NL-06-007, Provisional Trust for Decommissioning Fund Assurance
| ML060240228 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 01/11/2006 |
| From: | Herron J Entergy Nuclear Northeast, Entergy Nuclear Operations |
| To: | Document Control Desk, Office of Nuclear Reactor Regulation |
| References | |
| NL-06-007 | |
| Download: ML060240228 (34) | |
Text
Entergy Nuclear Operations, Inc.
a Entergy Nuclear Northeast 440 Hamilton Avenue
-. Entegy White Plains, NY 10601 Tel 914 272 3204 Fax 914 272 3205 jherronQentergy.com John T. Herron Senior Vice President and Chief Operating Officer January 11, 2006 Re: Indian Point Unit 2 Docket No. 50-247 NL-06-007 U.S. Nuclear Regulatory Commission ATTN: Document Control Desk Washington, DC 20555-0001
Subject:
Provisional Trust for Decommissioning Fund Assurance
Reference:
Entergy Letter NL-05-039 to NRC, "Status of Decommissioning Funding for Plants Operated by Entergy Nuclear Operations, Inc", dated March 28, 2005.
Dear Sir or Madam:
Entergy Nuclear Operations, Inc (Entergy) submitted decommissioning fund status reports per 10 CFR 50.75(f)(1) in the referenced letter, including the report for Indian Point 2 (IP2). During a follow-up telephone call with NRC staff on October 20, 2005, Entergy discussed the funding available in a provisional trust fund. Establishing and maintaining this provisional fund is a License Condition required as part of IP2 Amendment 220 (License transfer from Con Edison to Entergy) issued September 6, 2001. Entergy is submitting in Attachment 1 a copy of the provisional trust fund document in response to the NRC staff request during the teleconference.
There are no new commitments made in this letter. If you have any questions, please contact Ms. Charlene Faison at 914-272-3378.
Very truly yours, Jo T. Herron Sen r Vice President and Ch f Operating Officer ntergy Nuclear Operations, Inc.
cc: next page
NL-06-007 Docket No. 50-247 Page 2 of 2 cc:
Mr. John Boska, NRR Senior Project Manager (w/o attachment)
Michael Webb, NRR Senior Project Manager Region I (w/o attachment)
Mr. Samuel J. Collins, Regional Administrator, attachment)
IPEC NRC Resident Inspector's Office (w/o
ATTACHMENT 1 TO NL-06-007 PROVISIONAL DECOMMISSIONING TRUST AGREEMENT ENTERGY NUCLEAR OPERATIONS, INC.
INDIAN POINT NUCLEAR GENERATING UNIT NO. 2 DOCKET NO. 50-247
I:
ENTERGY NUCLEAR INDIAN POINT 2 PROVISIONAL DECOMMISSIONING TRUST AGREEMENT FOR INDIAN POINT NUCLEAR GENERATING UNITS 1 AND 2 Dated: ,,,,57s:a 2001 LIBNY/I 033350.6
TABLE; OF CONTENTS Page ARTICLE I - DEFINITIONS ........................................................... 2 1.01. Definitions ........................................................... 2 ARTICLE II - PROVISIONAL TRUST PURPOSE AND NAME ........................................... 5 2.01. Provisional Trust Purpose ........................................................... 5 2.02. Establishment of Provisional Trust ........................................................... 5 2.03. Acceptance of Appointment ........................................................... 5 2.04. Name of Provisional Trust ........................................................... 6 2.05. Duties of Authorized Representatives ........................................................... 6 2.06. No Authority to Conduct Business ........................................................... 6 2.07. No Transferability of Provisional Trust ........................................................... 6 ARTICLE III - CONTRIBUTIONS ........................................................... 7 3.01. Contributions ........................................................... 7 3.02. Allocation of Net Income ........................................................... 7 ARTICLE IV - DIS TRIBUTIONS ...... .................................................... 7 4.01. Payment of Decommissioning Costs and Administrative Expenses ....................... 7 4.02. Administrative Expenses ........................................................... 7 4.03. Fees ........................................................... 8 4.04. Liquidation of Investments ........................................................... 8 4.05. Other Distributions ........................................................... 8 ARTICLE V - TERMINATION ............................................................................... 9 5.01. Termination of Provisional Trust ........................................................... 9 5.02. Distribution of Provisional Trust Upon Termination ............................................... 9 ARTICLE VI - TRUSTEES ........................................................... 9 6.01. Designation and Qualification of Successor Trustee(s) ........................................... 9 6.02. Exoneration from Bond .......................................................... 10 6.03. Resignation .......................................................... 10 6.04. Transactions With Third Parties .......................................................... 10 6.05. Accounts and Reports .......................................................... 11 6.06. Tax, Returns and Other Reports ........................................................... l1 6.07. Liability .......................................................... 12 ARTICLE VII - TRUSTEE'S GENERAL POWERS ....................................... 13 7.01. Registration of Securities .......................................................... 13 7.02. Borrowing .......................................................... 13 7.03. Retention and Removal of Professional and Employee Services .......................... 13 7.04. Delegation of Ministerial Powers .......................................................... 13 7.05. Powers of Trustee to Continue Until Final Distribution ........................................ 13 LIBNY/1033350.6
7.06. Discretion in Exercise of Powers .................................... 14 7.07. Deposit of Funds .................................... 14 7.08. Loaning of Securities .................................... 14 7.09. Retention of Uninvested Cash .................................... 14 ARTICLE VIII - I NVESTMENTS .................................... . 14 8.01. General Investment Powers .................................................................................. 14 8.02. Direction by Investment Manager(s) ..................................... 15 8.03. Trustee's General Investment Powers ..................................... 16 ARTICLE IX - MISCE LLANEOUS .................................... . 17 9.01. Headings .................................... 17 9.02. Interpretation .................................... 17 9.03. Severability of Provisions ..................................... 17 9.04. Delivery of Notices Under Agreement .................................... 17 9.05. Alterations an Amendments .................................... 18 9.06. Successors and Assigns .................................... 19 9.07. Governing Law ..................................... 19 9.08. Accounting Year .................................... 19 9.09. Counterparts...........................................................................................................19 9.10. Decommissioning Liability.................................... 19 9.11. Limitation on Trustee Liability .................................... 20 9.12. Entire Agreement .................................... 20 9.13. Representation .................................... 20 EXHIBITS Exhibit A Permitted Investments Exhibit B Decommissioning Certificate Exhibit C Distribution Certificate Exhibit D Cross-Trading Information ii LIBNY/1033350.6
PROVISIONAL DECOMMISSIONING TRUST AGREEMENT PR9VISIONAL DECOMMISSIONING TRUST AGREEMENT made as of thisiJday of , 2001, by and between ENTERGY NUCLEAR INDIAN POINT 2, LLC, a Dela~kare limited liability company (the "Company"), and MELLON BANK, N.A., as Trustee (the "Trustee"), a national banking association having trust powers.
WHEREAS, each of Indian Point Nuclear Generating Units No. I and No. 2 is a nuclear fueled electric generating unit which will require Decommissioning at the end of its useful life; WHEREAS, pursuant to the requirements of the Nuclear Regulatory Commission (the "NRC'), the owner of the Units is required to create and maintain a source of funding to provide for the costs associated with the Decommissioning of the Units; WHEREAS, the Company is party to a Generating Plant and Gas Turbine Asset Purchase and Sale Agreement dated as of November 9, 2000, as amended from time to time, by and between Consolidated Edison Company of New York, Inc., a New York corporation ("Con Edison"), as Seller, and the Company, as Buyer (the "Purchaseand Sale Agreement"), pursuant to which Con Edison is transferring to the Company all or substantially all of the assets and certain of the liabilities constituting the Units, including without limitation all liabilities of Con Edison in respect of: (i) the Decommissioning of the Units following permanent cessation of operations, (ii) the management, storage, transportation and disposal of spent nuclear fuel, and (iii) any other post-operative disposition of the Units or any other of the assets being purchased by the Company; WHEREAS, the Company, in order to comply with the requirements of the NRC, is establishing the Entergy Nuclear Indian Point Unit 1 and 2 Master Decommissioning Trust (the "Entergy Master Trusf ), operating under the Entergy Nuclear Indian Point 2 Master Decommissioning Trust Agreement for Indian Point Units 1 and 2, dated as of 2001, by and between the Company and the Trustee, which master trust is intended to a source of funding to provide for the costs associated with the Decommissioning of the Units; WHEREAS, the Company desires to form a so-called "provisional trust" (the "ProvisionalTrust") to hold certain funds for the Decommissioning of the Units in addition to those held in the Entergy Master Trust, such additional funds being subject to distribution to the Company other than in connection with Decommissioning of the Units under certain circumstances as specifically provided herein; WHEREAS, pursuant to Code sections 671 and 677, the Provisional Trust is intended to constitute a grantor trust under Code sections 674-677, with the Company treated as the grantor, and as such, the income, gains, deductions, losses and credits of the Provisional Trust shall be treated as income, gains, deductions, losses and credits of the Company; and WHEREAS, Mellon Bank, N.A. is willing to serve as Trustee of the Provisional Trust on the terms and conditions herein set forth.
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NOW, THEREFORE, in consideration of the mutual promises herein contained and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Trustee hereby agrees:
TO HAVE AND TO HOLD the assets of the Provisional Trust; TO INVEST AND REINVEST the same as provided herein; IN TRUST NEVERTHELESS, for the uses and purposes and upon the terms and conditions, as hereinafter set forth; and TO PAY OR DISTRIBUTE from the Provisional Trust as provided herein.
ARTICLE; I - DEFINITIONS 1.01. Definitions. As used in this Provisional Decommissioning Trust Agreement, the following terms shall have the following meanings:
(a) "Administrative Expenses" has the meaning given in Section 4.02.
(b) "Agreement" means this Provisional Decommissioning Trust Agreement as the same may be amended, modified, or supplemented from time to time.
(c) "ApplicableLaw" means all applicable laws, statutes, treaties, rules, codes, ordinances, Regulations, certificates, orders, interpretations, licenses and permits of any Governmental Authority and judgments, decrees, injunctions, writs, orders or like action of any court, arbitrator or other judicial or quasi-judicial tribunal of competent jurisdiction (including those pertaining to health, safety, the environment or otherwise).
(d) "Authorized Representatives"means the persons designated as such pursuant to Section 2.05.
(e) "Business Day" means a day other than Saturday or Sunday or any day which is a legal holiday or a day on which banking institutions in the Commonwealth of Pennsylvania are authorized or required by Applicable Law or other action of a Governmental Authority to close.
(f) "Closing" has the meaning given in Section 3.01.
(g) "Closing Date" means the day on which the Closing occurs.
(h) "Code" means the Internal Revenue Code of 1986, as amended.
(i) "Company" has the meaning given in the Preamble of this Agreement.
(i) "Con Edison" has the meaning given in the Recitals of this Agreement.
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(k) "Decommissioning" means the removal of one or both of the Units from service and disposal of their components in accordance with Applicable Law.
This process shall include, but not be limited to, (i) pre-shutdown activities related to the Units' removal and disposal including studies, planning, licensing, regulatory filings and non-DOE spent fuel storage, (ii) work done to prepare and carry out DECON, ENTOMB or SAFSTOR (as defined by the NRC) of the Units and the Site, whichever is applicable, (iii) the removal of radioactively contaminated and radioactively uncontaminated portions of the Units and disposing of the same at the end of the operating life of the Units, (iv) work done to the Site and the Units' associated equipment and facilities and to other areas, whether or not such areas are contiguous to the Site and equipment and facilities, in order to decontaminate such Site and such areas, and (v) work done by or on behalf of the Company (or for which the Company is charged) to a facility where any portion of the Units and their associated equipment and facilities are to be disposed of in order to prepare and maintain such facility as a disposal site.
(1) "DecommissioningCertificate" means a document properly completed and executed by an Authorized Representative of the Company and substantially in the form of Exhibit B as it may from time to time be amended.
(in) "Decommissioning Costs" means all costs and expenses relating or allocable to, or incurred in connection with, Decommissioning, including, but not limited to, the decontamination and/or removal of the equipment, structures and portions of the Units and the Site; provided, however, that if Applicable Law prohibits the foregoing or imposes requirements that are more costly to implement than their removal, the term "Decommissioning Costs" shall mean all costs and expenses relating or allocable to, or incurred in connection with, the requirements imposed by Applicable Law at the end of the Units' operating life.
(n) "DistributionCertificate" means a document properly completed and executed by an Authorized Representative of the Company and substantially in the form of Exhibit C as it may from time to time be amended.
(o) "Effective Date" means the date of this Agreement as shown on the first page hereof.
(p) "Entergy Master Trust" has the meaning given in the Recitals of this Agreement.
(q) "Exemption" has the meaning given in Section 8.03(b).
(r) "FERC' means the Federal Energy Regulatory Commission or any successor thereto.
(s) "FundingRegulation" means 10 CFR 50.75(e)(1)(i), or any comparable Regulation promulgated by the NRC.
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(t) "GovernmentalAuthoritr" means any federal, state, county, municipal, foreign, international, regional or other governmental authority, agency, board, body, instrumentality or court, including, without limitation, the NRC and the FERC.
(u) "InitialContribution"has the meaning given in Section 3.01.
(v) "InvestmentAccount" has the meaning given in Section 8.01.
(w) "Investment Manager"has the meaning given in Section 8.01.
(x) "Investment-GradeSecurities" means "investment-grade" securities, including without limitation, investment-grade bonds and preferred stocks, which are those rated at least "BBB" or equivalent by a national rating service, but shall not include (i) speculative issues of common stocks, including without limitation, "bulletin board" stocks listed on the NASDAQ exchange, "pinksheet" stocks, and stocks not traded on major exchanges, and (ii) high-yield or "junk" bonds.
(y) "NRC' has the meaning given in the Recitals of this Agreement.
(z) "NRR Director"has the meaning given in Section 4.05(e).
(aa) "NuclearSafety Director"has the meaning given in Section 4.05(e).
(bb) "Order" means any order relating to Decommissioning issued by a Governmental Authority and applicable to a Unit.
(cc) "PermittedDesignee" has the meaning given in Section 4.05(a).
(dd) "Post-ClosingExcess FundingDetermination"means a determination that the sum of the aggregate funds held by the Entergy Master Trust and the aggregate funds held by the Provisional Trust exceeds the minimum amount required under the Funding Regulation, such that the funds then held in the Entergy Master Trust and the Provisional Trust, in the aggregate, exceed the minimum amount required by the NRC for the Decommissioning of the Units.
(ce) "Post-ClosingMinim!um FundingDetermination"means (i) a determination that the aggregate funds held by the Entergy Master Trust satisfy the minimum amount required under the Funding Regulation, such that the funds then held in the Entergy Master Trust satisfy the minimum amount required by the NRC for the Decommissioning of the Units, or (ii) an Order, Regulation or other action by the NRC, which permits the funds in the Entergy Master Trust to satisfy the NRC's requirements for adequate assurance of Decommissioning of the Units.
(ff) "ProvisionalTrust' has the meaning given in the Recitals of this Agreement.
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(gg) "Purchaseand Sale Agreement' has the meaning given in the Recitals of (f this Agreement.
(hh) "Regulation" means any requirement having the force of law which is binding on the Company.
(ii) "Service" means the Internal Revenue Service, or any successor thereto.
(jj) "Site" means the land of approximately 160 acres upon which the Units are situated, located in the Village of Buchanan, Town of Cortlandt, County of Westchester and State of New York.
(kk) "Trustee" has the meaning given in the Preamble of this Agreement, or any successor appointed pursuant to Section 6.01.
(11) "Units" means the two nuclear generating units designated as and known as Indian Point Nuclear Generating Units Nos. 1 and 2 (NRC Docket Nos.50-003 and 50-247) at the Site together with their main and other transformers, reactor buildings, turbine building and crane, waste processing buildings, administrative buildings, auxiliary buildings, low-level waste radiation buildings, spent fuel storage facilities, intake and discharge canals and all other components and equipment at the Site necessary for operation of the Units and for their removal at the end of their operating/useful life.
ARTICLE II - PROVISIONAL TRUST PURPOSE AND NAME 2.01. Provisional Trust Purpose. Subject only to the provisions of Article IV, the exclusive purpose of this Provisional Trust is to accumulate and hold funds for the contemplated Decommissioning of the Units and to use such funds, if necessary, in the first instance, for expenses related to the Decommissioning of the Units as defined by the NRC in its Regulations and issuances, and as provided in the licenses issued by the NRC for the Units and any amendments thereto.
2.02. Establishment of Provisional Trust. By execution of this Agreement, the Company:
(a) establishes the Provisional Trust, which shall be effective on the Effective Date and which shall consist of the Initial Contribution delivered to the Trustee by the Company in accordance with Section 3.01, as well as investments, reinvestments and earnings on such Initial Contribution; and (b) appoints Mellon Bank, N.A. as Trustee of the Provisional Trust.
2.03. Acceptance of Appointment. Upon the terms and conditions set forth in this Agreement, Mellon Bank, N.A. accepts appointment as Trustee of this Provisional Trust. The Trustee declares that it will hold all estate, right, title and interest it may acquire hereunder exclusively for the purposes set forth in this Article II, subject only to the provisions of Article 5
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IV. The Trustee shall receive the Initial Contribution deposited with it by the Company in trust for the benefit of the Company. The Trustee shall hold, manage, invest and administer the assets of this Provisional Trust, together with earnings and appreciation thereon, in accordance with this Agreement. In performing its duties under this Agreement, the Trustee shall exercise the same care and diligence that it would devote to its own property in like circumstances. In addition, to the extent the Trustee or an Investment Manager is managing assets of this Provisional Trust, the Trustee or such Investment Manager shall act in accordance with the general standards of prudent investment as specified in 18 CFR 35.32(a)(3) or any comparable Regulation.
2.04. Name of Provisional Trust. The Initial Contribution received by the Trustee, together with the proceeds, reinvestments and appreciation thereof shall constitute the "Entergy Nuclear Indian Point Units I and 2 Provisional Decommissioning Trust."
2.05. Duties of Authorized Representatives. The Company has empowered the Authorized Representatives and their delegates to act for the Company in all respects hereunder.
The Authorized Representatives may act as a group or may designate one or more Authorized Representative(s) or delegate(s) to perform the duties described in the foregoing sentence. The Company shall provide the Trustee with a written statement setting forth the names and specimen signatures of the Authorized Representative. The Authorized Representatives shall provide the Trustee with a written statement setting forth the names and specimen signatures of any delegate of the Authorized Representatives. Until otherwise notified in writing by the Company, the Trustee may rely upon any written notice, instruction, direction, certificate or other communication believed by it to be genuine and to be signed or certified by any one or more Authorized Representatives or their designated delegate(s), and the Trustee shall be under no duty to make any investigation or inquiry as to the truth or accuracy of any statement contained therein.
2.06. No Authority to Conduct Business. Subject to Article IV, the purpose of the Provisional Trust is limited specifically to the matters set forth in Section 2.01, and there is no objective to carry on any business unrelated to the Provisional Trust purpose set forth in Section 2.01, or divide the gains therefrom.
2.07. No Transferability of Provisional Trust. The interest of the Company in the Provisional Trust is neither transferable, whether voluntarily or involuntarily, by the Company nor subject to the payment of the claims of creditors of the Company; provided, however, that any creditor of the Company as to which a Decommissioning Certificate has been properly completed and submitted to the Trustee may assert a claim directly against the Provisional Trust in an amount not to exceed the amount specified in such Decommissioning Certificate; and provided, further, that all or a portion of the interest of the Company in the Provisional Trust may be transferred to a purchaser of all or substantially all of the assets of one or both of the Units that also assumes responsibility for Decommissioning such Unit or Units.
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ARTICLE III - CONTRIBUTIONS 3.01. Contributions. At or prior to the closing of the transactions under the Purchase and Sale Agreement (the "Closing"), the Company shall contribute Twenty-Five Million Dollars
($25,000,000) in cash to the Provisional Trust (the "Initial Contribution"). No further contributions shall be made to, or accepted by the Trustee on behalf of, the Provisional Trust.
3.02. Allocation of Net Income. The Trustee may pool the assets of this Provisional Trust for investment purposes in accordance with the written instructions of the Company, subject to the limitations on investments contained in Exhibit A. The Trustee may rely upon the written opinion of legal counsel of the Company, who may be an employee of the Company, with respect to any question arising under this Section 3.02.
ARTICLE 1V - DISTRIBUTIONS 4.01. Payment of Decommissioning Costs and Administrative Expenses. In addition to payments otherwise authorized by this Agreement, the Trustee shall make payments out of assets of the Provisional Trust upon presentation to the Trustee of a Decommissioning Certificate by the Company instructing the Trustee to disburse amounts in the Provisional Trust in a manner designated in such Decommissioning Certificate for purposes of paying costs, liabilities and expenses of Decommissioning or, if so specified, administrative expenses related to services authorized by the Company pursuant to Section 4.02. If the assets of the Provisional Trust are insufficient to permit the payment in full of amounts to be paid pursuant to a Decommissioning Certificate, the Trustee shall have no liability with respect to such insufficiency and no obligation to use its own funds to pay the same.
4.02. Administrative Expenses. In addition to the payment of administrative expenses paid pursuant to Section 4.01, from time to time, the Trustee shall make payments of all administrative expenses (including taxes whether imposed upon the Provisional Trust or upon the Company or its affiliates, reasonable out-of-pocket expenses, and the Trustee's fees as specified in the agreement referred to in Section 4.03 (collectively, the "Administrative Expenses")) in connection with the operation of the Provisional Trust pursuant to this Agreement. At the direction of an Authorized Representative, the Trustee shall distribute, within thirty (30) Business Days of the end of each calendar quarter, to the Company an amount equal to the aggregate federal, state and local tax attributable to its interest in the Provisional Trust that would have been imposed on the Company for such quarter, determined as if the Company had filed separate federal, state and local income tax returns with taxes computed at the maximum marginal corporate tax rate. Such distribution shall be reduced, but not below zero, for any excess distributions made hereunder with respect to prior quarters such that the total distributions under this Section 4.02 with respect to any calendar year equals the federal, state and local taxes that would be due if the Company filed separate federal, state and local income tax returns with taxes computed at the maximum marginal corporate tax rate. If the assets of the Provisional Trust are insufficient to permit the payment in full of amounts payable under this Section 4.02, the Trustee shall have no liability with respect to such insufficiency and no obligation to use its own funds to pay the same.
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4.03. Fees. The Trustee shall receive as exclusive compensation for its services such amounts as may from time to time be agreed to by the Trustee and the Company.
4.04. Liquidation of Investments. At the direction of the Company or its Investment Manager, the Trustee shall sell or liquidate such investments of the Provisional Trust as may be specified, with the proceeds to be credited to the Provisional Trust.
4.05. Other Distributions. The Trustee shall distribute the assets of the Provisional Trust, after payment of or reserve for any remaining Administrative Expenses, or costs of termination, to the Company, and any of its designated affiliates, subsidiaries or assigns (each, a "PermittedDesignee") and/or to the Entergy Master Trust in the manner described in this Section 4.05.
(a) Distribution in the Event of a Pre-Closing Date Termination. If the Purchase and Sale Agreement terminates pursuant to Article X thereof, the Company may, in its sole discretion and upon presentation to the Trustee of a Distribution Certificate in which the Company has indicated its right to receive a "Distribution in the Event of a Pre-Closing Termination", terminate the Provisional Trust, in which case all of the assets of the Provisional Trust shall be promptly distributed to the Company or its Permitted Designee in accordance with the written instructions of the Company in such Distribution Certificate.
(b) Distribution in the Event of a Post-Closing Minimum Funding Determination. If there has been a Post-Closing Minimum Funding Determination on or after the Closing Date, the Company shall have the right, subject to the provisions of Section 4.05(e) below, to a distribution (at the election of the Company, to be made in cash or in kind) of all of the assets of the Provisional Trust, such distribution to be made to the Company or its Permitted Designee upon presentation to the Trustee of a Distribution Certificate in which the Company has indicated its right to receive a "Distribution in the Event of a Post-Closing Minimum Funding Determination".
(c) Distribution in the Event of a Post-Closing Excess Funding Determination. If there has been a Post-Closing Excess Funding Determination on or after the Closing Date, the Company shall have the right, subject to the provisions of Section 4.05(e) below, to a distribution (at the election of the Company to be made in cash or kind) of the amount of difference between (i) the sum of the aggregate funds held in the Entergy Master Trust and the aggregate funds held in the Provisional Trust less (ii) the minimum amount required under the Funding Regulation (the minimum amount required by the NRC for Decommissioning the Units), such distribution to be made to the Company or its Permitted Designee upon presentation to the Trustee of a Distribution Certificate in which the Company has indicated its right to receive a "Distribution in the Event of a Post-Closing Excess Funding Determination".
(d) Distributions in the Absence of a Post-Closing Minimum Funding Determination. If no Post-Closing Minimum Funding Determination has been made on or prior to the commencement of Decommissioning of one or both of the Units, the Trustee shall make payments out of the Provisional Trust upon presentation to the 8
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Trustee of a Decommissioning Certificate by the Company instructing the Trustee to disburse amounts in the Provisional Trust in a manner designated in such Decommissioning Certificate for purposes of paying costs, liabilities and expenses of Decommissioning. If the assets of the Provisional Trust are insufficient to permit the payment in full of amounts to be paid pursuant to a Decommissioning Certificate, the Trustee shall have no liability with respect to such insufficiency and no obligation to use its own funds to pay the same.
(e) Notice to the NRC. Notwithstanding anything in this Agreement to the contrary, no disbursements or payments shall be made from this Provisional Trust, other than Administrative Expenses in accordance with Section 4.02 above, unless the Trustee shall have given thirty (30) Business Days' prior written notice of such disbursement or payment to either the Director (the "NRR Director"), Office of Nuclear Reactor Regulation of the NRC or the Director (the "NuclearSafety Director'), Office of Nuclear Material Safety and Safeguards of the NRC, as appropriate, setting forth in reasonable detail the basis for such disbursement or payment; provided, however, that if the Trustee receives prior written notice of objection from either the NRR Director or the Nuclear Safety Director, as appropriate, no such payment or disbursement shall be made.
After the Company has first authorized the Trustee to disburse funds from the Provisional Trust to pay Decommissioning Costs in accordance with 10 CFR 50.82(a)(8)(i) or other applicable NRC Regulation, the Trustee will no longer be obligated to notify the NRC for subsequent disbursements or payments in connection with Decommissioning the Units.
ARTICLE V - TERMINATION 5.01. Termination of Provisional Trust. Prior to the Closing, the Provisional Trust shall terminate only as and when the Purchase and Sale Agreement terminates, as provided in Section 4.05(a) above. From and after the Closing, the Provisional Trust shall terminate on the first to occur of (i) the date on which all the assets and property of the Provisional Trust have been distributed pursuant to Section 4.05(b), (c), or (d) above, (ii) the completion of the Decommissioning of the Units (as evidenced by written notification of that fact to the Trustee by the Authorized Representative) or (iii) twenty-one (21) years after the death of the last survivor of each person who was an officer or director of the Company on the date of this Agreement and each of their descendants born on or prior to that date. Prior to its termination this Provisional Trust shall be irrevocable.
5.02. Distribution of Provisional Trust Upon Termination. Upon termination of this Provisional Trust, the Trustee shall liquidate the assets of the Provisional Trust and distribute them (including accrued, accumulated and undistributed net income) in such manner as is consistent with any terms and conditions imposed by any Governmental Authority with jurisdiction over the Units, less all reasonable final Administrative Expenses (including accrued taxes), to the Company.
ARTICLE VI - TRUSTEES 6.01. Designation and Qualification of Successor Trustee(s).
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(a) At any time during the term of this Provisional Trust, the Company shall have the right to remove the Trustee (at the Company's sole discretion) acting hereunder and appoint another qualified entity as a successor Trustee upon thirty (30) days' notice in writing to the Trustee, or upon such shorter notice as may be acceptable to the Trustee. In the event that the bank or trust company serving as Trustee or successor Trustee shall: (i) become insolvent or admit in writing its insolvency; (ii) be unable or admit in writing its inability to pay its debts as such debts mature; (iii) make a general assignment for the benefit of creditors; (iv) have an involuntary petition in bankruptcy filed against it; (v) commence a case under or otherwise seek to take advantage of any bankruptcy, reorganization, insolvency, readjustment of debt, dissolution or liquidation law, statute, or proceeding or (vi) resign, the Company shall appoint a successor Trustee as soon as practicable. In the event of any such removal or resignation, the Trustee or successor Trustee shall have the right to have its accounts finalized as provided in Section 6.05. Any successor to the Company, as provided herein, shall have the same right to remove and to appoint any Trustee or successor Trustee.
(b) Any successor Trustee shall be a bank or trust company incorporated and doing business within the United States of America and having a combined capital and surplus of at least Two Hundred Fifty Million Dollars
($250,000,000), if there be such an institution willing, able and legally qualified to perform the duties of Trustee hereunder upon reasonable or customary terms.
(c) Any successor Trustee shall qualify by a duly acknowledged acceptance of this Provisional Trust, delivered to the Company. Upon acceptance of such appointment by the successor Trustee, the Trustee shall assign, transfer and pay over to such successor Trustee the assets then constituting the Provisional Trust. Any successor Trustee shall have all the rights, powers, duties and obligations herein granted to the original Trustee.
6.02. Exoneration from Bond. No bond or other security shall be exacted or required of any Trustee or successor Trustee appointed pursuant to this Agreement.
6.03. Resignation. The Trustee or any successor Trustee hereof may resign and be relieved as Trustee at any time without prior application to or approval by or order of any court by a duly acknowledged instrument, which shall be delivered to the Company by the Trustee no less than thirty (30) days prior to the effective date of the Trustee's resignation or upon such shorter notice as may be acceptable to the Company. If for any reason the Company cannot or does not act in the event of the resignation of the Trustee, the Trustee may apply to a court of competent jurisdiction for the appointment of a successor Trustee and the cost of making such application shall be an Administrative Expense.
6.04. Transactions With Third Parties. No person or organization dealing with the Trustee hereunder shall be required to inquire into or to investigate its authority for entering into any transaction or to see to the application of the proceeds of any such transaction.
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6.05. Accounts and Reports.
(a) The Trustee shall keep accurate and detailed accounts of all investments, receipts and disbursements and other transactions hereunder with respect to the Provisional Trust in accordance with specifications of the Company, and all accounts, books and records relating thereto shall be open to inspection and audit at all reasonable times with reasonable notice by any person designated by the Company. Within twenty-five (25) days following the close of each month, the Trustee shall provide a written report of the estimated market value of the Provisional Trust, prepared on an accrual basis to the Company. Within thirty-five (35) days following the close of each month, the Trustee shall file with the Company a final written report setting forth all investments, receipts and disbursements and other transactions effected by it during the month and containing an exact description of all cash and securities purchased, sold or distributed and the cost or net proceeds of sale, and showing all cash, securities and other investments held at the end of such month and the cost and fair market value of each item thereof as carried on the books of the Trustee. Such accounts and reports shall be based on the accrual method of reporting net income and expenses.
(b) Upon the expiration of ninety (90) days from the date of filing such written reports with the Company, the Trustee shall be forever released and discharged from all liability or accountability to anyone with respect to all acts and transactions shown in such written reports, except such acts or transactions as to which the Company shall take exception by written notice to the Trustee within such ninety (90) day period; provided, however, that nothing contained in this Section 6.05(b) shall be deemed to relieve the Trustee of any liability imposed pursuant to Section 6.07. In the event that any exception taken by the Company cannot be amicably adjusted, the Company may, within one (1) year of the date of such exception, file the written report in a court having jurisdiction and upon the audit thereof any and all such exceptions which may not have been amicably settled shall be heard and adjudicated. Any exception not so filed within one (1) year shall be deemed waived and any liability of the Trustee with respect thereto shall be deemed released.
(c) All records and accounts maintained by the Trustee with respect to the Provisional Trust shall be preserved for such period as the Company shall specify and in the absence of any instructions from the Company shall be preserved for a period of four (4) years. Upon the expiration of any such required retention period, the Trustee shall have the right to destroy such records and accounts after first notifying the Company in writing of its intention and transferring to the Company (originals or copies, as appropriate), any records and accounts requested by it.
6.06. Tax, Returns and Other Reports. The Company, or the Trustee at the Company's direction, shall prepare and file any federal, state and local income or franchise tax returns and other reports (including estimated tax returns and information returns) as may be required from time to time with respect to the Provisional Trust, and the Trustee agrees to provide the Company in a timely manner with any information which is necessary to such filings, if any, which information is not in the possession of the Company. The Trustee shall prepare and submit to the Company in a timely manner all information requested by the Company regarding 11 LIBNY/1033350.6
the amounts required to be included in the Company's federal, state and local income tax return and other reports (including estimated tax returns and information returns). The Trustee may employ independent certified public accountants or other tax counsel to prepare or review such returns and reports and the reasonable cost thereof shall be an Administrative Expense. The Trustee agrees to sign any tax returns or other reports where required by law to do so or arising out of the Trustee's responsibilities hereunder and to remit from the Provisional Trust appropriate payments or deposits of federal, state and local income or franchise taxes or directly to the taxing agencies or authorized depositories or to the Company, in the event that the Company has directly paid such taxes. Any interest or penalty charges assessed against the Provisional Trust pursuant to Chapters 67 or 68 of the Code or pursuant to any similar state or local provisions, as a result of the Trustee's failure to comply with this Section 6.06 shall be an Administrative Expense unless caused by the Trustee's negligence or willful misconduct, in which case such interest or penalty charges shall be borne by the Trustee and not the Provisional Trust. The Trustee agrees to notify the Company in writing within ten (10) days of the commencement of the audit of the Provisional Trust's federal, state or local tax returns, and to participate with the Company, on behalf of the Provisional Trust in such audits and related inquiries. The Trustee further agrees to provide the Company with any additional information in its possession regarding the Provisional Trust which may be requested by the Company to be furnished in an audit of the Company's federal, state or local tax returns.
6.07. Liability (a) The Trustee shall not be liable for any loss or injury resulting from its actions or its performance of its duties hereunder or for its investment decisions in the absence of its own willful misconduct or negligence. In no event shall the Trustee be liable (i) for acting in accordance with instructions from a Company's Authorized Representative or pursuant to a legal opinion of counsel to the Trustee or to the Company, or (ii) for special or consequential damages or (iii) for any losses resulting from the deposit or maintenance of securities or other property (in accordance with market practice, custom, or regulation) with any recognized foreign or domestic clearing facility, book-entry system, centralized custodial depository, or similar organization.
(b) The Company shall indemnify the Trustee and hold it harmless against any and all claims, losses, liabilities, excise taxes, damages or reasonable expenses (including attorneys' fees and expenses) arising from or in connection with this Agreement or the performance of its duties hereunder, together with any income taxes imposed on the Trustee as a result of any indemnity paid by it hereunder, provided, however, that nothing contained herein shall require that the Trustee be indemnified for any liability imposed pursuant to clauses (a) of this Section 6.07. Nothing contained herein shall limit or in any way impair the right of the Trustee to indemnification under any other provision of this Agreement.
(c) The Company understands that when and if the Trustee delivers property against payment, it may deliver such property prior to receiving final payment and that, as a matter of bookkeeping convenience, the Trustee may credit the Provisional Trust with anticipated proceeds of sale prior to actual receipt of final payment. The risks 12 LIBNY/I 033350.6
of non-receipt of payment shall be the Company's and the Trustee shall have no liability therefor.
(d) All credits to the Provisional Trust of the proceeds of sales and redemptions of property and of anticipated income from property shall be conditional upon receipt by the Trustee of final payment and may be reversed to the extent final payment is not received. In the event that the Trustee in its discretion advances funds to the Provisional Trust to facilitate the settlement of any transaction, the Provisional Trust shall, immediately upon demand, reimburse the Trustee for such amounts plus any interest thereon, and to secure such obligations as well as any other obligations of the Provisional Trust hereunder, the Company, to the extent permitted by Applicable Law, hereby grants a continuing security interest in and pledges to the Trustee the property in the Provisional Trust and any funds so credited.
(e) The provisions of this Section 6.07 and the right of the Trustee to claim the benefit thereof shall survive any termination of this Agreement and any resignation or removal of the Trustee.
ARTICLE VII - TRUSTEE'S GENERAL POWERS The Trustee shall have, with respect to the Provisional Trust, the following powers, all of which powers are fiduciary powers to be exercised in a fiduciary capacity and in the best interests of this Provisional Trust and the purposes hereof, namely:
7.01. Registration of Securities. To hold any stocks, bonds, securities, and/or other property in the name of a nominee, in a street name, or by other title-holding device, without indication of trust, and generally to exercise the powers of an owner, including without limitation the power to vote in accordance with instructions provided by the Company, with respect to any such property whether so held or held in its own name, as Trustee.
7.02. Borrowing. To borrow money in such amounts and upon such terms as the Company may authorize in writing as necessary to carry out the purposes of this Provisional Trust, and to pledge any securities or other property for the repayment of any such loan as the Company may direct.
7.03. Retention and Removal of Professional and Employee Services. To employ attorneys, accountants, custodians, engineers, contractors, clerks and agents as may be reasonably necessary to carry out the purposes of the Provisional Trust. The reasonable cost of any such employment shall be an Administrative Expense payable from the Provisional Trust in accordance with Section 4.02.
7.04. Delegation of Ministerial Powers. To delegate to other persons such ministerial powers and duties as the Trustee may deem to be advisable.
7.05. Powers of Trustee to Continue Until Final Distribution. To exercise any of such powers after the date on which the principal and income of the Provisional Trust shall have become distributable and until such time as the entire principal of, and income from, the 13 LIBNY/1033350.6
Provisional Trust shall have been actually distributed by the Trustee in accordance with Section 4.05.
7.06. Discretion in Exercise of Powers. To do any and all other acts which the Trustee shall deem proper to effectuate the powers specifically conferred upon it by this Agreement; provided, however, that the Trustee may not do any act or participate in any transaction which would:
(a) Contravene any provision of this Agreement; or (b) Violate the terms and conditions of any instructions provided in a written statement of the Company.
7.07. Deposit of Funds. To deposit funds in interest bearing account deposits maintained by or savings certificates issued by the Trustee in its separate corporate capacity, or in any other banking institution affiliated with the Trustee.
7.08. Loaning of Securities. To loan securities to brokers or dealers or other borrowers under such terms and conditions as the Company authorizes pursuant to a separate agreement.
7.09. Retention of Uninvested Cash. To hold uninvested cash awaiting investment and such additional cash balances as it shall deem reasonable or necessary, without incurring any liability for the payment of interest thereon.
ARTICLE VIII - INVESTMENTS 8.01. General Investment Powers. The Company may appoint one or more investment managers, which may include the Trustee, but shall not include the Company, to direct the investment of all or part of the assets of the Provisional Trust; provided, however, that (i) investments may not include any securities settled or safekept outside of the United States, (ii) investments in the securities or other obligations of Entergy Corporation and each of its affiliates or subsidiaries, or any of their successors or assigns are prohibited, and (iii) investments shall be limited to Investment-Grade Securities. Except for investments which replicate the composition of market indices or other non-nuclear sector mutual funds or common trust funds, investment in any entity owning one or more nuclear power plants is prohibited. (Each such investment manager is referred to herein as an "Investment Manager" and collectively as "Investment Managers.') The Company shall also have the right to remove such Investment Manager(s).
Whenever such appointment is made, the Company shall provide written notice of such appointment to the Trustee, shall specify the portion of the Provisional Trust with respect to which the Investment Manager has been designated, and shall instruct the Trustee to segregate into specified accounts those assets designated for management by each Investment Manager (each such account is referred to herein as an "Investment Account"). To the extent that assets are segregated into an Investment Account, the Trustee shall be released and relieved of all investment duties, responsibilities and liabilities customarily or statutorily incident to a trustee with respect to the assets in each such Investment Account, and as to such Investment Account the Trustee shall act as custodian. The Company shall cause the Investment Manager to certify in writing to the Trustee the identity of the person or persons authorized to give instructions or 14 LIBNY/1033350.6
directions to the Trustee on behalf of such Investment Manager and to provide specimen signatures of such persons. The Trustee may continue to rely upon and comply with all such certifications unless and until otherwise notified in writing by the Company or an Investment Manager, as the case may be. Notwithstanding anything else in this Agreement to the contrary, including, without limitation, any specific or general power granted to the Trustee and to the Investment Managers, including the power to invest in real property, no portion of the Fund shall be invested in real estate. For this purpose "real estate" includes, but is not limited to, real property, leaseholds or mineral interests.
8.02. Direction by Investment Marnager(s).
(a) An Investment Manager designated by the Company to manage an Investment Account shall have authority to manage and to direct the acquisition and disposition of the assets of the Provisional Trust, or a portion thereof, as the case may be, and the Trustee shall exercise the powers set forth in this Article VIII only when, if, and in the manner directed by the Company in writing, and shall not be under any obligation to invest or otherwise manage any assets in the Investment Account. An Investment Manager shall have the power and authority, exercisable in its sole discretion at any time, and from time to time, to issue and place orders for the purchase or sale of portfolio securities directly with qualified brokers or dealers. The Trustee, upon proper notification from an Investment Manager, shall settle the transactions in accordance with the appropriate trading authorizations. The Company shall cause each Investment Manager to promptly provide to the Trustee written notification of each transaction and shall cause each such Investment Manager to confirm in writing (or cause the broker or dealer to confirm in writing) the settlement of each such transaction to the Trustee and to the Company. Such notification shall be proper authority for the Trustee to pay for portfolio securities purchased against receipt thereof and to deliver portfolio securities sold against payment therefor, as the case may be. All directions to the Trustee by an Investment Manager shall be in writing and shall be signed by a person who has been certified by such Investment Manager pursuant to Section 8.01 as authorized to give instructions or directions to the Trustee.
(b) Should an Investment Manager at any time elect to place security transactions directly with a broker or a dealer, the Trustee shall not recognize such transaction unless and until it has received instructions or confirmation of such fact from an Investment Manager. Should an Investment Manager direct the Trustee to utilize the services of any person with regard to the assets under its management or control, such instructions shall be in writing and shall specifically set forth the actions to be taken by the Trustee as to such services. In the event that an Investment Manager places security transactions directly or directs the utilization of a service, such Investment Manager shall be solely responsible for the acts of such persons. The sole duty of the Trustee as to such transactions shall be incident to its duties as custodian.
(c) The authority of an Investment Manager and the terms and conditions of the appointment and the retention of an Investment Manager shall be the sole responsibility of the Company, and the Trustee shall not be deemed to be a party or to have any obligations under any agreement with an Investment Manager. Any duty of 15 LIBNY/1033350.6
supervision or review of the acts, omissions or overall performance of each Investment Manager shall be the exclusive responsibility of the Company, and the Trustee shall have no duty to review any securities or other assets purchased by an Investment Manager, or to make suggestions to an Investment Manager or to the Company with respect to the exercise or nonexercise of any power by an Investment Manager. Notwithstanding the foregoing, except in connection with the requirement that investments be in Investment-Grade Securities, the Trustee shall review all transactions of which it is notified by an Investment Manager to determine if such transactions are in conformance with the permitted investments as set forth in Exhibit A, and if they are not, to so notify the Company and the Investment Manager.
8.03. Trustee's General Investment Powers.
(a) The Trustee recognizes the authority of an Investment Manager to manage, invest, and reinvest the assets in an Investment Account pursuant to an investment manager agreement and as provided in this Article VIII, and the Trustee agrees to cooperate with any Investment Manager as deemed necessary to accomplish these tasks. Notwithstanding the foregoing, to the extent that the assets of the Provisional Trust have not been segregated into an Investment Account to be invested by an Investment Manager, the Trustee may agree to conduct the day-to-day investment management of such assets in accordance with the written general investment instructions of the Company.
(b) Nothing in this Agreement shall restrict the Trustee, in its individual capacity, from acting as an agent for, providing banking, investment advisory, investment management and other services to, and generally engaging in any kind of business with others (including, without limiting the generality of the foregoing, issuers of securities, of money market instruments or of other property purchased or on behalf of the Provisional Trust) to the same extent as if it was not the Trustee hereunder. Nothing in this Agreement shall in any way tie deemed to restrict the right of the Trustee, in its individual capacity, to perform services for any other person or entity, and the performance of such services for others will not be deemed to violate or give rise to any duty or obligation to the Company or the Provisional Trust not specifically undertaken by the Trustee hereunder. Nothing in this Agreement shall limit or restrict the Trustee, in its individual capacity, or any of its officers, affiliates or employees from buying, selling or trading in any securities for its or their own accounts. The Trustee, in its individual capacity, its officers, employees or affiliates, and its other clients may at any time have, acquire, increase, decrease or dispose of positions in investments which are at the same time being acquired or disposed of for the account of the Provisional Trust. The Trustee shall have no obligation to acquire for the Provisional Trust a position in any property which it acquires in its individual capacity, or which its officers, employees or affiliates may acquire for its or their own accounts or for the account of a client. The Trustee may invest in any collective, common or pooled trust fund operated or maintained exclusively for the commingling and collective investment of monies or other assets including any such fund operated or maintained by the Trustee or an affiliate. The Company expressly understands and agrees that any such collective fund may provide for the lending of its securities by the collective fund trustee and that such collective fund trustee will receive 16 LIBNY/1 033350.6
compensation for the lending of securities that is separate from any compensation of the Trustee hereunder, or any compensation of the collective fund trustee for the management of such collective fund. The Trustee is authorized to invest in a collective fund which invests in Mellon Financial Corporation stock in accordance with the terms and conditions of the Department of Labor Prohibited Transaction Exemption 95-56 (the "Exemption") granted to the Trustee and its affiliates and to use a cross-trading program in accordance with the Exemption. The Company acknowledges receipt of the notice entitled "Cross-Trading Information", a copy of which is attached to this Agreement as Exhibit D. The Trustee may purchase, enter, sell, hold, and generally deal in any manner in and with contracts for the immediate or future delivery of financial instruments of any issuer or of any other property; to grant, purchase, sell, exercise, permit to expire, permit to be held in escrow, and otherwise to acquire, dispose of, hold and generally deal in any manner with and in all forms of option in any combination.
ARTICLE IX - MISCELLANEOUS 9.01. Headings. The section headings set forth in this Agreement and the Table of Contents are inserted for convenience of reference only and shall be disregarded in the construction or interpretation of any of the provisions of this Agreement.
9.02. Interpretation. When a reference is made in this Agreement to an Article, Section, Schedule or Exhibit, such reference shall be to an Article or Section of, or Schedule or Exhibit to, this Agreement unless otherwise indicated. Any word contained in the text of this Agreement shall be read as the singular or plural and as the masculine, feminine, or neuter as may be applicable or permissible in the particular context. Unless otherwise specifically stated, the word "person" shall be taken to mean and include an individual, partnership, association, trust, company, or corporation.
9.03. Severability of Provisions. If any provision at this Agreement or its application to any person or entity or in any circumstances shall be invalid and unenforceable, the application of such provision to persons and in circumstances other than those as to which it is invalid or unenforceable and the other provisions of this Agreement, shall not be affected by such invalidity or unenforceability.
9.04. Delivery of Notices Under Agreement. Any notice, direction or instruction required by this Agreement to be given to the Company or the Trustee shall be deemed to have been properly given when delivered by personal service, mailed, postage prepaid, by registered or certified mail, to the person to be notified as set forth below:
17 LIBNY/I 033350.6
If to the Company:
( Entergy Nuclear Indian Point 2, LLC 440 Hamilton Avenue White Plains, NY 10601 Attention: Chief Operating Officer with a copy to:
Entergy Nuclear, Inc.
P.O. Box 31995 Jackson, MS 39286-1995 Attention: Assistant Secretary If to the Trustee:
Mellon Bank, N.A.
500 Grant Street, Room 1320 Pittsburgh, PA 15258 Attention: Mr. Glen Metzger The Company or the Trustee may change the above address by delivering notice thereof in writing to the other party.
9.05. Alterations an Amendments.
(a) The Trustee and the Company understand and agree that modifications or amendments may be required to this Agreement, and to the exhibits hereto, from time to time to effectuate the purpose of the Provisional Trust and comply with Applicable Law, any Order, any changes in tax laws, Regulations or rulings (whether published or private) of the Service and any similar state taxing authority, and any other changes to the laws applicable to the Company and the Units. Subject to Section 9.05(d) below, this Agreement, and the exhibits hereto, may be altered or amended to the extent necessary or advisable to effectuate such purposes or to comply with such Applicable Law, Order or changes, and to effectuate the distribution provisions of Article IV.
(b) Otherwise, this Agreement, and the exhibits hereto, may be amended, modified, or altered for any purpose requested by the Company so long as such amendment, modification, or alteration does not affect the use of the assets of the Provisional Trust to pay the Decommissioning Costs.
(c) Any alteration or amendment to, or modification of, this Agreement or an exhibit hereto must be in writing and signed by the Company and the Trustee. The Trustee shall execute any such alteration, modification or amendment required to be executed by it and shall accept and be governed by any amended, modified or altered schedule delivered to it but shall have no duty to inquire or make any 18 LIBNY/I 033350.6
investigation as to whether any amendment, modification or alteration is consistent with this Section 9.05.
(d) Notwithstanding anything in this Section 9.05 to the contrary, no material amendment, modification or alteration to this Agreement shall become effective unless the Company shall have provided at least thirty (30) Business Days' prior written notice of such material amendment, modification or alteration to either the NRR Director or the Nuclear Safety Director, as appropriate; provided, however, that if the Company receives prior written notice of objection from either the NRR Director or the Nuclear Safety Director, as appropriate, no such material amendment, modification or alteration shall be made.
9.06. Successors and Assigns. Subject to the provisions of Sections 2.07 and 6.01, this Agreement shall be binding upon and inure to the benefit of the Company and the Trustee and their respective successors, assigns, personal representatives, executors and heirs.
9.07. Governing Law.
(a) This Agreement, the Provisional Trust and all questions pertaining to their validity, construction, and administration shall be interpreted, construed and determined in accordance with the internal substantive laws (and not the choice of law rules) of the Commonwealth of Pennsylvania to the extent not superseded by federal law.
All actions and proceedings brought by the Trustee relating to or arising from, directly or indirectly, this Agreement may be litigated in courts located in the Commonwealth of Pennsylvania and the Company hereby submits to the jurisdiction of such courts. The Company and the Trustee hereby waive the right to a trial by jury in any action or proceeding brought hereunder.
(b) To the extent that, in any jurisdiction, the Company has or hereafter may acquire, or is or hereafter may be entitled to claim, for itself or its assets, immunity (sovereign or otherwise) from suit, execution, attachment (before or after judgment) or any other legal process brought by or on behalf of the Trustee and arising with respect to this Provisional Trust or the Trustee's functions hereunder, the Company irrevocably agrees not to claim, and hereby waives, such immunity.
9.08. Accounting Year. The Provisional Trust shall operate on an accounting year which coincides with the calendar year, January 1 through December 31.
9.09. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.
9.10. Decommissioning Liability. Nothing in this Agreement or in any amendment is intended to impose any responsibility on the Trustee for overseeing or paying the Decommissioning Costs other than, in the case of the Trustee, the disbursement of funds in accordance with Article IV.
19 LIBNY/1033350.6
9.11. Limitation on Trustee Liability. Notwithstanding anything in this Agreement to the contrary, the Trustee shall not be responsible or liable for its failure to perform under this Agreement or for any losses to the Provisional Trust resulting form any event beyond the reasonable control of the Trustee, its agents or subcustodians, including but not limited to nationalization, strikes, expropriation, devaluation, seizure, or similar action by any Governmental Authority, de facto or de jure; or enactment, promulgation, imposition or enforcement by any such Governmental Authority of currency restrictions, exchange controls, levels or other charges affecting the Provisional Trust's property; or the breakdown, failure or malfunction of any utilities or telecommunications systems; or any order or regulation of any banking or securities industry including changes in the market rules and market conditions affecting the execution or settlement of transactions; or acts of war, terrorism, insurrection or revolution; or acts of God; or any other similar event. This Section 9.11 shall survive the tennination of this Agreement.
9.12. Entire Agreement. This Agreement constitutes the entire agreement between the Company and the Trustee and supersedes any prior understandings, agreements or representations by or between the parties, written or oral, to the extent related in any manner to the subject matter hereof.
9.13. Representation. The Company and the Trustee each hereby represent and warrant to the other that it has full authority to enter into this Agreement upon the terms and conditions hereof and that the individual executing this Agreement on its behalf has the requisite authority to bind it to this Agreement.
[SIGNATURE PAGE FOLLOWS]
20 LIBNY/1033350.6
IN WITNESS WHEREOF, the Company and the Trustee have set their hands and seals to this Agreement as of the day and year first above written.
(
ENTERGY NUCLEAR INDIAN POINT 2, LLC By:_ A~ 6 )4O/W /
Name: Steven C. McNeal
Title:
Vice President and Treasurer Namer fichael A. Caruso
Title:
Assistant Treasurer MELLON , N.A., as Trustee By:
Name:
'btyvL0 Titlei Paul .Kraus - -
Attest: 6 / z VW Fgstdent N sFkancdal Corp. I
Title:
'4=rz I S-1 LIBNY/I1033350.6
STATE OF LOUISIANA )
) ss:
COUNTY OF ORLEANS )
I, J.Ca 1 k , a Notary Public in and for the aforesaid jurisdiction, do hereby certify A4X94 that Steven C. McNeal and Michael A. Caruso, who are personally known to me to be the persons who executed the foregoing Provisional Decommissioning Trust Agreement, personally appeared before me in the aforesaid jurisdiction, and as Vice President and Treasurer and Assistant Treasurer of ENTERGY NUCLEAR INDIAN POINT 2, LLC, and by virtue of the power and authority vested in them, acknowledged the same to be the act and deed of ENTERGY NUCLEAR INDIAN POINT 2, LLC and they executed the same as such.
Given under my hand and seal this day of /i , 20 d /.
Notary Pubf; State of NOw-'urk My commission exp LIBNY/I 033350.6
COMMONWEALTH OF PENNSYLVANIA )
COUNTY OF I, Ad"f kArA/, a Notary Public: in and for the aforesaid jurisdiction, do hereby certify that 6 R. 7*.v;-z-Gce and ?:KaeL K 1't-A& , who are personally known to me to be the persons who executed the foregoing Provisional Decommissioning Trust Agreement, personally appeared before me in the aforesaid jurisdiction, and as T>Air sr and Vl/CE °ff evo0c-wr of MELLON BANK, N.A., and by virtue of the power and authority vested in them, acknowledged the same to be the act and deed MELLON BANK, N.A.,
and they executed the same as such.
Given under my hand and seal this 30 day of A U6LJ6S ,20W/ .
Notary Public Commonwealth of Pennsylvania My commission expires /. /A.0 Notadal sew Leona Ersien. NotaLy Pubic Rdsbur^ AleghN Cony My Coffmssion Ecprs Nov.18.200 Member, Pennsylvania Associatoii of Notarios LIBNY/1033350.6
EXHIBIT A Permitted investments shall be any investments in Investment-Grade Securities permitted by Applicable Law; provided that, subject to clarification, if any, by the NRC, investments in the securities or other obligations of Entergy Corporation and each of its affiliates or subsidiaries, or any of their successors or assigns shall be prohibited. In addition, except for investments tied to market indexes or non-nuclear sector mutual funds or common trust funds, investments in any entity owning one or more nuclear power plants is prohibited. Permitted investments include investments tied to market indexes, mutual funds or common trust funds which may hold securities issued by Entergy Corporation, its affiliates and subsidiaries.
Exhibit A-I LIBNY/1033350.6
EXHIBIT B C
DECOMMISSIONING CERTIFICATE NO.
The undersigned Authorized Representative of Entergy Nuclear Indian Point 2, LLC, a Delaware limited liability company (the "Company"), being duly authorized and empowered to execute and deliver this Decommissioning Certificate, hereby certifies that payments in the amounts and to the payees listed below are for obligations duly incurred by the Company for the Decommissioning of Indian Point Units I and 2 under Applicable Law and hereby directs the Trustee of the Entergy Nuclear Indian Point Units I and 2 Provisional Decommissioning Trust (Provisional Trust), pursuant to Article IV of the Provisional Trust Agreement to pay to each payee listed, including the Company if so listed, (Payees) in Exhibit 1 hereto, the amounts set forth therein, and certifies that the payments requested are proper expenditures of the Provisional Trust.
Accordingly, request is hereby made that the Trustee provide for the withdrawal of
$ in order to permit payment of such sum to be made to the Payees. You are further requested to disburse such sum, once withdrawn, directly to such Payees in the following manner: [CHECK/WIRE TRANSFER/_ 1on or before 20_.
ENTERGY NUCLEAR INDIAN POINT 2, LLC By:
Name:
Authorized Representative Exhibit B- I LIBNY/1033350.6
EXHIBIT C DISTRIBUTION CERTIFICATE NO.
The undersigned Authorized Representative of Entergy Nuclear Indian Point 2, LLC, a Delaware limited liability company (the "Company"), being duly authorized and empowered to execute and deliver this Distribution Certificate, hereby certifies that the Company has a right, subject to the provisions of Section 4.05(e) of the Provisional Decommissioning Trust Agreement, to a distribution of all or a portion of the assets of the Provisional Trust for the purpose indicated by the Company below, and as set forth more specifically in Exhibit I hereto, and hereby directs the Trustee of the Entergy Nuclear Indian Point Units 1 and 2 Provisional Decommissioning Trust (Provisional Trust), pursuant to Section 4.05 of the Provisional Decommissioning Trust Agreement, to pay to each payee listed, including the Company if so listed, (Payees) in Exhibit 2 hereto, the amounts set forth therein, and certifies that the payments requested are proper expenditures of the Provisional Trust.
Accordingly, request is hereby made that the Trustee provide for the withdrawal of
$ in order to permit payment of such sum to be made to the Payees. You are further requested to disburse such sum, once withdrawn, directly to such Payees in the following manner: [CHECK/WIRE TRANSFER/_ 1on or before , 20_.
o Distribution in the Event of at Pre-Closing Termination o Distribution in the Event of a Post-Closing Minimum Funding Determination o Distribution in the Event of a.Post-Closing Excess Funding Determination ENTERGY NUCLEAR INDIAN POINT 2, LLC By:
Name:
Authorized Representative Exhibit C-l LIBNY/I 033350.6
EXHIBIT D CROSS-TRADING INFORMATION As part of the cross-trading program covered by the Exemption for the Trustee and its affiliates, the Trustee is to provide to each affected Trust the following information:
I. The existence of the cross-trading program The Trustee has developed and intends to utilize, wherever practicable, a cross-trading program for Indexed Accounts and Large Accounts as those terms are defined in the Exemption.
II. The "triggering events" creating cross-trade opportunities In accordance with the exemption three "triggering events" may create opportunities for cross-trading transactions. They are generally the following (see the Exemption for more information):
A. A change in the composition or weighting of the index by the independent organization creating and maintaining the index; B. A change in the overall level of investment in an Indexed Account as a result of investments and withdrawals of the account's opening date, where the Account is a bank collective fund, or on any relevant date for non-bank collective funds; provided, however, a change in an Indexed Account resulting from investments or withdrawals of assets of the Trustee's own plans (other than the Trustee's defined contribution plans under which participants may direct among various investment options, including Indexed Accounts) are excluded as a "triggering event"; or C. A recorded declaration by the Trustee that an accumulation of cash in an Indexed Account attributable to interest or dividends on, and/or tender offers for, portfolio securities equal to not more than 0.5% of the Account's total value has occurred.
III. The pricing mechanism utilized for securities purchased or sold Securities will be valued at the current market value for the securities on the date of the crossing transaction.
Equity securities - the current market value of the equity security will be the closing price on the day of trading as determined by an independent pricing service; unless the security was added to or deleted from an index after the close Exhibit D- I LIBNY/I 033350.6
of trading, in which case the price will be the opening price for that security on the next business day after the announcement of the addition or deletion.
(
Debt securities - the current market value of the debt security will be the price determined by the Trustee as of the close of the day of trading according to the Securities and Exchange Commission's Rule 17a-7(b)(4) under the Investment Company Act of 1940.
Debt securities that are not reported securities or traded on an exchange will be valued based on an average of the highest current independent bids and the lowest current independent offers on the day of cross-trading. The Trustee will use reasonable inquiry to obtain such prices from at least three independent sources that are brokers or market makers. If there are fewer than three independent sources to price a certain debt security, the closing price quotations will be obtained from all available sources.
IV. The allocation methods Direct cross-trade opportunities will be allocated among potential buyers or sellers of debt or equity securities on a prorata basis. With respect to equity securities, please note the Trustee imposes a trivial share constraint to reduce excessive custody ticket charges to participating accounts.
V. Other procedures implemented by the Trustee for its cross-trading practices
( The Trustee has developed certain internal operational procedures for cross-trading debt and equity securities. These procedures are available upon request.
(
Exhibit D-2 LIBNY/1033350.6