ML20148D378
| ML20148D378 | |
| Person / Time | |
|---|---|
| Site: | Crystal River  |
| Issue date: | 05/23/1997 |
| From: | Purdue S FLORIDA POWER CORP. |
| To: | NRC OFFICE OF INFORMATION RESOURCES MANAGEMENT (IRM) |
| References | |
| NUDOCS 9705300181 | |
| Download: ML20148D378 (29) | |
Text
7 Florida Power CO R PO R ATIO N May 23,1997 U. S. Nuclear Regulatory Commission Attn: Document Control Desk Washington, D.C. 20555
Dear Sir:
Enclosed is the most recent version of Florida Power Corporation's Amended and Restated Nuclear Decommissioning Trust Agreement. Please include this update with our financial assurance certification which was filed in July 1990.
If you have any questions, please contact me at (813) 866-5486.
Sincerely, kg Starr H. Purdue Manager, Trust investments SHP/dlt Enclosure c:
J. A. McClure, lil R. M. Bright k:treasurythphucmischrctrust.97 9705300101 970523 PDR ADOCK 05000302 I
GENERAL. OFFICE: 3201 Thirty-fourth Street South
- P.O. Box 14042 St. Petersburg a Florida 33733-4042 + (813) 866-5486
%h pair, tea ar, recycnososper
stuG 2 4 ISH FLORIDA POWER CORPORATION AMENDED AND RESTATED NUCLEAR DECOMMISSIONING TRUST AGREEMENT s
EFFECTIVE SEPTEMBER 1,1994 1
i i
TABLE OF CONTENTS i
PAGE I
i 1:
NATURE AND DURATION OF THE TRUST....................3 f
4..
Name...........................................
3 1.2 Desception of Two Separate Trust Funds.....................
3.
l
- 1. 3 Nat u re...........................................
3 I
1.4 Duration
......................................4 2.
PARTICULAR COVENANTS OF THE COMPANY.................
4 2.1 Instruments of Further Assurance
..........4 2.2. Appointment of Successor Trustee........................... 4 2.3 Notice of Ruling Amounts..
.............................4 I
2.4 Company...............
4 i
3.
ADMINISTRATION OF TRUST FUNDS........................
5 3.1 Initial Transfer 5
3.2 Additional Contributions...............................
5
!j 3.3 Subsequent Adjustments...............
................5 3.4 Trustee as Custodian..................................
5 l
3.5 Investment Manager Appointment........................... 6 3.6 Company Directed Investment Accounts......................
7 i
3.7 Withdrawal of Trust Monies.............................
7 3.8 Prohibited Transactions................................
9 3.9 Tax Returns and Other Reports 10 l
i t
4.
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER 10 4.1 Company May Consolidate, etc., on Certain Terms 10 t
+
t I
r 8
1 i
i TABLE OF CONTENTS (Continued) i 1
5.
TH E T R U STEE........................................ 10 5.1 Acceptance of Trust; Certain Terms of Trust 10 l
5.2 Fiduciary Responsibility..........
13 5.3 Entities Eligible for Appointment as the Trustee 13 5.4 Resignation and Removal............................... 14 5.5 Appointment of Successor to the Trustee......................
14 5.6 Acceptance of Appointment by Successor Trustee 14 l
5.7 Merger or Consolidation of the Trustee 15 1
I 6.
DISTRIBUTION OF ASSETS UPON TERMINATION 15 6.1 Final Distribution.................................... 15 7.
DEFINITIONS AND GENERAL PROVISIONS..........
15 l
1 7.1 Defined Terms 15 7.2 Compliance Certificates and Opinions..............
17 l
7.3 General Provisions................................... 17 8.
MISCELLANEOUS 18 l
l 8.1 Alterations and Amendments............................. 18 8.2 Applicable Law...........................
18 8.3 Effect of Headings 18
- 8. 4 Cou n te rparts....................................... 18
7;_____
FLORIDA POWER CORPORATION AMENDED AND RESTATED NUCLEAR DECOMMISSIONING TRUST AGREEMENT l
' THIS AMENDED AND RESTATED. AGREEMENT, effective September 1,
1994
(" Agreement"), entered into between FLORIDA POWER CORPORATION, a Florida corporation having its principal office in St. Petersburg, Florida (the " Company"), and STATE STREET BANK AND TRUST COMPANY, a banking corporation having its principal office in Boston, Massachusetts (the " Trustee"), is an amendment to and a restatement of the terms and provisions of that certain trust agreement dated March 10, 1988, which established a qualified nuclear decommissioning trust fi.d and a nonqualified nuclear decommissioning trust fund for the Company's interest in a nuclear reactor, Crystal River Unit No. Three (the " Unit").
WHEREAS, the Company owns an undivided 90.45% interest in and operates the Unit, which activity is performed pursuant to an Operating License, No. DPR-72, dated December -
t 3,1976, as amended, issued by the United States Atomic Energy Commission, now the Nuclear i
Regulatory Commission (the "NRC"), which by its term expires on December 3,2016; and WHEREAS, the Company desires to maintain the Qualified Trust Fund and the I
Nonqualified Trust Fund herein described as a means of financing the decommissioning of the Company's nuclear unit in accordance with the Rules and Regulations of the NRC and to assure the Company's financial ability to meet the obligations to the NRC, other applicable regulatory -
bodies, the general public and the Company's ultimate customers in connection with said decommissioning; and WHEREAS, the Internal Revenue Code of 1986 (as from time to time amended, the
" Code") incorporated several sections relating to the costs incurred for the decommissioning of a nuclear reactor, including a new Section 468A (as from time to time amended, "Section 468A") which, among other things, permits the owner of a nuclear reactor to elect the application of Section 468A and thereby be allowed as a deduction, subject to certain' limitations and qualifications, the amount of payments made to a Nuclear Decommissioning Reserve Fund (as defined in Section 468A); and 1
s l
l l
j WHEREAS, the Company has previously made such an election pursuant to said Section 468A and has previously created two separate trust funds, one of which will comply with the requirements of said Section 468A; and WHEREAS, the Company has determined that, in order to prov;de for the efficient administration of said trust funds and to obtain the maximum benefits of Sections 468A, it is l
l desirable to enter into this Agreement; and i
l WHEREAS, this Agreement is entered into for the purpose of appointing a successor
]
trustee and amending certain provisions of the trust agreement dated March 10,1988; and WHEREAS, State Street Bank and Trust Company is willing to assume the responsibility of Successor Trustee under this Agreement; and WHEREAS, all conditions and requirements necessary to make this Agreement a valid and legal instrument, in accordance with its terms and for the purposes herem expressed, have been performed and ful611ed and the execution and delivery hereof have been duly autLorized.
NOW, THEREFORE, in consideration of the mutual promises herein contained, and of other goods and valuable consideration, the receipt whereof is hereby acknowledged, and for the j
purposes of continuing the Qualified Trust Fund and the Nonquali6ed Trust Fund herein described and securing the faithful performance and observance of the covenants and conditions hereinafter set forth, the Company has executed and delivered this Agreement to the Trustee, and to its successor or successors in trust, and said Trustee does by these presents agree, on behalf of itself and its successor or successors in trust, to hold all property and rights conveyed to it or them pursuant hereto upon the Trust and subject to the conditions herein set forth.
And it is hereby covenanted, declared and agreed, upon the Trust and for the purposes aforesaid, as set forth in the following covenants, agreements, conditions and provisions, vis.:
2 l
l l
1.
NATURE AND DURATION OF THE TRUST.
1.1 Name The trust shall be named the " Florida Power Corporation Nuclear Decommissioning Trust" (hereinafter referred to as the " Trust"), and the separate trust funds hereunder shall be named the " Qualified Trust Fund" and the "Nonqualified Trust Fund".
I 1.2 Descriotion of Two Senarate Trust Funds. The Trust shall be made up of separate funds further described as follows:
l (a) The " Qualified Trust Fund" shall be a Nuclear Decommissioning Reserve Fund as l
defined in Section 468A and shall at all times be administered in accordance with such Section l
and shall consist of monies contributed by the Company for decommissioning the Unit plus l
earnings on such monies, which monies are specified in a Schedule of Ruling Amounts with l
respect to the Unit.
(b) The "Nonqualified Trust Fund" shall consist of monies contributed by the Company for decommissioning the Unit plus earnings on such monies, but only to the extent such monies are not contributed to and maintained in the Qualified Trust Fund.
The Trustee shall maintain within the Qualified Trust Fund and the Nonqualified Trust Fund such subaccounts as may from time to time be directed by the Company.
l l
l Except as otherwise specifically provided, all of the Qualified Trust Fund and the l
Nonqualified Trust Fund shall be administered and disposed ofidentically as provided below in j
this Agreement. The assets of the Qualified Trust Fund will bnly be disposed ofin a manner which complies with Section 468A.
...V. a l.3 Nature. The Trust, established pursuant to the terms of a certain trust agreement executed on March 10, 1988, which is amended and restated by this Ar,reement, is irrevocable by the Company and the Trust hereunder is intenaed only to make assured provision for all, or as great a portion as possible, of the expenses associated with the decommissioning of the Unit following the cessation of commercial operation thereof.
The Trust is independent of the Company and will hold and disburse, in accordance with the provisions hereof, the monies collected for the contemplated decommissioning of the Unit.
3
1.4 Duration. Each of the trust funds hereunder shall extend until the earlier of: (1) the exhaustion of all monies in the respective trust fund at a time when the Company is under no further obligation to make deposits under any Regulatory Order or (2) the substantial completion of the decommissioning process for the Unit as evidenced by an appropriate order, license expiration or other act of the NRC.
Upon termination of a trust fund hereunder, any then remaining trust fund assets shall be distributed as provided in Article 6 below.
2.
PARTICULAR COVENANTS OF THE COMPANY.
The Company hereby covenants as follows:
2.1 Instruments of Further Assurance. The Company will execute and deliver such further instruments and do such further acts as it considers necessary or proper to carry out more effectually the purposes of this Agreement or to transfer to any successor Trustee or Trustees the assets held in trust hereunder.
i 2.2 Annointment of Successor Trustee. Whenever necessary to avoid or fill a vacancy 4
in the office of Trustee, the Company will, in the manner provided in Section 5.5, appoint a successor Trustee so that there shall at all times be a Trustee hereunder which is eligible and qualified in accordance with the provisions of Section 5.3.
2.3 Notice of Ruling Amounts. The Company has obtained a Schedule of Ruling Amounts with respect to its contributions to the Qualified Trust Fund as provided for in Section 468A and has provided the Trustee with a copy of such schedule. The Company will promptly provide the Trustee with a copy of any subsequent revisions to such schedule.
2.4 Company Representatival. Promptly after the delivery of this Agreement, the Investment Committee of the Trust. appointed by the Board of Directors of the Company, will designate certain individuals to act on its behalf in any transactions authorized or required to be performed by the Company hereunder, except any such transactions with respect to which this Agreement specifies who shall act on behalf of the Company. The Company shall provide the 4
~
Trustee with a written statement setting forth the names and specimen signatures of such individuals.
3.
ADMINISTRATION OF TRUST FUNDS.
3.1 Initial Transfer. After execution of this Agreement, and on or after September 1, 1994, the Company shall cause to be transferred to the Trustee the assets held in the Trust as of August 31,1994, as fully described in the NationsBank of Florida Accounting and Investment Review List of Account Assets as of August 31,1994, a copy of which will be made a part of this Agreement and attached hereto as Exhibit " A", together with written instructions as to the proper allocation thereof between the Qualified Trust Fund and the Nonqualified Trust Fund.
Upon receipt of said instructions, the Trustee will credit the assets as directed.
l 3.2 Additional Contributions. The Company shall make additional contributions to the Trust from time to time in accordance with any applicable Regulatory Orders as may then be in effect with respect to the estimated costs of decommissioning the Unit and such contributions shall be allocated to the Qualified Trust Fund and the Nonqualified Trust Fund in accordance with the Schedule of Ruling Amounts as then in effect.
3.3 Subsecuent Adiustments. The Trustee and the Company understand and agree that the contributions made by the Company to the Qualified Trust Fund may from time to time exceed the amount permitted to be paid into such Trust Fund pursuant to Section 468A and any regulations thereunder, based upon changes in estimates, subsequent developments or any other event or oc:urrence which could not reasonably have been foreseen by the Company at the time such contribution was made (" Excess Contribution"). Upon receipt of an Officers' Certificate setting forth the amount of an Excess Contribution and stating that such Excess Contribution should be transferred to the Nonqualified Trust Fund or paid to any person or entity, including the Company, the Trustee shall transfer or pay such Excess Contribution including the earnings and appreciation thereon, as the case may be, to the Nonqualified Trust Fund, or to the person or entity specified by the Company in the Officers' Certificate.
3.4 Trustee as Custodian. Except with respect to any investment account of which it is acting as Investment Manager pursuant to Section 3.5 hereof, the Trustee shall be released and relieved of all investment duties, responsibilities and liabilities customarily or statutorily 5
I incident to a trustee with respect to the trust funds hereunder, and as to such trust funds the l
Trustee shall act as a directed Trustee.
Notwithstanding the foregoing paragrapii, the Trustee shall, to the extent any assets of the trust funds have not been in"ested by an Investment Manager or the Company as of the end of any business day, invest such uninvested assets of the trust funds overnight as the Company or such Investment Manager may direct in writing, which may be standing directions, subject l
to the limitations in Section 3.8 hereof.
3.5 Investment Manager Annointment. The Company, from time to time, may appoint l
one or more independent Investment Managers, which may include the Trustee, pursuant to a j
written investment management agreement describing the powers and duties of the Investment Manager, to direct the investment and reinvestment of any portion of either trust fund hereunder (hereinafter referred to as an " Investment Account").
The Company shall be responsible for ascertaining that any Investment Manager is duly l
qualified to serve in that capacity.
l l
The Company shall furnish the Trustee with written notice of the appointment of each Investment Manager hereunder, and of the termination of any such appointment. Such notice shall specify the assets which shall constitute the Investment Account for such Investment Manager. The Trustee shall be fully protected in relying upon the effectiveness of such appointment and the Investment Manager's continuing qualification to serve until it receives written notice from the Company to the contrary. The Investment Manager shall certify the identity of the person or persons authorized to give instructions or directions to the Trustee on its behalf including specimen signatures. The Trustee may continue to rely upon all such certifications unless otherwise notified in writing by the Investment Manager.
The Trustee shall conclusively presume that each Investment Manager, under its investment management agreement, is entitled to act, in directing tF.: investment and l
reinvestment of the Investment Account for which it is responsible, in its sole and independent l
discretion and without limitation. The Trustee shall have no responsibility to determine that investment directions are within the scope of the authority given to an Investment Manager by the Company, except to the extent that the Company and Trustee have agreed in writing.
l 6
l
m The Trustee shall have no liability (i) for the acts or omissions of any Investment Manager; or (ii) for following investment directions of an Investment Manager.
An Investment Manager shall certify, at the request of the Trustee, the value of any securities or other property held in any Investment Account managed by such Investment Manager.
3.6 Comnany Directed Investment Accounts. The Company may from time to time direct the Trustee in writing to segregate all or a portion of either trust fund hereunder into one or more separate investment accounts with respect to which the Company shall have the powers and duties granted to an Investment Manager under this Agreement, such accounts to be known as Company Directed Accounts. In addition, during any time when there is no Investment Manager with respect to any portion of either trust fund hereunder (such as before an investment management agreement takes effect or after it terminates), such portion shall be deemed to be a Company Directed Account.
Whenever the Company is directing the investment and reinvestment of any assets held hereunder, the Company shall have the powers and duties which the Investment Manager would have under this Agreement if an Investment Manager were then serving and the Trustee shall be protected under this instrument as if it had relied on the directions of an Investment Manager.
3.7 Withdrawal of Trust Fund Monies.
(A) Upon compliance with the requirements and subject to the restrictions of this Section, monies held by the Trustee in either trust fund hereunder may be withdrawn as directed by the Company exclusively for the following purposes:
(1) To reimburse the Company for expenditures made by it which constitute part of the Decommissioning Costs of the Unit, or to pay obligations incurred which, when paid, will constitute part of the Decommissioning Costs.
(2) To pay administrative costs pursuant to Section 468A (including taxes, reasonable out-of-pocket expenses and trustees' fees) and other incidental expenses of the Trust (including legal, accounting and actuarial expenses, and investment management fees).
7
I l
(3) To transfer Excess Contributions from the Qualified Trust Fund to the i
Nonqualified Trust Fund pursuant to Section 3.3 hereof.
j (4) To make a final distribution from the Trust pursuant to the provisions of
)
Article 6 hereof.
j Any amounts withdrawn from either trust fund hereunder under (1) or (2) above shall, unless otherwise ordered by any governmental regulatory agency havingjurisdiction, be allocated proportionately between such trust funds to the extent that such expenses or disbursements are attributable to both trust funds. In no event shall any amount be withdrawn from the Qualified Trust Fund for any purpose which would cause the disqualification of such trust fund from the application of Section 468A or violate Internal Revenue Code Section 4951 relating to self-dealing.
In computing the amount which may be withdrawn under clause (1) above, the gross amount of an expenditure or obligation shall be reduced by any refunds or payments received by the Company with respect thereto.
Any such refund or payment received after the certification of the expenditure or obligation to which it relates and which has not previously been taken into account shall be applied within three months after its receipt to reduce the amount of a withdrawal made under this Section or be redeposited in the trust fund from which the withdrawal was made. The right of the Company to make withdrawal pursuant to this Section is in no way contingent upon compliance with the covenants in Article 2 hereof.
(B) A withdrawal under this Section shall be paid upon receipt by the Trustee of:
(1) An Officers' Certificate dated the date of the withdrawal application:
l (a) stating the amount to be withdrawn, the purposes for which the amount is to be used and the trust fund or trust funds from which the amount is to be withdrawn; (b) specifying in reasonable detail by general classification the underlying items of expenditures and obligations (after giving effect to any deduction j
required under subsection (A)) which will constitute part of the Decommissioning l
Costs of the Unit or administrative costs of the Trust and stating that such l
8 i
4 expenditures constitute, or obligations when paid will constitute, part of the Decommissioning Costs of the Unit or administrative costs of the Trust as evidenced by the invoice, contracts or agreements attached thereto and that none of such expenditures and obligations has been made the basis of a prior withdrawal under this Section; (c) stating that no regulatory approval for such withdrawal is necessary or, if at any time the making of withdrawals herefrom becomes subject to the jurisdiction of any governmental regulatory agency, stating that such regulatory approval has been obtained.
(d) stating that all such amounts may be paid from the Trust without causing the Qualified Fund to become disqualified from the application of Section 468A of the Code or any applicable successor provision.
3.8 Prohibited Transactions. Notwithstanding anything contained in this Agreement to I
the contrary, the Trustee may not authorize or carry out any sale, exchange or other transaction with respect to the Qualified Trust Fund which would constitute an act of "self-dealing" within the meaning of Section 4951 of the Code, as such section is made applicable to the Qualified Trust Fund by Section 468A(e) (5) of the Code, any regulations thereunder, and any applicable j
successor provision. If the Trustee engages in an act of "self-dealing" in violation of this Agreement, the Trustee (and not the Qualified Trust Fund) shall be liable for any tax imposed pursuant to Section 4951 of the Code as such section is made applicable to the Qualified Trust Fund or the Trustee.
1 The Trustee reserves the right not to comply with any written instructions of the Company or an Investment Manager which in the judgment of the Trustee reasonably exercised will involve an act of "self-dealing" under Section 4951 of the Code, until the Company provides the Trustee with an opinion of legal counsel that the actions directed in such instructions do not constitute an act of "self-dealing" within the meaning of Section 4951 of the Code. The opinion of such counsel shall be full and complete authorization and protection in respect of any action j
taken in accordance with the written instructi';as of the Company or an Investment Manager and, notwithstanding anything contained ia t!is Agreement to the contrary, the Trustee shall not be liable in thereafter following such instructions, and the Company shallindemnify Trustee for any resulting liability under Section 4951 of the Code for acting on such written instructions.
9
\\
j 3.9 Tax Returns. The Company shall cause appropriate Federal and State tax returns with respect to income earned by the Qualified Trust Fund to be prepared and filed and, except as provided in Section 3.8, the Trustee shall pay out of the Qualified Trust Fund any taxes shown to be due. The Company shall also cause to be prepared and filed such other tax returns as may be required with respect to income earned by, or the assets of, either trust fund hereunder and the Trustee shall pay any taxes due thereon out of the respective trust funds at l
the direction of the Company.
i I
4.
CONSOLIDATION. MERGER. CONVEYANCE OR TRANSFER.
4.1 The Company May Consolidate. etc.. on Certain Terms. Subject to compliance with the provisions of this Article, nothing in this Agreement shall prevent any consolidation or merger of the Company with or into any other entity or entities, or the conveyance or transfer of all or substantially all of the Company's properties or rights, title and interest in the Unit to 3
any such entity or entities; provided, however, that upon any such consolidation, merger, conveyance or transfer, the successor entity or entities shall assume the due and punctual performance and observance of all the conditions of this Agreement, with the same effect and j
to the same extent as if such successor entity or entities had been the party of the first part j
hereto.
i
?
i 5.
THE TRUSTEE.
i 1
5.1 Ag.sentance of Trust: Certain Terms of the Trust. The Trustee, for itself and its j
successors, hereby accepts the Trust which is the su'oject of this Agreement but only upon the
{
terms herein set forth, including the following:
(a) The recitals herein shall be taken as the statements of the Company and shall not be considered as made by, or imposing any obligation or liability upon the Trustee.
The Trustee makes no representations as to the value or condition of either trust fund hereunder or any part thereof, and the Trustee shall incur no liability or responsibility in respect of any such matters.
10
l l
(b) Except as otherwise provided in Section 3.8 hereof, the Trustee shall be under no responsibility or duty with respect to the disposition of any monies paid to the Company or upon the Company's order under any provision hereof.
(c) The Trustee shall not rely upon any default under any covenant in Article 2 hereof as a defense against performing its trusts and powers hereunder and may execute l
any of the trusts or powers hereof and perform any duty hereunder either directly or through its agents or attorneys.
l (d) The Trustee may consult with legal counsel to be selected by it [who may be counsel for the Company), the reasonable costs thereof to be administrative expenses of the Trust hereunder, if prior consent is granted by the Company, which consent will not be unreasonably withheld.
(e) Upon receipt of the Officers' Certificate authorizing such withdrawal (as provided by Section 3.7(B) of this Agreement), the Trustee shall have the right to apply cash held by it hereunder to compensate itself for services rendered and to reimburse itself for expenses incurred in the administration of the trust funds as represented in such Officers' Certificate, consistent with the terms described in Exhibit "B", attached hereto.
If an Officers' Certificate has not been received within 90 days of the presentation of an invoice, the Trustee shall have the right to withdraw cash from the Trust without an Officers' Certificate for compensation for or reimbursement of amounts which are not in dispute. Any amounts withdrawn from the trust funds hereunder by the Trustee for the foregoing purposes shall be withdrawn consistent with the provisions of Section 3.7(A) of this Agre'ement. Except as otherwise provided in Section 3.8 hereof, the Company agrees to indemnify the Trustee against any liability it may sustain, acting in good faith and without negligence in the performance ofits duties hereunder.
(f) The Trustee shall be protected in acting upon any notice, resolution, request, consent, order, certificate, report, opinion, statement, obligation, appraisal or other document reasonably believed by it to be genuine and to have been signed by the proper party or parties and the Trustee shall be under no duty to make any investigation or inquiry as to the truth or accuracy of any statement contained therein except as specifically required ia other sections of this Agreement. Except as otherwise expressly l
provided, a Certific;.te shall be accepted by the Trustee as conclusive evidence of the l
11
1 facts therein stated, and shall constitute full protection to the Trustee for any action taken or omitted to be taken by it in good faith,-in reliance thereon.
(g) The Trustee shall maintain appropriate records of all deposits, investments and earnings therein received by the Qualified Trust Fund and by the Nonquali6ed Trust Fund and all disbursements made from each such trust fund and at least monthly shall provide an account thereof to the Company and, at the Company's request, to any State or Federal authority or agency, if any, having jurisdiction over the application of the trust fund monies. The Company and its agents shall have the right at its expense and at such reasonable times and under such reasonable terms and conditions as the Company and the Trustee may agree, to review, inspect and audit the books and records of the Trustee relating to the trust funds hereunder.
(h) The Trustee shall not be liable for any acts, omissions or defaults of any agent (other that its officers and employees) or depository appointed or selected by it with reasonable care or, except as otherwise provided in Section 3.8 hereof, for any acts j
taken or not taken at the direction of or upon instructions of the Company or an Investment Manager. The Trustee shall be liable only for such Trustee's own acts or omissions (and those of its officers and employees) occasioned by the negligence or willful misconduct of such Trustee (or that of its officers and employees). The Trustee shall not be liable for the use or application of any monies held in the trust funds when disbursed by the Trustee in accordance with this Agreement. The Trustee may rely upon the written opinion oflegal counsel who shall first have been approved by the Company, i
which approval shall not be unreasonably withheld, with respect to any questions arising hereunder and shall not be liable for any action taken in good faith in accordance with the advice of such counsel.
4 (i) The Trustee is responsible for final account valuations for all purposes under this Agreement. Such account valuations shall report the fair market value of assets of each trust fund based upon information and financial publications of general circulation, l
statistical and valuation services, records of security exchanges, appraisals by qualified persons, transactions and bona fide offers in assets of the type in question, or other information customarily used in the valuation of property. When a value is not readily obtainable from these sources, the Trustee may rely on valuations provided by the 12
-- ~
^
l Investment Manager if the Trustee has performed a reasonable inquiry into, and is satisfied with, the process by which such valuations were determined.
5.2 Fiduciary Resnonsibility. The Trustee, shall discharge its duties as a fiduciary solely in the interest of the Company, (a) for the exclusive purpose of:
i (1) accumulating and holding funds for the contemplated decommissioning of the Unit and to expend funds for that purpose; and (2) defraying the reasonable expenses of administering the Trust; and (b) with care, skill, prudence ar.d diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct I
of an enterprise of a like character and with like objectives; and (c) in accordance with the documents and instruments governing the Trust.
5.3 Entities Eligible for Anoointment as the Trustee. The Trustee shall at all times be a bank or trust company and shall at all times be a corporation organized and doing business under the laws of the United States or of any state, with a combined capital and surplus of at least $100,000,000 and authorized under such laws to exercise corporate trust powers and subject to supervision or examination by Federal or State authority. If the Trustee publishes reports of condition at least annually, pursuant to law or to the requirements of any supervising or examining authority referred to in this Section, then, for the purposes of this Section, the combined capital surplus of the Trustee shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published.
In the event the Trustee ceases to be eligible under this Section, it shall resign immediately in the manner and with the effect specified in Section 5.4; if the Trustee does not resign, it shall be removed forthwith by the Company by written notice in the form provided in Section 5.4, such removal to take effect upon delivery of the notice to the Trustee.
13
5.4 Resignation and Removal. The Trustee may resign and be discharged from the Trust by giving thirty (30) days' prior written notice thereof to the Company. Such resignation shall become effective on the day specified in such notice or upon the appointment of a successor and such successor's acceptance, whichever is earlier.
The Company may at any time remove the Trustee with or without cause upon thirty (30) days' prior written notice, such notice to be in the form of a certificate signed by an authorized representative of the Company declaring such removal and specifying the successor Trustee appointed pursuant to Section 5.5.
The Trustee, after resignation or removal, shall be entitled to amounts due it under any provision of this Agreement.
5.5 Anoointment of Successor to the Trustee. In the event the Trustee resigns, is removed, or becomes incapable of acting or is adjudged as bankrupt or insolvent, or if a receiver of the Trustee or its property is appointed or a public officer takes charge or control of the Trustee or its property or affairs for the purpose of rehabilitation, conservation or liquidation, a vacancy shall be deemed to exist in the office of the Trustee, and a successor shall be appointed by the Company to fill such vacancy, by written notice signed by an authorized representative of the Company. Such appointment shall become effective on written acceptance thereof as described in Section 5.6 hereof.
If no successor Trustee shall have been appointed pursuant to the foregoing provisions of this Section, or if appointed, shall not have accepted the appointment within thirty (30) days after the occurrence of a vacancy in the office of Trustee, the Trustee may apply to any court of competent jurisdiction to appoint a successor Trustee.
5.6 Accentance of Accointment by Successor Trustee. A successor Trustee appointed
- hereunder shall execute an instrument accepting such appointment and deliver one counterpart thereof each to the Company, the retiring Trustee, and, if applicable, the court making such appointment. Thereupon, without any further act, such successor Trustee shall become vesied with all the properties, rights, powers, trusts and duties of the retiring Trustee as if originally named under this Agreement; however, each retiring Trustee, when requested by the successor Trustee in writing or by the Company and upon payment of any lawful charges and disbursements, shall nevertheless execute and deliver an instrument or instruments conveying 14
and transferring to such successor Trustee all its properties, rights, powers, and trusts and shall duly assign, transfer and deliver to such successor Trustee all property and money held by it hereunder. If the successor Trustee reasonably requests an instrument from the Company for the purpose of more fully and certainly vesting in and conGrming to it said properties, rights, powers and trusts, then any such instrument shall be executed, acknowledged and delivered by the Company.
5.7 Mereer or Consolidation of the Trustee. Subject to the requirements of Section 5.3 hereof, any corporation into which the Trustee may be merged or with which it may be consolidated or any corporation resulting from any merger or consolidation to which the Trustee l
shall be a party or any corporation to which substantially all the business and assets of the Trustee may be transferred, shall be the Trustee under this trust instrument, without further act.
s t
6.
DISTRIBUTION OF ASSETS UPON TERMINATION.
6.1 Final Distribution. Any assets remaining in either trust fund hereunder upon termination in accordance with clause (2) of Section 1.4 hereof, upon receipt of an Officers' Certificate, shall be distributed by the Trustee to the Company to be returned Orst to shareholders of the company to the extent that shareholder contributions were made to the Trust and, thereafter, in accordance with the terms and conditions prescribed by the governmental regulatory body having jurisdiction, l
7.
DEFINITIONS AND GENERAL PROVISIONS.
7.1 Defined Terms. For all purposes of this Agreement, unless the context otherwise specifies or requires:
1' (a) " Authorized Representative" shall mean with respect to the Company, the j
President, the Financial Vice President, the Treasurer or any Assistant Treasurer of the i
Company; and with respect to the Committee, the Chairman or Secretary thereof.
4 15
(b) " Compliance Certificate" shall mean a certincate signed by an Authorized Representative and delivered to the Trustee wherever it is provided in this Agreement.
Each Certificate shall contain the statements provided for in Section 7.2.
(c) " Commercial Operation" means any operation of the Unit after the date hereof pursuant to the terms and provisions of the Operating License.
(d)
" Committee" shall mean the Investment Committee established by the Company consisting of three or more individuals appointed by the Company. The Company has empowered the Committee to direct the management of all assets cf the Trust and perform all duties attendant thereto, including the appointment of trustees and investment managers and the execution of contracts, agreements, or other documents, as it deems necessary to manage and invest such assets. Each member of the Committee shall serve at the Company's will and the Company shall notify the Trustee in a Certification of all appointments and replacements of Committee members.
(e) " Company" shall have the meaning set forth in the opening paragraph of the Agreement.
(f) " Decommissioning Costs" shall have the same meaning as in Treasury Reg.
1.468A-1(b) (5), as the same may be from time to time hereafter amended or modified.
(g) " Federal Energy Regulatory Commission" or "FERC" shall mean the United States Federal Energy Regulatory Commission or any governmental agency or agencies substituted therefor.
(h) " Nuclear Regulatory Commission" or "NRC" shall mean the United States Nuclear Regulatory Commission or any governmental agency or agencies substituted therefor.
(i) " Officers' Certificate" shall mean a certificate for the withdrawal of Trust monies, prepared in the manner described in Section 3.7(B), signed by an Authorized Representative and delivered to the Trustee.
16
l (j) The " Operating License" shall mean Operating License No. DPR-72, dated December 3,1976, as heretofore or hereafter amended, issued by the NRC.
(k) " Opinion of Counsel" shall mean a written opinion of counsel, who may be counsel for the Company, selected by the Company. Each Opinion of Counsel shall contain the statements provided for in Section 7.2.
(1) " Regulatory Order" shall mean a valid order issued by any regulatory agency having jurisdiction over the Company.
(m) The " Trustee" shall mean, with respect to each trust fund hereunder, State Street Bank and Trust Company, and its successors.
(n) The " Unit" shall mean the nuclear reactor presently owned by the Company and located in Citrus County, Florida, together with such structures, components and equipment now or hereafter associated therewith, which, because of radioactive contaminatien caused by its operation, become subject to decommissioning regulations of the NRC.
7.2 Comnliance Certi6 cates and Ooinions. Every certificate or opinion with respect to compliance with a condition or covenant provided for in this trust instrument shall include:
(a) A statement that each person making such certificate or opinion has read such covenant or condition and the definitions herein relating thereto.
i (b) A statement that, in the opinion of each such person, he has made or caused to be made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with.
(c) A statement as to whether or not, in the opinion of each such person, such condition or covenant has been complied with.
7.3 General Provisions. In any case where several matters are required to be certified by, or covered by an opinion of, any specified person, it is not necessary that all such matters l
l 17
be certified by, or covered by the opinion of, only one such person, or that they be so certified or covered by only one document, but one such person may certify or give an opinion with i
respect to some matters and one or more other such persons as to other matters, and any such person may certify or give an opinion as to such matters in one or several documents.
8.
MISCELLANEOUS.
8.1 Alterations and Amendments. The Trustee and the Company understand and agree that modifications or amendments may be required to this Agreement from time to time to effectuate the purpose of this Trust and to comply with any changes in tax laws, regulations or rulings (whether published or private) of the Internal Revenue Service and any similar state taxing authority, and any other changes in the laws affecting the Trust. The Trustee and the Company may alter or amend this Agreement to the extent necessary or advisable to effectuate such purposes.
8.2 Annlicable Law. The Trust shall be a Massachusetts trust and this Agreement shall be governed by and construed in accordance with the laws of The Commonwealth of Massachusetts.
8.3 Effect of Headines. The headings of the different Articles and Sections of this trust Agreement are inserted for convenience of reference, and are not to be taken to be any part of those provisions, or to control or affect the meaning, construction or effect of the same.
8.4 Counteroarts. This trust Agreement is being simultaneously executed in several counterparts, all of which are identical, and all said counterparts are to be deemed to constitute but one and the same Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective officers thereunto duly authorized as of the day and year first above written.
18
~
FLORIDA POWER CORPORATION h
f\\
(
BY:
/\\ \\ /
h TIT (iecretary, Investment Committee STATE STREET BANK AND TRUST COMPANY BY:
d 11g mew,/
19
&,a
,p AJ e.e.-
4.-.A d
a.-->=
a.
m
-uas A
1w++u-8
-+
%.-a
--.AL.*-
4
-J we--
4 aa A.
2 4
1 Exhibit "A" FLORIDA POWER CORPORATION NUCLEAR DECOMMISSIONING TRUST AND STATE STREET BANK AND TRUST COMPANY DESCRIPTION OF TRUST ASSETS Florida Power Corporation shall instruct NationsBank of Florida to transfer the following assets, which are the subject of this Agreement, to the Trustee effective September 1,1994.
Qualified Trust Fund - assets held in the Trust as fully described la the NationsBank of Florida Qualified Fund Accounting and Investment Review List of Account Assets as of August 31, 1994, which will be attached hereto and made a part of this Agreement.
Nonqualified Trust Fund - assets held in the Trust as fully described in the NationsBank of Florida Nonqualified Fund Accounting and Investment Review List of Account Assets as of August 31,1994, which will be attached hereto and made a part of this Agreement.
4 20
_ ~ _ -.
Exhibit "B"
@statestreet mxuorraomesS marminos l
NUGEAR DECOMMISSIONING TRUST I
MAS 11RTRUST QJENT SERVICES FEE SGEDUM l
FORIFOIlOlECO[tDKEEPING AND ADMINISTRATION The following charges will be assessed on die month-end ret asset value:
3.5 basis points per annum
$26,000 minimum aggregate annual portfolio fee based on a maximum of four patrolios.
A&iiticaal portfolios will be Niled at $6,500 pits 3.5 basis gnnts per sonnu per portfolio.
TRANSACIIONS S18.00 per DIC and Fed Book Entry transaction
$55.00 per physical transaction P1AN ACCOUNTING
@ 5500.00 per sub account Onud41f Applicable)
Out-of-Pockets Out-of-Pockets such as wires, courier and commtmication charges are bome by the client.
GlobalOnest 550 per cocacct hour.
Tnt mtum ne_mndion
$1,500 for preparation of all tax retums Fees are giaw:teedfor thne yees conenetcity September 1,1994.
Fet estinwes asswne donatic holdirgs. Irgemarland asset trwaxtiordhvidirgs will be billed sepamtely.
I t
21
_~
i)StateStreet FLORIDA POWER CORPORATION NUCLEAR DECOMMISSIONING TRUST MASTER TRUST CLIENT SERVICES FEE SCHEDULE i
PORTFOLIO RECORDKEEPING AND ADMINISTRATION The following charges will be assessed on the month-end net asset value:
3.5 basis points per annum j
i l
$26,000 minimum aggregate annual portfolio fee based on a maximum of four portfolios.
Additional portfolios will be billed at $6,500 p:us 3.5 basis points per annum per portfolio.
l TRANSACTIONS 1
$18.00 per DTC and Fed Book Entry transaction
$55.00 per physical transaction PLAN ACCOUNTING
@ $500.00 per sub account 1
OTHER(If Applicable)
Out-of-Pockets l
Out-of-Pockets such as wires, courier and communication charges are borne by the client.
GlobalQuest
$50 per connect hour.
Tax return nrenaration
$1,500 for preparation of all tax returns.
i Fees are guaranteedfor three years commencing September 1,1994.
Fee estimates assume domestic holdings. International asset transactions / holdings will be billeds arately.
I g
e M k $,( "}h QNe: h. N C '
- A
Title:
t/(cfm
Title:
%.vt.vt,vt. \\umymu (o State Street Bank & Trust Company Florida Power Corporation ssezoss2 nepgg:
N Date: M s t\\%
~
t /
AMENDMENT I TO FLORIDA POWER CORPORATION AMENDED AND RESTATED NUCLEAR DECOMMISSIONING TRUST AGREEMENT THIS AMENDMENT Iis entered into this /# day of dunc,1995, by and between Florida Power Corporation (the "Compaay"), and STATE STREET BANK AND TRUST COMPANY (the " Trustee").
WHEREAS, Section 8.1 of the Amended and Restated Nuclear Decommissioning Trust Agreement, effective September 1,1994 (the " Agreement"), provides that such Agreement may be altered or amended to effectuate the purposes of the Trust; and WHEREAS, the parties also desire to amend Section 1.2(b) of the Agreement to comply with Treasury Regulations section 1.468A-5(A)(4), promulgated on December 27,1994; and WHEREAS, the parties also desire to amend the Agreement to refine withdrawal documentation by substituting the word " Withdrawal" for " Officers'" wherever the term " Officers' Certificate" appears in the Agreement; and WHEREAS, the parties also desire to amend the Agreement to redefine " Authorized Representative" as defined in Section 7.l(a) and to define the term " Officer of the Company";
and WHEREAS, the parties also desire to amend Section 8.1 of the Agreement to specify the individuals authorized by the Company to alter and amend this Agreement.
NOW, THEREFORE, it is agreed that Sections 1.2(b), 3.3, 3.7(B), 5.1(e), 6.1, 7.1 and 8.1 shall be revised to incorporate the aforementioned amendments and will read as follows:
Section 1.2(b) - The "Nonqualified Trust Fund" shall consist of monies contributed by the Company for decommissioning the Unit plus earnings on such monies, but only to the extent such monies are not contributed to and maintained in the Qualified Trust Fund.
The Trustee shall maintain within the Qualified Trust Fund and the Nonqualified Trust Fund such subaccounts as may from time to time be directed by the Company.
Except as otherwise specifically provided, all of the Qualified Trust Fund and the Nonqualified Trust Fund shall be administered and disposed of identically as provided below in this Agreement. The assets of the Qualified Trust Fund must be used as authorized by Section 468A and the regulations thereunder. This Agreement may not be amended so as to violate Section 468A or the regulations thereunder.
Section 3.3 - Subsecuent Adiustments. The Trustee and the Company understand and agree that the contributions made by the Company to the Qualified Trust Fund may from time to time exceed the amount permitted to be paid into such Trust Fund pursuant to Section 468A and any regulations thereunder, based upon changes in estimates, subsequent developments or any other event or occurrence which could not reasonably have been foreseen by the Company at the time such contribution was made (" Excess Contribution"). Upon receipt of a Withdrawal Certificate, signed by an Officer of the
.o Company, setting forth the amount of an Excess Contribution and stating that such Excess Contribution should be transferred to the Nonqualified Trust Fund or paid to any person or entity, including the Company, the Trustee shall transfer or pay such Excess Contribution including the earnings and appreciation thereon, as the case may be, to the Nonqualified Trust Fund, or to the person or entity specified by the Company in the Withdrawal Certificate.
Section 3.7(B) - A withdrawal under this Section shall be paid upon receipt by the i
Trustee of:
(1)
A Withdrawal. Certificate, signed by an Officer of the Company, for withdrawals for purposes (1), (3) and (4) in Section 3.7(A) and signed by an Authorized Representative of the Company for withdrawals for purpose (2) in Section 3.7(A). All Withdrawal Certificates shall be dated the date of the withdrawal application:
(a) stating the amount to be withdrawn, the purposes for which the amount is to be used and the trust fund or trust funds from which the amount is to be withdrawn; (b) specifying in reasonable detail by general classification the underlying items of expenditures and obligations (after giving effect to any deduction required under subsection (A)) which will constitute part of the Decommissioning Costs of the Unit or administrative costs of the Trust and stating that such expenditures constitute, or obligations when paid will constitute, part of the Decommissioning Costs of the Unit or administrative costs of the Trust as evidenced by the invoice, contracts or agreements attached thereto and that none of such expenditures and obligations has been made the basis of a prior withdrawal under this Section; (c) stating that no regulatory approval for such withdrawal is necessary or, if at any time the making of withdrawals i
herefrom becomes subject to the jurisdiction of any governmental regulatory agency, stating that such regulatory approval has been obtained.
(d) stating that all such amounts may be paid from the Trust without causing the Qualified Fund to become disqualified from the application of Section 468A of the Code or any applicable successor provision.
Section 5.l(e) - Upon receipt of the Withdrawal Certificate authorizing such withdrawal (as provided by Section 3.7(B) of this Agreement), the Trustee shall have the right to apply cash held by it hereun, der to compensate itself for services rendered and to reimburse itself for expenses incurred in the administration of the trust funds as represented in such Withdrawal Certificate, consistent with the terms described in Exhibit "B", attached hereto. If a Withdrawal Certificate has not been received within 90 days of the presentation of an invoice, the Trustee shall have the right to withdraw cash from
the Trust without a Withdrawal Certificate for compensation for or reimbursement of amounts which are not in dispute. Any amounts withdrawn from the trust funds hereunder by the Trustee for the foregoing purposes shall be withdrawn consistent with the provisions of Section 3.7(A) of this Agreement. Except as ott.crwise provided in Section 3.8 hereof, the Company agrees to indemnify the Trustee against any liability it may sustain, acting in good faith and without negligence in the performance ofits duties hereunder.
Section 6.1 - Final Distribution. Any assets remaining in either' trust fund hereunder upon termination in accordance with clause (2) of Section 1.4 hereof, upon receipt of a Withdrawal Certificate signed by an Officer of the Company, shall be distributed by the Trustee to the Company to be returned first to shareholders of the company to the extent that shareholder contributions were made to the Trust and, thereafter, in accordance with the terms and conditions prescribed by the governmental regulatory body having jurisdiction.
Section 7.1(a) " Authorized Representative" shall mean with respect to the Company, the President, the Senior Vice President, Financial Services, the Senior Vice President, Nuclear Operations, the Vice President, Tax Administration, the Vice President &
Controller, the Treasurer, any Assistant Treasurer, the Director, Trust Investments, or the Manager, Trust Investments, of the Company; and with respect to the Committee, the Chairman or Secretary thereof.
Section 7.l(i)
" Officer of the Company" shall mean the President, the Senior Vice President, Financial Services, the Senior Vice President, Nuclear Operations, the Vice President, Tax Administration, and the Vice President & Controller.
Section 7.1(o) " Withdrawal Certificate" shall mean a certificate for the withdrawal of Trust monies, prepared and signed in the manner described in Section 3.7(B), and delivered to the Trustee.
8.1 Alterations and Amendments. The Trustee and the Company understand and agree that modifications or amendments may be required to this Agreement from time to time to effectuate the purpose of this Trust and to comply with any changes in tax laws, i
regulations or rulings (whether published or private) of the Internal Revenue Service and any similar state taxing authority, and any other changes in the laws affecting the Trust.
The Trustee and an Officer of the Company may alter or amend this Agreement to the extent necessary or advisable to effectuate such purposes.
This amendment shall be effective as of June 1,1995.
FLORIDA POWER CORPORATION BY:
9!
~
Se pigPresident, Financial Services TITLE:
'D TRUST COMPANY t
BY:
TITL
/ U(TC {rt%%R\\, -