ML20198C096

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Suppl 1 to Amend 57 to 730330 Application for Ols,Consisting of 860407 Agreement of Purchase & Sale Between Fitchburg Gas & Electric & Eastern Utils Assoc (Eua) Documenting Partial Transfer of CPPR-135 & CPPR-136.Certificate of Svc Encl
ML20198C096
Person / Time
Site: Seabrook  NextEra Energy icon.png
Issue date: 05/20/1986
From: Ritsher J
PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY
To:
NRC
References
NUDOCS 8605220215
Download: ML20198C096 (18)


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ROPES & GRAY 22S FRANKLIN STREET BOSTON, MASSACHUSETTS O2ilO TELEX numeER 94oSi9 ROPGRALoR BSN IN WASHINGTON TELER NUMBER 95t973 ROPES GRAV B5N B001 TWENTV SECONO STREET, N.W T E LECOPIE RS: (617) 423-2 377 WASHINGTON, D.C. 20037 (617) 423-7 0 41 (202) 429 1600 INTERN AfiuteAL:(617) 423 6905 TELECOPIER (202) 429-1629 I

May 20, 1986 United States Nuclear Regulatory Commission Directorate of Licensing Office of Regulation Washington, D. C. 20045 Attention: Director Re: Supplement No. 1 to Amendment No. 57 to License Application Dated March 30, 1973 (Docket Nos. 50-443 & 50-444) and Request for Partial Transfer of Construction Permits Nos. CPPR-135 and CPPR-136 Gentlemen:

Pursuant to the Atomic Energy Act of 1954, as amended, and the Commission's Rules and Regulations thereunder, Amendment 57 to the above License Application as filed on March 26, 1986, the undersigned, as counsel for the licensees named in the above Construction Permits, hereby supplements the information supplied in Amendment 57 by submitting twenty-two copies of the Agreement of Purchase and Sale, dated April 7, 1986, between Fitchburg Gas and Electric Light Company and Eastern Utilities Associates.

Mr Ex4 8605220215 DR 860520 i ADOCK 05000443 80!

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Ropts & GRAY This agreement was referred to in Paragraph 1(xi) of Amendment 57.

This filing completes the Amendment. If you have any further questions, please contact the undersigned.

Respectfully submitted, By + 4 4 Joh A. Ritsher, counsel fo the licensees i

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CERTIFICATE OF SERVICE I, John A. Ritsher, Jr., one of the attorneys for the Applicents herein, hereby certify that on May 20, 1986, I made service of the within document by mailing copies thereof, postage prepaid, to:

Administrative Judge Helen Hoyt Stephen E. Morrill, Esquire Chairperson Attorney General Atomic Safety and Licensing George Dana Bisbee, Esquire Board Panel Assistant Attorney General U.S. Nuclear Regulatory Office of the Attorney General Commission 25 Capitol Street Washington, DC 20555 Concord, NH 03301-6397 Dr. Emmeth A. Luebke Dr. Jerry Harbour Atomic Safety and Licensing Atomic Safety and Licensing Board Panel Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, DC 20555 Wasnington, DC 20555 Robert Carrigg, Chairman Richard A. Hampe, Esquire Board of Selectmen Hampe and McNicholas Town Office 35 Pleasant Street Atlantic Avenue Concord, NH 03301 North Hampton, NH 03862 4

Diane Curran, Esquire Sherwin E. Turk, Esquire Harmon & Weiss Office of the Executive Legal Suite 430 Director 2001 S Street, N.W. U.S. Nuclear Regulatory Washington, DC 20009 Commission Washington, DC 20555 Atomic Safety and r.icensing Robert A. Backus, Esquire Appeal Board Panel Backus, Meyer & Solomon U.S. Nuclear Regulatory 116 Lowell Street Commission P.O. Box 516 Washington, DC 20555 Manchester, NH 03105 Atomic Safety and Licensing Mr. Ed Thomas Board Panel FEMA, Region I U.S. Nuclear Regulatory 442 John W. McCormack Post Commission Office and Court House Washington, DC 20555 Post Office Square Boston, MA 02109

Paul McEachern, Esquire Carol S. Sneider, Esquire Matthew T. Brock, Esquire Assistant Attorney General Shaines & McEachern Department of the Attorney General 25 Maplewood Avenue One Ashburton Place, 19th Floor P.O. Box 360 Boston, MA 02108 Portsmouth, NH 03801 Gary W. Holmes, Esquire Mr. Peter J. Matthews Holmes & Ells Mayor 47 Winnacunnet Road City Hall Hampton, NH 03841 Newburyport, MA 01950 Mrs. Sandra Gavutis Mr. Calvin A. Canney Chairman, Board of Selectmen City Manager RFD 1 - Box 1154 City Hall Kensington, NH 03827 126 Daniel Street Portsmouth, NH 03801 Senator Gordon J. Humphrey Mr. Angie Machiros U.S. Senate Chairman of the Washington, DC 20510 Board of Selectmen (Attn: Tom Burack) Town of Newbury Newbury, MA 01950 Senator Gordon J. Humphrey Mr. J. P. Nadeau 1 Pillsbury Street Selectmen's Office Concord, NH 03301 10 Central Road (Attn: Herb Boynton) Rye, NH 03870 Mr. Thomas F. Powers, III Mr. William S. Lord Town Manager Board of Selectmen Town of Exeter Town Hall 10 Front Street Friend Street Exeter, NH 03833 Amesbury, MA 01913 H. Joseph Flynn, Esquire Brentwood Board of Selectmen Office of General Counsel RFD Dalton Road Federal Emergency Management Brentwood, NH 03833 Agency 500 C Street, S.W.

Washington, DC 20472 Philip Ahrens, Esquire Assistant Attorney General Department of the Attorney General Augusta, ME 04333

, John A. Ritsher i

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. F AGREEMENT OF PURCHASE AND-SALE Agreement of Purchase and Sale made this 7th day of April 1986 by and between Fitchburg Gas and Electric Light Company, a Massachusetts corporation (" Seller"), and Eastern Utilities Associates, a Massachusetts trust with transferable shares

("EUA"). i WHEREAS, Seller owns a 0.86519% undivided joint ownership -

interest in the Seabrook Project under the Seabrook Agreement as those terms are hereinafter defined; and WHEREAS, EUA Power Corporation, a New Hampshire corporation

(" Purchaser"), which is to be wholly-owned by EUA, has been organized for the purpose, among others, of acquiring Seller's undivided joint ownership interest in said Seabrook Project; and WHEREAS, Seller and EUA desire that Purchaser purchase seller's aforesaid ownership interest on terms and conditions set forth herein.

NOW, THEREFORE, in consideration of the premises and of the mutual covenants set forth herein and for other good and valu-able consideration, receipt of which is hereby acknowledged, Seller and EUA, on behalf of itself and Purchaser, hereby agree as follows, EUA hereby undertaking for itself only such obliga-tions as are specifically designated herein as obligations of EUA.

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l SECTION 1: DEFINITIONS.

As used herein:

1.1.

"Seabrook Project" shall mean the nuclear power facilities located in Seabrook, New Hampshire, including Seabrook Unit No. 1 and Seabrook Unit No. 2, and all nuclear fuel, real estate, personal property, contracts, rights, licen- 1 ses, choses and intangibles connected therewith.

1.2.

" Seller's Ownership Share" shall mean all of Seller's 0.86519% undivided ownership interest and rights in the Seabrook Project and in the Transmission Support Agreement (as' defined in Section 1.6 hereof) including the right to sell tax-exempt securities relating to the Seabrook Project, ,and all of Seller's interest and rights in resolutions previously adop-ted authorizing the sale of such tax exempt securities.

1.3.

"Seabrook Agreement" shall mean the Agreement for Joint Ownership, Construction and Operation of New Hampshire Nuclear Units, dated as of May 1, 1973, as amended from time to time to Closing.

1.4.

" Owners" shall mean all of the entities which jointly own undivided interests in all of the Seabrook Project.

1.5.

" Final Order" shall mean an order which has become final by expiration of the period for appeal or for rehearing or reconsideration, with no appeal or motion for rehearing or reconsideration having been filed: or if any appeal or motion for rehearing or reconsideration has been filed, when such appeal is not permitted by applicable law or such appeal or motion has been denied, dismissed or determined.

e I l 1.6. " Transmission Support Agreement" shall mean the Transmission Support Agreement among the owners, dated F.ay 1, 1973, as amended from time to time to Closing.

SECTION 2: CLOSING: CONSIDERATION; DOCUMENTATION 2.1. At the closing, as defined in Section 2.5, Seller shall sell, assign, transfer, deliver and convey to Purchaser, and Purchaser shall purchase from Seller, all of Seller's right, title and interest in and to seller's Ownership Share.

Seller's ownership Share shall be conveyed without warranty of any kind, on an "as is, where is" basis, free and clear of all material liens, security interests, charges and encumbrances and all claims of all persons and parties, of any kind whatso-ever, except for (i) claims for unpaid taxes in an~amodnt not exceeding $50,000 and (ii) such liens, security interests and encumbrances existing on the interests of all of the Owners of the Seabrook Project, excluding expressly from said conveyance only Seller's causes of action, if any, existing at the time of closing against parties to contracts and agreements relating to the Seabrook Project, including without limitation, Owners, but not including EUA and EUA's subsidiaries.

2.2. The purchase price to be paid for Seller's Ownership Share is (i) $5,800,000 to Seller, plus (ii)

$2,640,466 to Yankee Atomic Company, Agent, (" Yankee") for con-struction costs and nuclear fuel, with respect to Seabrook Unit No. I as of December 31, 1985, previously paid by such persons on behalf of Seller plus (iii) such additional amounts as may be paid to Yankee by such persons on behalf of Seller, as shown on the books and records of Yankee and as certified in writing i

to Purchaser by Yankee, for the period January 1, 1986, to the

, F date of Closing, or as Seller itself may pay, if any, from January 1, 1986 through the date of Closing in respect of Seller's Ownership Share. The aforesaid purchase price shall be paid by Purchaser at the Closing (or in the case of payments to such other persons, prior thereto or simultaneously there-with) in immediately available funds. In the event that at or after the Closing Purchaser receives rebates or refunds of property taxes previously paid by Seller in connection with Seller's Ownership Share for any period prior to the closing, Purchaser shall immediately pay over to Seller the amount of such refunds or rebates, after first deducting therefrom any amounts paid by Purchaser to satisfy claims for unpaid taxes referred to in Section 2.1. above which have been discharged by Purchaser, and any such refund or rebate paid to Seller shall be and reraain its property. Purchaser and Seller hereby acknowledge and agree that the entire purchase price payable under this Agreement is attributable to seller's ownership interest and rights in Seabrook Unit No. I and nuclear fuel related to Seabrook Unit No. 1 and no portion thereof is attri-butable to Seller's ownership interest and rights in Seabrook Unit No.

2 and nuclear fuel related to Seabrook Unit No. 2. In no event shall Purchaser be obligated to pay any carrying charges of Seller.

2.3.

At and after the Closing, Purchaser shall assume, pay, perform and discharge all of Seller's contractual obliga-ticas in respect of the Seabrook Project, including without

. F limitation contractual obligations under the Seabrook Agreement, the Transmission Support Agreement, and any resolutions of the Owners or other agreements among the owners relating to the Seabrook Agreement, regardless of when such obligations were incurred by Seller. Purchaser's obligations under this Section 2.3 specifically exclude all judgments, dam-ages and awards (" judgments") against Seller arising out of litigation with respect to the Seabrook Project filed prior to I the date hereof even though such judgments are entered here-after.

2.4.

Such sale, assignment, transfer, delivery and l conveyance of Seller's ownership Share and assumption by Purchaser of obligations under the aforesaid contracts and l

agreements shall be evidenced by such bills of sale, instru-l ments of assignment and assumption, deeds of conveyance and other documents executed, acknowledged and sealed by seller or by Purchaser, as the case may be, and delivered by one to the other, as may be reasonably requested by the party receiving such documents and instruments, so as to vest fully in Purchaser Seller's Ownership Share thereby acquired and to evi-dence that Purchaser has assumed obligations with respect thereto.

2.5.

The Closing (" Closing") shall take place within 30 days after the satisfaction (or waiver by Seller or Purchaser, as the case may be) of each of the conditions set forth in Sections 4 and 5 of this Agreement, or upon such

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. 1 earlier date as Seller and Purchaser may hereafter agree upon in writing, it being the intention of Seller and Purchaser to ,

proceed to Closing as expeditiously as possible. The date on which the Closing actually occurs is hereinafter referred to as the " Closing Date".

SECTION 3: OBLIGATIONS OF SELLER PENDING CLOSING.

Until the closing Date, Seller, at all meetings of Owners of the Seabrook Project, will vote with the majority of Owners on all proposals regarding construction funding of Seabrook Unit No. 1 or abstain.

SECTION 4: CONDITIONS TO PURCHASER'S OBLIGATIONS.

4.1.

Purchaser's obligation to consummate the purchase and sale of seller's ownership Share as herein provided shall be subject to such ownership Share being free and clear as set forth in Section 2.1. above and to the fulfillment of each of the following conditions, unless expressly waived in writing by either EUA or Purchaser, at or prior to the Closing:

(a) Approvals of this Agreement by the Trustees of EUA, the Board of Directors of Purchaser and the Board of Directors of Seller, each duly certified by a recording officer of each.

(b) Issuance of separate final orders of each of (i) the Securities and Exchange Commission, (ii) the New Hampshire Public Utilities Commission, (iii) the Federal Energy Regulatory Commission, and (iv) the Nuclear Regulatory Commission, authorizing, to the extent necessary under statutes and regulations defining the authority and requirements of such Commissions, respective-F ly, the organization of Purchaser, the acquisi-tion of Purchaser by EUA, the capitalization of Purchaser, the issue and sale of Purchaser's se-curities, the purchase and sale contemplated herein, the rate treatment proposed by Purchaser in the Settlement Agreement submitted to the Secretary of the Federal Energy hegulatory Commission on December 27, 1985, as it may there-after be superseded by a later Settlement Agreement, and such other matters as EUA and Purchaser may reasonably deem to be necessary or appropriate, all upon such terms and conditions as EUA and Purchaser reasonably may deem to be satisfactory.

(c) Written waivers or releases, by all parties to the Seabrook Agreement, of all provisions thereof purporting to limit the purchase and sale contem-plated herein without the consent of one or more such parties, including, without limitation, Paragraph 23 of the Seabrook Agreement, in a manner satisfactory to EUA and Purchaser, or written consents obtained for such provisions as 2 are not so waived or released, such waivers, re-leases and satisfactory reasonably consents to to beEUA on terms and conditions and Purchaser.

(d) Written waivers, releases or approvals by holders or trustees for holders of securities of EUA, Purchaser or any other subsidiary of EUA, of pro-visions, if any action necessary,toprohibiting the consummation or restricting of the pur-chase and sale contemplated herein, such waivers, releases and approvals to be on terms and condi-tions reasonably satisfactory to EUA and

, Purchaser.

(e) Obtaining for Purchaser of financing on terms satisfactory to EUA, sufficient to make the pur-chase of Seller's ownership Share.

(f) Receipt by EUA and Purchaser of an opinion of s

LeBoeuf, Lamb, Leiby & MacRae, as counsel for the Seller, dated the Closing Date, in form and sub-stance reasonably satisfactory to Purchaser and EUA and their counsel.

, (g) Acknowledgement by Yankee that it has received the amounts to be Section 2.2 above. paid to it pursuant to e

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. F SECTION 5: CONDITIONS TO SELLER'S OBLIGATIONS.

5.1.

Seller's Obligations to consummate the purchase and sale of Seller's Ownership Share as herein contemplated shall be subject to the fulfillment of each of the following conditions, unless waived in writing by seller, at or prior to the Closing:

(a) Approvals of this Agreement and the transactions contemplated hereby by the Trustees of EUA the Board of Directors of Purchaser and the Board of Directors of seller, each duly certified by a recording officer of each.

(b) Issuance of the separate final orders of the Securities and Exchange Commission and the New Hampshire Public Utilities Commission referred to in Section 4.1(b) above and any other required regulatory approvals, on terms and conditions reasonably satisfactory to Seller.

(c) The conditions specified in Section 4.l(c) above, on terms and conditions reasonably satisfactory to seller.

(d) Receipt by Seller, as promptly as possible after the execution of this Agreement, from all Owners of written releases, effective as of the Closing, of Seller from all contractual obligations of Seller under the Seabrook Agreement, the Transmission Support Agreement, and any resolutions of the Owners or other agreements among the Owners relating to the Seabrook Agreement and from all claims against Seller asserted in the arbitration proceeding commenced by certain of the owners against Seller on May 29, 1985, regardless of when any such liabilities

, or obligations may have been incurred or accrued.

(e) Receipt by Seller, as promptly as possible after the execution of this Agreement, from Yankee Atomic Electric Company (" Yankee"), as Disbursing Agent, of a written release, effective as of the Closing, of Seller from all obligations or lia-bilities of Seller to Yankee arising out of or in connection with Seller's ownership Share.

F (f) Approval by all of the owners, as promptly as possible following the execution of this

' Agreement, of a resolution releasing Seller effective as of the Closing, from all of its lia-bilities and obligations under the Agreements and resolutions referred to in Section 5.1.(d) above, regardless of when any such liabilities or obli-gations may have been incurred or accrued.

(g) Waivers, releases, consents or approvals by all lenders to Seller or holders of Seller's securi-ties, if any, which are required to consummate the contemplated purchase and sale, upon terms and conditions satisfactory to Seller.

(h) Receipt by Seller of opinions of Devine, Millimet, Stahl & Branch, Professional Association, and Gaston Snow & Ely Bartlett, each dated the closing Date, and each in form and sub-stance satisfactory to seller and its counsel.

SECTION 6: REPRESENTATIONS AND WARRANTIES.

6.1.

Seller hereby represents and warrants to EUA and Purchaser that:

(a) Seller is a corporation duly organized and validly existing in good standing under the laws of the Commonwealth of Massachusetts, and has all necessary corporate power to effect the purchase and sale contemplated herein and to carry out its obligations under this Agreement.

(b) Seller has full right, power and authority to execute and deliver this Agreement, and all cor-porate action of the Seller necessary for the execution and delivery of this Agreement has been duly taken.

(c) Seller does not know of any material lien, secu-rity interest, encumbrance, claim or charge on or with respect to its ownership Share except (i) for claims against Seller in the arbitration pro-ceeding referred to in Section 5.1(d) above, (ii) under an indenture with Teachers Insurance Annuity Association and (iii) claims against all of the Owners of the Seabrook Project.

F (d) The execution and delivery of this Agreement by

' Seller, and, upon satisfaction of the conditions l contained herein, the performance of its obliga-tions hereunder do not violate any agreement to which bound.

Seller is a party or by which it may be 6.2. EUA hereby represents and warrants to Seller:

(a) Purchaser is a corporation, duly organized and i

validly existing in good standing under the laws of the State of New Hampshire, and has all neces-sary corporate power to execute and deliver this i Agreement, to purchase and own Seller's Ownership Share and to carry out its obligations under this Agreement.

(b) EUA is a trust with transferable shares duly organized and validly existing under the laws of i the Commonwealth of Massachusetts and has full

right, power and authority to execute and deliver this Agreement, and to carry out its obligations hereunder or as contemplated hereby, and all <

i actions of EUA necessary for the execution and delivery of this Agreement have been duly taken.

4 (c) The execution and delivery of this Agreement by i

EUA and by Purchaser, and, upon satisfaction of the conditions contained herein, the performance by EUA of its obligations, and the performance by Purchaser of its obligations hereunder, do not and will not violate any agreement to which EUA or Purchaser is a party or by which either of them may be bound.

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(d) This Agreement is the legal, valid and binding i

obligation of EUA and, when executed and deliv-ered by Purchaser, of Purchaser, respectively, i enforceable against EUA and Purchaser, respec-i tively, in accordance with its terms, except as i its enforceability may be affected by bankruptcy,

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insolvency or similar laws affecting the rights of creditors generally or by general equitable principles.

SECTION 7: BEST EFFORTS OBLIGATIONS.

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7.1 EUA hereby agrees to use its best efforts, and 4

Purchaser, upon becoming a party hereto, will use its best j -

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. F efforts, to obtain or cause to be obtained as promptly as reasonably possible all financing, approvals, releases, waivers and consents which, by the terms hereof, are required or appro-priate in order to satisfy the conditions precedent to consum-mation of the purchase and sale herein contemplated, and EUA hereby represents that it has so used its best efforts to the date hereof and represents, warrants and agrees that it will continue to do so until the Closing or termination of this Agreement.

EUA hereby agrees that, immediately upon receipt of all necessary regulatory approvals therefor, it shall acquire all of the common stock of Purchaser to be then issued.

7.2.

Seller makes to EUA and Purchaser the same ac-knowledgment, warranty, representation and agreement to use its best efforts as EUA and Purchaser make to Seller in Section 7.1 above, provided, however, that (i) Seller's best efforts to obtain approvals shall not require Seller at any time to chal-lenge the operations conducted by the current management of the Seabrook Project, including, without limitation, current man-agement's estimates for construction and completion of Seabrook Unit No. 1; (ii) Seller shall have no obligation to commence litigation in order to obtain the consent or approval of any lender to seller under an indenture to the consummation of the purchase and sale contemplated herein; and (iii) Seller shall not be required to retire any of its outstanding bonds or other obligations. t l

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F SECTION 8: TERMINATION If the Closing does not occur by June 30, 1986 and Purchaser (or EUA) and Seller, respectively, shall not have irrevocably waived all conditions which have not been fulfilled by such date, under Sections 4 and 5 hereof, as to which each has the power hereunder to so waive, then Seller or Purchaser (or EUA) may terminate this Agreement by giving written notice to such effect to Seller or to EUA and Purchaser, as the case may be, not later than 5:00 P.M. on July 15, 1986.

SECN ON 9:

CONSTRUCTION: ENTIRE AGREEMENT: PURCHASER AS PARTY.

9.1. This Agreement shall be construed and enforced in accordance with the laws of the Commonwealth of Massachusetts.

9.2.

This Agreement is a separate and distif tet agree-ment enforceable in accordance with its specific tenms, consti-tutes the entire agreement between the parties with respect to the purchase and sale of Seller's ownership Share and supersedes all previous understandings and agreements, written or oral, with respect thereto, but prior to the Closing shall not affect any obligations which the parties hereto may have to each other or to th? Owners under the Seabrook Agreement or other existing agreements and resolutions of the Owners which relate to the Seabrook Project or any part thereof.

9.3. Prior to Closing, the Purchaser will become a party to this Agreement by execution and delivery of a separate document to such effect.

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SECTION 10: NOTICES.

Any notice, request, instruction or other document to be given hereunder by Purchaser, Seller or EUA shall be in writing and delivered personally or sent by registered or cer-

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tified mail, postage prepaid, if to Purchaser, addressed to John F. G. Eichorn, Jr., President, EUA Power Corporation, P. O. Box 2333, Boston, MA 02107; if to EUA, addressed to Donald G. Pardus, President, Eastern Utilities Association, P. O. Box 2333, Boston, MA 02107; and if to Seller, addressed to Frank L. Childs, President, Fitchburg Gas and Electric Company, 285 John Fitch Highway, Fitchburg, MA 01420; or to such other persons or addresses as may be designated hereafter in writing by the party to receive such notice.

SECTION 11: EASTERN UTILITIES ASSOCIATES The name Eastern Utilities Associates ("EUA") is the designation of the Trustees for the time being under a Declaration of Trust dated April 2, 1928, as amended. All j

persons dealing with EUA must look solely to the trust property for the enforcement of any claims against EUA, as neither the

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Trustees, officers or shareholders assume-any personal liabil-ity for obligations entered into on behalf of EUA.

IN WITNESS WHEREOF, Fitchburg Gas and Electric Light Company and Eastern Utilities Associates have caused these pre-sents to be executed and their respective seals to be affixed, each by their respective officers thereunto duly authorized as of the date first written above.

FITCHBURG GAS AND ELECTRIC LIGHT COMPANY Attest: ##MI A- By .

" Clerk President EASTERN UTILITIES ASSOCIATES Attest: By M M%

Clerk President f

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