ML20151L562
| ML20151L562 | |
| Person / Time | |
|---|---|
| Site: | 07002932, 07003057 |
| Issue date: | 07/22/1988 |
| From: | Counsil W TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC) |
| To: | Rouse L NRC OFFICE OF NUCLEAR MATERIAL SAFETY & SAFEGUARDS (NMSS) |
| References | |
| 24530, TXX-88579, NUDOCS 8808040075 | |
| Download: ML20151L562 (190) | |
Text
_ _. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
7 I
em JRN TO Ml -ss2 l37 '76-2 93s m
00CMET(0 r
USNRC I
- l:'==
Log # TXX-88579 ij JUL25 lggg p iG Nuss File # 232
'g
//
r r
Ref # 10CFR70.34 g
1UELECTRIC 4
July 22, 1988 EaOCS$Na$1 4,
's
%Pg/
Director, Office of Nuclear Material g
Safety and Safeguards
_4 4
Attn:
Leland C. Rouse, Branch Chief f-Fuel Cycle Safety Branch
! t Sff jy U. S. Nucleor Regulatory Commission
- j Washington, D. C. 20555 c3 y
SUBJECT COMANCHE PEAK STEAM ELECTRIC STATION (CPSES) w DOCKET NO. 70-2932 REQUEST FOR AMENDMENT TO SPECIAL NUCLEAR MATERIAL LICENSE N0. SNM-1912, AMENDMENT OF APPLICATION FOR SPECIAL NUCLEAR MATERIAL LIrENSE FOR CPSES UNIT-2 REF:
1)
TV Electric letter TXX-88578 from W. G. Counsil to the NRC dated July 22, 1988 2)
TV Electric letter TXX-88089 from W. G. Counsil to NRC (L.C. Rouse) dated January 29, 1988 3)
TV Electric letter TXX-88302 from W. G. Counsil to NRC (L.C. Rouse) dated March 25, 1988
Dear Mr. Rouse:
Pursuant to 10CFR70.34, Texas Utilities Electric Company (TV Electric),
licensee under NRC Special Nuclear Material (SNM) License No. SNM-1912 for CPSES Unit 1, acting for itself and the other licensees named in the subject SNM License, hereby requests amendment of the said License and hereby amends its Application for Special Nuclear Material License for CPSES Unit 2 (Reference 2) to reflect revised ownership interests as described below.
Persuant to Regulatory Guide 3.15, the revised page to our SNM license application (References 2 and 3) for CPSES Unit 2 is provided as an attachment to this letter.
TV Electric submits these changes to reficct an additional re-allocation of ownership interests in CPSES and special nuclear material to be used therein as hereafter described.
0Fo3
{00 9 005 S 0.
gggg g ik 400 North Olne Street LB81 Dallas Texas 73201 Q
TXX-88579 July 22, 1988 Page 2 of 3 TV Electric presently holds an 87-5/6% ownership interest in CPSES and the special nuclear material to be used therein.
By letter dated March 25, 1988 (Reference 3) TU Electric requested an amendment to the subject SNM licente to reflect the transfer to TV Electric of the 6.2% ownership interest of Texas Municipal Power Agency'(TMPA).
TV Electric now requests an additional amendment to the subject SNM license to reflect the transfer to TV Electric of the 3.8% ownership interest of Brazos Electric Power Cooperative, Inc. (Brazos) pursuant to an Agreement between Brazos and TV Electric dated as of July 5,1988 (the Agreement), a copy of which is enclosed for your convenience.
Approval of the amendment requested by Reference 3, together with the amendment requested in the instant letter will bring TV Electric's aggregate interest in CPSES and special nuclear material to be used therein to 97-5/6%.
The 2-1/6% interest of the other remaining owner, Tex-La Electric Cooperative of Texas, Inc., remains unchanged.
The requested license amendment is administrative in nature and involves only the transfer of an ownership-interest from one entity to another which is already an owner and licensee. All other information furnished to the NRC in connection with the subject SNM License remains unchanged.
Under the terms of the Agreement, the transfer of the ownership interest is subject to certain conditions precedent and regulatory approvals, including the NRC's approval.
TV Electric requests that the amendment to the subject SNM License involving the Brazos ownership interest be approved at this time and be made effective as of the date of completion of the transfer of the Brazos ownership interest as set forth in the Agreement.
TV Electric notes that this request reflects the same change in ownership interest which is the subject of a request to amend the Construction Permits for Comanche Peak (Reference 1).
TV Electric will also provide appropriate proof of changes to the Liability Insurance (American Nuclear Insurer's Policy No. NF-274, Secondary Financial Protection Certificate Nos. N-90 and M-90) to reflect the revised ownership interests.
TV Electric requests that the Indemnity Agreement (No. B-96) between the NRC and the Applicants also be amended to reflect those changes.
Pursuant to 10CFR170.11(a)(3), a license fee is not required with this submittal.
In accordance with Regulatory Guide 3.15, the original and eight (8) copies of this license amendment request are enclosed for your review and approval.
- v. (
b TXX-88579 July 22, 1988.
'Page 3 of 3 TV Electric also wi.thes to revise its Application for Special Nuclear Material Licenses for,CPSES Unit 2 (Reference 2) to reflect the revised ownership interest.
In accordance.with Regulatory Guide 3.15, a revised page 1 of that Application is enclosed with this letter.
gy if you have any question concerning this request, please contact 4
Mr. Richard S. Berk at'(214) 812-8952.
Very truly yours, l
i W. G. Counsil RSB:tgw Attachment Enclosures (8) cc: Mr. J. H. Wilson, OSP-NRC Mr. David.McCaughey, SNM Project Manager
.Mr. R. D. Martin, Region IV-Resident. Inspectors, CPSES (3) f 4
p -
g
,r-+-n,4w- - -,.
w..
y,,
g-r-...-,,
,m.
.e,.,
Attachment to TXX-88579 July 22, 1988 Page 1 of 2 AMENDMENT N0. 2 TO TV ELECTRIC'S COMANCHE PEAK STEAM ELECTRIC STATION UNIT 2 APPLICATION FOR SPECIAL NUCLEAR MATERIAL LICENSE P_aggi tq _q Removed New Paggi tg k_q Inserted a
a Pace Number Dalg P_agg Number Dalg a
1 3/25/88 1
7/22/88 L
t
Attachment to TXX-88579 July 22, 1988 Page 2 of 2 TEXAS UTILITIES ELECTRIC COMPANY COMANCHE PEAK STEAM ELECTRIC STATION UNIT 2 APPLICATION FOR SPECIAL NUCLEAR MATERIAL LICENSE This application is filed pursuant to Title 10, Chapter 1, Code Federal Regulations, Part 70 for authorization to receive, store, inspect, and package for transport unirradiated nuclear fuel assemblies for Unit 2 of the Comanche Peak Steam Electric Station (CPSES).
The term of the Special Nuclear Material License requested is for the period beginning [date of issuance] until receipt of the permanent operating license.
Following the reallocation of ownership interests described in the 2
letters from Texas Utilities Electric Company (TV Electric) to the NRC dated l'. arch 25, 1988 (TXX-88302) and July 22, 1988 (TXX-88578), the applicants are TU Electric and Tex-La Electric Cooperative of Texas, Inc (Tex-La). TV Electric and Tex-La (collectively the "0wners")
respectively own 97-5/6% and 2 1/6% interest in the station as tenants in common. None of the Owners is owned or contr' oiled by an alien, foreign corporation, or foreign government.
TV Electric is the lead applicant and, as such, acts for the other applicant for design, construction, and operatiogas well as representation in licensing matters.
The location of the office and principal officers for TV Electric and Tex-La can be found in the Application for OMrating Licenses (Class 103) for the Comanche Peak Steam Electric Station Units 1 and 2 (Docket Nos. 50-445 and 50-446). Communications pursuant to this license appi1 cation should be sent to:
Mr. W. G. Counsil Executive Vice President Texas Utilities Electric Company Skyway Tower 400 N. Olive, L.B. 81 Dallas, Texas 75201 Amendment 2 July 22,198 1
c
' bk3b__ __..
DOCVET NO.
k b _O CJNTROL NO.
DATE OF 000. 3L1L __22 Ibbb U..L36; I3hb DATE RCVD.
FCUF /
PDR FCAF.
LPDR
/
l a E REF.
SAFEGUARDS /
FCTC t
OTHER __
OATE9 h$
IN!rAL
AGREEMENT between BRAZOS ELECTRIC POWER COOPERATIVE, INC.
Brazos and TEXAS UTILITIES ELECTRIC COMPANY TU Electric Dated as of July 5,1988 l
e l
l l
l L
TABLE OF CONTENTS PAGE DEFINkTIONS..............................
1 RECITALS.
8 A RTICLE I, S A L E A N D P U RCH ASE.....................
9 1.1 Properties and Assets Sold and Purchased 9
1.2 Closing.....
10 1.3 Transfer of Purchased Assets...................
10 1.4 Method of Payment.
10 1.5 Payment of Total Payment.
10 (a) Payment Upon Signing.....................
10 (b) Payment at the Closing.....................
10 (c) Deferred Payment.
10 ARTICLE II, REPRESENTATIONS, WARRANTIES AND AGREEMENTS OP BRAZOS 11 2.1 Legal Status.
11 2.2 Authority for Agreement.
11 2.3 A pprovals...........................
12 2.4 L iabili ties...........................
13
- 2. 5 T ax e s.............................
14 2.6 Title to Real Property......................
14 2.7 Title to Personal Property....................
15 2.8 L i tigatio n...........................
15 2.9 Con tra c ts...........................
16 2.10 Exclusion of Implied Warranties..................
16 2.11 Accuracy of Representations and Warranties............
16 ARTICLE III, REPRESENTATIONS, WARRANTIES AND AGREEMENTS O F T U E L E CT RIC..........................
,16 3.1 Corpora te S ta tus........................
16 3.2 Authority for Agreement.
17
- 3. 3 A ppro vals...........................
17 3.4 Authority for TUC Guaranty...................
18 3.5 Accuracy of Representations and Warranties............
18 ARTICLE IV, PRE-CLOSING OBLIGATIONS..............
19 4.1 Representations, Warranties and Covenants.............
19 4.2 Abatement of Participation in Pending Litigation..........
19 4.3 Agreement to Obtain Approvals..................
23
-i-1 1
ARTICLE V, CONDITIONS TO OBLIGATIONS TO CLOSE............
23 5.1 Conditions to Obligation of Brazos to Close...
23 (a) Representations and Warranties.................
23 (b) Compliance With Agreement 24 (c) Receipt of Payment......................
24 (d) Receipt of Closing Documents..................
24 (e) Consent to Assignment Agreement.
24 (f> Receipt of L R.S. Determina tion.................
24 5.2 Conditions to Obligation of TU Electric to Close 24 (al Representations and Warranties.................
25 (b) Compliance with Agreement 25 (c) Delivery of Pending Litigation Documentation...........
25 (d) Receipt of Closing Documents..................
26 5.3 Conditions to Obligation of Both Parties to Close.......
26 (a) No Adverse Proceeding.....................
N (b) Walver of Right of First Refusal.............
26 (c) Approval by P UC...................
28 (d) Approval by N RC.....................
29 (e) Approval of REA, CFC and FFB.................
31 (f) Execution of Transmisdon Services Agreement 32 ARTICLE VI, CLOSING DOCUMENTS FROM BRAZOS.
32 6.1 Deeds and Transfers, etc.
32 6.2 Uen Search 32 6.3 Certificate of Secretarial Officer.................
32 6.4 Counsel Opinion 33 ARTICLE VII, CLOSING DOCUMENTS FROM TU ELECTRIC..........
33 7.1 Proof of Payment.
33 7.2 O th er Ins tru m en ts.....................
33 7.3 Certificate of Secretarial Officer.........
33 7.4 Counsel's Opinion................
34 ARTICLE VIII, CLOSINO AND INDEMNIFICATION
~
34 8.1 Indemnifica tion by Brazos..................
34 8.2 Indemnification by TU Electric................
34 8.3 Survival of Representation and Warranties.............
35 8.4 Notice and Opportunity to Participate in Defense..........
35 ARTICLE IX, SETTLEMENT OF PENDING LITIG ATION............
35 9.1 Brazos Release.........................
35 9.2 Brazos Covenant Not to Sue 36 9.3 TU Elec tric Release........................
40 9.4 TU Electric Covenant Not to Sue.................
41 9.5 Assumption of Liabilities and Obligations and Indemnification 44 9.6 Covenant of Coopera tion.....................
46 9.7 Termination of Participation..............
46 9.8 TU Electric Actions and Litigation Costs..............
48 9.9 Termination of Joint Ownership Agreement Relationship.......
49 i
1 ARTICLE X, TERMINATION OF AGREEMENT......
49 10.1 Termination of Agreement by TU Electric.............
49 10.2 Termination of Agreement by Brazos 50 10.3 Automatic Termination.....................
50 10.4 Termination of Covenants, Releases and indemnifications.......
51 ARTICLE XI, MISCELLANEOUS PROVISIONS 51 l l. l B ulk S ales La w Walver......................
51 11.2 Further Assurance 51 ll.3 No Third Party Beneficiaries...................
51 11.4 Default..
52 11.5 Property and Transfer Taxes...
52 (a) P roper ty Taxes........................
52 (b) T ransf er T ax es........................
52 1 1. 6 E xpenses............................
53 1 1. 7 G ove rning L a w.........................
53 1 1.8 A nnounce m en ts.........................
53 11.9 Entire Agreement, Amendments 53 11.10 A ssigns, e tc..........................
53 1 1.1 1 N o t ic es...........................
53 1 1.12 H e a dings...........................
54 11.13 Execution and Counterparts 54 11.14 Interest on Past Due Payments.................
54 11.15 Use of Representations or Recitals 55 11.16 Separate Litigation......................
55 11.17 Construction of Comanche Peak 55 1 1.18 Severabili ty..........................
55 11.19 Time of the Essence.
56 t
-111-
i Lilrr OF EXHIBITS PAGE Exhibit A -
Assignment Agreement 1
Exhibit B -
Guaranty 2
Exhibit C -
Brazos Members 3
Exhibit D -
Mortgage 3
Exhibit E -
Note 4
Exhibit F -
Special Warranty Deed With Vendor's Lien and Bill of Sale 7
Exhibit G -
Notice of First Right of Refusal 26 Exhibit H -
Joseph Robert Riley Opinion 33 Exhibit I -
Worsham, Forsythe, Sampels & Wooldridge Opinion 34 Exhibit J -
Brazos Release 36 Exhibit K -
Brazos Covenant Not to Sue 38 Exhibit L -
TU Electric Release 41 Exhibit M -
TU Electric Covenant Not to Sue 42 Exhibit N -
TU Electric Assumption and Indemnity Agreement 45 Exhibit 0 -
Brazos Indemnity Agreement 46,
-Iv-
THIS AGREEMENT is made and entered into this 5th day of July,1908 by and between the following parties:
BRAZOS ELECTRIC POWER COOPERATIVE, INC., a Texas non-profit electric cooperative corporation, having its principal office at 2404 IASalle Avenue, Waco, McLennan County, Texas ("Brazos"), and TEXAS UTILITIE5 ELECTRIC COMPANY, a Texas corporation, having its principal office at 2001 Bryan Street, Suite 1900, Dallas, Dallas County, Texas ("TU Electric", and where appropriate in the context of this Agreement, TU Electric may include TU Electric's corporate predecessors, Dallas Power
& Light Company, Texas Electric Service Company and Texas Power & Light Company).
DEFINITIONS As used in this Agreement and in the Exhibits attached hereto, unless otherwise specified therein, the following terms shallhave the following meanings:
(a)
"Agreem ent" means this Agreement and the Schedule and all Exhibits
. attached to this Agreement.
(b)
"Assignment Agreement" means the Assignment Agreement attached hereto as Exh; bit A.
(c)
"Brazos Comanche Peak Debt" means the aggregate of the indebtedness of Brazos to the REA, the CFC and the FFB with respect only to Comanche Peak, which at the date hereof is the unpaid principal amount of One liandred Ninety Foua Million, Six Hundred Ninety Thousand, Three Hundred Fifty and 14/100 Dollars ($194,690,350.14), and is evidenced and represented by documentation previously delivered by Brazos to TU Electric.
(d)
"Besiness Day" means a day on which banks in Dallas, Texas are open for l
regultr banking business.
(e)
"CFC' ineans the National Rural Utilities Cooperative Finance Corporation, or its successor. _
(f)
"ClosingR means the consummation, pursuant to this Agreement, of the sale of the Purchased Assets by Brazes to TU Electric and the purchase of the Purchased Assets by TU Electric from Brazos, as described herein.
(g)
"Closing Date" means such date as may be agreed upon by the parties for the Closing, which date shall be within thirty (30) days after the last to occur of the NRC Affirmative Date, the PUC Affirmative Date or the granting of the necessary approvals of the REA, the CFC and the FFB with respect to the Brazos Comanche Peak Debt referred to in Section 5.3(e) hereof.
(h)
"Closing Payment" means the aggregate of (i) Two Million, Four Hundred Fifty Four nousand, Eight Hundred Ninety Dollars ($2,454,890), plus (ii) the amount of principal paid by Brazos with respect to the Brazos Comanche Peak Debt from (and including) March 1,1988 until the Closing Date and not previously paid as part of the Signing Payment, plus (iii) an incremental amount calculated at a rate equal to nine and one-half percent (91/2%) per annum on said principal outstanding from time to time from (and including)
March 1,1988 until the Closing Date and not previously paid as part of the Signing Payment.
ti)
"Comanche Peak" means the nuclear-fueled electric generating facility under construction on certain lands situated in Hood and Somervell Counties, Texas, and consisting of two units having a nominal capacity of 1,150 megawatts each, and related properties, and is the aggregate and combination of the Station, Fuel and Transmission Facilities, and all other rights and interests associated with or relating to all of the same.
(j)
"Deferred Payment" shall have the meaning set out in Section 1.5(c) hereof.
(k)
"FFB" means the Federal Financing Bank, or its successor.
(1)
"Fuel" means the Comanche Peak nuclear fuel, irrespective of chemical and/or physical form, and the rights and interests related thereto.
(m)
"Guaranty" means the form of Guaranty of TUC attached hereto as Exhibit B.
(n)
"Joint Ownership Agreement" means that certain instrument entitled on the cover page thereof "Joint Ownership Agreement Between Dallas Power &
Light Company, Texcs Electric Service Company, Texas Power & Light Company, Texas Utilities G:nerating Company, Texas Municipal Power Agency and Brazos Electric Power Cooperative, Inc. for Comanche Peak Steam Electric Station," executed on January 2,1979, together with and as nodified by that certain instrument entitled on the cover page thereof
' Modification of Joint Ownership Agreement Between Dallas Power & Light Company, Texas Electric Service Company, Texas Power & Light Company, Texas Utilities Generating Company, Texas Municipal Power Agency and Brazos Electric Power Cooperative, Inc. For Comanche Peak Steam Electric Station," executed on June 1,1979, together with and as amended by (i) the Amendment of Joint Ownership Agreement, executed on December 9,1980, between Dallas Power & Light Company, Texas Electric Service Company, Texas Power & Light Company, Texas Utilities Generating Company, TMPA, Brazos and Tex-la, together with and as amended by (ii) the Second Amendment of Joint Ownership Agreement, executed on February 12, 1982, between Dallas Power & Light Company, Texas Electric Service Company, Texas Power & Light Company, Texas Utilities Generating Company, TMPA, Brazos and Tex-La.
(o)
"Members" means the twenty (20) Texas non-profit electric cooperative corporations that are the members of Brazos, as set out in Exhibit C attac,hed hereto.
(p)
"Mortgage" means the purchase money mortgage in the form of the Deed of Trust and Security Agreement attached hereto as Exhibit D creating a first lien and granting to Brazos a first and prior security interest in the Purchased Assets to secure payment of the Note.
(q)
"New lawsuit" means the lawsuit that, pursuant.to Section 4.2(e) of this i
Agreement, may be filed by Brazos or TU Electric, and if filed will be filed in Dallas County, Texas, in the event that nonsults are taken by Brazos and i
TU Electric in the Pending Dallas Suit pursuant to Section 4.2(d) of this Agreement or this Agreement is terminated under Article X hereof.
l i
(r)
"Note" merns the non-negotiable promissory note, in the form attached hereto as Exhibit E, to be made and delivered at Closing by TU Electric as provided in Section 1.5(c) of this Agreement.
(s)
"NRC" means the United States Nuclear Regulatory Commission, or its successor.
(t)
"NRC Affirmative Date" shall have the meaning set out in Section 5.3(d) hereof.
(u)
"Owners" means collectively TMPA., TU Electric, Tex-La and Brazos, as owners of Comanche Peak in accordance with the terms of the Joint Ownership Agreement, or singularly any of such parties.
(v)
"Pending Austin Suits" means Cause No. 399,482 - Brazos Electric Power
_ Cooperative, Inc. v.
Texas Utilities Company. Texas Utilities Electric Company, Texas Utilities Mining Company, and Texas Utilities Services Incorporated. -in the District Court of Travis County, Te -, 345th Judicial District, and Cause No. 399,336 - Tex-La Electric Cooperative of Texas, Inc., and Texas Municipal Power Agency v. Texas Utilities and Texas Utilities Electric Company - in the District Court of Travis County, Texas, 98th Judicial District.
(w)
"Pending Dallas Suit" means Cause No. 86-6809-A - Texas Utilities Electric Company v. Tex-La Electric Cooperative of hxas, Inc., et al. - in the District Court of Dallas County, Texas,14th Judicial District.
(x)
"Pending Houston Suit" means Cause No. 83-29889 - Charles A. Atchison, et l
j al v. Brown & Root, Inc., et al - in the District Court of Harris County, Texas, 215th Judicial District, removed in April,1988, to the United States l
l District Court for the Southern District of Texas, Houston Division, and 1
numbered Civil Action No. H-88-1409.
(y)
"Pending Litigation" means the Pending Dallas Suit and the Pending Austin Suits. L
(z)
"Pending Somervell County Sult" means Cause No. 2692 - Clementine Mathews and her husband Dolphin Mathews v. Comanche Peak Electric Steam Eation, et al,, - in the District Court of Somervell County, Texas,18th Judicial District.
(aa)
"Permitted Exceptions" means Matters affecting Brazos' title to all or any part of the Purchased Assets existing immediately prior to the time the same were acquired by Brazos from or through TU Electric or TU Electric's predecessors-in-title; Matters affecting Brazos' title to all or any part of the Purchased Assets created by the acts or omissions of (i) all parties owning interests in Comanche Peak at the time involved acting collectively, or (ii) the Project Manager or TU Electric or both; De lien for unpaid taxes and assessments relating to taxes and assessments, unpaid by parties other than Brazos or imposed with respect to the periods prior to which Brazos owned the propee interest involved and after the Closing; De rights of third parties in and to the Purchased Assets created by the acts or omissions of parties other than Brazos and not arising by, through or under Brazos; De Joint Ownership Agreement and all licenses, permits, leases, franchises and contracts relating to the Purchased Assets applied for, obtained or created by the acts or omissions of (i) any Owner other than Brazos, (11) all parties owning interests in Comanche Peak at the time involved acting collectively, or (iii) the Project Manager or TU Electric or both; and Liens (existing or inchoate) in favor of mechanics, materialmen, laborers and suppliers of materials, goods, services, equipm en t, inventory (of subcontractors) and labor to or for the Station, the Fuel. __..
or the Transmission Facilities created by the acts or omissions of (i) any Owner other than Brazos, (ii) all parties owning interests in Comanche Peak at the time involved acting collectively, or (iii) the Project Manager or TO Electric or both.
(bb)
"Project Manager" means TU Electric designated and acting as such in accordance (or purportedly in accordance) with the terms of the Joint Ownership Agreement.
(cc)
"PUC" means the Public Utility Commission of Texas, or its successor.
(dd)
"PUC Affirmative Date" shall have the meaning set out in Section 5.3(c) hereof.
(ee)
"Purchased Assets" means the aggregate of all that part of Comanche Peak (as Comanche Peak exists and is constituted on the Closing Date) owned by Brazos or to which Brazos has a right, title or interest, including without limitation the following, to the extent of Brazos' ownership interest therein:
all real property and rights appurtenent thereto, and improvements thereon and fixtures thereto; that portion of Brazos' Certificate of Convenience and Necessity heretofore issued by the PUC relative to Brazos' ownership interest in the Station and the Transmission Facilities; all personal property and rights therein, tangible or intangible, including all machinery, equipment, furniture and vehicles; all rights and entitlements to electric power and energy that may hereaf ter be generated at Comanche Peak; all rights or claims with respect to charges, payments or prepaid items; all warranties and claims and proceeds therefrom; all rights under all agreements, permits, licenses, l
franchises and authorizations; all intellectual property rights; all computer i
hardware and software and related rights and interests; all books and records in the possession of the Project Manager or otherwise owned by all of the 1
Owners in combination; the Fuel; the Transmission Facilities; and all other properties and assets pertaining to Comanche Peak; but excluding, however, any Subject Claim of Brazos arising out of or under this Agreement or the l
other documents delivered to Brczos pursuant hereto; and excluding all d::cuments and other written material relating to Comanche Peak in tha custody, cr.ntrol or possession of Brazos, and its agents, attorneys and consultants, except all such documents and other written material pertaining to or involving the Pending Litigation other than copies of those which have been filed in the Pending Litigation or at the NRC or which are privileged or which may be the work product or the product of Brazos' attorneys' or consultants' joint defense activities or correspondence to or from TU Electric or its attorneys or other correspondence or documents copies of which have l
been provided to TU Electric or its attorneys.
(ff)
"REA" means the Rural Electrification Administration of the United States Department of Agriculture, or its successor.
(gg)
"Signing Payment" means the aggregate of (i) Fifteen Million, Dree Hundred 1
Twenty Two nousand, Five Hundred Eighty One Dollars ($15,322,581), plus (ii) the amount of principal paid by Brazos with respect to the Brazos Comanche Peak Debt during the period from (and including) March 1,1988 until the date hereof, plus (111) an incremental amount calculated at a rate equal to nine and one-half percent (91/2%) per annum on said principal outstanding from time to time from (and including) March 1,1988 untfl the date hereof.
(hh)
"Site" means approximately 7,669 acres owned (in fee or other estate or interest) by the Owners, as tenants in common, and located in Hood and Somervell Counties, Texas, and more particularly 'wribed on the Schedule attached hereto.
l (ii)
"Special Warranty Deed with Vendor's Lien and Bill of Sale" means the form l
l of Special Warranty Deed with Yendor's Lien and Bill of Sale attached hereto as Exhibit F.
(jj)
"Station" means the Site, all improvements thereon (including Squaw Creek Lake and Park) and all fixtures and attachments thereto, as well as (i) all personal property thereon and associated therewith or related thereto and owned by the Owners, and (ii) all rights (tangible or intangible), and all -
easements and other interests of any nature associated therecith or related thereto and owned by the Owners, excluding, however, the Fuel and Transmission Facilities.
(kk)
' Subject Claims" means any and all claims, actions, controversies, causes of action, disputes, demands and complaints of whatsoever kind or nature and whether known or unknown.
(11)
"Tex-La" means Tex-la Electric Cooperative of Texas, Inc.
(mm) "TMPA" means the Texas Municipal Power Agency.
(nn)
"Total Payment" means the amount to be paid by TU Electric to Brazos hereunder in connection with the purchase of the Purchased Assets and in connection with the settlement of the Pending Litigation; which shall be the total of (i) the Signing Payment, (ii) the Closing Payment and (iii) the Deferred Payment, as described in Section 1.5 hereof.
(oo)
"Transmission Facilities" means the Comanche Peak - DeCordova 345 kV electrical transmission line approximately 14.4 miles in length, and associated rights-of-way, equipment, fixtures and personal property.
(pp)
"TUC" means Texas Utilities Company, a Texas corporation, which is the corporate parent of TU Electric.
RECITAIE A.
TU Electric is an Investor-owned utility which, pursuant to a statutory merger that occurred on January 1,1984, succeeded to all the rights, title and interests and assumed and became liable for all obligations of Dallas Power & Ught Company, Texas Electric Service Company, Texas Power & Ught Company, and Texas Utilities Generating Company under the Joint Ownership Agreement, and is engaged in the generation, purchase, transmission, distribution and sale of electric energy within the State of Texas.
B.
Brazos is a Texas non-profit cooperative corporation, established pursuant to Tex.
l Rev. Civ. Stat. Ann, art.1528b, which is engaged in the generation, transmission and sale of electric energy within the State of Texas.
C.
Brazes and TU Electric have previously entered into the Joint Ownership Agre1 ment.
D.
Brazos and TU Electric each own an undivided interest in Comanche Peak, which in the case of Brazos consists of such interest in the Station and Fuel (stated to be an undivided 3.8% interest in the conveyance involved) tha t was conveyed and transferred to Brazos by TU Electric (or its predecessors) and such interest in the Transmission Facilities (stated to be an undivided 32.2% interest in the relevant instrument but is subject to adjustment) that was conveyed and transferred or agreed to be conveyed and transferred to Brazos by TU Electric (or its predecessors).
E.
Brazos and TU Electric have been involved in the Pending Litigation and would like to settle their disputes involved in the Pending Litigation and otherwise relating to Comanche Peak and Brazos would like to sellits interest in Comanche Peak and be relieved of its obligations under the Joint Ownership Agreement and TU Electric would like to acquire such interest and is willing to relieve Brazos of such obligations under the Joint Ownership Agreement.
F.
Brazos and TU Electric have concluded this Agreement in order to provide for the sale by Brazos and the purchase by TU Electric of all of Brazos' right, title and interest in Comanche Peak and the settlement of all Subject Claims between Brazos and TU Electric and between P.azos and TU Electric's affiliates pertaining to Comanche Peak, the Pending Litigation, and all Matters in connection therewith, upon and subject to the terms and conditions set out herein.
ARTICLE I SALE AND PURCHASE 1.1 Properties and Assets Sold and Purchased.
Subject to the terms and conditions of this Agreement, Brazos hereby agrees to sell, transfer, assign, convey and deliver to TU Electric and TU Electric hereby agrees 'o purchase from Brazos, and pay t
Brazos for, the Purchased Assets in the manner and at the times hereinafter described.
l.2 Closing. The Closing will occur at 10:00 a.m., Dallas, Texas time, on the Closing Date. The Closing will be held at the offices of Worsham, Forsythe, Sampels &
-9
Wooldridge, 2001 Bryan Street, Suite 3200, Dallas, Dallas County, Texcs oc at such other address as the parties may agres. Th3 fact that the Clssing is or was intended to be held in Dallas County shall not be used by TU Electric as evidence for venue purposes in any proceeding related to a Subject Claim arising out of or under this Agreement.
1.3 Transfer of P,urchased Assets. At the Closing, Brazos will sell, convey, assign and transfer to TU Electric, and TU Electric will purchase, under and pursuant to a form of the Special Warranty Deed with Vendor's 1.ien and Bill of Sale, the Purchased Assets.
1.4 Method of Payment. All payments made by TU Electric to Brazos under this Agreement shall be made by wire transfer of immediately available funds through the federal reserve system to Brazos' bank designated in writing to TU Electric. If the due date of any payment under this Agreement falls on a day that is not a Business Day, such payment shall be paid on the first Business Day following the date on which such payment is due.
1.5 Payment of Total Payment.
TU Electric shall pay to Brazos the Total Payment as follows:
(a)
Payment Upon Signing.
On the date of execution of this Agreement, TU Electric will pay to Brazos the Signing Payment. De Signing Payment shall be held in a separately segregated fund by Brazos until Closing, but Brazos may invest same in its sole discretion, ne Signing Payment will be subject to refund prior to the Closing as provided in Article X of this Agreement. Upon the Closing, the Signing Payment will be deemed a part of the Total Payment.
(b)
Payment at the Closing. At the Closing, TU Electric will pay to Brazos the Closing Payment.
(c)
Deferred Payment. At the Closing, TU Electric will execute and deliver to Brazos in payment of the remaining portion of the purchase price the Note, in an original principal amount equal to the total unpaid principal amount of the Brazos Comanche Peak Debt at the Closirg Date, the payment of which will be secured by the Mortgage given as a purchase monay mortgage and the vendors lien provided for in the Special Warranty Deed with Vendors Lien and 10
Bill ef
- Salo, it being understood and agreed that Brazos will contemporaneously therewith assign and transfer the Note and the Mortgage together with the vendors Uen retained in the Special Warranty Deed with Vendors Lien and Bill of Sale to the REA pursuant to and in accordance with the Assignment Agreement as a mechanism for payment of the Brazos Comanche Peak Debt. The Note shall bear interest at the rate of nine and one-half percent (9-1/2%) per annum on the principal balance unpaid from time to time for the period described therein and at the rate of eight and one-half percent (8-1/2%) per annum on the principal balance unpaid from time to time for the remainder of the term thereof, which term shall be the same as the remaining, term of the Brazos Comanche Peak Debt at the Closing Date.
ARTICLE II REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF BRAZOS Brazos represents and warrants to, and agrees with, TU Electric as follows:
2.1 Legal Status.
Brazos is a non-profit electric cooperative corporation, duly organized, validly existing and in good standing under the laws of the State of Texas, with full, requisite corporate power and authority to carry on its business as now conducted and to own, sell and transfer the Purchased Assets as provided for in this Agreement.
2.2 Authority for Agreement. Brazos has full, requisite corporate power and authority to execute, deliver and perform this Agreement, the Special Warranty Deed with Vendor's Lien and Bill of Sale and each other agreement and instrument to be executed and delivered in connection with this Agreement, and to carry out its obugations hereunder and thereunder. Brazos has full, requisite corporate power and authority to act for itself and the other persons or entitles, private and governmental, acting by, through and under Brazos, in connection with this Agreement, the Special Warranty Deed with Vendor's _ Lien and Bill of Sale and the other agreements and instruments to be executed and delivered by it pursuant hereto. This Agreement has been, and at the time of the Closing, the Special Warranty Deed with Vendor's Lien and Bill of Sale and such other agreements and instruments as are delivered by Brazos will have been, duly authorized, executed and delivered by Brazos and this Agreement does, and at the time of Closing, the Special Warranty Deed with Vendor's Lien and Bill of Sale and such other agreements and instruments as are delivered by Brazos will, constitute valid and legally binding obHgations of Brazos and the other persons or entities, private and governmental, acting by, through and under Brazos, enforceable against such parties in accordance with their respective terms. Except for the approvals set out in Section 2.3, the execution, deUvery and performance of this Agreement, the Special Warranty Deed with Vendor's Lien and Bill of Sale and such other agreements and instruments will not conflict with or result in any violation of, or constitute a default under, (i) the Articles of Incorporation or by-laws of Brazos, or (ii) any material provision of any mortgage, indenture, lease, agreement or other instrument, including any evidence of indebtedness, including without limitation the Brazos Comanche Peak Debt, to which Brazos, or any of Brazos' properties or assets, is subject or a party, or (ill) any permit, concession, grant, franchise, license, judgment, order, decree, statute, law, ordinance, rule or regulation applicable to Brazos or any of its property, including the Purchased Assets; or with the passage of time or the giving of notice or the taking of any action by any third party, have any of the effects described herein, except no representation is made with respect to any instrument, permit, concession, grant, franchise or license (and the laws and regulations with respect thereto) made or obtained by TU Electric or the Project Manager on behalf of the Owners.
i 2.3 Approvals. Brazos has obtained all necessary consents, approvals, orders and authorizations of, and made all necessary registrations, declarations and filings with, each governmental authority or other entity required in connection with the execution, delivery, and performance by Brazos of this Agreement, the Special Warranty Deed with l
Ver&r's Lien and Bill of Sale and ths other agreements and instruments to be executed and delivered by Brazos hereunder, except (i) for any such required to be obtained by the Project Manager, (ii) with respect to the rights of first refusal referred to in Section l
5.3(b) hereof,(iii) for any such required to be effected from the PUC and NRC referenced in Sections 5.3(c) and (d) hereof, and (iv) those that must be obtained from the REA, the l
CFC and the FFB referenced in Section 5.3(e). No other filing or registration with, and no 1 t
other consent, approval, auth:rization, pIrmit, certificats or order of any court, tribunal or governmental ageacy or authority, Federal, state, county or municipal, or any other entity is or wili be required by any applicable statute or other law or by any judgment, order or decree or any rule or regulation of any court, tribunal or governmental agency or authority, Federal, state, county or municipal, or agreement with any other entity to permit Brazos to execute, deliver and perform this Agreement, the Special Warranty Deed with Vendor's Lien and Bill of Sale or any agreement or instrument required hereby to be executed and delivered by it at the Closing.
2.4 Liabilities.
'Ihere are no obligations or liabilities or other obligations or other evidence of indebtedness, of Brazos, including without limitation the Brazos Comanche Peak Debt, whether accrued, absolute, contingent or otherwise, which TU Electric may become liable for or is assuming as a result of the purchase of assets l
provided for herein or which may apply with respect to the Purchased Assets, except such as currently exist with respect to Comenche Peak and which were entered into or incurred by (i) all parties owning interests in Comanche Peak at the time involved acting collectively, or (ii) the Project Manager or TU Electric or both. Brazos has no debt for financing its interest in Comanche Peak except for the Brazos Comanche Peak Debt and all mortgages, other liens and security interests for all debt which applies to Brazos' interest in Comanche Peak will be released or terminated prior to or at the Closing..'The documentation previously delivered by Brazos to TU Electric with regard to the Brazos Comanche Peak Debt comprises all relevant information with respect thereto and omits no information which would be material to an understanding thereof.
The amounts specified by Brazos to TU Electric as the amounts paid or payable by Brazos with respect to the Brazos Comanche Peak Debt during the periods of March 1,1988 until the date hereof and from the date hereof until the Closing Date and the amount specified by Brazos to TU Electric as the unpaid principal balance of the Brazos Comanche Peak Debt at the Closing Date and the payment and other terms of such debt at such time are and will be at the Closing Date true and correct in all respects.
l. _.
2.5 Taxes.
Apart from all taxes and similar charges owed b'r the Project Manager on behalf of all the Owners collectively, Brazos owes no taxes or similar charges or impositions with respect, or the nonpayment of which would apply, to, or result in any tien or other encumbrance upon, the Purchased Assets to any taxing authority. No tax charge, tax expense or tax claim against the Furchased Assets originating with or caused by the action or inaction of Brazos individually or in combination with an/ of the Owners other than TU Blectric or the Project Manager will attach to or affect any portion of the Purchased Assets conveyed at the Closing.
2.6 Title to Real Property. Brazos has such title in and to the Site and all real property interests therein and the real property interests included in the Transmission Facilities as was conveyed to Brazos by or through TU Electric or by TU Electric's predecessors-in-title. Except in combination with, or in conjunction with action by, all of the Owners of the Site and the real property interests included in the Transmission Facilities acting collectively either directly or through the Project Manager, Brazos has not encumbered the Site or any of the real property interests therein or the real property interests included in the Transmission Facilities with any mortgages, tiens, claims, I
)
charges, security interests or encumbrances, except in cranection with the Brazos Comanche Peak Debt and other Brazos debt, all of whic#, tiens and security interests pertaining to the Site or any of the real property interests therein or the real property interests included in the Transmission Facilities will be released prior to or at the Closing.
Brazos, r,eparately or in combination with any or all of the Owne.rs other than TU Electric or the Project Manager, has not taken any action which would result in the structures, Improvements and fixtures on such real property constituting a part of the Site not being in conformity with all applicable Federal, state and local zoning, building,
+
health, safety and environmental laws, ordinances, rules or regula'Jons. No notice from
[
any governmental body, which has not otherwise been' disclosed to TU Electric or the Project Manager in writing, has been served upon Brazos claiming any violation of any l
such law, ordinance, rule or regulation or requiring any work, repairs, constructbn,
{
alterations or installation on or in connection with such real property or the buildings, --
i structurss, fixtures or improvements thereon, nor to Brazos' knowledge har any such violation, which has not otherwise been disclosed to TU Electric or the Project Manager in writing, been claimed or action with respect thereto threatened.
2.7 Title to Personal Property.
Brazos has the title to such interest as was conveyed to Brazos by or through TU Electric or TU Electric's predecessor-in-title in all of the equipment, vehicles, fixtures, machinery and other items of personal property, tangible and intangible, to the extent the same are parts of the Purchased Assets to be conveyed at the Closing.
Except in combination or in conjunction with action by TU Electric, the Project Manager or all of the Owners acting collectively, and except in connection with the Brazos Comanche Peak Debt and other Brazos debt, the security interests in connection with which pertaining to the equipment, vehicles, fixtures, machinery and other items of personal property, tangible and intangible, which are part of the Purchased Assets will be released prior to or at the Closing, Brazos has not, apart from any personal property and similar charges owed by the Project Manager on behalf of all of the Owners collectively, encumbered the equipment, vehicles, fixtures, machinery and other items of personal property, tangible and intangible, which are part of the Purchased Assets, with any mortgages, tiens, claims, charges, security interests, encumbrances er other restrictions or limitations, and assuming payment by TU Electric of any and all transfer taxes that may become due on account of the transfer of'the Purchased Assets contemplated by this Agreement and except for the liens for ad valorem taxes not yet due and payable.
2.8 Litigation. 'There are no Subject Claims, suits or proceedings, administrative or otherwise, pending (i.e. Brazos having been served with process with respect thereto or otherwise having knowledge thereof) aga:nst Brazos or, to the best of Brazos' knowledge, threatened against Brazos affecting the Purchased Assets, shether such be at law, in equity or in arbitration, or before or by any governmental 6partment, commission, board, bureau, agency or instrumentality which, if adversely determined against Brazor, would affect Brazos' ability to perform its obligations under this Agreement, except the Pending Litigation, the licensing proceedings to which TU Electric is a party, the Pending Houston _ - _ _ _ _ _ _ _ _ _ _ - _ _ _ -
Suit and the Pending Somervell County Suit; and Bre:r.os, separately and apart from the Owners in combination or in conjunction with action by all of the Owners acting collectively either directly or through the Project Manager (but without acknowledgment that such exists with reference to the Owners), is not in default with respect to any order, writ, injunction or decree of any court, arbiu'ator or governmental department, commission, board, bureau, agency or instrumentality affecting the Purchased Assets.
2.9 Contrac ts. There is not in effect any executory contract, agreement, order or commitment to which Brazos is subject or a party, and to which TU Electric or the Project Manager is not a party, which would bind TU Electric after the Closing with respect to the Purchased Assets and which would adversely affect the value of the Purchased Assets after the Closing.
2.10 Exclusion of Implied Warranties _. THE PURCHASED ASSET 3 ARE BEING SOLD
" AS-IS".
BRAZOS MAKES NO WARR A NTIES CONCERNING THE MERCHANTABILITY OR CONDITION OF THE PURCHASED ASSETS OR OF THEIR FITNESS FOR ANY PARTICULAR PURPOSE. EXCEPT TO THE EXTENT OTHERWISE EXPRESSLY SET FORTH HEREIN.
2.11 Accuracy of Representations and Warranties.
All representations and warranties of Brazos contained herein are, and will be at the time of the Closing, accurate and complete in all material respects and all documents delivered by Brazos' to TU Electric incident hereto are, and will be at such time, valid and authentic in all respects.
ARTICLE III REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF TU ELECTRIC TU Electric represents and warrants to, and agrees with, Brazos as follows:
3.1 Corporate Status.
TU Electric is a corporation duly organized, validly existing and in good standing under the laws of the State of Texas with full, requisite i
corporate power and authority to carry on its business as now conducted and to own, buy and accept the transfer of the Purchased Assets as provided for in this Agreement.
~
3.2 Authority for Agreement. TU Electric has full, requisite corporate power and authority to execute, deliver and perform this Agreement, to receive delivery of the Special Warranty Deed with Vendor's Lien and Bill of Sale, and to execute, deliver and perform the Note, the Mortgage and each other agreement and instrument to be executed and delivered by TU Electric in connection with this Agreement, and to carry out its obUgations hereunder and thereunder. TU Electric has full, requisite corporate power and authority to act for itself and the other persons or entitles, private and governmental, acting by, through and under TU Electric in connection with this Agreement, the Note, the Mortgage and the other agreements and instruments to be executed and delivered by it pursuant hereto. Bis Agreement has been, and at the Closing the Note, the Mortgage and such other agreements and instruments will have been, duly authorized, executed and delivered by TU Electric, and this Agreement constitutes, and at the Closing the Note, the Mortgage and such other agreements and instruments willconstitute, valid and legally binding obligations of TU Electric enforceable against it in accordance with their respective terms. %e execution, delivery and performance of this Agreement, the Note, the Mortgage and such other agreements and instruments will not conflict with or result in any violation of, or constitute a default under, (1) the Articles of Incorporation or by-laws of TU Electric, or (11) any material provision of any mortgage, indenture, lease, agreement or other instrument to which TU Electric is subject or a party, including any
~
l bonds or other obilgation or other evidence of indebtedness, or (iii) any permit, concession, grant, franchise, license, judgment, order, decree, statute, law, ordinance, rule or regulation applicable to TU Electric or any of its property, including Comanche Peak; or with the passage of time or the giving of notice or the taking of any action by any third party, have any of the effects described herein.
3.3
. Approvals. TU Electric has obtained all necessary consents, approvals, orders l
l and authorizations of, and has made all necessary registrations, declarations and filings with, each governmental authority or other entity required in connection with the execution, delivery, and performance by TU Electric of this Agreement, the Note, the l
Mortgage and the other agreements and instruments to be executed and delivered by TU Electric hereunder, except (i) with respect to the rights of first refusai referred to in Section 5.3(b) and (ii) for the filings with the PUC and NRC referenced in Sections 5.3(c) and (d) of this Agreement. No other filing or registration with, and no other consent, approval, authorization, permit, certificate or order of any court, tribunal or governmental agency or authority, Federal, state, county or municipal, or other entity is or will be required by any applicable statute or other law or by any judgment, order or decree or any rule or regulation of any court, tribunal or governmental agency or authority, Federal, state, county or municipal, or egreement with eny other entity to permit TU Electric to execute, deliver or perform this Agrecment, the Note, the Mortgage or any agreement or instrument required hereby to be executed end delivered by it at the Closing, except as referred to above.
3.4 Authority for TUC Guaranty. TUC has full, requisite corporate power and authority to execute, deliver and perform the Guaranty and to carry out its obligations thereunder. At the Closing, the Guaranty will have been duly authorized, executed and delivered by TUC, and will constitute the valid and legally binding obligation of TUC enforceable against it in accordance with its terms.
The execution, deUvery and performance of the Guaranty will not conflict with or result in any violation of, or constitute a default under, (i) the Articles of Incorporation or by-laws of TUC, or (ii) any material provision of any mortgage, indenture, lease, agreement or other instrument to which TUC is subject or a party, or (iii) any permit, concession, grant, franchise, license, i
judgment, order, decree, statute, law, ordinance, rule or regulation applicable to TUC or i
l any of its property; or with the passage of time or the giving of notice or the taking of t
any action by any third party, have any of the effects described herein.
3.5 Accuracy of Representations and Warran ties.
' All representations and i
warranties of TU Electric contained herein are, and will be at the time of the Closing, accurate and complete in all material respects and all documents delivered by TU Electric to Brazos incident hereto are, and will be at such time, valid and authentic in all respects. !
ARTICLE IV PRE-CLOSING OBLIGATIONS Brazos and TU Electric, as appropriate, covenant that between the date of this Agreement and the Closing Date:
4.1 Representations. Warranties and Covenants. Brazos shallnot take any action which would result in the representations and warranties set forth in Article II hereof being inaccurate, incorrect or incomplete to the extent applicable as of the Closing Date and Brazos shall take all such action as may be necessary to insure that all covenants and agreements of Brazos set forth in this Agreement which are required to be performed by it at or prior to the Closing Date will have been so performed.
TU Electric shall not take any action which would result in the representations and Wdrranties sat forth in Article III hereof being inaccurate, incorrect or incomplete to the extent applicable as of the Closing Date and TU Electric shall take allsuch action as may be necessary to insure that all covenants and agreements of TU Electric set forth in this Agreement which are required to be performed by it at or prior to the Closing Date will l
have been so performed.
4.2 Abatement of Participation in Pending Litigation.
For purposes of this Section 4.2, the term "TU Electric" shall include not only TU Electric but TUC and its subsidiaries, Texas Utilities Mining Company and Texas Utilities Services Inc., all of which are parties to the Pending Litigation.
Immediately after the execution hereof and to the fullest extent that would not violate court orders in effect in the Pending Dallas Suit, Brazcs shall abate all of its voluntary activities in connection with the Pending Litigation, including cessation of the furnishing of any assistance, financial or otherwise, to any party to such litigation and the retention and furnishing of advice or direction to any attorneys of or consultants to any party to such litigation, and any other activity adverse to TU Electric pertaining thereto.
In such regard, Brazos agrees that it will immediately direct any attorneys and consultants retained solely by it in connection with the Pending Litigation to abate their
work, a.nd, consistent with any agreements Brazos may have with TMPA and/or Tex-14 and consistent with any agreements Brazos may have with consultants hired jointly with TMPA and/or Tex-La (all of which agreements are terminable and will be abated by Brazos immediately after the date hereof and terminated by Brazos upon the Closing),
Brr,zos w!!! as soon as possible withdraw its authorization to any other attorney or consultant employed jointly by it and any of the other parties to the Pending Litigation to incur fees or expenses chargeable to Brazos. Specifically with regard to the Pending Litigation, Brazos (and TU Electric to the extent specified herein) agrees to take the following actions:
(a)
Brazos agrees to the continued abatement of the Pending Austin Suits and agrees not to revive such actions during the pendency of this Agreement and to take any action necessary to oppose such revival as to Brazos. In the event the Pending Dallas Suit is nonsulted in accordance with paragraphs (d) and (e) hereof, Brazos shall not claim that such nonsult entitles Brazos to revive the Pending Austin Suits; (b)
Brazos and TU Electric agree to file within three (3) days after the date hereof and diligently pursue a joint motion to sever each of their respective Subject Claims against each other in the Pending Dallas Suit; (c)
Brazos and TU Electric agree as part of the joint motion required by paragraph (b) hereof to request jointly that the Court in the Pending Dallas Suit approve a standstill agreement with respect to the severed Subject Claims whereby the current scheduling order is withdrawn with respect to the severed Subject Claims and no new scheduling order or trial setting is made, and no discovery or any other steps to advance the litigation between Brazos and TU Electric shall be taken unless this Agreement is terminated or the transactions contemplated hereunder to be consumm ated prior thereto are j
not consummated on or prior to the Closing Date, pavided, however, any l
l costs incurred and assessed against Brazos by the Court in the Pending Dallas I
l
-2 0 -
l t
Suit after approval of such standstill agrer. ment shall be paid by TU Electric until such time as this syrreement is termine.ted or the transactions contemplated hereunder to be consummated prior thereto are not consummated on or prior to the Closing Datet (d)
If for any reason the Court in the Penoing Dallas Suit refuses to grant the severance or refuses to approve the stendstill agreement referenced above prior to the end of three (3) weeks after the date hereof, Brazos and TU Electric agree to immediately nonsult each of their respective Subject Claims against each other filed in the Pending Dallas Suit on such date which shall be three (3) weeks after the date hereof (or the next day the Court is open for business if such date is a holiday), provided that, as specified in Section 9.7 of this Agreement, TU Electric shall have the right to retain Brazos as a party to the Pending Dallas Suit but only for the p srposes specified in said Section 9.7; (e)
If it is necessary for Brazos and TU Electric to nonsuit the Subject Claims filed against each other in the Pending Dallas Suit, Brazos and TL,1 Electric agree that such nonsults will not operate to prejudice eithet party's position with respect to the Subject Claims they have made and legal positions they have taken in the Pending Litigation.
In the event this Agreement is terminated or the transactions contemplated hereunder to be consummated prior thereto are not consummated on or prior to the Closing Date, Brazos and TU Electric agree that their Subject Claims in the Pending Dallas Suit shall be refiled in Dallas County in the New Lawsuit in the 14th Judicial District Court (and if such suit is not assigned initia!!y to such Court, Brazos and TU Electric agree to thereafter file a Joint Motion to transfer suel, suit to such Court), within five (5) Business Days after such terminationi of this Agreement or failure to Gse hereunder on the Closing Date, with TU Electric as the plaintiff and Brazos as defendant and counter-plaintiff,.. _ -.
and that Brazos will not oppose venue in Dallaa County, Texas except to the extent that Bra s could on the date of this Agreement contest venue in Dallas County, Texas in the Pending Dallas Suit. In the event this Agreement is terminated or the transactions contemplated hereunder to be consummated prior thereto are not consummated on or prior to the Closing Date, Brazos will retain, without limitation, any and all rights Brazos may now have to appeal the order of the Court in the Pending Dallas Suit dated September 19, 1986.
For all purposes, including, without limitation, (i) any statute of limitations claim, (ii) any claim concerning Sld.069 of the Texas Civil Practice and Remedies Code, and (111) any claim asserted in the Pending Austin Suits (including without limitation, any Subject Claim concerning which suit was first filed), the New Lawsuit will be considered as having been filed by TU Electric on May 29, 1986, and Brazos' counterclaim in the New Lawsuit will be considered as having been filed by Brazos on June *0,1986.
All discovery, including documents produced and depositions taken, which had been conducted in the Pending Dallas Suit up to the execution of this Agreement, shall be for all purposes considered as having been taken in the New Lawsuit, and all orders issued by the Court in the Pending Gallas Suit up to the execution of this Agreement (except the scheduling order) shall h' ave the same force and effect as if they had been issura in the New Lawsuit; (f)
No efforts made or cooperation given by Brs;os' officers, employees, agents, consultants, experts or attorneys (ine;uding, without limitation, Joseph Robert Riley, Spiegel & McDiarmid and Locke Purnell Rain Harrell) pursuant to or under any provision of this Agreement shall create any conflict of interest which would prevent any such employees, agents, consultants or attorneys from participating adversely to TU Electric in any legal proceeding brought by TU Electric against Brazos and/or by Brazos against TU Electric should this Agreement be terminated or should the transactions contemplated c
i under this Agreement to be consummated prior thereio not be consummated on or before the Closing Date. TU Electric hereby waives any such conflict of interest which might otherwise exist because of any such effort or cooperation; and (g)
If it is necessa y to nonsult the current Subject Claims, as set forth in paragraphs (d) and (e) above, then in such event upon or at any time'atter the Closing, if TU Electric requests, Brazos and TU Electric agree that their Subject Claims in the Pending Dallas Suit shall be refiled in the New Lawsuit in Dallas County and that the New lawsuit and all such Subject Claims shall then irnmediately be dismissed with prejudice.
4.3 Agreement to Obtain Approvals. Brazos shall ne all reasonable efforts to obtain with respect to Brazos and TU Electric shall use all reasonable efforts to obtain with respect to TU tlau!c all necessary consents, approvals, authorizations, permits, certificates or orders of any court, tribunal or governmental agency or authority, Federal, state, county or municipal, or other entity which are required by any applicable statute or other law or by any judgment, order or decree or any rule or regulation of any court, tribunal or governmental agency or authority, Federal, state, county or municipal, or any agreement or other requirement to permit each of them, respectively, to execute, deliver or perform this Agreement and any agreement or instrument required hereby to be executed and delivered by either of them at the Closing.
ARTICLE Y CONDITIONS TO OBIJGATIONS TO CLOSE 5.1 Conditions to Obligation of Brazos to Close. The obligation of Brazos to consummate and close the transactions contemplated by this Agreement at the Closing is subject to the satisfaction of each of the following conditions at'or prior to the Closing:
(a)
Representations and Warranties.
The representations and warranties of TU Electric contained in this Agreement shall have been true and correct on and as of the date hereof and shall be true and correct on and as of the Closing Date in all material respects as though such representations and _ _.
warranties had bsen made on and as of the Closing Date, and TU Electric shall have delivered to Braz:s a certificate, dated as of the Closing Date, of its Chairman of the Board, a Division President or a Vice President to the foregoing effect; (b)
CompUance With Agreement.
TU Electric shall have fully performed and complied with all of the covenants, agreements and conditions to be performed or complied with by it at or prior to the Closing (including without i
limitation its assumption obligations with respect to the Joint Ownership Agreement), and TU Electric shall have delivered to Brazos a certificate, dated as of the Closing Date, of its Chairman of the Board, a Division President or a Vice President to the foregoing effect; (c)
Receipt of Payment.
TU Electric shall have delivered to Brazos the payments referenced in paragraphs (a) and (b) of Section 1.5 hereof; (d)
Receipt of Closing Documents. Brazos shall have received the fully executed Closing documents described in Article Yll hereof to be delivered at the Closing; and (e)
. Consent to Assignment Agreement. The REA shall have entered into the Consent to Assignment Agreement attached to the Assignment Agreement, thereby accepting assignment of the Note as a mechanism for paying the Brazos Comanche Peak Debt and assignment of the Mortgage and the vendbrs lien contained in the Special Warranty Deed with Vendors Lien and Bill of Sale as security for the payment of the Note.
(f)
Receipt of LR.S. Determination. Brazos shall have received an acceptable Internal Revenue Service determination or IAtter Ruling that no payments to be made under this Agreement and the Note will, when added to other nonmember revenues of Brazos, adversely affect Brazos' tax-exempt status under Section 501(c)(12) of the Internal Revenue Code of 1986.
5.2
_ Conditions to Obligation of TU Electric to Close.
The obugation of TU Electric to consummate the transactions contemplated by this Agreement at the Closing is subject to the satisfaction of each of the following conditions at or prior to the Closing: _ _ _
(a)
Represintations and Warranties, Re representations and warranties of Brazos contained in this Agreement shall have been true and correct on and as of the date hereof and shall be true and correct on and as of the Closing Date in all material respects as though such representations and warranties had been made on and as of the Closing Date, and Brazos shall have delivered to TU Electric a certificate, dated as of the Closing Date, of its President or Executive Vice President and General Manager to the foregoing effect; (b)
Compliance with Agreement. Brazos shallhave fully performed and complied with all of the covenants, agreements and conditions to be performed or complied with by it at or prior to the Closing, and Brazos shall have delivered to TU Electric a certificate, dated as of the Closing Date, of its President or Executive Vice President and General Manager to the foregoing effect; (c)
Delivery of Pending Litigation Documentation. At the Closing, Brazos shall have delivered to TU Electric the originals and all copies of all documents and other written material in its custody, control or possession (including without limitation those held by Brazos' agents, attorneys and consultants) pertaining to or involving the Pending Litigation, other than copies of those which are filed in the Pending Litigation or at the NRC or which are privileged or which may be the work product or the product of Brazos' attorney's or consultant's joint defense activities, if any, prepared 'in connection with the Pending Litigation or correspondence to or from TU Electric or its attorneys or other correspondence or documents copies of which have been provided to TU Electric or its attorneys. Such documents or other written material which are essential to the conduct of Brazos' on-going business activities may be retained by Brazos except for one copy which will have been delivered to TU Electric prior to the Closing.
As concerns privileged or joint defense documents or written material, Brazos shall, to the full extent permitted by law, exercise such privileges and claims of confidentiality as may be available to prevent disclosure thereof to any person or entity, private or governmental; and (d)
Receipt of Cl sing Documents. TU Electric sh:11 have received the Closing documents described in Article VI hereof to be delivered at the Closing.
5.3 Conditions to Obligation of Both Parties to Close. The obligation of the parties to consummate the transactions contemplated by this Agreement at the Closing Date is subject to the satisfaction of each of the following conditions at or prior to the Closing Date:
(a)
No Adverse Proceeding. 'Ihere shall not be peading any suit, action or other proceeding by any person before any court or arbitrator or any governmental department, commission, board, bureeu, agency or instrumentality in which it is sought to restrain or prohibit any of the transactions contemplated by this Agreement.
(b)
Wiver of Right of First Refusal Immediately upon execution of this Agreement, Brazos will notify TMPA and Tex-La of the execution of this Agreement by means of the notice attached hereto as Exhibit G.
By the Closing Date, TMPA and Tex-La will have executed an irrevocable waiver or other sufficient relinquishm:nt of any rights of first refusal or consent to sale that TMPA and Tex-la may have under the Joint Ownership Agreement (it being agreed that failure to exercise such right in accordance with the terms of the Joint Ownership Agreement by TMPA or Tex-La in response to the notice from Brazos within the time period specified in the Joint Ownership Agreement will constitute sufficient relinquishment of the rights of first refusal of TMPA or Tvx-la as the case may be) with respect to any transaction provided for herein or such rights shall have been validly l
exercised, in whole or in part, by either or both of TMPA and Tex-La and the purchase which arises as a result of such exercise fully consummated. In the event that either or both of TMPA and Tex-La shall have exercised any such rights of first refusal to the extent that TMPA and/or Tex-La acquire all of Brazos' interest in the Purchased Assets, Brazos shall promptly refund to i
TU Electric the full amount of the Signing Payment less $15,022,581 and i
Brazos shall, in consideration for retaining said $15,322,581 of the Signing f
l __
i Payment, perform its obligations pursuent to Article IV, Sections 5.2(c),
Section 8.1, Section 9.1, Section 9.2, Section 9.5, Section 9.6 and Section 9.7 hereof. It is agreed by Brazos and TU Electric that the purchase price under this Agreement of the Purchased Assets include, an amount, in addition to the payment of cash and delivery of the Note by TU Electric, which represents the forgiveness of certain indebtedness of Brazos to TU Electric under the Joint Ownership Agreement which TU Electri; coctends Brazos owes it but which Brazos does not admit is owing to TU Electric (the "Brazos JOA Debt").
In such connection, it is understood that inasmuch as such forgiveness of the Brazos JOA Debt is part of the purchase price of the Purchased Assets, Brazos shall require either TMPA or Tex-la, as purchaser of Brazos' interest in the Purchased Assets pursuant to any rights of first refusal or consent to sale under the Joint Ownership Agreement to pay, and, therefore, such purchaser would be required to pay TU Electric and fully satisfy it with respect to the Brazos JOA Debt pertaining to Brazos' interest in the Purchased Assets, purchased by TMFA and/or Tex-la. In the event that TMPA and/or Tex-la exercise any such rights of first refusal to the extent that all of Brazos' interest in the Purchased Assets has not been acquired by TMPA and/or Tex-la, after consummation of the sale to TM'PA and/or Tex-la, Brazos shall promptly refund to TU Electric a proportional amount of the Signing Payment (calculated after deducting $15,322,581) equivalent to the proportion of the Purchased Assets which TMPA and/or Tex-La has elected to acquire.
Brazos shall be entitled to retain the
$ 15,322,581, together with the balance of the Signing Payment not refunded to TU Electric and Druos and TU Electric agree to perform this Agreement with respect to the portion of the Furchased Assets not acquired by TMPA and/or Tex-la in the manner set forth herein, with appropriate proportional modifications to the payment obligations of TU Electric herein, and to the
\\
obligations of Brazos herein to deliver all of the Purchased Assets, as well as
(
all of the other provisions of this Agreement, in addition, Brazos shell refund to TU Electric a proportional amount of the payments that TU Elecfic has made with respect to the Brazos Comanche Peak Debt equivalent to the proportion of the Purchased Assets being acquired by TMPA and/or Tex-La, and TMPA or Tex-14 shall pay TU Electric the Brazos JOA Debt to the extent set forth hereinbefore.
(c)
Approval by PUC. By final action subject to no further appest, the PUC shall l
have approved the transfer to TU Electric of Brazos' certificate of convenience and necessity with respect to the Station and the Transmission Facilities permitting TU Electric's acquisition and ownership of Brazos' ownership interest in the Station.and the Transmission Facilities in accordance with the terms hereof.
In such connection, TU Electric and Brazos will file within fifteen (15) Business Days of the date of this t
Agreement and prosecute to the best of their ability a joint application for approval of the transfer of such certificate of convenience and necessity rights and such other applications or filings with the PUC as shall be necessary and essential in connection with the transactions contemplated under this Agreement. In connection with all such proceedings, euh party will bear its own cost and expense of prosecuting such applications or filings, a
Upon the issuance by the PUC of any order or other document purporting
]
to give the approval contemplated under this Agreement with or without l
conditions, the parties, with their respective attorneys and other consultants, 1
shall promptly confer and endeavor in good faith to determine if such order or other document evidences the final approv' l contemplated by this a
Agreement without any condition that is deemed by *lther party to be inconsistent with the provisions of this Agreement.
It is understood and 2
agreed that, in connection with such applications and filings, TU Electne will
-2 8 -
request the PUC not to prejudge either the reasonableness or the recoverability in TU Electric's rates of the consideration payable hereunder and to defer any such determinations to a subsequent TU Electric rate case; however, should the PUC refuse to defer such determination and detarmine in such certification proceedings that all or any portion of the consideratian payable hereunder is unreasonable or shall not be recoverable in TU Electric's rates, such determination shall be deemed by TU Electric to be inconsistent with the provisions of this Agreement and therefore shall be inconsistent for the purposes hereof. If such determination is affirmative the parties shall promptly execute a stipulation dated currently to such effect.
If such determination is negative, the parties, at their own cost and expense, respectively, will undertake to cause the PUC to issue such further order or document evidencing its approval as contemplated by this Agreement, including the elimination of any such condition that was deemed by either party to be inconsistent with this Agreement and upon the issuance of any further order or other document by the PUC in such proceedings the same procedures will be followed by the parties as provided in the case of the order or other document first issued by the PUC in such proceedings, including the execution of a stipulation dated currently evidencing the affirmative action by the parties in respect of the order or other document issued by the PUC.
De date of any stipulation executed by the parties under this paragraph is referred to as the "PUC Affirmative Date." De provisions of this paragraph shall not affect or detract from the rights of Brazos or TU Electric under Sections 10.1 or 10.2 hereof.
(d)
Approval by NRC. De NRC shall have grawi all necessary and essential approvsls and consents with respect to the transactions provided for herein, including without limitation the entry of a final non eppealable order approving the sale of Brazos' right, title and interest in the Station and Fuel to TU Electric in accordance with the terms hereof h such connection,it is understood and agreed that TU Electric will file within fifteen (15) Business Days of the date of this Agreement and prosecute to the best of its ability all applications or filings with the NRC as shall, in its judgment, be necessary
-and essential in connection with the transactions contemplated under this l
Agreement. TU Electric will deliver promptly to Brazos copies of all such applications and filings and will advise Brazos on a current basis with respect to the status of any such proceeding. In connection with all such proceedings, Brazos will, at Brazos' reasonable cost and expense, at the request of TU Electric, render all such assistance as may be appropriate under the circumstances, including without limitation, providing such of its personnel as may be appropriate to testify and otherwise participate in any such proceedings in support of this Agreement.
Upon the issuance by the NRC of any order or other document purporting to approve the transactions contemplated under this Agreement with or without conditions, TU Electric will promptly deliver to Brazos a reproduced legible co"' of such order or other document, and the parties, with their respective attorneys and other consultan's, shall promptly confer and endeavor in good faith to determine if such order or other doeurnent evidences the final approval of the NRC of such transactions contemplated by this Agreement without any condition that is deemed by either party to be inconsistent with the provisions of this Agreement. If such determination is affirmative the parties shall promptly execute a stipulation dated currently to such effect.
If such determination is negative, TU Electric, with the assistance of Brazos, which shall be at Brazos' reasonable cost and expense, will undertake to cause the NRC to issue such further order or document i
evidencing its approval of such transactions including the elimination of any such condition that was deemed by either party to be inconsistent with this
-3 0-
Agreement and upon the issuance of any further order or other document by the NRC in such proceedings the same pmedures will be followed by the parties as provided in the case of the order or other document first issued by the NRC in such proceedings, including the execution of a stipulation dated currently evidencing the affirmative action by the parties in respect to the order or other document issued by the NRC. The date of any stipulation executed by the partie's under this paragraph is referred to as the "NRC Affirmative Date." 1he provisions of this paragraph shall not affect or detract from the rights of Brazos or TU Electric under Sections 10.1 or 10.2 hereof.
(e)
Approval of REA. CFC and FFB. The REA, the CFC and the FFB shall have granted all necessary and essential approvals and consents with respect to the transactions provided for herein, incluaing without limitation, their consent to the Assignment Agreement and the acceptance by them of the assignment
- of the Note, the Mortgage and the vendors lien contained in the Special Warranty Deed with Vendors Lien and Bill of Sale at a payment mechanism and security for such payment mechanism with respect to all promissory notes, mortgages, or other evidences of indebtedness and security agreements or arrangements with respect to the payment thereof, that Brazos may have in favor of the REA, the CFC and the FFB with respect to the Brazos Comanche Peak Debt, so that at the Closing Date Brazos, TU Electric and the REA will enter into the Assignment Agreement and pursuant thereto deliver to the REA the Note and the Mortgage in return for which the REA, the CFC and the FFB will execute and deliver to Brazos all such receipts, releases, termination statements and other documents as shall be necessary or appropriate in the estimation of Brazos and TU Electric to provide for and evidence the termination and release of all mortgages, liens and other security instruments in connection with the Brazos Comanche Peak Debt. In s ;
i
such connection, it is end:rstood and agreed that Braz:s will carry on discussions with the REA, the CFC and the FFB in order to obtain their consent and agreement in the foregoing respects. In connection with all such undertakings, TU Electric will, at TU Electric's cost and expense, at the request of Brazos, render all such assistance as may be appropriate unde the circumstances, including without limitation, providing such of its personnel as L
may be appropriate to participate in any such undertakings in support of this Agreement.
(f)
, Execution of Transmission Services Agreement. Brazos and TU Electric shall have executed an appropriate amendment of the Transmission Agreement between Brazos and TU Electric's corporate predecessors, executed on July 25,1979, to reflect Brazos' sale of the Transmission Facilities to TU Electric.
ARTICLE VI CLOS _ING DOCUMEN"e5 FROM BRAZOS As a condition of Closing, Brazos and the referenced tttorney, in each case as appropriate, will deliver to TU Electric on the Closing Date the following:
6.1 Deeds and Transfers, etc.
(i) Ar, executed and acknowledged Specirl Warranty Deed with Vendor's Lien and Bill of Sale: (11) duplicate counterparts of the amendment etatemplated under Section 5.3(f) hereof; and (iii) the Release, Covenant'Not to Sue and Ldemnity Agreement specified in Sections 0.1, 9.2 and 9.5 hereof.
6.2 U en Search, Real property search certificates from a reputable title company and a UCC search certificate from the Secretary of State of Texas disclosing no security interests, judgments or other liens outstanding against Brazos' ownership Interest in the Purenased Assets, other than the Permitted Exceptions and tiens securing the Brazos Comanche Peak Debt and other Brazos debt to be released at or prior to the Closing.
6.3 Certificate of Secretarial Officer.
A certificate of the Secretary or an Assistant Secretary of the Board of Directors of Brazos, dated the Closing Date, with
-3 2 -
respect to the incumbency of officers snd their signatures, the existence and good standing of Brazos, and the due adoption of resolutions by the Board of Directors of Brazos and the requisite number of the Members of Brazos authorizing the execution, delivery and performance of this Agreement and the other agreements and instruments to be delivered to TU Electric at the Clos:ng.
6.4 Counsel Opinion.
An opialon of Joseph Robert Riley, counsel for Brazos, dated the Closing Date and addressed to the TU Electric in the form set forth in E:thibit H attached hereto.
ARTICLE VII CLO6ING DOCUMENTS PROM TU ELECTRIC As a condition of Closing, TU Electric and the referenced attorneys, in each case as appropriate, will deliver to Brazos on the Closing Date the following:
7.1 Proof of Payment. Proof of the payment to Brazos pursuant to Section 1.5(b) hereof.
7.2 Other Instruments.
(i) The executed Note and Mortgage; (ii) duplicate counterparts of the amendment contemplated under Section 5.3(f) hereof; and (iii) the Release, Covenant Not to Sue, Assumption and Indemnity Agreement specified in Sections 9.3, 9.4 and 9.5 hereof; and (iv) the executed Guaranty.
7.3 Certificate of Secretarial Officer.
A certificate of the Secretary or an Assistant Secretary of TU Electric and TUC, dated the Closing Date, with respect to the incumbency of officers and their signatures, corporate existence and good standing, and, in the case of TU Electric, the due adoption of resolutions of the Board of Directors of TU Electric authorizing the execution, delivery and performance of this Agreement and the other agreements and instruments to be delivered by TU Electric to Brazos pursuant hereto at the Closing and, in the case of TUC, the due adoption of resolutions of the Board of Directors of TUC authorizing the execution, delivery and performance of the Guaranty to be delivered by TUC to Brazos pursuant hereto at the Closing.
7.4 C unsel's Opinion. An opinion of Worsham, Forsythe, Sampels & Wooldridge, counsel for TU Electric and TUC, dated the Closing Date and addressed to Brazos in the form set forth in Exhibit Iattached hereto.
ARTICLE VIII CLOSING AND INDEMNIFICATION 8.1 Indemnification by Brazos. Brazos agrees to indemnity, hold harmlets and defend TU Electric and anyone related to or affiliated with TU Electric, including its parent, subsidiaries and affiliates and anyone related to or affiUated with such parent, subsidiaries or affiliates, from and against any and all claims, demands, liabilities, losses, costs and expenses, including reasonable attorneys' fees, which TU Electric or anyone related to or affiliated with TU Electric, including its parent, subsidiaries and affiliates and anyone related to or affiliated with such parent, subsidiaries or affiliates, may sustain and which arise out of or are based upon or relate to the inaccuracy or falsity of any representation or warranty made by Brazos set forth in this Agreement or in any other agreement or instrument delivered pursuant hereto or the breach or nonperformance by Brazos of any covenant or agreement with TU Electric or anyone related to or affiliated with TU Electric, incl'Jding its parent, subsidiaries and affidates and anyone related to or affiliated with such parent, subsidiaries or affiliates, made by Brazos set forth in this Agreement or in any other agreement or instrument delivered pursuant hereto.
8.2 Indemnification by TU Electric. TU Electric agrees to indemnify and hold harmless and defend Brazos and Brazos' Members and anyone related to or affiliated with Brazos and Brazos' Members from and against any and all claims, demands, liabilities, losses, costs and expenses, including reasonable attorneys' fees, which Brazos, its Members or anyone related to or affiliated with Brazos or its Members may sustain and which arise out of or are based upon or relate to the inaccuracy or falsity of any representation or warranty made by TU Electric set forth in this Agreement or in any other agreement or instrument delivered pursuant hereto or the breach or nonperformance I
by TU Electric of any covenant or agreement with Brazos, its Members or anyone related 1
ts or affiliated with Brazos or its Members made by TU Electric set forth in this Agreement or in any agreement or instrument delivered pursuant hereto.
8.3 Survival of Representation and Warranties. The representations, warranties, covenants and agreements of the parties hereto shall survive the execution and delivery of this Agreemen'. and the consummation of the transactions contemplated hereunder for a period of four (4) years after the Closing Date or for such longer period as may be commensurate therewith for any document delivered pursuant hereto which is in effect for a longer period than such four years.
8.4 Notice and Opportunity to Participate in Defense. In the event that Brazos, its Members or TU Electric or any of its parent, subsidiaries or affiliates, or anyone related to or affiliated with any of them, receives notice of the commencement of any action or proceeding or the assertion of any claim in respect of which Brazos, its Members or TU Electric or any of its parent, subsidiaries or affiliates, or anyone related to or affiliated with any of them, may be entitled to indemnification, the party receiving such notice shall give the indemnifying party written notice within ten (10) calendar days thereof (except that failure to so notify will not relieve the indemnifying party of its obligations hereunder except to the extent it has been prejudiced thereby) and the opportunity to participate in the defense thereof and in any settlement negotiations with i
respect thereto, and will cooperate with the other party in all reasonable respects *and make available to the other party all records, evidence and personnel for consultation and testimony reasonably requested by the other party in connection therewith.
The settlement of any such action, proceeding or claim without the prior written approval of the indemnifying party shall relieve such party of any obligations to the indemnified party in respect of the subject matter of the settlement of such action, proceeding or claim.
ARTICLE IX SETTLEMENT OF PENDING IJTIGATION 9.1 Brazos' Release. Upon the Closing, Brazos, for itself and on behalf of any person or entity, private or governmental, claiming by, through or under Brazos, including
-3 5 -
without limitation, to the extent it has the standing and right undr,r law to do so, its Members and customers (including the customers of Brazos' M1mbers and other wholesale customers) and its or their respective insurers, agents, servants, employees, officers, directors, consultants, attorneys and representatives, shall waive, release, discharge, renounce and reSnquish any and all Subject Claims relating to Comanche Peak it has or they have, or may have, whether known or unknown, contingent er absolute, including, without limitation, those based on common law, whether contract (expressed or implied, including express or implied warranty) or tort (including, without limitation, intentional tort, negilgence or gross negligence, sole, joint or concurrent) or strict liability or fraud, and those based upon any Federal, state or local statute, law, order or regulation, including, without limitation, the Atomic Energy Act of 1954, as amended, the regulations of the NRC, the Securities Act of 1933, as amended, or the Securities Act of 1934, as amended, and any rule or regulation under either, the Texas Securities Act (Title 19, Articles 581-1, et seq., V. A.T.S.) and the Texas Deceptive Trade Practices and Consumer Protection Act, against TU Electric or TUC, or both, in any capacity, whether individually, as Project Manager of Comanche Peak or otherwise, and their respective insurers, agents, servants, employees, officers, directors, shareholders, consultants, attorneys and representatives, past and present, and any and all of their respective successors, subsidiaries and affiliates and their respective insurers, agents, servants, employees, officers, directors, shareholders, consultants, attorneys and representatives, past and present, except Subject Claims arising out of or under this Agreement or any of the other agreements or instruments to be delivered by TU Electric or TUC pursuant hereto. Brazos hereby covenants and warrants that it has not assigned any Subject Claims that are to be released at the Closing. At the Closing, Brazos will execute and deliver to TU Electric the form of Release attached hereto as Exhibit J.
9.2 Brazos Covenant Not to Sue. Except as provided for in Section 4.2(g) hereof, upon the Closing, Brazos, for itself and on behalf of any person or entity, private or governmental, claiming by, through or under Brazos, including without limitation, to the extent it has the standing and right under law to do so, its Members and customers (including the customers of Brazos' Members and other wholesale customers) and its or their respective insurers, agents, servants, employees, officers, directors, consultants, attorneys and representatives, shall agree and covenant that it and they, individually, collectively or in any combination, will forebear from asserting against, and never sue for or look for satisfaction with respect to, TU Electric and TUC and their respective insurers, agents, servants, employees, officers, directors, shareholders, consultants, attorneys and representatives, past and present, and any and all of their respective successors, subsidiaries and affiliates and their respective insurers, agents, servants, employees, officers, directors, shareholders, consultants, sttorneys and representatives, past and present, any Subject Claim (including without limitation any Subject Claim against any contractor, subcontractor, supplier, consultant, vendor or other person, firm or entity in privity in any manner with any of them which may therefor or as a result thereof have a right over or Subject Claim in subrogation) in any manner involving, concerning, arising out of, or relating to, the design, construction, management and licensing of, or any other matter relating to, Comanche Peak, and the management, procurement, conversion, enrichment, fabrication, shipping, transportation and storage of the Fuel, except for claims arising out of or under this Agreement or any of the other agreements or instruments to be delivered by TU Electric, or any of TU Electric's affiliates, subsidiaries or parent company, pursuant hereto; and Brazos, for itself and on behalf of any person or entity, private or governmental, claiming by, through or under Brazos, including without limitation, to the extent it has the standing and right under law to do so, its Members and customers (including the customers of Brazos' Members and other wholesale customers) and !ts or their respective insurers, agents, servants, employees, officers, directors, consultants, attorneys and representatives hereby further agrees and covenants that, upon and after the Closing, neither it nor they, individually, collectively or in any combination, will directly or indirectly, challenge, contest or assert any complaint in any court or before any administrative agency or body or in any other I
forum whatsoever with respect to, or in any muiner involving, concerning, arising out of, or relating to, Comanche Peak and the incidents and attributes thereof including, witP.out limitation, the design, construction, management and licensing of Comanche Peak or any other aspect thereof, the costs and schedule of construction and completion of Comanche Peak, and the reasonableness, prudency or efficiency of the planning, design, construction, management and licensing of Comanche Peak, and the reasonableness, prudency or efficiency of the management, procurement, conversion, enrichmen t, fabrica tion, shipping, transportation and storage of the Fuel, and the costs incurred in connection with the managt men t, procure ment, conversion, enrichmen t, fabrica tion,
- shipping, transportation and storage of the Fuel, and the breach of the Joint Ownership Agreement and any express or impUed warranties arising out of the Joint Ownership Agreement, and any representation, misrepresentation, disclosure or non-disclosure in connection with the negotiations or preceding the execution by Brazos of the Joint Ownership Agreement, and in connection with the performance or nonperformance by TU Electric of its duties, responsibilities or obligations under the Joint Ownership Agreement as Project Manager or otherwise, and the failure of TU Electric to pursue any remedies, either at law or otherwise, that may be, or may have been, available against any and all contractors, subcontractors, suppliers, consultants, vendors or others with respect ~ te Comanche Peak (including separately the Station, Fuel or Transmissio : Facilities) and on account of anything that has occurred or may have occurred, in whole or in part, with respect to Comanche Peak, (including separately the Station, Fuel or Transmission Facilities) and the incidents and attributes thereof and any of the foregoing whether known or unknown, l
except with regard to Subject Claims arising out of or under this Agreement or any of the other agreements or instruments to be delivered by TU Electric, or any of TU Electric's affiliates, subsidiaries or parent company, pursuant hereto. At' the Closing, 3razos will execute and deliver to TU Electric the form of Covenant Not to Sue attached hereto as Exhibit K.
Further, Brazos covenants and agrees that it will cooperate and assist l
1 TU Electric in connection with all necessary approvals of this Agreement and that it will 1
1
-3 8 -
L
encourage and solleit its attorneys, including Joseph Robert Riley, Spiegel & McDiarmid and Locke Purnell Rain Harrell, and Brazos' separately employed consultants, not tn oppcse or assist any third party in opposing TU Electric in connection with any matters relating to Comanche Peak (except that nothing herein shall be construed to prohibit said attorneys and consultants from representing Brazos in connection with proceedings in which TU Electric's rates are being determined provided that no opposition, or assistance to any third party opposition, to Comanche Peak related costs is made); and, if necessary to prevent a conflict of interest, it being understood and agreed that Brazos' separately employed consultants and attorneys may have obtained or developed information regarding Comanche Peak in the course of the Pending Litigation that arguably could be inequitable for them to otherwise utilize in view of the consideration being rendered by TU Electric hereunder in order to obtain a final settlement of the matters referr this Agreement, Brazos covenants and agrees that it will take all such action as may be necessary or appropriate in order to prevent the consultants and attorneys, including Joseph Robert Riley, Spiegel & McDiarmid and Lc,:ke Purnell Rain Harrell, separately employed by it in connection with, the Pending Litigation, from participating or assisting in any manner adverse to Brazos' duty of cooperation herein or to TU Electric in connection with the Pending Litigation, the Pendir Houston Suit, the Pending Somervell County Suit or any current or future proceedings or matter before the PUC (except'that nothing herein shall be construed to prohibit said attorneys and consultants l
from representing Brazos in connection with proceedings in which TU Electric's rates are being determined provided that no opposition, or assistance to any third party opposition, to l
Comanche Peak related costs is made) or the NRC involving or relating to Comanche Peak, or any current or future proceedings (except that nothing herein shall be construed to prohibit said attorneys and con.sultants from representing Brazos in connection with proceedings in which TU Electric's rates are being determined provided that no opposition, or assistance to any third party opposition, to Comanche Peak related costs is made) before any court or bclare any administrative agency or body or in any other forum l
-3 9 -
whatsoever with re.gact to, or in any manner involving, concerning, arising out of, or relating to:(i) the acts or omissions of TU Electric or the Project Manager referred to or in question in the Pending Litigation or which could have been brought into question in the Pending Litigation; or (ii) the acts or omissions of TU Electric or the Project Manager with respect to Comanche Peak that occur, in whole or in part, prior to the Date of Commercial Operation (as said term is defined in the Joint Ownership Agreement). The covenant set forth in the prior sentence shall survive Closing hereunder and remain in force until the expiration of any Subject Claim covered thereby.
9.3 TU Electric Release. Upon the Closing, TU Electric, for itself,
..ialf of its parent, TUC, and their subsidiaries and affiliates and on behalf of any person or entity, private or governmental, claiming by, through or under TU Electric or TUC, including without limitation, to the extent it has the standing end right under law to do so, their customers, and on behalf of their respective insurers, agents, servants, employees, officers, directors, consultants, attorneys and representatives shall waive, release, discharge, renounce and relinquish any and all Subject Claims relating to Comanche Peak (including separately the Station, Fuel or Transmission Facilities) it has or they have, or may have, whether known or unknown, contingent absolute, including, without or l
limitation, those based on common law, whether contract (express or implied, including i
express or implied warranty) or tort (including, without limitation, intentional tdrt, l
negligence or gross negligence, sole, joint or concurrent) or strict liability or fraud, and tnose based on any Federal, State or local statute, law, order or regulation, including, without limitation, the Atomic Energy Act of 1954, as amended, the regulations of the NRC, the Securities Act of 1933, as amended, or the Securities Act of 1934, as amended, and any rule or regulation under either, the Texas Securities Act (Title 19, Articles 581-1, et seq., V. A.T.S.) and the Texas Deceptive Trade Practices and Consumer Protection Act, against Brazos, its Members and customers (including the customers of Brazos' Members and other wholesale customers) in any capacity, whether individually or otherwise, and its and their respective insurers, agents, servants, employees, officers, directors, consultants,
-4 0-
attorneys and rer
..;ives, past and present, and any and all of their respective successors, subsidiariu and affiliates and their respective insurers, agents, servants, employees, officers, directors, members, consultants, attorneys, and representatives, past and present, except Subject Claims arising out of or under this Agreement or the other agreements and instruments executed and delivered pursuant hereto and except that nothing herein shall prohibit TU Electric from charging Brazos for any electric power and I
energy purchased by Brazos from TU Electric in accordance with the rates set forth in TU Electric's tariff as same may be approved and in effect from time to time even though said rates may include costs related to Comanche Peak. TU Electric hereby covenants and warrants that it has not assigned any Subject Claims that are to be released at the Closing.
At the Closing, TU Electric will execute and deliver to Brazos the form of Release attached hereto as Exhibit L.
9.4 TU Electric Covenant Not to Sue. Except as provided for in Section 4.2(g) hereof, upon the Closing, TU Electric, for itself and on behalf of its parent, TUC and their subsidiaries and affiliates, and any person or entity, private or governmental, claiming by, through or under TU Electric or TUC, including without limitation, to the extent it has the standing and right under law to do so, their customers, and their respective insurers,
- agents, servants, employees,
- officers, directors, consultants, attorneys and representatives shall agree and covenant that it and they, individually, collectively o'r in any combination, will forebear from asserting against, and never sue for or look for satisfaction with respect to, Brazos and its Members and their respective insurers, agents, j
- servants, employees,
- officers, directors,
- members, consultants, attorneys and 1
representatives, past and present, and any and all of their respective successors, subsidiaries, and affiliates and their respective insurers, agents, servants, employees, officers, directors, shareholders, members, consultants, attorneys and representatives, past and present, any Subject Claim in any manner involving, concerning, arising out of, or relating to Comanche Peak, and the management, procurement, conversion, enrichment, fabrication, shipping, transportation and storage of the Fuel, except for claims arising out
' l l
of or under this Agreement or any of the other agreements or instruments to be delivered by Tb diectric pursuant hereto; and TU Electric, for itself and on behalf of its parent, subsidiaries and affiliates, and any person or entity, private or governmental, claiming by, through or under them, including without limitation to the extent it has the standing and right under law to do so, its or their customers, and its or their respective insurers,
- agents, servants, employees, o fficers, directors, consultants, attorneys and representatives hereby further agrees and covenants that, upon and after the Closing, neither it nor they, individually, collcatively or in any combination, will directly or indirectly challenge, contest or assert any complaint against Brazos or its Members in any court or before any administrative agency or body or in any other forum whatsoever with uspect to, or in any manner involving, concerning, arising out of, or relating to, Comanche Peak and the Joint Ownership Agreement and in connection with the performance oc nonperformance by Brazos of its duties, responsibilities or obligations under the Joint Gwnership Agreement, and on account of anything that has occurred or may have occurred, in whole or in part, with respect to Comanche Peak, (including separately the Station, Fuel, or Transmission Facilities) and the incidents and attributes thereof and any of the foregoing whether kr.own or unknown, except with regard to Subject Claims arising out of or under this Agreement se any of the other agraements or instruments to be delivered by TU Electric pursuant hereto and except that nothirg her'ein shall prohibit TU Electric from charging Brazos for any electric power and energy purchased by Brazos from TU Electric in accordance with the rates set forth in TU Electric's tariff as same may be approved and in effect from time to time even though said rates may include costs related to Comanche Peak. At the Closing, TU Electric will l
execute and deliver to Brazos the form of Covenant Not to Sue attached hereto as i
l Exhibit M.
Further, TU Electric covenants and agrees that it will encourags and solicit 1
its attorneys, including Worsham, Forsythe, Sampels & Wooldridge, Jackson, Walku, Winstead, Cantwell & Miller, Hunton & WilL4ms, Ackles, Ackles & Ackles and Roy Minton, and TU Electric's consultants, not to oppose or assist any third party in opposing
-4 2 -
Brazos in connection with any matters relating to Comanche Peak (except that nothing herein shall be construed to prohibit said attorneys and consultants from representing TU Electric in connection with proceedings in which TU Electric's rates are being determined even though said rates may include costs related to Comanche Peak and Brazos may purchase electric power and energy pursuant to said rates); and, if necessary to prevent a conflict of interest, it being understood and agreed that TU Electric's separately employed consultants and attorneys may have obtained or daveloped information regarding Brazos in the course of the Pending Litigation that arguib.y could be inequitable for them to otherwise utilize in view of the consideration being rendered by Brazos hereunder in order to obtain a final settlement of the matters referrec to in this Agreement, TU Electric covenants and agrees that it will W<e all such action as may be necessary or appropriate in order to prevent the consultants and attorneys, including Worsham, Forsythe, Sampets & Wooldridge, Jackson, Walker, Winstead, Cantwell & Miller, Hunton & Williams, Ackles, Ackles & Ackles and Roy Minton, separately employed by it in connection with the Pending Litigation or otherwise, from participating or assisting in any manner adverse to TU Electric's duty of cooperation herein or to Brazos in connection with any current or future proceedings or matter before the PUC (except that nothing herein shall t,e construed to prohibit said attorneys ud consultants from representing TU Electric in connection with proceedings in which TU Electric's rates are being f
determined even though said rates may include costs related to Comanche Peak and Brazos may purchase electri': power and energy pursuant to said rates) involving or i
relating to Comanche Peak, or any current or future proceedings (except that nothing herein shall be construed to prohibit said atwneys and consultants from representing TU Electric in connection with proceedings in which TU Electric's rates are being determined even though said rates may include costs related to Comanche Peak and Brezos may purchase electric power and energy pursuant to said rates) before any court or i
1 before any administrative agency or body or in any other forum whatsoever with respect to, or in any manner involving, concerning, arising out of, or relating to the acts or
-4 3 -
omissions of Brazos referred to or in question in the Pending Litigation or which could have been trought into question in the Pending Litigation. The covenant set forth in the prior sentence shall survive the Closing and remain in force until the expiration of any Subject Claim covered thereby.
i 9.5 Assumption of Liabilities and Obligations and Indemnification.
Effective upon the Closing, TU Electric agrees to assume all of the duties, responsibilities, liabilities and obligations of Brazos under the Joint Ownership Agreement.
- Further, effective upon the Closing, TU Electric agrees to indemnify, hold harmless and defend Brazos and its Members and customers (including the customers of Brazos' Members and other wholesale customers) from and against all Subject Claims or any alleged willful or intentional acts of the Project Manager, its agents, servants, employees or independent contractors acting on behalf of the Project Manager which may be asserted against Brazos and its Members and customers (including the customers of Brazos' Members and other wholesale customers) by any third party (other than Brazos' Memt:ers and customers and the customers of Brazos' Members or other wholesale customers acting in such capacity),
including without limitation Subject Claims predicated upon the alleged actual or imputed negligence or gross negligence of Brazos and its Members and customers (including the n
customers of Brazos' Members and other wholesale customers) arising out of or connected with, the location, planning, design, construction, licensing, condition, maintenarice, operation and decommissioning of Comanche Peak, including but not limited to all claims asserted or which might have been or might hereaftet be asserted in the Pending Houston Suit and in the Pending Somervell County Suit; provided, however, that TU Electric specifically shall not indemnify Brazos and its Members or customers in connection with any Subject Claims which may be asserted by Brazos' Members and customers, and the customers of Brazos' Members or other wholesale customers, or creditors, acting in such capacity, which in sny manner relate to Brazos' participation as an Owner of Comanche Peak or as a party to the Joint Ownership Agreement, or by reason of Brazos' involvement in the Pending Litigation, or by reason of the execution of this Agreement and
-4 4 -
participation in the transactions provided for herein, and provided further, that TU Electric specifically shall not indemnify Brazos in connection with any Subject Claims which may be as::erted by Tex-la or TMPA er others which in any way relate to Brazos' execution of the Joitit Ownership Agreement, or which arise by reason of Brazos' participation in L% Anding Litigatior., or by reason of Brazos' execution of this Agreement and participation in the transactions provided for herein. TU Electric will, in addition to providing such indemnity, assume the defense of Brazos and its Members and customers (and the customers of Brazos' Members and other wholesale customers) in any tribunal where any such claim is asserted. Pursuant hereto, at the Closing TU Electric will execute and deliver to Brazos the form of Assumption and Indemnity Agreement attached hereto as Exhibit b.
Effective upon the Closing, Brazos agrees to indemnify, hold harmless and defend TU Electric, TUC and their respective subsidiaries, affiliates and customers from and against any and all Subject Claims of Brazos or anyone related to or affiliated with Brazos, including Brazos' Members, customers (including the customers of Brazos' Members and other wholesale customers) and creditors, acting in such capacity, relating to Brazos' execution of, or participation in, the Joint Ownership Agreement, Brazos' execution of this Agreement and participation in the transactions provided herein, and Brazos' activities as an Owner separate and apart from joint activities with all other Owners or activities by, through and under the Project Manager. Further, effective upon the Closing, Brazos agrees to indemnify, hold harmless and defend TU Electric, TUC and their respective subsidiaries, affiliates and customers from and against any and all Subject Claims of Brazos or anyone related to or affiliated with Brazos, including Brazos' l
Members and, to the extent they are acting in such capacity, Brazos' customers (including the customers of Brazos' Members and other wholesale customers) and creditors, with i
respect to, or in any manner involving, concerning, arising out of, or relating to: (i) the acts or omissions of TU Electric or the Project Manager referred to or in question in the Pending Litigation or which could have been brought into question in the Pending l
Litigation, including without limitation Subject Claims based upon the negligence or gross
-4 5 -
I
ntgligence, sole, joint or concurrent, of TU Electric or the Project Manager; r.ad (ii) the acts or omissions of TU Electric or the Project Manager with respect to Comanche Peak that occur, in whole or in part, prior to the Date of Commercial Operation (as said term is defined in the Joint Ownership Agreement), including without limitation Subject Claims based upon the negligence or gross negligence, sole, joint or concurrent, of 'IU Electric or the Project Manager. Pursuant hereto, at the Closing Brazos will execute and deliver to j
1 TU Electric the form of Indemnity Agreement attached hereto as Exhibit O.
9.6 Covenant of Cooperation. 'Ihe parties hereby covenant and agree to assist, cooperate with, and support each other (other than financial support) in the event that a third party institutes any action against either of them with respect to Comanche Peak and any incident or attribute thereof, except that neither of them shall be required to take any position which it believes is contrary to its material pecuniary interests or contrary to the truth; provided, however, that in any event, Brazos shall not cooperate with or support any party in the Pending Litigation with regard to the Subject Claims being made therein by Tex-la and TMPA.
9.7 Termination of Participation. To the extent that Brazos can, and riot be in violation of Section 110 of the Energy Reorganization Act, 42 USC Section 5851 (1983),
upon the execution of this Agreement, Brazos, for itself and on behalf of any person or entity, private or governmental, claiming by, through or under Brazos, including without limitatica, to the extent it has the standing and right under law to do so, its Members and customers (including the customers of Brazost Members and other wholesale customers) l and its or their respective insurers, agents, servants, employees, officers, directors, t
[
consultants, attorneys and representatives, agrees and covenants to immediately abate any and all currently pending actions whatsoever, directly or indirectly, involving or relating to the prosecution or processing of any Subject Claims in any way relating to Comanche Peak against TU Electric or TUC, or their respective directors, officers, employees, agents, insurers, consultants or attorneys, past or present, and any and all of their respective successors, subsidiaries and affiliates and their respective insurers,
-4 6 -
~
agents, servants, employees, officers, directors, shareholders, consultants, attorneys and representatives, past and present, presently or hereafter pending in any court or before any administrative agency or body (except Subject Claims being made in the Pending Litigation, which shall be governed by the provisions of Article IV of this Agreement).
In such capacity and to the extent Brazos can and not be in violation of Section 210 of the Energy Reorganization Act, 42 USC Section 5851 (1983) (Brazos hereby representing and warranting that it knows of no violation, actual or alleged, of Section 210 of the Energy Reorganization Act, 42 USC Section 5851 (1983) which has not heretofore been disclosed to TU Electric in writing), Brazos agrees and covenants that Brazos for itself and on behalf of any person or entity, private or governmental, claiming by, through or under Brazos, including without limitation, to the extent it has the standing and right under law to do so, its Members and customers (including the customers of Brazos' Members and other wholesale customers) and its or their respective insurers, agents, servants, employees, officers, directors, consultants, attorneys and representatives, shall not prosecute, directly or indirectly, eziy Subject Claims, objections, motions or other actions adverse to TU Electric in conne,: tion with applications for granting the requisite licenses and approvals for Comanche Peak pending before the NRC and its Atomic Safety and Licensing Boards and. Atomic Safety and Licensing Appeal Boards, including, without limitation, in NRC Dockets Nos. 50-445-OL, 50-446-OL and 50-443-CPA, the ongoing antitrust review relative to the licensing of Comanche Peak, and any and all appeals from rulings and orders of the NRC related to, or growing out of, said Dockets which are pending before any court. Within three (3) Business Days after the Closing, Brazos shall cause the dismissal, with prejudice to the refiling of same in any forum and in any form whatsoever, of all of its Subject Claims sgainst TU Electric, TUC and their subsidiaries and affiliates in the Pending Litigation, and shall withdraw all of its Subject Claims adverse to TU Electric in connection with the granting of the requisite licenses and approvals for Comanche Peak pending in the NRC Dockets Nos. 50-445-OL, 50-446-OL and 50-445-CPA and any and all proceedings in any manner related to, or arising out of, said Dockets,
-4 7 -
i Brazos agrees and covenants, from and after the Closing, to fully cooperate with TU Electric and provide all reasonably requested assistance, includingr providing the legal assistance of its attorneys (including Joseph Robert Riley, Spiegel & McDiarmid and Locke Purnell Rain Harrell), in a timely manner in connection with any legal proceedings (excluding the Pending Litigation) involving Comat.che Peak, including the licensing of Comanche Peak by the NRC, including without limitation the ongoing antitrust review in connection therewith, and all proceedings involving Comanche Peak before the PUC to the extent of not opposing, or assisting any third party in opposing, the position being advocated by TU Electric. Except as specifically provided otherwise in this Agreement, TU Electric shall promptly reimburse Brazos for any and all reasonable out-of-pocket expenses and any and all reasonable outside professional fees, including, without limitation, attorneys fees, incurred by Brazos in providing such cooperation.
9.8 TU Electric Actions and Litigation Costs. Within three (3) Business Days after the Closing, TU Electric shall cause the dismissal, with prejudice to the refiling of same in any forum and in any form whatsoever, of allof its Subject Claims against Brazos in the Pending Litigation; provided, however, that TU Electric shall have the right to retain Brazos as a party to the Pending Dallas Suit, not for the purpose of seeking any affirmative relief against or from Brazos, but for the purpose of defeating a possible contention on the part of the other parties thereto with respect to the absence bf a necessary party to TU Electric's Subject Claims against the other parties in said case (it being understood that TU Electric's position is that any such contention would not be valid). TU Electric shall promptly reimburse Brazos for any and all expenses reasonably incurred because of any such retention of Brazos by TU Electric in the Pending Dallas Suit. It is expressly understood that nothing herein shallin any manner affect, diminish or impair TU Electric's right to fully prosecute any and all of its ' ubject Claims against the S
other parties in the Pending Litigation. Except as provided otherwise above, all costs and expenses related to or incurred in connection with the Pending Litigation shall be borne and paid by the party by whom incurred or to which they are related.
-4 8 -
9.9 Termination of Joint Ownership Agreement Relationship.
Fxcept as otherwise provided in Section 9.5 hereof with respect to TU Electric's assumption of Brazos' obligations under the Joint Ownership Agreement, Brazos and TU Electric hereby agree that, upon the Closing, the Joint Ownership Agreement, as between Brazos and TU Electric, shall be deemed terminated and of no further force and effect as between them, it being understood that under the circumstances described in Article II, Section 6 of the Deed of Trust the Joint Ownership Agreement may be reinstated.
ARTICLE X TERMINATION OF AGREEMENT 10.1 Termination of Agreement by TU Electric. In the event at any time after TU Electric's having given written notice of intent to terminate this Agreement and the lapse of two (2) Business Days of discussion (which shall take place within five (5) days of said written notice of Intent) between Brazos and TU Electric with respect thereto, TU Electric reasonably determines that the Closing cannot occur for reasons that are beyond TU Electric's control, TU Electric may terminate this Agreement upon seven (7)
Business Days' written notice of termination from TU Electric to Brazcs, and Brazos agrees to promptly refund and pay to TU Electric the Signing hyment plus in addition thereto an incremental amount calculated from the date of receipt of the Signing Payment by Brazos at the rate of eight e.nd ene-half percent (8-1/2%) per ernum. Brazos cgrees that it shall have no right to withhold payment cf any amounts it adries to pay herein in respect to or on the basis cf its aueged claims in the Pencing Litigation.
Payment by Brazos of such funds to TU Electric shall constitute acceptance by Brazos of l
TU E'.ectric's right to terminate this Agreement under the circumstances. In the event of such termination, the rights of the Mes with respect to Comanche Peak shall be governed by the Joint Ownership Agreement, tne Transmission Agreement executed on July 25,1979, and the appilcable law as determined and applied in the Pending Litigation or the New Lawsuit.
-4 9 -
1
10.2 Termination of Agreement by Brazos. In the event at any time after Brazos' having given written notice of intent to terminate this Agreement and the lapse of two (2)
Business Days of discussion (which shall take place within five (5) days of said written notice of intent) between Brazos and TU Electric with respect thereto, Brazos reasonably determines that the Closing cannot occur for reasons that are beyond Brazos' control, Brazos may terminate this Agreement upon seven (7) Business Days' written notice of termination from Brazos to TU Electric and Brazos will immediately refund and pay to TU Electric the Signing Payment plus in addition thereto an incremental amount calculated from the date of receipt of the Signing Payment by Brazos at the rate of eight and one-half percent (8-1/2%) per annum. Brazos agrees that it shall have no right to withhold payment of any amounts it agrees to pay herein in respect to or on the basis of its alleged claims in the Pending Litigation. Acceptance by TU Electric of the return of such funds from Brazos shall constitute acceptance by TU Electric of Brazos' right to terminate this Agreement under the circumstances. In the event of such termination, the rights of the parties with respect to Comanche Peak shall be governed by the Joir.t Ownership Agreement, the Transmission Agreement executed on July 25, 1979, and the applicable law as determined and applied in the Pending Litigation or the New Lawsuit.
10.3 Automatic Termination. Unless either the Closing has occurred or there is a written agreement signed by TU Electric and Brazos to extend the date set out in this paragraph, this Agreement shall automatic 611y terminate at 5:00 p.m., Dallas, Texas time, on the date which is at the end of nine (9) months after the date hereof, without any need for the giving of notice or any other action by either TU Electric or Brazos. In the event such termination occurs, Brazos will immediately refund and pay to TU Electric the Signing Payment, plus in addition thereto an incremental amount calculated from the date of receipt of the Signing Payment by Brazos at the rate of eight and one-half percent (8-1/2%) per annum. Payment by Brazos and acceptance by TU Electric of the amount set forth in this paragraph shall constitute acceptance by TU Electric and Brazos of termination of this Agreement. In the event of such termination, the rights of the parties
-5 0 -
with respect to Comanche Peak shall be governed by the Joint Ownership Agreement, the Transmission Agreement executed on July 25, 1979, and the applicable law as determined and applied in the Pending Litigation or the New Lawsuit.
10.4 Termination of Covenants, Releases and indemnifications. If this Agreement Is terminated pursuant to the provisions of Article X hereof and all amounts specified therein are refunded cnd paid by Brazos to TU Electric, all releases, covenants not to sue, Indemnifications, assumptions and guaranties hereunder or contained in any exhibit hereto shall be void and of no effect whatsoever.
ARTICLE XI MISCELLANEOUS PROVISIONS 11.1 Bulk Sales Law Waiver. To the extent it may lawfully do so, TU Electric hereby waives compliance by Brazos with the bulk sales law of any jurisdiction, if applicable, with respect to the transactions contemplated hereby, and Brazos agrees to hold TU Electric harmless from and against any liability, loss, cost or expense, including reasonable attorneys' fees, which TU Electric may sustain by reason of such noncompliance. TU Electric agrees to give Brazos prompt notice of the assertion of any claim resulting from such noncompliance.
l l
11.2 Further Assurance. Brazos agrees that, af ter the Closing, it will from time i
to time, upon the reasonable request of TU Electric, execute, acknowledge 2nd deliver in I
proper form any instrument of conveyance or further assurance necessary for perfecting in TU Electric or its successors and assigns, as the case may be, the title to the Purchased Assets or for carrying out the purpose and intent of this Agreement, 11.3 No Wird Party Beneficiaries. We parties hereto acknowledge and agree that this Agreement is entered into for the sole benefit of TU Electric, TUC, Brazos and Brazos' Members, their respective successors and assigns (to the extent permitted) and, to the extent specifically and expressly set forth elsewhere in this Agreement, their j
respective insurers, agents, servan ts, employees, officers, directors, subsidiaries, affiliates, representatives and customers, and that nothing in this Agreement shall be l
construed as giving any right, benefit, remedy or claim to any person, firm, corporation or other entity, other than TU Electric, TUC, Brazos and Brazos' Members, their respective successors and assigns (to the extent permitted) and, to the extent specifically and expressly set forth elsewhere in this Agreement, their respective insurers, agents, servalts, employees, officers, directors, subsidiaries, affiliates, representatives and custom ers.
Without in any way limiting the foregoing provisions, it is expressly understood that nothing in this Agreement shall affect any of the rights, obligations and remedies among TU Electric and TMPA and Tex-la under the Joint Ownership Agreement or otherwise, 11.4 Default. In the event of default in performance hereunder by either Brazos or TU Electric, the non-defaulting party shall be entitled to all remedies legally available to it including the remedy of specific performance, the parties hereto agreeing that no adequate remedy at law exists.
11.5 Property and Transfer Taxes.
(a)
Property Taxes.
All real and personal property taxes, and other l
l similar taxes, che.rges, and fees impesed on c.r with respect to or j
measured by the Purcho3ed Assets not heretofore paid by Brazos shall be the responsibility and Hability of TU Electric, e;; cept for such l
taxes, charges and fees caused by the action or inaction of Brazos l
l individually or in combination with any of the Owners other than TU Electric or the Project Manager.
(b)
Transfer Taxes.
The payment of any and all real estate transfer, stamp, documentary, deed and recording taxes and fees, and all sales and excise taxes imposed in connection with the Purchased Assets or l
l the sale or transfer of the Purchased Assets shall be the responsibility and liability of TU Electric.
l -
11.6 Expenses. Brazos and TU Electric shall each pay all expenses incurred by them respectively in connection with this Agreement, including the fees of their respective counsel and accountants, if any, except as may be otherwise provided.
11.7 Governing Law. This Agreement shall be construed, and the provisions hereof shall be enforced, in accordance with the laws of the State of Texas, 11.8 Announcements. All press releases or other announcements by TU Electric or Brazos prior to or in connection with the execution of this Agreement shall be approved by Brazos and TU Electric prior to the issuance thereof, which approval shall not be unreasonably withheld.
11.9 Entire Agreement, Amendments. This Agreement, and the other documents delivered pursuant hereto, constitute the entire agreement between Brazos and TU Electric relating to the subject matter hereof and supersede all other prior agreements, representations and understandings between the parties. No supplement to, or modification or amendment of, this Agreement shall be binding, unless executed in writing by both Brazos and TU Electric 11.10 Assigns, etc. 'Ihis Agreement shall be binding upon and inure to the benefit of Brazos and its Members, and TU Electric and TUC, and their respective successors and assigns but shall not confer any rights upon any third persons except to the extent expressly provided herein. This Agreement may not be assigned by Brazos without the written consent of TU Electric oc by I'U Electric without the written consent of Brazos, 11.11 Notices. All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed to have been duly given (a) If served personally on the party to whom notice is to be given at the addresses and to the attention of the persons named as follows, or (b) if sent by telex or nationally recognized overnight delivery service, or (c) by first class mail, postage prepaid, certified and return receipt requested, and properly addressed as follows:
-5 3 -
(a)
To Brazos ats Brazos Electric Power Cooperative, Inc.
P. O. Box 2585 Waco, Texas 76702-2585 Attention: Richard E. McCaskill For Federal Express:
Brazos Electric Power Cooperative, Inc.
2404 LaSalle Avenue Waco, Texas 76706 Attention: Richard E. McCaskill (with copy to)
Joseph Robert Riley Law Offices of Joseph Robert Riley 500 RepublicBank Tower P. O. Box 153 Waco, Texas 76703 (b)
To TU Electric at:
Texas Utilities Electric Company 2001 Bryan Street Suite 1900 Dallas, Texas 75201 Attentien: Erle Nye (with copy to)
Worsham, Forsythe, Sampels & Wooldridge 2001 Eryan Street Suite 3200 Dallas, Texas 75201 Attention: Robert A. Wooldridge 11.12 Readings. 'Ihe division of this Agreement into Articles and Sections and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of this Agreement.
11.13 Execution and Counterparts. 'Ihis Agreement may be executed in any number of counterparts, each and all of which shall be deemed for all purposes to be one agreement, 11.14 Interest on Past Due Payments, in the event that Brazos o.- TU Electric falls to timely make any payments to the other which become due under this Agreeme.at, the
-5 4 -
incremental amount due on the pad due payment for the period between and including the due date and the date actually paid shall be calculated at the rate of twelve and one-half percent (12-1/2%) per annum.
11.15 Use of Representations or Recitals. Any representations or recitals made by Brazos and TU Electric in this Agreement are for the purposes of this Agreement only. In the event th?t this Agreement is terminated or does not timely close at the Closing Date, neither Brazos nor TU Electric shall use, as evidence or otherwise, any such representations or recitals against the other in any way in the New Lawsuit or any other lawsuit concerning any Subject Claims which have been made in the Pending Litigation.
11.16 Separate LitigatMn.
Any Subject Claims arising out of or under this Agreement shall be prosecuted in a lawsuit separate from the lawsuit in which any Subject Claims which have been made in the Pending Litigation are prosecuted, 11.17 Construction of Comanche Peak. If TU Electric continues to believe that the completion of Comanche Peak is economically and otherwise feasible, TU Electric covenants that it will use its best efforts to complete, or cause to be completed, the construction of Comanche Peak and placing the same in operation.
11.18 Severability.
The parties hereto agree that the various obligations and undertakings specified in this Agreement and in the othur agreements or instruments referred to herein are each mutustly dependent upon one another and, in the event th' at any fundamental or essential provision of this Agreement or any of such other agreements or instruments is finally determined to be invalid, illegal or unenforceable by a court or administrative body having jurisdiction, 70 Electric and Brazos hereby agree to conduct good faith negotiations for the purpose of reaching a mutually acceptable written agreement to replace the deleted provision with a provision which will most nearly accomplish the purpose and intent of the deleted provision.
Falling to reach such a mutually acceptable agreement, the parties shall rescind the transactions provided for herein and therein.
-5 5 -
11.19 Time of the Essence. Time is of the essence in the performance of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as o' the date set forth at the outset t;;;-eof.
TEXAS UTILITIES ELECTRIC COMPANY (Corporate Seal) i%
Y-1 By:(-
_1 Its: Chairman of the Board an(
ATTEST:
Chief Executive By:
Its:
Corporate Secretary BRAZOS ELECTRIC POWER COOPERATIVE, INC.
(Corporate Seal)
By:/, /
/,/
Its: rvocntive V P./ G.fi.
ATTEST:
m
/L-ts: / s,crets '
~5 6 -
SCHEDULE FIELD NOTES CONANCEE PEAR S.E.S.
PROPERTY All that certain lot, tract or parcel of land in the John W.
Fogg Survey.
Abstract 21 S.
McKelvy
- Survey, Abstract SS, Jose Antonio Hernander
- Survey, Abstract 42, Wm.
3.
Salth
- Survey, Abstract 90, Wo.
8.
Salth
- Survey, Abstract 91 and the Wm.
Parker
- Survey, Abstract 83 all in Somervell County, Texas the Galveston County School Land Survey. Abstract i
38 in Somervell and Nood Counties. Texas: the James D.
Elliott Survey.
Abstract
- 170, J.
Grace
- Survey, Abstract 203 and the R.
Disney Survey, i
Abstract 144 til in Hood
- County, Texas and being more particularly described by metes and bounds as follows:
BEGINNING at a point in the line common to said Fogg Survey and the Wo.
W.
Parker Survey, Abstract 82 Somervell County, Texas, sold point being South 50 degrees 54 minutes 17 seconds West, 2134-22/100 feet along said conson line from the South corner common to said Fogg and Mernandes Surveys:
TEENCE departing said common survey line:
North 31 degrees 40 minutes 49 seconds West, 1808-13/100 feet.
North 40 degrees 17 minutes 47 seconds Weet. 422-92/100 feet.
North 30 degrees 51 minutes 45 seconde West, 699-34/100 feet, North 37 degrees 09 minutes 49 seconde West, 897-05/100 feet, North 00 degrees 29 minutes 04 seconds East. 34-3/10 feet.
South 88 degreea 33 minutes 14 seconds West, 241-71/100 feet, South as degrees 19 minutes 22 seconds West. 176-9/10 feet, a r.d North 30 degrees 02 uinutes 49 seconds West, crosstag the line common to said John W.
Fagg Survey and said Wa.
8.
Smith survey, Abstract 91, in ell 3593-27/200 feet; TEENCE South 50 degrees 50 slagtes 50 seconde Nest, 904-7/10 feet to a l
point la the line cozaea to said Wo.
8.
Salth Survey, Abstract 91 and said Wa. Parker Survey, Abstract SS, Somervell County, Texas TIENCE with said conson line, North 29 degrees 42 alastes 26 seconds West.
l 3001 feet to a pelat; TIENCE departlag said cor"
,urvey
- line, South 59 degrees 39 sinutes
- Dest, 1847 feet.
South s:
segrees 20 alsutes West, 349 feet, South 59 degrees 21 slautes West.
243 feet and South 60 degrees 44 minutes West.
430 feet to a
point in the Easterly right-of-way (R/W) of State F.M.
Eighway No. 54 (formerly F.M. 201):
TEENCE with said Easterly R/W, North 28 degrees 51 minutes
- West, 484-25/100 feet to the beginning of a curve to the left having a radius of 1492.39 and Northwesterly with the arc of said curve 321-3/10 feet to a point; Page 1 of 10
Page 2 of 10 TNINCE departing said Easterly R/W line, North 28 degrees So sinutes West.
649-S/10 feet to a pelat la the North line of said Wa. Parker Survey:
TNINCE with said North line. North 80 degrees 44 minutes East, 2858 feet to a point:
TIENCE North 30 degrees 00 minutes West, 17 feet to a point in the fenced Northwesterly corner of said Wm.
B.
Salth Survey, Abstract 91, cosmon to the Southwesterly corner of said James D.
Elliott Survey, Abstract 170.
Nood County, Texas TIENCE departing said common
- corner, North 21 degrees 39 minutes East.
2801 feet and North 60 degrees 02 minutes East, 2003-58/100 feet to a point:
THENCE North 69 degrees 44 minutes 30 seconds West. 1199 feet to a point at elevation 770 feet, U.S.C.QG.S. Datum:
THENCE with said 770 foot contour, South 89 degrees 14 minutes 30 seconds
- West, 47-2/10 feet and North 44 degrees at alautes 30 seconds East.
42-75/100 feet:
TNENCE departing said 770 foot conteur North 69 degrees 44 alautes 30 seconds West, 2043-75/100 feet to a point:
TEINCE Worth 02 degrees 10 minutes 30 sotonas West, 3082-15/200 feet to a point on the 19C foot contour, U.S.C.40.S. Datus:
TERNCE with said 790 foot contour South SS degrees 33 alautes East, 96-4/10 feet, North 49 degrees 17 ulautes East, 154-4/10 feet, Souta 43 degrees 31 alastes East, 104-98/100 feet, North 17 degrees 03 asantes East, 142-4/10 feet.
Worth 49 degrees 06 alasten East, 243-15/100 fSet, South 84 degrecs it alastes East, 214-2/10 fest, South 40 degrees Si alautes last, 231-0/10 feet.
feath 39 degrees 28 slautes 30 seconde East, 131-7 '10 f e e t,
Not th 38 degrees 47 alautes 30 seconds West, 138-4/10 feet, North 35 degrees 41 alautes 30 seconds West, 109-0/10 feat, i
North 24 degreen 83 slautes 30 seconds West, 101-3/10 feet, North 35 degreen 54 einstes 30 seconde West, 81-05/200 feet, North 24 degrees 34 alautes 30 seconds West. 109-75/100 feet, North 28 degrees 28 alautes 30 seconds West, 123-15/100 feet, North 25 degrees 45 minutes 30 seconds West, 144-5/10 feet, t
North 27 degrees 45 minutes 30 seconde West. 119-2/10 feet, North 18 degrees 11 slautes West, 139-4/10 feet, and North 41 degrees 06 sinatet Vest, 92-3/10 feet to a point in the North 4
line of sold James D.
Elliott survey conson to the South line of said R.
Disney Survey, Eood County, Texas
i Page 3 of 10 4
TIERCE departing said 790 foot contour and with asid common turvey line.
North Se degrees 54 minutes East. 78-9/10 feet to a point on the 770 foot contour line, U.S.C.40.5. Datus:
TNINCg departing said cosmos servey line and with said 770 foot contour lias:
North 11 degrees 38 minutes West. 94-4/10 feet, North 43 degrees 51 slautes West, 74-3/10 feet, North 54 degrees 53 ilautes East, 93-1/10 feet.
North 45 degrees 48 alautes 30 seconde East, 94-0/10 feet.
North 00 degrees 54 minutes 30 seccada 5ast. 82-3/10 feet.
North 22 degrees 49 alautes 30 seconds West, 111-8/10 feet.
North 23 degrees 43 minutes 30 seconds West. 102-3/10 feet, North 28 degrees 34 alautes 30 seconds West, 87-5/10 feet, North 32 degrees 42 alautes 30 seconde West. 85-45/100 feet, North 43 degrees 57 minutes 30 seconds West. 154-7/10 feet, North 57 degrees 21 minutes 30 seconds West. 112-95/100 feet, North SS degrees 07 alautes West, 134-48/100 feet, North 74 degrees 57 alautes 30 seconds West. 271-6/10 feet.
North 80 degrees 45 slautes West, 111-48/100 feet.
North 90 degrees 27 alautes West. 147-75/200 feet, North 'st degrees 40 slautes West, 102-08/200 feet.
North 60 degrees 23 alautes 30 seconds West, 146-88/100 feet, South 59 degrees 21 alautes 30 seconds West. 94-5/10 feet.
Scuth 54 degrees 27 alautes 30 seconds West, 84-35/100 feet, South 51 degrees 25 slautes 30 seconde West. 100-0/10 feet, Socth 49 degrees 23 alautes 30 seconds West, 197-35/100 feet, South 40 degrees 04 minutes 30 seconde West. 132-7/10 feat, South 44 degrees 38 minutes 30 seconds West, 155-35/100 feet, South 24 degrees 22 stautes 30 seconds West. 125-9/10 feet.
South 37 degrees 40 slautes 30 seconde West. 227-4/10 feet.
South 42 degrees 25 etautes 30 seconds West, 425-9/10 feet, South 4? degrees 41 ulautes 30 seconde West, 123-98/200 feet, Korth 48 degrees 07 einstes 30 seceede West, 78-2/10 feet, South 41 degrees 17 riantes West, 198-18/209 feet, North 80 degrees 04 alautes West. 137-4/10 feet, North 19 degrees 48 clautes 30 seconde West, 196-08/200 feet, North 39 degrees te aimetes 30 seconds West. 145-98/100 feet, North 55 degrees 29 minutes 30 secoads West, 141-15/100 feet, i
North 80 degrees 24 slantes 30 secoads West. 42-5/10 feet, South 46 degrees 58 alautes 30 seconds West, 108-3/10 feet.
South 84 degrees 44 alautes West, 75-95/100 feet, North 51 degrees 47 alantes East, 88-48/100 feet.
North 41 degrees 04 alautes East. 118-75/100 feet.
South 42 degrees 11 alautes 30 seconds East. 117-7.5/100 feet.
South 49 degrees is alautes 30 seconds East, 125-4/10 feet, South 58 degrees 15 alantes East, 123-48/100 feet, j
South 23 degrees 02 alautes 30 seconde East, 98-4/10 feet, South 08 degrees 27 alautes 30 seconds East, 169-4/10 feet,
[
E
Page 4 of 10 North 13 degrees 32 minutes 10 seconds test, 93-25/100 feet.
North 19 degrees 32 alautes 30 seconde East. 111-2/10 feet.
North 20 degrees 05 minutes 30 ceconds test. 95-95/100 feet, North 23 degrees 55 alautes 30 seconds West, 104-95/100 feet.
North 52 degrees 34 minutes 30 seconds West, 100-5/10 feet, North 73 degrees 59 sinutes 30 seconds test, 164-0/10 feet, North 43 degrees 28 minutes 30 seconds last. 171-1/10 feet.
North 47 degrees 15 minutes 30 seconds tast, 154-1/10 feet.
1 North 35 degrees 50 minutes East. 118-45/200 feet, North 18 degrees 59 minutes East, 214-35/100 feet, j
North 31 degrees 44 minutes East, 217-9/10 feet, 1
North 24 degrees 34 minutes East, 224-2/10 feet.
North 25 degrees 11 minutes East. 181-3f/100 feet, North 00 degrees 21 alautes West, 170-7/10 feet.
North 09 degrees 00 minutes East. 214-1/10 feet, 1
North 07 degrees 00 minutes 30 seconds East. 134-1/10 feet.
North 09 degrees 51 minutes 30 seconds East, 176-4/10 feet, North 05 degrees 47 sinutes 30 seconds East, 125-05/100 feet.
North 19 degrees 59 ainstes 30 seconds West, 218-2/10 feet.
North 10 degrees 47 minutes 30 seconds West. 135-35/100 feet, North 74 degrees le minutes 30 seconds West. 172-1/10 feet, North Se degrees 11 sleutes 30 seconds tast, 177-1/10 fest.
North 30 degrees 59 minutes West, 141-1/10 feet.
North 24 degrees 59 alautes West. 119-4/10 feet, North 30 degrees 14 minutes West. 178a15/100 feet.
North Si degrees 15 alautes West. 179'4/10 feet.
North 76 degrees 22 minutes West. 232-2/10 feet, North 46 degrees 30 minutes West, 124-35/100 feet, i
Gorth 70 degrees 11 slautes East, 191-1/10 feet.
North SA degrees 50 minutes East, #3-45/100 feet, North 20 degrees 23 alautes West. 71-9/10 feet, North 44 degrees 58 slautes 30 seconds Fest. 243-4/10 test, North 57 degreus 43 minutes 30 seconds West, 149-75/100 feet, North to degrees 12 alastes 30 secoats West. 191-48/100 feet.
North Se degrees 13 alastes 30 seconds West, 144-05/100 feet, North 45 degrees SS sinutes 30 seconds West. 252-18/100 feet.
North 73 dogrees 04 minutes 30 seconds West. 204-2/10 feet, North 47 degrees 29 slantes 30 seconde West. 224-4/10 feet.
South 47 degree) 49 alantes 30 seconde West, 184-36/200 feet, South te degrees 23 alastes 30 seconds West. 204-4/10 feet.
South 41 degrees 52 minutes 30 seconds West. 225-15/200 feet, North 45 degrees 33 afastes East, 213-4/10 feet, North 08 degrees 24 alautes East, 103-9/10 feet, South 70 degrees 07 alastes West, 194-25/100 feet, South 59 degrees 33 sinates West, 291-25/100 feet, South 49 degrees 14 alautes West, 131-4/10 feet, South 49 degrees 29 alastes West. 223-35/100. feet, South 70 degrees 22 alautes West, 197-35/100 feet.
South 71 degrees 25 alautes West. 392-55/100 feet, South 44 degrees 54 miantes West. 394-45/100 feet.
Page 5 of 10 North 14 degrees OS ainutes West, 467-4/10 feet, North 26 degrees 19 sinutes West. 411-75/100 feet, North 83 degrees 40 slautes East, 91-7/10 feet.
South 14 degrees 17 alautes East, 216-75/100 feet.
South 31 degrees 31 alautes East. 94-1/10 feet, South 44 degrees 59 alautes East, 145-4/10 feet, South 79 degrees 41 minutes East. 329-0/10 feet.
South 84 degrees 00 alautes East. 183-45/100 feet, North 41 degrees de slautes East, 194-45/100 feet.
North 70 degrees 18 alautes East. 501-4/10 feet.
North 67 degrees 33 minutes 30 seconds East, 140-8/10 feet, North 73 degrees 05 alautes 30 seconda East, 172-3S/100 feet, North 64 degrees 08 alaut'es 30 seconds East. 132-1/10 feet.
North 38 degrees 00 minutes 30 seconds East. 221-15/100 feet.
North SS degrees 11 minutes East, 201-9/10 feet.
North 59 degrees 25 alautes 30 seconos East, 241-95/100 feet.
North 41 degrees 29 alautes East, 197-4S/100 feet, North 84 degrees 28 alautes East, 262-05/100 feet.
North 44 degrees 41 slautes East, 241-45/100 feet.
North 51 degrees 07 alautes East. 133-1/10 feet, North to degrees 28 alautes Vest. 189-9/10 feet, l
South 48 degrees 53 alautes East, 224-05/100 feet.
(
South 43 degrees 52 alautes 30 seconde East, 210-4/10 feet.
I South 66 degrees 33 alautes 30 seconde Etat. 144-2/10 feet, South 77 degrees 06 alautes 30 seconds East, 275-2/10 feet.
l North 79 degrees 41 alautes 30 seconds East, 232-0/10 feet.
[
North 14 degrees 26 minutes 30 seconde East. 110-7/10 feet, l
Forth 12 degrees 12 alautes 30 seconds West, 45-4/10 feet.
l North 12 degrees 32 minutes 30 seconds West, 100-45/100 feet.
l North $3 degrees 40 slautes 30 seconde East, 231-?.5/100 feet, l
North 22 degrees 34 af rautes 30 seconds East, 207-8/10 feet.
South 11 degress OS alautes West. 135-0/10 feet.
South 54 degree 1 52 maattes 30 saconde West, 140-95/100 feet.
South 30 degrees 30 alantes 30 secoads West. 118-3/10 feet, South 38 degrees 51 minutes 30 seconde East, 134-48/100 f eet.
South it degrees 30 slautes 30 seconds East. 104-08/100 feet.
South 10 degrees 21 slastes 30 ascende East. 124-8/10 feet, North 49 degrees 34 alastes East, 149-05/100 feet.
South 54 degrees 00 minutes 30 seconds East. 213-7/10 feet.
South 37 degrees 23 alastes 30 seconde East, 193-5/10 feet, 1
South 31 degrees 41 slautes 30 secoads East. 387-3/10 feet, South 22 degrees 12 alastes East, 144-6/10 feet, North 13 degrees 05 alautes West, 101-55/100 feet, sad South 30 degresa 25 alautes
- East, SS-85/100 feet to a point in the i
centerline of an old road:
7EENCE departlag said 770 contour. South 24 degrees 48 alautes 30 second East. 44-2S/100 feet to a corner la the Easterly line of said road:
Page 6 of 10 THENCE with said Easterly lias:
North 14 degrees 04 alautes West, 255-9/10 feet.
North 00 degrees 18 alautes West. 1410-9/10 feet, and North 25 deg?ses 42 alautes West. 64 feet to its latersection with the 790 contour, Squas Creek Reservoir datua; THENCE with said 790 foot contour:
South 05 degrees 53 minutes East, 1858-5/10 feet.
South 09 degrees 30 slautes East, 91-7/10 feet, South 25 degrees 17 alautes East, 101-2/10 feet.
South 17 degrees 07 alautes East. 144-2/10 feet.
South 34 degrees 40 slautes East, 121-8/10 feet.
South 70 degrees 32 minutes East. 54-3/10 feet, North 47 degrees 59 alautes East. 109-4/10 feet, South 26 degrees 49 alautes West, 64-2/10 feet, South 01 degree 11 alautes West. 147-7/10 feet, South 39 degrees 05 afautes East, 300-4/10 feet.
South 30 degrees 33 alautes East, 14f-4/10 feet.
South 34 degrees 34 minutes East, 258-0/10 feet.
North 41 degrees 54 minutes East. 43-4/10 feet, South OS degrees 12 minutes East. 57-4/10 feet.
South 44 degroot 15 ajoutes East, 334-4/10 feet, North 77 degrees 11 minutes East, 58-1/10 feet, South 48 degrees 39 a2sutes East, 113-1/10 feet.
South 86 degrees 49 aimatee East, 133-0/10 feet, North 44 degreet 27 minutes East, 248-2/10 feet, North 33 degrees 21 minutes East, 403-5/10 feet.
North 02 deg?ses 41 alae.tes West, 395-1/10 feet.
North 01 degree 18 alautee West, 402-5/10 feet, North 13 degrees 36 minutes East, 52-4/10 feet.
North 34 degrees 36 alautes East, 114-8/10 fest, South 16 degrees 40 minutes East. 97-4/10 feet, North 43 degrows 21 minutes East. 90-8/10 feet, South 12 degrees 38 slautes West, 122-0/10 feet.
South 14 dsgrees SS alastes East, 333-9/10 feet, South S2 degrees 18 alastes last, 249-3/10 feet.
North 43 degrees 00 slautes East, 135-7/10 feet, 3
North 84 degrees 34 alautes East, 178-7/10 feet.
South 43 degrees SS alautes East, 45-4/10 feet, South 35 degrees Se alautes West, 214-4/10 feet.
South 05 degrees 14 alautes West, 108-8/10 feet.
South to degrees 53 alastes East, 97-4/10 feet.
South 54 degrees 20 slautes East, 274-1/10 feet, South 74 degrees 21 alastes West. 437-4/10 feet, South 59 degrees 52 alautes West. 120-0/10 feet.
South 34 degrees 14 slautes West, 170-9/10 feet.
South 17 degrees 03 alautes West, 384-4/10 feet, South 04 degrees 02 alautes West, 154-3/10 feet,
1 Page 7 of 10 I
south 43 degrees 30 minutes East, 140-9/10 feet.
South 12 degrees 04 alautes East. 390-0/10 feet.
t South 02 degrees 44 alautes West. 43-3/10 feet, South 39 degrees 44 slautes East. 434-5/10 feet, and~
South 28 degrees 34 atautes East. 323-9/10 feet.
THENCE South 24 degrees 35 alautes East at 10-5/10 feet crossing the line comaos to said R.
Disney Survey and said James D.
Elliott Survey in all 354-5/10 feet and costlaulag with said 790 feet contour:
South 53 degrees de slautes East. 144-2/10 feet.
South 44 degrees 47 alautes Eas t, 134-7/10 feet.
North 50 degrees 54 alautes East. 173-2/10 feet.
North 37 degrees 55 alautes East. 201-2/10 feet.
l North Se degrees 44 minutes last. 103-5/10 feet.
South 02 degrees 18 alautes East. 232-4/10 feet.
South 43 degrees of alantes East, 244-4/10 feet.
North 41 degrees 19 alastes East. 51-1/10 feet.
South 14 degrees 44 alautes West. 172-0/10 feet, South 35 degrees 30 slautes West. 107-9/10 feet.
South 04 degrees 29 alantes West. 142-5/10 feet.
South 13 degrees 25 minates East. 123-7/10 feet.
South 37 degrees 13 minutes Iset, 130-7/10 feat.
South 54 degrees 59 alautes tast. 108-9/10 feet.
South 81 degrees 28 slautes East, 172-5/10 feet.
North 73 degrees 32 ajoutes East. 232-4/10 feet.
South 53 degroes 07 alautes East. 73-2/10 feet.
South 09 degrees 54 alautes West. 53-2/10 feet.
South 27 degrues 15 alautes West. 141-1/10 feet.
South 38 degrees 41 minutes West. 138-0/10 feet.
Sesth 47 degrees 19 minutes West. 197-4/10 feet.
South 32 degrees 17 ainutes West. 100-2/10 feet.
Scath 17 degrees 17 alantes West. 334-7/10 feet.
South 04 degrees 03 alastes West. 125-4/10 feet.
South 09 degrees 14 al&utes East. 274-4/10 flet.
South 27 degrees 14 alautes East. 282-0/10 feet.
South 47 degrees 41 alantes East. 244-4/10 feet.
North 52 degrees 49 alantes East. 180-4/10 feet.
North 29 degrees 41 alantes East. 324-7/10 feet.
South 44 degrees le slautes test. 183-4/10 feet.
North 45 degrees et slautes East. 121-8/10 feet.
North 35 degrees 44 slautes East. 250-4/10 feet.
North 31 degrees 32 alautes Inst. 157-4/10 feet.
North 34 degrees 29 alautes East, 183-9/10 feet.
North 25 degrees 15 alantes East, 319-3/10 feet.
North 04 degrees 39 alautes West. 44-4/10 feet, j
North 32 degrees 44 alantes East. 32-1/10 feet, and i
l 1
Page 8 of 10 tygNCI North 34 degrees 45 minutes East, 113-2/10 feet to a point in the East 11ae of said James D. Elliott Survey common to the West line of said J.
Grace Survey TNINCE with said conson line, North 36 degrees 53 ainutes West, 571-61/100 feet; TIINCE departing said conson line; North 45 degrees 24 minutes Iaat, 1489-25/100 feet, North 80 degrees 57 minutes East, 949-9/10 feet, North 59 degrees 23 minutss East, 2111-7/10 feet, South 29 degrees 59 minutes East. 438-9/10 feet, North 40 degrees 41 ainutes East, 2771-6/10 feet, and South 35 degrees 32 minutes 15 seconds East, 1057-5/10 feet to a point in the North line of a road; TIINCE with said North line; North 59 degrees 57 minutes East, 707-7/10 feet, North 55 degrees 13 alsutes 15 seconds East, 122-3/10 feet, North 54 degrees 19 minutes East, 278-9/10 feet, North 41 degrees 00 minutes 30 seconds East, 1041-4/10 feet, and
.iouth 75 degrees 54 minutes East, 45-9/10 feet; THINCE South 46 degrees 03 einutes East, 11-5/10 feet to a point on the South line of the Dan Wts1 ton Coates tract described in the deed recceded In Volume 255. Page 13. Deed Records. Icod County, Texas; TIINCE with said South line, South 59 degrees 53 minutes West, 1476 feet:
TII5CI departing said Coates tract; South 54 degrees 34 minutes West, 1343-2/10 feet, South 31 degrees 05 staates last. 1241-5/1C feet, North SS degrees 34 minutes East, 1891-8/10 feet, and South 30 degrees 15 alantes 8ast, 2440-4/10 feet to a point in the 11ne commes to said Joka C.
Grace Survay, Abstract 203 and the Galveston County 4
School Land Survey, Abstract Sa; TRINCE with said cosmos line. South 82 degrees 27 alautes West, 76-7/10 feet to a point; TRINCE departing said cosmon survey line; South 30 degrees 49 minutes East, 2008-7/10 feet, North 03 degrees F* alautes West, 400-0/10 feet, l
North 57 degrees 21 ainates West, 148-7/10 feet, l
North 14 degrees "d
lautes West, 97-1/10 feet, North 49 degrees is ainutes East, 1013-0/10 feet, j
)
Page 9 of 10 South 04 degrees 33 alantes West, 1411-5/10 feet.
South 30 degrees 49 minutes East, 305-4/10 feet, North to degrees 51 minutes East, 1359-44/200 feet, South 38 degrees 10 minutes East, 390 feet, North 59 degrees 34 minutes East, 584-45/100 feet.
North 59 degrees 59 minutes 30 seconde East, 1530-2/10 feet.
South 12 degrees 59 minutes West. 1143-8/10 feet, South 83 degrees 05 minutec East, 478-9/10 feet, South 09 degrees 04 minutes West, 211-1/10 feet. and South 13 degrees 12 minutes East crossing the line conson to said Hood and somervell counties in all 400-5/10 feet to a point; TRINCE South 51 degrees 05 ainutes 30 seconds Weet. 441-05/100 feet, South 28 degrees 53 minutes East, 1052-0/10 feet, North 79 degrees 04 minutes East, 644-4/10 feet, South 15 degrees 29 minutes 30 seconds East. 448-3/10 feet to a point on the line conson to said Galveston County School Land Survey, Abstract 36 and said Jose Antonio Earnandes Survey. Abstract 42 Somervell County, Texas and with said common survey line, South 80 degrees 05 minutes to seconds West. 112-1/10 feet; TEINCE departing said conson survey 11ae; South 01 degree 35 minutes 15 seconds East, 558-45/200 feet.
South 08 degrees 55 minutes East, 204-15/100 feet, Scuth 19 degrees 58 minutes 30 seconds West. 1134-75/200 feet, South 08 degrees le minutes 30 seconde East, 3018-55/100 feet, South 01 degree os minutes 25 seconde West, 1281-25/200 feet to a point in the lite conson to said J.
Eernandes Survey, Abstract 42 and said 5.
McKelvy f4rvey, Abstract 48, Somervell County, Texas; TIENCE departing said commen survey
- 11as, South 29 degrees 25 sinutes East, 2075-1/10 feet; 2EENCR Sonth 59 degrees 12 alautes West, 3444-3/10 feet to a point in the centerline of Squaw
- Creek, and Southerly with said centerline some 900 feett TEINCE departlag said Squaw Creek centerline. Sosth 40 degrees West some 100 feet; TRINCE North 47 degrees 34 minutes West, 280-44/100 feet, North to degrees 21 minutes West, 100-43/100 feet, North 12 degrees 17 minutes East. 28-54/100 feet, North 80 degrees 44 alautes West, 444-41/100 feet, North 45 degrees 32 minutes West, 1442-45/100 feet.
South 43 degrees 44 minutes 35 seconds West, 3934-24/100 feet, South 24 degrees 15 minutes 28 seconds East, 300-0/10 feet.
South 43 degrees 45 minutes 35 seconds West, 543-48/100 feet, North 28 degrees 15 minutes 25 seconds West, 284-4/10 feet, i
-v..----~.--
l Page 10 of 10 South 63 degrees 44 sinutes 35 seconds West. 480-54/100 feet to a point in the line cosmos to said S.
McKelvy Survey. Abstract es and the vs. v.
Parker Survey.
Abstract 22 Somervell County. Texas, and continuing with said
- onson survey
- 11ae, North 31 derreos 21 slautes 40 seconds West.
16-04/100 fast to a point in the South 11ae of said Jose Antonio Bernands:
Survey. Abstract 42. Soservell County. Texas; THEMC1 with the line conson to said J. Bernandes Survey. Abstract 42 sad said Wa.
Parker Survey.
Abstract 42.
South 59 degrees 21 minutes 44 seconds West.
1311-50/100 feet to the Southerly corner coanon to said J.
Hernandes Survey.
Abstract 42 and said John W.
Fogg Survey. Abstract 27 Somervell C0unty. Texas TMENCE cuLtinuing with the line coanon to said John W.
Fogg Survey.
Abstract 27 and said Wa.
Parker Survey. Abstract 42. Somervell County.
South 34 degrees 54 minutes 17 seconds West. 2138-22/200 feet to the place of beginning.
Sate and except those certain two (2) 10.07 acre tracts conveyed to Billie Willissa
- Durant, et al.
and Alma Willlaas Andrews. et al. described la Volume 1000 Page 533 through 545 Deed Mecords. Isod County. Texas.
m
(
l i
l t
b l
l
EXillBIT A ASSIGNMENT AGREEMENT between BRAZOS ELECTRIC POWER COOPERATIVE, INC.
1 Brazos l
and TEXAS UTIIJTIES ELECTRIC COMPANY l
TUEMMe dated as of 1
l l
e
[
ASSIGNMENT AGREEMENT This ASSIGNMENT AGREEMENT is made and entered into this day of
,1988 by and between the following parties:
BRAZOS ELECTRIC POWER COOPERATIVE, INC., a Texas non-profit electric cooperative corporation, having its principal office at 2404 LaSalle Avenue, Waco, McLennan County, Texas ("Brazos"), and TEXAS UTILITIES ELECTRIC COMPANY, a Texas corporation, having its principal office at 2001 Bryan Street, Suite 1900, Dallas, Dallas County, Texas ("TU Electric").
DEFINITIONS As usec in this Assignment Agreem en t, unless otherwise specified herein, the folle wing terms shall have the following meanings:
(a)
"Agreement" means the Agreement dated as of July 5,1988 between Brazos and TU Electric providing for the sale by Brazos and purchase by TU Electric of the Purchased Assets.
(b)
"Assignment" means the form of Assignment attached hereto as Exhibit A.
(c)
"Assignment Agreement" means this Assignment Agreement and all Schedules and Exhibits attached to this Assignment Agreement.
(d)
"Brazos Comanche Peak Debt" means the aggregate of the indebtedness of Brazos to the REA, the CFC and the FFB with respect only to Comanche Peak, which at the date hereof is the unpaid principal amount of Dollars ($
), and is detailed on Schedule A attached hereto.
(e)
"Business Day" means a day on which banks in Dallas, Texas are open for regular banking business.
(f)
"CFC" means the National Rural Utilities Cooperadve Finance Corporation, or its successor.
(g)
"Closing" means the consummation, pursuant to the Agreement, of the sale by Brazos and the purchase by TU Electric of the Purchased Assets, as described therein.
(h)
"Closing Date" means the Closing Date defined in the Agreement.
(i)
"Comanche Peak" means the nuclear-fueled electric generating facility under construction on certain lands situated in Hood and Somervell Counties, Texas, and consisting of two units having a nominal capacity of 1,150 megawatts each, and related properties, and is the aggregate and combination of the Station, Fuel and Transmission Facilities, as defined in the Agreement, and all other rights and interests associated with or relating to all of the same.
(j)
"FFB" means the Federal Financing Bank, or its successor.
(k)
"Government" means the United States Government acting by and through the Administrator of the REA.
(1)
"Government Obligations" means direct obligations of the United States of America, including obligations the principal of and interest on which are unconditionally guaranteed by the United States of America.
(m)
"Guaranty" means the Guaranty of TUC attached as Exhibit B to the Agreement.
(n)
"Mortgage" means the purchase money mortgage in the foam of the Deed
?.
Trust and Security Agreement given to secure payment of the Note, in the form attached to the Agreement as Exhibit D, creating a first lien on the real l
property and granting to Brazos a first and prior security interest in the personal property and fixtures, the aggregate of which comprise the 1
l Purchased Assets.
(o)
"Note" means the non-negotiable promissory note, in the form attached to l
the Agreement as Exhibit E, to be made and delivered at Closing by TU Electric as provided in Section 1.5(c) of the Agreement.
2-l l
t
(p)
"Other Brazos Debt" means the aggregate of the indebtedness of Brazo! to the REA, the CFC and the FFB other than the Brazos Comanche Peak Debt.
(q)
"Purchased Assets" means the aggregate of all that part of Comanche Peak (as Comanche Peak exists and is constituted on the Closing Date) owned by Brazos or to which Brazos has a right, title or interest, as further defined in the Agreement.
(r)
"REA" means the Rural Electrification Administration of the United States Department of Agriculture, or its successor.
(s)
"Special Warranty Deed" means the form of Special Warranty Desd with Vendor's Lien and Bill of Sale attached to the Agreement as Exhibit F.
(t)
"Transfer of Lien" means the form of Transfer of Lien of the Mortgage attached hereto as Exhibit B.
(u)
"TUC" means Texas Utilities Company, a Texas corporation, which is the corporate parent of TU Electric.
(v)
"Vendors Lien" means the vendors lien retained in the Special Warranty Deed.
RECITALS A.
Brazos and TU Electric have previously entered into the Agreement.
B.
Brazos owns an undivided interest in Comanche Peak, which is being purchased by 1
TU Electric on the Closing Date pursuant to the Agreement, and in connection therewith as partial payment therefor, TU Electric is delivering to Brazos the Note, the payment of which will be secured by the purchase money tien of the Mortgage and the Vendors Lien.
1 C.
Brazos wishes to assign the Note and all payments thereunder to the Government in order to provide thereby for the payment of the Brazos Comanche Peak Debt, it being understood that a portion of the payments under the Note will also be used to pay a portion of the Other Brazos Debt.
D.
To secure the making of the payments under the Note, Brazos wishes to transfer and assign the liens and rights provided for under the Mortgage and the Special Warranty Deed to the Government under and pursuant to the Transfer of Lien.
E.
TU Electric is willing to permit such assignment of the Note, the Mortgage and the Vendors Lien.
F.
Brazos and TU Electric wish to provide with respect to the terms and circumstances in the event of the prepayment of the Note.
NOW, THEREFORE, for and in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Brazos and TU Electric do hereby agree as follows:
1.
_ Assignment of Note and Guaranty. Brazos does hereby assign the Note and Guaranty to the Government under and pursuant to terms and conditions of, and as evidenced by, the Assignment; and TU Electric does hereby consent to such Assigr. ment as evidenced by its execution of the Consent to Assignment appearing on the Assignment.
Brazos does hereby acknowledge that all payments made by TU Electric in accordance with the Note to the Government as assignee thereof shall be considered to be in full and complete satisfaction of TU Electric's obligation under the Note to Brazos as the original payee thereof or otherwise under the Agreement to the extent of all such payments.
It,is understood and agreed that assignment of the Note by Brazos to the Government is being accepted by the Government not in extinguishment, but as a mechanism for payment, of the Brazos Comanche Peak Debt and a portion of the Other Brazos Debt.
2.
_ Assignment of Mortgage. Brazos does hereby assign the Mortgage and the Vendors Lien to the Government under and pursuant to the Transfer of Lien as replacement security for the tiens of the mortgages of the CFC, the FFB and the REA covering the Purchased Assets securing the payment of the Brazos Comanche Peak Debt which are being released incident to the closing under the Agreement of the purchase of the Purchased Assets by TU Electric from Brazos, it being understood that the Government shall exercise for itself and on behalf of Brazos all rights accruing to the mortgagee in the event of default under the Note or the Mortgage.
3.
Payment of Other Brazos Debt.
It is understood and agreed that from hencefortn, Brazos will pay the Other Brazos Debt by paying to the Government, contemporaneously with payments by TU Electric under the Note, such additional amounts in addition to the payments made by TU Electric under the Note as will fully pay the Brazos Comanche Peak Debt and the Other Brazos Debt in the aggregate at the times they become due and payable, and that nonpayment of such additional amounts by Brazos will not constitute a default or event of default under either the Note or the Mortgage or with respect to the Vendors Lien or in any way be the basis for an acceleration of the indebtedness represented by the Note or foreclosure of the lien provided for in the Mortgage, the Vendors Lien or any other Uen in favor of the Government or Brazos with respect to the Purchased Assets, the Government being relegated thereby to its remedies under Brazos' notes to the CFC, the FFB and the REA and with respect to the remaining security of Brazos for such debt.
4.
Prepayment of Note.
TU Electric may prepay the Note et any time in accordance with the provisions thereof. In such event, however,if such prepayment is not permissible at such time, in whole or in part to any extent, under the terms of the Brazos Comanche Peak Debt or the Other Brazos Debt, it is understood and agreed that TU Electric may make a prepayment in full and complete satisfaction of all of its remaining obligations under the Note so as to require release of the lien of the Mortgage, the Vendors Lien and any other lien retained in favor of the Government or Brazos with respect to the Purchased Assets, by irrevocably depositing in a trust account with a trustee, which shall be a national bank with capital of at least $50 million selected by TU Electric and Brazos, and acceptable to the Government, in trust, and irrevocably set
-5
aside exclusively for such payrm]t, money sufficient to make payment, or Government Obligations which will mature as te principal and interest at a rate of 81/2% per annum thereafter (and the interest rate provided for in the Note will thereby be deemed to be changed to 81/2% thereafter and ipso facto modified to such extent)in such amount and at such times as will ensure the availability, without reinvestment, of sufficient money to make payment, of the remaining principal and interest (at the rate of 81/2% per annum) payments due under the Note.
Contemporaneously with the deposit of such money or Government Obligations in trust, TU Electric shall make payment of the prepayment premium under the Note directly to Brazos in full satisfaction of all of its obligations with respect thereto under the Note, and by its execution of the Consent attached hereto the Government does hereby consent to such method of payment of the prepayment premium under the Note. At such time as such money or Government Obligations shall have been deposited in trust with such trustee and the referenced prepayment premium shall have been paid to Brazos, the Note will be deemed to be fully paid and all obligations of TU Electric in connection therewith, under the Mortgage and with respect to the Vendors Lien fully satisfied, and any rights of the Government or Brazos with respect thereto terminated and fully relinquished, and the Government and Brazos will execute and deliver to TU Electric appropriate releases with respect thereto and with respect to any t
other liens covering the Purchased Assets in their favor. Such deposit in trust may thereafter be terminated at any time or partially from time to time by TU Electric at its option at such time or times as the underlying Brazos Comanche Peak Debt becomes prepayable, by the release to REA from such deposit in trust by TU Electric of sufficient funds to prepay any of such Brazos Comanche Peak Debt in accordance with the terms l
thereof, including prepayment of applicable prepayment penalties if any; provided, however, that any partial prepayment shall not be made if thereafter the weighted average annualinterest rate on the remaining Brazos Comanche Peak Debt shall exceed 8 1/2% per annum. !
5.
Notices ~ and Payments.
All notices, requests, demands and other communications under this Assignment Agreement shall be in writing and shall be deemed to have been duly given (a) if served personally on the party to whom notice is to b at the addresses and to the attention of the persons named as follows, or (b) if sen telex or nationally recognized overnight delivery service, cr (c) by first class mail postage prepaid, certified and return receipt requested, and properly addressed as follows:
(a)
To Brazos at:
Brazos Electric Power Cooperative, Inc.
P. O. Box 2585 Waco, Texas 76702-2585 Attention: Richard E. McCaskill (b)
To TU Electric at Texas Utilities Electric Company 2001 Bryan Street Suite 1900 Dallas, Texas 75201 Attention: Treasurer As a result of the assignment of the Note, all payments made by TU Electric under the Note shall be made by wire transfer to the Rural Electrification Administration 02103000410 Treas NYC (12310100) for credit to account of the Rura Administration, U.S. Department of Agriculture, Washington, D.C.'20250, in the event the Government desires to provide for a change in the place of paymen of the Note, it shall notify TU Electric thereof in writing received at least five (5)
Business Days in advance of the next payment date under the Note.
6.
Entire Agreement, Amendments. His Assignment Agreement, and the other documents delivered pursuant hereto or specifically referred to herein, constitute the entire agreement between Brazos and TU Electric relating to the subject matter hereof 4
and supersede all other prior agreements, representations and understandings between the parties. No supplement to, or modification or amendment of, this Assignment Agreement shall be binding, unless executed in writing by both Brazos and TU Electric.
IN WITN ESS WHEREOF, 'the parties hereto have executed this Assignment Agreement as of the date set forth at the outset hereof.
TEXAS UTILITIES ELECTRIC COMPANY (Corporate Seal)
By:
lts:
ATTEST:
By:
-Its:
BRAZOS ELECTRIC POWER COOPERATIVE, INC.
(Corporate Seal)
By:
Its:
ATTEST:
By:
Its:
l
.g.
i l
L
_ CONSENT TO ASSIGNMENT AGREEMENT The undersigned hereby accepts, consents to and approves the terms, conditions an obugations set forth in the foregoing Assignment Agreement.
UNITED STATES OF AMERICA By:
Its: Administrator Rural Electrification Administration l
i l
l I
i
-9
EXHIBIT A ASSIGNMENT FOR VALUE RECEIVED, BRAZOS ELECTRIC POWER COOPERATIVE, IN C.
("Brazos"), hereby ASSIGNS, TRANSFERS, CONVEYS and SETS OVER to the Ru Electrification Administration, or its successor, all its right, title and interest in and to the attached note dated
,1988, in the original principal sum of
, executed by Texas Utilities EMtric Company ("TU Electric"), hereinafter referred to as the "Note", with full recourse at law or equity to which extent assig shall specifically have the right of recourse against assignor, its successors and This assignment of the Note by Brazos to the Rural Electrification Administration is for the purpose of Otab!1shing a mechanism for payment of Brazos' Comanche Pea and a portion of Other Brazos Debt as defined in the Assignment Agreement to which t form of Assignment has been attached as Exhibit "A".
The Note is not for the purpose of evidencing or creating any additional indebtedness on the part of Brazos, and if a ever exercises its right to recourse as set out hereinabove, assignor, its successors or assigns, reserves the right, at its option, to fulfillits obligations created by the exercise of such right of recourse by payMg any payments remaining unpaid en the Note as date of the exercise of recourse created hereunder is exercised, to the assignee as payments become due and payable under the terms of the Note with the right to direct that any such payments be credited to assignor's, its successors' or assigns' pay obligations on Brazos Comanche Peak Debt or Other Brazos Debt.
And, provided further, that this assignment is made subject to assignor's reta and reservation for itself of an amount equal to one percent (1%) per annum of the principal balance unpaid from time to time on the Note until the no prepayment time shown on Exhibit A attached to the Note is reached, which retainage and all a
~
owing thereon shall at all times remain the sole right, title'and interest of assignor but which shall be paid by the Borrower to Assignee in accordance with the Assignment Agreement in full satisfaction and extinguishment of any right or claim Brazos may have against TU Electric with respect thereto.
THIS ASSIGNMENT IS WITH THE CONSENT OF TU ELECTRIC AND IS NOT TO OPERATE OTHERWISE AS A NEGOTIATION OF THE NOTE NOR TO GIVE THE ASSIGNEE THE RIGHT TO COMPEL A NEGOTIATION.
BRAZOS ELECTRIC POWER COOPERATIVE, INC.
By:
Richard E. McCaskill Executive Vice President and General Manager CONSENT TO ASSIGNMENT The undersigned hereby acknowledges that it is the Borrower set out in the Note and hereby consents to the assignment of the Note to the Rural Electrification Administration upon the terms herein stated.
TEX AS UTILITIES ELECTRIC COMPANY Its:
l EXHIBIT B TRANSFER OF LIENS THE STATE OF TEX AS KNOW ALL 51EN BY THESE PRESENTS:
COUNTIES OF HOOD & SO51ERVELL TH AT the undersigned, of the County of $!cLennan, and State of Texas, the present legal and equitable owner and holder of that one certain promissory note in the original principal sum of Dollars ($
),
dated
.1988, executed by TEX AS UTILITIES ELECTRIC COhlPANY, payable to the order of BRAZOS ELECTRIC POWER COOPERATIVE, INC.,
more fully described in a Special Warranty Deed with Vendor's Lien and Bill of Sale, duly recorded in Volume
, Page
, of the Deed Records of Hood County, Texas, and Volume
, Page
, of Somervell County, Texas; and in a Deed of Trust, duly recorded in Volume
, Page
, of the Deed of Trust Records of Hood County, Texas, and Volume
, Page
, of Somervell County, Texas; said note being secured by said Vendor's Lien and Deed of Trust Lien against the following described property, to-wit:
See Attached Exhibit "A" fcr good and valuable consideration paid to the undersigned, the receipt and sufficiency of which are hereby acknowledged, has TRANSFERRED, ASSIGNED, GRANTED and CONVEYED and by these presents TRANSFERS, ASSIGNS, GRANTS and CONVEYS unto the Rural Electrification Administration of Washington, D.C., the above described note, together with the Vendor's Lien and Deed of Trust Lien and all liens, and any superior title, held by the ur.dersigned securing the payment thereof.. This Transfer of Liens is subject to the terms of that one certain Assignment of even date herewith by and between the parties thereto.
1 P
EXECUTED this _
day of
,1988.
BRAZOS ELECTRIC POh ER COOPERAT!YE, INC.
By:
Richard E. McCaskill, Executive Vice President and General Manager THE STATE OF TEX AS COUNTY OF McLENNAN This instrument was acknowledged before me this day of
.1988, by the said Richard E. McCaskill, Executive Vice Fresident and Oeneral Manager of Brazos Electric Power Cooperative, Inc.
Notary Public, State of Texas My Commission Expires:
8 i
l 2
L
~
y.
EXHIBIT B GCanc_NTY Due and punctual payment of all sums to be paid by Texas Utilities Electric Company to Brazos Electric Power Cooperative, Inc., in accordance with the terms of that certain promissory note of even date herewith in the original principal amount of is hereby unconditionally guaranteed to Brazos Electric Power Cooperative, Inc., by the undersigned.
The undersigned agrees that its obligations hereunder shall not be released, diminished, impaired, reduced, or affected by the occurrence of any one or more of the following events: (a) the taking or accepting of any additional security or other guaranty for any or all of the referenced indebtedness; (b) any release, surrender, exchange, subordination, or loss of any security at any time existing in connection with any or all of such indebtedness; (c) the modification of, amendment to, or walver of compliance with any terms of the referenced promissory note agreed to by the Borrower thereunder without the notification or consent of the undersigned; or (d) any renewal, extension, and/or rearrangement of the payment of any or all of the referenced indebtedness agreed to by said Borrower.
Executed this day of
,1988.
TEXAS UTILITIES COMPANY By:
Title:
EXHIBIT C ELECTRIC COOPERATIVES THAT ARE MEMBERS OF BRAZOS RLECTRIC POWER COOPERATIVE,INC.
1.
Bartlett Electric Cooperative, Inc.
2.
B-K Electric Cooperative,Inc.
3.
Bel. falls Electric Cooperative,Inc.
4.
Comanche County Electric Cooperative Assn.
~5.
Cooke County Electric Cooperative Assn.
6.
Denton County Electric Cooperative,Inc.
7.
Dickens Electric Cooperative, Inc.
8.
Erath County Electric Cooperative Assn.
9.
Fort Belknap Electric Cooperative,Inc.
10.
Gate City Electric Cooperative,Inc.
11.
Hamilton County Electric Cooperative Assn.
12.
Hill County Electric Cooperative, Inc.
13.
J-A-C Electric Cooperative,Inc.
14.
Johnson County Electric Cooperative Assn.
15.
McLennan County Electric Cooperative, Inc.
16.
Mid-South Electric Cooperative Assn.
17.
Navarro County Electric Coeperative, Inc.
18.
Navasota Valley Electric Cooperative,Inc.
19.
Tri-County Electric Cooperative, Inc.
20.
Wise Electric Cooperative, Inc.
EXHIBIT D DEED OF TRUST AND SECURITY AGREEMENT made by and between TEXAS UTILITIES ELECTRIC COMPANY and a TRUSTEE for the benefit of BRAZOS ELECTRIC POWER COOPERATIVE, INC.
Dated as of
.1938 i
l l
DEED OF TRUST AND SECURITY AGREEMENT, da'.ed as of
.1988 (hereinafter called the "Mortgage"), made by and between TEXA3 UTIIJTIES ELECTRIC COMPANY a corporation existing under the laws of the State of Texas (hereinafter called the "Mortgagor"), and (hereinafter called "Truste e"),
for the benefit of BRAZOS ELECTRIC POWER COOPERATIVE, INC., a corporation existing under the laws of the State of Texas (hereinafter called "Mortgagee").
NOW, THEREFORE, this Deed of Trust and Security Agreement WIT N ESS ETH:
WHEREAS, Mortgagor has entered into an Agreement with Mortgagee dated July 5, 1988 (the "Agreement") providing for the purchase by Mortgagor from Mortgagee of certain properties and assets (the "Purchased Assets") described in the Agreement and the payment of a portion of the purchase price thereof by Mortgagor to Mortgagee under and pursuant to a Promissory Note of even date herewith from Mortgagor to Mortgagee in the original principal amount of $
(the "Note");
WHEREAS,in order to facilitate the purchase by Mortgagor of the Purchased Assets and in order to secure the payment of the Note, Mortgagee is willing to transfer the Purchased Assets to Mortgagor and accept the Note in partial payment therefor, only upon the condition, inter alla, that Mortgagor shall have executed and delivered this Mortgage as a purchase money mortgage to secure payment of the Note; NOW, THEREFORE, in order to secure the payment of the principal of and interest on the Note (representing a portion of the purchase price under the Agreement), according to its tenor and effect, and further te secure the due performance of the covenants, agreements and provisions contained in this Mortgage and to declare the terms and conditions upon which the dote is to be secured, the Mortgager, in consideration of the premises has executed and delivered this Mortgage, and has granted, bargained, sold, conveyed, warranted, assigned, transferred, mortgaged, pledged and set over, and by these presents does hereby grant, bargain, sell, convey, warrant, assign, transfer, mortgage, pledge and set over, unto the T ustee in trust for the benefit of the Mortgagee, and their respective ruccessors and assigns, all and singular the following described property (hereinafter sometimes called the "Mortgaged Property"):
1.
All right, title and interest of the Mortgagee conveyed to the Mortgagor on the date hereof in and to the Purchased Assets, which includes real and personal property, including fixtures, and which is the property described on Exhibit A attached hereto, as well as all appurtenances, betterments and additions thereto, substitutions therefor, and allimprovements now or hereafter placed thereon To the extent the same constitute a part of the Purchased Assets, the right, title and interest of the Mortgagor in, to and under any and all grants, privileges, rights of way and easements now owned, held, leased, enjoyed or exercised, or which may hereafter be owned, held, leased, acquired, enjoyed or exercised, by the Mortgagor for the purposes of, or in connection with, the construction or operation by or on behalf of the Mortgagor of the Purchased Assets, wherever located;
!!I.
To the extent the same constitute a part of the Purchased Assets, the right, title and interest of the Mortgagor in, to and under any and all licenses, franchises, ordinances, privileges and permits heretofore granted, issued or executed, or which may hereafter be granted, issued or executed, to it by the United States of America, or by any state, or by any county, township, municipality, village or other political subdivision thereof, or by 2-
any' agency, board, commission or department of any of the foregoing, authorizing the construction, acquisition, or operation of the Purchased Assets, insofar as the same may by law be assigned, granted, bargained, sold, conveyed, transferred, mortgaged, or pledged; IV.
All right, title and interest of the Mortgagor in, to and under any and all accounts, contract rights and general intangibles (as such terms are defined in the applicable
-Uniform Commercial Code) heretofore or hereafter acquired by the Mortgagor and which are part of the Purchased Assets; V.
Together with all rents, income, revenues, profits and benefits at any time derived, received or had from any and all of the above described property of the Mortgagor.
TO HAVE AND TO HOLD all and singular the Mortgaged Property unto the Mortgagee and its assigns forever, to secure the payment of the principal of and interest on the Note, according to its tenor and effect, without preference, priority or distinction as to interest or principal (except as otherwise specifically provided herein) or as to tien, to secure the due performance of the covenants, agreements and provisions herein, and for the uses and purposes and upon the terms, conditions, provisos and agreements hereinafter expressed and dcelated.
ARTICLE I PARTICULAR COVENANTS OF THE MORTGAGOR De Mortgagor ecvenants with the Mortgagee and any other permitted holder of the Note (hereinaf ter sometimes collectively called the "Noteholder") as follows:
SECTION 1. De Mortgagor is duly authorized under its articles of incorporation and by-laws and the laws of the State of Texas and all other applicable provisions of law to execute and deliver the Note and this Mortgage; all corporate action on its part for the T
execution and delivery of the Note and this Mortgage has been duly and effectively taken; and the Note and this Mortage are the vaUd and enforceable obugations of the Mortgagor in accordance with their respective terms.
SECTION 2. 'The Mortgagor warrants that it has good right and lawful authority to mortgage the property described in the granting clauses of this Mortgage for the purposes herein expressed, and that said property is free and clear of any deed of trust, mortgage, llen, charge or encumbrance thereon or affecting the title thereto, except (i) the Uen of this Mortgage and the vendors lien retained by Mortgagee, and any liens for taxes, assessments or similar governmental charges not yet due;(li) deposits or pledges to secure payment of workmen's compensation, unemployment insurance, old age pensions or other social security;(iii) deposits or pledges to secure performance of bids, tenders, contracts (other than contracts for the payment of borrowed money), leases, public or statutory obligations, surety or appeal bonds, or other deposits or pledges for purposes of like general nature in the ordinary course of business and Hens, controls, obligations, restrictions or rights in favor of, reserved to or vested in any municipal, public or other governmental authority (iv) liens (existing or inchoate) in favor of mechanics, materialmen, laborers and suppliers of materials, goods, services, equipment, inventory and labor; (v) matters affecting the title to all or any part of the Mortgaged Property created by the acts or omissions of (a) Mortgagee, or (b) the parties owning interests in the project of which the Mortgaged Property is a part, or (c) Mortgagor as Project Manager acting for the owners of the project of which the Mortgaged Property is a part; (vi) matters of record affecting the Mortgaged Property; and (vil) the Joint Ownership Agreement dated January 2,1979, as modified and amended, to which Mortgagor and Mortgagee are parties relating to the Mortgaged Property and all licenses, permits, leases, franchises and contracts relating thereto. The Mortgagor will, so long as the Note shall be outstanding, maintain and preserve the lien of this Mortgage superior to all other tiens affecting the Mortgaged Property, except to the extent referenced in the preceding,
I-sentence, and will forever warrant and defend the title to the property described as being mortgaged hereby to the Mortgagee against any and all claims and demands whatsoever by, through or under Mortgagor. The Mortgagor will promptly pay or discharge any and all obligations for or on account of which any such lien or charge might exist or could be created and any and all lawful taxes, rates, levies, assessments, liens, claims or other charges imposed upon or accruing upon any of the Mortgaged Property (whether taxed to the Mortgagor or to the Noteholder), as and when the same shallbecome due and payable; and whenever called upon so to do the Mortgagor will furnish to the Mortgagee or to any Noteholder adequate proof of such payment or discharge; provided, however, that this provision shall not be deemed to require the payment or discharge of any tax, rate, levy, assessment or other governmental charge while the Mortgagor is contesting the validity thereof by appropriate proceedings in good faith and so long as it shall have set aside on its books adequate reserves with respect thereto.
SECTION 3. The Mortgagor will not, without the consent in writing of the Mortgagee, charge, pledge, mortgage, or otherwise encumber any of the Mortgaged Property in any manner so as to adversely affect the priority of the lien established hereby.
SECTION 4. De Mortgagor will duly and punctually pay the principal of and interest on the Note at the dates and in the manner provided therein, according to the true intent and meaning thereof, and all other sums becoming due hereunder. The Mortgagor may at any time make prepayments on account of all or part of the principal of the Note to the extent and in the manner provided therein.
SECTION 5. De Mortgagor will at all times, so long as any portion of the Note shall be outstanding, take or cause to be taken all such action as from time to time may be necessary to preserve its corporate existence and use its best efforts to preserve and renew all rights of way, easements and similar real property rights now or hereafter granted to it or conferred upon it relating to the Mortgaged Property, and will comply 5-
\\'
with all valid laws, ordinances, regulations and requirements applicable to the Mortgaged Property, so long as the Mortgagor is not contesting the validity of any thereof in good faith.
De Mortgagor - will not without the approval in writing of the Noteholder consolidate with or merge into any other corporation or permit any other corporation to merge into the Mortgagor or acquire all or substantially all of the business or assets of another corporation if such acquisition is analogous in purpose or effect to a merger or consolidation, or so consolidate or merge or permit any such merger or so acquire any such business or assets without the approval in writing of the Noteholder unless the corporation surviving such transaction shall have assumed the obilgations of the Mortgagor under the Note.
SECTION 6. We Mortgagor will, upon completion, at all times maintain and preserve the Mortgaged Property, as part of an operating system, in good repair, working order and condition, ordinary wear and tear excepted and subject to operating contingencies and maintenance requirements, and in compliance with all applicable laws, regulations and orders, which are not being contested in good faith, and will from time to time make all needfal and proper repa!rs, renewals and replacements, and useful and proper alterations, additions, betterments and improvements, so that the operations of the Mortgaged Property as part of an operating system shall be conducted properly and advantageously.
Nothing herein contained, however, shall be held to prevent the Mortgagor from permanently discontinuing the construction or operation, or reducing the capacity, of the plant of which the Mortgaged Property is a part, if, in the judgment of the Mortgagor, any such action (which affects the Mortgaged Property) is necessary or desirable in the conduct of the business of the Mortgagor, or if the Mortgagor falls to obtain the necessary regulatory approvals or is ordered so to do by regulatory authority l
having jurisdiction in the premises, or if the Mortgagor intends to sell or dispose of the same subject to the lien of this Mortgage or otherwise and with!n a reasonable time shall endeavor to effectuate such sale; nor shall anything herein contained be construed to 1
prevent the Mortgagor from taking such action with respect to the use of the plant of which the Mortgaged Property is a part as is proper under the circumstances, including the cessation or omission to exercise rights, permits, licenses, privileges or franchises which, in the judgment of the Mortgagor, can no longer be profitably exercised or availed of, in the event that any regulatory authority having jurisdiction over the Mortgagor shall determine that the expenditures for repairs and maintenance necessary to make good any such maintenance deficiency as shallhave been so determined would be excessive or shall, by order or regulation, prohibit, in whole or in part, such expenditures for repairs and maintenance, then, upon filing with the Trustee a certified copy of such order or a copy of such regulation, as the case may be, the Mortgagoc shall, so long as such order or such regulation remains in effect, be relieved from compliance with the covenant contained herein, in regard to the maintenanca of the Mor tgaged Property, to the extent that such expenditures for repairs and maintenance shall have been held excessive or shall be prohibited.
SECTION 7. The Mortgagor agrees that it will keep or cause to be kept the Mortgaged Property insured by property insurance to the extent that the plant of which it is a part is so insured, or that it will, in lieu of or supplementing such insurance in whole or in part, adopt some other method or plan of protection against loss at least equal in protection to the method or plan of protection against loss of companies similarly situated and operating properties subject to similar hazards. The Mortgagor will, upon request of the Mortgagee, submit to the Mortgagee a schedule of its insurance in effect as required herein on the date specified in such request and, upon request of the Mortgagee, will
,. ovide certificates of insurance relating thereto, in the event of damage to or the destruction or loss of any portion of the Mortgaged Property which shall be covered by insurance, unless the Mortgagee shall otherwise agree, to the extent possible with available insurance proceeds, the Mortgagor shall replace or restore such damaged, t I
destroyed or lost portion so that the Mortgaged Property shall be in substantially the same condition as it was in prior to such damage, destruction or loss, ordinary wear and tear excepted.
The Mortgagor shall replace the loss or shall commence such restoration promptly after such damage, destruction or loss shall have occurred and receipt of the insurance proceeds, and shall complete such replacement or restoration as expeditiously as practicable, and shall pay or cause to be paid out of the proceeds of such insurance all costs and expenses in connection therewith so that such replacement or restoration shall be so completed that the portion of the Mortgaged Property so replaced or restored shall be free and clear of all mechanics' liens and other claims.
SECTION 8. In the event of the failure of the Mortgagor in any respect to comply with the covenants and conditions herein contained with respect to the procuring of insurance, the payment of taxes, assessments and other charges, the keeping of the Mortgaged Property in repair and free of liens and other 11 alms or to comply with any other covenant contained in this Mortgage, the Mortgagee shall have the right (without prejudice to any other rights arising by reason of such default) to advance or expend moneys for the purpose of procuring such insurance, or for the payment of insurance premiums, taxes, assessments or other charges, or to save the Mortgaged Property from sale or forfeiture for any unpaid tax or assessment, or otherwise, or to redeem the same from any tax or other sale, or other encumbrance thereon, or to make repairs thereon or to comply with any other covenant herein contained or to prosecute or defend any suit in relation to the Mortgaged Property or in any manner to protect the Mortgaged Property and the title thereto, and all sums so advanced for any of the aforesaid purposes shall be deemed a charge upon the Mortgaged Property in the same manner as the Note is secured and shall be forthwith paid to we Mortgagee making such advance or advances upon demand. it shall not be obligatory for the Mortgagee in making any such advances or expenditures to inquire into the validity of any such tax title, or of any of such taxes or assessments or sales therefor, or of any such mechanics' liens or other encumbrances. The Mortgagee acting hereunder shall not be liable to the Mortgagor or the Noteholder except for losses resulting from negligence or wilful misfeasance.
SECTION 9. The Mortgagor will at all times keep, and safely preserve, proper books records and accounts in which full and true entries will be made of all of the dealings, business and affairs with respect to the Mortgaged Property.
SECTION 10. The Mortgagor will from time to time upon written demand of the Noteholder make, execute, acknowledge and deliver o> cause to be made, executed, acknowledged and delivered all such further and suppemental indentures of mortgage, deeds of trust, mortgages, financing statements, continuation statements, security agreements, instruments and conveyances as may reasonably be requested by the Noteholder, and take or cause to be taken all such further action as may reasonably be requested by the Noteholder to effectuate the intention of these presents and to provide for the securing and payment of the principal of and interest on the Note according to the terms thereof and for the purpose of fully conveying, transferring and confirming unto the Mortgagee the property hereby conveyed, mortgaged and pledged, or intended so to be, now owned by the Mortgagor and to reflect the assignment of the rights or interests of the Noteholder. The Mortgagor will cause this Mortgage and any and all supplemental indentures of mortgage, mortgages and deeds of trust and every security agreement, financing statement, continuation statement and every additional instrument which shall be executed pursuant to the foregoing provisions forthwith upon execution to be recorded and filed and rerecorded and refiled as conveyances and mortgages and deeds of trust of and security interests in real and personal property in such manner and in such places as may be required by law or reasonably requested by the Mortgagee in order fully to preserve the security for the Note and to perfect and maintain the superior lien of this Mortgage and all supplementalindentures of mortgage, mortgages and deeds of trust and the rights and rem (dies of the Noteholder.
9 6
ARTICLE D REMEDIES OF THE MORTGAGEE SECTION 1. If one or more of the following events (hereinafter called "events of default") shall happen, that is to say:
(a) default shall be made under the Note; or (b) any representation or warranty made by the Mortgagor herein or in any certificate delivered hereunder shall prove to have been incorrect or untrue in any material respect; or (c) defeult shall be made fri the due observance or performance of any other of the covenants, conditions or agreements on the part of the Nortgagor in this Mortgage contained, and such default shall continue for a period of thirty (30) days after written notice specifying such default and requiring the same to be remedied shall have been reedved by the Mortgagor, unless such default cannot be remedied within sech period in which event Mortgagor shall have such period of time to remedy such default as shall be reasonably necessary provided it begins to remedy such default within such thirty (30) day period and proceeds diligently thereaf ter in such regard; or (d) the expiration of a period of ninety (90) days following the entry of a decree or order by a court having jurisdiction in the premises for relief in respect of the Mortgagor under the Federal Bankruptcy Act or any other applicable Federal or State aw of a similar nature, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of or for the Mortgagor or any substantial part of the Mortgaged Property, or ordering the winding up or IIquidation of its affairs unless during such period such decree, order or appointment of a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official shall be vacated or shall be stayed on appeal or otherwise or shall have otherwise ceased to continue in effect; or (e) the commencement by the Mortgagor of a voluntary case, or the institution by it of proceedings to be adjudicated a bankrupt or insolvent, or the consent by it to the institution of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization, arrangement or relief under the Federal Bankruptcy Act or any other applicable Federal or state law of a similar nature, or the consent or acquiescence by it to the filing of any such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Mortgagor or any substantial part of the Mortgaged Property, or the making by it of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Mortgagor in furtherance of any such action; then in each and every such case the Trustee, to the extent permitted by applicable state law on behalf of the Mortgagee, may, in its discretion (aa) without protest, presentment or demand, declare all unpaid principal of
' accrued interest on the Note to be due and payable immediately, apon any such declaration all such unpaid principal and accrued tt so declared to be due and payable shall become and be due and i immediately, anything contained herein or in the Note to the y notwithstanding; (bb>
sed to protect and enforce the rights of the Mortgagee under this
- .ortgage by suits or actions in equity or at law in any court or courts of competent jurisdiction, whether for specific performance of any covencnt or any agreement contained herein or in aid of the execution of any power herein granted or for the foreclosure hereof or hereunder or for the seic of the Mortgaged Property, or any part thereof, or to collect the debts hereby cecured or for the enforcement of such other or edditional appropriate legal or equitable remedies as may be deemed most effectual to protect and enforce the rights and remedies herein granted or conferred; (cc) sell or offer for sale the Mortgaged Property in such portions, order and parcels as the Mortgagee may determine, to the highest bidder for cash at public auction, such sale to be made at the courthouse door of the counties wherein such property (or that portion thereof to be sold) is situated (whether the parts or parcels thereof, if any, in different counties are contiguous or not, and without the necessity of having any personal property hereby mortgaged present at such sale) on the first Tuesday of any month between the hours of 10:00 a.m. and 4:00 p.m.
after posting a written or printed notice or notices of the place, time and terms of the sale for twenty-one (21) days prior to the date of the sale at the courthouse door of the county in which the sale it to be made and at the courthouse door of any other county in which a portion of the property may be situated and filing a copy of such notice (s) in the office of the county clerk in each of such counties, and by serving written notice of the proposed sale at least twenty-one (21) days preceding the date of sale by certified mail on Mortgagor, service of such notice being completed upon deposit of the notice, enclosed in a postpaid wrapper, properly stamped and addressed to the Mortgagor at its most recent address as shown by the records of the Mortgagee, in a post office or official depository under the care and custody of the l
United States; 1
i (dd) in lieu of the foregoing, the sale may be accomplished by following the l
procedures permitted or required by Tex. Prop. Code Ann. S51.002 (Vernon 1984), as same may be amended from time.to time, relating to I
the sale of real estate and/or by Chapter 9 of the Tex. Prop. Code l
relating to the sale of personal property collateral after default by a debtor (as said Section and Chapter may now exist or may hereafter be amended or succeeded), or by any other present or subsequent articles or enactments relating to the same, it being understood that nothing i
! l
contained herein shall be construed to limit in any way the Trustee's rights to sell such properties by private sale if, and to the extent, that such private sale is permitted under the laws of the State of Texas or by public or private sale after entry of judgment by any court c' competent jurisdiction orderiag the same, and at any such sale (i) whether made under power herein contained, the aforesaid S51.002, the Code, any other legal requirement or by virtue of any judicial procedure or any other legal right, remedy or recourse, it shall not be necessary for the Trustee to have physically present, or to have constructive possession of, the Mortgaged Property, and the title to any such property shall pass to the purchaser thereof as completely as if the same had been actually present and delbered to the purchaser at such sale, (ii) each instrument of conveyance executed by the Trustee shall contain a warranty of title, binding upon the Mortgagcr, (iii) each and every recital contained in any instrument of conveyance made by the Trustee shall conclusively establish the truth and accuracy of the matters recited therein and the advertisement and conduct of such sale in the manner provided herein, (iv) any and all prerequisites to the validity thereof shall be conclusively presumed to have been performed, and (v) the receipt of the Trustee or of such other party or officer making the sale shall be e sufficient discharge to the purchaser or purchasers for his or their purcha.se money and no such purchaser or purchasers, or his or their assigns or personal representatives, shall thereafter be obligated to see to the application of such purchase money or be in any way answerable for any loss, misapplication or nonapplication thereof.
SECTION 2. At any public sale hereunder the Mortgagee shall have the right to bid for and purchase the Mortgaged Property, or such part thereof as shall be offered for sale.
SECTION 3. Any proceeds of funds arising from the exercise of any rights or the enforcement of any remedies herein provided after the payment or provision for the l
payment of any and all costs and expenses in connection with the exercise of such rights or the enforcement of such remedies and any other sums received by the Mortgagee, the 1
disposition of which is not otherwise herein specifically provided for, shall be applied l
first, to the payment of indebtedness hereby secured other than the principal of or l
Interest on the Note; second, to the payment of interest which shall have accrued on the l
Note and which shall be unpaid; third, to the payment of or on account of the unpaid principal of the Note; and the balance, if any, shall be paid to the Mortgagor or whosoever else shall be legally entitled thereto.
l 1 l
1 SEU I' ION 4.
Every right or remedy herein conferred upon or reserved to the Mortgagee shall be cumulative and shall be in addition to every other r!ght and remedy given hereunde'r or now or hereafter existing at law, or in equity, or by statute. Die pursuit of any right or remedy hereunder shall not be deemed to be an election and shall not preclude the pursuit of any other right or remedy.
SECTION 5. If at any time after an event of default and prior to the institution of foreclosure prcceedings, all payments in respect of principal and interest which shall have become due and payable by the terms of the Note shall be paid to the Noteholder, and all other defaults hereunder and under the Note shall have been cured, together with reimbursement for any resulting expense or damage, then and in every such case, such default or defaults shall be waived, but no such waiver shall extend to or affect any subsequent default or impair any right consequent thereon.
SECTIOli 6.
If, after the occurrence of any event of default hereunder and pursuit of the remedies provided for hereinbefore, Noteholder should obtain ownership of the Mortgaged Property, it is understood that the Joint Ownership Agreement as defined in the Agreement may be reinstituted as between such Note:iolder and Mortgagor so as from thenceforth to apply to and control the relationship of the Noteholder as owner of the Mortgaged Property and the Mortgagor as owner of its interest in the plant and other facilities of which the Mortgaged Property is a part, it being understood that the Mortgagor shall have no right to reimbursoment from the Noteholder of any amount that the Mortgagor has expended with respect to the Mortgaged Property prior to the resumption of ownership thereof by the Noteholder.
ARTICLE III POSSESSION UNTIL DEPAULT-DEFEASANCE CLAUSE SECTION 1.
Until some one or more of the events of default shall have happened, the Mortgagor shall be suffered and permitted to retain actual possession of the r.
Mortgaged Property, and to manage, operate and use the same and any part thereof, with the rights and franchises appertaining thereto, and to collect, receive, take, use and enjoy the rents, revenues, Issues, earnings, income, products and profits thereof or therefrom.
SECTION 2. If the Mortgagor shall well and truly pay or cause to be paid the whole amount of the principal of and interest on the Note at the times and in the manner therein provided, according to the true intent and meaning thereof, and shall also pay or cause to be paid all other sums payable hereunder by the Mortgagor and shall well and truly keep and perform, according to the true intent and meaning of this Mortgage, all covenants herein required to be kept and performed by it, or if the Mortgagor shall comply with the provisions of section 4 of that certain Assignment Agreement of even date herewith 1,etween the Mortgagor and the Mortgagee, then and in that case, all property, rights and interests hereby conveyed or assigned or pledged shall revert to the Mortgagor and the estate, chi;ht, title and interest of the Mortgagee and any Noteholder shall thereupon cease, determine and become void and the Mortgagee and such Noteholder, in such case, on written demand of the Mortgagor but at the Mortgagor's cost and expense, shall enter satisfaction of this Mortgage, and all other tiens including vendors liens in favor of the Noteholder with respect to the Mortgeged Property, upon the record. In any event, the Noteholder and, if appropriate, the Trustee upon payment in full to him by the Mortgagor of all principal of and interest on the Note and the payment and discharge by the Mortgagor of all charges due to the Noteholder hereunder, shall execute and deliver to the i
Mortgagor such instruments of satisfaction, discharge or release as shall be required by f
law in the circumstances.
In the event of a partial prepayment of the Note, the Noteholder and, if appropriate, the Trustee shall, upon written demand of the Mortgagor but at the Mortgagor's cost and expense, execute and deliver to the Mortgagor such instruments of satisfaction, discharge or release of an undivided interest in the Mortgaged Property as shall be equal to, and in proportion with, that portion of the remaining principal amount due under the Note which has been prepaid at the time of such _ _ _ _ _ _ _ _ _ _ - _ _ _ _ _ _ - _ - _ _ _ _ _ _ - _ - _ _ _ - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
prepayment. In addition, the Noteholder agrees to release to such extent any and a'll other liens including vendors liens in favor of the Noteholder with respect to the 4
Mortgaged Property by such instruments of satisfactionf discharge and release as shall be required by law in the circumstances.
ARTICLE IV 4
SUBSTITUTE TRUSTEE SECTION 1.
In case of the resignation of the Trustee, or the inability (through death or otherwise), refusal or failure of the Trustee to act, or at the option of the Mortgagee, for any other reason (which reason need not be stated), a Substitute Trustee may be named, constituted and appointed by the Mortgagee without other formality than an appointment and designation in writing executed by the Mortgegee, which appointment and designation shall be full evidence of the right and authority to make the same and of all facts therein recited, and this conveyance shall vest in the Substitute Trustee the title, powers and duties herein conferred on the Trustee originally named herein, and the conveyance by the Substitute Trustee to the purchaser (s) at any sale of the Mortgaged Property or any part thereof shall be equally valid and effective. 'Ihe right to appoint a Substitute Trustee shall exist as of ten and whenever the Trustee, original or Substitute, resigns or cannot, will not or does not act, or the Mortgagee desires to appoint a new Trustee. No bond shall ever be required of the Trustee, original or Substitute.
The recitals in any conveyance made by the Trustee, original or Substitute, shall be accepted and construed in court and elsewhere as prima facie evidence and proof of the facts recited, and no other proof shall be required as to the request by the Mortgagee to the Trustee to enforce this Trust, or as to the notice of or holding of the sale, or as to any particulars thereof, or as to the resignation of the Trustee, original or Substitute, or as to the inability, refusal or failure of the Trustee, original or Substitute, to act, or as to the election of the Mortgagee to appoint a new Trustee, or as to appointment of a substitute Trustee, and all prerequisites of said sale shall be presumed to have been performed. The Trustee, original or Substitute, is hereby authorized and empowered to appoint any one or more persons as attorney-in-fact to act as trustee under him and in his name, place and stead in order to take any actions that the Trustee is authorized and empowered to do hereunder, such appointment to be evidenced by an instrument signed and acknowledged by the Trustee, original or Substitute; and all acts done by said attorney-in-fact shall be valid, lawfut and binding as if done by the Trustee, original or Substitute, in person.
ARTICLE V MISCELLANEOUS SECTION 1.
All of the covenants, stipulations, promises, undertakings and agreements herein contained by or on behalf of the Mortgagor shall bind its successors and assigns, whether so specified or not, and all titles, rights and remedies hereby granted to or conferred upon the Mortgagee shall pass to and inure to the benefit of the successors and assigns (to the extent permitted) of the Mortgagee and shall be deemed to be granted or conferred for the benefit and security of all who shall from time to time be the holder of the Note.
SECTION 2. The descriptive headings of the various articles of this Mortgage were formulated and inserted for convenience only and shall not be deemed to affect the meaning or construction of any of the provisions hereof.
SECTION 3.
All demands, notices, reports, approvals, designations, or directions required or permit'ted to be given hereunder shall be in writing and shall be deemed to be properly given if mailed by registered mail addressed to the proper party or parties at the following addresses:
As to the Mortgagor:
Texas Utilities Electric Company 2001 Bryan Street Suite 1900 Dallas, Texas 75201 Attention: Erle Nye l _ _ _
(with copy to)
Worsham, Forsythe, Sampels & Wooldridge 32nd Floor,2001 Bryan Tower Dallas, Texas 75201
, Attention: Robert A. Wooldridge As to the Trustee:
As to the Mortgagee:
Brazos Electric Power Cooperative, Inc.
P. O. Box 2582 Waco, Texas 76702-2585 Attention: Richard E. McCaskill For Federal Ex1,ress:
Brazos Electric Power Cooperative, Inc.
2404 LaSalle Avenue Waco, Texas 76706 Attention: Richard E. McCaskill (with copy to)
Joseph Robert Riley, Esq.
Law Offices of Joseph Robert Riley 500 RepublicBank Tower P. O. Box 153 Waco, Texas 76703 SECTION 4.
The invalidity of any one or more phrases, clauses, sentences, paragraphs or provisions of this Mortgage shall not affect the remaining portions hereof.
SECTION 5. To the extent that any of the property described or referred to in this Mortgage is governed by the provision of the Uniform Commercial Code this Mortgage is hereby deemed a "security agreement" under the Uniform Commercial Code, and a "financing statement" under the Uniform Commercial Code for said security agreement.
The mailing addresses of the Mortgagor as debtor, and of the Mortgagee as secured party, are as set forth in Section 3 of this Article V.
SECTION 6.
'Ihis Mortgage may be simultaneously executed in any number of counterparts, and all said counterparts executed and delivered, each as an original, shall constitute but one and the same instrument.
IN WITNESS WHEREOF, TEXAS UTILITIES ELECTRIC COMPANY, as Mortgagor, has caused this Deed of Trust and Security Agreement to be signed in its name and its corporate seal to be hereunto affixed and attested by its officers thereunto duly authorized, _
, as Trustee, has caused this Deed of Trust and Security Agreement to be signed in his name, and BRAZOS ELECTRIC POWER COOPERATIVE, INC., as Mortgagee, has caused this Deed of Trust and Security Agreement to be duly executed in its behalf, all as of the day and year first above written.
l
[
l l 1 l
i
(
TEXAS UTILITIES ELECTRIC COMPANY (SEA L)
By:
Its:
ATTEST:
By:
Its:
. TRUSTEE BRAZOS ELECTRIC POWER COOPERATIVE, INC.
(SEAL)
By:
Its:
ATTEST:
By:
Its:
THE STATE OF TEXAS 1
COUNTY OF THIS INSTRU51ENT was acknowledged before me on
,1988, by of TEXAS UTILITIES ELECTRIC COMPANY, a Texas corporation, on behalf of said corporation.
Notary Public in and for.
the State of Texas Printed Name of Notary:
51y Commission Expires:
THE STATE OF TEX AS COUNTY OF THIS INSTRU51ENT was acknowledged before me on
.1988, by
, as Trustee, in the capacity and for the purposes stated.
Notary Public in and for the State of Texas Printed Name of Notary:
51y Commission Expires:
1 t
-2 0 -
l:
l~
l
.J.
l THE STATE OF TEX AS. :
COUNTY OF THIS INSTRUMENT was acknowledged before me.on
,1988, by of BRAZOS ELECTRIC POWER COOPERATIVE, IN C.,
a Texas corporation, on behalf of said corporation.
Notary Public in and for the State of Texas Printed Name of Notary:
My Commission Expires:
I 6
.- =.
'\\
EXHIBIT E PROMISSORY NOTE made by TEXAS UTILITIES ELECTRIC COMPANY to BRAZOS ELECTRIC POWER COOPERATIVE, INC.
Dated as of
,1988 l
l l
l.
PROMISSORY NOTE Dallas, Texas
,1988 1.
For value received, TEXAS UTIllTIES ELECTRIC COMPANY (the "Borrower"), a corporation organized and existing under the laws of the State of Texas, promises to pay to BRAZOS ELECTRIC POWER COOPERATIVE, INC. ("Brazos"), a corporation organized and existing under the laws of the State of Texas, at the times, in the manner, and with interest at the rate, hereinafter provided, the sum of Dollars ($
), pursuant to an Agreement (the "Agreement") between the Borrower and Brazos, dated as of July 5,1988 (reference to which is made for all pertinent purposes), with interest payable from the date hereof, on the unpaid principal balance until paid, at the rate of nine and one half percent (9 1/2%) per annum until and at the rate of eight and one half percent (8 1/2%) per annum for the remainder of the term of this note.
2.
The principal of this note shall be payable at the times and in the amounts set forth on Exhibit A attached hereto. Interest shall be due and payable at the rate provided for hereinbefore on the unpaid principal balance hereof during the term hereof with each installment payment of principal in the amounts set forth on Exhibit A attached hereto, if at the time set forth for the first payment of combined principal and interest, interest is due and accrued for a period less than a quarterly installment period, as referenced on said Exhibit A, the first said payment of interest shall be decreased to a prorated amount of interest payable for the portion of the quarterly period remaining. The unpaid principal balance shall bear interest after maturity of any installment at the rate of twelve and one j
half percent (121/2%) per annum.
3.
Each payment made on this note shall be applied first to the payment of interest and then on account of principal and shall be in such funds as are then legal tender for the payment of debts.
4.
His note represents a portion of the purchase price paid by the Borrower for the transfer to it of certain properties and assets described in the Agreement.
Accordingly, the Borrower acknowledges that this note does not represent a loan or advance to, or investment in, the Borrower in an original or primary manner, but rather indebtedness to Brazos incurred as a portion of such purchase price. The payment of this note is secured by a purchase money mortgage and security interest under a Deed of Trust and Security Agreement of even date herewith from the Borrower to Trustee (the "Mortgage"), for the benefit of the holder of this note which constitutes a lien on, and represents a security interest in, certain property located in Hood and Somervell Counties, Texas.
5.
This note may be prepaid at any time in whole or in part, without premium or penalty, except that if this note is prepaid at any time prior to the no prepayment premium time shown on Exhibit A attached hereto, the Borrower shall pay as a prepayment penalty the applicable amount shown on such Exhibit A. Reference is hereby made to the Assignment Agreement of even date herewith (the "Assignment Agreement")
between the parties hereto and the United States Government (the "Government") acting by and through the Administrator of the Rural Electrification Administration providing for an assignment of this note, a vendors lien in favor of Brazos referenced in the Assignment Agreement (the "Vendors Lien") and the Mortgage to the Government, the terms of which are hereby incorporated herewith by reference. The holder hereof agrees that prepayment in part at any time of this note shall result in a partial release of the Vendors Lien and the lien of the Mortgage pro rata to the extent of the amount of such prepayment. In addition, in accordance with the terms of the Assignment Agreement, it is understood that if this note is prepaid in whole or in part by depositing funds in trust as provided for in section 4 of the Assignment Agreement, the rate of interest payable hereunder on the funds so deposited shall thereafter become 81/2% per annum.
(
i 2
t
6.
The principal of and all accrued interest on this note shall become due and payable at the option of the holder hereof if one or more of the following events shall e
occur:
(i)
Default shall be made by the Borrower in the payment of any installment of the principal of or interest on this note when and as the same shall become due and such default shall continue for a period of fifteen (15) days after receipt of written notice thereof by the Borrower from the holder hereof; or (ii) an Event of Default shall occur under the Mortgage.
Said option shall continue until all such defaults have been cured. In case any one or more of the events of default specified hereinbefore shall have happened and be continuing, the holder of this note may proceed to protect and enforce its rights either by suit in equity cad /or by action at. law, or by other appropriate proceedings, whether for the specific performance (to the extent permitted by law) of any covenant or agreement contained in this note, or in aid of the exercise of any power granted in this note, or may proceed to enforce the payment of this note or to enforce any other legal or equitable right of the holder of this note.
In the event of any such default, the holder of this note may, at its option, declare the entire principal and all interest accrued on this note to be, and this note shall thereupon become, forthwith due and payable, without any presentment, demand, protest or other notice or diligence of any kind, all of which are hereby expressly waived.
In such event, the Borrower shall forthwith pay to the holder of this note the entire principal of, and all interest accrued on, this note. No right, power or remedy conferred by this note or otherwise available in connection herewith shall be exclusive of any other right, power or remedy hereinafter available to the holder hereof. No failure or delay on the part of the holder of this note in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, power or privilege. __
7.
This note shall not be assignable, negotiable or transferable without the consent in writing of the Borrower, except that it is understood that this note is being assigned on tile date hereof in accordance with the terms of the Assignment Agreement.
Any other assignment or transfer of this note shall be void ab initio.
8.
Notwithstanding anything to the contrary contained herein, or in the Agreement, the Mortgage or any other agreement entered 'qto in connection herewith, it is agreed that the aggregate of allinterest and any other charges constituting interest, or adjudicated as constituting interest, under the laws of the State of Texas and contracted for, chargeable or receivable under this note or otherwise in connection with this transaction shall under no circumstances exceed the maximum amount of interest permitted by applicable law, and any excess shall be deemed a mistake by all parties and cancelled automaticelly, and if theretofore paid shall, at the option of the holder hereof, be refunded to the Borrower or credited to the principal amount owing hereon. In the event the maturity of this note is accelerated by reasJn of an election by the holder hereof resulting from a default hereunder, or in the event of voluntary prepayment in accordance herewith by the Borrower, then earned interest may never include more than the maximum amount permitted by law, computed from the date hereof until maturity or prepayment, and any unearned interest in excess of the maximum amount permitted by law, computed from the date hereof until maturity or prepayment, shall be cancelled automatically and if theretofore paid shall, at the option of the holder hereof, be refunded to the Borrower or credited on the principal amount owing hereon. All sums paid or agreed to be paid to the holder hereof for the use, forbearance or detention of th~e indebtedness of the Borrower to the holder hereof shall, if necessary, to the extent permitted by applicable law, be amortized, prorated, allocated and spread throughout the full term of such indebtedness until payment in full so that the actuai rate of interest on account of such indebtedness is uniform throughout the actual term of this note and does....
.I not exceed the maximum lawful rate throughout the entire term of this note. 'Ihe terms and provisions of this paragraph shall contro'l and supersede every other provision of all agreements between the Borrower and the original holder hereof.
9.
This note shall be construed and enforced in accordance with, and governed by, the laws of the State of Texas. This note shall be binding upon and inure to the benefit of the Borrower and Brazos and their respective successors and assigns (to the extent permitted).
IN WITNESS WHEREOF, the Borrower has caused this note to be signed in its corporate name and its corporate seal to be hereunto affixed and attested by its officers thereunto duly authorized, all as of the date and year first above written.
TEXAS UTILITIES ELECTRIC COMPANY (SEA L)
By:
Its:
s ATTEST:
By:
Its:
5-
- n. :. :
,,. : :t atta:*t: *: t*t %:tt
- t*e %:!t 5 tit:.te: 4: :tt we't:
after 6/3"/65is: **,** 1: 9/3 /si.
0.tSt4**.*!
.ist
~* *: 24 Lai ica lattatlt
- 14
^*t:4.st-G 4*tt 54;4?:t 54vtt?
\\;.
A et' E
~*t:
l tret**
islam nt 54 4 4n:t 1196,690 45.'.;
- v.:.:
g.gt,,,:.:.. n..
$t.i
.n..t.::.
ge i p4.t :.;. :.. :-
g,.: u..i,:..-
5.:,.,t.
- 3.,. :..:
5..,
lie.s..,3..:..:
l & i 6,. 5, :.....:1..:
5 4 i:.:...,.4...-
..:r 1.,u.
m..:.
3 33;ii 1193.i;1 135.S5 5360i619.54 lai6:3.ib.:'
lidicdie.;;
l'id'.*i:i:..:
6 63:54 5193,6;Si;;;.i' 5293 ~27.i' 56,605,359.~i 54 dis,ili.5:
11*ihs.::.:.
i 43:59 5193 355 636. 3 5262674.F 5.dii,43:.;3 164:;d:4. i.'
1:t J 51.el' "..
6
, 2,, :. 9
- 5. 3,...,.,.:e.u..
1,.,.
......z i e n.t:
Sti:9.,9 e.
54...&,:.....<.e:
S,i t..,...::...
.7 u
n 6..
.. 6 7
3319", 5192,6^6d:2.;3 5316,I.S t. h S& de;,21:.45 54ds;Ji.5.3:
514,Id:,3:i.::
i 63:9' 1:i:43;J72.3:
1396d29.53 Std7;d74.65 le d69, C.i:
5;. 265d "..
i 13"i] 5;il316Js;.79 Sk1&i990.5
$4 46* d 4.54 14 iiD,a?".;;
5;4,C55,1e!."
',~3i
$19;d57d;9.35 5429:261.96
$4d55,6t537 l!.i9h ei;;.5; 5.,...,.,........
l.....,."..
5;3,i"A : i.
- 5... 11,... t
...Y.
14.,.,1::. :.,
14..,....
.Y.
1
- a:. u.a.
63:9; 1:9"d:3dS:.66 5455,475 3 5 5443&i:t937 55,0:2625*.5 113 d39.Id:.-
.,. 1 5,,......, 7:
1.,7 4.,.
5.,. :.,, e. 4 :...
5.,..,,
... i.,
- v. 7 l,.,,..,,.. ::....e...
. 71:0i::..
- 6
- 6......
- c
- 23;91 1199,313,669.B:
5531,91S.93 S& d:i dt.i.:3 554L',46I..;t 5:3 d 6'.d:5...
15 33192 11SSJ20 d55.92 1623d13.95 54,696,9:.:6 li 12: d 6.C4 1:2 466 C.t:
le 63:92 5159 CSA>C 1.97
$636,133.95 14 4S2 d03.7:
15 d1S d37.H 5;; J7:457 ;
17 93:92 1!87.179,729.14 56C5,292.53 la d66 995.52 15:072d55.35 1;2d?' d;31:
15 12319-1156d61,;;5.34 5617,623.3:
54.452 619.92 55 070 443.12
$12 369 J5i ;i 19 33193 1156,15& jct.55 17C6,4 ;.26 14437d51.:6 55,1u,352.52 512 165 461.72 20 63C93 1155477,462.?2 5677,241.66 54d21,176.23 55 C98 d15.59 11:d5649;.::
2:
93093 51S&d29,722.15 56&7,760.74 14 d 5,C89.74 55,C52,930.&S 5;; 749 4;7..I 22 123193 1184 298 CS9.17 5531i633.01 54,359 JC5.9; la,921,338.91 51; 436 6:9.7 23 33194 1133,411d32.01 15S6,657.16
$&i377,079.62 15d63d36.75 1;;>3:1 4 7.47 24 63C94 5182,678486.C5
$732,945.93
$4,356iC21.51
$5 CSSi967. 6 511dC3d6:d:
25 930 % 1181d73456.34 5705J29.7I.
54,333,614.C4 55,043,313.75 510 SS2,3:I.. h 26 1231% 1181 d81 009.26 1592,247.05 51,321464.54 14.914d1;.92 110 658,620.;:
27 339' 5SD,437,634.23 5943,375.03 54,307J93.97 55,251,174. :
110,431,663.3~
25 63095 5179,6ud79.65 5793,454 3 5 lads 5,393.Si 15 078,S S.39 51 4:2d&;.:i 29 93 95 1178 d60 d15.32 5683 766.33 lad 66,569.27 54 d50,313.62 59,969d29.01 30 123195 117Bd78,659.19
$7S1J56.13 51,250309.86 55,C32,065.99 57.734d59.~3 31 33196 $177,287d92.87
$391d66.32 54,231,743.16 55d22,909.43 19,495,795.34 32 63096 $176419,620.87 5867,872.00 54,210 577.96 15:078 u9.96 li,254,365.k 33 93096 1175,534049.26 5865,571.61 54,189d66.00 55,075437.61 19:009.971.55 34 123196 5174,671,332.44 5842 716.S2
$4d65,933.67 15:031i450.49 53,762495.3:
35 33197 5173Ji9466.20
$951,S54.26 5&d&Siu& 15 55dCD,329.39 53,512d25.2; 34 63097 5;72 JS3 467.52 1930450.3S la d25,836.69 15,C56 417. 7 15d58,709.25 37 93097 $171,871,650.81 5909,217.01 54d03,735.61 55,012d52.62 53,0:2,234.65 35 123!97 117:d51,659.52 1127,99;. 9 S&,CS2d4;.7; 55410d33.";
17J42d53.:;
39 33199 51L1.926.481.99 51,027,177.53
$4,060 dO1.91 554a7,279.4 57d79J33.~:
4*
63096 51oSM16dS9.u 11,0CS 212.55 54,035,7C6.45 15:043di9.::
57d13d66.ii 4
93095 5167,926,751.26 5959 435.19 u,011J59.5" 15,0:11%.65 56 d u d7:. 5 42 123198 1166.916433.3 11,001,9153:
53 dss,260.G 54,995d76.23 16 67: 42:.';
l 43 33199 5165dO7d!1.u lid *9,0:7.--
53,961,274.91 55473,3:1.91 56 397d34.:5 1,...
5 64,7.a. n,.
69 u
...yy 4.
5,i,...
.,...,.yni <: :
1,i9 7i14:.:4
- 1....,.,.,..
5 : d. :., :...a.e.
- M.....
45 93:99 5163433,353.25 liia76,647.C 53,911,932.10 u dESi629.5; 15d36JSi.3:
46 1:3199 5162,65615e.u
$184,231.55 53456d11.72 u d70,e& 3.6' 55d5;d";.:~.
l 67 331*: 5;61,373d37.C9 51450,969.3:
53463,036.2:
sidad:5.53 15463459.".
45 0::: 516:471d3s3I
$; 193,345.*?
13d326:3.;
55 ~3,ie;..:
5.d71,.ee.'i 4
Yu 5......:v e....
S....ie..so.e7.t.
13, :.. t i.....,
54,7.n d...:
- 5. e.,e. 63..:.
1 l..., i :,,. 3. '.
.,3,,.
. 4.&.1
- 1........
13,.....i<=w...-
14,.......70.e.:.. -
1.,..,0,....4::.*.
i.., a n.,4 3.
a
.e....
i'.
3 3 ' . I'.56075d.'.!'
51 di3 "21.?'
13 J49 u 3.93 15,Cl2nd. 3 ud7:J'~.::
l l
l 1
t
l 19'9;' :
4
. : :t 4tt4:*t* ** t't 'i tt t*t \\;tt 5 t't* wit: 4*: it we't:
4 tit 613:165 an: ar.:- t-1/30/si..
Outst4f:ms 4e
- e:inti
- n cisti
.*terest
- t4:
- tsper t
~
)wa it 54 4n:t
~4 vet?
kavtta.
3
- f?.?
4 vet
- M 63;;; 5155 2ndii.:6 lii232,7C2.73 53,715 734.e5 55,::;d37.61 13 7. J:....
53 i3::: 5:53,95ed 3.!:
5;,3071?0.u 53 55,270.42 5.957.44.9:
13..:3 5;3 ".
.. :. i.. 5,...s 4 i e:'. i 5 6:...:e 1 3 6,.&s...4:
1.,o..
...,.u i.<t.6.
- 5. m.. 4,..
5.,...2.:...:...
4 o.
4 u
55 331:2 5151,256 3:3.E:
51,363 Set.7 13625ial.5:
luisi,3:6.26 1:.!!$i:5.~2 e.s.t 1169.3.,.v.
q..
l.3.,.....v. wie.::
- l....
.l..,.
Seivess.,.43.4:
- 1.......i:.n7.:...
ai:va w y.
57 13 :: 5;&S d73 333.!t.
11 42: d55.43 13459.is7.7" li is 476.33 12 1:5i7:3.55 55 123102 1147,057.942.62 11:415:396.:2 53,52e 2(1.E' l!.141,637.52 llis76.:5'S i:
33::3 1145 d63 751.50 11 51&>191.02 53d92,626. t l'iCC6d17.16 5;d.e...: ~
63:03 lluiO32 718.25 11:511 033.H 13 456,664.1; 1 0 167,617.66 1;>2.'idt3.5 61 93003 5142 524,2 u.10 51,508476.15 13420,777.Ce 54,929 2M.2:
lin,154 5 6:
1231:3 5140,954 155.63 11 4 40,05!. 47 53,364 E.S*
li 9:5,C35.27 sh3,6;c.e5 e3 331CI. 1139 370,3:!. 75 51,6:3du.BS 53,343.373.79 54,962,2:3.67 5:::iEE.E 6e 63:04 1137,723,0:5.ti 11,647 299.26 12,961,619.19 in6CS,918.ti l!.C:
65 43001 5136.073 925.63 51,649 Csi.56 52.92e.614.05 ls 575,7:3.?I.
5.::
e6
- 23
- 04 5134d564/4.14 51487,350.49 12891470.92 54 478, 5 1.4; 5".~~.
67 331:5 1132,619 074.42 11 567 d70.7:
52d57439.CS li.725 3:9.5:
- 50. :
65 63:3 5130,839455.76 5;i779,6 5.e6 SI,816d55.33 14497,770.91 5:.::
69 93:C5 5129 053,6u.80 51,765 813.96 52,750 333.5:
54d66,152.46 10.C:
7C 123105 5127>321,663.45 11 73:>976.32 12,742 369.95 St>&7&i!66.27 1".**
7:
33:~6 1125:311d32.6S 52,010:235.20 12 7C5 d35.&6 14,715d21.26 10.:'
7:
63:06 5123:379,425.21 11 932,007.47 12.662,867.94 la 594,375.41 1:.::
73 930C6 5121 494 d93.76 11,8StiS26.45 12,621M2.79 54d:6 639.24 12.::
74 123106 1119 411 692.35 11932i9:6.41 12 5M,760.22 54,564,666.63 SLC:
75 33107 5117d30 3C9.27 12:C81,383.08 52439,623.46 14621,006.54 SLO:
76 63:07 1115:333>627.7C 52,096i681.57 12 495.394.C7 St,592,075.6L 5".0" 77 93:07 1113 193,042.11 12,140,535.5i 12d50,839.59 54 591 d25.16 5~.::
7B 123:07 5111,007 6;5.72 52,185d36.39 52405,352.1c 14 510,789.53 1:.;"
79 33109 1103,769,S:2.4B 52:237d:3.24 1 i358,911.6:
14,596,71&.26 1L::
S:
63:"3 1106d55,173.43 52254,629.C' SL311,355.30 54495,957.35 5:.::
M 93003 110&il77,932.31 52,307:240.62 52,262 S 9.it.
14d70s5L56 10.::
62 12310S 1101,821 454.54 52:356,077.97 52,213,7M.~7 54469,859.06 l".":
B3 33109 119,373 52a.76 52,u8,326.08 52,163,714.42 54,612 043.50 12.2:
84 63009
$96,897 899.09 12475,629.67 12:111,687.49
$4 557,317.16 5.CC 85 93009 194,393,250.36 12,504,648,73 12:059,C80.36 16 563,729.09 10."C 86 1231C9 l?1,835,31141 52457,938.99 52,0C5,856.57 54 563,795.55
$0.C 67 33110 589,179 100.3.
12 656 211.07 11 951,500.37 54 607,711.u 50.**
85 63010 586d88i766.82 52,690 333.49 51,695 055.8B 14465dS9.37
$0.C"
!?
93010 583 762,343.55 12,726423.27 51,937 886.29 54 464 3 9.56 SL::
i~
12311" 581,037,B65.45 52,726.476.10 11 779,949.60 10504.427.9 l'. :
91 33111 578,098 187.18 52,939,67S.27 51,722,05&.64 10661,732.91 5:.::
92 6301; 175,173,890.12 12,920297.06
$1 659 486.48 10583483.56 5.::
93 93211 172 205 75&.06 52,96Sil:6.06 51 497 u5.17 lad 65dil.23 SL *:
94 12311; 169,226d53.79 12,979 63L 27 11d30372.9; 14d10:03.13 SL O"
?5 331 2
$66,393d H.90 53,132497.59 51471,055.77 10 6:3 753.66 SL::
i:
630'.2 562,911d!.2.2:
13!!2iM3.7:
514:4dS5.94 54456,799.66 l'.::
93012 559,661430.32 53,249,611.53 11 336 861.77 16526473.65 l'. :
?!
- 231; 556,343d52.67 13.315d77.65 5
- >267d07.5:
lads 6 dei.!?
5.C:
95 33113
$52,%7,9:3d5 13 d55 249.;S 1 497,291.9" lii552did.17 SL::
10:
63'.3 Sti>5:0.733.5:
13 457 d61 5 11d:5:35.45 la d!2 4:5. I."
11::
93:::
145 970s 66.55 13435,666.:;
5;,M d?0.Si 54d62457.:3 10.::
12M;3 S&2 375 42L M 13 di6 du.:'
5976d6L9:
1447;d:7" l' ::
- 3 331;t 539.732 9:7.94 12i662 616.fi 1900 4 79.53 53 d43 C94.73 5".::
l
-l i
- t..:.
1
$*: :t atti:"t* 10 t*t N:tt
- t*t \\'tt 'l tut *;tt* 4*: it st*ta l'tt* 6/3C/66 49: 2*1:' 1: 9 / 3"16 5. '.
l I
hat S t a r-:, 9 9
.:Pt
- P: 34' 3*..: 041
.ttt* tit
- ta-
- t:4. e t*
- N:.
0.4**t*
54'4*:t havstet kentt' 34 vet'
- ta
.3..
- 1...0 : :i.:..
I...
5 6 9. :.. a...,
$3..,.s.,,< 46:w 7...
6,... L 22...
7
.s ai : ".
1.'..
6,..
aw.
1:<>....
1 3 ::.
7..<6
- 5...
5,.,.,f.,,7.6o.
1,6..,,. g 7,...,.:
.,. 4 1...
.e.,
l*J :ln a:"":. :"C.
1*. **
- 14.. *
- 4 ' 1.. *. :*
S*t e i.C 1 66.'. & C l *< *. C :* * *
.i.....
ai i.c
..;t.
.i:.:...
$ e. 9 n... 1 g 3 s.t
.,. r.:.. ::.
g.
e..
- g. 3::ia?4.:.t g.
4.s.6e,
. e. 7
.t i.. :
t 47.....
ti...
.vi.e6. a
- 13. 2 2.* :. *v.*
13 *u:..: e *< :.. L :
l*..*.*.
- 61..; S, e.i e.3..:.....,.g, l,..
,e g,
.e
<r t
930:5 5:6i;9;iL35.45 12 439 116.12 55669s:.73 13 056 C73.;"
1: ~
11" 1:3;'.'
1:li643 967.24 12:547.468.21 15;4 ~65.::
53iC61 53e.:;
I:.::
33;;6 519 ~L;>143.77 12 1C2 823.47 5459:15. 3:
12 562,757.77 1: *:
117 3913942.53 12 149,201.19 54;5i65.31 12 5 Li45~.i:
l'. :
63:16 e
i 53........e7 : :.ro
$,. :.e.2ica,,
l..
$,4,... L 6,6.,,4 5,..... l:..
2
- 1. 43,. 6 71.
v.4 ivti
'.:.3;;6 1;2 9eii 16.69 52,230,465.53 13:2i153.95 12i'.3,456.te l'.~:
1;;
5...... 6 5,. i 7:: > 6.:. :?
- 5..,
- 5.,..,B,.C.,.,
- a...
l..,...... 6
- <
- i:1..:
...v
...: Tit...J 11
.,6i..,.?
l..
5 3....... 7s.::...
Sl>.37 146...v:
ca...
- l.......
k,.
vi
...?
ie:4.c.::.
51>.,,.s,.:.,
- 1...
1........6.t i ).a o:
- 5.... e.9.9:
5.,,.,.1.. 4:.
1<ait 4.<<wi 1
5........o.it....:
11 913 3....4s.41
- 5...
l. 7. g..:.26 le....
- 4..,u...
..,1..,
iuws :
.4.
119 33115 14 926 641.74 ll>C75 bib.50 11 'iii!.93 lii203:452.45 l!.";
12C 630:5 13 530 336.35 l'.,096,3'5.39 1:06i69'.1 11 200i996.~3
$~..::
12; 13:18 12 7:1 881.85 11 ;18 454.50 581396.65 11 199 869.15 5.::
- ~2 123118 51 570 827.84
$1,141,054.01 l~ 7 6:7.69 51,192 681.5" l'.
123 33119 51> 10iCBB 63 526"i?39.21 533,350.09 52i?i119.3:
1.:
124 6309 11 Ctai308.35 1265,780.25 127:53i.38 1293i619.63 l!.::
125 93019 l??3:389.41 5270 918.97 522,;91.55 1293 110.52 126 123119
$&97,40&.67 1275 954.74 51663.."2 1292.619.26 l'.. "
127 33120
$s39,600.56 157 6:4.11 510 569.55 568 373.96 5".:'
12S 63:2*
538:>585.77 159,011.79 59 341.51
$6Bi353.3" 5".C' 129 93C20 1320431.65 560,157.32 55 *i7.51 563,246.53 l". :
13C 123:20 5259 003.47 161 427.95 56 !*i.17 168 237.15 5".0; 131 33121
$196 !?3.70 562,829.77 55i 3.!2 565,333.59 132 63:1 5:32 C87.29 564,086.t; 16 163.69 565,2.;"
l' :'
133 93:21
$46,6S8.70 565i395.59 52 5;.55 56Bi205 ts 5.::
- 34 123121 (50.00) 566 68S.70 51 > &;'.13 163 105.53 l'.
- g.:.
- : s::4: e: t: : e *::e " : e s::e s eie:.:e: ac: :e
.e e:
a :e :!3*/Ei at: =r-:
- ;2/3;/Ei..
0.utae:i l
. s r.t
' te'el:
- 4
" e:4 vte" t:ic4-
- *:':4'
\\0 h4'te'
$4i4*:e 34vrea:
"4de**
~4v?e**
' e*."
ieg e eg il 4*:e 119t aiS ail '
. t i ::.
giagit 7. e:..s. 7. -
g a. a t., ::.. e. t.
g; e 6,.:. :::.. at.
$t.:. :....
g.:.--.:.:........ "
7 ti 3315" 5:93 91;>;33.5 536L 615 5 la6;3 9%.:i la 970 57..
1.~>....:i: '.
I 63:19 5;93618e:10i:
5:13,'"7.17
- 5. 6 5 3Ei.ii 5.,Si5a*7.!:
5;..i.i.:3;.i.
13055 $193 355436.:1 1:52>7t.67 5449543;.;:
l!..hti;"6.i" 1;/5;.:3; "
..-i. ::
g.-i, e <:..:. c.-
p..t c9. :
l.'. *.** 1 ' c '. e..
l.'. *i t 4. 2 7. ".. n.
s'...:.
'... ~.~
67...
6..
32;9: $;92,626 300.;3 1396dh.S
$6 4 9 29".5 1090:J.* 22 5;.dt.L?"'.:?
3...
l,.9.,
li,.,,.2. :.-
53.ai:o,.,.3 Iti:<&i,.d.:..:
- 5. o... &.t.:..
l...........:: :n..;.
e..v.
- u.
.v ev>.
.:.9v... l. 91 > :.. t. i t..... < :.
l.,,. & i v i.. :..
1., L.t...t.:.:
l., o.:., :
l.. c.::.,. ::
-t
, e..11 1191,22ri:.t ::
16 4 9, t.t 1.1.,
Sc i:.:.:. 64:..:.,
l v t ;.. :.
l., :- :::....-
.v...
e.
- 11. 9 Ili. i.e.s:.1...e
$4=t:>9..g g.
$4>.&. E:....ta Ia's.s.,it..
e.
I 1..a.:
- .i..t a
- O.
.s
...t.
1.
a.
11g]i4*4 >.a:1. 9.tA.
5 4 c.< *. ;.. :.:
S t E.1.e.. t a. v. 9
- e..
(
1 *
-a. $. t. t.:...
l 1..;.t...:.".
.v
.v 1:
$3;i; 1129475,535.73 5%7d93.73 St. d22 545.I; 15.;7D Cn.h l'.3 35;. ;; '.
- 3
- ~39; 5
- 59 363,669.3:
1531 915.13 l& d;9 h5.:3 55,:n dia.;6
$;3,li:.;:5.;;
- t 3319 5168 720
- 155.92 1623413.55 1&i&96 *12.;t l'.'.20d26.~4 5;Li: 4:'..:'
1E 63:12 1153 Ch >C2;.97 5636 133.95 14 4 82,103.7' 551:0437.65 5:~. J7L ;i? i' l,. 7 d..,,. 1 L
$i.e.,,0,. 2.,
$&i&66199...
- 1.....::...:i.a u..::
1..........a:.. :.:.::
is u.v.
e:i uv.
, 3.,,. 9,.
11t6i:61,1.. 4 561,,i30.3 54is.L6,.v...
5....,4.,,
1..,6....,....:
L:.:
2 Li.
.t s. 7 ":
13193 5186 154 7:6.55 17:640'.26
$4437,95'.26 1516L3'2.5 5;2:16* a u. 3 19 63033 5185 d77 d62.92 5677 2G.66 54.421174.23 15 095 d15.59 5;1 955 591.~2 93;i3 5184,829 J22.19 1647 J&C 74
$&dC53CS9.76 55;i2S30.45 l'.;>7&ii 17.L' 21 123193 5184>2981069.17 5531,633.01 54 339JC5.9:
54i921:335.9; 1;; 436i6 9 ?!
22 33194 $183 d11 432. :
$336 657.16.
54 377 C79.62 15463J36.78 1;;i3:b ';7 ti 23 63C94 5182 679 456.CS 5732 945.93 5b35602'.51 55d55967d4 5;; 1:3 C6.5:
24 930:4 1 !b973dh.34 1705229.74 lb33Si614.Ct 5bC43d43.75 l'.L SSL 3:4.36 25 123194 11813514C9.26 5592 247.Ci
$4:321241.S lb 916 111.9:
5;L6'Si6::.;'
26 33195 5180 437 43&.23 1943,375.C3 lb307J98.97
$5 4 L 176.0" 1;;d3b663.3:
27 63:15 ll?9,6&b179.65 5793 4%.52 54465i393.!!
$b073242.3 5;;d:24.2.:i 25 93:95 1178 %L415.22
$683 764.33 54 266 549.27 lb95L313.6:
12,99.i:9.:5 29 1231% $178,178,651.19 575:J56.13 lb25L3:9.86 15:032065.85 5 J L 359 3 3:
331% $177 287.492.87 589bl64.32 lb231J&3.16
$5:122909.49 lii.15J98.3t 31 630 % 1176 419 423.67
$667 872.C's
$b210477.96 5b078449.96 594%>365.3t 32 930% 117b530049.26 566547;.6; 5b189i%4.C0 15 C75 d37.61 sidO9.97;.h
[
33 123196 517067b332.44 5862 716.82 50168,933.67 lbO3b650.49 53J62di3.33 34 33197 1173 719.448.2:
195bS84.26 54 14Si446.15 1010h329.19 lad:L125.2 35 63097 5172dBSi847.82 5930 530.35 50125834.89 55456417.27 l!d55J:9.25 34 93:97 117bS7945:.S; 19:9417.C; lb1C3J35.6; 554!2i952.62 19 4:2 236.65 37 123197 117095b659.52 5927 991.29 50C92141.7; 5541S133.0 l?J42d!3.
35 33198 $169.920481.99 lbC27ii77.53
$4,060,1:1.9;
$5 CS7471dt lid 79J33.'i 39 63293 5168 916 !!9.&&
lbC:9 292.5" lbO35JC6.45 li,C&3i999.C 57 413 566.i:
C 93095 1167.126J5&.26 1959 4 35.15 lb0lb759.50
$~ dCbl%.65
%,46 57; '.
4 123P3 5166 916,938.64 lbCCi>915.5:
13,98326*a&:
lb990176.:3 le > 67L 63:.';
42 33159 516* d 7dl;.i.
lb1Cid 7.;'
5316b276.91 5547L3::.7; 5:> 397,136 2:
43 63:59 5164.715435.9 lb C12 J75.75 53937,935.52 55,030d;;.I' 53 1:!>i53. 3 at 93:59 5163638,383.25 lid 76:et?.60.
13,91b95:.;C 1b155 621.5".
l~ d3 Jii.3.
45
- 23;ii 5162 6%,1%.C lib d31.Bi 53,886411.72 5b87
- >663.6 lb55;a::.:3 as 33':
516b 373 157.*9 lb tiL hi.3~
$3463436.21 5016L***.~:3 lidt3.*P '
4,-
t.,....
l,d.. 9i.v: :.
os a.
- l.,. 3.,.ii m. :..
l,.:.3,t, c,.
- 5...... 6 5...,.,..::
- 4: ne..
.4....
Li 93::: 1;F476 h :.
1;>1 3 667. :
53d:447;;"
lb E i as.7i 1.. 'e. ::.:3 69 1:3;;; S:5787b?23.t:
l;d:34ti?"
13 aiii ;t!'
lbiib ::."
- 5. 3 b!!! "
i *.
331*; 11hd75 3::.F
$;diL*2;3; 13Jaia&3 :
li'6:4:5.:3
- 5. :': ';i :-
- p...
- g. :: 6 7. e.n.
- 4..
t g. 3 t. -... o.
- p. 3 p.ar.. p.
g:.. a v.,.....
p.
au.
.t.,:
- :! Itt! -t: ** t*t '.:*!
19 'i* t t I tit *itt:
l**
- tf st t:
4 w 713;/55 c : e : :: ::/3.'ii.
Catstanc.9
- f
- t:4
- t:4
. tf*fl*
- ti
- f:4.tf**
\\;
'. 4
- t -
54 de:t
'avst**
~4v8f-
- 4 rt**
- t:
2:i.g;;.a.....-.. :
l..;;......;...
l,.;. t. g 6 e.p. :.
- 1... :a...1. 4 g.
- g...
.1
.. v.. g. :. m..... t.:. :..
- 3... s....
3:.:<. -..
3.,,,::4.
3 :.. :... :.....
i.
33;'; 5:5; 256 d 3.5:
5;.363,5e. 7:
13 6:5e.G i~
1;.?!? d:: ::
1:.i:'d.i :.
li..,v.:-
t...,
- 5. n.. w.t.:..
- p. :. :.,..- : --
g*. 7::....t. :.
l :..:.:...
v
.c.
"e 93::: lud o.73 435.El.
5;.2:dE5.63 13459.957.i; 14.95:d7:.33 12415Md ::
- 5...... :..: :.:.....
- l.... :........
- l., : 3...'s...
l.........t..es;. :.
l.s...,.,...
,,3...
e:
i te.:< 'at.:.
.4....
- 1...:ivanica
.t
- 5...i:.e 114. g 3i,..
l.,...,9,....
l.a *1.it.:...
J3.,.,
e
- 5...,,...... :...::.::
- l. t..
..ai :sies....
l.,.,..,.v <,c. e
- 5........:.e.:.:.
516.,..
7.....:..:
..:s
- e...:
.6 6:
93 3 ll?252&i2&LIC 114:S>&7!.15 53id0,777.;:
1.>92?di'..";
lii; 'd: ::
6:
- 23;'.3 514'ii!*il59.63 51 d43, Ch.47 53Jiai91
- .!:
IL9:5 35.:7 lidie:..::
I.........J.J.:iJ.J. ?
l.,..:. 6 l..,..... 3:!;,;;
I,.,., 3,t w,,. h. i :
- 3. c. J i ".4.. :..:
ift;s..,.
<7 w 3.
?:..=
- 5. go...: : :,..:
- l...
9.......
I. 7e7 3 u.. 4.:. 5 3.se.,itiv.e:
3.ite ie.'..-
he gg..k
.J
..w.
....,, ;k 3....
s.itk.....11.01. :
I...,4 146st....:
548:
... 4 I,..0 iWr3574;.e:
Qtt....
7A 6
65 123'.L $13 dI6di$.ls l'. d37 9 333.0
$2dildI.9 IsilIO iS1.M l!.!
1s :.., e....:<i.:i..:
5.<...., 3.m..:.
- l...
- l.. 7s k....
e;:
316:
1,.3.,4 :61be 74..,.
isc6 4>
67 63C 5:30,S39,455.76 51 771,6;5.6e 52,815 155.33 54497.770.99 l'.. ~.:
c5 13 :5 5129,C53,6&&.E:
$1d55413.96 12 730 335 3; l&d6eil52.46 l'..
69 123;;5 5127 3:1 669.42 51 J31 976.32 52J42,359.95 li.dh ih6.27 1:.:~
70 33106 5125 311 432.6E 12,C i235.5; 52 705 d51.6 StJ15d21.26 1:.::
7; 63 6 5123,379,425.21 lb932,007.47 52,662d67.94 16 4 % 875.4; 10.::
72 93CC6 li2b 49& di!.76 51,854d26.45 12 621 d 2.79 lid 4439.24 5 ".. ' '.
73
- 23106 1119:51b 692.35 lb982,906.41 52dSb 760.:2 54564666.63 5;.::
h 33107 1117430,3:9.27 52,CS1,383.CS 52439 623.46
$4 62 b006.54 5:.;;
75 63C 7 5:15 333,627.70 SLC96,651.57 12d95,39t.:7 ladi2 075.6L 10.:'
76 93*:7 1113:193.C42.11
$2d40435d9 1245043139
$4d91d25.15 l'. :
77 123;;7 1;;bC'7,6C5.72
$2di5d36.39
$2 405:352.14
$4 590455.53 10.::
78 331C8 11C8,769 8C2.4E 12 237 803.26 52,355,9 ;.62 54496,714.56 5:~~
79 630"5 1 06 4B5 d73.43 52,2B&i629.05 12:31b3H.3:
54495,957.35 I:.**
s' 93:;5 5104 177,932.81 52,3 7 240.62 52,262aC9.96 la470iC5036 l' ::
21 1231C3 510b82bB54.24 52 356,077.97 52413d21.:7 l!.d69,859.06 l'.::
S2 33109 $i9,373528.76 12465,326.08
$2 163 714.L 54,612 040.50 5~~
53 630 9 596 897,899.09 12d75,629.67
$2d11,687.49 54487,317.16 50.C:
84 93C09 5 % 393 250.36 52 50 0 648.73 12,C59,05C.36
$4 463 729.09 l~.::
85 123109 19b835,311.38 12457.938.99 52,005,856.57 54 e563 J95.55 l' ~;
66 33110 559 179 d00.31 52,656 211.07 lb95b5CO.37 54 607 d11.44 l'.
87 63010 584 dS8,764.82 52 690,333.69 lbBiid55.!!
54435,339.37 5.":
63 93010 583 762,343.55 12 726 423.27 lb837 886.29
$4.5603'9.56 10.0*
89 123110 SSbO37 865.45
$2 72b 475.10 lb779,%9.B:
$4 504 d27.90 5.::
9:
33!!!
178,018da?.15 52,939473.27 lb722054.64 la>66b732.9; l".";
91 63011 575d73 890.12 12 924 497.06 lb659486.42 lb533>B33.54 5:.::
92 93::
172 4 05 784.C6 52,968 d 6.C6 lb 597 d45.17 544 0 451.23
$~.::
93 123111 569 226 d53.79 12 979,632.27 51534d72.9; 54d100:3.:5 1:.::
9.
331:2 le6 C93 d 5.i' 53d32,697.e' l'.47b'H.7' sai6C3J53.66 1:.*:
u 63 ;2 562,911d&2.2:
$3d52,313.7:
lb4:bta5.h S&dS6J99.6L 5.~:
93:;2 69 661 43C.3:
53,269 611.85 lb 3h di'. 77 ladse473d5 l'..~;
9'
!!!:~
06 343 d52.67 53319,377.6 51467d:732 1:456 d55.17 10.**
95 33;;3 152ii57,9C3.0 0 0 n d45.15 lb 97,29'. 88 la d!2 4 1.;'
l'. ::
19 63:;3 5.9 d*0 d3332 13457469.9' lbi:5dn.ki l.di2d:5.6:
5:. :
50 :.:. ::3..
- 1..-
l.:. ::. ::
13i:. o io.
l., 7.
x..::
3..-
- 5 v.66
.t...
5....
1:;
- !;;3 54 475 d
- 2.i.
O ~5i.d...*!
SC6dtL::
5 47bL:7.iS 5:::
1.
3,...
- 1...
t...
....w.::
- l. 64. L..
l 3.,.3.,. i 9 7 a.
33,. d
.:6 s.
.>.i..o a<
I:.6
- 2. 6..:
Ii. :.. 1:.J...
I..
i e.s IJ78.be.8Llk...
I4. t v.. ::.a.. ai.
.s m
r.i. :. :
- '::e4t:4:e: t: t e N:te ' t e N:ti,s eit:.te: a : :e >veae:
4tte* I/30/S5 an: s i: 1: ;"!3 '. / 63. '.
Outstan:ir!
. ire
-rse:::46
.-r
?: :4-
. te'elt
e:4vte**
N.
Os4*te' 04ste:e
- 4ater*
54Y4! t E vte
- et.?
4 l.,
.97,t..,<<.4 1,4 : s..i.,.i:. 4:
l,e..43....
7 3.,,s.
I:. 3.,....::.. ::...
I...
. g.6 a.i.
7 131 c...
m., i.:i:.....
St><... i s.e..t:
5 7.:..:. i. &.
,,3.
1.,
li c..,
t:. ::
l 1:
331:5 529 1 eitis.6e 1^t395,394.52 5669 7;..~3 13,C65.;'5.ii 1: ::
1~7 63015 52e.630 551.57 52i439.i:6.79 1615.S*E.i:
53i 55 675.ci
.l'.::
10s 93 13 524191 435.45 104391'.6.12 5566 96;.73 13>:5ei:75. '. i 15
'. 2 3 '. ' s $21 643 937.2, 5:,~ tina 3. ;
5514,"66. :
53,061,*36.2:
5: ';
5,4.,. 2 :.., "4,<
,, u.
3311e.
- 11..,1 163..,.
16 9,.,6. r.
S.
6.,....,.
- l...
1i:.
- 1 ee:. i:<.
4..
/
63:16 517:391 942.55 52 149 2:1.19 S&15:249.31 52 566,65:.5:
1:.::
112 93016 515 199,430.2:
12 192 t6:.36
$369 575.75
$2 562> 6;.;t 5:.*:
11.3
..,,16 512iv6. 14.65
- l.... &6...:.::
5.,, 9:....:.v:
S......ti:::..:6.t.:
5..
vis
.4..
- ..i ese si
,3,1,,
$1 3..
5,.,<.. a..vi....:,.
1,61:i.v,.::
,. c.
- 5..::.......iv. i6.:.:t
- 5...
.i :7 4.s.:
115 63:17 19:522> 55.63 51 737 166.93 5239,250.01 51,976 t:2.94 l'.::
1.c T3.,,..
$.....:. 6:.
1,it<,i..w.7?.7:
1....,3.
- 1...... 6 5..
<><:.i. :.
4...:.
.iie:..:.
,,21..,
lo...
4.
6 5,i,4:. 6.
21 5166:
7,4.s:
l,ii9.,......
- 1...
iv.4 :.4.
- i;.t..i 4
115 33;12 14.926,641.7.
11:075 895.5 5127,553.~5 ll:2'3,t*2.65 5:.*:
119 63 16
$3 83:>336.35 51> 96 3:5.38 51:4,691.14 5;i2: i??6.i!
5:.*:
12' 93:16 52,71;iSSI.35 11 115:454.50 SS;i396.65 11 195 649.15 1:.*:
121
- 23118 51,57:>!27.3
$1 141>:54.01 157,627.49 51,195 651.50 5:.::
22 33119 51>310 068.63 1260,739.21 533 350.09 l*94.;'.i.3:
l'. :
123 63019
$1,0&&i3:3.38 5265 780.25 527 839.38 5293 6:9.63 1:.;;
124 93:19 1773,359.t1 5270,915.97 522,19;.55 52 3 110,5:
l' *:
125 123119 5497,4:4.67 1275 934.74 516,634.52 5292,419.26 5.::
126 33120 1439,600.56 157ia:4.11 110 569.65 565.373.96 5:.':
127 63:20 5360553.77
$59,011.79 19:341.51 568,353.30 5.::
128 93 20
$320431.65 160,157.32 SSi 57.51 565 244.53 5.:'
~9 123120
$259,0:3.47 561&27.98
$6 8*9.17 568,237.15 l!.::
13:
33121 5196 173.70 162,S29.77 15503.82
$68 333.59 5:.*:
131 63 21 5132,087.29 564 ~56.6; 51,168.69 566 255.1:
5:.::
13:
93021 566,683.7:
565,395.59 12,806.85 56Si:05.4L 5:.:'
133
- 231
- :
(10.00;
$66i685.70
$1,417.13 568 1:5.S3 1:.:"
I l
l I
l 1
- x.:
- ": :e a: a:.e: :: : e N::e e >::e i s.e: :e: a : :
,e e:
a*:e '.:/3'.!!5 at: se.:- :: 3/31/55 0.:stan: -
I I
. e
- - : :a
. te es:
- a
- e:a.ie -
0.4 :e.
Sa.a.:e
- a,re-
- a.:t-
- aver-
- e.-
se!> ?! Ea.aa:e 519;i07* >753.73 t v.. :.:.
g i.gi., i t. i. t: ::
g i..t. t. : :
v.
3.,e..:.:...--
p.,-,,:..,..
- s.. :.... :.. -
g.--.vaie.:...'..;..
g *. v* *. u* *. *.. * *. l..t*: 120. :.
5 4. : *, :*,. ". C..'
l.... *....S........
i
'3:S 5;93,3'5:436.25 1:6:,674 6?
- i. iii 43: 13 5.i361 10t.5:
116. i!.:3: *i
- v...::
- p. JiL..,,:...
9-g..s i.7:. 7.:.
$.. :.:., t. v.. t..
g 9>.i:
s..-* :.-...
t v
6 3?;i: U.i:i6:63::.13 5316454.Sc 5 diti290.t!
Skiia:i7:5.3:
11 451 45..::
~
6.,..3.v.
S,i9...,...,, tit:.ir.....
l,94>.....
5....., 6. <.. <.. :
5.,i96.,....7....:.
l,.....,:i6....-: ::
- .v.::
e 91.;*
l'. 9 ' :
- 6 i i.e '.. '. :.
la '. & i v:. '. :. ".
l5 t.a i :.,4. :.",
l.'. 4. : s' a. :.. *.
- r..' "::...'.; :"
E
!"3;;: 5191 357 .i.55 1429 261.94 l.555,648.57 54 956,9'.".5; 13 '. iit'.:
i 33;9; $190 9:1 561. s l&75 i"S.S!
S&s:4'i&53.6" lie:.i&;2.6; 113,736563.::
n,r,..v.
liv it3.: r.:.t St:: L i.:.:.:
s. :.v..., t. :.,
1:i.-
t e..:
l.. :.:...::.i*.. :.:.
.v ia
.4...
- 1. :..,.,,i: : :::. <,.
- 5. 7.6...,.:
Is..., :
i:... 4:....4.
- 5...,..,.........v.
- 11...,.......-
1.v.
6 1
- 6 72.
- iw i;e.
3,9,.
l,..:9 i
-e 1 :...
- 4..,
4 612.v.:,
5:y>9,6..v:
- 5...,
..:is......:
- 1......:... :. :-
i.vi: :...
.i.v.
$1:.:,72.,. 4.:.:. 9 3 lt4.i:i3.:.:
. i..
56 6 3 9., it 5: i...,,.t..
7.
.4...
1 63:92 l;SS 054>02;.97 1636 133.91 lids:d 3.7:
55d18237.65 11:iii3 2:3 :.
.:.9.
gi.n7,t, i,-
..t i t s: i 4 7,..,.
- g. ti.t,99:..:..
g,-.,
- .2:
y..,r.:. t. n,. :
v
.v,
t
- w 4...
1:
1:3;9 5156 861 1:5.!?
16'.7623.3:
la.452,619.S:
15 070,243.12 1; ili34:5.::
33;i3 l!!6 154.7C4.55 17:6il:1.26 lis;37,951.26 55,1&&,352.5:
5:2,;79,":.:.
1;;>9 2,'84t.~3 15 63093 5185 477,462.92 5677 26;.66 5.421:174.23 15 C93 4:5.31
- i 93
- 93 5164 829,722.13 5667.7& 74 5; 4C5 CS9.74 55 C52,530.4! 5;1,763 575.*:
2:
1:3;93 5184 295eCS9.17 5~31,633.C; 14359,705.9; la,92;,335.9; 5;;>551,477.:3 33194 5163411 432.01 5B56 657.16 54,377079.62 55i263 736.7S 5;;i336,00.~:
22 63094 $182,678,466.09
$732,945.93
$4 3'6i:21.5; 55> 53,967.&&
5;'. 1;$i 66.i'
- 3 93:94 5181 973,256.36
$7 5 229.74 14 3!S,616.04 55i043 243.78 5:0,895 131. :
- 6 123196 5181>381,009.26 5592,247.0S 54,321 864.54 56,91&>i11.92 1;;ie76,7':.~i
- i 33:95 1180,&37 634.23 5963,375.03
$4,3:7,793.97 55,251,174.
5;:i4;Sd79.":
26 63:95 5179,6&&>179.65 1793454.53
$4 265,393.11 55,078 04S.39 5:02:19,1C5.75 27 93 45 $178 960 415.32 5633 764.33
$4 266,549.27 54.950 313.60 19 957dit.3:
25 12319" 5178 178,659.19 57S1 756.13
$;i:(0 309.86 15 032> 65.99 19,751 95; ?!
2 33196 5177 2$7.492.57 l!91 166.12
$4,231,763.16
$5 122 9:9.65 59 513 763.3~
3' 63096 5176,4193620.87 5867,672. :
11,210577.96 55,078,449.96 lis 7:>712.;i 3;
93:96 $175,534,049.26 58E5,571.61 54 189,966.00 15 075,537.61 59 ::Si7"S.;3 33
- 3;96 5174 671 332.44 5842i716.82 55 168 933.67 55,031,650.49 lii 781,733. ~e 33 33197 5173,719,448.20 5951,884.24 54 168,4&&.15 55 100,328.39 53 531,666.55 34 63C97 5172 768,847.62 1933530.35
$4 125,834.59 55 056 417.27 15 27S,665.i5 35 93097 5171,879 650.01 5909 217.01 56d03 735.61 55,012 952.62 53,022 615.33 36 123197 5170,951,659.52 5927991.29
$4,082161.7; 15 010s 33.C 57,763 396.75 37 33193 516:>926.481.99 11,027,177.53 16i60,101.91 55,087,279.44 57,5:3 959.i'.
- 5..&3i... c..
- 5.......".:i:...-
Saiu.,.. 6.4:
51 0.,i2.,... 7..::
63....sv:
5168 916>,.,9.44
- 3. :.
- iw
.vfz
- ieu 39 93098 5167,926,754.26 1939,635.13 14 011,759.5 55i:01 194.65 56 967 04:.;3 4:
123193 5166 916:53S.44 51 009.915.82
$3,953263.41 56.993,176.23 16 4:5 272 i 33191 5165 307 B;1.&&
51 1"9 :27.::
13 964,274.91 55,073,301.81 56,i*:,"ii.::
63099 5164715iC35.69 11:092 775.7i 53,937.935.~2 55 :30 711. 7 ic i;42 i;66 J.*
63 3:9 5163,638,363.29 11:076 647.&~
13,911,932.10 14.933,629.5".
liiis;iSi?.:3
- 5.,..: :.:i:...:
53 c... &11..,.
l&i:<ui643.6.
1.e..,1.:.,.
516 1;Gi.:.6.4
- 3.. 71 7
4.
- e>
ti..
- 5....,-....c.v. :
- 5.,4&iv.:.:,.
- l...
9i9...
5,.i:63..,6.,,4.
- .i.s
$161,373 1 7...
ii.:s>
- 4 w.
- >c::
v5 5.....
- 1. r..:..:ivt. 4:
- l.... 4:...
l 3. i. 3..2....,....v
...v::
l.i.
77s.e,:.:.
6t 6.3..
tvei.....
i.si.
47 93:": 5:59,074.369.2; 11,;*5 469.6; 13S:6i:7:.;7 54.9:9.71:.75 5; 7:2 39;..
si 23;;
5157,7;,3:3,t; g;,;;3,;t5,7; g3,7;3,.;3,;-
g;,93;,;,, :
g,,;5 ;,.,..
5.
.,6 v i t., 3...
5e.i.t. &.t.:..:
1...........:.
- 5.. 3..., 3
- ... 51 e..t....:<:..,:. c.,. v
- i v;
t>
.. 7.<....
- 1.........-
- 5..,.,.. t..i.o..
l.,,,..,, t. c,,.
- s.....,....
l,.e..
c....e 3..
t....
-n.::
- io i.
6>
- >45:. 1v..
as,..
i.
13::: 5153,9S6it*S.S:
l'.>3:7d90.4.
13 653 270.65 56.717.66:.9:
53'i".345. :
- n.. v.. :
- I: :e a::a: e: :: : e N:te
- e N::e is eie:c.e: a : :
.e e:
a.:e ;2/31/H a : o i: :: 3/31/6..
0.tl:49"i*c
- see t*
- iCa-
" " :) -
- ate'el
I:ta.
- etav se' N:
La te-5a.aa:e Faaer:
- ane" eane" ei.-
5:
- 23;
- : 5152 03 165.56 li 33e 240.2:
53 657d 77.21 stiii3,4;w 13d5::::.
5 9. :. +. i t... is t.. an.
s., u.. l., i. t. < 3 g3a. m.. e....
3 m..
u..
5
- m...:s....
$,:..: :n ~.
.v 56 63C:2 1149 dii.4:7. -
5;dt:476.H lidi3 0&S ':
u dEid26.3 52 45: ::i ::
c.ia 2 5165 4'.'."..r.
- r. d"c~ :.::. D.
l'2. ::. i i i:' ~<. 5 -
l.'. 9. '. :" '< 6. ".
5'i.'".5.':..;
t s
5:
1231:2 51;7 37 h.E2 5: 4 3,396.:"
13 d26 3;.5:
n R ; d: !"
$; d 3.:i: :-
- e
- u... m. p.p. q. 3i<.1..m,
$ 1, u.. g a.g t. m.
g3 a; e+in.it r:,v.u.v.;....
- p.. :~, : ;..-.
4 55 63'03 5164 432 718.3 51411C33.5 53d564e6.;;
ud67 697.e6 lb'sid::::
54 93:03 51(2 d2i>2 3.10 5143 d74.15 53d:3ri'7.:6 u d29 3 1.::
SD 45.fi 6:
1303 lik:Mildi9.63 11d;0i054.47 53 354 d50.S" Hi925 05.07 5575 :5:. 3 61 33M4 10947:>314.75 51 6:3du.es 53,3t3 373.79 u d62 212.67 5237 i; 0 6:
63006 5137 J23 015.49 51,647298.26 53 3103:u.95
$46:593.4 5: ::
63 93:3 5136> 73du.63 5; u 9 *E9.56 53470,9:;.6:
Hi575 7:3.h 1: ::
- ~3
- 3 50e >&E6dd.'.t 5:457 d5.49 538231,755.73 u d75d5;.e; 1: ::
0 3313 11321619 074.12 51d:7d73.72 53du,0H.6 K 725,3:9.0 5:.*:
66 63:3 113: d31 0 5.7 11,77i 615.66 53169.7:3.~~
u di?>D:.99 1: ::
67 93205 5129 3 3,6 u.D 51 J55 B D.16 53dC7437.;5 uiS66 152.46 5: :~
65 123105 5'.27 321 463.49 r'731d76.32 52 Jt2 359.ii udhd66 ~7 1:.::
69 33106 5125 311 432.68 52> 10 235.82 52 J 3 DSS.16 H i715 !21.26 1::~
7:
630:6 512337943.21 51d32,007.67 52 662iE67.9a n,59&iS75.41 5 ~ ".
?!
93 C6 5121 d % d98.76 51,8N226.0 12 621 d;2.75 54,5;6 639.2; 5:. "
72 1231*t 1119 d;ii612.5 51 922 d 6.41 52481876;.2:
14d0,666.63 5'. :
73 331 7 5117d30,3:1.27 52i:21 3!3.CE 52439423.46 St,62b006.51 5:.::
?!.
63CC7 5115333627.7:
$2,096,621.57 52495 3%.C1 u d12i;75.e4 5:.::
75 93:07 5113,193,042.11 52d43465.59 52450,839.59 54d91,625.13 5" ~
76 123107 5111 C07 6 3.7^
52,185d36.39 52i&05d52.14 ui$i J85.53 77 3310B 11C6 769,802.6B 52 237 8:3.24 52,353d11.62 udi6 716.36 5;. :
78 630C8 5106dS5d73.43 52,2Sɵ.05 52411d%.30 14 595,967.35 5:.;:
79 93CC8 510&d77.932.8; 52 3C7 a&0.62 52,262,809.94 54 570,C50.56 1:.;:
8:
123108 110b 821: 5 6.84 52 356i077.97 52 213 7B;.:7 u d69 d59.3 5:.::
il 33109 519473,528.76 52 d68 326.03 52163>714.62 54 612:040.5:
5: *:
62 63 9 196d97499.09 52d75629.67 12:111 687.69 u d87,317.16 l".";
83 93009 5 % 393 250.36 52404,648.73 52,059 033.36 u d43i?29.09 10.:"
84 123109 191835,311.38 52 557.938.93 52005i656.57 u d63 J95.55 50.0; 85 33110 589d79400.31 52 656,211.07 shi51dDO.37 4 607,711.44 50.:~
86 63010 SS6,688J66.62
$2.690 333.49 lb895iC5.85 H.585i389.37 5:.C:
87 93010 533 J62 343.55 52J26 423.27 5bB37486.29 uiS R 309.56 10.:"
65 123110 SSbO37,865.15 52J26.478.10 lb779,%9.0 udCad27.9:
5.::
89 33111 573 099,167.19 52d39,678.27 lb722 0H.D lt 66b732.91 52.:~
9; 6K11 575 1E S90.0 52d26497.Ce 51 659 die.65 u d83453.54 5:.::
91 93011 172 4 3 J h.C6 52 968 1C6.06 lb547 d45.17 u d65d51.23 5:.::
92 123111 169426d53Ji 52 M E 630.27 51434:372.91 u d1&i 3.;5 r.. :
93 331:2 H6iti3>d5.9:
S M 32 697.Si sb47b35.77 ui6 3 J53.66 1:.::
M 6E12 H2dibl&2.2:
53dS2:313 J 5143 d5.%
u d86 dii.6 5:::
95 93];2 559,661433.32 53d49411.!!
lb336,26;J7 u d!6 d73.6' 5:.::
96 1:3;;2 H6i33832.67 53 315 377.0 51467,8C7.5:
5&d66dn.;7 1*.;
97 331H 552d57d:3.0
$3dE540.!!
5149749;.99 ud32 dei.;?
5:.::
95 63:0 st9400J33.52 53 d57 hi.97 S b125 dH.4' u d52d:5.!d 5: ::
9-in0 13 973,066.E5 53 d L 666.6 lb3bii3.ii u,532d57.23 1*.::
1 ".
- M;:
R:475 d u. E'.
53d%du.:7 5976463.92 u d714 ' U 5: :
3M;t 53id32d:7.h 52 642 416.!7 li:0d79.h 53ddi:R" 5: ::
I. : n.....2 I.~.
.+
4.;...':......:: ::
- p.., *, i.i.. :
I3.
c t. :
ga m.
63..
,,a
..it
.e 1.)
9NIk Ihd57,$U.k6 I 'Idti7.N
$7kis
.25 I3:5 Nib 73.I$
II
l er.l:.
a
- :: 4tta: e: ::
e N::e :' : e N::e 5 tie:.te: a : :s ve e:
4*te ; /3./55 are : : :: ~i: lti.
4' Outstan: !
...e
- ia:.34
- ra:i:4,
. :r'el:
- a
- e:4yte**
- e. 4'te-Pavre'
- a F f e f *,
- Iyie*
"'e*.*
- 4.4*:e I.... ga.6 i.e....
lg..e.sik;;.0 I...
I
.=3....
l1..4i;.,..g.; :....:
I... 646.kg 4:10.>
'?:...
&.6.s lo:......Ts.....:
$3......... :..:.::
- 1...
S..... k...:.e:
$6,:T:e ?&.:.
- 6... :.
Stoi6.s :.:.. :-
12.,1.9 mi..:
l.i. :..:. : ;
l a.,:.: e r...,:
3.
3 13 '
526191,435.45 52i&Bi.1:6.4:
5563.*;.73 53 Se,072.15 5:.::
5.
6a.,76..
7i...t:...
l.,. 4 46.3..
l,
- 6.....::
.6.
- l...
..i s.
1,4 :
6
,2...
51.,..
16,..<<
12....,:...
5..,...-..5.2.
l,........
f..
7 :...
- 1 v
.7
...i
- .i<:<.<-
.ct
- 1. ::>. 6i.:..:.
- l...
c3.t 5 3...ti.1.+1 1,4i.676..
.1 54..
4:..
. 4.
53.6......7 :<=.<:
5..
1.s3 16 5,.
...,40.
4.
1.,.?, 46...6.::
.:. 77 4s:4 4,.
.6 11~
123116 112 969,C14.6:
12 233 46'.53 5322iBi.;i 12553,454.L l' :~.
- l.... se.4.33 5..,.
... :.3....
5,i.:: &.: ;
- l...
t31 7 5 1,4:.5,,... i.t
<>vi.
4::
7..
4 6
114 63:;7 li~22,Cli.63 51,737164.93 1:3i,:55.0.
11,976 4*:.9.
l'.:'
9t.?
17,<:..::.....&.:
l! 7 < w,, n.o. 9. v:.
11.-t. 44,..e.,
1..
i -
12 i
.s,...c :
i i
.4
- 5..&.
6,...:.66 116.,.....<....:
- 1.,. 3,.,.,<.,4 ?.
- l...
3,. 3 56...
- 4..6 v.
. 4i:
.6 6<
17 3311S 5.,92e,6.;.7e
- 51. 75,853.i:
5127553.45 11,2:3452.ki 1:.::
- E 63
- 15 13,333,332.35 11
- 0i63:5.3i 11C&i691.;6 11,200996.53 5:.~:
119 13*15 12,7 1.iii.ii 51 118,454.5:
531:394.ti 51,199549.15 1:.::
123115 1;>570527.a; 5;>i61C54.*;
157,6~7.4i 11 195 66. 5:
5:.*:
121 33119 51,310>*B.63 1260,739.2:
533,350.9 1294,;19.30 5:.::
. -o.
6t..:
51 6 4 6,3-:..,.e 14.t: > 7.:. 4.:.
12,< > 3 2:....t.e.
141,., t 19. i.
- l. -.
.4 123 93019 l??3,359.4:
5270,919.97 122,191.55 5293112.5:
5:.*:
124 123119 S&?7it;&.67 1275,984.74 516i434.5:
$21:>411.26 l'.:"
125 33120 5439 6*:.56 557,504.11 510,569.65 568,373.96 1:.::
126 63020 1380,536.77 159 011.79 19 341.51 168,353.3:
5 :. ".
127 93020 5320,631.45 563,157.3:
53 CB7.51 565,2&&.63 52.::
126 1:3120 1259,CC3.47 561427.95 16 !:9.17 568,237.15 5:. :
129 33121 5:96,173.73 562i529.77 55,503.32 568,333.59 10.:'
13:
63::
1132:057. 9 164,CB6.4; 14 169.69 568055.1:
l'.::
12 !:6.!5 5682:5.44 l!.::
131 93:2; 566,658.70 165 39E.59 h, e,. a t...:;.
l.
. t. a s e. t t. e..
II*....
Ig b i b.3.:. a-5 4i...;f...
.L 45 l
l l
l l
i i
1 I
i
- 4. : *
'I: :t atta:at' !* t*t \\ 19 t"t \\:19 5 fit:.it' 4**
- t vt*t*
4'tt' 3.I'.lii 4*:
c**
- :/3;l!*..
.tSt4*
'*?
t
- a:i 4
- . 4
. te*tst
- ta
- t
- 4.*t**
\\;.
0.4't!-
54 4*;f
'4 ?t**
E 4 vet **
'avet*
"f'
- tunaire :4ian:t 1.
3.1... 6 >,. 3 :..1 7.
p.;
,t. :,o..;..
g69.1...;-
- g.. 6.
- ...: Y. :.:.
- s..:;
1 yei: :.
7.:.-
p.6.: :.---.-.....
7-l..
3...::i&.6.3..:
I.-,6.,e.c..
1.i:1:.:...:
5 :.i.
l....:.. :.....:.
1;.:'
7i t:6
':3159 5143s :2 7'6.97 1332 679.25 l&>"i2:19;.6' l&r!..ii!.i'.
5;..s.3.i ' !!
3....
- 5.. 64: 3......:
1..:13 l...:..:.
5. 4,.9a.,:
1..... 3 l.,
5..
7 i:
i7...
1 9.. 1,7.,,..
53,.,ves:5. ::
t 3....
5..,..,.,...:
5.
4.,.....:.
l.
.7
. se.
.?:...
.333 6
73.w...'
$,. 9,..a 4. s v.: >. < ?
l...i 7..:.
t-l.i:.t :- e.--:7 5..1:.i.1:...
- &...i
- :--.
ve l,9 3:... 9.:..:
.3.,...
1.,..
......Yi6:. 14 1..
66,.:t 5,i7:6sv......:.
l..
4.....
i:::i...
.e.
te:.
.. 7
. i1 r:....-
119 9..
- 6..t
- 33. 9 1.......<tiv::.:.
l.,i:&.
6.,
- 1....,....::..........
l..;iin.e..:.-
4.i:..w 9
63:91 119;i&23iCi2.46 143S'&75.".,3 S&s536 119.57 l'i
'i623.li l'3,1*is2~i.*i l.:..........
..,1,.
5..., 4..7;. :
1......; :: :.:
1,... 4:. 3..
1.
,3..g i 0.,,. 95 14.
- <: :::.s:
- es :..
,6
,.3...
l,:.le..,. 6t. a.
3 1 3, 33...
5...
- 4..,
- 5..,.. 4...:
1.........:. 1-
... 1
- i 1...
- 6 1 1:
i:.7>: :..
- .... 3 3 3....
- 5. e........
52.: :.....:.::
- 1....,...L 1.....:...;;;...
16 4.
- 9... t
...ist i.::.7 it 1>
.t,...
5,.:..,..,
. 1...
3 16.c.
,.3..... 5:
16 i t:..,. 3..,
- 5.. 3...
6:
I.,:..........:
7e
.76
- r.
93:92 1157s&75 729.16 56C5 292.53 sei&66995.52 15 ~72,255.35 1;;>:;>~i:
- 5
- 23112 5156 561,1
- 5.54 16176:3.3*
14.6~2 6 9.!?
l*>C7,243.12 5;;i&;;.3&7.3:
- 6 33193 5156 15&i7
- &.55 57:6 40'. 26 5.,437,95;.26 55 ;&&i352.52 1;',2:6,9;...~
- 7 63093 5135 477 &62.92 5677211.66 54 121,174.23 55 098 415.59 1;2,;;;>i
- 4.:.
1g 93e..,Y.
11g&>39 7 3..,.:.
1t.6*tist..&
5 i..f * *: i C.:^. *r 4 1 *:, w* *:*: A.1.*. 4
- 5 *. *.. *, *1., 4 :.. :.
. 1> :
w 7
19 123193 5154,213:059.17 1531,633.0 16,359,7:5.i; Skii2:,335.91 5;;,55*,761.=:
2 33194 5153611>&32.01 5556 657.16 14:377,079.6:
15,:e3 736.75 1;;i366i C7.::
21 63094 5132,673126.05 1732115.93 5&i356,021.51 55 ICES,967,&&
1;;.;&.:~i.i!
2:
93:94 1191,973,256.34
$7C5,229.7&
51,333 614.04 55,0 3>S&3.78 U.~.9:i,33'.;*
23 12319' 5181 331 0~9.26 1592 247.05 sti!:;iB64.84 56.914 111.92 5;;>7::i346.I:
26 33195 1180 437,63&.23 5943375.;3 s&:3*7.795.97 15:25:il?&.C0 5;*,ti:,71'.;:
- 5 63:95 5179 6&&> 79.65 1793i&54,58 56,235 393.81 15 0?SiE42.31 5;;i:52 331.;3 26 93:95 1178 960i&15.32 5683764.33 5;>266 541.27 14.950 3 3.6 51"i;;;,5:.:'
27 123195 5 75 175,659.19
$7817~6.13 S&i253 3:9.26 15:032,C65.99 19.756,629 i:
5 33;i6 1177 257 492.87
$S91166.32 5.>231 743.16 15;229:9.45 li i;.lai.!:
i 29 63096 1176 419,620.57 5367i872.:
Sti210 577.96 55 075 449.96 li,3"i.549.i:
3; 93096 1175,534C69.26 5565571.61 l'i159.966.C:
15 075 537.6; lie::5iti!.i' 123196 1176 671,332.66 5862 716.82 54 163 933.67 55,031 650.49 lii! 9:422.ne 32 33197 5173 719 448.20 5951,664.21 54 145i&&&.15 15 100 325.39 l!,570,157.;:
33 63097 $172,768 B67.82 5930 580.38 54,125 836.89 55,056 417.27
$3>317.976.Ii 34 93C97 $171,879,650.81 5939:217.01 54103,735.61 15C12952.62 l!/.62,755.*:
35 123197 1170 951,659.52 5927.991.29 S&iC22 161.71 15 010,133.C3 57.!;&i3:3.5e 36 33199 $169.92&,491.99 51.C27,177.53 54 C60,1:1.91 15 0S7,279.41 li.5&2iS57.'i 37 63:93 5168 916 169.61 11COSi292.55 la 335 7C6.45 55,043,999.C0 57 278 332.3:
35 93098 5167.926 754.26 5i59435.15 14 011 759.5:
15,CCli19&.65 17:::,7*t.3:
39
- 23192 5;66 916,833.44 11 **.9.915.22 13,958,260.61 14.993 176.23 lei, vi
- 3<.
4:
33199 5165 607 611.44 11109:027.;2 13,96&i274.9; 15:073 3 ;.9; 5:>6t5 7:*.*:
4; 63C99 5164.7;5,035.69 11> 92 775.75 13 937,935.52 15 033,71;.27 lei;55 371.'i 62 13*99 1163 635:333.09 11,076 647.aC 53 911i192.10 16,953 629.5-liii~i,31*.*:
13
- 3159 5:62 656 156.&:
li!&>23;.!!
13,656 411.72 54,570,643.6:
15:524 55i.*:
5;6 3...
2,,.,..
3 3...
S.....i...
13i 63 3. 6.3
- 1........:
- 5... & ic..
3
<4i..
?
ii:..tc 6-4..
45 630:3 1:6;.;79,833.52 5;.193 3&B.07 53,332 613.19 15 C25 961.43 15 47.7&;'i 13..
l,....,4i.6...1.4.
3
- l.,..,,. i.....:i..:..
l,.. :...... <.
St....,.....<6..<:
- n...r:..::: :
.:ii.
v.
s~
- 3:~: 1:57 371,323.49 11:2:3:11.72 53773016.07
$4.951.C6;. :
- 5. 657. :i.::
l,. :.si:< :....-
5.
93.,...
3...
- 1..., es...:..:
- 5...
643....
- 1.......
l......=>....
- .r.v.
5:
..ti 6.3...
l,ii.,,.. 3:.i<...).
5:...:. 3.<.e. :
- 1....
3..,.:.
- 1...::..:::..
.:: 47:::?v.:n e<.
- i.....
i; 93::1 1:53.iiest'5.i:
5; 3:9,;90.a.
136!$i:7:.ti 5.
91.46:.:"
13,i 5 i.i ::
g
'.,ig17.g.
. 3....
g.:.. 4i.:...wi.......
- p...:.t is 6e....
- g...:,::: :.
g.,tt..,..,...it...
.g7.
D.;5: :.
- : :t 4 ti:-t: !! t a f '.: t * :
- f N: *. 9 i tit:.*t: 4*: :t ve't:
a+ t 3/hiii c: :": :: eil lii.
etit49"i*:
f
= a:t:4
- ** 4 attati:
~;tt
- f:4*:f"
- .a tv-ba.an:e
- ane" hvn -
- ane-
- e..-
3...
5.....,:......:.:.
i.,..... :::i:e..<t 5: m.:.......:.
56 0.,37..e..e S,o. 6...:. :..
t
~3 33*:" 5;&idhd 7.IT lb392,:7653 13493.:.:.':
5b955;26.*5
$:d;;.;i..:'
i.
93 :: 51&i.67L335.5; 11 &20diid!
13 di5.ii' ::
le,75: d7.33 1:.:i' ds.i.
55
- 3;:2 5;&7.:57.h:.62 lbt:5 3is.02 53d254;;.i" lb h be37.5:
lbiesi!!: "
i:
33: 3 5;iidl.3,75;.5:
lbilbli;. :
53di".6::.;e si*:6S;7.;t 5.,=&Idu :.
57 630:3 51u,"32 7:2.2" 51d;b;33.i'.
134iber..'
loie?,6ii.6:
1: 3'3 6*; ~~
9,. 3 5.....4.<.c t...u.1w lb... d.e. 1:
- i.......n... o n..:
56 0 0,...4:.
2 1......7:....:.
s.:
. 3..
5.L.......
,3, l......0
- 5..., o...
- 5. o... 3t:is.:.c 5:4:......o::.<.
- s
.. o:..:7.3 o:..w:..
e:
331:4 5139,370,311,75 lb6134u.55
$3 3&i>373 7 SL962,2;5.e7 13'7dii.i' t '.
630;& $137,7:3d15.49 lb647499.26 53,3;;{u.*E 56 6 !>915.45 l' *:
3.
e.
1 d ll:.6%<:o.s.e3 l,o6.,.....viv:1.:
lo. 3...<.o...:.
SL.......:.si<.:.ve
- i...
e3
.,3..
6 5 3.6d...,.,,:si:e:.i.
- l....,:.. 19 53 3.....,. o n:.<:
led... 1..,.
- 5..
o :: < :w.
.. r.
4 e:o:
e.
3,...
51.
6,..
.t.
64 5......'..
- 5. :...d....e..<.
I.,a.si.:2.e:
5.o...,.....m.:.
- l...
.er d
4:
6:
3......:
.:si:
it...,
l.,.,7 1,.7..:.6e g
13.1 6.,.,. 3....
7 g..
Sti.7/e<<w.11
- 1...
a.
9 v..a t.
5 o. 9 e.:.S.eu..e-S.
n..n. 1..a.t 5,."...:
5.i :e...:. c 5. ".
- s.<
o <.
- i. e...
3...
5173....one:.L:.
5 7.3, 76.3 5.3.i..,..,u...e 56d.4.3..6..,
- 5...
o<
4 0 o1 m:
0 5.:
13 s.e.6 5 i.n.:. 1....o 6t.e. 6.e 5 2, a i. r.. e.t t...c -
53.2t.::. 6:
- 5., 7 i. e.
.t l....
....t e?
- 63. 6 5,3.3,..
4., 2:n 42..
3 51 0.2 %.7. 0
- s. 6e.... 6 S& i:th... L.c..
- l...
3 o o ce. 5 w
4 7"
93:06 512149059S.76
$bE30526.45 52,62b!;:.~5 54d 6 639. t 5:.::
7:
1:31:6 511941b692.35 lbii2,9:6.6; 52d!b76:.::
Sad 6b666.63 5:.*:
72 33107 5117d3039.27 12,0$b 353.C5 12d39,623.66 5b62b:06.54 10.::
73 63 7 5:15 333,627.70 52>16,681.57 52.&95 3h. 7 lb592,075.6:.
5:.*:
74 930:7 5113di3 &2.11 52,140dB5.59 SL&5:43) '
56491125.12 a:.';
?5 123107 5:1b0:7:6*5.72 IL 155,436.39 12 4 :5 35' 5459L7!!.53 5:.::
7e 331:5 51:5,769 d:2.45 52437,S:3.2!.
52,355,91;...
5& di6,714.36 5:.::
77 630:3 5106 685 173.13 12456629.:5 52 311,355.3 50595,957.35 5:.::
75 93 :S 51 0177.932.81 12,30744*.62 SL262,5:1.it.
$b 57L 50.56 l!.:'
??
1:31;S 1;;b321554.!!.
5236,077.97 52,2:3dit.07 5b569,859.04 5:.::
5' 33109 191 373 428.76 52d&!i326.05 12 163d;&.L:
5b6:2i:&*.5" 5*.::
i; 63~9 596897,599.09 52d75,629.67 52,11b 687.&9 56557,317.16 5:.::
5 93 09 54,313450.34 52d:0615.73 52,051> 80.36 lb56L729.08 5:.;*
!3 123109 59hS3h311.33 1255h938.92 52i:~5 die.57 lb563795.55 SL :
8&
33110 589479d0.31
$2656411.;7 lb95b50;.37
$b6:7,711.u 50.:
55 6310 Sa6e&ESi?66.22 52,690,333.49 lbe95,055.63 lb585dS9.37 50.0" 56 93010 583,762,343.55 52,726i&23.27 Sb E3h 566.29 5&d64 3:9.56
- 50. '
57 123110 58bO3h!65.45 SL720 &78.1 lb 779 h 9.8; 5b5:4d27.90 5:.::
Si 33111 57b iSd 87.16 52,939,678.27 lb722> 54.64 lb66b732.9 5.'
39 63011 575173490.12 52,92b297.06 lb659484.12 5b553,833.56 5.::
9:
9311 57L2"5d8&.06 52d63d:6.06 5;dibui.;i SL565dP. 23 l' *:
9; 123111 569226453.79 52,979,630.27 lb530372.91 lb511,;;3.!!
5.::
1:
331 2 566493455.9:
13d3L697.i' lb47b;55.77 lb6'3d53.66 5:.*:
5' 630;;
562d:b;&2.2:
53d!2,313.i:
Sid: bali.h lid 26dif.6L l' *:
l 4
93;2 559 d6b 53.32 SL2&9,6;i.Si lb336d6'.??
54,556d73.65 5" *:
15 1231:2 556,363152.67 53 315,377.65 5;d6ht:7d:
5b556:135.17 5.:;
96 13:13 li2d57.9:3.LS 13,3 55 4!.i. '.!
lbl9745;.**
lbii2 d&'.17 1:.":
6 v...,
g59. e.... u.. e..
$3 4:.7 gi.g.;;
g. e.:. > :... t :.
g.u. 4 e..:. 54
- 5...
o4 9i 13 ;3 ub970,0e6.!!
53d3:>666.6; lb:ib!*:.i:
1653:457.23 l' :'
. a 1. *. 1 g 7 i. it., P. a...s e g3.e.g.. u.a?
g;;t. t,?.9a t
g
%,. t.7.c; ga. ~..
a 3R;.
5iM3;.9:'~.
5:i 6& L 61.. !'
590:a'i i:
13d4344.73 5: *:
63;;&
53h ". b b 9.;;
$2 61b 55!.!!
55u,3:;.:
53436d!3.;:
1:.::
- 3...
g t..,.:. a <. a.
g > < i.. e.. 6 :.
g e.....:
g 3. :. ).. e.1..se
- g. "..
e
.t g)g :..:i. 3.is ga.<a. 66.'.&a g<..a.su..
$3c1)i::..as g..~.
l e.ti..;
.. s.
4
.o l
l
tr. :'. :
- ~: :s atta:.e: :: : e N::e
- e N::e i eie wte: a e : ove e:
a :e 3/31tei ae: : : :: 6/3:/i:
ststancin!
...e
- :r:isa,
- a:; 4
' ate est
- 4
<e:4. e-N:
".a :e sa:aa:e
- ar e :
- avre -
Sa..e -
- t.-
g a. :::.1.;.. :.-
- g. 9,v.. at
$1.>
- g...
ga-41.1.2. 41:..
1r..
c.
l '.. *
- 5 '. A. > : *.. ".'
5.1 *: :'7..'.:.
g6in.g.:.; 74 ei.:
g. ;, c ~:. i :.:....:-
.t
.1 i...
- 1...:iw::is.:
- 1...
- 5. &:..,.13...
- 5. git,..<
S,e 1i..::.6:
1:..:
- 6.
4 1
t gg a,..s...i:.;,...
- 9...
g g.;;.t:4.....
g:.qg,.g;L...=..
=
g 11:g..
9
..)
5..
Jilet.6 ei:
.s
- 1..;......
- l...
l....,..:7 72..:.
- 5......,..
1,.
4.
42.e.
1 n.:.
- ce *:.
1i:.i.
. i.. : : :.....
g.- 1.91 9;3..:s ga.>,;s+2 .
l.'*.*...'.'..'.'
l'. i *.
- 6. 4. '. *. '
l'."."
.a:
- t. i.. 6
.o 1-i& 3..:.
li.t9 i: t:. <:.
14..t i...
l...-
7; c.t.,
l, :. > 19 7 i 4 = =. 3.-
1a4:
- 5. 9.s :.n.t:
le :.:.i > 4:.6. 4 =
l..
- 4 t.
1 23.. &5: ::
l.3.it.9 n.4..t-5 3..,
w4 7
4 11:
33:*.7 11;,259 20~.36 51,709:314.33 1275 591.56
$1i9E'i&^i.i:
1: ::
1:3 63 ;7 59 522> 55.43 51,737:1&&.93 5239 :53. 1 5;ii764:2.94 10.::
11, -,<,.,., 3...
l....
- l. 77 :.::.
l,..3. 343. :
- 2.,. r. -
St 7:1.::....&
7 4
.i..v
.i.
7 I..
I.i.,8f.2....:
I187,3.....
- 1..,4:. 6.....:.4 I286L41:....4.
4.
- .a.6 61 e
4*
.w.
- 5.... t..:;.*:
1..
l...
.......ri:::.7:
Sli.t:i.9:....:.
l' i v,6 i 6.,,..,<,
p.
g
.... s 53>2. ivt s.e tv.:
li. st i3,6.2:
51,wv.t.3 : ::
l & 6 5,.. o.
s...
i
- i 93'.i 12 711 Sal.ii 11 116 454.5
131,394.65 11 199 i45.'."
119
- 23;;S 51,570 827.!&
51:141 05&. :
5~7,627.&9 5;>193 691.5" 10.:.
u i w..:..c :
lat:.r.v...
5i3.t.ea..e9 53.9ti..,2..-
- 5..-
as 1
.ii.. :
li.,.1a 121 63:19 51>:4&s3:5.3S 1265780.25 527539.38 1293,619.63 12.::
122 93;;9 1773 369.41 1270919.97 12219;.55 5:13 ;;..i:
1:
23 1:3:19 1497,4:4.67 5275954.74 516>&34.52 5292 419.26 12.*:
124 33:2*
$1396";.56 157804.11 110:569.65 565i373.9e 5;.*:
6,.ag s s.t ag i:..n.n. 77 g:9 i.r.. --
l'Y i 'L '.. c.1 16.8. '. :.'...' ".
l '.. *.
- 1 126 93*2
$'2Cik)$.45 56;il57.32 103:57.5:
liSi24. 53 10..:
- 7 123:2:
1259,*:3.17 561427.99 16 2 9.17 562r237.15 5:.::
3312:
5196 173.7; 162 229.77 55,5:3.52 565,333.59 1:.~~.
1:1 63:21 1132i:S7.29 16&i:36.41 14 168.69 563 255.1; 5:. '
- 3. -
- 1. 4.
S A.6 i 6*8. 7*.
l'.': 1 1:. *. *.
12i'..'.'.
5.:*i'"..&&
l '.. "
- ta.
l.La i.a:.. 21 I. **
.e8G...f.
I*llkgi. 1 LS:
9*
- 11..
.*1*9.
il9J..Rn1 5At
.l
.4.
6.
i J
.r w
E XHIBIT F SPECIAL WARRANTY DEED WITH VENDOR'S LIEN AND BILL OF SALE THE STATE OF TEXAS S
S KNOW ALL MEN BY THESE PRESENTS:
COUNTIES OF HOOD AND S SOMERVELL S
THAT, BRAZOS ELECTRIC POWER COOPERATIVE, INC., a Texas corporation having its principal office at 2404 LaSalle Avenue, Waco, McLennan County, Texas (hereinafter referred to as "Grantor"), for and in consideration of the sum of TEN AND NO/100) DOLLARS ($10.00) and other good and valuable consideration paid in cash to Grantor by the Grantee herein named, has GRANTED, BARGAINED, SOLD, ASSIGNED, TRANSFERRED and CONVEYED, and by these presents does GRANT, BARGAIN, SELL, ASSIGN, TRANSFER and CONVEY unto TEXAS UTILITIES ELECTRIC COMPANY, a Texas corporation having its principal office at 2001 Bryan Street, Suite 1900, Dallas, Texas 75201 (hereinafter referred to, together with its successors and assigns, as "Grantee"), the following:
(a) all of Grantor's right, title and interest as tenant in common (such right, title and interest being that which was conveyed and transferred to Grantor by Grantee or its predecessors) in and to the following (collectively, the "Group I Real Property");
(i) that certain land located in Hood and Somervell Counties of the State of Texas, more particularly described on Exhibit A-1 attached hereto and incorporated herein for all purposes, (ii) all buildings and other structures, fixtures and improvements (including 3quaw Creek Lake and Park) located on such land, (iii) the estates, rights, privileges, easements and appurtenances belonging or in anywise appertaining to such land and the buildings, structures and improvements located thereon, and, (iv) all subsurface rights, oil, gas and mineral interests, air rights and development rights; (b) all of Grantor's right, title and interest as tenant in common (such right, title and interest being that which was conveyed and transferred to Grantor by l
l l t
Grantee or its predecessors) in and to the Purchased Assets as defined in that certain Agreement dated July 5,1988 (the "Agreement") between Grantor and Grantee, a copy of such definition being attached hereto as Exhibit A-Il and incorporated herein, to the full extent that such Purchased Assets or relevant parts thereof may be personal property according to the laws of the State of Texas, together with the rights and appurtenances thereto in anywise belonging (collectively, the "Group I Personal Property");
(c) all of Grantor's right, title and interest as tenant in common (such right, title and interest being that which was conveyed and transferred to Granter by Grantee or its predecessors as such right, title and interest may, by agreement of the parties [nvolved, have heretofore been adjusted or be subject to adjustment hereafter) in and to that part of the Transmission Facilities (as defined in the Agreement) which is real property according to the laws of the State of Texas including, without limitation, the following (collectively, the "Group 11 Real Property");
(i) that certain land, and those easements and rights of way affecting land, located in Hood and Somervell Counties of the State of Texas, more particularly described on Exhibit A-Ill attached hereto and incorporated herein for all purposes, (ii) all buildings and other structures, fixtures and improvements located on such land, including, without limitation, the Comanche Peak-DeCordova 345 kV electrical transmission line approximately 14.4 miles in length to the full extent that such transmission line or relevant parts thereof may be real property according to the laws of the State of Texas, (iii) the estates, rights, privileges and appurtenances belonging or in anywise appertaining to such land, such easements and rights of way and such buildings, stidetures and improvements, and, (iv) all subsurface rights, oil, gas and mineral interests, air rights and development rights; and (d) all of Grantor's right, title and interest as tenant in common (such right, title and interest being that which was conveyed and transferred to Grantor by Grantee or its predecessors as such right, title and interest may, by agreement of the parties involved, have heretofore been adjusted or be subject to adjustment hereafter) in and to that part of the Transmission Facilities (as defined in the Agreement) to the full extent that the same or relevant parts thereof may be personal property according to the laws of the State of Texas including, without limitation, all equipment and also including the Comanche Peak-DeCordova 345 kV electrical transmission line approximately 14.4 miles in length to the full extent that such transmission line or relevant parts thereof may be personal property according to the laws of the State of Texas (collectively, the "Group 11 Personal Property").
The Group i Real Property and the Group i Personal Property shall be referred to herein collectively as the "Group I Property". The Group 11 Real Property and the Group 11 Personal Property shall be referred to herein collectively as the "Group 11 Property". The Group I Real Property, the Group I Personal Property, the Group 11 Real Property and the Group 11 Personal Property shall be referred to herein collectively as the "Subject Property".
THIS CONVEYANCE IS MADE SUBJECT, however, to the Joint Ownership Agreement (as defined in the Agreement) including, w!thout limitation, Section 3.03 thereof which contains a waiver by the parties thereto of the right to partition, and subject also to the other matters identified on Exhibit B-I attached hereto and incorporated herein. 'Ihe Joint Ownership Agreement (including the amendments thereto but excluding the exhibits to such agreement or amendments) is attached hereto and incorporated herein as Exhibit B-II(the matters set forth on Exhibit B-1 together with the Joint Ownership Agreement shall be referred to herein collectively as the "Permitted Encumbrances").
TO HAVE AND TO HOLD the Subject Property unto said Grantee forever; and subject to the Permitted Encumbrances, Grantor does hereby bind itself and its successors and assigns to WARRANT AND FOREVER DEFEND all and singular the Subject Property unto the said Grantee, against every person whomsoever lawfully claiming or to claim the same or any part thereof by, through and under Grantor, but not otherwise.
By delivery of this Special Warranty Deed With. Vendor's Lien and BG of Sale, Grantor delivers possession, dominion and control over its right, title and interest in and to the Subject Property. Grantor warrants the Subject Property to be identical to the interests conveyed and transferred by Grantee to Grantor unless and except (i) the same have been increased, whether by Grantor or otherwise, or (ii) the same have been diminished by joint activities of Grantor with all other Owners (as defined in the Agreement) or activities by, through, or under the Project Manager (as defined in the Agreement). But it is expressly agreed that a Vendor's Lien, as well as the Superior Title in and to the Subject Property, is.1tained against the Subject Property until that certain Note of even date herewith executed and delivered by Grantee and payable to Grantor in I
L the original sum of Dollars ($
) and allinterest thereon are fully paid according to the face, tenor, effect and reading thereof, when this Special Warranty Deed With Vendor's Lien and Bill of Sale shall become absolute.
THE SUBJECT PROPERTY IS BEING SOLD "AS IS".
GRANTOR MAKES NO WARRANTIES CONCERNING THE MERCHANTABILITY OR CONDITION OR FITNESS FOR ANY PARTICULAR PURPOSE OF THE SUBJECT PROPERTY EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT.
All capitalized terms used herein, and not otherwise defined, have the meanings ascribed to them in the Agreement.
EXI 'UTED on the date of the acknowledgement hereto, to be effective for all 1
purposes on the day of 19_.
BRAZOS ELECTRIC POWER COOPER ATIVE, INC.
By:
lts:
ATTEST:
By:
Its:
4
THE STATE OF TEX AS C O U tit Y O F Before me, the undersigned authority, on this day appeared known to me to be the person whose name is subscribed tt the foregoing instrument, and acknowledged to me that he/she executed the instrument by proper authority in the capacity therein stated and for the purposes and consideration expressed in the instrument.
GIVEN UNDER MY HAND AND SEAL OF OFFICE on 1988.
Notary Public in and for the State of Texas Typed / Printed Name of Notary My Commission Expires:
EXHIBIT A-I
[ Description to be attached prior to Closig EXHIBIT A-D i
(Description of Purchased Assets, as set forth l
In subparagraph (ee) of the Definitloos in the Agreement, to be attached prior to Closing]
l l
l l
l l
l r
l l
l l
l 1 l f
EXIIIBIT A-UI l
(Description to be attached prior to Closing)
EXHIBIT B-1 (List of Permitted Exceptions, as set forth in subparagraph (aa) of the Definitions in the Agreement, to be attached prior to Closing]
l l
l l
l l
l
. l
[
EXHIBIT B-U
[ Joint Ownership Agreement to be attached prior to Closing!
EXHIBIT G
[On the Letterhead of Seller]
Texas Municipal Power Agency (Certified Mail, Return Receipt P. O. Box 7000 Requested, No.
)
Bryan, Texas 77805 A ttn: Mr. Ed Wagoner, General Manager Tex-La Electric Cooperative of Texas,Inc.
(Certified Mail, Return Receipt P. O. Box 398 Requested, No.
)
~
Quitman, Texas 75783 Attn: Mr. Juan D. Nichols, President Re:
Notice of Brazos Electric Power Cooperative, Inc.'s Intention to Transfer its Ownership Interest in the Comanche Peak Steam Electric Station' and in the Fuel to Texas Utilities Electric Company.
Gentlemen:
Each of you are hereby notified, pursuant to Section 16 of the Joint Ownership Agreement (being that certain instrument entitled on the cover page thereof "Joint Ownership Agreement Between Dallas Power & Light Company, Texas Electric Service Company, Texas Power & Light Company, Texas Utilities Generating Company, Texas Municipal Power Agency and Brazos Electric Power Cooperative, Inc. for Comanche Peak Steam Electric Station," executed on January 2,1979, together with and as modified by that certain instrument entitled on the cover page thereof "Modification of Joint Ownership Agreement Between Dallas Power & Light Company, Texas Electric Service Company, Texas Power & Light Company, Texas Utilities Generating Company, Texas Municipal Power Agency and Brazos Electric Power Cooperative, Inc. For Comanche Peak Steam Electric Station," executed on June 1,1979, together with and as amended by (i) the Amendment of Joint Ownership Agreement, executed on Deuember 9,1980, between Dallas Power & Light Company, Texas Electric Service Comp'ny, Texas Power & Light Company, Texas Utilities Generating Company, Texas Municipal Power Agency i
(hereinafter referred to as
'T M P A"),
Brazos Electric Power Cooperative, Inc.
(hereinafter referred to as "Brazos") and Tex-La Electric Cooperative of Texas, Inc.
(hereinafter referred to as ' Tex-La"), together with and as amended by (ii) the Second Amendment of Joint Ownership Agreement, executed on Februaby 12, 1982, between Dallas Power & Light Company, Texas Electric Service Company, Texas Power & Light Company, Texas Utilities Generating Company, TMPA, Brazos and Tex-La)] that Brazos intends to transfer its entire 3.8% undivided ownership interest in the Project and the Puel(as said terms are defined in Paragraphs 1.16 and 1.09, respectively, of the said Joint Ownership Agreement) to Texas Utilities Electric Company ('TU Electric") which is ready, able and willing to acquire same. Brazos, which desires to make such transfer, has l
j obtained a written offer from TU Electric as the prospective transferee, which written offer sets forth the consideration and other terms of the offer; a true and correct copy of said written offer, being the Agreement dated July 5,1988, by and between Brazos and TU Electric, is enclosed herewith.
You will please notice that the bona fide written offer from TU Electric, as the prospective transferee, is in cash, payable in installments as specified in the enclosed written offer, together with the requirement that the Brazos JOA Debt, as described in Section 5.3(b) of the enclosed written offer, be paid.
You are hereby notified that Brazos extends to you (either of you and both of you) a right of first refusal to acquire all or any part of Brazos'said ownership interest in the said Project and Fuel on similar terms and for similar consideration. While not subject to any first right of refusal under the Joint Ownership Agreement, if either of you are Interested, Brazos will sell you its ownership interest in the Comanche Peak-DeCordova 345kV electrical transmission line, described in subparagraph (oo) of the Definitions of the enclosed written offer.
The intended transfer is proposed to be consummated on or before February 16, 1989,, by the delivery of instruments of conveyance to Brazos' 3.8% undivided ownership interest in said Project and Fuel to TU Electric, all in accordance with the enclosed written offer. Should you (either of you or both of you) desire to exercise your option and first right of refusal to acquire all or any part of Brazos' 3.8% undivided ownership interest in the said Project and Fuel, you must exercise your option and first right of refusal by serving written notice of your Intention upon Brazos and upon all of the other Owners of the Project (TU Electric, Texas Municipal Power Agency and Tex-La Electric Cooperative of Texas, Inc.) within three months after service of this written notice. Your failure to exercise said option and first right of refusal as provided in Section 16 of the Joint Ownership Agreement within the time period specified shall be conclusively deemed to be an election not to exercise said option and first right of refusal.
Very truly yours, BRAZOS ELECTRIC POWER COOPER ATIVE, INC.
By:
Richard E. McCaskill, Executive Vice President and General Manager CC: Texas Utilities Electric Company 1900 Bryan Tower Dallas, Texas 75201 Attn: Mr. Erle Nye 2-
EXHIBIT H
[For the letterhead of Joseph Robert Riley)
,198_
Texas Utilities Electric Company 2001 Bryan Street Suite 1900 Dallas, Texas 75201 Gentlemen I have acted as counsel for Brazos Electric Power Cooperative, Inc., a Texas corporation ("Brazos"), in connection with that certain Agreement dated July 5,1988 (the "Agreem ent") by and between Brazos and Texas Utilities Electric Company (the "Com pany").
This opin!on is delivered to you pursuant to section 6.4 of the Agreement.
Capitali7.ed terms useo but not defined herein shall have the meaning ascribed to them in the Agreement.
In connection with this opinion, I have reviewed executed copies of the Agreement, the Assignment Agreement of even date hereof between the Company and Brazos (the "Assignment Agreement), the Assignment of even date hereof frora Brazos to the Rural Electrification Administration (the "REA") (the "Assignment"), the Transfer of Lien of even date hereof from Brazos to the REA (the "Transfer of Lien"), the Amendment of even date hereof to the Transmission Agreement between the Company and Brazos executed on July 25,1979 (the "Transmission Agreement Amendment"), the Indemnity Agreement of evcn date hereof from Brazos to the Company (the "Indemnity Agreement"), the Release of even date hereof from Brazos in favor of the Company (the "Release"), the Covenant Not To Sue of even date hereof from Brazos in favor of the Campany (the "Covenant Not To Sue") and the Special Warranty Deed With Vendor's Lien and Bill of Sale of even date hereof from Brazos to the Company (the "Deed") (the Agreem ent, the Assignment Agreement, the Assignment, the Transfer of Lien, the Transmission Agreement Amendment, the Indemnity Agreement, the Release, the Covenant Not To Sue and the Deed are hereinafter sometimes referred to collectively as the "Agreements").
I have also examined originals or copies, certified or otherwise identified to my satisfaction, of such corporate records certificates and other documents of Brazos and mr.de such investigations of law (subject to the limitations hereinafter set forth) as I have deemed necessary or appropriate as a basis for the opinions expressed below.
l As to questions of fact material to my opinions expressed herein, I have, when relevant facts were not independently established, relied upon certificates of, and l
information received from, officers of Brazos and have assumed the accuracy of the l
statements of fact contained in all of the documents reviewed by me.
I have not l
l Independently investigated or verified the facts represented in such certificates or l
information and do not opine as to the accuracy of any such facts.
With respect to certain matters set forth in paragraphs 1 and 5 below, I have also relied upon certificates and other documents from, and conversations with, public officials.
In rendering the following opinions, I have assumed, but not independently verified, the authenticity of any document or other instrument submitted te me as an original, the conformity to the originals of any document or other instrument submitted to me as a copy, and the genuineness of all signatures, except signatures made on behalf of Brazos. I have also assumed, but not independently verified, that all documents executed by a party other than Brazos were duly and validly authorized, executed and delivered by such party, which had requisite power and authority with respect thereto, and are legal, valid and binding obligations of such party enforceable against such party in accordance with their respective terms.
To the extent that my opinions in paragraph 2 below relate to consent requirements which may be contained in any agreement or contract to which Brazos is a party or by which it is bound, the opinion is based solely on certificates of officers of Brazos without any independent investigation.
Based upon the foregoing and subject to the qualifications set forth herein, I am of the opinion that:
1.
Brazos is a non-profit electric cooperative corporation duly organized, validly existing and in good standing under the laws of the State of Texas with requisite corporate power and authority to carry on its business as now conducted and to own, sell and transfer the Purchased Assets as provided for in the Agreement.
2.
Brazos has requisite corporate power and authority to execute, deliver and perform the Agreements and to carry out its obligations thereunder. Brazos has full, requisite corporate power and authority to act for itself and the other persons or entitles, aate and governmental, acting by, through and under Brazos, in connection with the Agreemen ts.
The Agreements have bet:n duly authorized, executed and delivered by Pazos, and constitute valid and legally binding obligations of Brazos and the other persons or entitles, private or governmental, acting by, through and under Brazos, enforceable against such parties in accordance with their respective terms.
The execution, delivery and performance of the Agreements by Brazos does not conflict with or result in any violation of, or constitute a default under,(1) the Articles of Incorporation or by-laws of Brazos, or (ii) to my knowledge, any material provision of any mortgage, indenture, lease, agreement or other instrument, including any evidence of indebtedness, including without limitation the Brazos Comanche Peak Debt, to which Brazos, or any of Brazos' properties or assets, is subject or a party, or (iii) or to my knowledge, any permit, concession, grant, franchise, license, judgment, order or decree, applicable to Brazos or any of its property; or with the passage of time or the giving of notice or the taking of any action by any third party, have any of the effects described herein.
3.
Brazos has obtained all necessary consents, approvals, orders and authorizations of, and has made all necessary registrations, declarations and filings with, each governmental authority or other entity required in connection with the execution, delivery, and performance by Brazos of the Agreements, except for any such required to be obtained by the Project Manager. No other filing or registration with, and no other consent, approval, authorization, permit, certificate or order of any court, tribunal or governmental agency or authority, Federal, state, county or municipal, or other entity is required by any applicable statute or other law or by any judgment, order or decree or any rule or regulation of any court, tribunal or governmental agency or authority, Federal, state, county or municipill, or agreement with any other entity to permit Brazos to execute, deliver or perform the Agreements.
4.
No provision of any obligation or liability, including with respect to any evidence of indebtedness, of Brazos, whether accrued, absolute, contingent or otherwise, will cause the Company to assume or otherwise become liable for, or will cause the Purchased Assets to become encumbered by, any liability of Brazos as a result of the purchase by the Company of the Purchased Assets, except such as currently exist with respect to Comanche Peak and which were entered into or incurred by (a) all parties owaing interests in Comanche Peak at the time involved acting collectively, or (b) the Project Manager or the Company or both. The opinion set forth in this paragraph 4 assumes the Company's forgiveness of the Brazos JOA Debt as described in section 5.3(b) of the Agreement.
5.
Apart from all taxes and similar charges owed by the Project Manager on behalf of all the Owners collectively, Brazos owes no taxes or similar charges or impositions with respect, or the nonpayment of which would apply, to, or result in any tien or other encumbrance upon, the Purchased Assets te any taxing authority. Further, no tax charge, tax expense or tax claim against the Purchased Assets originating with or caused by the action or inaction of Brazos individually or in combination with any of the Owners other than the Company or the Project Manager will attach to or affect any portion of the Purchased Assets conveyed after the Closing, 6.
Brazos has such title in and to the Site and alt real property interests therein and the rest property interests included in the Transmission Facilities as was conveyed to Brazos by or through the Company or the Company's predecessors-in-title.
Except in combination with, or in conjunction with action by, all of the Owners of the Site and the real property interests included in the Transmission Facilities acting collectively either directly or through the Project Manager, Brazos has not encumbered the Site or any of the real property interests therein or the real property interests included in the Transmission Facilities with any mortgages, liens, claims, charges, security interests or encumbrances that have not heretofore been fully released.
Brazos, separately or in combination with any or all of the Owners other than the Company or the Project Manager, has not taken any action which would result in the structures, improvements and fixtures on such realproperty constituting a part of the Site not being in conformity with all applicable Federal, state and local. zoning, building, health, safety and environmental laws, ordinances, rules er regulations. No notice from any governmental body, which has not otherwise been disclosed to the Company or the Project Manager in writing, has been served upon Brazos claiming any violation of any such law, ordinance, rule or regulation or requiring any work, repairs, construction, alterations or installations on or in connection with such real property or the buildings, structures, fixtures or improvements thereon, nor to my knowledge has any such violation, which has not otherwise been disclosed to the Company or the Project Manager in writing, been claimed or action with respect thereto threatened.
7.
Brazos has the title to such interest as was conveyed to Brazos by or through the Company or the Company's predecessors-in-title in all of the equipment, vehicles, fixtures, machinery and other items of personal property, tangible or intangible, to the extent the same are parts of the Purchased Assets.
Except in combination or in conjunction with action by the Company, the Project Manager or allof the Owners acting collectively, Brazos has not encumbered the equipment, vehicles, fixtures, machinery and other items of personal property, tangible or intangible, which are part of the Purchased Assets, with any mortgages, tiens, claims, charges, security interests, encumbrances or other restrictions or limitations, assuming payment by the Compt.ny of any and all transfer taxes that may become due on account of the transfer of the Purchased Assets, that have not heretofore been fully released, except for the liens for ad valorem taxes not yet due and payable.
8.
There are no claims, suits or proceedings, administrative or otherwise, pending against Brazos or, to the best of my knowledge, threatened against Brazos affecting the Purchased Assets, whether such be at law, in equity or in arbitration, or oefore or by any governmental department, commision, board, bureau, agency or instrumentality which, if adversely determined against Brazos, would affect Brazos' ability to perform its obligations under the Agreements, except that which has been previously disclosed in writing to the Company; and Brazos, separately and apart from the other Owners in combination or in conjunction with action by all the Owners acting collectively either directly or through the Project Manager, is not in default with respect to any order, writ, injunction or decree of any caurt, arbitrator or governmental department, commission, board, bureau, agency or instrumentality affecting the Purchased Assets.
9.
There is not in effect any executory contract, agreement, order or commitment to which Brazos is suoject or a party, and to which the Company or the Project Manager is not a party, which would bind the Company with respect to the Purchased Assets after the Closing and which would adversely affect the value of the Purchased Assets after the Closing.
The opinion expressed in paragraph 2 above as to conflicts with other agreements to which Brazos is a party is qualified to the extent that no opinion is given as to compliance with the Joint Ownership Agreement ' including but not limited to Section 16 thereof).
The opinions expressed in paragraph 2 above are qualified as to the enforceability of the Agreements to the extent that they may be subject to the exercise of judicial discretion in accordance with general equitable principles, with respect to matters of force majeure and by laws relating to bankruptcy, insolvency, moratorium, reorganization or similcr laws and are further qualified to the extent that no opinion is given as to (i) the availability of specific performance or other equitable remedies, or (ii) compliance with usury laws.
I am licensed to practice law in the State of Texas. I do not purport to be an expert on, or to express any opinion herein concerning, any law other than the laws of the State of Texas and the federallaw of the United States.
The foregoing opinions are limited to the existing laws on the date hereof and I undertake no obligation or responsibility to update or supplement this opinion in response to subsequent changes in the law or future events or circumstances affecting the transactions contemplated herein. This opinion has been delivered solely for your benefit and may not be otherwise reproduced, filed or relied upon by any other person or entity.
Very truly youn, Joseph Robert Riley 4
EXHIBIT I 1
For the letterhead of Worsham, Forsythe, Sampels & Wooldridge
,198__
Brazos Electric Power Cooperative, Inc.
P. O. Box 2585 Waco, Texas 76702-2585 Gentlemen:
We have acted as counsel for Texas Utilities Electric Company, a Texas corporation
/_the "Company"), in connection with that certain Agreement dated July 5,1988 (the "Agreement") by and between Brazos Electric Power Cooperative, Inc. ("Brazos") and the Company, and as counsel for Texas Utilities Company, a Texas corporation ("TUC"), in connection with the Guaranty of even date herewith given in connection with the Note.
'This opinion is delivered to you pursuant to section 7.4 of the Agreement.
Capitalized terms used but not defined herein shall have the meaning ascribed to them in the Agreement.
In connection with this opinion, we have reviewed executed copies of the Agreement, the Assignment Agreement of even date hereof between the Company and Brazos (the "Assignment Agreement"), the Amendment of even date hereof to the Transmission Agreement between the Company and Brazos executed on July 25,1979 (the "Transmission Agreement Amendment"), the Assumption And Indemnity Agreement of even date hereof from the Company to Brazos (the "Indemnity Agreement"), the Release of even date hereof from the Company in favor of Brazos (the "Release"), the Covenant Not To Sue of even date hereof from the Company to Brazos (the "Covenant Not To Sue"),
the Note of even date hereof from the Company to Brazos (the "Note") and the purchase money Mortgage of even date hereof from the Company in favor of the Trustee named therein for the benefit of Brazos (the "Mortgage") (the Agreement, the Assignment Agreement, the Transmission Agreement Amendment, the Indemnity Agreement, the Release, the Covenant Not To Sue, the Note and the Mortgage are hereinafter sometimes referred to collectively as the "Agreements"), and the Guaranty of even date hereof from TUC, the parent of the Company, to Brazos given in connection with the Note (the "Guaranty"). We have also examined originals or copies, certified or otherwise identified to our satisfaction, of such corporate records, certificates and other documents of the Company and TUC and made such investigations of law (subject to the limitations hereinafter set forth) as we have deemed necessary or appropriate as a basis for the opinions expressed below.
As to questions of fact material to our opinions expressed herein, we have, when relevant facts were not independently established, relied upon certificates of, and information received from officers of the Company and TUC and have assumed the accuracy of the statements of fact contained in all of the documents reviewed by us, We have not independently investigated or verified the facts represented in such certificates or information and do not opine as to the accuracy of any such facts. With respect to certain matters set forth in paragraph I below, we have also relied upon certificates and other documents from, and conversations with, public officials.
In rendering the following opinions, we have assumed, but not independently verified, the authenticity of any document or other instrument submitted to us as an original, the conformity to the originals of any document or other instrument submitted to us as a copy, and the genuineness of all signatures, except signatures made on behalf of the Company and TUC, We have also assumed, but not independently verified, that all documents executed by a party other than the Company or TUC were duly and vaudly authorized, executed and delivered by such party, which had requisite power and authority with respect thereto, and are legal, valid and binding obligations of such party enforceable against such party in accordance with their respective terms.
To the extent that our opinions in paragraph 2 below relate to consent requirements which may be contained in any agreement or contract to which the Company or TUC is a party or by which either is bound, the opinion is based solely on certificates of officers of the Company or TUC without any independent investigation.
Based upon the foregoing and subject to the qualifications set forth herein, we are of the opinion that:
1.
The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Texas with requisite corporate power and authority to carry on its business as now conducted and to own, buy and accept the transfer of the Purchased Assets as provided for in the Agreement.
2.
De Company has requisite corporate power and authority to execute, deliver and perform the Agreements and to carry out its obligations thereunder and to receive delivery of the Special Warranty Deed With Vendor's Lien and Bill of Sale of even date herewith from Brazos to the Company. The Company has full, requisite corporate power and authority to act for itself and the other persons or entitles, private and governmental, acting by, through and under the Company, in connegtlon with the Agreements.
The Agreements have been duly authorized, executed and delivered by the Company, and constitute valid and legally binding obligations of the Company and the other persons or entitles, private or governmental, acting by, through and under the Company, enforceable against such parties in accordance with their respective terms.
For purposes of the foregoing, we have assumed that the provisions of paragraph 8 of the Note have been and will continue to be complied with and will be construed to override all provisions of the Agreem ent, the Note and the Mortgage which may be inconsistent therewith.
The execution, delivery and performance of the Agreements by the Company does not conflict with or result in any violation of, or constitute a default under, (i) the Articles of Incorporation or by-laws of the Company, or (ii) to our knowledge, any material provision of any mortgage, indenture, lease, agreement or other instrument to which the Company is subject or a party, including any bonds or other obligation or other evidence of indebtedness, or (iii) to our knowledge, any permit, concession, grant, franchise, license, judgment, order or decree, applicable to the Company or any of its property, including Comanche Peak; or with the passage of time or the giving of notice or the taking of any action by any third party, have any of the effects described herein.
Assuming valid i
recordation to make effective the lien of the Mortgage, such lien is a superior lien to the lien of the Mortgage and Deed of Trust, dated as of December 1,1983, of the Company to Irving Trust Company, Trustee. ;
3.
De Company has obtained all necessary consents, approvals, orders and authorizations of, and has made all necessary registrations, declarations and fiUngs with, each governmental authority or other entity required in connection with the execution, delivery, and performance by the Company of the Agreements.
No other filing or registration with, and no other consent, approval, authorization, permit, certificate or order of any court, tribunal or governmental agency or authority, Federal, state, county or municipal, or other entity is required by any applicable statute or other law or by any judgment, order or decree or any rule or regulation of any court, tribunal or governmental agency or authority, Federal, state, county or municipal, or agreement with any other entity to permit the Company to execute, deliver or perform the Agreements.
4.
TUC is a corporation duly organized, validly existing and in good standing under the laws of the State of Texas with requisite corporate power and authority to carry on its business as now conducted and has requisite corporate power and authority to execute, deliver and perform the Guaranty and to carry out its obligations thereunder.
The Guaranty has been duly authorized, executed and delivered by TUC, and constitutes the valid and legally binding obligation of TUC enforceable against it in accordance with its terms, De execution, delivery and performance of the Guaranty does not conflict with or result in any violation of, or constitute a default under, (i) the Articles of Incorporation or by-laws of TUC, or (11) any material provision of any mortgage, indenture, lease, agreement or other instrument to which TUC is subject or a party, or (iii) any permit, concession, grant, franchise, license, judgment, order, decree, statute, law, ordinance, rule or regulation applicable to TUC or any of its property; or with the passage of time or the giving of notice or the taking of any action by any third party, have any of the effects described herein.
De opinion expressed in paragraph 2 above as to conflicts with other agreements to which the Company is a party is qualified to the extent that no opinion is given as to compliance with the Joint Ownership Agreement (including but not Umited to Section 16 thereof).
De opinions expressed in paragraphs 2 and 4 above are qualified as to the enforceabluty of the Agreements and the Guaranty to the extent that they may be subject to the exercise of judicial discretion in accordance with general equitable principles, with respect to matters of force majeure and by laws relating to bankruptcy, insolvency, moratorium, reorganization or similar laws and are further qualified to the extent that no opinion is given as to the availability of specific performance or other equitable remedies.
We are licensed to practice law in the State of Texas. We do not purport to be experts on, or to express any opinion herein concerning, any law other than the laws of the State of Texas and the federallaw of the United States.
De foregoing opinions are limited to the existing laws on the date hereof and we undertake no obligation or responsibility to update or supplement this opinion in response to subsequent changes in the law or future events or circumstances affecting the transactions contemplated herein. Bis opinion has been delivered solely for your benefit 1
and may not be otherwise reproduced, filed or reued upon by any other person or entity.
Very truly yours, WORSH Ai,1, FOfMTHE, S AMPELS
& WWJR!DGE By:
3
i EXHIBIT J a
RELEASE STATE OF TEX AS S
S COUNTY OF MC LENNAN S For and in consideration of the agreements, undertakings, promises, and covenants of TU Electric, TUC, and their subsidiaries and affiliates set forth in the Agreement, including without limitation the contemporaneous delivery to Brazos by TU Electric of (1) a Release releasing certain claims which TU Electric, TUC, snd their subsidiaries and affiliates have or may have against Brazos, its Members and customers (including the customers of Brazos' Members and other wholesale customers), (2) a Covenant Not to Sue under which TU Electric, for itself and on behalf of TUC, and their subsidiaries and affiliates and on behalf of any person or entity, private or governmental, claiming by, through or under TU Electric or TUC, covenants not to sue upon certain claims which they may have against Brazos or its Members, and (3) an Assumption and Indemnity Agreement under which TU Electric assumes certain duties, responsibilities, liabilities and obligations of Brazos, its Members and customers (including the customers of Brazos' Members and other wholesale customers), and agrees to indemnify Brazos, its Members and customers (including the customers of Brazos' Members and other wholesale customers), against certain claims, the adequacy and sufficiency of such consideration being hereby acknowledged and confessed, Brazos hereby agrees to the following:
1.
Definitions. As used herein, the following terms have the following meanings:
A.
"Agreement" means that certain Agreement dated July 5,1988, by and between Brazos and TU Electric.
B.
"Brazos" means Brazos Electric Power Cooperative, Inc.
C.
"Comanche Peak" means the nuclear-fueled electric generating facility under construction on certain lands situated in Hood and Somervell Counties, Texas, and consisting of two units having a nominal capacity of 1,150 megawatts each, and related properties, and is the aggregate and combination of the Station, Fuel, and Transmission i
Facilities, and all other rights and interests associated with or relating thereto.
D.
"Fuel" means the Comanche Peak nuclear fuel, irrespective of chemical and/or physical form, and the rights and interests related thereto.
E.
"JOA" means that certain instrument entitled on the cover page thereof "JOINT OWNERSHIP AGREE 51ENT BETWEEN DALLAS POWER & LIGHT C051PANY, T"aXAS ELECTRIC SERVICE C051PANY, TEXAS POWER & LIGHT CO51PANY, TEXAS UTILITIES GENERATING COh!PANY, TEXAS 51UNICIPAL POWER AGENCY AND BRAZOS ELECTRIC POWER COOPERATIVE, INC. FOR CO51ANCHE PEAK STEAh!
ELECTRIC STATION," executed on January 2,1979, together with and as modified by that certain instrument entitled on the cover page thereof "$1odification of Joint 1
Ownership Agreement Between Dallas Power & Light Company, Texas Electric Service Company, Texas Power & Light Company, Texas Utilities Generating Company, Texas 31unicipal Power Agency and Brazos Electric Power Cooperative, Inc.: For Comanche Peak Steam Electric Station," executed on June 1,1979, together with and as amended by (i) the Amendment of Joint Ownership Agreement, executed on December 9,1980, between Dallas Power & Light Company, Texas Electric Service Company, Texas Power &
Light Company, Texas Utilities Generating Company, T51PA, Brazos, and Tex-La, together with and as amended by (ii) the Second Amendment of Joint Ownership Agreement, executed on February 12, 1982, between Dallas Power & Light Company, Texas Electric Service Company, Texas Power & Light Company, Texas Utilities Generating Company, T51PA, Brazos, and Tex-La.
F.
"51 embers" means the twenty (20) Texas non profit electric cooperative corporations that are members of Brazos, as set out in Exhibit C to the Agreement.
G.
"Owners" means collectively TU Electric, Brazos, T51PA and Tex-La, as owners of Comanche Peak in accordance with the terms of the JOA, or singularly any of such parties. l
n v
H.
"Pending Litigation" means Cause No. 399,482 - Brazos Electric Power Cooperative, Inc. v., Texas Utilities Company, Texas Utilities Electric Company, Texas Utilities Mining Company, and Texas Utilities Services Incorporated. - in the District Court of Travis County, Texas, 345th Judicial District; Cause No. 3 99,336 -Tex-La Electric Cooperative of Texas, Inc., and Texas Municipal Power Agency v. Texas Utilities and Texas Utilities Electric Company, -in the District Court of Travis County, Texas, 98th Judicial District; and Cause No. 86-4809-A - Texas Utilities Electric Company '/.
Tex-La Electric Cooperative of Texas, Inc., et al. - in the District Court of Dallas County, Texas,14th Judicial District.
1.
"Project Manager" means TU Electric designated and acting as such in accordance (or purportedly in accordance) with the terms of the JOA.
J.
"Site" means approximately 7,669 acres owned (in fee or other estate or interest) by the Owners, as tenants in common, and located in Hood and Somervell Counties, Texas.
K.
"Station" means the Site, all improvements thereon (including Squaw Creek Iake and Park) and all fixtures and attachments thereto, as well as (i) all personal property thereon and associated therewith or related thereto and owned by the Owners, and (ii),all rights (tangible or intangible), and all easements and other interests of any nature associated therewith or related thereto and owned by the Owners, excluding, however, the Fuel, and the Transmission Facilities.
L.
"Subject Claims" means any and all claims, actions, controversies, causes of action, disputes, demands, and complaints of whatsoever kind or nature and whether known or unknown.
M.
"Tex-la" means Tex-La Electric Cooperative of Texas, Inc.
N.
"TMPA" means Texas Municipal Power Agency.
O.
"Transmission Facilities" means the Comanche Peak - DeCordova 345 kV electrical transmission line approximately 14.4 miles in length, and associated rights-of-way, equipment, fixtures and personal property.
y P.
"TUC" means Texar Utlpa.
Q.
"TU Electric" mean:. h a: ' tilities Electric Company, which is a Texas corporation, 11.
Release. Brazos, except as provided in paragraph !!! herein, for itself and on
-behalf of any person or entity, private or governmental, claiming by, through or under Brazos, including without limitation, to the extent it has the standing and right under law to do so, its P. embers and customers (including the customers of Brazos' Members and other wholesale customers) and its or their respective insurers,
- agents, servants, employees,
- officers, directors, consultants, at torneys, and representatives does hereby waive, release, discharge, renounce, and relinquish any and all Subject Claims relating to Comanche Peak which it has or they have,-or may have,-
whether known or unknown, contingent or absolute, including, without limitation, those based on common law, whether contract (expressed or implied, including express or implied warranty) or tort (including, without limitation, intentional tort, negligence or gross negligence, sole, joint, or concurrent) or strict liability or fraud, and those based upon any Federal, state, or local statute, law, order or regulation, including without limitation, the Atomic Energy Act of 1954, as amended, the regulations of the United i
States Nuclear Regulatory Commission, the Securities Act of 1933, as amended, or the I
Securities Act of 1934, as amended, and any rule or regulation under either, the Texas i
Securities Act (Title 19, Articles 581-1, et seq., V. A.T.S.) and the Texas Deceptive Trade Practices and Consumer Protection Act, against TU Electric or TUC, or both, in any capacity, whether individually, as the Project Manager, or otherwise, and their respective r
insurers, agents, servants, employees, officers, directors, shareholders, consultants, attorneys and representatives, past and present, and any and all of their respective successors, subsidiaries, and affiliates, and their respective insurers, agents, servants, employees, officers, directors, shareholders, consultants, attorneys, and representatives, past and present.
l l
-4
Exceptions to Release. Brazos specifically does not release the following:
(a)
Any Subject Claims arising out of or under the Agreement or any of the agreements or instruments to be delivered by TU Electric or TUC pursuant to the Agreement.
(b)
Any Subject Claims which could not have been brought in the Pending Litigation and which accrue on or after the Date of Commercial Operation (as that term is defined in the JOA) and which are based upon the acts or omissions of TU Electric or the Project Manager other than acts or omissions in connection with the planning, design or construction (or the management thereof) of Comanche Peak.
IV.
Covenant. Brazos hereby covenants and warrants that it has not assigned any-Subject Claims that are hereby released.
Y.
Control.
To the extent any provision of this Release conflicts with any provision in Section 9.1 of the Agreement, this Release shall control as to the agreement of the parties.
EXECUTED this the day of
.1988, as duly authorized by an appropriate resolution of its Board of Directors.
BRAZOS ELECTRIC POWER COOPER ATIVE, INC.
(Corporate Seal)
By:
ATTEST:
Its:
t h'
Its:
L
~.
EXHIBIT E COVEN ANT NOT TO SUE STATE OF TEX AS S
S COUNTY OF MC LENNAN S For and in consideration of the agreements, undertakings, promises, and covenants of TU Electric, TUC, and their subsidiaries and affiljates set forth in the Agreement, including without limitation the contemporaneous delivery to Brazos by TU Electric of (1) a Release raleasing certain claims which TU Electric, TUC, and their subsidiaries and affiliates have or may have against Brazos, its Members and customers (including the customers of Brazos' Members and other wholesale customers), (2) a Covenant Not to Sue under which TU Electric, for itself and on behalf of TUC, and their subsidiaries and affiliates and on behalf of any person or entity, private or governmental, claiming by, through or under TU Electric or TUC, covenants not to sue upon certain claims which they may have against Brazos or its Members, and (3) an Assumption and Indemnity Agreement under which TU Electric assumes certain duties, responsibilities, thbilities and obligations of Brazos, its Members and customers (including the customers cf Brazos' Members and other wholesale customers), and agrees to indemnify Brazos, its Members and customers (including the customers of Brazos' Members and other wholesale customers), against certain claims, the adequacy and sufficiency of such consideration being hereby acknowledged and confessed, Brazos hereby agrees to the following:
1.
Definitions. As used herein, the following terms have the following meanings:
A.
"Agreement" means that certain Agreement dated July 5,1988, by and between Brazos and TU Electric.
B.
"Brazos" means Brazos Electric Power Cooperative, Inc.
C.
"Comanche Peak" means the nuclear-fueled electric generating facility under construction on certain lands situated in Hood and Somervell Counties, Texas, and consisting of two units having a nominal capacity of 1,150 megawatts each, and related t
I i
properties, and is the aggregate and combination of the Stotion, Fuel, and Transmission Facilities, and all other rights and interests associated with or relating thereto.
D.
"Fuel" means the Comanche Peak nuclear fuel, irrespective of chemical and/or physical form, and the rights and interests related thereto.
E.
"JOA" meens that certain instrument entitled on the cover page thereof "JOINT OWNERSHIP AGREEMENT BETWEEN DALLAS POWER & LIGHT COMPANY, l
TEXAS ELECTRIC SERVICE COMPANY, TEXAS POWER & LIGHT COMPANY, TEXAS UTILITIES GENERATING COMPANY, TEXAS MUNICIPAL POWER AGENCY AND BRAZOS ELECTRIC POWER COOPERATIVE, INC. FOR COMANCHE PEAK STEAM ELECTRIC STATION," executed on January 2,1979, together with and as modified by that certain instrument entitled on the cover page thereof "Modification of Joint Ownership Agreement Between Dallas Power & Light Company, Texas Electric Servie Company, Texas Power & Light Company, Texas Utilities Generating Company, Texas Municipal Power Agency and Brazos Electric Power Cooperative, Inc.: For Comanche Peak Steam Electric Station," executed on June 1,1979, together with and as amended by (1) the Amendment of Joint Ownership Agreement, executed on December 9,1980, between Dallas Power & Light Company, Texas Electric Service Company, Texas Power &
Light Company, Texas Utilities Generating Company, TMPA, Brazos, and Tex-La, together with and as amended by (ii) the Second Amendment of Joint Ownership Agreement, executed on February 12, 1982, between Dallas Power & Light Company, Texas Electric Service Company, Texas Power & Light Company, Texas Utilities Generating Company, TMPA, Brazos, and Tex-La.
F.
"Members" means the twenty (20) Texas non-profit electric cooperative corporations that are members of Brazos, as set out in Exhibit C to the Agreement.
G.
"Owners" means collectively TU Electric, Brazos, TMPA and Tex-La, as l
owners of Comanche Peak in accordance with the terms of the JOA, or singularly any of such parties.
H.
"Pending Litigation" merns Cause No. 399,482 - Brazos Electric Power Cooperative, Inc. v. Texas Utilities Company, Texas Utilities Electric Company, Texas Utilities Mining Company, and Texas Utilities Services incorporated, - in the District Court of Travis County, Texas, 345th Judicial District; Cause No. 399,336 -Tex-La Electric Cooperative of Texas, Inc., and Texas Municipal Power Agency v. Texas Utilities and Texas Utilities Electric Company, - in the District Court of Travis County, Texas, 98th Judicial District; and Cause No. 86-6809-A - Texas Utilities Electric Company v.
Tex-La Electric Cooperative of Texas, Inc., et al. - in the District Court of Dallas County, Texas,14th Judicial District.
I.
"Project Manager" means TU Electric designated and acting as such in accordance (or purportedly in accordance) with the terms of the JOA.
J.
"Site" means approximately 7,669 acres owned (in fee or other estate or interest) by the Owners, as tenants in common, and located in Hood and Somervell Counties, Texas.
K.
"Station" means the Site, all improvements thereon (including Squaw Creek Lake and Park) and all fixtures and attachments thereto, as well as (i) all personal property thereon and associated therewith or related thereto and owned by the Owners, and (11) all rights (tangible or intangible), and all easements and other interests of any nature associated therewith or related thereto and owned by the Owners, excluding, however, the Fuel, and the Transmission Facilities.
L.
"Subject Claims" means any and all claims, actions, controversies, causes of action, disputes, demands, and complaints of whatsoever kind or nature and whether known or unknown.
M.
' Tex-La" means Tex-La Electric Cooperative of Texas, Inc.
N.
'TMPA" means Texas Municipal Power Agency.
O.
' Transmission Facilities" means the Comanche Peak - DeCordova 345 kV electrical transmission line approximately 14.4 miles in length, and associated rights-of-way, equipment, fixtures and personal property.
P.
"TUC" means Texas Utilities Company, which is a Texas corporation and the parent of TU Electric.
Q.
"TU Electric" means Texas Utilities Electric Company, which is a Texas corporation.
II.'
Covenant Not to Sue and Agreement Not to Challenge. Brazos, except as provided in paragraph III hersin, for itself and on behalf of any person or entity, private or governmental, claiming by, through, or under Brazos, including without limitation, to the extent it has the standing and right under law to do so, its Members and custcmers (including the customers of Brazc' Members and other wholesale customers) and its or their respective insurers, agents, servants, employees, officers, directors, conruitants, attorneys, and representatives, does hereby covenant and agree:
(a)
That it and ths/, individually, collectively, or in any combination, will forebear from asserting against, and never sue for or look for satisfaction with respect to, TU Electrie, TUC, and their respective insurers, agents, servaats, employees,
- officers, direc tors, shareholders, consultants, attorneys, and representatives, past and present, and any and all of their respective successors, subsidiaries, and affiliates and their respective insurers, agents, sar< ants, employees,
- ofUcers, directors, shareholders, consultants, attorneys, aad representatives, past and present, with respect to any Subject Claims (including without limitation any Subject Claim against any contractor, subcontrac tor, supplier, consultant, vendor or other person, firm or entity in privity in any manner with any of them which may therefor or as a result thereof have a right over or Subject Claim in subrogation)in any manner involving, concerning, arising out of, or l
relating to, the design, construction, management, and licensing of, or any other matter relating to, Comanche leak, and the aansgement, procurement, conversion, enrichment, fabrication, shipping, transportation, and storage of the Fuel.
l L
(b)
That neitner it nor they, individually, collectively, or in any combination, will directly or indirectly challenge, contest, or assert any complaint in any court or before any administrative agency or body or in any other forum whatsoever with respect to, or in any manner involving, concerning, arising out of, or relating to, Comanche Peak and the incidents and attributes thereof including, without limitation: (1) the design, construction, management, and licensing of Comanche Peak o: any other aspect thereof, (2) the costs and schedule of construction and completion of Comanche Peak, (3) the reasonableness, prudency, or efficiency of the planning, design, construction, management, and licensing of Comanche Peak, (4) the reasonableness, prudency, or efficiency of the management, procurement, conversion, enrichment, fabrication, shipping, transportation, and storage of the Fuel, (5) the costs incurred in connection with the management, procurement, conversion, enrichment, fabrication, shipping, transportation, and storage of the Fuel, (6) the breach of the JOA and any express or implied warranties arising out of the JOA, (7) any representation, misrepresentation, disclosure, er iun-disclosure in connection with the negotiations, or preceding the execution by Brazos of the JOA, (8) in connection with the performance or nonperformance by TU Electric of its duties, responsibilities or obligations under the JOA as Project Manager or otherwise, (9) the failure of TU Electric to pursue any remedies, either at law or otherwise, that may be, or may have been, available against any and all contractors, subcontractors, suppliers, consultants, vendors, or others with respect to Comanche Peak (including ceparately the Station, Fuel or Transmission Facilities), and (10) on account of anything that has occurred or may have occurred, in whole or in part with respect to Comanche Peak (including separately the Station, Fuel or Transmission Facilities) and the incidents and attributes thereof, and any of the foregoing whether known or unknown.
l l
l l l
ID.
Exceptions to Covenant Not to Sue and Agreement Not to Challenge. Brazos specifically does not covenant not to sue, and specifically does not agree to not assert, chdienge or contest, with regard to:
(a)
Any Subject Claims arising out of or under the Agreement or any of the other agreements or instruments dalivered pursuant to the Agreement.
(b)
Any Subject Claims which could not have been brought in the Pending Litigation and which accrue on or after the Date of Commercial Operation (as that term is defined in the JOA) and which are based upon the acts or omissions of TU Electric or the Project Manager other than acts or omissions in connection with the planning, design or construction (or the management thereof) of Comanche Peak.
(c)
Any defenses which Ecazos has or may have to Subject Claims asserted against Brazos by any persons or parties whomsoever, provided that Brazos may not seek any type of affirmative relief hereunder against TU Electric, TUC, or both, their successors, subsidiaries and affiliates, or its or their respective insurers, agents, servants, employees, officers, directors, shareholders, consultants, attorneys and representatives.
(d)
Any counterclaims which Brazos has or may have against any party other than TU Electric, TUC, or both, their successors, subsidiaries and affiliates, or its or l
their respective insurers, agents, servants, employees, officers, directors, shareholders, consultants, attorneys and representatives, acting in such capacity, l
with respect to any Subject Claims being asserted against Brazos by anyone other than TU Electric, TUC, or both, their successors, subsidiaries and affiliates, or its or their respective insurers, agents, servants, employees, officers, directors, shareholders, consultants, attorneys and representatives.
l (e)
Any proceeding in which TU Electric's rates aFe being determined, provided that Brazos shall not oppose, or assist any third party opposition to, the inclusion in TU Electric's rates of any and all costs related to Comanche Peak.
IV.
Control. To the extent any provision of this Covenant Not to Sue conflicts with any provision in Section 9.2 of the Agreement, this Covenant Not to Sue shall control as to the agreement of the parties.
EXECUTED this the day of
,1988, as duly authorized by an appropriate resolution of its Board of Directors.
BRAZOS ELECTRIC POWER COOPERATIVE, INC.
(Corporate Seal)
By:
ATTEST:
Its:
By:
Its:
l l
l i
l l l
EXHIBIT L RELEASE STATE OF TEX AS S
S COUNTY OF DALLAS S
For and in consideration of the agreements, undertakings, promises, and covenants of Brazos, including without limitation the contemporaneous delivery to TU Electric by Brazos of (1) a Release releasing certain claims which Brazos and any other person or entity, private or governmental, claiming by, through, or under Brazos, including, to the extent it has the standing and right under law to do so, Brazos' Members and customers (and the customers of Brazos' Members and other wholesale customers), have er may have against TU Electric, TUC, or their subsidiaries and affiliates, (2) a Covenant Not To Sue under which Brazos, for itself and on behalf of any person or entity, private or governmental, claiming by, through or under Brazos, including, to the extent it has the standing and right under law to do so, Brazos' Members and customers (and the customers of Brazos' Members and other wholesale customers), covenants not to sue upon certain claims which they have or may have against TU Electric, TUC, or their subsidiaries and affiliates, and (3) an Indemnity Agreement under which Brazos indemnifies TU Electric sgainst certain claims, the adequacy and sufficiency of such consideration being hereby acknowledged and confessed, TU Electric hereby agrees to the following:
1.
Definitions. As used herein, the following terms have the following meanings:
A.
"Agreement" means that certain Agreement dated July 5,1988, by and between Brazos and TU Electric.
B.
drazos" means Brazos Electric Power Cooperative, Inc.
C.
"Comanche Peak" means the nuclear-fueled electric generating facility under construction on certain lands situated in Hood and Somervell Counties, Texas, and consisting of two units having a nominal capacity of 1,150 megawatts each, and related j
properties, and is ths aggregate and combination of the Station, Fuel, and Transmission Facilities, and all other rights and interests associated with or relating thereto.
D.
"Fuel" means the Comanche Peak nuclear fuel, irrespective of chemical and/or physical form, and the rights and interests related thereto.
E.
"JOA" means that certain instrument entitled on the cover page thereof "JOINT OWNERSHIP AGREEMENT BETWEEN DALLAS POWER & LIGHT COMPANY, TEXAS ELECTRIC SERVICE COMPANY, TEXAS POWER & LIGHT COMPANY, TEXAS UTILITIES GENERATING COMPANY, TEXAS MUNICIPAL POWER AGENCY AND BRAZOS ELECTRIC POWER COOPERATIVE, INC. FOR COMANCHE PEAK STEAM ELECTRIC STATION," executed on January 2,1979, together with and as modified by that certain instrument entitled on the cover page thereof "Modification of Joint Ownership Agreement Between Dallas Power & Light Company, Texas Electric Service Company, Texas Power & Light Company, Texas Utilities Generating Company, Texas Municipal Power Agency and Brazos Electric Power Cooperative, Inc.: For Comanche Peak Steam Electric Station," executed on June 1,1979, together with and as amended by (i) the Amendment of Joint Ownership Agreement, executed on December 9,1930, between Dallas Power & Light Company, Texas Electric Service Company, Texas Power &
Light Company, Texas Utilities Generating Company, TMPA, Brazos, and Tex-La, together with and as amended by (ii) the Second Amendment of Joint Ownership Agreement, executed on February 12, 1982, between Dallas Power & Light Company, Texas Electric Service Company, Texas Power & Light Company, Texas Utilities l
l Generating Company, TMP A, Brazos, and Tex-La.
l F.
"Members" means the twenty (20) Texas non-profit electric cooperative corporations that are members of Brazos, as set out in Exhibit C to the Agreement.
G.
"Owners" means collectively TU Electric, Brazos, TMPA and Tex-La, as l
1 owners of Comanche Peak in accordance with the terms of the JOA, or singularly any of such parties.
l
' l l
f m
H.
"Project MGnager" means TU Electric designated and acting as such in accordance (or purportedly in accordance) with the terms of the JOA.
I "Site" means approximately 7,669 acres owned (in fee or other estate or interest) by the Owners, as tenants in common, and located in Hood and Somervell Counties, Texas.
J.
"Station" means the Site, all improvements thereon (including Squaw Creek Lake and Park) and all fixtures and attachments thereto, as well as (i) all personal property thereon and associated therewith or related thereto and owned by the Owners, and (ii) all rights (tangible or intangible), and all easements and other interests of any nature associated therewith or related thereto and owned by the Owners, excluding, however, the Fuel, and the Transmission Facilities.
K.
"Subject Claims" means any and all claims, actions, controversies, causes of action, disputes, demands, and complaints of whatsoever kind or nature and whether known or unknown.
L.
"Tex-La" means Tex-La Electric Cooperative of Texas, Inc.
M.
'TMPA" means Texas Municipal Power Agency.
N.
"Transmission Facilities" means the Comanche Peak - DeCordova 345 kV electrical transmission line approximately 14.4 miles in length, and associated rights-of-way, equipment, fixtures and personal property.
O.
"TUC" means Texas Utilities Company, which is a Texas corporation and the parent of TU Electric.
P.
'TU Electric" means Texas Utilities Electric Company, which is a Texas corporation.
II.
Release. TU Electric, except as set out in paragraph III herein, on behalf of itself, TUC, their subsidiaries and affiliates, and on behalf of any person or entity, private or governmental, claiming by, through or under TU Electric or TUC, including without limitation, to the extent it has the standing and right under law to do so, their customers, -
and on behalf of their respective insurers, agents, servants, employees, officers, directors, consultants, attorneys, and representatives, does hereby waive, release, discharge, renounce, and relinquish any and all Subject Claims relating to Comanche Peak which it has or they have, or may have, whether known or unknown, contingent or absolute, including without limitation those based on common law, whether contract (exp essed or implied, including express or implied warranty) or tort (including, without limitation, intentional tort, negligence or gross negligence, sole, joint, or concurrent) or strict liability or fraud, and those based upon any Federal, State, or local statute, law, order or regulation, including, without limitation, the Atomic Energy Act of 1954, as amended, the regulations of the United States Nuclear Regulatory Commission, the Securities Act of 1933, as amended, or the Securities Act of 1934, as amended, and any rule or regulation under either, the Texas Securities Act (Title 19, Articles 581-1, et seq., V. A.T.S.) and the Texas Deceptive Trade Practices and Consumer Protection Act, against Brazos, its 51 embers and customers (including the customers.I Brazos' 51 embers and other wholesale customers), whether individually or otherwise, and their respective insurers, agents, servants, employees, officers, directors, consultants, attorneys and representatives, past and present, and any and all of their respective successors, subsidiaries, and affiliates, and their respective insurers, agents, servants, employees, officers, directors, members, consultants, attorneys, and representatives, past and present.
III.
Exceptions to Release. TU Electric specifically does not release with regard to:
(a)
Any Subject Claims arising out of or under the Agreement or any other agreement or instrument executed and delivered pursuant to the Agreement.
(b)
Any right or authority to charge Brazos, its 31 embers and customers for any electric power and energy purchased by any of them from TU Electric in accordance with the rates set forth in TU Electric's tariff as same may be approved and in effect from time to time even though said rates may include costs related to
(
Comanche Peak.
(c)
Any defenses which TU Electric has or may have to Subject Claims asserted against TU Electric by any persons or parties whomsoever, provided that TU Electric may not seek any type of affirmative relief hereunder (other than rate relief pursuant to the provisions of the Public Utility Regulatory Act, Article 1446c, V.A.T.S.) against Brazos, its Members and customers (including the customers of Brazos' Members and other wholesale customers), their respective insurers, agents, employees, officers, directors, consultants, attorneys and representatives.
(d)
Any counterclaims which TU Electric has or may have against any party other than Brazos, its Members and customers (including the customers of Brazos' Members and other wholesale customers), their respective insurers, agents, employees, officers, directors, consultants, attorneys and representatives, acting in such capacity (other than in connection with rate relief pursuant to the provisions of the Public Utility Regulatory Act, Article 1446c, V.A.T.S.) with respect to any Subject Claims being asserted against TU Electric by anyone other than Brazos, its Members and customers (including the customers of Brazos' Members and other wholesale customers), individually or otherwise, their respective insurers, agents, employees, officers, directors, consultants, attorneys and representatives.
IV.
Covenant. TU Electric hereby covenants and warrants that it has not assigned any Subject Claims that are hereby released.
V.
Control.
To the extent any provision of this Release conflicts with any provision in Section 9.3 of the Agreement, this Release shall control as to the agreement of the parties.
EXECUTED this the day of
,'1988, as duly authorized by an appropriate resolution of its Board of Directors..
TEXAS UTILITIES ELECTRIC COMPANY
- (Corporate Seal) gy Its:
ATTEST: -
By:
Its:
i l
EXHIBIT M COVENANT NOT TO SUE STATE OF TEX AS S
S COUNTY OF DALLAS S
L For and in consideration of the agreements, undertakings, promises, and covenants of Brazos, including without limitation the contemporaneous delivery to TU Electric by Brazos of (1) a Release releasing certain claims which Brazos and any other person or entity, private or governmental, claiming by, through, or under Brazos, including, to the extent it has the standing and right under law to do so, Brazos' 51 embers and customers (and the customers of Brazos' 51 embers and other wholesale customers), have or may have against TU Electric, TUC, or their subsidiaries and affiliates, (2) a Covenant Not To Sue under which Brazos, for itself and on behalf of any person or entity, private or governmental, claiming by, through or under Brazos, including, to the extent it has the standing and right under law to do so, Brazos' 51 embers end customers (and the customers of Bratos' 51 embers and other wholesale customers), covenants not to sue upon certain claims which they have or may have against TU Electric, TUC, or their subsidiaries and affiliates, rad (3) an Indemnity Agreement under which Brazos indemnifies TU Electric against certain claims, the adequacy and sufficiency of such consideration being hereby acknowledged and confessed, TU Electric hereby agrees to the following:
I.
Definitions. As used herein, the following terms have the following meanings:
A.
"Agreement" means that certain Agreement dated July 5,1988, by and between Brazos and TU Electric.
B.
"Brazos" means Brazos Electric Power Cooperative, Inc.
l C.
"Comanche Peak" means the nuclear-fueled electric generating facility I
under construction on certain lands situated in Hood and Somervell Counties, Texas, and 1
consisting of two units having a nomitial capacity of 1,150 megawatts each, and related l !
l
'^
properties, and is the aggregate and combination of the Station, Fuel, and Transmission Facilities, and all other rights and interests associated with or relating thereto.
D.
"Fuel" means the Comanche Peak nuclear fuel, irrespective of chemical and/or physical form, and the rights and interests related thereto.
3 E.
"JOA" means that certain instrument entitled on the cover page thereof "JOINT OWNERSHIP AGREEMENT BETWEEN DALLAS POWER & LIGHT COMPANY, TEXAS ELECTRIC SERVICE COMPANY, TEXAS POWER & LIGHT COMPANY, TEXAS UTILITIES GENERATING COMPANY, TEXAS MUNICIPAL POWER AGENCY AND BRAZOS ELECTRIC POWER COOPERATIVE, INC. FOR COMANCHE PEAK STEAM ELECTRIC STATION," executed on January 2,1979, together with and as modified by that certain instrument entitled on the cover page thereof "Modification of Joint Ownership Agreement Between Dallas Power & Light Company, Texas Electric Service Company, Texas Power & Light Company, Texas Utilities Generating Company, Texas Municipal Power Agency and Brazos Electric Power Cooperative, Inc.: For Comanche Peak Steam Electric Station," executed on June 1,1979, together with and as amended by (i) the Amendment of Joint Ownership Agreement, executed on December 9,1980, between Dallas Power & Light Company, Texas Electric Service Company, Texas Power &
Light Company, Texas Utilities Generating Company, TMPA, Brazos, and Tex-La, together with and as amended by (ii) the %cond Amendment of Joint Ownership Agreement, executed on February 12, 1982, between Dallas Power & Light Company, Texas Electric Service Company, Texas Power & Light Company, Texas Utilities Generating Company, TMP A, Brazos, and Tex-La.
F.
"Members" means the twenty (20) Texas non-profit electric cooperative corporations that are members of Brazos, as set out in Exhibit C to the Agreement.
G.
"Owners" means collectively TU Electric, Brazos, TMPA and Tex-La, as owners of Comanche Peak in accordance with the terms of the JOA, or singularly any of such parties.
[
H.
"Project Manager" means TU Electric designated and acting as such in accordance (or purportedly in accordance) with the terms of the JOA.
L "Site" means approximately 7,669 acres owned (in fee or other estate or interest) by the Owners, as tenants in common, and located in Hood and. Somervell Counties, Texas.
J.
"Station" means the Site, all improvements thereon (including Squaw Creek Lake and Park) and all fixtures and attachments thereto, as well as (i) all personal property thereon and associated therewith or related thereto and owned by the Owners, and (ii) all rights (tangible or intangible), and all easements and other in'. rests of any nature associated therewith or related thereto and owned by the Owners, excluding, however, the Fuel, and the Transmission Facilities.
K.
"Subject Claims" means any and all claims, actions, controversies, causes of action, disputes, demands, and complaints of whatsoever kind or nature and whether known or unknown.
L.
"Tex-La" means Tex-La Electric Cogerative of Texas, Inc.
M.
"TMP A" means Texas Municipal Power Agency.
N.
"Transmission Facilities" means the Comanche Peak - DeCordova 345 kV electrical transmission line approximately 14.4 miles in length, and associated rights-of-way, equipment, fixtures and personal property.
O.
"TUC" means Texas Utilities Company, which is a Texas corporation and the parent of TU Electric.
P.
"TU Electric" means Texas Utilities Electric Company, which is a Texas corpora tion.
IL Covenant Not to Sue and Agreement Not to Challenge. TU Electric, except as provided in paragraph 111 hereof, for itself and on behalf of TUC and their subsidiaries and affiliates and any person or entity, private or governmental, claiming by, through or under TU Electric or TUC, including without limitation, to the extent it has the standing and right under law to do so, their customers, and their respective insurers, agents, servants, employees, officers, directors, consultants, attorners and representatives, does hereby I
covenant and agree:
(a)
That it and they, individually, collectively, or in any combination, will forebear from asserting against, and never sue for or look for satisfaction with respect to, Brazos, its Members, and their respective insurers, agents, servants, employees,
- officers, directors,
- members, consultants, attorneys, and representatives, past and present, and any and all of their respective successors, subsidiaries, and affiliates and their respective insurers, agents, servan ts, employees, officers, directors, shareholders, members, consultants, attorneys, and representatives, past and present, with respect to any Subject Claims (including without limitation any Subject Claim agelnat any contractor, subcon tractor, supplier, consultant, vendor or other person, firm or entity in privity in any manner with any of them which may therefor or as a result thereof have a right over or Subject Claim in subrogation) in any manner involving,.concerning, arising out of, or relating to, the design, construction, management, and licensing of, or any other matter relating to, Comanche Peak, and the management, procurement, conversion, enrichment, fabrication, shipping, transportation, and storage of the Fuel.
(b) nat neither it nor thcy, individually, collectively, or in any combination, will directly or indirectly challenge, contest or assert any complaint against Brazos or its Members in any court or before any administrative agency or body or in any other forum whatsoever with respect to, or in any manner involving, concerning, arising out of, or relating to, Comanche Peak and the JOA and in connection with the performance or nonperformance by Brazos of its. duties, responsibilities or obligations under the JOA, and on account of anything that has occurred or may have occurred, in whole or in part, with respect to Comanche Peak (including separately the Station, Fuel or Transmission Facilities) and the incidents and attributes thereof, and any of the foregoing whether known or unknown.
Exceptions to Covenant Not to Sue and Agreemen t Not to Challenge.
TU Electric specifically does not covenant not to sue, and specifically does not agree to not assert, challenge or contest, with regard to:
(a)
Any Subject Claims arising out of or under the Agreement or any other agreement or instrument executed and delivered pursuant to the Agreement.
(b)
Any right or authority to charge Brazos, its Members and customers for any electric power and energy purchased by any of them from TU Electric in accordance with the rates set forth in TU Electric's tariff as same may be approved and in effect from time to time even though said rates may include costs related to Comanche Peak.
(c)
Any defenses which TU Electric has or may have to Subject Claims asserted against TU Electric by any persons or parties whomsoever, provided that TU Electric may not seek any type of affirmative relief hereunder (other than rate relief pursuant to the provisions of the Public Utility Regulatory Act, Article 1446c, V. A.T.S.) against Brazos, its Members and customers (including the customers of Brazos' Members and other wholesale customers), their respective insurers, agents, employees, officers, directors, consultants, attorneys and representatives.
(d)
Any counterclaims which TU Electric has or may have against any party other than Brazos, its Members and customers (including the customers of Brazos' Members and other wholesale customers), their respective insurers, agen ts, employees, officers, directors, consultants, attorneys and representatives, acting in such capacity (other than in connection with rate relief pursuant to the provisions of the Public Utility Regulatory Act, Article 1446c, V. A.T.S.) with respect to any Subject Claims being asserted against TU Electric by anyone other than Brazos, its Members and customers (including the customers of Brazos' Members and other l l
4 wholesale customers), Individually or otherwise, their respective insurers, agents,
]
employees, officers, directors, consultants, attorneys and representatives.
IV.
Control To the extent any provision of this Covenant Not to Sue conflicts with any provision in Section 9.4 of the Agreement, this Covenant Not to Sue shall control as to the agreement of the parties.
' EXECUTED this the day of
,1988, as duly authorized by an appropriate resolution of its Board of Directors.
TEXAS UTILITIES ELECTRIC COMPANY (Corporate Seal)
By:
Its:
ATTEST:
e
.By:
Its:-
l l
l l
l l
l i !
{
1 EXHIBIT N i
ASSUMPTION AND INDEMNITY AGREEMENT STATE OF TEX AS S
S COUNTY OF DALLAS S
For and in concideration of the agreements, undertakings, promises, and covenants of Brazos as set forth in the Agreement, including without limitation the contemporaneous delivery to TU Electric by Brazos of (1) a Release releasing certain claims which Brazos and any other person or entity, private or governmental, claiming by, through, or under Brazos, including, to the extent it has the standing and right under law to do so, Brazos' Members and customers (and the customers of Brazos' Members and other wholesale customers), have or may have against TU Electric, TUC and their subsidiaries and affiliates, (2) a Covenant Not To Sue under which Brazos, for itself and on behalf of any person or entity, private or governmental, claiming by, through or under Brazos, including, te the extent it has the standing and right under law to do so, Brazos' Members and customers (and the customers of Brazos' Members and other wholesale customers), covenants not to sue upon certain claims which they have or may have against TU Electric, TUC and their subsidiaries and affiliates, and (3) an Indemnity Agreement under which Brazos indemnifies TU Electric against certain claims, the adequacy and sufficiency of such consideration being hereby acknowledged and confessed, TU Electric hereby agrees to the following:
L Definitions. As used herein, the following terms have the following meanings:
A.
"Agreement" means that certain Agreement dated July 5,1988, by and between Brazos and TU Electric.
B.
"Brazos" means Brazos Electric Power Cooperative, Inc.
C.
"Comanche Peak" means the nuclear-fueled electric generating facility under construction on certain lands situated in Hood and Somervell Counties, Texas, and consisting of two units having a nominal capacity of 1,150 megawatts each, and related properties, and is the aggregate and combination of the Station, Fuel, and Transmission Facilities, and all other rights and interests associated with or relating thereto.
D.
"Fuel" means the Comanche Peak nuclear fuel, irrespective of chemical and/or physical form, snd the rights and interests related thereto.
1 E.
"JOA" means that certain instrument entitled on the cover page thereof "JOINT OWNERSHIP AGREEMENT BETWEEN DALLAS POWER & LIGHT COMPANY, TEXAS ELECTRIC SERVICE COMPANY, TEXAS POWER & LIGHT COMPANY, TEXAS UTILITIES GENERATING COMPANY, TEXAS MUNICIPAL POWER AGENCY AND BRAZOS ELECTRIC POWER COOPERATIVE, INC. FOR COMANCHE PEAR STEAM ELECTRIC STATION," executed on January 2,1979, together with and as modified by that certain instrument entitled on the cover page thereof "Modification of Joint Ownership Agreement Between Dallas Power & Light Company, Texas Electric Service Company, Texas Power & Light Company, Texas Utilities Generating Company, Texas Municipal Power Agency and Brazos Electric Power Cooperative, Inc.: For Comanche Peak Steam Electric Station," executed on June 1,1979, together with and as amended by (i) the Amendment of Joint Owner. ship Agreement, executed on December S,1980, between Dallas Power & Light Company, Texas Electric Service Company, Texas Power &
Light Company, Texas Utilities Generating Company, TMPA, Brazos, and Tex La, together with and as amended by (ii) the Second Amendment of Joint Ownership Agreement, executed on February 12, 1982, between Dallas Power & Light Company, Texas Electric Service Company, Texas Power & Light Company, Texas Utilities Generating Company, TMPA, Brazos, and Tex-La.
F.
"Members" means the twenty (20) Texas non-profit electric cooperative corporations that are members of Brazos, as set out in Exhibit C to the Agreement.
G.
"Owners" means collectively TU Electric, Brazos, TMPA and Tex-La, as owners of Comanche Peak in accordance with the terms of the JOA, or singularly any of such parties. _.
H.
"Pending Litigation" means Cause No. 399,482 - Brazos Electric Power l
Cooperative, Inc. v. Texas Utilities Company, Texas Utilities Electric Company, Texas Utilities Mining Company, and Texas Utilities Services Incorporated, - in the District Court of Travis County, Texas, 345th Judicial District; Cause No. 399,336 -Tex-La Electric Cooperative of Texas, Inc., and Texas Municipal Power Agency v. Texas Utilities and Texas Utilities Electric Company, - in the District Court of Travis County, Texas, 98th Judicial District; and Cause No. 86-6809-A - Texas Utilities Electric Company v.
Tex-La Electric Cooperative of Texas, Inc., et al. - in the District Court of Dallas County, Texas,14th Judicial District.
I.
"Project Manager" means TU Electric designated and acting as such in accordance (or purportedly in accordance) with the terms of the JOA.
J.
"Site" means approximately 7,669 acres owned (in fee or other estate or interest) by the Owners, as tenants in common, and located in Hood and Somervell Counties, Texas.
K.
"Station" means the Site, all improvements thereon (including Squaw Creek Lake and Park) and all fixtures and attachments thereto, as well as (i) all personal property thereon and associated therewith or related thereto and owned by the Owners, and (ii) all rights (tangible or intangible), and all easements and other interests of any nature associated therewith or related thereto and owned by the Owners, excluding, however, the Fuel, and the Transmission Facilities.
L.
"Subject Claims" means any and all claims, actions, controversies, causes of action, disputes, demands, and complaints of whatsoever kind or nature and whether known or unknown.
M.
' Tex-La" means Tex-La Electric Cooperative of Texas, Inc.
N.
'TMPA" means Texas Municipal Power Agency.
T O.
"Transmission Facilities" mean2 the Comanche Peak - DeCordova 345 kV electrical transmission line approximately 14.4 miles in length, and associated rights-of-way, equipment, fixtures and personal property.
P.
"TUC" means Texas Utilities Company, which is a Texas corporation and the parent of TU Electric.
Q.
"TU Electric" means Texas Utilities Electric Company, which is a Texas corporation.
D.
Assumption of Liabilities. TU Electric assumes all the duties, responsibilities, liabilities, and obligations of Brazos under the JOA and under the Atomic Energy Act of 1954, as amended, and the rules and regulations of the Nuclear Regulatory Commission thereunder pertaining to Comanche Peak.
III.
Indemnification. TU Electric further agrees to indemnify, hold harmless, and defend Brazos and its Members and customers (including the customers of Brazos' Members and other wholesale customers) from and against any and al111 ability, loss, cost, damage, or expense (including without limitation reasonable attorneys' fees, court costs, costs of appeal, supersedeas bonds, and costs of investigating, defending, attempting to settle, and, if TU Electric approves the settlement, settling any claim, demand, or cause of action) arising out of the following:
(a) all Subject Claims (INCLUDING WITHOUT LIMITATION SUBJECT CLAIMS PREDICATED UPON THE ALLEGED ACTUAL OR IMPUTED NEGLIGENCE, GROSS NEGLIGENCE OR STRICT LIABILITY OF BRAZOS AND ITS MEMBERS) arising out of or connected with the location, planning, design, construction, ifcensing, condition, maintenance, operation, and decommissioning of Comanche Peak, including without limitation all claims asserted or which might have been or might hereafter be asserted in Cause No. 83-29889 in District Court of Harris County, Texas, 215th Judicial District, removed in April,1988, to the United States District Court for the Southern District of Texas, Houston Division, numbered Civil Action No.
H-88 -140 9, and styled Charles A. Atchison, et al v.
Erown & Root, Inc., et al., and in Cause No. 2692 in the District Court of Somervell County, Texas,18th Judicial District, and styled _Clementine Mathews and her husband Dolphin Mathews v. Comanche Peak Electric Steam Station, et al.
(b) all Subject Claims arising out of any alleged act (including willful or intentional acts) of the said Project Manager, its predecessors,. agents, servants, employees or independent contractors acting for or on behalf of the Project Manager or its predecessors.
IV.
Exceptions to Indemnification.
Without limitation, TU Electric specifically does not agree to indemnify Brazos, its Members or customers in connection with the following (a)
Any Subject Claims which may be asserted by Brazos' Members, customers, the customers of Brazos' Members or other wholesale customers, or creditors, acting in such capacity, which relate to Brazos' decision to participate as an Owner of Comanche Peak, or which relate to Brazos' decision to become a party-to the JOA, or which relate to Brazo4' involvement in the Pending Litigation, cc which relate to Brazos' execution of the Agreement and participation in the transactions provided for in the Agreement.
(b)
Any Subject Claims which may be asserted by Tex-IA TMPA, or others (except TU Electric, TUC, and their affiliates, subsidiaries, successors and assigns, and except for their insurers, agents, servants, employees, officers, directors, shareholders, con:,ultants, attorneys, and representatives, past and presant, acting in such capacities) which relate to Brazos' decision to become a party to the JOA, or which arise by reason of Brazos' participation in the Pending Litigation, or which arise by reason of Brazos' execution of the Agreement and participation in the transactions provided for in the Agreement.
l
J (c)
Any liability, cost or expense pursuant to TU Electric's rates set forth in
[
TU Electric's tariff as same may be approved and in effect from time to time, even though said rates may include costs related to Comanche Peak, for electric power
/
and energy purchased by Brazos, its Members and customers from TU Electric.
(d)
Any Subject Claims relating to Brazos' performance under the
- Agreement or any other agreement or instrument executed or delivered pursuant to the Agreement.
V.
Assumption of Defense.
TU Electric will, in addition to providing the foregoing indemnity, assume the defense of Brazos and its Members and customers (including the customers of Brazos' Members and other wholesale customers) in any tribunal where any claim set out in paragraph III, and not excepted in paragraph IV, is asserted.
Provided, however, that, in the event Brazos or any of its Members or customers (including the customers of Brazos' Members or other wholesale customers) receive notice of the commencement of any action or proceeding or the assertion of any claim with respect to which any of them may be entitled to indemnification hereunder or under the Agreement, the party receiving such notice shall give TU Electric written notice within ten (10) calendar days of such r.otice (the failure to so notify will not relieve TU Electric of its obligations hereunder except to the extent it has been prejudiced by a failure to so notify) and shall give TU Electric the opportunity to participate in the defense and in any settlement negotiations with respect thereto, and will cooperate with TU Electric in all reasonable respects and make available to TU Electric all records, evidence. and personnel for consultation and testimony reasonably requested by TU Electric in connection therewith. The settlement of any such action, proceeding or claim without the prior written approval of TU Electric shall relieve TU Electric of any obligations to the indemnified party in respect of the subject matter of the settlement of such action, proceeding, or claim.
. VI.
Control.
To the extent any provision of this Assumption and Indamnity
. Agreement conflicts with any provision in Section 9.5 of the Agreement, this Assumption and Indemnity Agreement shall control as to the agreement of the parties.
EXECUTED this the day of
,1988, as duly authorized by an appropriate resolution of its Board of Directors.
TEXAS UTILITIES ELECTRIC COMPANY (Corporate Seal)
By:
ATTEST:
Its:
By:
Its:
l l
l l
l l
j l./
EXHIBIT O INDEMNITY AGREEMENT STATE OF TEX AS S
S COUNTY OF MC LENNAN S For and in consideration of the agreenients, undertakings, promises, and covenants of TU Electric, TUC and their subsidiaries, and affiliates, set forth in the Agreement, including without Umitation t!.e (1) contemporaneous delivery to Brazos by TU Electric of a Release releasing certain claims which TU Electric, TUC, and their subsidiaries and affiliates have or may have against Brazos, (2) a Covenant Not to Sue under which TU Electric, for itself and on behalf of TUC, and their subsidiaries and affiliates and on behalf of any person or entity, private or governmental, claiming by, through or under TU Electric or TUC, covenants not to sue upon certain claims which they may have against Brazos or its Members, (3) the contemporaneous delivery te Brazos by TU Electric of an Assumption and Indemnity Agreement under which TU Electric assumes certain duties, responsibilities, liabilities, and obligations of Brazos and agrees to indemnify Brazos against certain claims and (4) the payment by TU Electric to Brazos of the Signing Payment and the Closing Payment (as those terms are defined in the Agreement), the adequacy and sufficiency of such consideration being hereby acknowledged and confessed, Brazos hereby agrees to the following:
1.
Definitions. As used herein, the following terms have the following meanings:
A.
"Agreement" means that certain Agreement dated July 5,1988, by and 1
between Brazos and TU Electric.
B.
"Brazos" means Brazos Electric Power Cooperative, Inc.
C.
"Comanche Peak" means the nuclear-fueled electric generating facility under construction on certain lands situated in Hood and Somervell Counties, Texas, and consisting of two units having a nominal capacity of 1,150 megawatts each, and related 1
properties, and is the aggregate and combination of the Station, Fuel, and Transmission Facilities, and all other rights and interests associated with or relating thereto.
D.
"Fuel" means the Comanche Peak nuclear fuel, irrespective of chemical and/or physical form, and the rights and interests related thereto.
E.
"JOA" means that certain instrument entitled on the cover page thereof "JOINT OWNERSHIP AGREEMENT BETWEEN DALLAS POWER & LIGHT COMPANY, TEXAS ELECTRIC SERVICE COMPANY, TEXAS POWER & LIGHT COMPANY, TEXAS UTILITIES GENERATING COMPANY, TEXAS MUNICIPAL POWER AGENCY AND BRAZOS ELECTRIC POWER COOPERATIVE, INC. FOR COMANCHE PEAK STEAM ELECTRIC STATION," executed on January 2,1979, together with and as modified by that certain instrument entitled on the cover page thereof "Modification of Joint Ownership Agreement Between Dallas Power & Light Company, Texas Electric Service Company, Texas Power & Light Company, Texas Utilities Generating Company, Texas Municipal Power Agency and Brazos Electric Power Cooperative, Inc.: For Comancho Peak Steam Electric Station," executed on June 1,1979, together with and as amended by (i) the Amendment of Joint Ownership Agreement, executed on December 9,1980, between Dallas Power & Light Company, Texas Electric Service Company, Texas Power &
Light Company, Texas Utilities Generating Company, TMPA, Brazos, and Tex-La, together with and as amended by (ii) the Second Amendment of Joint Ownership Agreement, executed on February 12, 1982, between Dallas Power & Light Company, Texas Electric Service Company, Texas Power & Light Company, Texas Utilities Generating Company, TMPA, Brazos, and Tex-La.
F.
"Members" means the twenty (20) Texas non-profit electric cooperative corporations that are members of Brazos, as set out in Exhibit C to the Agreement.
G.
"Owners" means collectively TU Electric, Brazos, TMPA and Tex-La, as owners of Comanche Peak in accordance with the terms of the JOA, or singularly any of such parties. -
H.
"Pending Litigation" means Cause No. 399,482 - Brazos Electric Power Cooperative, Inc. v. Texas Utilities Company, Texas Utilities Electric Company, Texas Utilities $11ning Company, and Texas Utilities Services Incorporated, - in the District Court of Travis County, Texas, 345th Judicial District; Cause No. 399,336 -Tex-La Electric Cooperative of Texas, Inc., and Texas Stunicipal Power Agency v. Texas Utilitiec and Texas Utilities Electric Company, - in the District Court of Travis County, Texas, 98th Judicial District; and Cause No. 86-6809-A - Texas Utilities Electric Company v.
Tex-La Electric Cooperative of Texas, Inc., et al. - in the District Court of Dallas County, Texas,14th Judicial District.
I.
"Project 51anager" means TU Electric designated and acting as such in accordance (or purportedly in accordance) with the terms of the JOA.
l J.
"Site" means approximately 7,869 acres owned (in fee or other estate or interest) by the Owners, as tenants in common, and located in Hood and Somervell Counties, Texas.
K.
"Station" means the Site, all improvements thereon (including Squaw l
Creek Lake and Park) and all fixtures and attachments thereto, as well as (i) all personal property thereon and associated therewith or related thereto and owned by the Owners, and (ii) all rights (tangible or intangible), and all easements and other interests of any nature associated therewith or related thereto and owned by the Owners, excluding, however, the Fuel, and the Transmission Facilities.
L.
"Subject Claims" means any and an claims, actions, controversies, causes of action, disputes, domands, and complaints of whatsoever kind or nature and whether known or unknown.
51.
"Tex-La" means Tex-La Electric Cooperative of Texas, Inc.
N.
"T51PA" means Texas $1unicipal Power Agency.
3
0.
"Transmission Facilities" means the Comenche Peak - DeCordova 345 kV electrical transmission line approximately 14.4 miles in length, and associated rights-of-way, equipment, fixtures and personal property.
P.
"TUC" means Texas Utilities Company, which is a Texas corporation and the parent of TU Electric.
Q.
"TU Electric" means Texas Utilities Electric Company, which is a Texas corporation.
II.
Indemnification.
Brazos hereby agrees to indemnify, hold harmless, and defend TU Electric, TUC, and their subsidiaries, affiliates and customers, from and against any and all liability, loss, cost, damage, or expense (including without limitation reasonable attorneys' fees, court costs, cost of appeal, supersedeas bonds, and costs of investigating, defending, attempting to settle, and, if Brazos approves the settlement, settling any claim, demand or cause of action) arising out of Subject Claims of Brazos, or anyone related to or affiliated with Brazos, including Brazos' 51 embers, customers (including the customers of Brazos' 51 embers and other wholesale customers) and creditors, acting in such capacity, relating to (1) Brazos' execution of, or participation in, the JOA, (2) Brazos' execution of the Agreement and participation in the transactions provided therein, and (3) Brazos' activities as an Owner separate and apart from joint activities with all other Owners or activities by, through, and under the Project $1& nager.
Further, Brazos hereby agrees to indemnity, hold harmless and defend TU Electric, TUC, and their subsidiaries, affiliates and customers, from and against any and all liability, loss, cost, damage, or expense (including witnout limitation reasonable attorneys' fees, court costs, cost of appeal, supersedeas bonds, and costs of investigating, defending, attempting to settle, and, if Brazos approves the settlement, settling any claim, demand or cause of action) arising out of Subject Claims of Brazos, or anyone related to or affiliated with Brazos, including Brazos' 51 embers and, to the extent they are acting in such capacity, Brazos' customers (including the customers of Brazos' 51 embers and other wholesale l _
customers) and creditors, with respect to, or in any manner involving, concerning, aric'-~
out of, or relating to: (1) the acts or omissions of TU Electric or the Project Manager referred to er in question in the Pending Litigation or which could have been brought into question in the Pending Litigation, INCLUDING WITHOUT LIMITATION SUBJECT CLAIMS BASED UPON THE NEGLIGENCE OR GROSS NEGLIGENCE, SOLE, rah
- OR CONCURRENT, OF TU ELECTRIC OR THE PROJECT MANAGER, and (2) ti.u mets or omissions of TU Electric or the Project Manager with respect to Comanche Peak that occur, in whole or in part, prior to the Date of Commercial Operation (a; said term is defined in the Joint Ownership Agreem ent), INCLUDING WITHOUT LIMITATION SUBJECT CLAIMS BASED UPON THE NEGLIGENCE OR GROSS NEGLIGENCE, SOLE, JOINT OR CONCURRENT, OF TU ELECTRIC OR THE PROJECT MANAGER.
IIL Exceptions to Indemnification.
Without limitation, Brazos specifically does not agree to indemnify TU Electric, TUC, and their subsidiaries, affiliates and customers in connection with the following:
(a)
Any Subject Claims which may be asserted by TUC's or TU Electric's shareholders, customers or creditors, acting in such capacity, which relate to TU Electric's decision to become a party to the JOA, or which relate to TU Electric's involvement in the Pending Litigation, or which relate to TU Electric's execution of the Agreement and participation by TU Electric and TUC in the transactions provided for in the Agreement.
(b)
Any Subject Claims which may be asserted by Tex-La, TMPA, or others (except Brazos, its Members and their affiliates, suosidiaries, successors and assigns, and except for their insurers, agents, servants, l
employees, officers, directors,
- members, consultants, attorneys, and i
l representatives, past and present, acting in such capacities) which relate to TU Electric's decision to become a party to the JOA, or which arise by reason of TU Electric's participation in the Pending Litigation, or which arise by
( l l
~
A reason of TU Electric's execution of the Agreement and participation by TU Electric and TUC in the transactions provided for in the Agreement.
(c)
Any liability, cost or expense pursuent to 'Brazos' rates set forth in Brazos' tariff as same may be approved and in effect from time to time, even though said rates may include costs related to Comanche Peak, tc.* electric power and energy purchased by TU Electric from Brazos.
(d)
Any Subject Claims relating to TU Electric's or TUC's performance under the Agreement or any other agreement or instrument executed and delivered pursuant to the Agreement.
IV.
Assumption of Defense. Brazos will, in addition to providing the foregoing indemnities, assume the defense of TU Electric, TUC, and their subsidiaries, affiliates and customers, in any tribunal where any claim set out in paragraph II, and not excepted in paragraph 11!, is asserted. P ovided, however, that in the event TU Electric, TUC, or their su%idiaries, affiliates or customers, receive notice of the commencement of any action or proceeding or the assertion of any claim with respect to which any of them may be entitled to indemnification hereunder or under the Agreement, the party receiving such notice shall give Braz,G written notice within ten (10) calendar days of receiving such notice (the failure to so notify will not relieve Brazos of its obligations hereunder except to the extent Brazos has been prejudiced by a failure to so notify) and the opportunity to participate in the defense and in any settlement negotiations with respect thereto, and will cooperate with Brazos in all reasonable respects and make available to Brazos all records, evidence, and personnel for consultation and testimony reasonably requested by Brazos in connection therewith. The settlement of any such action, proceeding, or claim without the prior written approval of Brazos shall relieve Brazos of any obligations to the t
j indemnified party in respect of the subject matter of the settlement of such action, proceeding, or claim.
l l
l i
T Y.
Control. To the extent any provision of this Indamnity Agreement conflicts with any provision of Section 9.5 of the Agreement, this Indemnity Agreement sha))
control as to the agreement of the parties.
EXECUTED this the day of
,1988, as duly authorized by an appropriate resolution of its Board of Directors.
I.
BRAZOS ELECTRIC POWER i
COOPER ATIVE, INC.
(Corporate Seal)
By:
ATTEST:
Its:
4 By:
Its:
t J
y-..
l.
i i
l l i l
_. -.. -.. -,