreirolonBqhs Mush 41,383 e
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