EXHIBIT 10.7c
F(2)
TWENTY-THIRD AMENDMENT TO AGREEMENT
FOR JOINT OWNERSHIP, CONSTRUCTION AND OPERATION
OF NEW HAMPSHIRE NUCLEAR UNITS
This Twenty-Third Amendment, made as of the first day of November 1990,
to the Agreement For Joint Ownership, Construction And Operation Of New
Hampshire Nuclear Units, dated as of May 1, 1973 ("Joint Ownership Agreement"),
as heretofore amended, 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, Xxxxxx Light & Power
Department and Vermont Electric Generation and Transmission Cooperative, Inc.
(collectively, the "Participants").
W I T N E S S E T H T H A T
WHEREAS, Commercial Operation of Unit No. 1 has commenced; and
WHEREAS, at least eighty percent of the Participants wish to amend
certain provisions of the Joint Ownership
Agreement in order to provide for funding of the operation of Unit No. 1;
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the Participants executing this Amendment hereby
agree as follows:
1. Amendments. The Joint Ownership Agreement is hereby amended as follows:
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A. PARAGRAPH 37.3(A) IS AMENDED BY INSERTING THE FOLLOWING TWO SENTENCES
AFTER THE FIRST SENTENCE:
"Upon and after Commercial Operation of Unit No. 1, the Project
Manager shall prepare and present the next six months' budget, quarter-annually.
The budget will be prepared on a cash basis unless the Executive Committee has
voted to permit the Project Manager to prepare the budget on an accrual or
modified accrual basis. In performing its function under this Paragraph 37.3,
the Executive Committee shall use and be entitled to rely upon, the budget when
approved or deemed approved by the Participants as provided in Paragraph 37.3(c)
below."
B. PARAGRAPH 37.3(D) OF THE JOINT OWNERSHIP AGREEMENT IS HEREBY AMENDED IN
ITS ENTIRETY AS FOLLOWS:
"37.3(d)(i) Operating Deposit. After Commercial Operation of Unit No.
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1, the Executive Committee shall determine from time to time the amount ("target
amount") of
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an Operating Deposit which shall be made by each Participant pro-rata in
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accordance with its Ownership Share. The initial target amount shall be one
month's average Project Costs as determined from the approved budget for the
period July through December 1990 and funded in accordance with the Operating
Deposit Funding Schedule (as defined in Paragraph 37.3(d)(ii) below). The
Operating Deposit shall be held by the Disbursing Agent, together with routine
monthly billing payments, made as required in Paragraph 37.3(e) below, to
provide the Project Manager with working capital sufficient to carry out the
Project Manager's obligations as managing agent of the Project. The Project
Manager shall recommend semi-annually (January 1 - June 30 and July 1 - December
31) to the Executive Committee the target amount for the following six months
when the Project Manager presents to the Participants its "next six-months'
budget". Such recommendation shall include details of the basis and calculation
of the target amount for the next six months. The target amount so established
by the Executive Committee shall in no event be greater than one and one-half
months', average Project Costs as projected in the next six-months' budget. The
Operating Deposit shall be funded consistent with the Operating Deposit Funding
Schedule by the Participants pro-rata in accordance with their respective
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Ownership Shares on the first business day of each month as may be necessary,
from time to time, to restore the target amount so established. The Executive
Committee shall determine the schedule for funding the Operating Deposit, which
determination shall be binding upon all Participants. Any Participant which
fails to fund its pro-rata share of the Operating Deposit and to make payments
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required by Paragraph 37.3(d)(ii) below shall be liable for interest on the
unpaid amount at the rate provided elsewhere in this Agreement. The Disbursing
Agent shall xxxx each Participant for its pro-rata share of the target amount.
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Such xxxxxxxx shall be included in the routine monthly billing made by the
Disbursing Agent under Paragraph 37.3(e) hereof. Each Participant's share of the
Operating Deposit shall be held in escrow by the Disbursing Agent as provided in
Paragraph 37.3(h) below.
(ii) Operating Deposit Funding Schedule. Each Participant shall pay its
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pro-rata share of the initial target amount of one month's average Project Costs
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as follows: 48.2405% thereof ("initial payment") when billed by the Disbursing
Agent as provided in paragraph (d)(i); and 51.7595% thereof in 18 equal monthly
installments on the first business day of each month, commencing on July 1, 1991
("Operating Deposit Funding Schedule"). Upon dissolution of
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the Seabrook Preoperational and Supplementary Decommissioning Trusts, each
Participant shall promptly pay 51.7595% of its share of the distributions made
to it from such Trusts to be applied against installments of its then unpaid
pro-rata share of the target amount in the inverse order of when they are to
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become due. The initial payment by each Participant shall constitute the minimum
dollar amount to be maintained by each Participant in the Operating Deposit
until the Participant pays its full pro-rata share. Prior to December 31, 1992,
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the target amount shall not exceed one month's average Project Costs as provided
in the then current six-months' budget."
C. THE FOLLOWING NEW PARAGRAPHS 37.3(E), 37.3(F), 37.3(G) AND 37.3(H), ARE
INSERTED:
"37.3(e) Routine Monthly Billing. Not later than the fifteenth day of
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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,
xxxx ("routine monthly billing") each Participant for its pro-rata Ownership
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Share of the estimated Project Costs for the subsequent month under the then
approved current six-months' budget, as established pursuant to Paragraphs
37.3(a), 37.3(b) and 37.3(c) above. Each invoice shall be due and payable on the
first business day of the
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next following month. Any amount not paid on such date shall bear interest from
said due date until the date of payment at the rate provided elsewhere in this
Agreement. Succeeding routine monthly xxxxxxxx shall set forth a reconciliation
for the previous month between the estimated Project Costs previously billed,
including any interim payments billed pursuant to Paragraph 37.3(g) below, and
the actual Project Costs incurred. Such xxxxxxxx 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 xxxxxxxx shall show as debits
or credits the amounts necessary to restore the Operating Deposit to the target
amount as set from time to time and such amounts shall be funded by the
Participants as provided in Paragraph 37.3(d)(i) and (ii) above. Unless
otherwise directed by the Executive Committee or provided by other provisions of
this Agreement, any net interest paid by any Participant with respect to an
overdue payment for any month's xxxx 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."
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"37.3(f) Special Provisions Re Payment of Project Costs and
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Determination of Target Amount. Notwithstanding the other provisions of this
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Paragraph 37, the following additional provisions shall apply and control with
respect to payment of Project Costs and the determination of the target amount:
(i) The Disbursing Agent shall not include in a routine monthly billing
for Project Costs a xxxx 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.
(ii) The Project Manager, on a quarterly basis, shall report to the
Participants the difference, if any, between estimated Project Costs to date
under the then current budget and Project Costs actually incurred to said date,
together with estimated Project costs for the remainder of the current budget.
If Project Costs actually incurred and Project Costs estimated for the remainder
of the then current budget exceed 110% or are less than 90% of the estimated
Project Costs in said budget, the Project Manager shall recommend to the
Executive Committee that a change be made to the estimated Project Costs for the
remainder of the budget which change, if approved in accordance with
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Paragraph 37.3(c), shall then be reflected by modification of future routine
monthly xxxxxxxx by the Disbursing Agent.
(iii) The Project Manager shall monitor and inform the Executive
Committee promptly of the ledger book balance of the Project as of the end of
each month. If such ledger book balance is anticipated, or continues, to exceed
or be less than the target amount by plus or minus 10%, the Project Manager
shall recommend to the Executive Committee whether and in what amount a
reduction or increase should be made in the funding for future Project Costs so
that the closing ledger book balance and the target amount will be substantially
the same."
"37.3(g) Interim Billing: Subject to the prior approval of the
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Executive Committee, the Disbursing Agent may, from time to time, 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 amount of
funds then remaining from the routine monthly xxxxxxxx to the minimum required
amount of $5,300,000, or less. To the extent that any Interim Billing would
result in the estimated Project Costs exceeding the then current six
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months' budget, such Interim Billing shall require approval, in advance, as
provided in paragraph 37.3(c)(i) and (ii) above. Upon receipt of the aforesaid
required approvals, the Disbursing Agent shall without xxxxx xxxx each
Participant for its pro-rata Ownership Share of the Interim Billing which shall
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be the amount necessary to restore said minimum required balance to $5,300,000.
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 elsewhere in
this Agreement. Each Interim Billing shall be accompanied by a letter from the
Project Manager confirming the amount requested and the reason for the request.
The Project Manager shall use its best efforts at all times to manage cash so as
to avoid the need for interim xxxxxxxx."
"37.3(h) Escrowed Funds. All funds held by, or under the control of,
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the Disbursing Agent at any time, including without limitation, credits received
from contractors, suppliers and others and all gains and interest derived from
investments or otherwise, shall at no time be property of the Participants or of
the Disbursing Agent but shall be received, held and invested at all times in
escrow and escrow accounts solely for the benefit of creditors of the
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Project, to be disbursed solely to pay each Participant's Ownership Share of
Project Costs."
D. PARAGRAPH 29.1 (AMENDMENT) IS AMENDED BY INSERTING THE FOLLOWING
SENTENCE AT THE END OF THE FIRST PARAGRAPH THEREOF:
"Prior to December 31, 1992, the provisions of Paragraph 37 pertaining
to the initial target amount of the Operating Deposit and the Operating Deposit
Funding Schedule shall not be subject to any amendment, in whole or in part, or
to any alteration by action of the Executive Committee or Participants, except
upon the written consent of Participants who own in the aggregate at least 95%
of the Ownership Shares of the Project."
2. Counterparts. Any number of counterparts of this Twenty-Third Amendment
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may be executed, and each shall have the same force and effect as an original
and as if all parties to all of the counterparts had signed the same instrument.
3. Limitation of Amendments. Except as specifically amended by this
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Twenty-Third Amendment, the Joint Ownership Agreement shall continue in full
force and effect without amendment or alteration.
4. Effectiveness. This Twenty-Third Amendment shall become effective when
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duly executed and delivered by
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Participants having Ownership Shares aggregating at least eighty percent (80%),
at which time it shall become binding on all Participants.
IN WITNESS WHEREOF, the Participants have caused this
Twenty-Third Amendment to be duly executed by an authorized officer, as of the
date first written above.
CANAL ELECTRIC COMPANY
By
Title:
THE CONNECTICUT LIGHT AND POWER COMPANY
By
Title:
EUA POWER CORPORATION
By
Title:
XXXXXX LIGHT & POWER DEPARTMENT
By
Title:
MASSACHUSETTS MUNICIPAL
WHOLESALE ELECTRIC COMPANY
By
Title:
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MONTAUP ELECTRIC COMPANY
By
Title:
NEW ENGLAND POWER COMPANY
By
Title:
NEW HAMPSHIRE ELECTRIC COOPERATIVE
By
Title:
PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE,
DEBTOR AND DEBTOR-IN-POSSESSION
By
Title:
TAUNTON MUNICIPAL LIGHTING PLANT
By
Title:
THE UNITED ILLUMINATING COMPANY
By
Title:
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VERMONT ELECTRIC GENERATION
AND TRANSMISSION COOPERATIVE, INC.
By
Title:
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