FORT XXXXXX COMMON FACILITIES OPERATING AGREEMENT, dated
November 14, 1968, between DUQUESNE LIGHT COMPANY, a Pennsylvania corpora-
tion ("Duquesne"), MONONGAHELA POWER COMPANY, an Ohio corporation
("Monongahela"), THE POTOMAC EDISON COMPANY, a Maryland corporation
("Potomac"), and WEST PENN POWER COMPANY, a Pennsylvania corporation
("West Penn"), together the "Companies".
1. Common Facilities.
Duquesne, Monongahela and Potomac, in their capacities as tenants
in common of the First Unit at the Fort Xxxxxx Generating Station in
Monongalia County, West Virginia (the "First Unit Owners"), have undivided
ownership interests as tenants in common in certain Common Facilities at
such Station of 25%, 12.5% and 12.5%, respectively. Monongahela, Potomac
and West Penn, in their capacities as tenants in common of the Second Unit
at such Station (the "Second Unit Owners"), have undivided ownership
interest as tenants in common in such Common Facilities of 10%, 15% and
25%, respectively. Such Common Facilities are referred to in the Fort
Xxxxxx Construction and Operating Agreement, dated April 30, 1965 (the
"First Unit Agreement"), among the First Unit Owners, and in the Fort
Xxxxxx Unit No. 2 Construction and Operating Agreement, dated December 30,
1965 (the "Second Unit Agreement"), among the Second Unit Owners, and,
together with all renewals, replacements and additions in respect thereof,
are hereinafter called the "Common Facilities".
2. Operation and Maintenance.
The agreements contained in Sections 3, 4, 5, 6, 7, 8, 10 and 11
of the First Unit Agreement, in so far as relating to Common Facilities,
shall also be agreements with and for the benefit of each Second Unit
Owner; and the agreements contained in Sections 3, 4, 5, 6, 7, 8, 10 and
11 of the Second Unit Agreement, in so far as relating to Common
Facilities, shall also be agreements with and for the benefit of each
First Unit Owner.
Policies for the operation and maintenance of the Common
Facilities shall be agreed upon and established by the Operating
Committees referred to in said Agreements. Until otherwise agreed by all
the Companies, Monongahela shall be the Operating Company referred to in
said Agreements.
As contemplated in said Agreements, all expenditures for the
operation and maintenance of the Common Facilities and for renewals,
replacements, additions and retirements in respect thereof shall be shared
by the Companies in proportion to their aggregate ownership interests
therein, namely Duquesne 25%, Monongahela 22.5%, Potomac 27.5%, and West
Penn 25%, and title to all Common Facilities acquired or constructed
(including without limitation property acquired for use or consumption in
connection with construction, operation or maintenance) shall be in the
Companies as tenants in common in said proportion.
The First Unit Owners and the Second Unit Owners shall have such
rights in regard to the Common Facilities as will permit the independent
operation of the First Unit and of the Second Unit.
3. Waiver of Partition.
Each Company hereby confirms its agreement that it will not take
any action (including without limitation commencing or maintaining any
proceeding in any court) for the purpose of or which might result in
partition of the Common Facilities in whole or in part; and each Company
hereby confirms that it has waived and released all partition rights in
respect of the Common Facilities, whether now existing or hereinafter
accruing, whether under common law or statute or whether in kind or
otherwise, and confirms its agreement that in the event any such right
shall hereinafter accrue, it shall from time to time, upon the written
request of any other tenant in common in the Common Facilities, execute
and deliver such further instruments as may be necessary or appropriate to
confirm such waiver and release of partition rights.
4. Term of Agreement.
This Agreement shall continue in full force and effect as long as
both the First Unit Agreement and the Second Unit Agreement are in full
force and effect. Termination of this Agreement shall not terminate the
provisions of Section 2 hereof in so far as it refers to Sections 10 of
said Agreements.
Upon the termination of either of said Agreements (but in no event
after 21 years from the date of death of the last to die of the present
living descendants of King Xxxxxx V of England) each party to the
Agreement terminated shall, at the request of the parties to the other
Agreement and after any necessary regulatory approvals have been obtained,
sell to them, in proportion to their ownership interests in the Common
Facilities, its ownership interest in the Common Facilities for a price in
cash equal to the then book depreciated cost thereof to the seller.
5. Successors and Assigns.
This Agreement shall inure to the benefit of and bind the
successors and assigns of the parties hereto, but it may be assigned in
whole or in part only in connection with transfer to the assign of a
corresponding interest in the Common Facilities. Nothing herein shall be
taken as limiting any Company's right at any time to transfer all or part
of its ownership interest in the Common Facilities as long as such
interest is transferred subject to the benefits and burdens hereof.
IN WITNESS WHEREOF, each of the parties has caused this Agreement
to be duly executed.
DUQUESNE LIGHT COMPANY
By XXXX X. XXXXXX
Chairman of the Board
and Chief Executive Officer
MONONGAHELA POWER COMPANY
By X. X. XXXXXXX
Vice President
THE POTOMAC EDISON COMPANY
By X. X. XXXXX
Vice President
WEST PENN POWER COMPANY
By X. X. XXXXXX
Vice President
