Exhibit 10.18.2
FORM OF
COMPOSITE OF AGREEMENT FOR SEABROOK
PROJECT DISBURSING AGENT THROUGH
SECOND AMENDMENT TO RESTATED AGREEMENT
This Agreement for Seabrook Project Disbursing Agent, dated as of
May 23, 1984 ("Disbursing Agent Agreement" or "Agreement"), as heretofore
amended and herein restated to include all nine amendments, by and among
Public Service Company of New Hampshire, The United Illuminating Company,
Canal Electric Company (successor in interest to New Bedford and Edison
Light Company), The Connecticut Light and Power Company, EUA Power
Corporation, Massachusetts Municipal Wholesale Electric Company, Montaup
Electric Company, New England Power Company, New Hampshire Electric
Cooperative, Inc., Taunton Municipal Lighting Plant, Hudson Light & Power
Department and Vermont Electric Generation and Transmission Cooperative,
Inc. (collectively, the "Participants") and North Atlantic Energy Service
Corporation ("NAESCO" or "Disbursing Agent").
WITNESSETH THAT:
This Agreement is made pursuant to the provisions of Paragraph 35 of
the John Ownership Agreement to establish the powers, duties,
responsibilities, terms of employment and compensation of, and other
matters respecting, the Disbursing Agent appointed to receive, hold and
disburse payments due from Participants in the Seabrook Project.
1. Appointment of NAESCO as Disbursing Agent under the Joint
Ownership Agreement.
1.1 Appointment. The Participants hereby appoint NAESCO to act as
their Disbursing Agent under the terms of the Joint Ownership Agreement as
now in effect and as it may from time to time be amended or modified in the
future, and NAESCO hereby accepts this appointment. The scope of the
agency is as set forth in this Agreement.
1.2 Powers, etc. NAESCO's powers, duties, and responsibilities under
this Agreement shall be limited to activities reasonably incident to
collection and disbursal of Participants' payments for their respective
shares of costs of the Seabrook Project, as is more fully set out below in
Paragraph 1.5 and Paragraph 2.
1.3 Agency. For purposes of this Agreement, the Participants agree
that NAESCO shall act as agent for each of the Participants individually
(and not jointly or jointly and severally). With respect to certain other
agreements, the following provisions shall apply:
(1) In the event of any conflict between the provisions of this
Agreement and the Managing Agent Operating Agreement, the provisions of
this Agreement shall prevail.
(2) The parties to this Agreement on April 27, 1984, entered into an
agreement entitled "Interim Agreement to Preserve and Protect the Assets of
and Investment in the New Hampshire Nuclear Units" ("Interim Agreement").
This Agreement does not supersede the Interim Agreement, and any bills or
invoices paid pursuant to that agreement shall not be paid or deemed paid
pursuant to this Agreement.
(3) In the event of any conflict between the provisions of this
Agreement and the provisions of the Joint Ownership Agreement, the
provisions of the Joint Ownership Agreement shall prevail.
1.4 Escrowed Funds. Notwithstanding anything the contrary contained
elsewhere in this Agreement, all monies paid to NAESCO under this
Agreement, including without limitation, vendor credits received under
Paragraph 2.6 and gains from investment or interest under Paragraph 2.3
shall not be the property of the Participants but shall be held at all
times in escrow by NAESCO in the accounts established under Paragraph 2.3
hereof to be disbursed by NAESCO pursuant to the provisions hereof. Upon
termination of this Agreement, the Executive Committee will determine
whether the moneys held by the Disbursing Agent exceed future Project Costs
and any necessary reserves and, if so, will issue instructions to the
Disbursing Agent for the distribution of such surplus consistent with the
intent and purpose of this Agreement.
1.5 Disbursements. Except as otherwise specifically set out herein,
NAESCO shall disburse monies received from and credited to each Participant
only to pay that Participant's pro rata share, as defined in Paragraph 5.1
below, of Project Costs as defined in Paragraph 1.6. Monies received by
NAESCO from, or credited to, PSNH pursuant to Paragraphs 23.10 or 23.11 of
the Joint Ownership Agreement may be applied only to pay MMWEC's pro rata
share of Project Costs as defined in the Joint Ownership Agreement.
1.6 Definitions. As used in this Agreement, the following terms
shall have the following meanings:
Costs of Completion means and includes all Project Costs that are
subject to contractual commitment to be paid by or incurred by the
Participants to complete construction of Unit 1 of the Seabrook Project,
including, without limitation, costs resulting from suspension and
restarting after suspension (if any) of the construction of Unit 1.
Without limiting the generality of the foregoing, Costs of Completion shall
include the cost of the initial nuclear fuel load for Unit 1 of the
Seabrook Project.
Project Costs means and includes those costs described in
Paragraph 1.5 above and in Paragraphs 11 and 13 and the Operating Deposit
described in 37.3(d)(i) of the Joint Ownership Agreement, including costs
of the design, construction, operation, maintenance, renovation and
termination or decommissioning (if any) of, and fuel for, Unit 1 of the
Seabrook Project, and with respect to the preservation, protection and
termination of Unit 2 of the Seabrook Project. Costs incurred for one or
more Participants' individual accounts are not Project Costs but may be
billed to such Participant or Participants by NAESCO directly.
Project Manager means North Atlantic Energy Service Corporation unless
and until a successor has received all necessary licenses and
authorizations to replace North Atlantic Energy Service Corporation and has
replaced North Atlantic Energy Service Corporation as Project Manager of
the Seabrook Project.
2. Billings, Deposits, Investments and Payments.
2.1 The Execution Committee. The Executive Committee established
pursuant to Paragraph 37 of the Joint Ownership Agreement (the "Executive
Committee"), or its successor, shall oversee the functions of the
Disbursing Agent. The Participants authorize the Executive Committee or
any designee of such Executive Committee (i) to perform the functions
assigned to it in this Agreement, and (ii) to provide direction to NAESCO
in the fulfillment of NAESCO's responsibilities under this Agreement.
NAESCO agrees that it will operate under the direction of the Executive
Committee or its designee.
2.2(a) Routine Monthly Billing. Not later than the 15th day of each
month, or the first business day thereafter, the Disbursing Agent shall,
subject to the provisions of Paragraph 37.3(f) of the Joint Ownership
Agreement, bill ("routine monthly billing") each Participant for its pro
rata Ownership Share of the estimated Project Costs for the subsequent
month under the approved then current six-months' budget, as established
pursuant to Paragraphs 37.3(a), 37.3(b), and 37.3(c) of the Joint Ownership
Agreement. Each invoice shall be due and payable on the first business day
of the next following month. Any amount not paid on such date shall bear
interest from said date until the date of payment at the rate provided in
the Joint Ownership Agreement. In the event that one or more Participants
have not paid their routine monthly billing by the due date, the Disbursing
Agent shall notify the Executive Committee of such fact and the details
thereof and obtain specific direction from the Executive Committee.
Succeeding routine monthly billings shall set forth a reconciliation for
the previous month between the estimated Project Costs previously billed,
including any interim payments billed pursuant to Paragraph 2.2(c) below,
and the actual Project Costs incurred. Such billings also shall set forth
a credit or debit to the then current routine monthly billed amount to
reflect such reconciliation and interest due for late payment or other
adjustments such as vendor credits and interest. The routine monthly
billings shall show as debits or credits the amounts necessary to restore
the Operating Deposit (as defined in Paragraph 37.3(d)(i) of the Joint
Ownership Agreement) to the target amount set from time to time as provided
in the Joint Ownership Agreement, and such amounts shall be funded by the
Participants as provided in Paragraph 37.3(d)(i) and (d)(ii) of the Joint
Ownership Agreement. The Disbursing Agent shall not include in a routine
monthly billing for Project Costs a bill for funds for a major expenditure
unless such expense is to be paid by the Disbursing Agent during the month
for which the routine monthly billing is made. Unless otherwise directed
by the Executive Committee or provided by the Joint Ownership Agreement,
any net interest paid by any Participant with respect to its overdue
payment for any month's bill shall be credited by the Disbursing Agent, pro
rata determined by Ownership Share, to those Participants which made timely
payment of their bills for each such month.
2.2(b) Operating Deposit. After Commercial Operation of Unit No. 1,
the Disbursing Agent shall bill each Participant for its pro rata share of
the target amount of the Operating Deposit as provided in
Paragraph 37.3(d)(i) and (ii) of the Joint Ownership Agreement. Such
billing shall be included in the routine monthly billing made by the
Disbursing Agent under Paragraph 2.2(a) above. The Operating Deposit shall
be held by the Disbursing Agent with the routine monthly billing payments
to provide sufficient working capital for the Project, in escrow as
provided in Paragraphs 1.4 and 2.13 of this Agreement and in
Paragraph 37.3(h) of the Joint Ownership Agreement, solely for the benefit
of creditors of the Project, to be disbursed solely to pay each
Participant's Ownership Share of Project Costs, and at no time shall any of
such funds be the property of the Disbursing Agent.
2.2(d) Interim Billing. Subject to the prior approval of the
Executive Committee, the Disbursing Agent may, when and to the extent
authorized by Paragraph 37.3(g) of the Joint Ownership Agreement, obtain an
interim payment from each Participant by means of an interim billing to all
Participants, for payment of unanticipated expenditures which, in the
absence of such interim payment, would result in the reduction at the end
of the month of the sum of (i) the balance of the Operating Deposit and
(ii) the amounts of funds then remaining from the routing monthly billings
to the minimum required amount set forth in Paragraph 37.3(g) of the Joint
Ownership Agreement, or less. To the extent that any interim billing would
result in estimated Project Costs exceeding the then current six-months'
budget, such interim billing shall require approval, in advance, as
provided in Paragraph 37.3(c)(i) and (ii) of the Joint Ownership Agreement.
Upon receipt of the aforesaid required approvals, the Disbursing Agent
shall without delay bill each Participant for its pro rata Ownership Share
of the interim billing which shall be the amount necessary to restore said
minimum required balance. Each interim billing shall be due and payable
ten business days after issuance by the Disbursing Agent and any amount not
paid by such date shall bear interest from said due date until the date of
payment at the rate provided in the Joint Ownership Agreement. Each
interim billing shall be accompanied by a letter from the Project Manager
or the Managing Agent confirming the amount required and the reason for the
request.
2.3(a) Deposit of Funds. The Disbursing Agent shall establish one or
more bank accounts ("bank account(s)") at one or more banks or trust
companies organized under the laws of the United States or one of the
states with a combined capital and surplus of at least $10,000,000, which
is subject to supervision or examination by federal or state authority and
is not a creditor of any Participant. The Executive Committee shall have
the right to approve the selection of, and direct the Disbursing Agent to
change banks if the Executive Committee determines such to be in the best
interests of the Project. The monies deposited and held in all bank
accounts shall at all times be subject to the provisions of Paragraphs 1.4
and 2.13 of this Agreement and Paragraph 37.3(h) of the Joint Ownership
Agreement, and each bank account shall be denominated to show that it is an
escrow account.
2.3(b) Investment of Monies. To the extent that monies held in bank
accounts are not immediately required to pay Project Costs pursuant to
Paragraph 2.5 of this Agreement, the Disbursing Agent shall to the maximum
extent practicable invest such monies in one or more investment pool
accounts ("investment pool accounts") which have been selected by the
Disbursing Agent pursuant to investment guidelines developed and modified
from time to time by the Disbursing Agent, all with the approval of the
Executive Committee. Annually, a Participant shall inform the Disbursing
Agent of the particular investment pool account it prefers. The monies
deposited and held in all investment pool accounts and all earnings and
gains thereon shall at all times be subject to the provisions of
Paragraphs 1.4 and 2.13 of this Agreement and Paragraph 37.3(h) of the
Joint Ownership Agreement, and each investment pool account shall be
denominated to show that it is an escrow account. The Disbursing Agent
shall maintain records which show the earnings and gains of each investment
pool account and the credits from such earnings and gains which are
attributable to each Participant. Such credits shall be entered into the
escrow account maintained by the Disbursing Agent in the name of such
Participant. Each Participant shall directly pay such taxes on such gains
and earnings on investment pool accounts as may be attributable to it.
2.3(c) Executive Committee Satisfaction. The procedures for
selecting, establishing, maintaining and changing bank accounts and
investment pool accounts, and the receipt, holding, investment and
disbursement of all monies and credits, shall at all times be satisfactory
to the Executive Committee.
2.4 Daily Payment Certificates. On a daily basis, the Project
Manager shall present a certificate to NAESCO signed by an officer or
authorized agent of the Project Manager, certifying:
(i) the total amount of payments to be made for bills, invoices
and requests for payment covering Project Costs; and\
(ii) that such expenditures have been authorized as provided in
Paragraph 37 of the Joint Ownership Agreement. Such certificate, when
accompanied by an invoice approved by the Project Manager, an audited
voucher and a check (if required by NAESCO) for each payment being made,
shall be presented to NAESCO for NAESCO's review and payment.
2.5 Project Costs Payments. NAESCO shall withdraw and disburse
monies from the appropriate bank accounts to pay each Participant's pro
rata share of Project Costs, but NAESCO shall pay only those Project bills
that have been duly certified as provided in Paragraph 2.4 above. Before
making payment, NAESCO shall review all Project bills submitted for payment
to ensure compliance with these requirements. After following these
procedures, NAESCO shall pay such approved Project bills, in whole or in
part, directly to the vendors, as provided in Paragraph 1.5 of this
Agreement. In the event of, and as a condition to, a partial payment,
NAESCO shall obtain from the payee a release or waiver, in a form approved
by the Executive Committee, of liability, of each Participant that has
contributed its pro rata share of such payment (including a waiver of liens
on Seabrook Project real or personal property), unless the Executive
Committee otherwise directs in each specific case.
2.6 Vendor Credits. The Project Manager will deliver to NAESCO,
without delay, any and all monies derived from vendor credits, chargebacks
and other reimbursements ("vendor credits") that it receives on the
Seabrook Project. The Project Manager will notify all vendors to deliver
all such vendor credits on the Seabrook Project to, and to make such vendor
credits payable to, NAESCO as Disbursing Agent for the Participants.
Checks or other instruments representing such vendor credits, if payable to
the Project Manager, shall be properly endorsed by the Project Manager or
its agent to be payable to the order of NAESCO as Disbursing Agent. Upon
receipt of such vendor credits, NAESCO shall promptly deposit the same into
the appropriate bank account and credit each Participant, pro rata
according to its respective Ownership Share at the time the expense was
billed to the Participants, except that if any Participant did not pay its
pro rata share of such expense, such Participant shall not be entitled to
such credit. NAESCO shall disburse all such vendor credits solely to pay
Project Costs. If any Participant has a surplus of such vendor credits
over its pro rata share of disbursements for Project Costs, NAESCO shall
retain such surplus and shall disburse it, in accordance with Paragraph 2.5
above, to pay such Participant's pro rata share of Project Costs in
subsequent months.
2.7 MMWEC Credits. Notwithstanding any other provision of this
Agreement to the contrary, credits, refunds, recoveries, and damages
(collectively "Credits") to which MMWEC would be entitled but which arise
on account of payments made by NAESCO from funds provided by other
Participants on or after July 28, 1988 (including payments made from funds
deposited with NAESCO before July 28, 1988) of MMWEC's pro rata share of
Seabrook Project Requirement Estimates, shall be applied by NAESCO to
MMWEC's Supplementary Advance Payment Account in accordance with NAESCO's
prior practice; provided, that if any Credit is in the amount of Twenty-
Five Thousand Dollars ($25,000.00) or more, such Credit shall not be so
applied by NAESCO, but NAESCO shall deposit the Credit into the main
account of the Participant which made the payment to which the Credit
relates; except that any such Credits related to MMWEC Supplementary
Advance Payments made under Paragraph 23.10 or 23.11 of the Joint Ownership
Agreement, which Credit is received while PSNH is obligated to make such
payments, shall be deposited into the MMWEC Supplementary Advance Payment
Account.
2.8 Executive Committee Instructions. NAESCO shall report to the
Executive Committee or its designee (1) for overall direction in carrying
out its function, (2) for specific approval of or direction with respect to
payment of specific Project bills, if NAESCO believes that there is a
question as to whether such Project bills have been duly certified or have
been duly authorized under Paragraph 37 of the Joint Ownership Agreement
and (3) for specific approval for payment of bills related to any program
adopted to reconcile past unpaid bills. NAESCO shall also provide a
monthly report to the Participants itemizing, in appropriate form and
detail, and in any event in such form and detail as the Executive Committee
may direct, all Seabrook Project disbursements, credits, expenses,
investment and interest income and monies received from Participants.
2.9 Records. NAESCO shall maintain separate records of each
Participant's payments, credits applied on its behalf and disbursements
applied against its payments and credits. Each Participant shall have the
unrestricted right to all financial records relating to the Seabrook
Project within the control of the Disbursing Agent, and its affiliates,
wherever located, except for information which is a) protected by law,
b) restricted by contract with third parties, or c) deemed commercially
sensitive by an affiliate or affiliates of the Disbursing Agent. If
requested financial records are restricted by contract with third parties,
the Disbursing Agent, and its affiliates, will use their best efforts to
obtain the consent of third parties to disclose confidential financial
records to Participants, with the understanding that Participants may be
required to sign a nondisclosure agreement. For financial records which
are considered commercially sensitive to (an) affiliate(s) of the
Disbursing Agent, upon the request of one or more Participants, such
affiliate shall allow for their review by an independent third party,
selected by the parties involved (other than the Disbursing Agent and its
affiliates) and acceptable to the Disbursing Agent (provided that the
Disbursing Agent may not unreasonably withhold its acceptance) to
determine, using an informal, simplified procedure, whether the financial
records in question are commercially sensitive. In any event, if
reasonable under the circumstances, the Disbursing Agent may require a
Participant to sign a nondisclosure agreement covering financial records
that it considers commercially sensitive.
Review of financial records at the offices of the Disbursing Agent, or
its affiliate companies, shall occur at reasonable times during normal
business hours, and shall be arranged in advance among the involved
parties. The Participants shall use reasonable efforts to avoid disrupting
the business operations of the Disbursing Agent or its affiliates.
The Disbursing Agent shall coordinate and facilitate the dissemination
of financial records between Seabrook Station and the Executive Committee
and/or the Participants.
Subject to the limitations set forth elsewhere in this Section 2.9,
any financial records relating to the project shall be provided to any
Participant requesting them, with the understanding that the Participant
may be required to pay for the cost of providing them in the circumstances
described in Section 2.13.
Without limiting the generality of this Section 2.9, any Participant
or the Executive Committee may request an audit of the accounts and records
of the Disbursing Agent, at its offices, at reasonable times, by an
independent certified accountant or other representative of the Participant
requesting the audit; provided that, absent extraordinary circumstances,
subject to the rights of the Participants under Section 18 (Arbitration) of
the Managing Agent Operating Agreement, a full-scope audit shall not be
performed at the request of the Executive Committee or one or more
Participants not affiliated with the Disbursing Agent more frequently than
once each year. If an audit is represented by the Executive Committee, the
costs thereof shall be borne by all Participants in proportion to their
Ownership Shares. If an audit is requested by one or more, but less than
all, of the Participants, the costs thereof shall be borne by the
Participant(s) making such request. If an audit is performed in connection
with an arbitration proceeding, the costs of the audit shall be allocated
among the Participants in accordance with the decision of the arbitrator.
2.10 Payments. All services rendered by the Disbursing Agent, or its
affiliates, under this Agreement shall be at actual cost thereof, fairly
and equitably allocated and calculated, all consistent with the
requirements of the Act and the rules and regulations and orders
thereunder. Direct charges will be made for services where a direct
allocation of cost is possible. Charges not directly assignable shall be
determined and allocated on a reasonable and equitable basis in accordance
with the Act and as approved by the Executive Committee, which approval
shall not be unreasonably withheld. The Disbursing Agent shall obtain
Executive Committee approval, which approval shall not be unreasonably
withheld, of the methodology utilized, as well as changes thereto, for
allocating costs to Seabrook Station prior to the implementation of such
methodology. Such allocation methods will be appropriately documented and
available for review by the Participants upon request. Without limiting
the generality of the foregoing, allocable costs include executive salaries
and fringe benefits paid by the Disbursing Agent, the insurance expenses
incurred by the Disbursing Agent and other general overhead expenses
incurred by the Disbursing Agent. The Disbursing Agent shall keep complete
and accurate accounts of all receipts and expenditures hereunder in
accordance with the rules and regulations of the Securities and Exchange
Commission and the Uniform System of Accounts prescribed for Public
Utilities and Licensees, subject to the provisions of the Federal Power Act
as amended from time to time (or such similar accounts as may hereafter
become appropriate) (hereinafter the "Uniform System of Accounts").
2.11 Consultants. The Executive Committee is authorized to engage
such consultants as it sees fit to assist it in carrying out its function
under this Agreement and shall bill each Participant on a monthly basis for
the cost thereof based upon each such Participant's pro rata Ownership
Share of such costs. Each Participant will pay its pro rata share of such
bills and shall only be liable for such pro rata share.
2.12 Reports. This Agreement shall not affect the obligations of the
Project Manager to provide accounting reports to the other Participants
pursuant to the Joint Ownership Agreement or the Managing Agent Operating
Agreement.
2.13 Technical Assistance. Upon request, the Disbursing Agent shall
assist the Participants in regulatory proceedings and other contested
matters relative to the Plant, including the provision of witnesses and of
current and accurate data on a timely basis.
Information, including witness support, that will require a
substantial commitment of time or a substantial effort to assemble or
develop, and is neither a) required by a substantial number of
Participants, nor b) requested by the Executive Committee, shall be paid
for by the Participant(s) requesting such information. The Disbursing
Agent, in consultation with the Executive Committee, shall develop a
reasonable standard by which it will determine how and when a Participant
is to be charged for information requested.
2.14 NAESCO Covenant re Escrowed Funds. NAESCO agrees and stipulates
that neither it nor any of its creditors shall have any interest in the
bank accounts, the investment pool accounts, or in monies deposited therein
or credits applied thereto, and that the bank accounts and investment pool
accounts have been created and are being held in escrow solely for the
vendors whose bills have been certified for payment pursuant to
Paragraph 2.4 above, subject to the terms of, and to maintaining and
disbursing funds in the bank accounts in accordance with, this Agreement.
2.15 PSNH/MMWEC Settlement. Notwithstanding any other provision of
this Agreement to the contrary, on and after August 1, 1989, and in order
to give effect thereto:
(a) MMWEC shall have no liability for payment or repayment to NAESCO
of any amounts applied by NAESCO for MMWEC Project Costs from funds held by
NAESCO for MMWEC's account since June 1, 1988 (including payment or
refunding any of the prefunded amounts drawn down by MMWEC from June 1,
1988 through July 28, 1988);
(b) MMWEC shall have no liability to pay any interest or penalties
with respect to the aforesaid application of funds by NAESCO or with
respect to MMWEC's nonpayment of MMWEC Project Costs;
(c) PSNH shall not incur any additional obligations or liability as a
result of making payments required under Paragraphs 1 and 6 of the
Memorandum of Understanding of November 4, 1988 between PSNH and MMWEC,
except for the additional liability that PSNH assumes with respect to the
obligations of MMWEC under Paragraphs 23.10 and 23.11 of the Joint
Ownership Agreement, as amended, and only to the extent specifically
provided therein; and
(d) MMWEC shall not be liable for any payment which PSNH is to make
under Paragraphs 23.10 and 23.11 of the Joint Ownership Agreement, as
amended, whether or not PSNH makes such payment.
2.16 Further Amendment. The provisions of this Agreement not
specifically amended by the Sixth Amendment, including without limitation
the provisions of Section 5.1, shall be deemed to have been modified,
without the necessity of further formal amendment, as may be necessary to
given effect to the provisions of Paragraphs 23.10 and 23.11 of the Joint
Ownership Agreement with respect to payments to be made by PSNH thereunder
which MMWEC but for said Amendment would have been obligated to make.
2.17 No Setoff. The Participants' obligation to make payments to
NAESCO hereunder is absolute and unconditional and a Participant shall not
be entitled to set off against the payments required to be made hereunder
any amounts owed to it by NAESCO or any affiliate of NAESCO or by any other
Participant or the amount of any claim by it against NAESCO or any
affiliate of NAESCO or any other Participant.
3. Removal or Resignation of NAESCO and Appointment of Successor
NAESCO may resign at any time by giving twenty-one (21) days' prior
written notice thereof to each of the Participants. Such resignation shall
become effective on the date specified in the notice, or upon the
appointment of and acceptance by a successor, whichever is earlier. Upon
agreement of Participants owning sixty-two percent (62%) or more of the
Ownership Shares in the Seabrook Project, the Participants may at any time
remove NAESCO without cause upon twenty-one (21) days' prior written notice
to NAESCO, and with cause upon seven (7) days' prior written notice to
NAESCO. Such removal shall become effective on the date specified in the
notice. In the event of resignation or removal, NAESCO shall be entitled
to compensation under Paragraph 2.10 of this Agreement until the effective
date of such resignation or removal. In the event NAESCO resigns or is
removed, the Participants shall use their best efforts to appoint a
successor upon agreement of Participants owning sixty-two percent (62%) or
more of the Participants' Ownership Shares in the Seabrook Project. Any
successor agent shall execute an instrument accepting such appointment and
shall thereupon become vested with and subject to all properties, rights,
powers, and duties of NAESCO, as if originally named in the provisions
hereof (including this Paragraph 3). NAESCO shall duly assign, transfer
and deliver to the successor agent all records, property, and money held by
it hereunder, provided that NAESCO may retain copies of such records.
4. Liability and Indemnification
4.1 NAESCO. NAESCO shall not be responsible for the genuineness of
any signature and may rely conclusively upon, and shall be protected in
acting upon, any certificate, notice, request, consent, statement or other
instrument believed by it in good faith to be duly authorized and properly
made. The duties and obligations of NAESCO hereunder shall be governed
solely by the provisions of this Agreement and Joint Ownership Agreement.
For and in consideration of the fact that NAESCO is undertaking
responsibility under this Agreement for and on behalf of the Participants
without any compensation or charge other than recovery of its costs for
such service, no Participant shall be entitled to recover from NAESCO or
the directors, trustees, officers, employees, agents or affiliates of
NAESCO (or the directors, trustees, officers, employees or agents of such
affiliates) (collectively, "Protected Parties") any damages resulting from
performance or nonperformance of its respective responsibilities hereunder
or under the Joint Ownership Agreement, or for any damage to the Seabrook
Project, any curtailment of power, or any other damages of any kind,
including direct, incidental, consequential, special, indirect or punitive
damages occurring during the course of the design, engineering,
procurement, installation, construction, operation, maintenance, refueling
or decommissioning of the Seabrook Project or otherwise arising out of the
performance or nonperformance of this Agreement, unless such damages shall
have resulted directly from the willful misconduct of NAESCO, or, to the
extent legally attributable to NAESCO, directly from the willful misconduct
of a Protected Party. Notwithstanding the above, no Participant shall be
entitled to recover any such damages if such damages result from NAESCO's
or a Protected Party's actions or omissions that have been expressly
approved by the Executive Committee or by the Participants. All goods and
services provided to the Seabrook Project by a Protected Party shall be
under a written contract having the same limitation of liability as above;
provided, however, that the same limitation of liability shall also apply
even if goods and services are provided without a written contract. The
provisions of this Section 4.1 shall apply notwithstanding any provision of
this Agreement to the contrary and shall survive the expiration or
termination of this Agreement. NAESCO shall not have any duty to use its
own funds in carrying out its responsibilities under this Agreement.
4.2 Executive Committee. Notwithstanding the provisions of
Section 4.1 of this Agreement, neither the Executive Committee nor any
member nor designee thereof, when acting in such capacity, nor any employer
of any member or designee, nor any affiliate, agent or employee of such
member, designee or employer, shall by virtue of its relationship to the
Executive Committee or any Executive Committee member or designee acting in
such capacity, be liable to any Party to this Agreement for claims for
direct, incidental, indirect, consequential or other damages of any nature,
including, but not limited to, damages for loss of anticipated profits,
loss of use of revenue, loss by reason of construction shutdown or
interruption, and cost of capital, connected with or resulting from the
performance of this Agreement by the Executive Committee or by any member
or designee thereof or by any employee of any member or designee or any
affiliate, agent or employee of such member, designee or employer, except
in the event of willful misconduct. In addition, the Participants,
severally (and not jointly or jointly and severally), in accordance with
their respective pro rata shares as specified in Paragraph 5.1, agree to
defend, indemnify and hold the Executive Committee, each member and
designee thereof and each of the other persons or entities referred to in
the preceding sentence, harmless against all losses, claims, expenses
(including reasonable counsel fees) and liabilities, not resulting from his
or their willful misconduct, which may be asserted, imposed, or incurred in
connection with the performance of his or its responsibilities hereunder,
including any litigation arising from the foregoing.
5. Miscellaneous
5.1 Liability of Participants. All obligations of the Participants
hereunder are pro rata and several (not joint or joint and several) and,
with respect to each Participant, limited to the proportion of such
Participant's Ownership Share in the Seabrook Project to the total of all
Ownership Shares in the Seabrook Project (called a "pro rata share" in the
Agreement). As of the date of execution of this Agreement, the pro rata
share of each Participant is as follows:
Public Service Company of New Hampshire 35.56942%
The United Illuminating Company 17.50000%
Canal Electric Company 3.52317%
The Connecticut Light and Power Company 4.05985%
Hudson Light and Power Department 0.07737%
Massachusetts Municipal Wholesale
Electric Co. 11.59340%
Montaup Electric Company 2.89989%
New England Power Company 9.95766%
New Hampshire Electric Cooperative 2.17391%
Taunton Municipal Lighting Plant 0.10034%
Vermont Electric Generation &
Transmission Cooperative, Inc. 0.41259%
EUA Power Corporation 12.13240%
100.00000%
The Executive Committee shall notify NAESCO promptly of any changes in each
Participant's pro rata share. Every document delivered to any third party
by NAESCO pursuant to this Agreement which may bear on the nature of the
Participants' obligations hereunder shall specify such several (and not
joint or joint and several) nature of the Participants' obligations.
5.2 Unpaid Project Costs. Without limiting the generality of
Paragraph 5.6, nothing in this Agreement shall constitute or be construed
as a waiver or limitation on the enforceability of, or an election of
remedies with respect to, the rights of the Participants other than PSNH to
recover PSNH's unpaid share of Project Costs, if any, or its share of
interim care and protection costs paid by other Participants pursuant to
the Interim Agreement or to enforce other claims (whether now existing or
arising in the future) against PSNH.
5.3 Governing Law. This Agreement is made under and shall be
governed by, and construed in accordance with, the laws of the State of New
Hampshire.
5.4 Severability. In the event that any clause or provision of this
Agreement, or any part thereof, shall be declared invalid or unenforceable
by any regulatory body or court having jurisdiction, such invalidity or
unenforceability shall not affect the validity of the remaining portions of
this Agreement.
5.5 Survival. All provisions of this Agreement providing for
limitation of or protection against liability shall apply to the full
extent permitted by law and shall survive termination of this Agreement.
5.6 Right of Vendors. This Agreement is not intended, and shall not
be construed, to create or acknowledge any rights in favor of persons who
or entities that are not parties to this Agreement, except for rights of
vendors whose bills have been certified for payment pursuant to
Paragraph 2.4, subject to the terms of, and to maintaining and disbursing
the bank accounts and investment pool accounts in accordance with, this
Agreement. Anything in this Agreement to the contrary notwithstanding, the
Participants agree that this Agreement is made without prejudice to, and
does not constitute a waiver of, or election of remedies with respect to,
or limitation on the enforceability of, any rights or claims which any
Party or Participant may now have or in the future have against any other
Party or Participant.
5.7 Corporate Acts. This Agreement is the act and obligation of the
Parties hereto in their corporate capacities.
5.8 Effectiveness. The Seventh Amendment hereto shall become
effective upon execution by NAESCO and by Participants owning ninety-five
percent (95%) or more of the Ownership Shares in the Seabrook Project, and
upon its effectiveness, all Participants shall be, and be deemed to be,
Parties to this Agreement as amended by the Seventh Amendment.FOOTNOTE 1
5.9 Counterparts. Any number of counterparts of this Agreement may
be executed and each shall have the same force and effect as the original.
5.10 Amendments. Upon the Seventh Amendment becoming effective, this
Agreement may thereafter be amended or modified by an instrument executed
by Participants owning fifty-one percent or more of the Ownership Shares in
the Seabrook Project and by NAESCO; provided, however, that this
Paragraph 5.10 and the definitions of "Projected Costs" and "Cost of
Completion" in Paragraph 1.7 hereof, may be modified or amended only by
FOOTNOTE 1 The Seventh Amendment hereto has received the required
Participant approval and become effective. The First Amendment to Seventh
Amendment to and Restate Agreement for Seabrook Project Disbursing Agent
shall become effective at the "Time of Effectiveness," defined as "the date
of the closing of the transactions necessary to accomplish the transfer of
responsibility for the management, operation, and maintenance of Seabrook
from the New Hampshire Yankee Division of Public Service Company of New
Hampshire to NAESCO."
consent of Participants owning ninety-five percent or more of the Ownership
Shares in the Seabrook Project and NAESCO, and provided further that any
amendment to this Agreement which would have the effect of modifying the
terms of the Joint Ownership Agreement shall not become effective unless
approved as provided in Article 29 of the Joint Ownership Agreement.
5.11 Notices. Unless otherwise provided herein, notices and other
communications required or permitted to be given or made under terms of
this Agreement shall be in writing, and shall be deemed to have been duly
made or given when delivered personally or when made or given by telex,
telegraph or telecopier, prepaid, at, in the case of each Participant such
address and to the attention of the chief executive officer or such other
person as may be designated from time to time by a Participant in
accordance with the Joint Ownership Agreement; and, in the case of NAESCO,
to North Atlantic Energy Service Corporation, 107 Selden Street, Berlin,
Connecticut 06037, Attention Treasurer, or to such other address or to the
attention of such other person as NAESCO may from time to time designate by
notice in writing to each Participant.
5.12 Contracts with Affiliates. NAESCO may retain or appoint a
service company or agent (which service company or agent shall be
affiliated with NAESCO) to act on its behalf and perform the
responsibilities and assume the duties of the Disbursing Agent hereunder
and under the Joint Ownership Agreement, so long as such appointment is
consistent with the terms of the Operating License and the rules and
regulation of the NRC. No such retention or appointment shall become
effective unless the agreement(s) between NAESCO land such service company
or agent(s) has been approved by at least three or more unaffiliated
Participants, owning collectively 60 percent or more of the Ownership
Shares. Participants shall not withhold their approval of any such
agreement if it is fair and equitable to all affected parties. Any service
company or agent(s) which perform services under this section shall, unless
the Executive Committee otherwise directs, submit bills for such services
to NAESCO, and NAESCO shall in turn bill the Participants for such
services.
5.13 Termination. This Agreement shall be subject to termination and
shall terminate, without any action by NAESCO or the Participants, to the
extent and from the time that performance may conflict with the Public
Utility Holding Company Act of 1935 or with any rule, regulation, or order
of the Securities and Exchange Commission before or after the making
hereof.
IN WITNESS WHEREOF, each of the undersigned has cause this Agreement
to be duly signed by an authorized officer and attested (or such signature
by an authorized officer to be attested to by a witness) on the date
indicated by as of the date first above written.
CANAL ELECTRIC COMPANY
BY
Title:
THE CONNECTICUT LIGHT AND
POWER COMPANY
By
Title:
EUA POWER CORPORATION
By
Title:
HUDSON LIGHT & POWER DEPARTMENT
By
Title:
MASSACHUSETTS MUNICIPAL
WHOLESALE ELECTRIC COMPANY
By
Title:
MONTAUP ELECTRIC COMPANY
By
Title:
NEW ENGLAND POWER COMPANY
By
Title:
NEW HAMPSHIRE ELECTRIC COOPERATIVE
By
Title:
PUBLIC SERVICE COMPANY OF NEW
HAMPSHIRE
By
Title:
TAUNTON MUNICIPAL LIGHTING PLANT
By
Title:
THE UNITED ILLUMINATING COMPANY
By
Title:
VERMONT ELECTRIC GENERATION AND
TRANSMISSION COOPERATIVE, INC.
By
Title:
NORTH ATLANTIC ENERGY SERVICE
CORPORATION
By
Title: