EXHIBIT (10)(i)
ASSET SALE AGREEMENT
BY AND AMONG
CONSUMERS ENERGY COMPANY,
AS SELLER
AND
ENTERGY NUCLEAR PALISADES, LLC
AS BUYER
DATED AS OF JULY 11, 2006
TABLE OF CONTENTS
Page
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ARTICLE 1 DEFINITIONS.................................................... 1
1.1. Definitions.................................................... 1
1.2. Certain Interpretive Matters................................... 21
ARTICLE 2 PURCHASE AND SALE.............................................. 22
2.1. Included Assets................................................ 22
2.2. Excluded Assets................................................ 25
2.3. Assumed Liabilities and Obligations............................ 27
2.4. Excluded Liabilities........................................... 29
2.5. Control of Litigation.......................................... 31
ARTICLE 3 THE CLOSING.................................................... 32
3.1. Closing........................................................ 32
3.2. Payment of Purchase Price...................................... 32
3.3. Adjustments to the Purchase Price.............................. 32
3.4. Allocation of Purchase Price................................... 35
3.5. Prorations..................................................... 35
3.6. Deliveries by Seller........................................... 37
3.7. Deliveries by Buyer............................................ 38
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF SELLER....................... 39
4.1. Organization................................................... 39
4.2. Authority Relative to this Agreement........................... 39
4.3. Consents and Approvals; No Violation........................... 40
4.4. Reports........................................................ 40
4.5. Title and Related Matters...................................... 41
4.6. Insurance...................................................... 41
4.7. Environmental Matters.......................................... 41
4.8. Labor Matters.................................................. 43
4.9. ERISA; Benefit Plans........................................... 44
4.10. Sufficiency of Assets.......................................... 46
4.11. Certain Contracts and Arrangements............................. 46
4.12. Legal Proceedings, etc......................................... 47
4.13. Permits........................................................ 47
4.14. NRC Licenses................................................... 47
4.15. Regulation as a Utility........................................ 48
4.16. Tax Matters.................................................... 48
4.17. Qualified Decommissioning Fund................................. 48
4.18. Intellectual Property.......................................... 50
4.19. Zoning Classification.......................................... 50
4.20. Emergency Warning Sirens....................................... 50
4.21. Disclaimer..................................................... 50
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ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF BUYER........................ 51
5.1. Organization; Qualification.................................... 51
5.2. Authority Relative to this Agreement........................... 51
5.3. Consents and Approvals; No Violation........................... 52
5.4. Availability of Funds.......................................... 52
5.5. Legal Proceedings.............................................. 52
5.6. WARN Act....................................................... 53
5.7. Transfer of Assets of Qualified Decommissioning Fund........... 53
5.8. Foreign Ownership or Control................................... 53
5.9. Permit and License Qualifications.............................. 53
ARTICLE 6 COVENANTS OF THE PARTIES....................................... 54
6.1. Conduct of Business Relating to the Included Assets............ 54
6.2. Access to Information.......................................... 58
6.3. Expenses....................................................... 61
6.4. Further Assurances; Cooperation................................ 61
6.5. Public Statements.............................................. 63
6.6. Consents and Approvals......................................... 64
6.7. Brokerage Fees and Commissions................................. 66
6.8. Tax Matters.................................................... 66
6.9. Advice of Changes; Supplements to Schedules.................... 68
6.10. Employees...................................................... 68
6.11. Risk of Loss................................................... 77
6.12. Qualified Decommissioning Fund................................. 78
6.13. Spent Nuclear Fuel Fees........................................ 79
6.14. Standard Spent Fuel Disposal Contract; Spent Nuclear Fuel
Litigation..................................................... 79
6.15. Department of Energy Decontamination and Decommissioning Fees.. 81
6.16. Cooperation Relating to Insurance and Price-Anderson Act....... 81
6.17. Release of Seller.............................................. 82
6.18. Private Letter Ruling.......................................... 82
6.19. NRC Commitments................................................ 83
6.20. Decommissioning; Return of Excess Qualified Decommissioning
Fund Assets.................................................... 83
6.21. Buyer's Parent Guaranty........................................ 86
6.22. Nuclear Insurance Policies..................................... 86
6.23. No Transport or Storage of Waste............................... 87
6.24. Title and Survey............................................... 87
6.25. Big Rock Amount................................................ 87
6.26. Removal of Trade Names, Trademarks, etc........................ 88
6.27. Financial Assurances to the NRC................................ 88
ARTICLE 7 CONDITIONS..................................................... 88
7.1. Conditions to Obligations of Buyer............................. 88
7.2. Conditions to Obligations of Seller............................ 92
ARTICLE 8 INDEMNIFICATION................................................ 93
8.1. Indemnification................................................ 93
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8.2. Limitations on Indemnification................................. 94
8.3. Defense of Claims.............................................. 95
ARTICLE 9 TERMINATION AND REMEDIES....................................... 97
9.1. Termination.................................................... 97
9.2. Procedure and Effect of No Default Termination................. 98
9.3. Remedies....................................................... 98
ARTICLE 10 MISCELLANEOUS PROVISIONS...................................... 99
10.1. Limitation of Liability; Waiver of Certain Damages............. 99
10.2. Amendment and Modification..................................... 99
10.3. Waiver of Compliance; Consents................................. 99
10.4. Survival of Representations, Warranties, Covenants and
Obligations.................................................... 99
10.5. Notices........................................................ 100
10.6. Assignment..................................................... 101
10.7. No Third Party Beneficiaries................................... 102
10.8. Governing Law.................................................. 102
10.9. Counterparts................................................... 103
10.10. Schedules and Exhibits......................................... 103
10.11. Entire Agreement............................................... 103
10.12. Acknowledgment; Independent Due Diligence...................... 103
10.13. Bulk Sales Laws................................................ 104
10.14. No Joint Venture............................................... 104
10.15. Change in Law.................................................. 104
10.16. Severability................................................... 104
LIST OF EXHIBITS AND SCHEDULES
EXHIBITS
Exhibit A Form of Assignment and Assumption Agreement
Exhibit B Form of Bill of Sale
Exhibit C Form of Interconnection Agreement
Exhibit D-1 Form of Palisades Deed
Exhibit D-2 Form of Big Rock ISFSI Deed
Exhibit E Form of Firing Range Lease
Exhibit F Form of Power Purchase Agreement
Exhibit G Form of Emergency Operations Facilities Lease
Exhibit H Form of Buyer's Parent Guaranty
Exhibit I Form of Seller's FIRPTA Certificate
Exhibit J Form of Title Commitments
Exhibit K Form of Consumers Guaranty
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SCHEDULES
1.1(26) Book Value
2.1(a) Description of Real Property
2.1(b) Description of Personal Property
2.1(i) Intellectual Property
2.1(l) ANI Insurance Policies Included in the Included Assets
2.1(m) Radio Licenses
2.1(n) Pending Causes of Action
2.1(q) Emergency Equipment Easements and List of Emergency Sirens
2.2(o) Excluded Contracts
3.3(a)(4) Capital Budget
3.3(a)(5) Decrease in Purchase Price
4.3(a) Seller's Third Party Consents
4.3(b) Seller's Required Regulatory Approvals
4.5(c)4.6 Insurance Exceptions
4.7 Environmental Matters
4.8 Labor Matters
4.9(a) Benefit Plans
4.9(d) Benefit Plan Exceptions
4.11(a)(i) Seller's Agreements (other than Fuel Contracts)
4.11(a)(ii) Fuel Contracts
4.11(b) Material Breaches
4.12 Legal Proceedings
4.13(b) Permits
4.14(b) NRC Licenses
4.16 Tax Matters
4.17 Tax and Financial Matters Relating to Qualified Decommissioning Fund
4.18 Exceptions to Ownership of Intellectual Property
4.19 Zoning Classification
5.3(a) Buyer's Third Party Consents
5.3(b) Buyer's Required Regulatory Approvals
6.10(a) Transferred Employees
6.10(g) Actuarial Assumptions
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ASSET SALE AGREEMENT
ASSET SALE AGREEMENT, dated as of July 11, 2006, (the "Agreement") by
and among Consumers Energy Company, a Michigan corporation ("Seller" or
"Consumers"), and Entergy Nuclear Palisades, LLC, a Delaware limited liability
company ("Buyer"). Seller and Buyer are referred to individually as a "Party,"
and collectively as the "Parties."
WITNESSETH:
WHEREAS, Seller owns the Palisades Nuclear Power Plant ("Palisades"),
located near South Haven, Michigan, and certain facilities and other assets
associated therewith and ancillary thereto, in accordance with NRC Operating
License No. DPR- 20;
WHEREAS, as agent for Consumers, Nuclear Management Company, LLC, a
Wisconsin limited liability company ("NMC"), has operational responsibility with
respect to Palisades pursuant to (i) a Nuclear Power Plant Operating Services
Agreement, dated as of November 7, 2000, by and between NMC and Consumers (the
"NPPOSA") and (ii) NRC Operating License No. DPR- 20;
WHEREAS, Seller owns and operates the Big Rock Independent Spent Fuel
Storage Installation (the "Big Rock ISFSI"), located in Charlevoix County,
Michigan, in accordance with NRC Operating License No. DPR-6;
WHEREAS, Buyer desires to purchase and assume, and Seller desires to
sell and assign, all of the Included Assets (as defined below) and the Assumed
Liabilities and Obligations, upon the terms and conditions hereinafter set forth
in this Agreement;
WHEREAS, the Parties desire that Buyer's Parent support certain of the
obligations of Buyer hereunder.
NOW, THEREFORE, in consideration of the mutual covenants,
representations, warranties and agreements hereinafter set forth, and intending
to be legally bound hereby, the Parties agree as follows:
ARTICLE 1
DEFINITIONS
1.1. Definitions.
As used in this Agreement, the following terms have the meanings
specified in this Section 1.1.
(1) "Actual Amount" has the meaning set forth in Section 6.10(g)(6).
(2) "Actual Retiree Medical and Life Insurance Amount" has the meaning
set forth in Section 6.10(l)(3).
(3) "Affiliate" has the meaning set forth in Rule 12b-2 of the General
Rules and Regulations under the Exchange Act and, with respect to Seller, shall
also include any ERISA Affiliate.
(4) "Agreement" has the meaning set forth in the preamble.
(5) "Allocation" has the meaning set forth in Section 3.4(b).
(6) "Ancillary Agreements" means the Bill of Sale, Assignment and
Assumption Agreement, the Deeds, the Interconnection Agreement, the Emergency
Operations Facility Lease, the Firing Range Lease and the Power Purchase
Agreement, as the same may be amended from time to time.
(7) "ANI" means American Nuclear Insurers, or any successors thereto.
(8) "APBO" has the meaning set forth in Section 6.10(l)(2).
(9) "Approved Marked Up Title Commitments" has the meaning set forth
in Section 7.1(s).
(10) "Assignment and Assumption Agreement" means the Assignment and
Assumption Agreement between Seller and Buyer in the form of Exhibit A hereto,
by which Seller, subject to the terms and conditions hereof, shall assign
Seller's interest in and rights under the Seller's Agreements, the Fuel
Contracts, the Non-material Contracts, the Transferable Permits, licenses for
emergency warning sirens, dosimeters and environmental sampling stations that
are not located on the Sites, certain intangible assets and other Included
Assets to Buyer and whereby Buyer shall assume the Assumed Liabilities and
Obligations.
(11) "Assumed Liabilities and Obligations" has the meaning set forth
in Section 2.3.
(12) "Atomic Energy Act" means the Atomic Energy Act of 1954, as
amended, 42 U.S.C. Section 2011 et seq.
(13) "Bargaining Unit Transferred Employees" means those Transferred
Employees whose employment is covered by the Collective Bargaining Agreement.
(14) "Benefit Plans" has the meaning set forth in Section 4.9(a).
(15) "Big Rock Amount" has the meaning set forth in Section 6.25.
(16) "Big Rock ISFSI" has the meaning set forth in the recitals
hereto.
(17) "Big Rock ISFSI Assets" means that part of the Included Assets
related to the Big Rock ISFSI.
(18) "Big Rock ISFSI Deed" means a deed conveying the Real Property
comprising the Big Rock ISFSI Site to Buyer, in the form of Exhibit D-2 hereto.
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(19) "Big Rock ISFSI Employees" means those employees of Consumers
identified on Schedule 6.10(a) as employees principally performing services at
the Big Rock ISFSI.
(20) "Big Rock ISFSI Facilities" means the Facilities associated with
the Big Rock ISFSI.
(21) "Big Rock ISFSI Site" means the parcels of land included in the
Real Property conveyed to Buyer pursuant to the Big Rock ISFSI Deed.
(22) "Big Rock ISFSI Survey" has the meaning set forth in Section
6.24.
(23) "Big Rock ISFSI Title Commitment" means the title commitment
issued by Chicago Title Insurance Company, Revision No. 6, effective date May
10, 2006 at 8:00 a.m., File No. 150430683CML that is included in Exhibit J
attached hereto.
(24) "Big Rock Point Plant Operating Facility" means the nuclear power
plant located in Charlevoix County, Michigan, owned by Seller pursuant to NRC
License No. DPR-6 and currently undergoing Decommissioning.
(25) "Bill of Sale" means the Bill of Sale, in the form of Exhibit B
hereto, to be delivered at the Closing, with respect to the tangible personal
property included in the Included Assets to be transferred to Buyer at the
Closing.
(26) "Book Value" means, as of the date a calculation is to be made of
a specified asset (i) with respect to Seller's Facility Inventories, the value
on the books of Seller, determined in accordance with GAAP consistent with
Seller's past practices, and (ii) with respect to Seller's Nuclear Fuel
Inventories, the value on the books of Seller, determined in accordance with
GAAP consistent with Seller's past practices (with such adjustments and as more
fully described in Schedule 1.1(26), which schedule also provides an
illustration of the calculation of the Book Value of Seller's Nuclear Fuel
Inventories as of May 31, 2006). With respect to Facility Inventories, Book
Value shall not reflect inventory items which were not included in Book Value on
January 1, 2006 unless such items were purchased by Seller or NMC from unrelated
third parties after such date.
(27) "Business Books and Records" has the meaning set forth in Section
2.1(f).
(28) "Business Day" shall mean any day other than Saturday, Sunday and
any day on which banking institutions in the State of Michigan are authorized by
law or other governmental action to close.
(29) "Buyer" has the meaning set forth in the preamble.
(30) "Buyer Indemnitee" has the meaning set forth in Section 8.1(b).
(31) "Buyer Material Adverse Effect" has the meaning set forth in
Section 5.3(a).
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(32) "Buyer's Parent" means Entergy Corporation, a Delaware
corporation.
(33) "Buyer's Parent Guaranty" shall mean a guaranty executed on the
Effective Date by Buyer's Parent in the form of Exhibit H hereto.
(34) "Buyer's Required Regulatory Approvals" has the meaning set forth
in Section 5.3(b).
(35) "Byproduct Material" means any radioactive material (except
Special Nuclear Material) yielded in, or made radioactive by, exposure to the
radiation incident to the process of producing or utilizing Special Nuclear
Material.
(36) "Capital Budget" means the budget established for capital
projects as set forth in Schedule 3.3(a)(4), as such budget may be amended by
agreement of the Parties.
(37) "Capital Expenditures Shortfall" means the aggregate amount equal
to (1) the sum of the monthly amounts set forth for each capital project in the
Capital Budget for the period from January 1, 2006 through the Closing Date,
less (2) the sum of the amounts actually spent on such projects during such
period (not to exceed the applicable line item therefor by greater than ten
percent (10%)), provided that the monthly amount with respect to the month
during which the Closing occurs shall be prorated.
(38) "CBA Termination Date" has the meaning set forth in Section
6.10(c).
(39) "Closing" has the meaning set forth in Section 3.1.
(40) "Closing Date" has the meaning set forth in Section 3.1.
(41) "Closing Payment" has the meaning set forth in Section 3.3(b).
(42) "COBRA" means the Consolidated Omnibus Budget Reconciliation Act
of 1985, as amended, and the rules and regulations promulgated thereunder.
(43) "Code" means the Internal Revenue Code of 1986, as amended.
(44) "Collective Bargaining Agreement" means that certain Working
Agreement between Consumers and the UWUA and its Michigan State Utility Workers
Council, dated as of June 1, 2005, as amended from time to time.
(45) "Commercially Reasonable Efforts" mean efforts which are designed
to enable a Party, directly or indirectly, to expeditiously satisfy a condition
to, or otherwise assist in the consummation of, the transactions contemplated by
this Agreement and which do not require the performing Party to expend any funds
or assume Liabilities other than expenditures and Liability assumptions which
are customary and reasonable in nature and amount in the context of the
transactions contemplated by this Agreement.
(46) "Confidentiality Agreement" means the letter agreement, dated
January 3, 2006, executed by Entergy Nuclear, Inc.
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(47) "Consumers" has the meaning set forth in the preamble.
(48) "Consumers Guaranty" has the meaning set forth in Section
6.14(g).
(49) "Credited Service" has the meaning set forth in Section 6.10(e).
(50) "Decommission" means, with respect to each Site, to completely
retire and remove the Facilities on that Site from service and to restore the
Site, as well as any planning and administrative activities incidental thereto,
including: (i) the dismantlement and removal of the Facilities on such Site and
any reduction or removal of radioactivity at such Site to a level that permits
termination of the applicable NRC License and unrestricted use of the Site; (ii)
all other activities necessary for the retirement, dismantlement,
decontamination and/or storage of the Facilities at such Site to comply with all
applicable Nuclear Laws and Environmental Laws, including the applicable
requirements of the Atomic Energy Act and the NRC's rules, regulations, orders
and pronouncements thereunder; and (iii) once the applicable Site is no longer
utilized (A) in the case of Palisades, either for power generation of any kind
or for any storage of Spent Nuclear Fuel or other Nuclear Material, and (B) in
the case of the Big Rock ISFSI, for storage of Spent Nuclear Fuel or other
Greater Than Class C Waste, the removal of structures, buried piping, rebar,
below grade foundations, paved areas and rubble, and restoration of such Site to
an appropriately graded, stabilized and vegetated condition. The Parties
understand and agree that SAFSTOR is a permissible interim status for Palisades,
provided that Decommissioning is completed in accordance with the applicable NRC
regulations.
(51) "Decommissioning Target" means an amount equal to Two Hundred
Fifty Million Dollars ($250,000,000), which amount shall be increased by five
and one-half percent (5.5%) per annum, compounded daily, from and after March 1,
2007 through and including the Closing Date.
(52) "Deeds" means the Palisades Deed and the Big Rock ISFSI Deed,
collectively.
(53) "Department of Energy" means the United States Department of
Energy and any successor agency thereto.
(54) "Department of Energy Claim" means the action commenced by Seller
on December 16, 2002, as amended from time to time, or any other action
commenced by Seller for (i) pre-Closing damages resulting from the Department of
Energy's failure to commence the removal, transportation, acceptance or any
delay in accepting Spent Nuclear Fuel from Palisades and from the Big Rock Point
Plant Operating Facility (now located at the Big Rock ISFSI) for disposal
pursuant to the Standard Spent Fuel Disposal Contract and (ii) the recovery of
any damages of the kind described in clause (i) and arising post-Closing in
respect of the Big Rock ISFSI, up to an amount equal to the Big Rock Amount. The
Department of Energy Claim shall not include, and Buyer shall have the right to
pursue, damages against the Department of Energy arising after the Closing in
respect of Palisades and, to the extent Buyer has not been compensated for such
damages pursuant to Section 6.25, the Big Rock ISFSI.
(55) "Department of Energy Decommissioning and Decontamination Fees"
means all fees related to the Department of Energy's Special Assessment of
utilities for the
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Uranium Enrichment Decontamination and Decommissioning Funds pursuant to
Sections 1801, 1802 and 1803 of the Atomic Energy Act and the Department of
Energy's implementing regulations at 10 C.F.R. Part 766, applicable to
separative work units consumed and/or purchased from the Department of Energy in
order to decontaminate and decommission the Department of Energy's gaseous
diffusion enrichment facilities.
(56) "Department of Justice" means the United States Department of
Justice and any successor agency thereto.
(57) "Direct Claim" has the meaning set forth in Section 8.3(c).
(58) "Downgrade Event" means, with respect to Buyer's Parent, any
period of time when such party's unsecured, senior long-term debt obligations
(not supported by third-party credit enhancements) are rated below Baa3 by
Moody's Investment Services, Inc. (or its successor), and rated below BBB- by
Standard & Poor's Rating Group (or its successor).
(59) "Effective Date" means the date of this Agreement.
(60) "Emergency Equipment Easements" means the easements listed on
Schedule 2.1(q) with respect to thirteen (13) of the emergency warning sirens
constituting part of the Palisades Assets and located off-Site.
(61) "Emergency Operations Facilities" means (i) the facility owned by
Consumers located in South Haven, Michigan and utilized as the emergency
operations facility, (ii) the joint news center for Palisades located at the
Lake Michigan College Mendel Center and (iii) the Allegan Service Center
utilized as an alternative off-Site relocation and mustering or assembly
facility.
(62) "Emergency Operations Facilities Lease" means the lease in the
form of Exhibit G to be entered into between Buyer and Consumers as of the
Closing Date with respect to the facility located in South Haven, Michigan that
is part of the Emergency Operations Facilities.
(63) "Employee Pension Benefit Plan" has the meaning set forth in
ERISA Section 3(2).
(64) "Employee Welfare Benefit Plan" has the meaning set forth in
ERISA Section 3(1).
(65) "Encumbrances" means any mortgages, pledges, liens, security
interests, activity and use limitations, conservation easements, deed
restrictions, rights of way, covenants, reservations, zoning limitations,
easements, purchase rights, rights of first refusal and other encumbrances of
any kind.
(66) "Energy Reorganization Act" means the Energy Reorganization Act
of 1974, as amended.
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(67) "Environment" means all soil, real property, air, water
(including surface waters, streams, ponds, drainage basins and wetlands),
groundwater, water body sediments, drinking water supply, stream sediments or
land, including land surface or subsurface strata, including all fish, plant,
wildlife, and other biota and any other environmental medium or natural
resource.
(68) "Environmental Claim" means any and all written communications
alleging potential Liability, administrative or judicial actions, suits, orders,
liens, written notices alleging Liability, noncompliance or a violation,
investigations which have been disclosed in writing to Seller or NMC, requests
by Governmental Authorities for information relating to Releases or threatened
Releases, complaints, proceedings, or other written communications, whether
criminal or civil, pursuant to or relating to any applicable Environmental Law
by any Person based upon, alleging, asserting, or claiming any actual or
potential (a) violation of, or Liability under, any Environmental Law, (b)
violation of, or Liability under, any Environmental Permit, or (c) Liability for
investigatory costs, monitoring costs, cleanup costs, removal costs, remedial
costs, response costs, natural resource damages, property damage, loss of life,
injury or illness to persons, fines, or penalties arising out of, based on,
resulting from, or related to the presence, Release, or threatened Release of
any Hazardous Materials related to the Included Assets, including at any
Off-Site Location to which Hazardous Materials, or materials containing
Hazardous Materials, were sent.
(69) "Environmental Cleanup Site" means any location that is listed or
formally proposed for listing on the National Priorities List or on any similar
state list of sites requiring investigation that has been disclosed in writing
to Seller or NMC or cleanup, or that is the subject of any action, suit,
proceeding or investigation for any alleged violation of any Environmental Law,
or at which, to the Knowledge of Seller, there has been a Release of Hazardous
Materials.
(70) "Environmental Laws" means all Laws regarding pollution or
protection of the Environment, including Laws regarding Releases or threatened
Releases of Hazardous Materials (including Releases to ambient air, surface
water, groundwater, land, surface and subsurface strata) or otherwise relating
to the manufacture, processing, distribution, use, treatment, storage, Release,
transport, disposal or handling of Hazardous Materials. "Environmental Laws"
include the Comprehensive Environmental Response, Compensation, and Liability
Act (42 U.S.C. Sections 9601 et seq.), the Hazardous Materials Transportation
Act (49 U.S.C. Sections 5101 et seq.), the Resource Conservation and Recovery
Act (42 U.S.C. Sections 6901 et seq.), the Federal Water Pollution Control Act
(33 U.S.C. Sections 1251 et seq.), the Clean Air Act (42 U.S.C. Sections 7401 et
seq.), the Toxic Substances Control Act (15 U.S.C. Sections 2601 et seq.), the
Oil Pollution Act (33 U.S.C. Sections 2701 et seq.) and the Emergency Planning
and Community Right-to-Know Act (42 U.S.C. Sections 11001 et seq.).
Notwithstanding the foregoing, Environmental Laws do not include any of the
foregoing to the extent that such Laws regulate Nuclear Fuel, Spent Nuclear Fuel
or other Nuclear Materials, nor do Environmental Laws include any Nuclear Laws.
(71) "Environmental Permit" means any federal, state or local permits,
licenses, approvals, consents, registrations or authorizations required by any
Governmental Authority under or in connection with any Environmental Law
including any and all orders,
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consent orders or binding agreements issued or entered into by a Governmental
Authority under any applicable Environmental Law.
(72) "ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and the applicable rules and regulations promulgated
thereunder.
(73) "ERISA Affiliate" has the meaning set forth in Section 2.4(f).
(74) "Estimated Adjustments" has the meaning set forth in Section
3.3(b).
(75) "Estimated Allocation" has the meaning set forth in Section
3.4(a).
(76) "Estimated Closing Statement" has the meaning set forth in
Section 3.3(b).
(77) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(78) "Excess PLR Decommissioning Amount" has the meaning set forth in
Section 6.12(a).
(79) "Excess Qualified Decommissioning Fund Assets" has the meaning
set forth in Section 6.20(c).
(80) "Excluded Assets" has the meaning set forth in Section 2.2.
(81) "Excluded Contracts" has the meaning set forth in Section 2.2(o).
(82) "Excluded Liabilities" has the meaning set forth in Section 2.4.
(83) "Exempt Wholesale Generator" means an exempt wholesale generator
as defined in the regulations of the FERC at 18 C.F.R. Section 366.
(84) "Existing Savings Plans" has the meaning set forth in Section
6.10(f).
(85) "Facilities" means the plant, facilities, equipment, supplies and
improvements in which Seller has an ownership interest and which are included in
the Included Assets.
(86) "Facility Inventories" means materials, spare parts, consumable
supplies, diesel and other fuel supplies (other than Nuclear Fuel) and chemical
and gas inventories relating to the operation of the Facilities located at, or
in transit to, the Facilities.
(87) "Federal Power Act" means the Federal Power Act, as amended.
(88) "Federal Trade Commission" means the United States Federal Trade
Commission or any successor agency thereto.
(89) "FERC" means the United States Federal Energy Regulatory
Commission or any successor agency thereto.
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(90) "Fiduciary" has the meaning set forth in ERISA Section 3(21).
(91) "Final Determination" has the meaning set forth in section
1313(a) of the Code (or any similar provision of state or local Law).
(92) "Firing Range" means that certain firearms facility that is the
subject of the Firing Range Lease.
(93) "Firing Range Lease" means the lease in the form of Exhibit E to
be entered into between Buyer and Consumers as of the Closing Date with respect
to the Firing Range.
(94) "FIRPTA Certificate" means the certificate in the form of Exhibit
I hereto satisfying the requirements of the Foreign Investment and Real Property
Tax Act of 1980.
(95) "Fuel Contracts" has the meaning set forth in Section 4.11(a).
(96) "GAAP" means United States generally accepted accounting
principles.
(97) "Good Utility Practices" means any of the practices, methods and
activities generally accepted in the electric utility industry in the United
States of America during the relevant period as good practices applicable to
nuclear generating facilities similar to the Facilities or any of the practices,
methods or activities which, in the exercise of reasonable judgment by a prudent
nuclear operator in light of the facts known at the time the decision was made
(other than the fact that such operator is in the process of selling the
facility), could have been expected to accomplish the desired result at a
reasonable cost consistent with good business practices, reliability, safety,
expedition, the requirements of any Governmental Authority having jurisdiction
and applicable Laws including Nuclear Laws and Laws relating to the protection
of public health and safety. Good Utility Practices are not intended to be
limited to the optimal practices, methods or acts to the exclusion of all
others, but rather to be practices, methods or acts generally accepted in the
electric utility industry in the United States of America. For purposes of this
Agreement, the determination of Good Utility Practices includes the assumption
that the expected initial re-licensing of Palisades will occur.
(98) "Governmental Authority" means any federal, state, local,
provincial, foreign, international or other governmental, regulatory or
administrative agency, taxing authority, commission, department, board, or other
governmental subdivision, court, tribunal, arbitrating body or other
governmental authority.
(99) "Governmental Order" means any judgment, decision, consent
decree, injunction, ruling, writ or order of any Governmental Authority.
(100) "Greater Than Class C Waste" means radioactive waste that
contains a radionuclide whose concentration exceeds the value in Table 1 or
Table 2 of 10 C.F.R. 61.55, and therefore is currently not generally acceptable
for disposal at existing (near surface) low level radioactive waste disposal
facilities.
9
(101) "GUST" means: (a) the Uruguay Round Agreements Act, Pub. L.
103-465; (b) the Uniformed Services Employment and Reemployment Rights Act of
1994, Pub. L. 103-353; (c) the Small Business Job Protection Act of 1996, Pub.
L. 104-188; (d) the Taxpayer Relief Act of 1997, Pub. L. 105-34; (e) the
Internal Revenue Service Restructuring and Reform Act of 1998, Pub. L. 105-206;
and (f) the Community Renewal Tax Relief Act of 2000, Pub. L. 106-554.
(102) "Hazardous Materials" means (a) any petroleum, asbestos,
asbestos-containing material, urea formaldehyde foam insulation, lead-based
paint and polychlorinated biphenyls; (b) any chemicals, wastes, materials or
substances defined as or included in the definition of, or regulated as,
"hazardous substances," "hazardous wastes," "hazardous materials," "hazardous
constituents," "restricted hazardous materials," "extremely hazardous
substances," "toxic substances," "contaminants," "pollutants," "toxic
pollutants," "hazardous air pollutants" or words of similar meaning and
regulatory effect under any applicable Environmental Law; and (c) any other
chemical, material or substance, the exposure to which is prohibited, limited or
regulated by any applicable Environmental Law; excluding, however, any Nuclear
Material.
(103) "Head" has the meaning set forth in Section 7.1(z).
(104) "Head Contract" has the meaning set forth in Section 7.1(z).
(105) "High Level Waste Repository" means a facility which is
designed, constructed and operated by or on behalf of the Department of Energy
for the storage and disposal of Spent Nuclear Fuel in accordance with the
requirements set forth in the Nuclear Waste Policy Act or subsequent
legislation.
(106) "HIPAA" means the Health Insurance Portability and
Accountability Act of 1996 and accompanying regulations.
(107) "HSR Act" means the Hart-Scott-Rodino Antitrust Improvements Act
of 1976, as amended.
(108) "Included Assets" has the meaning set forth in Section 2.1.
(109) "Income Tax" means any Tax (a) based upon, measured by or
calculated with respect to net income, profits or receipts (including capital
gains Taxes and minimum Taxes), or (b) based upon, measured by or calculated
with respect to multiple bases (including the Michigan Single Business Tax and
any corporate franchise Tax) if one or more of the bases on which such Tax may
be based, measured by or calculated with respect to, is described in clause (a),
in each case together with any interest, penalties or additions to such Tax.
(110) "Indemnifiable Loss" has the meaning set forth in Section
8.1(a).
(111) "Indemnifying Party" means the Party required to provide
indemnification under this Agreement.
(112) "Indemnitee" means either a Seller Indemnitee or a Buyer
Indemnitee.
10
(113) "Independent Accounting Firm" means such independent accounting
firm of national reputation as is mutually appointed by Seller and Buyer.
(114) "Independent Appraiser" means such independent engineering firm
or appraiser of national reputation as is mutually appointed by Seller and
Buyer.
(115) "Indus Software" has the meaning set forth in Section 6.4(f).
(116) "Initial Retiree Medical and Life Insurance Transfer" has the
meaning set forth in Section 6.10(l)(2).
(117) "Initial Transfer" has the meaning set forth in Section
6.10(g)(4).
(118) "Intellectual Property" has the meaning set forth in Section
2.1(i).
(119) "Interconnection Agreement" means the Interconnection Agreement,
substantially in the form of Exhibit C hereto, among Buyer, transmission
owner(s) and MISO, under which Palisades will be provided after the Closing with
interconnection services consistent with FERC regulations and precedent and NRC
requirements relating to offsite power availability and grid reliability.
(120) "Interest Rate" means, for any date, the lesser of (i) the per
annum rate of interest equal to the prime lending rate as may from time to time
be published in The Wall Street Journal under "Money Rates" on such day (or if
not published on such day on the most recent preceding day on which published)
and (ii) the maximum rate permitted by applicable Law.
(121) "IRS" means the United States Internal Revenue Service or any
successor agency thereto.
(122) "Knowledge" means (i) with respect to Buyer the actual knowledge
(based upon reasonable inquiry of appropriate executive officers and managers of
Buyer and Buyer's Parent) of the corporate officers of Buyer who are charged
with responsibility for the particular function relating to the specific matter
of the inquiry and (ii) with respect to Seller, the actual knowledge (based upon
reasonable inquiry of appropriate executive officers and managers of Seller and
NMC) of the corporate officers of Seller who are charged with responsibility for
the particular function relating to the specific matter of inquiry.
(123) "Law" or "Laws" means all laws, rules, regulations, codes,
statutes, ordinances, treaties, and/or Governmental Orders, including the common
law.
(124) "Liability" or "Liabilities" means any liability, indebtedness,
fine, penalty or obligation (whether known or unknown, whether asserted or
unasserted, whether absolute or contingent, whether accrued or unaccrued,
whether liquidated or unliquidated, and whether due or to become due) other than
any liability for Taxes. Without limiting the generality of the foregoing, in
the case of the NRC Licenses, "Liabilities" shall include the NRC Commitments.
(125) "Loss" or "Losses" means any and all damages, fines, fees,
penalties, deficiencies, losses and expenses (including all Remediation costs,
fees of attorneys, accountants
11
and other experts, or other expenses of litigation or proceedings or of any
claim, default or assessment).
(126) "Low Level Waste" means radioactive material that: (a) is
neither Spent Nuclear Fuel, Greater Than Class C Waste nor Byproduct Material;
and (b) the NRC, consistent with existing Law and in accordance with clause (a),
classifies as low-level radioactive waste.
(127) "Material Adverse Effect" means the occurrence after the date
hereof and prior to the Closing of: (i) any change to or effect on the Included
Assets, including the operations or condition (financial or otherwise) thereof,
taken as a whole, the result of which is Losses related to the Included Assets
that are likely to require the expenditure by Buyer, within one (1) year
following the Closing Date, of in excess of Two Million Five Hundred Thousand
Dollars ($2,500,000) individually or Ten Million Dollars ($10,000,000) in the
aggregate; (ii) a permanent shutdown of the Palisades Facilities; or (iii) a
permanent diminution of the full licensed thermal power of the Palisades
Facilities of in excess of twenty-five (25) Megawatts thermal (MWth).
Notwithstanding the foregoing, a "Material Adverse Effect" shall not include:
(i) any changes or effects (taken together) generally affecting (A) a
substantial portion of the international, national or regional electric or
nuclear power industries, (B) international, national or regional wholesale or
retail markets for electric power or Nuclear Fuel or (C) international,
national, regional or electric transmission systems or operations thereof; (ii)
any change in any Law generally applicable to similarly situated Persons; (iii)
any change in the application or enforcement of any Law by any Governmental
Authority with respect to the Facilities or to similarly situated Persons,
unless such change in application or enforcement prohibits consummation of the
transactions contemplated by this Agreement; or (iv) any changes resulting from
or associated with acts of war or terrorism or changes imposed by a Governmental
Authority associated with additional security to address concerns of terrorism.
Notwithstanding the foregoing, no changes or effects that are cured to the
reasonable satisfaction of Buyer prior to the Closing at Seller's expense shall
be considered a Material Adverse Effect.
(128) "Michigan Land Division Act" has the meaning set forth in
Section 4.5(f).
(129) "MISO" means Midwest Independent Transmission System Operator,
Inc.
(130) "Mortgage Indenture" means the trust indenture dated as of
September 1, 1945 between Consumers Power Company (now Consumers Energy Company)
and City Bank Farmers Trust Company (now held by JPMorgan Chase Bank, N.A.,
successor trustee) and all supplemental indentures thereto, as may be further
amended and/or supplemented from time to time.
(131) "MPSC" means the Michigan Public Service Commission or any
successor agency thereto.
(132) "NEIL" means Nuclear Electric Insurance Limited, or any
successor thereto.
(133) "NMC" has the meaning set forth in the recitals.
12
(134) "Non-Bargaining Unit Transferred Employee" means any Transferred
Employee whose employment is not covered by the Collective Bargaining Agreement.
(135) "Non-material Contracts" means those contracts, agreements,
personal property leases, software or other licenses, or other commitments,
understandings or instruments relating to or associated with the operation,
maintenance, repair, replacement, inspection, modification and/or procurement of
the Included Assets, that have been entered into by Seller or NMC in the
ordinary course of business prior to the Closing and which either (i) are
terminable without penalty, termination payments, or other financial obligations
associated with termination (except for wind-down costs) upon notice of ninety
(90) days or less by Seller or, following the Closing, by Buyer or (ii) require
the payment or delivery of goods or services with a value of less than (a) One
Hundred Thousand Dollars ($100,000) per annum in the case of any individual
contract or commitment or (b) Two Hundred Fifty Thousand Dollars ($250,000) per
annum in the aggregate with respect to any single landlord, vendor or supplier.
(136) "Notional Investment Amount" has the meaning set forth in
Section 6.20(c).
(137) "NPPOSA" has the meaning set forth in the recitals.
(138) "NRC" means the United States Nuclear Regulatory Commission and
any successor agency thereto.
(139) "NRC Commitments" means all written regulatory commitments
identified as such by Seller to the NRC.
(140) "NRC Licenses" means those licenses listed on Schedule 4.14(b).
(141) "Nuclear Fuel Book Value Baseline Amount" means (i) if the
Closing shall occur prior to the commencement of the next refueling outage for
Palisades, Fifty Five Million Seven Hundred Sixty Eight Thousand Nine Hundred
Eighty Four Dollars ($55,768,984) and (ii) if the Closing shall occur after the
completion of the next refueling outage for Palisades, Sixty Seven Million Five
Hundred Thousand Dollars ($67,500,000).
(142) "Nuclear Fuel" means: (i) all nuclear fuel assemblies in the
Palisades reactor on the Closing Date; (ii) any previously irradiated fuel
assemblies that have been temporarily removed from the Palisades reactor as of
the Closing Date but which are capable of and intended for reinsertion into the
Facilities reactor as of the Closing Date without modification or additional
cost (for example, assemblies that are temporarily removed from the reactor
during a refueling outage for the purpose of rearranging the locations of
assemblies within the reactor core, or for purposes of repair prior to
reinsertion), (iii) any unirradiated fuel assemblies located at Palisades
awaiting their initial insertion into the Palisades reactor as of the Closing
Date; and (iv) all nuclear fuel constituents (including uranium in any form and
separative work units) in any stage of the fuel cycle that are in process of
production, conversion, enrichment or fabrication for use in the Palisades
reactor and which are owned by Seller, or in which Seller has any right, title
or interest, on the Closing Date.
13
(143) "Nuclear Fuel Inventories" means Nuclear Fuel inventories
relating to the operation of the Facilities located at, or in transit to, the
Facilities.
(144) "Nuclear Insurance Policies" means all nuclear insurance
policies carried by or for the benefit of Seller with respect to the ownership,
operation or maintenance of the Facilities, including all nuclear liability,
property damage and business interruption policies in respect thereof. Without
limiting the generality of the foregoing, the term "Nuclear Insurance Policies"
includes all policies issued or administered by ANI or NEIL.
(145) "Nuclear Laws" means all Laws relating to the regulation of
nuclear power plants, Source Material, Byproduct Material and Special Nuclear
Materials; Decommissioning; the regulation of Low Level Waste and Spent Nuclear
Fuel; the transportation and storage of Nuclear Materials; the regulation of
Safeguards Information; the regulation of Nuclear Fuel; the enrichment of
uranium; the disposal and storage of Spent Nuclear Fuel; contracts for and
payments into the Nuclear Waste Fund; and as applicable, the antitrust laws and
the Federal Trade Commission Act to specified activities or proposed activities
of certain licensees of commercial nuclear reactors, but shall not include
Environmental Laws. "Nuclear Laws" include the Atomic Energy Act of 1954, as
amended (42 U.S.C. Section 2011 et seq.), the Price-Anderson Act (Section 170 of
the Atomic Energy Act of 1954, as amended); the Energy Reorganization Act of
1974 (42 U.S.C. Section 5801 et seq.); Convention on the Physical Protection of
Nuclear Material Implementation Act of 1982 (Public Law 97 -351; 96 Stat. 1663);
the prohibition against nuclear enrichment transfers found in the Foreign
Assistance Act of 1961 (22 U.S.C. Section 2151, 2799 aa et seq.); the Nuclear
Non-Proliferation Act of 1978 (22 U.S.C. Section 3201); the Low-Level
Radioactive Waste Policy Act (42 U.S.C. Section 2021b et seq.); the Nuclear
Waste Policy Act (42 U.S.C. Section 10101 et seq. as amended); the Low-Level
Radioactive Waste Policy Amendments Act of 1985 (42 U.S.C. Section 2021b, 471);
the Energy Policy Act of 1992 (4 U.S.C. Section 13201 et seq.); the provisions
of 10 CFR Section 73.21. For sake of clarity, "Nuclear Laws" shall include the
requirements of any Law to the extent excluded from the definition of
"Environmental Laws" pursuant to the application of the last sentence thereof.
(146) "Nuclear Material or Materials" means Source Material, Special
Nuclear Material, Greater Than Class C Waste, Low Level Waste, Byproduct
Material and Spent Nuclear Fuel.
(147) "Nuclear Waste Fund" means the fund established by Section
302(c) of the Nuclear Waste Policy Act in which the Spent Nuclear Fuel Fees to
be used for the design, construction and operation of a High Level Waste
Repository and other activities related to the storage and disposal of Spent
Nuclear Fuel is deposited.
(148) "Nuclear Waste Policy Act" means the Nuclear Waste Policy Act of
1982, as amended.
(149) "Observers" has the meaning set forth in Section 6.1(c).
(150) "Off-Site Location" means any real property or other location,
other than the real property comprising the Sites.
14
(151) "Palisades" has the meaning set forth in the recitals.
(152) "Palisades Assets" means that part of the Included Assets
related to Palisades.
(153) "Palisades Deed" means a deed conveying the Real Property
comprising the Palisades Site and the Emergency Equipment Easements to Buyer, in
the form of Exhibit D-1 hereto.
(154) "Palisades Defined Benefit Plan" has the meaning set forth in
Section 6.10(g).
(155) "Palisades Defined Contribution Plan" has the meaning set forth
in Section 6.10(f).
(156) "Palisades Employee" means an hourly-paid or salaried employee
of (i) NMC or an Affiliate of NMC, or (ii) Consumers, who is subject to the
Collective Bargaining Agreement with the UWUA, and in either case who receives
an IRS Form W-2 from NMC or an Affiliate of NMC, or from Consumers and who is
principally employed as of the Closing Date at Palisades (including employees
absent from service due to illness, leave of absence or military service, or
whose work responsibilities involve principally the operation of any of the
Palisades Assets, which employees shall be set forth in Schedule 6.10(a) (which
shall be updated as of the Closing Date as provided for herein). "Palisades
Employee" does not mean or include any worker, working at or on the Facilities
or the Palisades Assets, who is compensated directly by an entity other than NMC
or an Affiliate of NMC or Consumers and/or for whom NMC or an Affiliate of NMC
or Consumers issues an IRS Form 1099.
(157) "Palisades Facilities" means the Facilities associated with
Palisades.
(158) "Palisades Retiree Coverages" has the meaning set forth in
Section 6.10(k).
(159) "Palisades Site" means the parcels of land included in the Real
Property conveyed to Buyer pursuant to the Palisades Deed.
(160) "Palisades Survey" has the meaning set forth in Section 6.24.
(161) "Palisades Title Commitment" means the title commitment issued
by Chicago Title Insurance Company, Revision No. 6, effective date April 10,
2006 at 8:00 a.m., File No. 800414496CML that is included in Exhibit J attached
hereto.
(162) "Party" (and the corresponding term "Parties") has the meaning
set forth in the preamble.
(163) "PBGC" means the Pension Benefit Guaranty Corporation
established by ERISA.
(164) "Permits" has the meaning set forth in Section 4.13(a).
15
(165) "Permitted Encumbrances" means: (i) without limiting Buyer's
rights in regard to any applicable conditions to consummate the Closing, (A)
with respect to the Palisades Site, (x) the exceptions to title listed in Items
6 through 28 of Schedule B, Part II, of the Palisades Title Commitment, (y) all
matters shown on the Palisades Survey and (z) any rights of the public under the
"public trust" doctrine in areas adjoining the Lake Michigan shore, and (B) with
respect to the Big Rock ISFSI Site, the exceptions to title listed in Items 6
and 8 of Schedule B, Part II, of the Big Rock Point ISFSI Title Commitment and
all matters shown on the Big Rock ISFSI Survey; (ii) Encumbrances created by the
Mortgage Indenture that will be released prior to or at the Closing; (iii)
statutory liens for Taxes or other governmental charges or assessments not yet
due or delinquent or the validity of which are being contested in good faith by
appropriate proceedings and which do not individually or in the aggregate exceed
$500,000 (iv) mechanics', materialmen's, carriers', workers', repairers' and
other similar liens arising or incurred in the ordinary course of business
relating to obligations as to which there is no default on the part of Seller or
the validity of which are being contested in good faith, and which do not,
individually or in the aggregate, exceed Five Hundred Thousand Dollars
($500,000); (v) subject to Section 6.6(f), Seller's representations and
warranties in this Agreement and without limiting any of Buyer's rights in
regard to any applicable conditions to Buyer's obligations to consummate the
Closing or under the terms of the Deeds, zoning, entitlement, environmental or
conservation restrictions and other land use and environmental regulations
imposed by Governmental Authorities which do not, individually or in the
aggregate, interfere with the present use or operation of the Included Assets;
(vi) the rights and easements to be reserved by Seller following the Closing
pursuant to the Deeds and associated terms and conditions set forth in the
Deeds; and (vii) such other imperfections in or failures of title, easements,
leases, licenses, restrictions, building or use limitations, conservation
easements, encumbrances and encroachments, as do not, individually or in the
aggregate, materially detract from the value of the Included Assets as such
assets are currently used by an amount in excess of One Hundred Thousand Dollars
($100,000) or materially interfere with the present use or operation of the
Included Assets.
(166) "Person" means any individual, partnership, limited liability
company, joint venture, corporation, trust, unincorporated organization,
association or Governmental Authority.
(167) "Plans" has the meaning set forth in Section 2.4(f).
(168) "PLR Decommissioning Amount" has the meaning set forth in
Section 6.12(a).
(169) "Post-Closing Adjustment" has the meaning set forth in Section
3.3(c).
(170) "Post-Closing Decommissioning Trust Agreement" means the
decommissioning trust agreement between Buyer and the Trustee pursuant to which
any assets of the Qualified Decommissioning Fund to be transferred by Seller at
Closing pursuant to Section 6.12 hereof will be held in trust.
(171) "Post-Closing SNF Claim" has the meaning set forth in Section
6.14(a).
(172) "Post-Closing Statement" has the meaning set forth in Section
3.3(c).
16
(173) "Power Purchase Agreement" means the Power Purchase Agreement
between Seller and Buyer, dated as of the Effective Date and in the form of
Exhibit F hereto.
(174) "Pre-1983 Fee" means the one-time fee, including any interest,
late fees and/or penalties accruing thereon from time to time, payable by Seller
pursuant to Article VIII (B)(2) of the Standard Spent Fuel Disposal Contract.
(175) "Price-Anderson Act" means Section 170 of the Atomic Energy Act
and related provisions of Section 11 of the Atomic Energy Act.
(176) "Proposed Post-Closing Adjustment" has the meaning set forth in
Section 3.3(c).
(177) "Proprietary Information" (i) with respect to information
provided by Seller to Buyer, has the meaning as set forth in the Confidentiality
Agreement, and (ii) with respect to information provided by Buyer to Seller,
shall mean information relating to the financing or operation and maintenance,
actual or proposed, of the Included Assets and any financial, operational or
other information concerning Buyer or its Affiliates or their respective assets
and properties furnished by Buyer or its Representatives to Seller or its
Representatives, whether furnished before, on or after the Effective Date,
whether oral or written, and regardless of the manner in which it is furnished;
but does not include information which (a) is or becomes generally available to
the public other than as a result of a disclosure by Seller or its
Representatives, (b) was available to Seller or its Representatives on a
non-confidential basis prior to its disclosure by Buyer or its Representatives
or (c) becomes available on a non-confidential basis from a person other than
Buyer or its Representatives who is not otherwise bound by a confidentiality
agreement with Buyer or its Representatives, or is otherwise not under any
obligation to Buyer or its Representatives not to transmit the information to
Seller or its Representatives.
(178) "Purchase Price" has the meaning set forth in Section 3.2.
(179) "Qualified Decommissioning Fund" means, with respect to Seller,
Seller's external trust fund for purposes of Decommissioning Palisades that
meets the requirements of Code Section 468A and Treas. Reg. Section 1.468A-5,
maintained by Seller with respect to the Facilities prior to Closing pursuant to
Seller's Decommissioning Trust Agreement and, with respect to Buyer, Buyer's
external trust fund for purposes of Decommissioning Palisades that meets the
requirements of Code Section 468A and Treas. Reg. Section 1.468A-6(b)(2),
maintained by Buyer after the Closing pursuant to the Post-Closing
Decommissioning Trust Agreement to the extent assets are transferred to such
fund by Seller pursuant to Section 6.12.
(180) "Real Property" has the meaning set forth in Section 2.1(a).
(181) "Release" shall have the meaning set forth in Environmental
Laws, but shall include any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping or disposing of
Hazardous Materials into the Environment; provided, however, that "Release"
shall not include any release that is permissible under applicable Environmental
Laws or Environmental Permits.
17
(182) "Remediation" means action of any kind required by any
applicable Environmental Law or order of a Governmental Authority to address a
Release, the threat of a Release or the presence of Hazardous Materials at a
Site, the Included Assets or an Off-Site Location including any or all of the
following activities to the extent they relate to or arise from the Release or
presence of Hazardous Materials at that Site, the Included Assets or an Off-Site
Location: (a) monitoring, investigation, assessment, treatment, cleanup,
containment, removal, mitigation, response or restoration work; (b) obtaining
any permits, consents, approvals or authorizations of any Governmental Authority
necessary to conduct any such activity; (c) preparing and implementing any plans
or studies for any such activity; (d) obtaining a written communication from a
Governmental Authority with jurisdiction over the Site, the Included Assets or
an Off-Site Location under Environmental Law that no material additional work is
required by such Governmental Authority; (e) the use, implementation,
application, installation, operation or maintenance of remedial action at the
Site, the Included Assets or an Off-Site Location, remedial technologies applied
to the surface or subsurface soils, excavation and off-Site treatment or
disposal of soils, systems for long term treatment of surface water or ground
water, engineering controls or institutional controls; and (f) any other
activities reasonably determined to be required under Environmental Laws to
address the presence or Release of Hazardous Materials at the Site, the Included
Assets or an Off-Site Location.
(183) "Replacement Benefit Plans" has the meaning set forth in Section
6.10(e).
(184) "Replacement Defined Benefit Plans" has the meaning set forth in
Section 6.10(g)(1).
(185) "Replacement Retiree Coverages" has the meaning set forth in
Section 6.10(k).
(186) "Replacement Welfare Plans" has the meaning set forth in Section
6.10(d).
(187) "Reportable Event" has the meaning set forth in ERISA Section
4043.
(188) "Representatives" of a Party means the Party and its Affiliates
and their directors, officers, employees, agents, partners, advisors (including
accountants, counsel, environmental consultants, financial advisors and other
authorized representatives) and parents and other controlling Persons.
(189) "Requested Rulings" has the meaning set forth in Section 6.18.
(190) "Safeguards Information" means information that is required to
be protected under the terms of 10 C.F.R. Section 73.21.
(191) "SAFSTOR" means a method of Decommissioning in which a nuclear
facility is placed and maintained in such condition that such facility can be
safely stored and subsequently decontaminated to levels that permit release for
unrestricted use.
(192) "SEC" means the United States Securities and Exchange Commission
and any successor agency thereto.
18
(193) "Securities Act" means the Securities Act of 1933, as amended.
(194) "Seller" has the meaning set forth in the preamble.
(195) "Seller Indemnitee" has the meaning set forth in Section 8.1(a).
(196) "Seller's Agent(s)" has the meaning set forth in Section 6.1(c).
(197) "Seller's Agreements" means those contracts, agreements,
licenses, leases and other legally binding commitments and arrangements
primarily relating to the ownership, operation and maintenance of the Included
Assets, including licenses and leases for computer hardware and software,
described on Schedule 4.11(a)(i).
(198) "Seller's Decommissioning Trust Agreement" means the Amended and
Restated Trust Agreement, dated January 1, 2004, by and between Consumers and
State Street Bank and Trust Company, regarding the Qualified Decommissioning
Fund of Seller.
(199) "Seller's Parent" means CMS Energy Corporation, a Michigan
corporation.
(200) "Seller's Required Regulatory Approvals" has the meaning set
forth in Section 4.3(b).
(201) "SFAS 106" has the meaning set forth in Section 6.10(l)(2).
(202) "Sites" means, collectively, the Big Rock ISFSI Site and the
Palisades Site. Any reference to the Sites or to any particular Site shall
include, by definition, the surface and subsurface elements, including the soils
and groundwater present at the relevant Site or Sites and any references to
items "at the Site" or "at the Sites" shall include all items "at, in, on, upon,
over, across, under, and within" the relevant Site(s).
(203) "Source Material" means: (1) uranium or thorium; or any
combination thereof, in any physical or chemical form, or (2) ores which contain
by weight one-twentieth of one percent (0.05%) or more of (i) uranium, (ii)
thorium, or (iii) any combination thereof. Source Material does not include
Special Nuclear Material.
(204) "Special Nuclear Material" means plutonium, uranium-233, uranium
enriched in the isotope-233 or in the isotope-235, and any other material that
the NRC determines to be "Special Nuclear Material," but does not include Source
Material. Special Nuclear Material also refers to any material artificially
enriched by any of the above-listed materials or isotopes, but does not include
Source Material.
(205) "Spent Nuclear Fuel" means fuel that has been permanently
withdrawn from a nuclear reactor following irradiation, and has not been
chemically separated into its constituent elements by reprocessing. Spent
Nuclear Fuel includes the Special Nuclear Material, Byproduct Material, Source
Material, Greater Than Class C Waste, and other radioactive materials associated
with Nuclear Fuel assemblies.
19
(206) "Spent Nuclear Fuel Fees" means those fees assessed pursuant to
the Standard Spent Fuel Disposal Contract, as provided in Section 302 of the
Nuclear Waste Policy Act and 10 C.F.R. Part 961, as the same may be amended from
time to time, on electricity generated at Palisades and the Big Rock Point Plant
Operating Facility.
(207) "Standard Spent Fuel Disposal Contract" means the Contract for
Disposal of Spent Nuclear Fuel and/or High Level Radioactive Waste, No.
DE-CR01-83NE44374, dated June 3, 1983 and entered into between Consumers and the
United States of America, represented by the Department of Energy, as amended,
which shall be deemed a Seller's Agreement under this Agreement.
(208) "Survey(s)" has the meaning set forth in Section 6.24(b).
(209) "Tangible Personal Property" has the meaning set forth in
Section 2.1(b).
(210) "Tax" or "Taxes" means, all taxes, charges, fees, levies,
penalties or other assessments, including Income Taxes, imposed by any federal,
state, local, provincial or foreign taxing authority, including gross receipts,
single business, excise, ad valorem, real or personal property, sales, transfer,
customs, duties, franchise, payroll, withholding, social security, receipts,
license, stamp, occupation, employment, or other taxes, including any interest,
penalties or additions attributable thereto, and any payments to any state,
local, provincial or foreign taxing authorities in lieu of any such taxes,
charges, fees, levies or assessments.
(211) "Tax Rate" has the meaning set forth in Section 6.20(c).
(212) "Tax Return" means any return, report, information return,
declaration, claim for refund or other document (including any schedule or
related or supporting information) required to be supplied to any Governmental
Authority with respect to Taxes including amendments thereto.
(213) "Termination Date" has the meaning set forth in Section 9.1(b).
(214) "Third Party Claim" has the meaning set forth in Section 8.3(a).
(215) "Threshold Amount" has the meaning set forth in Section 8.2(a).
(216) "Total Compensation" has the meaning set forth in Section
6.10(c).
(217) "Transferable Permits" means those Permits and Environmental
Permits which are transferable to Buyer without consent or approval of any
Governmental Authority.
(218) "Transferred Employee Records" means all reasonably available
records related to Transferred Employees (including those employed by NMC) for
the entire term of their employment with Seller, NMC or any of their Affiliates,
including the following information: (i) skill and development training, (ii)
seniority histories, (iii) salary and benefit information, (iv) Occupational,
Safety and Health Administration reports, (v) medical records and active medical
restriction forms, (vi) fitness for duty, (vii) disciplinary actions, (viii) job
performance appraisals and/or evaluations, (ix) employment applications, (x)
bonuses, (xi) job
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history, (xii) access authorization records, (xiii) radiation exposure records,
(xiv) direct deposit financial institution data, (xv) wages paid, recurring
payroll deductions, Taxes withheld and/or paid and liens, (xvi) payroll advance
data, (xvii) accrued and unused sick or vacation leave and (xviii) service
credited for purposes of vesting and eligibility to participate under any
Benefit Plan, in each case for the year in which the Closing occurs.
(219) "Transferred Employees" has the meaning set forth in Section
6.10(b).
(220) "Transfer Taxes" means any real property transfer, sales, use,
value added, stamp, documentary, recording, registration, conveyance, stock
transfer, intangible property transfer, personal property transfer, gross
receipts, registration, duty, securities transactions or similar fees or Taxes
or governmental charges (together with any interest or penalty, addition to Tax
or additional amount imposed) as levied by any Governmental Authority in
connection with the transactions contemplated by this Agreement, including any
payments made in lieu of any such Taxes or governmental charges which become
payable in connection with the transactions contemplated by this Agreement.
(221) "Transition Committee" has the meaning set forth in Section
6.1(b).
(222) "Trustee" means with respect to Seller prior to the Closing the
trustee of the Qualified Decommissioning Fund appointed by Seller pursuant to
Seller's Decommissioning Trust Agreement and after the Closing to the extent any
assets of the Qualified Decommissioning Fund are transferred by Seller pursuant
to Section 6.12 hereof, the trustees appointed pursuant to the Post-Closing
Decommissioning Trust Agreement.
(223) "USERRA" means the Uniformed Services Employment and
Reemployment Rights Act of 1994, as amended, and the accompanying regulations.
(224) "UWUA" means the Utility Workers Union of America, an affiliate
of the AFL-CIO.
(225) "WARN Act" means the Worker Adjustment and Retraining
Notification Act of 1988, as amended.
(226) "WARN Certificate" has the meaning set forth in Section 6.10(h).
1.2. Certain Interpretive Matters.
(a) Unless otherwise required by the context in which any term
appears:
(1) Capitalized terms used in this Agreement shall have the
meanings specified in this Article.
(2) The singular shall include the plural, the plural shall
include the singular, and the masculine shall include the feminine and
neuter.
(3) References to "Articles," "Sections," "Schedules" or
"Exhibits" shall be to articles, sections, schedules or exhibits of or to
this Agreement, and references
21
to "paragraphs" or "clauses" shall be to separate paragraphs or clauses of
the section or subsection in which the reference occurs.
(4) The words "herein," "hereof" and "hereunder" shall refer to
this Agreement as a whole and not to any particular section or subsection
of this Agreement; and the words "include," "includes" or "including" shall
mean "including, but not limited to."
(5) The term "day" shall mean a calendar day, commencing at 12:00
a.m. (local time). The term "week" shall mean any seven consecutive day
period commencing on a Sunday, and the term "month" shall mean a calendar
month; provided that when a period measured in months commences on a date
other than the first day of a month, the period shall run from the date on
which it starts to the corresponding date in the next month and, as
appropriate, to succeeding months thereafter. Whenever an event is to be
performed or a payment is to be made by a particular date and the date in
question falls on a day which is not a Business Day, the event shall be
performed, or the payment shall be made, on the next succeeding Business
Day; provided, however, that all calculations shall be made regardless of
whether any given day is a Business Day and whether or not any given period
ends on a Business Day.
(6) All references to a particular entity shall include such
entity's permitted successors and permitted assigns unless otherwise
specifically provided herein.
(7) All references herein to any Law or to any contract or other
agreement shall be to such Law, contract or other agreement as amended,
supplemented or modified from time to time unless otherwise specifically
provided herein.
(b) The titles of the articles, sections and schedules herein have
been inserted as a matter of convenience of reference only, and shall not
control or affect the meaning or construction of any of the terms or provisions
hereof.
(c) This Agreement was negotiated and prepared by both Parties with
advice of counsel to the extent deemed necessary by each Party; the Parties have
agreed to the wording of this Agreement; and none of the provisions hereof shall
be construed against one Party on the ground that such Party is the author of
this Agreement or any part hereof.
(d) The Exhibits hereto are incorporated in and are intended to be a
part of this Agreement; provided, however, that in the event of a conflict
between the terms of any Exhibit and the terms of the remainder of this
Agreement, the terms of the remainder of this Agreement shall take precedence.
ARTICLE 2
PURCHASE AND SALE
2.1. Included Assets.
Upon the terms and subject to the satisfaction of the conditions
contained in this Agreement, at the Closing, Seller will sell, assign, convey,
transfer and deliver, or cause to be
22
sold, assigned, conveyed, transferred and delivered, to Buyer, and Buyer will
purchase, assume and acquire from Seller free and clear of all Encumbrances
(except for Permitted Encumbrances), all of Seller's right, title and interest
in and to the properties and assets constituting, or primarily used in the
ownership, maintenance or operation of, Palisades and the Big Rock ISFSI at or
prior to the Closing (other than the Excluded Assets) (collectively, the
"Included Assets"), including the following:
(a) The land described on Schedule 2.1(a) (which land comprises the
Sites) together with all buildings, facilities, fixtures and other improvements
thereon including the Facilities (but excluding any personal property of Seller
thereon) and all rights arising out of the ownership thereof or appurtenances
thereto, including all related easements, all related rights of ingress and
egress, the water intake and discharge structures to the extent such may be
deemed real property (collectively, the "Real Property");
(b) All machinery, mobile or otherwise, equipment (including computer
hardware and communications equipment), vehicles, tools, spare parts, materials,
works in progress, furniture and furnishings and other items of personal
property used primarily in connection with the ownership, maintenance or
operation of Palisades and the Big Rock ISFSI, including that listed on Schedule
2.1(b) (collectively, "Tangible Personal Property");
(c) All Nuclear Fuel Inventories and Facility Inventories wherever
located, and all Nuclear Materials located at the Sites at Closing which Nuclear
Materials were used at or in connection with Palisades or Big Rock Point Plant
Operating Facility and resulted from the operation or maintenance of Palisades
or Big Rock Point Plant Operating Facility;
(d) Subject to the provisions of Section 6.4(d), all rights of Seller
under the Fuel Contracts, the Non-material Contracts and the Seller's
Agreements;
(e) All Transferable Permits;
(f) To the extent permitted by Law, except for the books and records
that are Excluded Assets, all books, operating records, licensing records,
quality assurance records, purchasing records, and equipment repair,
maintenance, safety or service records, operating, safety and maintenance
manuals, inspection reports, environmental assessments, environmental reports
made to Governmental Authorities and records maintained in accordance with
Environmental Laws, engineering design plans, documents, blueprints and as built
plans, specifications, procedures, studies or reports and other similar items of
Seller primarily relating to the design, construction, licensing, regulation,
operation or Decommissioning of Palisades, the Big Rock ISFSI and the Included
Assets (including all of Seller's rights to use such documents owned by other
Persons and licensed to or held for use by or for Seller or its agents) wherever
located and whether existing in hard copy or magnetic or electronic form
(subject to the right of Seller to retain copies of same for its use and subject
to the obligation of Buyer to preserve such records and make such records
available to Seller as reasonably necessary for Seller's reasonable and lawful
purposes following the Closing Date as provided in Section 6.2(c))
(collectively, the "Business Books and Records"), provided, that Buyer agrees
that Seller, at its option, may transfer to Buyer either originals or copies of
the Business Books and Records, and, with respect to the Business Books and
Records related to the Big Rock ISFSI, Seller may transfer to Buyer
23
originals or copies of Seller's books and records relating to the Big Rock Point
Plant Operating Facility, which books and records include the Business Books and
Records related to the Big Rock ISFSI;
(g) All unexpired, transferable warranties and guarantees from third
parties with respect to any item constituting part of the Included Assets;
(h) The name "Palisades Nuclear Plant," "Palisades" and "Big Rock
ISFSI" as used as a designation attached to or associated with the Facilities
and any derivative tradenames, trademarks, servicemarks or logos;
(i) All patents and patent rights, trademarks and trademark rights,
service marks and service mark rights, inventions, proprietary processes, trade
names, copyrights and copyright rights, trade secrets, computer programs and
other software, know-how, domain names, websites, source and object codes and
all other intellectual property and intellectual property rights primarily used
in, the operation or maintenance of, the Included Assets, and all pending
applications for registrations of patents, trademarks, service marks and
copyrights, including those items described on Schedule 2.1(i) (the
"Intellectual Property"), provided, however, that Seller hereby reserves, and
Buyer hereby grants to Seller and its Affiliates, to the extent transferable or
subject to reservation, as applicable, an irrevocable, fully-paid, royalty-free,
license to use such Intellectual Property (except that such license or
reservation, as applicable, shall not apply with respect to any trademarks and
trademark rights, service marks and service mark rights, trade names, domain
names and websites included within the Intellectual Property);
(j) All equipment located within the boundaries of the Palisades Site
substation owned by Seller, other than the meters referred to in Section 2.2(a);
(k) Subject to Section 6.20(c), those assets comprising the Qualified
Decommissioning Fund relating to the Palisades Facilities being transferred to
Buyer pursuant to Section 6.12(a), including all profits, dividends, income,
interest and earnings accrued thereon, together with all related Tax, accounting
and other records for such assets, including all Decommissioning studies,
analyses and cost estimates and all records related to the determination of the
Tax basis of such assets;
(l) Subject to Section 2.2(e), those Nuclear Insurance Policies with
ANI and, to the extent transferable, those certain Indemnity Agreements of the
Atomic Energy Commission, in either case to the extent relating to the
Facilities and listed on Schedule 2.2(l);
(m) The radio licenses set forth on Schedule 2.1(m);
(n) Except for the Department of Energy Claim, the rights of Seller in
and to any causes of action asserted and unasserted (other than any causes of
action filed and pending as of the Closing Date, as set forth on Schedule 2.1(n)
(as updated on or prior to the Closing Date) to the extent relating to the
period prior to the Closing Date) claims (including rights under insurance
policies to proceeds, refunds or distributions thereunder paid after the Closing
Date with respect to the Assumed Liabilities and Obligations or with respect to
pre-Closing damages to the Included Assets that have not been remedied by
Seller) and defenses against third parties
24
(including indemnification and contribution) to the extent relating to any
Assumed Liabilities and Obligations, including (subject to Section 6.14) the
right to prosecute any and all claims for damages arising post-Closing under the
Standard Spent Fuel Disposal Contract (except to the extent included within the
Department of Energy Claim);
(o) The Transferred Employee Records, subject to the right of Seller
to retain copies of such records for its use and subject to the obligation of
Buyer to preserve such records and make such records available to Seller as
necessary for Seller's purposes following the Closing Date as provided in
Section 6.2(c);
(p) All assignable right, title and interest to the NRC Licenses; and
(q) All rights of Seller in property, assets, leases and agreements
primarily used in providing emergency warning or primarily associated with
emergency preparedness, including (i) the Emergency Equipment Easements set
forth on Schedule 2.1(q) and (ii) except as set forth in Schedule 4.13(b), the
emergency warning sirens and environmental sampling and dosimeter stations
listed on Schedule 2.1(q).
2.2. Excluded Assets.
Notwithstanding anything to the contrary in this Agreement, nothing in
this Agreement shall be construed as conferring on Buyer, and Buyer is not
acquiring, any right, title or interest in or to the following specific assets
which are associated with the Included Assets, but which are hereby specifically
excluded from the sale and the definition of Included Assets herein (the
"Excluded Assets"):
(a) Any meters owned or to be owned by Seller located within the
boundaries of the Palisades Site substation and to be used in connection with
providing station power service to Palisades;
(b) The radio communications system antenna and related equipment
located on the "Meteorological Tower Site" as further described in the Palisades
Deed;
(c) Except to the extent contemplated by the Firing Range Lease and
the Emergency Operations Facilities Lease, Seller's interest in (i) the Firing
Range and (ii) the facility in South Haven, Michigan included in the Emergency
Operations Facilities;
(d) Certificates of deposit, shares of stock, securities, bonds,
debentures, evidences of indebtedness, and interests in joint ventures,
partnerships, limited liability companies and other entities relating to the
Facilities or the Sites, except such assets comprising the Qualified
Decommissioning Fund or assets transferred pursuant to Section 6.10;
(e) All rights to premium refunds and distributions made on or after
the Closing Date with respect to periods prior to the Closing Date under Nuclear
Insurance Policies of Seller with ANI, including any rights to receive premium
refunds, distributions and continuity credits with respect to periods prior to
the Closing Date pursuant to the ANI nuclear industry credit rating plan;
25
(f) Seller's policyholder interest under its NEIL policies, including
rights to any premium refunds or other distributions made on or after the
Closing Date;
(g) Seller's interest in all cash, cash equivalents, bank deposits,
accounts and notes receivable (trade or otherwise), and any income, sales,
payroll or other receivables relating to Taxes, in each case relating to the
Included Assets, except to the extent such assets are included in the Qualified
Decommissioning Fund or are assets transferred pursuant to Section 6.10;
(h) The rights of Seller and its Affiliates to the names "Consumers
Energy" or "Consumers" or any related or similar trade names, trademarks,
service marks, corporate names or logos, or any part, derivative or combination
thereof (for the avoidance of doubt, Buyer shall not acquire any right to or
interest in the name "CMS Energy" or any related or similar trade names,
trademarks, service marks, corporate names or logos, or any part, derivative or
combination thereof);
(i) All tariffs, agreements and arrangements to which Seller is a
party or has an interest for the purchase or sale of electric capacity and/or
energy or for the purchase or sale of transmission or ancillary services;
(j) Other than those contemplated by Section 2.1(n), the rights of
Seller in and to any causes of action, claims and defenses against third parties
(including indemnification and contribution) arising out of or relating to (i)
any Real Property or personal property, Permits, Taxes, Emergency Equipment
Easements, the Seller's Agreements, Fuel Contracts or the Non-material
Contracts, if any, including any claims for refunds (including refunds of
previously paid Department of Energy Decommissioning and Decontamination Fees),
prepayments, offsets, recoupment, insurance proceeds, condemnation awards,
judgments and the like, whether received as payment or credit against future
liabilities, relating specifically to the Included Assets (including the
Facilities and the Sites), to the extent relating to any period prior to the
Closing Date, (ii) the Excluded Assets or (iii) the Excluded Liabilities;
(k) The Department of Energy Claim;
(l) All personnel records of Seller, NMC and their Affiliates relating
to the Facilities or the Sites, except the Transferred Employee Records;
(m) Unless included as a Seller Agreement, any and all of Seller's
rights in any contract representing an intercompany transaction between Seller
and an Affiliate of Seller, whether or not such transaction relates to the
provision of goods and services, payment arrangements, intercompany charges or
balances, or the like;
(n) To the extent not otherwise provided for in this Section 2.2 and
unless prorated as provided in Section 3.5, any refund or credit (i) related to
Taxes paid by Seller with respect to periods (or portions thereof) that end on
or prior to the Closing Date in respect of the Included Assets, whether such
refund is received as a payment or as a credit against future Taxes, or (ii)
arising under any agreement which is part of the Included Assets and relating to
a period (or portion thereof) ending on or prior to the Closing Date;
26
(o) All rights of Seller under those contracts, agreements, purchase
orders and personal property leases set forth in Schedule 2.2(o) (the "Excluded
Contracts");
(p) All books, operating records, licensing records, quality assurance
records, purchasing records, and equipment repair, maintenance or service
records relating exclusively to the design, construction, licensing or operation
of the Facilities, operating, safety and maintenance manuals, inspection
reports, environmental assessments, engineering design plans, documents,
blueprints and as built plans, specifications, procedures and other similar
items of Seller, wherever located, relating to the Excluded Assets or the
Excluded Liabilities, whether existing in hard copy or magnetic or electronic
form;
(q) All of the assets of Seller comprising any fund relating to
Decommissioning, other than the Seller's Qualified Decommissioning Fund;
(r) The right to the Excess PLR Decommissioning Amount, if any, upon
the occurrence of any event specified in Section 6.20(c) or the receipt of the
Requested Rulings prior to the Closing; and
(s) All other assets of Seller and its Affiliates not constituting an
interest in the Included Assets (it being acknowledged and agreed that no spare
transformer for the Facilities has been included in the Included Assets).
2.3. Assumed Liabilities and Obligations.
At the Closing, Buyer shall deliver to Seller the Assignment and
Assumption Agreement pursuant to which Buyer shall assume and agree to discharge
when due, the following specific Liabilities and certain liabilities for Taxes
of Seller that relate to the Included Assets or are otherwise specified below
(collectively, "Assumed Liabilities and Obligations"):
(a) All Liabilities arising after the Closing with respect to the
ownership, operation, use or maintenance after the Closing of the Included
Assets, and all Liabilities arising after the Closing under the Seller's
Agreements (including the Standard Spent Fuel Disposal Contract), Fuel
Contracts, the Emergency Equipment Easements, the Non-material Contracts and the
Transferable Permits in accordance with the terms thereof, including all
Liabilities arising after the Closing relating to the contracts, licenses,
agreements and personal property leases entered into with respect to the
Included Assets after the Effective Date consistent with Section 6.9, except in
each case to the extent such Liabilities, but for a breach or default by Seller
or a related waiver or extension, would have been paid, performed or otherwise
discharged at or prior to the Closing or to the extent the same arise out of any
such breach or default or related waiver or out of any event which after the
giving of notice or the passage of time would constitute a default by Seller;
(b) All Liabilities with respect to the Transferred Employees relating
to loss of life, injury, illness, discrimination, wrongful discharge, unfair
labor practice, or constructive termination of any individual, or similar claim
or cause of action that are attributable to any actions or inactions of Buyer or
its Affiliates at or after the Closing;
27
(c) All Liabilities with respect to Transferred Employees for which
Buyer is responsible pursuant to Section 6.10;
(d) Except as contemplated by Section 2.4(d), 2.4(i) and 2.4(j), all
Liabilities of Seller under or related to Environmental Laws with respect to the
ownership, use, operation or maintenance of the Included Assets (i) arising pre-
or post-Closing, with respect to any such Liabilities caused (or allegedly
caused) by the presence or Release of Hazardous Materials at, on, in, under or
migrating from the Palisades Site (but excluding any such Liability arising
pre-Closing with respect to an Off-site Location, except to the extent that the
Hazardous Materials giving rise to such Liability are present on the Palisades
Site and such Off-Site Location as a result of the same Release occurring prior
to the Closing) and (ii) arising after the Closing with respect to all other
such Liabilities, including any such Liabilities caused (or allegedly caused) by
the presence or Release of Hazardous Materials at, on, in, under or migrating
from the Big Rock ISFSI Site;
(e) Liabilities for any claims by third parties resulting from or in
connection with loss of life, injury or illness to persons or damages to
property or the Environment and caused (or allegedly caused) by the presence or
Release after the Closing of Hazardous Materials at, on, in, under or migrating
from the Palisades Site or the Big Rock ISFSI Site;
(f) All Liabilities associated with or arising from the Included
Assets in respect of Taxes for which Buyer is liable pursuant to Section 3.5 or
6.8;
(g) With respect to the Included Assets, all Liabilities for any Taxes
that may be imposed by any Governmental Authority on the ownership, sale,
maintenance, operation or use of the Included Assets or that relate to or arise
from the Included Assets, in either case with respect to taxable periods (or
portions thereof) beginning at or after the Closing (except for any Taxes
imposed upon Seller arising from the sale of the Included Assets pursuant to
this Agreement, any Income Taxes attributed to income actually received and
retained by Seller, any Taxes imposed upon Seller under Section 6.8);
(h) All Liabilities to Decommission the Facilities and the Sites;
(i) Without limiting the Liabilities retained by Seller pursuant to
Sections 6.13, 6.14 or 6.15, all Liabilities (other than Liabilities relating to
claims by third parties, which are addressed in Section 2.3(j)), (A) whether
arising pre- or post-Closing with respect to the Palisades Assets (but not, with
respect to any such pre-Closing Liabilities, at any Off-Site Location) and (B)
arising after the Closing with respect to the Big Rock ISFSI Assets, (x) under
or relating to Nuclear Laws and arising out of the ownership, use, operation or
maintenance at the applicable Site of the Included Assets or (y) associated
with, or related to any claim in respect of, Nuclear Fuel, Spent Nuclear Fuel or
other Nuclear Materials located at the applicable Site, including any and all
such Liabilities arising out of or resulting from an "extraordinary nuclear
occurrence," a "nuclear incident" or a "precautionary evacuation" (as such terms
are defined in the Atomic Energy Act) at the Sites or any other licensed nuclear
reactor site in the United States, or such an extraordinary nuclear occurrence,
nuclear incident or precautionary evacuation in the course of the transportation
of radioactive materials to or from the Sites or any other site, including
Liability for any deferred premiums assessed in connection
28
with such an extraordinary nuclear occurrence, a nuclear incident or
precautionary evacuation under any applicable NRC or industry retrospective
rating plan or insurance policy, including any mutual insurance pools
established in compliance with the requirements imposed under Section 170 of the
Atomic Energy Act, 10 C.F.R. Part 140, and 10 C.F.R. Section 50.54(w); provided,
however, that Buyer does not assume, and Seller shall retain as Excluded
Liabilities hereunder, all Liabilities of Seller arising pre-Closing and
associated with the off-Site processing, disposal, fabrication, storage,
handling or transportation of Nuclear Fuel, Spent Nuclear Fuel or other Nuclear
Materials (including, for purposes of this Section 2.3(i), Hazardous Materials
mixed with Nuclear Materials) owned by Seller or NMC or otherwise associated in
any manner with the Included Assets; and provided further, that, for sake of
clarity, Buyer does not assume any such Liabilities associated with the
construction, operation or Decommissioning of the Big Rock Point Plant Operating
Facility, except all Liabilities attributable to periods following the Closing
related to the Big Rock ISFSI;
(j) Liabilities for any claims by third parties (including employees,
whether such Liability is work-related or not) for loss of life, injury or
illness to persons, damages to property or tort or similar causes of action
based on acts or omissions arising or occurring after the Closing (i) under or
relating to Nuclear Laws and arising out of the ownership, use, operation or
maintenance of the Included Assets or (ii) associated with, or related to any
claim in respect of, Nuclear Fuel, Spent Nuclear Fuel or other Nuclear Materials
located at the Palisades Site or the Big Rock ISFSI Site; and
(k) All other Liabilities expressly allocated to or assumed by Buyer
in this Agreement.
2.4. Excluded Liabilities.
Notwithstanding anything to the contrary in this Agreement, nothing in
this Agreement shall be construed to impose on Buyer, and Buyer shall not assume
or be obligated to pay, perform or otherwise discharge, any Liabilities not
expressly identified as Assumed Liabilities and Obligations in Section 2.3 above
(collectively, the "Excluded Liabilities"), including the following Liabilities
and liabilities for Taxes, with all of such Excluded Liabilities remaining as
obligations of Seller:
(a) Any Liabilities in respect of (i) any Excluded Assets or other
assets of Seller which are not Included Assets and (ii) any Excluded Contracts;
(b) Any Liabilities for Taxes attributable to the ownership, sale,
operation, maintenance or use of the Included Assets (including any withholding
Taxes imposed on Seller with respect to the Transferred Employees) for taxable
periods, or portions thereof, ending at or prior to the Closing, except for
Taxes for which Buyer is liable pursuant to Section 3.5 or 6.8 hereof;
(c) Any Liabilities arising under the NPPOSA prior to, at or after the
Closing or any of the Seller's Agreements, Fuel Contracts, the Emergency
Equipment Easements, Transferable Permits or Non-material Contracts at or prior
to the Closing;
29
(d) Any Liabilities for any monetary fines or penalties imposed by a
Governmental Authority with respect to the Included Assets or the employment of
the Palisades Employees or Big Rock ISFSI Employees, in either case to the
extent attributable to acts or omissions of Seller prior to the Closing,
together with the reasonable out-of-pocket expenses of Buyer incurred in the
course of responding to any investigation relating thereto commenced by a
Governmental Authority;
(e) Subject to Section 3.5, any payment obligations of Seller for
goods delivered, and services rendered, at or prior to the Closing, including
rental or lease payments due and owing at or prior to the Closing pursuant to
any leases relating to Tangible Personal Property;
(f) Subject to Section 6.10, any Liabilities relating to any Benefit
Plan, any employee benefit plan as defined in Section 3(3) of ERISA, or any
other plan, program, arrangement or policy established or maintained in whole or
in part by Seller or NMC or by any trade or business (whether or not
incorporated) which is or ever has been under common control, or which is or
ever has been treated as a single employer, with Seller or NMC under Section
414(b), (c), (m), (o) or (t) of the Code ("ERISA Affiliate") or to which Seller,
NMC or any ERISA Affiliate contributes or contributed, including any
multiemployer plan, multiple employer plan or multiple employer welfare
arrangement contributed to by Seller, NMC or any ERISA Affiliate or to which
Seller, NMC or any ERISA Affiliate is or was obligated to contribute (the
"Plans"), including any such Liability (i) for the termination or discontinuance
of, or the Seller's, NMC's or an ERISA Affiliate's withdrawal from, any such
Plan, (ii) relating to benefits payable under any such Plan or the denial of
benefits alleged to be payable under any such Plan, (iii) relating to the PBGC
under Title IV of ERISA, (iv) relating to a multiemployer plan, multiple
employer plan or multiple employer welfare arrangement, (v) with respect to
noncompliance with the notice requirements of COBRA, (vi) with respect to any
noncompliance with ERISA or any other applicable Laws, and (vii) with respect to
any suit, proceeding or claim which is asserted against Seller, NMC or any of
their respective Affiliates, or against any Plan or any fiduciary or former
fiduciary of, any of the Plans;
(g) Any Liabilities relating to the failure to hire, the employment or
services or termination of employment or services of any individual, including
wages, compensation, benefits, affirmative action, personal injury (of any
kind), discrimination, harassment, retaliation, constructive termination,
wrongful discharge, unfair labor practices, or constructive termination by
Seller or NMC of any individual, or any similar or related claim or cause of
action attributable to any actions or inactions by such Person at or prior to
the Closing with respect to the Included Assets, the Palisades Employees, the
Big Rock ISFSI Employees, independent contractors, applicants, and any other
individuals who are determined by a court or by a Governmental Authority to have
been applicants or employees of Seller, NMC or any of their respective
Affiliates, provided that neither Seller nor NMC will have any Liability for
similar actions or inactions by Buyer or any successor thereto on or after the
Closing Date. Notwithstanding the foregoing, Buyer shall not assume any
Liabilities for any employees of Seller, NMC or their Affiliates who are
terminated or retire prior to the Closing and are not considered a Transferred
Employee hereunder;
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(h) All Spent Nuclear Fuel Fees, the Pre-1983 Fee and any other fees
associated with electricity generated at Palisades and the Big Rock Point Plant
Operating Facility and sold on or prior to the Closing Date;
(i) Any Liability arising out of or related to Releases from the
former sulfuric acid above-ground storage tanks described in the amendment dated
May 19, 2006 to the Phase I Environmental Site Assessment relating to the
Palisades Site;
(j) Any Liability arising out of or related to the presence or Release
of Hazardous Materials at the Big Rock ISFSI Site as a result of the Release of
Hazardous Materials at, on, in, under or migrating from the Big Rock Point Plant
Operating Facility site;
(k) Any Liability arising out of or related to the release, prior to
the Closing, of tritium, strontium 90 or cesium 137 at the Sites that requires
Buyer to undertake remediation at any Site or any Off-Site Location prior to the
commencement of Decommissioning of the applicable Site.
(l) Except as provided in Section 6.8(c), any Taxes incurred by
Seller's Qualified Decommissioning Fund for taxable periods, or portions
thereof, ending on or prior to the Closing Date (including any Tax incurred as a
result of the ownership or disposition of an interest in a common trust fund
subject to Code Section 584);
(m) Except as otherwise expressly provided herein, Liabilities of
Seller to the extent arising from the execution, delivery or performance of this
Agreement and the transactions contemplated hereby; and
(n) Any other Liabilities expressly allocated to or retained by Seller
in this Agreement;
2.5. Control of Litigation.
(a) The Parties agree and acknowledge that, following the Closing and
subject to the provisions of Article 8, Seller shall pay for and be entitled
exclusively to control, defend and settle any litigation, administrative or
regulatory proceeding, and any investigation or other activities arising out of
or related to any Excluded Assets or Excluded Liabilities and Buyer agrees to
reasonably cooperate, at Seller's expense, with Seller in connection therewith.
Subject to the foregoing, Buyer shall have the right, at its option and expense,
but not the obligation, to retain counsel to represent its interests in
connection with any such litigation, investigation, proceedings or activities.
(b) The Parties agree and acknowledge that, subject to the provisions
of Article 8, Buyer shall pay for and be entitled exclusively to control, defend
and settle any litigation, administrative or regulatory proceeding, and any
investigation or other activities for which Buyer has responsibility under this
Agreement, and Seller agrees to reasonably cooperate, at Buyer's expense, with
Buyer in connection therewith.
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ARTICLE 3
THE CLOSING
3.1. Closing.
(a) Upon the terms and subject to the satisfaction of the conditions
contained in Article 7 of this Agreement, the sale, assignment, conveyance,
transfer and delivery of the Included Assets to Buyer, the payment of the
Purchase Price to Seller, and the consummation of the other respective
obligations of the Parties contemplated by this Agreement shall take place at a
closing (the "Closing"), to be held at the offices of Consumers at One Energy
Plaza, Jackson, Michigan at 10:00 a.m. local time, or another mutually
acceptable time and location, on the date that is twenty (20) Business Days
following the date on which the last of the conditions precedent to Closing set
forth in Article 7 of this Agreement has been either satisfied or waived by the
Party for whose benefit such condition precedent exists (except with respect to
those conditions which by their terms are to be satisfied at or immediately
prior to Closing), but in any event not after the Termination Date, unless the
Parties mutually agree on another date. The date of Closing is hereinafter
called the "Closing Date." The Closing shall be effective for all purposes as of
00:00:01 Eastern Standard Time on the Closing Date.
(b) The Parties agree that, notwithstanding anything to contrary
contained herein, the Parties shall not be required to effect the Closing during
the period commencing on July 15, 2007 and ending upon the completion of the
next refueling outage for Palisades, which is currently scheduled to begin
during the third quarter of 2007. In the event that the Closing shall occur
after such refueling outage has been completed, the Purchase Price shall be
reset as described in Schedule 3.3(a)(5).
3.2. Payment of Purchase Price.
Upon the terms and subject to the satisfaction of the conditions
contained in this Agreement, in consideration of the aforesaid sale, assignment,
conveyance, transfer and delivery of the Included Assets, Buyer will pay or
cause to be paid to Seller at the Closing in consideration of the Included
Assets the sum of Three Hundred Eighty Million Dollars ($380,000,000) (the
"Purchase Price") plus or minus any adjustments to such Purchase Price pursuant
to the provisions of Section 3.3 below, by wire transfer of immediately
available funds denominated in U.S. dollars in accordance with written
instructions of Seller given to Buyer at least two (2) Business Days prior to
the Closing Date or by such other means as are agreed upon by Seller and Buyer.
3.3. Adjustments to the Purchase Price.
(a) Subject to Sections 3.3(b) and 3.3(c), as of the Closing the
Purchase Price shall be adjusted, on a dollar-for-dollar basis and without
duplication, to account for the items set forth in this Section 3.3(a):
(1) The Purchase Price shall be adjusted to account for the items
prorated as of the Closing pursuant to Section 3.5.
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(2) The Purchase Price shall be (A) increased if and to the
extent that the Book Value of the Nuclear Fuel owned by Seller as of the
Closing is greater than the applicable Nuclear Fuel Book Value Baseline
Amount, and (B) decreased if and to the extent that Book Value of the
Nuclear Fuel owned by Seller as of the Closing is less than the applicable
Nuclear Fuel Book Value Baseline Amount.
(3) The Purchase Price shall be (A) increased if and to the
extent that the Book Value of the Facility Inventories as of the Closing is
greater than Twenty Five Million Two Hundred Thousand Dollars
($25,200,000), and (B) decreased if and to the extent that the Book Value
of the Facility Inventories as of the Closing is less than Twenty Five
Million Two Hundred Thousand Dollars ($25,200,000).
(4) The Purchase Price shall be (i) decreased by the Capital
Expenditures Shortfall and (ii) increased by the amount of any and all
expenditures (including an allocation for corporate overhead, warehousing
and general and administrative expenses) for capital additions to or
replacements of property, plant and equipment and other expenditures or
repairs on property, plant and equipment relating to the Facilities or the
Sites that are capitalized by Seller in accordance with its normal
accounting policies ("Capital Expenditures") that are made in respect of
work performed after the date hereof and have been specifically requested
or approved by Buyer in writing. For purposes of this Section 3.3(a)(4),
any work described on the Capital Budget or set forth in Schedule 3.3(a)(5)
shall not be deemed to have been requested or approved by Buyer unless
otherwise set forth in writing and specifically requesting or authorizing
the same. Nothing in this paragraph should be construed to limit Seller's
rights and obligations to make all Capital Expenditures necessary to comply
with the NRC License, the NRC Commitments and other Permits.
(5) The Purchase Price shall be adjusted each day that the
Closing Date occurs after March 1, 2007 by the cumulative applicable dollar
amount for all such days as set forth in Schedule 3.3(a)(5).
(6) If the projected cost to dispose of the Low Level Waste at
the Palisades Facilities as of the Closing Date is greater than Five
Hundred Thousand Dollars ($500,000), the Purchase Price shall be adjusted
downward to the extent that the cost of such Low Level Waste disposal is
greater than Five Hundred Thousand Dollars ($500,000). Conversely, if the
projected cost to dispose of the Low Level Waste at the Palisades
Facilities as of the Closing Date is less than Five Hundred Thousand
Dollars ($500,000), the Purchase Price shall be adjusted upward to the
extent that the cost of such Low Level Waste disposal is less than Five
Hundred Thousand Dollars ($500,000). The calculation of the projected cost
to dispose of the Low Level Waste at the Palisades Facilities as of the
Closing Date shall be made in accordance with the methodology set forth on
Schedule 3.3(a)(5).
(7) The Purchase Price shall be adjusted as provided in Section
6.10(g).
(8) The Purchase Price shall be adjusted as provided in Section
6.10(l).
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(9) The Purchase Price shall be adjusted for the Big Rock Amount
as provided in Section 6.25.
(b) No less than ten (10) Business Days prior to the Closing Date,
Seller shall prepare in good faith and deliver to Buyer an estimated closing
statement (the "Estimated Closing Statement") that shall set forth Seller's best
estimate of all adjustments to the Purchase Price required by Section 3.3(a)
(the "Estimated Adjustments"). Seller shall cooperate with Buyer and provide
Buyer and its representatives access to all information used to calculate the
Estimated Adjustments. Within five (5) Business Days after the delivery of the
Estimated Closing Statement by Seller to Buyer, Buyer may object in good faith
to any Estimated Adjustment in writing. If Buyer objects to an Estimated
Adjustment, the Parties shall attempt to resolve their differences by
negotiation. If and to the extent the Parties are able to do so prior to the
Closing Date (or if Buyer does not object to any of the Estimated Adjustments),
the Purchase Price shall be adjusted (the "Closing Adjustment") for the Closing
by the amount of the Estimated Adjustments not in dispute. The Purchase Price,
as so adjusted at Closing by the undisputed Estimated Adjustments, is referred
to herein as the "Closing Payment." The Closing Payment shall be paid by Buyer
to Seller at the Closing. The disputed Estimated Adjustments shall be resolved
in accordance with the provisions of Section 3.3(c) and paid as part of any
Post-Closing Adjustment to the extent required by Section 3.3(c).
(c) Within sixty (60) Business Days after the Closing Date, Seller
shall prepare and deliver to Buyer a final closing statement (the "Post-Closing
Statement") that shall set forth all adjustments to the Purchase Price required
by Section 3.3(a) and any disputed Estimated Adjustments pursuant to Section
3.3(b) (the "Proposed Post-Closing Adjustment") and all work papers detailing
such adjustments. Within thirty (30) Business Days after the delivery of the
Post-Closing Statement by Seller to Buyer, Buyer may object to the Proposed
Post-Closing Adjustment in writing. Seller and Buyer agree to cooperate with one
another to provide one another with the information used to prepare the
Post-Closing Statement and information relating thereto. If Buyer objects to the
Proposed Post-Closing Adjustment, the Parties shall attempt to resolve such
dispute by negotiation. If the Parties are unable to resolve such dispute within
thirty (30) days after any objection by Buyer, the Parties shall appoint the
Independent Accounting Firm, which shall, at Seller's and Buyer's joint expense,
review the Proposed Post-Closing Adjustment and determine the appropriate
adjustment to the Purchase Price, if any, within thirty (30) days after such
appointment. The Parties agree to cooperate with the Independent Accounting Firm
and provide it with such information as it reasonably requests to enable it to
make such determination. The Independent Accounting Firm shall act as an expert
and not as an arbitrator and shall make findings only with respect to the
remaining disputes so submitted to it (and not by independent review). The
finding of such Independent Accounting Firm shall be binding on the Parties
hereto. Upon determination of the appropriate adjustment (the "Post-Closing
Adjustment") by agreement of the Parties or by binding determination of the
Independent Accounting Firm, the Party owing the difference shall deliver such
amount to the other Party (together with interest accrued thereon at the
Interest Rate from and including the Closing Date to but excluding the date of
payment) no later than two (2) Business Days after such determination, in
immediately available funds or in any other manner as reasonably requested by
the payee.
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3.4. Allocation of Purchase Price.
(a) Buyer and Seller shall use their reasonable good faith efforts to
jointly agree at least forty-five (45) days prior to the Closing Date to an
estimated allocation among the Included Assets of the sum of the Purchase Price
and the Assumed Liabilities and Obligations that is consistent with the
allocation methodology provided by Section 1060 of the Code and the regulations
promulgated thereunder and the private letter rulings issued by the IRS under
Code Section 468A relating to the transfer of Qualified Decommissioning Fund
assets (the "Estimated Allocation"). The Estimated Allocation, to the extent
agreed to, will be used for transfer and sales tax filings and for all other
Closing document purposes.
(b) Buyer and Seller shall use their reasonable good faith efforts to
jointly agree, within ninety (90) days after the Closing Date, to an allocation
among the Included Assets of the sum of the Purchase Price (including any
subsequent adjustments thereto) and the Assumed Liabilities and Obligations
(together with any other relevant items) that is consistent with the allocation
methodology provided by Section 1060 of the Code and the regulations promulgated
thereunder (the "Allocation").
(c) Except to the extent required to comply with a Final
Determination, Buyer and Seller (to the extent Seller is required to make any
such reports) shall report the transactions contemplated by this Agreement for
all Tax purposes in a manner consistent with the Allocation. Buyer and Seller
shall not take any position in any Tax Return, Tax proceeding or audit that is
inconsistent with the Allocation without the consent of the other Party. To the
extent such filings are required, Buyer and Seller agree to file Internal
Revenue Service Form 8594 (Asset Acquisition Statement under Section 1060), and
all federal, state, local and foreign Tax Returns, in accordance with the
Allocation. Subsequent to the preparation of the Estimated Allocation and the
Allocation as provided in Sections 3.4(a) and 3.4(b), Buyer and Seller agree to
provide the other with any information required to complete Form 8594 within ten
(10) days of the request for such information. Buyer and Seller shall notify and
provide the other with reasonable assistance in the event of an examination,
audit or other proceeding relating to Taxes regarding the allocation of the
Purchase Price pursuant to this Section 3.4. Notwithstanding the foregoing, in
the event Buyer and Seller cannot agree as to the Allocation, each Party shall
be entitled to take its own position in any Tax Return, Tax proceeding or audit,
provided that Seller and Buyer shall take all actions required to comply with a
Final Determination. Buyer and Seller shall treat the transaction contemplated
by this Agreement as the acquisition by Buyer of a trade or business for United
States federal income Tax purposes and agree that no portion of the
consideration shall be treated in whole or in part as the payment for services
or future services.
3.5. Prorations.
(a) Buyer and Seller agree that all of the items normally prorated,
including those listed below (but not including Income Taxes and Transfer
Taxes), relating to the business and operation of the Included Assets shall be
prorated as of the Closing, with Seller liable to the extent such items relate
to any time period ending at or prior to the Closing, and Buyer liable to the
extent such items relate to periods commencing after the Closing (measured in
the same units used to compute the item in question, otherwise measured by
calendar days or fraction thereof):
35
(1) Taxes, assessments and other charges, if any, relating to the
ownership, operation, maintenance, use or business of the Included Assets
(subject to Sections 3.5(b) and 3.5(c) below);
(2) Any prepaid expenses (including security deposits) relating
to the Included Assets;
(3) Rent, Taxes and all other items (including goods not included
in Facility Inventory) under any of Seller's Agreements or the Non-material
Contracts;
(4) Any permit, license, registration, compliance assurance fees
or other fees with respect to any Transferable Permit;
(5) Sewer rents and charges for water, telephone, electricity and
other utilities;
(6) Spent Nuclear Fuel Fees for the quarter in which the Closing
occurs, provided that Seller agrees to pay all Spent Nuclear Fuel Fees for
the quarter which ended prior to the quarter in which Closing occurs;
(7) Fees or charges (other than Taxes) imposed by any
Governmental Authority; and
(8) Insurance premiums with respect to the Nuclear Insurance
Policies with ANI transferred to Buyer pursuant to Section 2.1(l).
(b) Ad valorem real estate Taxes on the Real Property that first
become due and payable prior to the Closing will be paid in full by Seller and
ad valorem real estate Taxes on the Real Property that first become due and
payable after the Closing will be paid in full by Buyer without proration.
Seller shall fully pay and be responsible for all special assessments which have
become a lien on the Real Property prior to or as of the Closing. Buyer shall be
responsible for all special assessments which first become a lien on the Real
Property after the Closing.
(c) All personal property Taxes on the property included in the
Included Assets that, under applicable Law, is taxed as personal property that
first become due and payable prior to the Closing will be paid in full by Seller
and all personal property Taxes on the property included in the Included Assets
that, under applicable Law, is taxed as personal property, that first become due
and payable after the Closing will be paid in full by Buyer without proration.
(d) Notwithstanding any other provision of this Agreement, a Tax in
the form of interest or penalties shall be allocated (i) to Seller (whether such
Taxes accrue or are imposed or assessed on, before or after the Closing Date) to
the extent they result from a failure by the Seller to pay a Tax or failure by
the Seller to file a Tax Return, in each case, that was due on or before the
Closing Date and (ii) to Buyer (whether such Taxes accrue or are imposed or
assessed on, before or after the Closing Date) to the extent they result from a
failure by Buyer to pay a Tax or failure by Buyer to file a Tax Return, in each
case that was due after the Closing Date.
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(e) In connection with the prorations referred to in (a) above, in the
event that actual figures are not available at the Closing, the proration shall
be based upon the actual accrued through the Closing or paid for the most recent
year (or other appropriate period) for which actual amounts paid are available.
Such prorated amounts shall be re-prorated and paid to the appropriate Party
within sixty (60) days of the date that the previously unavailable actual
figures become available. Prorations measured by calendar days shall be based on
the number of days (and fractions thereof) in a year or other appropriate period
(i) before the Closing and (ii) after the Closing. Seller and Buyer agree to
promptly furnish each other with such documents and other records as may be
reasonably requested in order to confirm all adjustment and proration
calculations made pursuant to this Section 3.5.
(f) To the extent that the proration of a Tax under this Section 3.5
allocates such Tax to a period (or portion thereof) ending at or prior to the
Closing, such Tax shall constitute an Excluded Liability. To the extent that the
proration of a Tax under this Section 3.5 allocates such Tax to a period (or
portion thereof) ending after the Closing, such Tax shall constitute an Assumed
Liability and Obligation.
3.6. Deliveries by Seller.
At the Closing (or, in the case of those items contemplated by
paragraph (f) below, at the Facilities on or before the Closing Date), Seller
will deliver, or cause to be delivered, the following to Buyer:
(a) All Ancillary Agreements, duly executed by Seller, as applicable,
except for the Power Purchase Agreement which shall be executed prior thereto;
(b) Copies of Seller's Required Regulatory Approvals and any and all
consents, waivers or approvals set forth on Schedule 4.3(a) and obtained by
Seller with respect to the transfer of the Included Assets, or the consummation
of the transactions contemplated by this Agreement together with notice to, and
if required by the terms thereof, consents by other Persons that are parties to
(or have issued, in the case of the Transferable Permits) the Seller's
Agreements, the Fuel Contracts and, to the extent reasonably necessary to
operate the Facilities, the Transferable Permits;
(c) Copies, certified by the Secretary or any Assistant Secretary of
Seller, of corporate resolutions authorizing the execution and delivery of this
Agreement and the Ancillary Agreements and all of the other agreements and
instruments to be executed and delivered by Seller in connection herewith and
therewith, and the consummation of the transactions contemplated hereby and
thereby;
(d) A certificate of the Secretary or any Assistant Secretary of
Seller identifying the name and title and bearing the signatures of the officers
of Seller authorized to execute and deliver this Agreement and the Ancillary
Agreements and the other agreements and instruments contemplated hereby and
thereby;
(e) A certificate of good standing with respect to Seller, issued by
the Secretary of State of the State of Michigan;
37
(f) To the extent reasonably available, originals or otherwise true
and correct copies as certified by an officer of Seller of the Seller's
Agreements, Fuel Contracts, Non-material Contracts, Emergency Equipment
Easements, Transferred Employee Records and Transferable Permits and, if not
reasonably available, true and correct copies thereof;
(g) The assets of the Qualified Decommissioning Fund to be transferred
pursuant to Section 6.12, provided that such assets shall be delivered to the
Trustee of the Post-Closing Decommissioning Trust Agreement;
(h) All such other instruments of assignment, transfer or conveyance
as shall, in the reasonable opinion of Buyer and its counsel, be necessary or
desirable to transfer to Buyer the Included Assets, in accordance with this
Agreement and where necessary or desirable in recordable form;
(i) Such other agreements, consents, documents, instruments and
writings as are required to be delivered by Seller at or prior to the Closing
pursuant to this Agreement or the Ancillary Agreements or otherwise reasonably
required in connection herewith or therewith;
(j) Seller's FIRPTA Certificate;
(k) The WARN Certificate;
(l) The Palisades Title Commitment and the Big Rock Title Commitment,
down-dated/marked up to the Closing Date, each together with any owner's
affidavits or similar documents required thereby.
(m) Evidence of the release of the Included Assets from the lien of
the Mortgage Indenture; and
(n) The security required to be furnished by Seller pursuant to
Section 7.3 of the Power Purchase Agreement.
3.7. Deliveries by Buyer.
At the Closing, Buyer will deliver, or cause to be delivered, the
following to Seller:
(a) The Closing Payment, payable pursuant to Section 3.2, as adjusted
pursuant to Section 3.3;
(b) All Ancillary Agreements, duly executed by Buyer, as applicable,
except for the Power Purchase Agreement and Interconnection Agreement, which
shall be executed prior thereto;
(c) Copies of Buyer's Required Regulatory Approvals and any and all
consents, waivers or approvals set forth on Schedule 5.3(a) and obtained by
Buyer with respect to the transfer of the Included Assets, or the consummation
of the transactions contemplated by this Agreement;
38
(d) Copies, certified by the Secretary or any Assistant Secretary of
Buyer of resolutions authorizing the execution and delivery of this Agreement
and the Ancillary Agreements and all of the other agreements and instruments to
be executed and delivered by Buyer and Buyer's Parent in connection herewith and
therewith, and the consummation of the transactions contemplated hereby and
thereby;
(e) A certificate of the Secretary or any Assistant Secretary of Buyer
identifying the name and title and bearing the signatures of the officers of
Buyer and Buyer's Parent authorized to execute and deliver this Agreement and
the Ancillary Agreements and the other agreements contemplated hereby and
thereby;
(f) A certificate of good standing with respect to Buyer, issued by
the Secretary of State of the State of Delaware;
(g) A certificate of authority of Buyer (or its assignee of this
Agreement) to do business in Michigan, issued by the Secretary of State of the
State of Michigan;
(h) All such other instruments of assumption as shall, in the
reasonable opinion of Seller and its counsel, be necessary for Buyer to assume
the Assumed Liabilities and Obligations in accordance with this Agreement;
(i) A copy of the Post-Closing Decommissioning Trust Agreement;
(j) Such other agreements, documents, instruments and writings as are
required to be delivered by Buyer at or prior to the Closing pursuant to this
Agreement, or otherwise reasonably required in connection herewith;
(k) The security required to be furnished by Buyer pursuant to Section
7.2 of the Power Purchase Agreement.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Buyer as follows:
4.1. Organization.
Seller is a corporation duly organized, validly existing and in good
standing under the Laws of the State of Michigan and has all requisite corporate
power and authority to own, lease, and operate its properties and to carry on
its business as is now being conducted. Complete and correct copies of the
Articles of Incorporation and By-laws of Seller, each as amended to date, have
heretofore been made available to Buyer.
4.2. Authority Relative to this Agreement.
Seller has full corporate power and authority to execute and deliver
this Agreement and the Ancillary Agreements and to consummate the transactions
contemplated hereby and thereby. The execution and delivery of this Agreement
and the Ancillary
39
Agreements and the consummation of the transactions contemplated hereby and
thereby have been duly and validly authorized by all necessary corporate action
required on the part of Seller and no other corporate proceedings on the part of
Seller are necessary to authorize this Agreement or the Ancillary Agreements or
to consummate the transactions contemplated hereby and thereby. This Agreement
and the Ancillary Agreements to which it is a party have been duly and validly
executed and delivered by Seller, or, if applicable, will be duly and validly
executed and delivered by Seller at the Closing, and assuming that this
Agreement and the applicable Ancillary Agreements constitute valid and binding
agreements of Buyer, and subject to the receipt of Seller's Required Regulatory
Approvals and Buyer's Required Regulatory Approvals, this Agreement and the
Ancillary Agreements constitute legal, valid and binding agreements of Seller,
enforceable against Seller in accordance with their respective terms, subject to
applicable bankruptcy, reorganization, insolvency, moratorium, and other similar
Laws affecting creditors' rights generally and to general principles of equity
(whether considered in a proceeding at law or in equity).
4.3. Consents and Approvals; No Violation.
(a) Subject to the receipt of the third-party consents set forth in
Schedule 4.3(a), the Seller's Required Regulatory Approvals and the Buyer's
Required Regulatory Approvals, neither the execution and delivery of this
Agreement or the Ancillary Agreements by Seller nor the consummation of the
transactions contemplated hereby or thereby will (i) conflict with or result in
the breach or violation of any provision of the Articles of Incorporation or
By-laws of Seller; (ii) result in a default (or give rise to any right of
termination, cancellation or acceleration) under any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, license, agreement or other
instrument or obligation to which Seller is a party or by which Seller, or any
of the Included Assets, may be bound, except for such defaults (or rights of
termination, cancellation or acceleration) as to which requisite waivers or
consents have been obtained or which do not, individually or in the aggregate,
create a Material Adverse Effect; (iii) constitute violations of any Law
applicable to Seller, NMC, any of the Included Assets or any of the Palisades
Employees or the Big Rock ISFSI Employees, except for such violations as do not,
individually or in the aggregate, create a Material Adverse Effect; or (iv)
result in the creation, continuation or imposition of an Encumbrance on any of
the Included Assets other than a Permitted Encumbrance.
(b) Except as set forth in Schedule 4.3(b) (the filings and approvals
referred to in Schedule 4.3(b) are collectively referred to as the "Seller's
Required Regulatory Approvals"), no declaration, filing or registration with, or
notice to, or permit of, or authorization, consent or approval of any
Governmental Authority is necessary for the execution and delivery of this
Agreement or any Ancillary Agreement or the consummation by Seller of the
transactions contemplated hereby or thereby.
4.4. Reports.
Since January 1, 2003, each of Seller and its Affiliates and, to
Seller's Knowledge, NMC, has filed or caused to be filed with the SEC, the
applicable state or local utility commissions or regulatory bodies, the NRC, the
Department of Energy, the FERC, the Federal Communications Commission and the
Federal Aviation Administration, as the case may
40
be, all material forms, statements, reports and documents (including all
exhibits, amendments and supplements thereto) required to be filed by it with
respect to the Included Assets or the ownership or operation thereof under each
of the Securities Act, the Exchange Act, the applicable state public utility
laws, the Federal Power Act, the Public Utility Holding Company Act of 1935, the
Public Utility Holding Company Act of 2005, the Atomic Energy Act, the Energy
Reorganization Act, the Price Anderson Act, the Communications Act of 1934 and
the Federal Aviation Act and the respective rules and regulations under each of
the foregoing. All such filings complied in all material respects with all
applicable requirements of the appropriate act and the rules and regulations
thereunder in effect on the date each such report was filed.
4.5. Title and Related Matters.
(a) Seller has marketable title, insurable by a nationally recognized
title insurance company, to all of the Real Property, free and clear of all
Encumbrances other than the Permitted Encumbrances.
(b) Seller has good and valid title to the Included Assets not
constituting Real Property free and clear of all Encumbrances, except Permitted
Encumbrances.
(c) All improvements constituting part of the Real Property are in
compliance in all material respects with all applicable Laws and Permits.
(d) Neither the whole nor any part of the Real Property is subject to
any pending suit for condemnation or other taking by any Governmental Authority,
and to Seller's Knowledge, no such condemnation or other taking has been
threatened.
4.6. Insurance.
Except as set forth in Schedule 4.6, all policies of property damage,
fire, liability, Nuclear Insurance Policies, workers' compensation and forms of
insurance relating to the Included Assets are in full force and effect, all
premiums with respect thereto covering all periods up to and including the date
as of which this representation is being made have been paid (other than
retroactive premiums which may be payable with respect to NEIL policies), and no
written notice of cancellation, non-renewal or termination has been received
with respect to any such policy which was not replaced on substantially similar
terms prior to the date of such cancellation. Except as described in Schedule
4.6, as of the date of this Agreement, to the Knowledge of Seller, no insurance
with respect to the Included Assets has been refused nor has its coverage been
limited by any insurance carrier to which it has applied for any such insurance
or with which it has carried insurance during the past three (3) years, and all
required notices have been sent to insurers to preserve all material claims
under the aforementioned insurance policies.
4.7. Environmental Matters.
With respect to the Included Assets and the ownership or operation
thereof, except as disclosed in Schedule 4.7 and Schedule 4.12:
41
(a) Seller alone or together with NMC has obtained and holds all
Environmental Permits used in or necessary for the ownership and the current use
of the Included Assets, all of which Environmental Permits are in full force and
effect, and Seller and NMC are and have been in compliance in all material
respects with all such Environmental Permits, and Seller has no Knowledge of any
conditions, or circumstances that represent any material impediment to the
prompt renewal or extension of any such Environmental Permits with an associated
cost not in excess of standard renewal or extension fees. Seller has no planned
changes to the Included Assets that requires modification of any Environmental
Permit which has not yet been obtained. Schedule 4.13(b) sets forth all material
Environmental Permits applicable to the Included Assets, as well as the status
of any pending applications for renewal, modification or extension of any such
Environmental Permits.
(b) The Included Assets are presently and at all times in the last two
(2) years have been in compliance in all material respects with all
Environmental Laws. In connection with the ownership or operation of the
Included Assets, none of Seller, its Affiliates, nor, to Seller's Knowledge,
NMC, has received within the past two (2) years any written notice from any
Governmental Authority that it is not or has not been in material compliance
with all Environmental Laws and all Environmental Permits. There are no facts,
circumstances or conditions that are reasonably likely to be expected to
materially restrict, encumber or result in the imposition of any material lien,
restriction or limitation, or to result in the imposition of material special
conditions, under any Environmental Law with respect to the ownership,
occupancy, or use of the Included Assets.
(c) There are no material Environmental Claims pending or, to Seller's
Knowledge, threatened with respect to the Included Assets and to Seller's
Knowledge there are no facts or circumstances that are reasonably likely to form
the basis for any material Environmental Claim with respect to the Included
Assets.
(d) In connection with the operation of the Included Assets by or on
behalf of Seller, to Seller's Knowledge, no Releases of Hazardous Materials have
occurred, and no Hazardous Materials are present on or migrating from the Sites,
that are reasonably likely to give rise to a material Environmental Claim or
require any material Remediation, it being understood that Hazardous Materials
properly used, stored or maintained at the Sites in compliance with applicable
Environmental Law shall not be considered to present a reasonable likelihood of
a material Environmental Claim or of a material Remediation requirement.
(e) Neither the Sites nor any portion of the Sites is an Environmental
Cleanup Site, and, to Seller's Knowledge, neither Seller nor NMC has transported
or arranged for treatment, storage, handling, disposal or transportation of any
Hazardous Materials from the Sites to any location which is an Environmental
Cleanup Site.
(f) Except for tanks and equipment that are in conformance with all
applicable Environmental Law, there are no above ground or underground storage
tanks, active or abandoned, at the Sites nor, to Seller's Knowledge any
polychlorinated biphenyl-containing equipment located at the Sites.
42
(g) In the three (3) years prior to the date hereof (i) none of Seller
or its Affiliates, nor, to Seller's Knowledge, NMC, has previously sought or
obtained, nor has there been or is there currently, to Seller's Knowledge,
environmental liability insurance coverage for the Included Assets, and (ii)
there have been no claims by Seller or NMC against primary general liability or
excess liability insurance policies for any Loss resulting from, relating to or
arising from Environmental Claims with respect to the Included Assets.
The representations and warranties made by Seller in this Section 4.7
are the exclusive representations and warranties made to Buyer relating to
environmental matters.
4.8. Labor Matters.
(a) Schedule 4.8 sets forth all collective bargaining agreements and
all written and to Seller's Knowledge oral employment agreements, including
without limitation severance and change-in-control agreements, that relate to
the Palisades Employees and Big Rock ISFSI Employees currently in effect.
Complete and correct copies of all collective bargaining agreements and other
written employment agreements in respect of the Palisades Employees and Big Rock
ISFSI Employees, including all amendments thereto, have been made available to
Buyer. To the Knowledge of Seller, each Palisades Employee and Big Rock ISFSI
Employee and each other individual that provides services at the Facilities or
otherwise in support of the Included Assets is performing, and is qualified,
licensed, certified or trained, in accordance with applicable requirements or
standards of Governmental Authorities to perform the duties and responsibilities
of their current job assignment, and each has the appropriate nuclear power
plant access authorizations, where required.
(b) With respect to the Palisades Employees and the Big Rock ISFSI
Employees, (i) each employer of such employees is in material compliance with
all applicable Laws respecting employment and employment practices, terms and
conditions of employment and wages and hours, including all recordkeeping
requirements thereunder; (ii) there is no material suit, action, investigation,
charge, claim or proceeding pending, or to Seller's Knowledge, threatened
(whether internal to Seller, its Affiliates or NMC or before any Governmental
Authority), or any order binding upon or applicable to Seller, its Affiliates or
NMC, in any case relating to employment, employment and hiring practices, terms
and conditions of employment, wages and hours, employment discrimination and
equal employment opportunity, employee benefits, occupational safety or health,
collective bargaining, immigration, workers' compensation, the payment of Social
Security Taxes and other Taxes or plant closings; (iii) there has been no notice
of any unfair labor practice charge or complaint pending, or, to Seller's
Knowledge, threatened, before the National Labor Relations Board; (iv) there is
no strike, slowdown or work stoppage actually pending or, to Seller's Knowledge,
threatened; (v) no representation petition has been filed with the National
Labor Relations Board, and to Seller's Knowledge, no union organizing campaign
is underway; and (vi) no arbitration proceeding arising out of or under the
Collective Bargaining Agreement is pending, or to Seller's Knowledge, threatened
with respect to any material grievance thereunder.
43
4.9. ERISA; Benefit Plans.
(a) Schedule 4.9(a) lists each employee benefit plan, including each
employee benefit plan as defined in Section 3(3) of ERISA, each multiemployer
plan as defined in Section 3(37) of ERISA, each multiple employer plan within
the meaning of Code Section 413(c), each multiple employer welfare arrangement
as defined in Section 3(40) of ERISA, and each other plan, contract, agreement,
arrangement or policy, whether written or oral, qualified or non-qualified,
providing for (i) compensation, severance benefits, bonuses, profit-sharing or
other forms of incentive compensation; (ii) vacation, holiday, sickness or other
time-off; (iii) health, medical, dental, disability, life, accidental death and
dismemberment, employee assistance, educational assistance, relocation or fringe
benefits or perquisites, including post-employment benefits; and (iv) deferred
compensation, defined benefit or defined contribution, retirement or pension
benefits, or equity grants that covers any Palisades Employee, or that is
maintained, administered or with respect to which contributions are made by any
of NMC, Seller or ERISA Affiliates in respect of Palisades Employees or their
beneficiaries ("Benefit Plans"). True, correct, and complete copies of (i) all
such Benefit Plans, including all amendments thereto and other information
regarding benefit changes that have been previously communicated, (ii) all
related trust agreements, insurance contracts and funding arrangements that
implement each such Benefit Plan, (iii) all related summary plan descriptions
and summaries of material modifications of such Benefit Plans, (iv) all
determination letters received from the IRS pertaining to any such Benefit Plan,
(v) all annual reports (IRS Forms 5500) for the three (3) most recent plan years
for each such Benefit Plan, (vi) all compliance testing data and results for the
three (3) most recent plan years for each such Benefit Plan and (vii) all
communications with any Governmental Authority with respect to each Benefit Plan
have been made available to Buyer. Except as set forth on Schedule 4.9(a), no
such information with respect to the Big Rock ISFSI Employee(s) has been
provided.
(b) Each Benefit Plan and related trust which is intended to be
qualified within the meaning of Code Section 401(a) or tax-exempt under Code
Section 501(c)(9) is so qualified or exempt from taxation and has received a
favorable determination letter as to its qualification or tax-exempt status
under all applicable Laws (or if no favorable determination letter has yet been
issued, a request for such determination letter with respect to such Benefit
Plan was timely submitted) and has never lost its qualified or tax-exempt status
and, to Seller's Knowledge, there are no facts or circumstances that would
adversely affect IRS qualification or tax-exempt status. The most recent IRS
determination letters and any outstanding request for a determination letter
have been furnished by Seller to Buyer.
(c) With respect to each Benefit Plan: (i) such Benefit Plan (and each
related trust, insurance contract or fund) has been maintained, funded and
administered in accordance with the terms of such Benefit Plan and the terms of
the Collective Bargaining Agreement, if applicable, and complies in all material
respects with all applicable Laws, including ERISA, COBRA, HIPAA, USERRA and the
Code, the Securities Act and the Exchange Act; (ii) all required reports and
descriptions (including annual reports (IRS Form 5500), summary annual reports,
summary plan descriptions and summaries of material modifications) have been
filed on a timely basis and/or distributed in accordance with the applicable
requirements of ERISA and the Code; (iii) no such Benefit Plan that is an
Employee Pension Benefit Plan has been completely or partially terminated, and
no proceeding by the PBGC to terminate any such
44
Employee Pension Benefit Plan has been instituted or to Seller's Knowledge
threatened; (iv) to Seller's Knowledge no Fiduciary has incurred any Liability
for breach of fiduciary duty or any other failure to act or comply in connection
with the administration or investment of the assets of such Benefit Plan, (v)
subject to the Collective Bargaining Agreement, such Benefit Plan may be
amended, terminated, or otherwise modified by the sponsoring employer (including
elimination of future accruals under any such Benefit Plan), and no
communication concerning such Benefit Plan or provision in any document
governing such Benefit Plan (whether express or implied or written has failed to
reserve effectively the right of the sponsoring employer (including, after any
assumption of such Benefit Plan, Buyer) to terminate, or make any amendment or
modification to such Benefit Plan in whole or in part; (vi) subject to the
Collective Bargaining Agreement or as otherwise permitted by Section 6.1(a)(10),
neither NMC nor Seller has made any commitment to establish any new Benefit
Plan, to modify any Benefit Plan (except as required under applicable Laws), nor
has any intention to do so been communicated in writing to any Palisades
Employees or Big Rock ISFSI Employees; (vii) no actions, suits, proceedings,
hearings, investigations or claims with respect to the administration or the
investment of the assets of such Benefit Plan (other than routine claims for
benefits in the ordinary course) are pending or threatened, and Seller has no
Knowledge of any basis for any such action, suit, proceeding, hearing,
investigation or claim; (viii) no administrative investigation, audit or other
administrative proceeding by the Department of Labor, the PBGC, the IRS or other
Governmental Authority is pending, in progress or threatened; and (ix) as of the
date hereof, none of Seller, NMC or any ERISA Affiliate has an application
pending to the IRS under the Employee Plans Compliance Resolution System or has
had such an application pursuant to the Employee Plans Compliance Resolution
System or its predecessor denied, and if NMC or Seller has previously made such
application and a compliance statement has been issued, Seller, NMC or such
ERISA Affiliate, as applicable, has signed such statement and made the
applicable correction or will make the applicable correction within the
requisite time period.
(d) All contributions, premiums or other payments (including all
employer contributions and employee salary reduction and other contributions)
that are due have been made within the time periods prescribed by ERISA, the
Code or the applicable plan document to each Employee Pension Benefit Plan. All
contributions for any period ending at or before the Closing which are not yet
due have been made to each Employee Pension Benefit Plan or have been properly
accrued in accordance with the past custom and practice of Seller.
(e) Neither NMC, Seller nor any ERISA Affiliate has incurred any
material Liability, nor, to Seller's Knowledge, are there any facts or
circumstances that, would reasonably be expected to subject Seller, NMC or any
ERISA Affiliate to any Liability (i) to the PBGC in connection with any Benefit
Plan or otherwise under Title IV of ERISA, (ii) under the Code with respect to
any such Benefit Plan, or (iii) under COBRA, HIPAA, USERRA or the Code with
respect to any such Benefit Plan. Except as set forth in Schedule 4.9(e), no
Benefit Plan is or has been the subject of a Reportable Event, and no non-exempt
"prohibited transaction" (as described in Section 406 of ERISA and Section 4975
of the Code) has occurred with respect to any Benefit Plan. None of Seller, NMC
or their ERISA Affiliates contributes to, has any obligation to contribute to,
or has any Liability (including any withdrawal liability under Section 4201 et.
seq. of ERISA) under or with respect to any "multiemployer plan" within the
meaning of Section 3(37) of ERISA or with respect to any multiple employer
welfare arrangement within the meaning of Section 3(40) of ERISA.
45
(f) To the Knowledge of Seller, neither NMC nor Seller nor any ERISA
Affiliate or successor corporation, within the meaning of Section 4069(b) of
ERISA, has engaged in any transaction that may be disregarded under Section 4069
or Section 4212(c) of ERISA.
4.10. Sufficiency of Assets.
The Included Assets, in the aggregate, constitute all of the assets,
tangible and intangible, of any nature whatsoever (including, without
limitation, all of the contracts, agreements, licenses, leases, commitments and
other legally binding arrangements, whether for services, goods or otherwise),
and the Palisades Employees and the Big Rock ISFSI Employees constitute all of
the personnel, reasonably necessary for the ownership, operation and maintenance
of Palisades and the Big Rock ISFSI in the manner presently operated and
maintained or used in the operation and maintenance thereof during the twelve
(12) months prior to the Effective Date and the Closing Date. Palisades is
currently operable at a level sufficient to meet the accredited capacity
obligations in the Power Purchase Agreement and Seller has no Knowledge of any
condition that would prevent the operation of Palisades at this level consistent
with past performance.
4.11. Certain Contracts and Arrangements.
(a) Except for Seller's interests in and rights under (i) those
purchase orders, contracts, agreements, licenses and leases relating to the
ownership, operation and maintenance of the Included Assets, which are listed in
Schedule 4.9(a) and Schedule 4.11(a)(i), (ii) those contracts, agreements,
commitments and understandings relating to the procurement or fabrication of
Nuclear Fuel, a list of which is included on Schedule 4.11(a)(ii) ("Fuel
Contracts"), (iii) contracts, agreements, personal property leases, licenses,
commitments, understandings or instruments which will expire or terminate, or in
which the obligations of Seller will be fully performed, prior to the Closing
Date, (iv) Non-material Contracts, (v) the Ancillary Agreements and (vi) the
Excluded Contracts, Seller is not, as of the date of this Agreement, a party to
any written contract, agreement, personal property lease, commitment,
understanding or instrument which relates to the ownership or operation of the
Included Assets or provides for the sale of capacity, energy or ancillary
services from Palisades.
(b) Except as set forth on Schedule 4.11(b), there is not, under any
Seller's Agreement, Fuel Contract or Non-material Contract, any breach on the
part of Seller, or to the Knowledge of Seller, on the part of any of the parties
thereto, except such material breaches as to which requisite waivers or consents
have been obtained or which do not, individually or in the aggregate, create a
Material Adverse Effect.
(c) Each Seller's Agreement, Fuel Contract and Non-material Contract
(i) is legal, valid and enforceable as to Seller in accordance with its terms
and is in full force and effect, and (ii) except as disclosed in Schedule
4.3(a), may be transferred or assigned to Buyer at the Closing without consent
or approval of the other parties thereto and
46
(d) True and complete copies of each Seller's Agreement and Fuel
Contract, including any amendments, supplements and modifications thereto, have
been provided or made available to Buyer.
4.12. Legal Proceedings, etc.
Except as described in Schedule 4.12, there are no claims, actions or
proceedings pending or, to the Knowledge of Seller, threatened against Seller or
NMC before any court, arbitrator or Governmental Authority (i) with respect to
the Included Assets, the Palisades Employees or the Big Rock ISFSI Employees, or
(ii) which prohibit or restrain the performance of this Agreement or any of the
Ancillary Agreements. None of Seller or its Affiliates, nor, to Seller's
Knowledge, NMC, is subject to any outstanding Governmental Order specifically
relating to the Included Assets, the Palisades Employees or the Big Rock ISFSI
Employees.
4.13. Permits.
(a) Seller (together with NMC) has all permits, licenses,
registrations, certificates, franchises and other governmental authorizations,
consents and approvals, other than with respect to permits under Environmental
Laws referred to in Section 4.7 hereof or licenses issued by the NRC referred to
in Section 4.14 hereof (collectively, "Permits"), used in, or necessary for the
ownership and operation of, the Included Assets as presently conducted or as
required by Law. All Permits are in full force and effect, and neither Seller
nor NMC has received any written notification which remains unresolved that it
is in violation of any of such Permits, or any Law or Governmental Order
applicable to the Included Assets except for notifications of violations that
would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect. Seller has no Knowledge of any conditions,
circumstances or issues that represent any material impediment to prompt
issuance, renewal, continuation or extension of the Permits without substantial
increased cost or that represent any material impediment to the current use of
Palisades, the Included Assets or the Sites under its existing emergency plan.
Palisades and the Big Rock ISFSI are in compliance with all Permits, Laws and
Governmental Orders applicable to the Included Assets except for violations
which, individually or in the aggregate, do not create a Material Adverse
Effect.
(b) Schedule 4.13(b) sets forth all material Permits, including all
material Environmental Permits and Transferable Permits.
4.14. NRC Licenses.
(a) Seller (together with NMC) has all licenses, permits, and other
material consents and approvals applicable to the Included Assets that are
issued by the NRC and are necessary to the ownership and operation of the
Included Assets as presently operated, pursuant to the requirements of all
Nuclear Laws, and all NRC Licenses are in full force and effect. Neither Seller
nor, to Seller's Knowledge, NMC has received any written notification which
remains unresolved that it is in material violation of any of such NRC License,
or any order, rule, regulation, or decision of the NRC with respect to the
Included Assets. Each of Seller and its Affiliates, and to Seller's Knowledge,
NMC is in material compliance with all Nuclear Laws and
47
all orders, rules, regulations, or decisions of NRC applicable to it with
respect to the Included Assets.
(b) Schedule 4.14(b) sets forth all NRC Licenses issued by the NRC
applicable to the Included Assets and currently in effect.
(c) The Included Assets conform in all material respects to the
technical specifications included in the NRC Licenses in accordance with the
requirements of 10 C.F.R. Section 50.36 and the final safety analysis reports
(as updated) that are required under 10 C.F.R. Section 50.71(e).
4.15. Regulation as a Utility.
Seller is a subsidiary of a "public utility holding company" as
defined in the Public Utility Holding Company Act of 2005, a public utility
within the meaning of the Federal Power Act and a public utility within the
meaning of MCL 460.1 et seq. Except with respect to local tax and zoning laws,
Seller is not, as a result of its ownership or operation of the Included Assets,
subject to regulation as a public utility or public service company (or similar
designation) by any state of the United States (other than Michigan), any
foreign country or any municipality or any political subdivision of the
foregoing.
4.16. Tax Matters.
Except as set forth on Schedule 4.16 and except with respect to the
portion of the Included Assets that are part of the Qualified Decommissioning
Fund, with respect to the Included Assets, (i) all material Tax Returns of
Seller required to be filed for taxable periods ended prior to the Closing Date
regarding the ownership or operation of the Included Assets have been filed, and
(ii) all material Taxes shown to be due on such Tax Returns have been paid in
full, except where such Taxes are being contested in good faith through
appropriate proceedings. No written notice of deficiency or assessment has been
received from any taxing authority with respect to any material amount of
Liabilities for Taxes of Seller, in respect of the Included Assets or, to the
Knowledge of Seller, with respect to the Palisades Employees or the Big Rock
ISFSI Employees, as applicable, that has not been fully paid or finally settled,
except for matters that are being contested in good faith through appropriate
proceedings. There are no Encumbrances for Taxes upon any of the Included
Assets, except for Encumbrances for Taxes not yet due and payable and
Encumbrances for Taxes that are listed on Schedule 4.16, which are being
contested in good faith through appropriate proceedings.
4.17. Qualified Decommissioning Fund.
(a) Except as described on Schedule 4.17, with respect to all periods
prior to the Closing: (i) Seller's Qualified Decommissioning Fund has been a
trust, validly existing under the Laws of the Commonwealth of Massachusetts or
the State of Michigan, as applicable, with all requisite authority to conduct
its affairs as it now does; (ii) Seller's Qualified Decommissioning Fund
satisfied the requirements necessary for such fund to be treated as "Nuclear
Decommissioning Reserve Fund" and a "Qualified Nuclear Decommissioning Fund"
within the meaning of Treas. Reg. Section 1.468A-1(b)(3); (iii) Seller's
Qualified Decommissioning Fund has been in compliance with all applicable Laws
of the NRC, FERC, the IRS, MPSC and
48
any other Governmental Authority; (iv) Seller's Qualified Decommissioning Fund
has not engaged in any acts of "self-dealing" as defined in Treas. Reg. Section
1.468A-5(b)(2); (v) no "excess contribution," as defined in Treas. Reg. Section
1.468A-5(c)(2)(ii), has been made to Seller's Qualified Decommissioning Fund
which has not been withdrawn within the period provided under Treas. Reg.
Section 1.468A-5(c)(2)(i); and (vi) Seller has timely made valid elections to
make annual contributions to the Qualified Decommissioning Fund and Seller has
made available copies of such elections requested by the Buyer for the Tax years
ended December 31, 2000 through 2004.
(b) Seller has heretofore delivered to Buyer a copy of Seller's
Decommissioning Trust Agreement as in effect on the Effective Date.
(c) Subject only to Seller's Required Regulatory Approvals, Seller and
the Trustee have, or as of Closing will have, all requisite authority to cause
the assets of the Qualified Decommissioning Fund to be transferred on behalf of
Buyer to the Trustee of the Post-Closing Decommissioning Trust Agreement.
(d) With respect to all periods prior to the Closing, (i) Seller
and/or the Trustee of Seller's Qualified Decommissioning Fund has/have filed or
caused to be filed with the NRC, FERC, MPSC and any other Governmental Authority
all material forms, statements, reports, documents (including all exhibits,
amendments and supplements thereto) required to be filed by such entities and
(ii) there are no interim rate orders that may be retroactively adjusted or
retroactive adjustments to interim rate orders that may affect amounts that may
be contributed to the Qualified Decommissioning Fund. Seller has delivered to
Buyer a copy of the schedule of ruling amounts most recently issued by the IRS
for the Seller's Qualified Decommissioning Fund and a complete copy of the
currently pending request for revised ruling amounts, together with all
exhibits, amendments and supplements thereto. Any amounts contributed to
Seller's Qualified Decommissioning Fund while such ruling request is pending
before the IRS and which are finally determined to exceed the applicable amounts
provided in the schedule of ruling amounts issued by the IRS will be withdrawn
from Seller's Qualified Decommissioning Fund within the period provided in
Treasury Reg. 1.468A-5(c)(2)(i).
(e) Seller has made available to Buyer a statement of assets and
liabilities verified by the Trustee for the Seller's Qualified Decommissioning
Fund as of December 31, 2005 and will make such an unaudited statement as of the
last Business Day before Closing available prior to Closing, and they present
fairly in all material respects as of such dates the financial position of the
Qualified Decommissioning Fund.
(f) Seller's Qualified Decommissioning Fund has filed or as of the
Closing Date will have filed all material Tax Returns required to be filed prior
to the Closing Date with respect to all taxable periods ending on or prior to
the Closing Date, including returns for estimated Income Taxes; such Tax Returns
are true, correct and complete in all material respects, and all Taxes shown to
be due on such Tax Returns have been paid in full. Except as shown in Schedule
4.17, no notice of deficiency or assessment has been received from any taxing
authority with respect to any Liability for Taxes of Seller's Qualified
Decommissioning Fund which have not been fully paid or finally settled, and any
such deficiency shown in such Schedule 4.17 is being contested in good faith
through appropriate proceedings. Except as set forth in Schedule 4.17, there are
no outstanding agreements or waivers extending the applicable statutory
49
periods of limitations for any Taxes associated with Seller's Qualified
Decommissioning Fund for any period.
4.18. Intellectual Property.
Except as set forth on Schedule 4.18, Seller or NMC has ownership of
or a fully paid-up, valid license to use all of the Intellectual Property
reasonably necessary for the operation of the Facilities. Neither Seller nor NMC
has received written notice of any claims or demands of any other Person
pertaining to any of the Intellectual Property and no proceedings have been
instituted, or are pending or, to Seller's Knowledge, threatened, which
challenge the rights of Seller in respect thereof. To the Knowledge of Seller,
none of the Intellectual Property materially infringes upon any intellectual
property of any other Person and neither Seller nor NMC is making unauthorized
use of any confidential information or trade secrets of any Person, including
any former employer of any past or present employee of Seller or NMC in
connection with the operation of the Included Assets.
4.19. Zoning Classification.
The Palisades Site is zoned as set forth in Schedule 4.19. Palisades,
as currently operated, is not a nonconforming use (legal or otherwise). The Big
Rock ISFSI, as currently operated, is a legal nonconforming use. Except as set
forth on Schedule 4.19, Seller has not requested, applied for, or given its
consent to, and Seller has no Knowledge of, any pending change in the zoning of
the Real Property.
4.20. Emergency Warning Sirens.
All emergency warning sirens located at or within public property or
public right of way areas are located and operating pursuant to duly issued and
currently effective and valid resolutions or other authorizations from the
applicable Governmental Authority(ies), and such resolutions or other
authorizations are assignable to Buyer.
4.21. Disclaimer.
EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS
yARTICLE 4, THE INCLUDED ASSETS ARE BEING SOLD AND TRANSFERRED "AS IS, WHERE
IS," AND ACCORDINGLY SELLER IS NOT MAKING ANY OTHER REPRESENTATIONS OR
WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, CONCERNING THE
INCLUDED ASSETS, INCLUDING, IN PARTICULAR, ANY WARRANTY OF MERCHANTABILITY,
USAGE, SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR AS TO THE WORKMANSHIP
THEREOF OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT, OR
COMPLIANCE WITH ENVIRONMENTAL REQUIREMENTS, OR AS TO THE CONDITION OF THE
INCLUDED ASSETS, OR ANY PART THEREOF, ALL OF WHICH ARE HEREBY EXPRESSLY EXCLUDED
AND DISCLAIMED. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS yARTICLE 4,
SELLER FURTHER SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY REGARDING
THE ABSENCE OF HAZARDOUS MATERIALS OR LIABILITY ARISING UNDER ENVIRONMENTAL
LAWS. WITHOUT LIMITING THE
50
GENERALITY OF THE FOREGOING, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT,
SELLER EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY OF ANY KIND REGARDING
THE CONDITION OF THE INCLUDED ASSETS OR THE SUITABILITY OF THE FACILITIES FOR
OPERATION AND NO OTHER MATERIAL OR INFORMATION PROVIDED BY OR COMMUNICATION MADE
BY SELLER OR ANY OFFICER, EMPLOYEE, CONSULTANT OR AGENT THEREOF, OR ANY BROKER
OR INVESTMENT BANKER WILL CAUSE OR CREATE ANY WARRANTY, EXPRESS OR IMPLIED, AS
TO THE TITLE, CONDITION, VALUE OR QUALITY OF THE INCLUDED ASSETS OR ANY PART
THEREOF.
THE PROVISIONS OF THIS SECTION HAVE BEEN NEGOTIATED BY THE PARTIES
HERETO AFTER DUE CONSIDERATION AND ARE INTENDED TO BE A COMPLETE EXCLUSION AND
NEGATION OF ANY REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED OR
STATUTORY, OTHER THAN THOSE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH
IN ARTICLES 4 AND 5 OF THIS AGREEMENT.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
5.1. Organization; Qualification.
Buyer is a limited liability company duly formed, validly existing and
in good standing under the laws of the State of Delaware. Buyer has all
requisite limited liability company power and authority to own, lease and
operate its properties and to carry on its business as is now being conducted.
Buyer has heretofore delivered to Seller complete and correct copies of its
Certificate of Formation and limited liability company operating agreement as
currently in effect. Buyer is, or on the Closing Date will be, qualified to
conduct business in the State of Michigan.
5.2. Authority Relative to this Agreement.
Buyer has full limited liability company power and authority to
execute and deliver this Agreement and the Ancillary Agreements to which it is a
party and to consummate the transactions contemplated hereby or thereby. The
execution and delivery of this Agreement and the Ancillary Agreements and the
consummation of the transactions contemplated hereby or thereby, have been duly
and validly authorized by all necessary limited liability company action
required on the part of Buyer and no other limited liability company proceedings
on the part of Buyer are necessary to authorize this Agreement and the Ancillary
Agreements to which it is a party or to consummate the transactions contemplated
hereby or thereby. This Agreement and the Ancillary Agreements to which it is a
party have been duly and validly executed and delivered by Buyer, or, if
applicable, will be duly and validly executed and delivered by Buyer at or prior
to the Closing and assuming that this Agreement and each such Ancillary
Agreement constitute or will constitute at Closing valid and binding agreements
of Seller, and subject to the receipt of Buyer's Required Regulatory Approvals
and Seller's Required Regulatory Approvals,
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constitute valid and binding agreements of Buyer, enforceable against Buyer in
accordance with their respective terms, subject to applicable bankruptcy,
reorganization, insolvency, moratorium, and other similar Laws affecting
creditors' rights generally and to general principles of equity (whether
considered in a proceeding at law or in equity).
5.3. Consents and Approvals; No Violation.
(a) Subject to the receipt of the third-party consents set forth in
Schedule 5.3(a), the Seller's Required Regulatory Approvals and the Buyer's
Required Regulatory Approvals, neither the execution and delivery of this
Agreement or any Ancillary Agreements by Buyer nor the consummation of the
transactions contemplated hereby or thereby will (i) conflict with or result in
any breach of any provision of the Certificate of Formation or limited liability
company operating agreement (or other similar governing documents) of Buyer,
(ii) result in a default (or give rise to any right of termination, cancellation
or acceleration) under any of the terms, conditions or provisions of any note,
bond, mortgage, indenture, agreement, lease or other instrument or obligation to
which Buyer is a party or by which any of its assets may be bound, except for
such defaults (or rights of termination, cancellation or acceleration) as to
which requisite waivers or consents have been obtained or which do not,
individually or in the aggregate, create a material adverse effect on the
ability of Buyer to perform its obligations hereunder (a "Buyer Material Adverse
Effect"), or (iv) constitute violations of any Law applicable to Buyer, except
for such violations as do not, individually or in the aggregate, create a Buyer
Material Adverse Effect.
(b) Except as set forth in Schedule 5.3(b) (the filings and approvals
referred to in such schedule are collectively referred to as the "Buyer's
Required Regulatory Approvals"), no declaration, filing or registration with, or
notice to, or authorization, consent or approval of any Governmental Authority
is necessary for the execution and delivery of this Agreement or any Ancillary
Agreement or the consummation by Buyer of the transactions contemplated hereby
or thereby.
5.4. Availability of Funds.
Buyer and/or Buyer's Parent currently have sufficient funds available
to it through corporate funds, credit facilities and access to capital markets
to provide sufficient funds to pay the Purchase Price on the Closing Date and to
enable Buyer to timely perform all of its obligations under this Agreement.
5.5. Legal Proceedings.
There are no claims, actions or proceedings pending or, to the
Knowledge of Buyer and Buyer's Parent, threatened against Buyer or Buyer's
Parent before any court, arbitrator or Governmental Authority which,
individually or in the aggregate, (i) would reasonably be expected to result in
a Buyer Material Adverse Effect or (ii) prohibit or restrain the performance of
this Agreement or any of the Ancillary Agreements.
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5.6. WARN Act.
Neither Buyer nor Buyer's Parent intends with respect to the Included
Assets to engage in a "plant closing" or "mass layoff," as such terms are
defined in the WARN Act, within sixty (60) days after the Closing Date.
5.7. Transfer of Assets of Qualified Decommissioning Fund.
With respect to Seller's transfer of the assets of the Qualified
Decommissioning Fund to the Trustee under the Post-Closing Decommissioning Trust
Agreement, except for the fact that Palisades in the hands of Buyer may not be
treated as a "nuclear power plant" within the meaning of Treasury Regulations
Section 1.468A-1(b)(4) because Buyer's rates for the sale or furnishing of
electricity are not established or approved by a public utility commission or
under the jurisdiction of the Rural Electric Administration, Buyer will
otherwise acquire and own a "qualifying interest" in Palisades within the
meaning of Treasury Regulations Section 1.468A-l and will, as the transferee,
satisfy each of the requirements applicable to the transferee set forth in
Treasury Regulations Section 1.468A-6(b)(2). At the Closing, the Post-Closing
Decommissioning Trust Agreement will satisfy the requirements of Section 468A of
the Code and the regulations promulgated thereunder. At the Closing, the
Post-Closing Decommissioning Trust Agreement for Buyer's Qualified
Decommissioning Fund will satisfy the NRC's requirements for decommissioning
trust provisions in 10 C.F.R. 50.75(h)(i). The Post-Closing Decommissioning
Trust Agreement will provide that upon the occurrence of any event specified in
Section 6.20(c), to the extent then permitted by applicable Law, the Trustee of
the Buyer's Post-Closing Trust Agreement shall distribute the Excess Qualified
Decommissioning Fund Assets (or such smaller portion of such assets as specified
in Section 6.20(d)) directly to the Seller.
5.8. Foreign Ownership or Control.
Buyer or, if applicable, Buyer's Parent, will conform to the
restrictions on foreign ownership, control or domination contained in Section
104(d) of the Atomic Energy Act of 1954, as amended, 42 U.S.C. Sections 2133(d)
and 2134(d), as applicable, and the NRC's regulations in 10 C.F.R. Section
50.38. Neither Buyer's Parent nor Buyer is currently owned, controlled or
dominated by a foreign entity and neither will become owned, controlled, or
dominated by a foreign entity before the Closing Date of this transaction.
5.9. Permit and License Qualifications.
To the Knowledge of Buyer, as of the Closing, Buyer (or its successor
or assigns) will, as the owner of the Included Assets, be qualified to hold any
Permits, Environmental Permits and NRC Licenses necessary to operate the
Included Assets.
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ARTICLE 6
COVENANTS OF THE PARTIES
6.1. Conduct of Business Relating to the Included Assets.
(a) Notwithstanding anything in this Agreement to the contrary, Buyer
acknowledges that Seller and NMC, as the licensed operators of the Facilities,
retain the exclusive responsibility for safe operation of the Facilities, and
nothing in this Agreement shall in any way alter the licensed operator's duties
or obligations under any Law, regulation or its operating license. Except as
described in the Capital Budget, during the period from the Effective Date to
the Closing Date, Seller shall operate and maintain, or cause to be operated and
maintained, the Included Assets in the ordinary course consistent with Good
Utility Practices and past practices; it being understood that any actions
deemed reasonably necessary in the operation of the Included Assets in
accordance with Good Utility Practices shall be deemed to be in the ordinary
course unless such actions would reasonably be expected to create a Material
Adverse Effect. Without limiting the generality of the foregoing, during the
period from the Effective Date to the Closing Date; Seller (1) shall use and
cause to be used Commercially Reasonable Efforts to preserve intact the Included
Assets and preserve the goodwill and relationships with the Palisades Employees
and Big Rock ISFSI Employees, independent contractors, customers, suppliers and
others having business dealings with Seller with respect thereto, (2) shall
comply in all material respects with all applicable Laws relating to the
Included Assets and the Palisades Employees and Big Rock ISFSI Employees and (3)
shall provide Buyer with the actual monthly calculation of the amount and Book
Value of Nuclear Fuel. Notwithstanding the foregoing, during the period from the
Effective Date to the Closing Date, without the prior written consent of Buyer
(unless such consent would be prohibited by Law), which consent shall not be
unreasonably withheld. Seller shall not directly do any of the following with
respect to the Included Assets, and shall not issue any consent or approval, or
otherwise take any action (or refrain from taking any action), that permits NMC
to do any of the following on the Seller's behalf or otherwise with respect to
the Included Assets (Buyer acknowledges, however, that NMC may be permitted to
do one or more of the following without the Seller's or Buyer's consent or
approval under the terms and conditions of the NPPOSA and the NRC Licenses, and
if NMC proceeds to do so accordingly, Seller shall not be in violation of this
Section 6.1; provided, however, that Buyer and Seller shall negotiate in good
faith a fair and equitable adjustment to the Purchase Price, as a result of such
NMC actions):
(1) make any material change in the levels of Facility
Inventories customarily maintained by Palisades with respect to the
Included Assets, except for such changes as are consistent with Good
Utility Practices or make any change in the levels of Nuclear Fuel
Inventories other than with respect to deliveries to Seller or NMC pursuant
to the Fuel Contracts;
(2) except for Permitted Encumbrances (including amendments
and/or replacements to the Permitted Encumbrances), sell, lease (as
lessor), pledge, mortgage, encumber, restrict, transfer or otherwise
dispose of, or grant any right, or suffer to be imposed any Encumbrance
with respect to, any of the Included Assets, other than assets used,
consumed, disposed of or replaced in the ordinary course of business
consistent with Good Utility Practices;
54
(3) materially amend, extend or voluntarily terminate prior to
the expiration date thereof any of Seller's Agreements or any agreement
listed on Schedule 4.8 (or any other agreement to the extent that any such
extension or amendment thereof would require the agreement to be disclosed
on Schedule 4.8 or Schedule 4.11(a)(i)), or any Permit, Environmental
Permit or NRC License, or waive any default by, or release, settle or
compromise any claim against, any other party thereto, other than (a) if
the terms and conditions of such modified agreement, Permit, Environmental
Permit or NRC License are not materially less favorable to Buyer than the
original agreement, Permit, Environmental Permit or NRC License, or (b)
immaterial amendments to such agreement, Permit, Environmental Permit or
NRC License to conform such agreement, Permit, Environmental Permit or NRC
License for Buyer's purchase hereunder;
(4) (i) reallocate or change the delivery quantities or times for
any Nuclear Fuel or services contemplated under any Fuel Contract, or (ii)
enter into any new commitment or agreement for the purchase or sale of
Nuclear Fuel, or modify, amend, extend or terminate any existing Fuel
Contract; provided, however, that Seller or NMC, as applicable, may execute
the Fuel Contracts identified on Schedule 4.11(a)(ii) delivered on the
Effective Date as "DRAFT, YET TO BE SIGNED" as long as such Fuel Contracts,
when executed, contain substantially the same terms and conditions as the
drafts provided to Buyer prior to the Effective Date;
(5) enter into any power sales agreement relating to Palisades,
other than an agreement to resell power purchased under the Power Purchase
Agreement, having a term that extends beyond the Closing Date, except if
such agreement will be terminated by Seller prior to the Closing;
(6) amend in any material respect or cancel any property,
liability or casualty insurance policies related thereto, or fail to use
Commercially Reasonable Efforts to maintain by self insurance or with
financially responsible insurance companies insurance in such amounts and
against such risks and losses as are customary for such assets and
businesses;
(7) enter into any contracts, agreements, personal property
leases, software or other licenses or other commitments for goods or
services (other than employment-related services), in any case not
addressed in Sections 6.1(a)(1) through 6.1(a)(6) above, that (i) are not
terminable without further Liability upon notice of 90 days or less by
Seller (prior to the Closing) or Buyer (following the Closing) or (ii)
require payment, or delivery of goods and services with a value of, in
excess of $100,000 per annum individually (and each such commitment or
contract shall either become a Seller's Agreement and added to Schedule
4.11(a)(i) in accordance with Section 6.9, or, if appropriate, shall become
a Non-material Contract, and a copy of each such commitment or contract
shall be delivered to Buyer pursuant to Section 3.6);
(8) except as required by any Law or GAAP, change, in any
material respect, its Tax practice or policy (including making new Tax
elections or changing Tax
55
elections and settling Tax controversies not in the ordinary course of
business) to the extent such change or settlement would be binding on
Buyer;
(9) except as required by any Law or GAAP, change, in any
material respect, its accounting practices or policies to the extent such
change would be result in a revaluation of inventory items which increases
the Book Value thereof;
(10) (A) hire or permit NMC to hire any new Palisades Employees
or Big Rock ISFSI Employees (other than to replace any such employees
existing as of the Effective Date who have resigned or been terminated and
employees hired to perform the duties of such employees who are on leave),
(B) enter into any written employment agreements, including any retention
agreements, severance agreements or change-in control-agreements, with any
current or new Palisades Employees or Big Rock ISFSI Employees, (C)
establish or permit NMC to establish any Benefit Plan for the benefit of
Palisades Employees or Big Rock ISFSI Employees, or materially change any
Benefit Plan existing as of the Effective Date, (D) except to the extent
consistent with past practices or as required under the Collective
Bargaining Agreement, increase or permit NMC to increase the compensation
or benefits payable to any Palisades Employee or Big Rock ISFSI Employee,
(E) communicate or permit NMC to communicate to Palisades Employees, Big
Rock ISFSI Employees or any third party the terms and conditions of
employment or potential employment with Buyer or its Affiliate, other than
those established in this Agreement (F) exchange or transfer, or permit NMC
to exchange or transfer, any Palisades Employees or Big Rock ISFSI
Employees existing as of the Effective Date for any employees of Seller or
NMC, except pursuant to contractual obligations in effect as of the
Effective Date or as otherwise permitted by the NPPOSA or (G) terminate any
Palisades Employee or Big Rock ISFSI Employee, other than for cause or
through voluntary termination or retirement;
(11) fail to make Commercially Reasonable Efforts to pursue
currently pending regulatory approvals and Permit or Environmental Permit
applications, approvals and renewals relating to the Included Assets that
are reasonably necessary to operate the Facilities;
(12) knowingly engage in any practice, take any action, fail to
take any action, or enter into any transaction through the Closing Date
that will result or would reasonably be anticipated to result in any breach
of a material representation or warranty of Seller hereunder as of the
Closing;
(13) resolve, settle or compromise any Environmental Claim except
to the extent that such resolution, settlement or compromise does not
impose any post-Closing Liabilities on Buyer, limit Buyer's post-Closing
rights and remedies relating to the Included Assets or require any
post-Closing Remediation;
(14) settle any claim or litigation that results in any material
obligation imposed on the Included Assets that could reasonably be likely
to continue past the Closing Date, provided, that Buyer hereby acknowledges
and agrees that Seller shall be permitted to settle the Department of
Energy Claim and any settlement by Seller of the
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Department of Energy Claim may include a damages calculation based upon an
express or implicit allocation of queue/scheduling rights in respect of the
pick-up by the Department of Energy of Spent Nuclear Fuel under the
Standard Spent Fuel Disposal Contract from Palisades to the Big Rock Point
Plant Operating Facility and agreement as to a pre-Closing acceptance rate;
provided further, however, that any such settlement shall not commit the
Buyer to any valuation methodology in respect of post-Closing damages under
the Standard Spent Fuel Disposal Contract (except to the extent resulting
from Seller's use of an acceptance rate or an allocation of
queue/scheduling rights as part of its damages calculation, as described
above) or to any actual allocation of queue/scheduling rights in respect of
the pick-up by the Department of Energy of Spent Nuclear Fuel or any actual
acceptance rate for Spent Nuclear Fuel by the Department of Energy that
would affect Buyer's calculation of its post-Closing damages under the
Standard Spent Fuel Disposal Contract;
(15) store any Spent Nuclear Fuel or other Nuclear Material at
the Big Rock ISFSI other than the Spent Nuclear Fuel and other Nuclear
Material stored at the Big Rock ISFSI as of the Effective Date; or
(16) agree to enter into any of the transactions set forth in the
foregoing paragraphs (1) through (15);
provided, however, that nothing contained in this Agreement shall restrict the
ability of Seller at any time to (i) perform or enforce any existing contract to
which it is a party and which is listed on the schedules to this Agreement or
(ii) take any and all actions necessary to effect the termination by Seller of
the NPPOSA. In addition, notwithstanding the foregoing, Seller shall be entitled
to amend, substitute or otherwise modify any Seller's Agreement if the terms and
conditions of such modified Seller's Agreement constituting the Assumed
Liabilities and Obligations are on terms and conditions not less favorable to
Buyer than the original Seller's Agreement.
(b) The Parties shall establish, as soon as practicable after the
execution of this Agreement, a committee (the "Transition Committee") comprised
of at least four (4) persons, including two (2) persons designated by Seller and
two (2) persons designated by Buyer. The Transition Committee shall remain in
existence until the Closing Date and shall oversee and manage the transition
process through the Closing Date. Subject to applicable Laws, the Transition
Committee will be kept fully apprised by Seller of all the Facilities'
management and operating developments, including with respect to any pre-closing
outage, any repairs to the Facilities and the Capital Expenditures. The
Transition Committee shall have no authority to bind or make agreements on
behalf of Seller or Buyer or to issue instructions to or direct or exercise
authority over Seller or Buyer or any of their respective officers, employees,
advisors or agents or to waive or modify any provision of this Agreement. Seller
shall use Commercially Reasonable Efforts to arrange for Buyer's representatives
on the Transition Committee to have access to the management of NMC.
(c) Between the Effective Date and the Closing Date, in the interest
of cooperation between Seller and Buyer and to plan for and facilitate an
orderly transition of ownership and operation of the Included Assets from Seller
to Buyer and to permit informed
57
action by Buyer regarding its rights pursuant to Section 6.1(a), the Parties
agree that at the sole responsibility and expense of Buyer, and subject to
compliance with all applicable NRC rules and regulations and other applicable
Laws, Seller shall permit Persons reasonably designated by Buyer ("Observers")
to observe all operations of Palisades and the Big Rock ISFSI that relate to the
Included Assets, and such observation will be permitted on a cooperative basis
in the presence of one or more individuals designated by Seller together with
NMC (the "Seller's Agent(s)"); provided, however, that such Observers and their
actions shall not interfere with the operation of Palisades or the Big Rock
ISFSI; and provided, further, that the number of Observers observing at any
particular time and the scheduling and duration of their observation shall be
subject at all times to the approval of the Seller's Agent(s) (it being
acknowledged and agreed that in no event shall more than five (5) such Observers
be permitted on Site at any one time). Seller shall use Commercially Reasonable
Efforts to provide to the Observers interim furnished office space, utilities
and HVAC at the Facilities reasonably necessary to allow Buyer to conduct its
transition efforts through the Closing Date at no cost to Buyer; provided that
Buyer shall be responsible for all other costs relating thereto, including
telecommunications expenses and the cost of workers' compensation and employer's
liability coverage, which coverage shall be maintained by Buyer on such terms as
may be customarily required by Seller for its contractors.
(d) Buyer's members of the Transition Committee and/or the Observers
may recommend or suggest to Seller that actions be taken or not be taken to
improve or enhance the operation and maintenance of the Included Assets from the
Effective Date through the Closing Date; provided, however, that Seller will not
be under any obligation to follow any such recommendations or suggestions and
Seller shall be entitled, subject to this Agreement, to conduct its business in
accordance with its own judgment and discretion. Buyer's Observers shall have no
authority to bind or make agreements on behalf of Seller; to conduct discussions
with or make representations to third parties on behalf of Seller; or to issue
instructions to or direct or exercise authority over Seller or any of Seller's
officers, employees, advisors or agents. Notwithstanding anything in this
Section 6.1(d) to the contrary, prior to the Closing Date, Buyer shall not have
the right to perform or conduct any environmental sampling or testing at, in, on
or underneath the Included Assets. Buyer shall have no Liability for any
suggestions or recommendations made by an Observer.
6.2. Access to Information.
(a) In addition to the rights granted by Sections 6.1(b), (c) and (d),
between the Effective Date and the Closing Date, Seller will, and will use
Commercially Reasonable Efforts to cause NMC to, during ordinary business hours,
upon reasonable notice and subject to compliance with all applicable NRC rules
and regulations and other applicable Laws and subject to approval in advance by
the Seller's Agent(s) which approval shall not be unreasonably withheld or
delayed (i) give Buyer and Buyer's Representatives reasonable access to all
management personnel engaged in the operation of the Included Assets and all
books, documents, records, plants, offices and other facilities and properties
constituting the Included Assets; (ii) permit Buyer to make such reasonable
inspections thereof as Buyer may reasonably request; (iii) furnish Buyer with
such financial and operating data and other information with respect to the
Included Assets and the Palisades Employees and the Big Rock ISFSI Employees as
Buyer may from time to time reasonably request; (iv) furnish Buyer a copy of
each report,
58
schedule or other document filed or received by it since the date hereof with
respect to the Included Assets with the NRC, FERC or any other Governmental
Authority having jurisdiction over the Included Assets; provided, however, that
(A) any such investigation shall be conducted in such a manner as not to
interfere unreasonably with the operation of the Included Assets, (B) Seller
shall not be required to take any action which would constitute a waiver of the
attorney-client privilege, and (C) Seller need not supply Buyer with any
information that Seller is legally prohibited from supplying. Seller will use
its Commercially Reasonable Efforts to cause NMC to provide Buyer or Buyer's
Representatives with access to the Transferred Employee Records that it has, but
Seller shall not be required to provide or cause to be provided access to other
employee records or medical information unless required by Law or specifically
authorized by the affected employee. Notwithstanding anything in this Section
6.2 to the contrary, Seller shall only provide or cause to be provided such
access to Transferred Employee Records and personnel and medical records as is
permitted by Law or required by legal process or subpoena. In addition, Seller
will use Commercially Reasonable Efforts to cause NMC to provide Buyer or
Buyer's Representatives with access to NMC personnel engaged in the supervision,
operation, maintenance or otherwise supporting the Included Assets. To the
extent not prohibited by applicable Law, Seller shall cause NMC to deliver in a
timely manner to Buyer all documents, electronic files and records in a format
sufficient (as reasonably determined by Buyer) to facilitate the anticipated
Closing. Without limiting the generality of the foregoing, four (4) weeks prior
to the anticipated Closing Date, (A) Seller shall provide, or cause NMC to
provide, to Buyer a list of the Palisades Employees and Big Rock ISFSI Employees
anticipated to become Transferred Employees, and (B) Seller shall cooperate, and
shall cause NMC to cooperate, with Buyer to enable Buyer to document the
transfer of the Transferred Employees according to Buyer's or Buyer's
Affiliate's standard practices and employment prerequisites.
(b) Buyer and Seller acknowledge that all information furnished to or
obtained by Buyer or Buyer's Representatives pursuant to either Section 6.1 or
this Section 6.2 shall be subject to the provisions of the Confidentiality
Agreement and shall be treated as Proprietary Information.
(c) For a period of five (5) years following the Closing Date (or such
other date as the Parties may agree in writing), and in the case of books and
records relating to the Decommissioning Funds, until the completion of
Decommissioning, and subject to all applicable NRC rules and regulations, each
Party and its respective Representatives shall have reasonable access to all of
the Business Books and Records, including all Transferred Employee Records or
other personnel and medical records required to be made available by Law, legal
process or subpoena, in the possession of the other Party to the extent that
such access may reasonably be required by such Party in connection with the
Assumed Liabilities and Obligations or the Excluded Liabilities, or other
matters relating to or affected by the operation of the Included Assets. Such
access shall be afforded by the Party in possession of such books and records
upon receipt of reasonable advance notice and during normal business hours. The
Party exercising this right of access shall be solely responsible for any costs
or expenses incurred by it pursuant to this Section 6.2(c). If the Party in
possession of such books and records shall desire to dispose of any such books
and records prior to the expiration of the applicable time period specified in
this Section 6.2(c), such Party shall, prior to such disposition, give the other
Party a reasonable opportunity at such other Party's expense, to segregate and
remove such books and records as
59
such other Party may select. Notwithstanding the foregoing, the right of access
to medical records and other confidential employee records shall be subject to
all applicable Laws.
(d) Seller agrees (i) not to release any Person (other than Buyer)
from any confidentiality agreement now existing with respect to the Included
Assets, or waive or amend any provision thereof, and (ii) to assign at the
Closing any rights arising under any such confidentiality agreement (to the
extent assignable) to Buyer. Notwithstanding the foregoing, Seller agrees and
shall use Commercially Reasonable Efforts to cause NMC to agree that following
the Closing, no Transferred Employee shall be subject to any confidentiality,
non-solicitation or non-competition obligation for the benefit of Seller or its
Affiliates or NMC.
(e) Notwithstanding the terms of the Confidentiality Agreement and
Section 6.2(b) above, the Parties agree that prior to the Closing Buyer may
reveal or disclose Proprietary Information to other Persons to the extent
reasonably necessary in connection with Buyer's financing and risk management of
the Included Assets, and, to the extent that Seller consents, which consent
shall not be unreasonably withheld or delayed, to such Persons with whom Buyer
expects it may have business dealings regarding the Included Assets from and
after the Closing Date; provided, however, that all such Persons agree in
writing to maintain the confidentiality of the Proprietary Information on
substantially the same terms and conditions as those contained in the
Confidentiality Agreement; and provided, further, that Buyer shall be
responsible for any breach by any such Persons of such confidentiality
obligations.
(f) Except as may be permitted under the Confidentiality Agreement,
Buyer agrees that, prior to the Closing Date, it will not contact any vendors,
suppliers, employees, or other contracting parties of NMC, Seller or Seller's
Affiliates with respect to any aspect of the Included Assets or the transactions
contemplated hereby, without the prior written consent of Seller, which consent
shall not be unreasonably withheld or delayed; provided, however, that such
consent shall not (subject to the notice requirement set forth in the next
sentence) be required during the period beginning sixty (60) days prior to the
anticipated Closing Date through the Closing Date. Notwithstanding the
foregoing, prior to the Closing, (i) Buyer may conduct general employee meetings
addressing the following topics: payroll, transition, compensation, health and
wellness benefits, pension plans, 401(k) plan transitions, post-Closing policies
and procedures and other matters of general employee concern, provided that
Buyer shall provide NMC with notice of any such meeting a reasonable period of
time in advance thereof and shall reasonably coordinate with NMC as to the
conduct thereof and (ii) Buyer may make any contacts with Persons as expressly
contemplated by this Agreement, including without limitation contacts with
vendors, suppliers and customers in connection with obtaining assignments of
contracts and discussing the post-Closing relationship with such Persons,
provided that Buyer shall keep Seller reasonably informed as to the existence of
any such contacts.
(g) Upon Buyer's or Seller's (as the case may be) prior written
approval (which approval shall not be unreasonably withheld or delayed), Seller
or Buyer (as the case may be) may provide Proprietary Information of the other
Party to the NRC, FERC or any other Governmental Authority having jurisdiction
over the Included Assets or any stock exchange, as may be necessary to obtain
Seller's Required Regulatory Approvals or Buyer's Required Regulatory Approvals,
respectively. The disclosing Party shall seek confidential treatment for
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the Proprietary Information provided to any such Governmental Authority and the
disclosing Party shall notify the other Party as far in advance as practical of
its intention to release to any Governmental Authority any such Proprietary
Information.
(h) Seller or Buyer (as the case may be) may, without the prior
consent of the other Party, disclose Proprietary Information of the other Party
as may be necessary to comply generally with any applicable Laws, requests from
Governmental Authorities or with the rules of any applicable stock exchange. The
disclosing Party shall notify the other Party as far in advance as practical of
its intention to release to any third party any such Proprietary Information.
(i) The Parties agree that the Confidentiality Agreement shall remain
in effect until the Closing. Thereafter, the Parties agree that any restrictions
contained in the Confidentiality Agreement with respect to Buyer's disclosure of
Proprietary Information shall terminate, other than with respect to the
Proprietary Information of Seller that does not relate to the Included Assets.
The Parties further agree that after the Closing Date, Seller shall keep
confidential all Proprietary Information provided by Buyer or which Seller
possesses with respect to the Included Assets, to the extent permitted by Law,
and to the same extent and under the same conditions applicable to Buyer's
obligations with respect to Seller's Proprietary Information as contained in the
Confidentiality Agreement between the Parties, but for a period of time equal to
six (6) years from the Closing.
6.3. Expenses.
(a) Except to the extent specifically provided herein, whether or not
the transactions contemplated hereby are consummated, all costs and expenses
incurred in connection with this Agreement and the transactions contemplated
hereby, including the cost of legal, technical and financial consultants and the
cost of filing for and prosecuting applications for Buyer's and Seller's
Required Regulatory Approvals, shall be borne by the Party incurring such costs
and expenses.
(b) Buyer shall be responsible for all third party vendor costs and
expenses incurred and relating to work performed with respect to the Included
Assets at the written request of Buyer after the date hereof.
(c) Seller shall be responsible for the payment of any exit or
termination fee as a result of the termination of the NPPOSA in connection with
the transactions contemplated by this Agreement.
6.4. Further Assurances; Cooperation.
(a) Subject to the terms and conditions of this Agreement, each of the
Parties hereto will use Commercially Reasonable Efforts to take, or cause to be
taken, all action, and to do, or cause to be done, all things necessary, proper
or advisable under applicable Laws to consummate and make effective the sale,
transfer, conveyance and assignment of the Included Assets and the assignment of
the Assumed Liabilities and Obligations or the exclusion of the Excluded
Liabilities pursuant to this Agreement, including using Commercially Reasonable
Efforts to ensure satisfaction of the conditions precedent to each Party's
obligations hereunder.
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Notwithstanding anything in the previous sentence to the contrary, Seller and
Buyer shall use Commercially Reasonable Efforts to obtain all Permits,
Environmental Permits and NRC Licenses necessary for Buyer to acquire and
operate the Included Assets. Seller shall be responsible at its cost for
providing all notices required under, and obtaining all assignments, consents to
transfer and similar documents for, each of the Seller's Agreements,
Non-material Contracts, Fuel Contracts, Emergency Equipment Easements,
Transferable Permits, and other items to be delivered by Seller at Closing.
Buyer shall use its Commercially Reasonable Efforts to assist Seller in
obtaining such consents and assignments, but shall not be required to assume
additional out-of-pocket costs, expenses or Liabilities in connection therewith.
Neither Buyer nor Seller shall, without the prior written consent of the other,
advocate or take any action that would reasonably be expected to prevent or
materially impede, interfere with or delay the transactions contemplated by this
Agreement or which could reasonably be expected to cause, or to contribute to
causing, the other to receive less favorable regulatory treatment than that
sought by the other. Buyer further agrees that prior to the Closing Date,
neither it nor its Affiliates will enter into any other contract to acquire or
market or control the output of, nor acquire or market or control the output of,
electric generation facilities or uncommitted generation capacity if the
proposed acquisition or the ability to market or control output of such
additional electric generation facilities or uncommitted generation capacity
would increase the market power attributable to Buyer in a manner materially
adverse to approval of the transactions contemplated hereby or would otherwise
prevent or materially interfere with the transactions contemplated by this
Agreement.
(b) From time to time after the Closing, Seller will execute and
deliver such documents to Buyer as Buyer may reasonably request, at Seller's
expense, in order to more effectively consummate the sale and purchase,
including the transfer, conveyance and assignment, of the Included Assets or to
more effectively vest in Buyer such title to the Included Assets (or such rights
to use, with respect to Seller's interest in Included Assets not owned by
Seller), subject to the Permitted Encumbrances. From time to time after the
Closing, without further consideration, Buyer will, at its own expense, execute
and deliver such documents to Seller as Seller may reasonably request in order
to evidence Buyer's assumption of the Assumed Liabilities and Obligations.
(c) The Parties shall use Commercially Reasonable Efforts to cooperate
with each other, and Seller shall use Commercially Reasonable Efforts to cause
NMC to cooperate with Buyer, to facilitate the transition of the information
systems, computer applications and processing of data at the Facilities in a
timely manner and in formats reasonably acceptable to Buyer.
(d) To the extent that Seller's rights under any Non-material Contract
may not be assigned without the consent of another Person which consent has not
been obtained, this Agreement shall not constitute an agreement to assign the
same if an attempted assignment would constitute a breach thereof or be
unlawful, and Seller, at its expense, shall use Commercially Reasonable Efforts
to obtain any such required consent(s) as promptly as possible. Seller and Buyer
agree that if any consent to an assignment of any Non-material Contract shall
not be obtained or if any attempted assignment would be ineffective or would
impair Buyer's rights and obligations under the applicable Non-material Contract
so that Buyer would not in effect acquire the benefit of all such rights and
obligations, then Seller, to the maximum extent
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permitted by Law and such Non-material Contract (as reasonably determined by
Seller in consultation with its counsel), shall, after the Closing (i) appoint
Buyer to be Seller's agent with respect to such Non-material Contract and/or
(ii) enter into such arrangements with Buyer as are reasonably necessary to
provide Buyer with the benefits and obligations (including post-Closing
Liabilities) of such Non-material Contract. Seller and Buyer shall cooperate and
Seller shall continue to use Commercially Reasonable Efforts after the Closing
to obtain an assignment of such Non-material Contract to Buyer. In the event
that any such consent to assignment has not been obtained, the Parties agree to
proceed under this Agreement to the extent permissible.
(e) For a reasonable period of time after the Closing Date, Buyer and
Seller agree to provide such services to each other, and to the extent
Commercially Reasonable, Seller shall cause NMC to provide such services to
Buyer, as are reasonably required to the extent necessary to ensure the
continuity of support for Palisades, the Big Rock ISFSI and the Seller's other
facilities and the orderly completion of projects or other work in progress that
would be adversely affected if those services were interrupted, including
mutually acceptable arrangements regarding the lease of the facility located in
South Haven, Michigan that is part of Emergency Operations Facilities from
Seller to Buyer for a period of up to three (3) years pursuant to the Emergency
Operations Facilities Lease. Buyer and Seller will agree, as promptly as
practicable, following the Effective Date, on the nature of such services.
(f) Seller shall cooperate with Buyer and use Commercially Reasonable
Efforts to cause NMC to agree to (i) maintain all data relating to the Indus
PassPort and Indus EMPAC software applications (the "Indus Software") on NMC's
or third party service provider's servers for the 12-month period following the
Closing and (ii) allow Buyer and its Affiliates to interface with such servers
and provide such related services such that Buyer and its Affiliates shall be
able to access and import all data relating to the Included Assets that is
included in the Indus Software.
(g) Not earlier than 90 days prior to the Closing Date and before the
Closing Date, Seller shall cause to be prepared and shall deliver to Buyer an
update of the Phase I environmental site assessment of the Palisades Site and
the Big Rock ISFSI Site and amendments thereto previously provided to Buyer.
Such Phase I updates will ensure that the Phase I environmental site
assessments, as amended, meet the requirements of 40 C.F.R. Section 312 as of
the Closing Date. The cost of such updates shall be shared equally between Buyer
and Seller.
(h) At the Closing, Seller shall have caused all revenue meters,
telemetering equipment and other equipment required under or necessary for
performance by Buyer (in its capacity as the seller of energy) under the Power
Purchase Agreement and the Interconnection Agreement to be installed and
operational within the accuracy and tolerances required pursuant to such
agreements, and shall have caused the Facilities to be capable of producing and
absorbing all ancillary services which are required to be produced and absorbed
under such agreements.
6.5. Public Statements.
Prior to the Closing, the Parties shall not issue any press release or
other public disclosure with respect to this Agreement or the transactions
contemplated hereby without first
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affording the non-disclosing Party the opportunity to review and comment on such
disclosure, except as may be required by applicable Law or stock exchange rules.
In addition, the Parties shall confer with each other regarding the substance
and form of their initial post-Closing public announcement relating to the
Closing.
6.6. Consents and Approvals.
(a) Seller and Buyer shall each file or cause to be filed with the
Federal Trade Commission and the Department of Justice any notifications
required to be filed under the HSR Act and the rules and regulations promulgated
thereunder with respect to the transactions contemplated hereby. The Parties
shall consult with each other as to the appropriate time of filing such
notifications and shall agree upon the timing of such filings, and respond
promptly to any requests for additional information made by either of such
agencies. The Parties shall use their Commercially Reasonable Efforts to cause
the waiting periods under the HSR Act to terminate or expire at the earliest
possible date after the date of filing. All filing fees under the HSR Act shall
be borne by Buyer and each Party will bear its own costs for the preparation of
any such filing.
(b) As promptly as practicable after the Effective Date and after the
receipt of any determinations required to be made by any other Governmental
Authority as a condition to Buyer making the filings contemplated by this
paragraph, (i) Buyer shall file with FERC (and if requested by Buyer, Seller
shall support) a notice of self-certification or a petition seeking
certification, at Buyer's election, regarding Exempt Wholesale Generator status
for Buyer, which filing may be made individually by Buyer or jointly with
Seller, as reasonably determined by Buyer, and (ii) Buyer shall file with FERC
any necessary applications requesting authority to sell electric capacity,
energy and ancillary services at wholesale. In fulfilling its obligations set
forth in part (i) of the immediately preceding sentence, Buyer shall use best
efforts to effect the referenced filings with FERC within forty-five (45) days
after receipt of the last of any determinations required to be made by any other
Governmental Authority as a condition to Buyer and Seller making the filings. In
fulfilling its obligations set forth in part (ii) of the immediately preceding
sentence, Buyer shall use best efforts to effect the referenced filings with
FERC within forty-five (45) days of the Effective Date. During preparation of
such FERC applications, Buyer shall coordinate with Seller, shall allow Seller
to communicate with any witnesses who submit testimony or evidence accompanying
such applications, and shall provide Seller with notice and an opportunity to
attend any meetings with the FERC staff regarding such applications. No later
than ten (10) days prior to submitting any such applications with FERC, Buyer
shall submit the application to Seller for review and comment, and Buyer shall
in good faith consider any revisions reasonably requested by Seller. Buyer shall
be solely responsible for its own cost of preparing, reviewing and filing its
respective application, responses and any petition(s) for rehearing or any
reapplication(s).
(c) As promptly as practicable after the Effective Date, Buyer and
Seller shall jointly prepare and file with NRC an application requesting consent
under Section 184 of the Atomic Energy Act and 10 C.F.R. Section 50.80 for the
transfer of the NRC Licenses from Seller to Buyer and Buyer's Affiliate, and
approval of any conforming license amendments or other related approvals. In
fulfilling their respective obligations set forth in the immediately preceding
sentence, each of Buyer and Seller shall use its best efforts to effect any such
filing within forty-
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five (45) days of the Effective Date. Each Party will bear its own costs of the
preparation of any such filing and Buyer and Seller will each pay 50% of any NRC
fees. Thereafter, Buyer and Seller shall cooperate with one another to
facilitate NRC review of the application, including by providing the NRC staff
with such documents or information that the NRC staff may reasonably request or
require any of the Parties to provide or generate.
(d) As promptly as practicable after the Effective Date, Seller and
Buyer shall jointly prepare as co-applicants, and Seller shall file with FERC,
an application for approval of this transaction under Section 203 of the Federal
Power Act. During preparation of such FERC application, Seller shall coordinate
with Buyer, shall allow Buyer to communicate with any witnesses who submit
testimony or evidence accompanying such application, and shall provide Buyer
with notice and an opportunity to attend any meetings with the FERC staff
regarding such application. No later than fifteen (15) days prior to Seller's
submission of such application with FERC, Seller shall submit such application
to Buyer for review and comment and Seller shall consider in good faith any
revisions reasonably requested by Buyer. Seller and Buyer shall respond promptly
to all requests from FERC or its staff for additional information regarding such
application and use their respective Commercially Reasonable Efforts to
participate in any hearings, settlement proceedings or other proceedings ordered
by FERC with respect to the application. In fulfilling their respective
obligations set forth in this Section 6.6(d), each of Buyer and Seller shall use
best efforts to effect the referenced filings with FERC within forty-five (45)
days of the Effective Date. Seller shall be solely responsible for the cost of
filing this application, any petition(s) for rehearing, or any reapplication(s).
Each Party will bear its own costs of the preparation and review of such filing,
provided that Buyer shall be solely responsible for the cost of any market power
study or analysis associated with such filing.
(e) Seller and Buyer shall cooperate with each other and use
Commercially Reasonable Efforts to, as promptly as practicable after the
Effective Date, (i) prepare and make with FERC or any other Governmental
Authority having jurisdiction over Seller, Buyer or the Included Assets, all
necessary filings required to be made with respect to the transactions
contemplated hereby (including those specified above), (ii) effect all necessary
applications, notices, petitions and filings and execute all agreements and
documents, (iii) obtain the transfer or reissuance to Buyer of all necessary
Permits, Environmental Permits, consents, approvals and authorizations of all
Governmental Authorities, and (iv) obtain all necessary consents, approvals and
authorizations of all other parties, in the case of each of the foregoing
clauses (i), (ii) and (iii), necessary or advisable to consummate the
transactions contemplated by this Agreement (including Seller's Required
Regulatory Approvals and Buyer's Required Regulatory Approvals and the renewal
of the Palisades NRC License) or required by the terms of any note, bond,
mortgage, indenture, deed of trust, license, franchise, permit, concession,
contract, lease or other instrument to which Seller or Buyer is a party or by
which any of them is bound. The Parties shall respond promptly to any requests
for additional information made by such agencies, use their respective
Commercially Reasonable Efforts to participate in any hearings, settlement
proceedings or other proceedings ordered with respect to the applications, and
use their respective Commercially Reasonable Efforts to cause regulatory
approval or other consent to be obtained at the earliest possible date after the
date of filing or other request. Each Party will bear its own costs of the
preparation and review of any such filing or request. Seller and Buyer shall
have the right to review in advance all characterizations of the information
relating to the transactions contemplated by this Agreement which appear in any
filing made in connection with
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the transactions contemplated hereby and the filing Party shall consider in good
faith any revisions reasonably requested by the non-filing Party. In fulfilling
its obligations set forth in this subsection (e) with respect to the making of
any filings with the MPSC set forth on Schedule 4.3(b), Buyer shall use best
efforts to effect such filings with the MPSC within forty-five (45) days of the
Effective Date.
(f) The Parties shall reasonably cooperate prior to Closing in
communicating with the Hayes Township assessor to obtain assurance that a
separate tax parcel number will be issued for the Big Rock ISFSI Site as soon as
practicable. In the event that despite the Parties' use of all reasonable
efforts, the Big Rock ISFSI Site is not assigned a separate tax parcel number by
the Hayes Township assessor in time for any Tax bill rendered after Closing to
be rendered to Buyer on the Big Rock ISFSI Site as a separate parcel, then the
Parties will pro-rate any such Tax bill on the basis of the acreage of the
pre-existing tax parcel that is included in the Big Rock ISFSI Site and the
acreage that is outside the Big Rock ISFSI Site with Buyer paying the former
portion and Seller paying the latter portion.
(g) Buyer shall have the primary responsibility for securing the
transfer, reissuance or procurement of the Permits and Environmental Permits
other than Transferable Permits, effective as of the Closing. Seller shall
cooperate with Buyer's efforts in this regard and assist in any transfer or
reissuance of a Permit or Environmental Permit held by Seller or the procurement
of any other Permit or Environmental Permit when so requested by Buyer. In the
event that Buyer is unable, despite its Commercially Reasonable Efforts, to
obtain a transfer or reissuance of one or more of the Permits or Environmental
Permits as of the Closing Date, Buyer may use the applicable Permit or
Environmental Permit issued to Seller, provided (i) such use is not unlawful,
(ii) Buyer notifies Seller prior to the Closing Date, (iii) Buyer continues to
make Commercially Reasonable Efforts to obtain a transfer or reissuance of such
Permit or Environmental Permit after the Closing, and (iv) Buyer indemnifies
Seller for any losses, claims or penalties suffered by Seller in connection with
the Permit or Environmental Permit that is not transferred or reissued as of the
Closing resulting from Buyer's ownership or operation of the Included Assets
following the Closing. In no event shall Buyer use or otherwise rely on a Permit
or Environmental Permit issued to Seller beyond one (1) year after the Closing
Date.
6.7. Brokerage Fees and Commissions.
Seller and Buyer each represent and warrant to the other that, other
than with respect to fees and commissions of Concentric Energy Advisors Inc.,
which shall be the sole responsibility of Seller, no other Person is entitled to
any brokerage fees, commissions or finder's fees in connection with the
transaction contemplated hereby by reason of any action taken by the Party
making such representation or its Affiliates. Seller and Buyer will pay to the
other or otherwise discharge, and will indemnify and hold the other harmless
from and against, any and all claims or liabilities for all brokerage fees,
commissions and finder's fees incurred by reason of any action taken by the
indemnifying party or its Affiliates.
6.8. Tax Matters.
(a) All Transfer Taxes incurred in connection with this Agreement and
the transactions contemplated hereby, if any, shall be shared equally between
Seller and Buyer.
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Seller will, at its own expense, file, to the extent required by applicable Law,
all necessary Tax Returns and other documentation with respect to all such
Transfer Taxes, and Buyer shall be entitled to review such returns prepared by
Seller in advance and provide comments thereon, which Seller shall accept to the
extent such comments are reasonable, and, if required by applicable Law, Buyer
will join in the execution of any such Tax Returns or other documentation. Buyer
will provide to Seller, to the extent possible, an appropriate exemption
certificate in connection with this Agreement and the transactions contemplated
hereby, due from each applicable taxing authority, and the Parties shall comply
with all requirements and use Commercially Reasonable Efforts to secure
applicable sales tax exemptions for the transactions contemplated by this
Agreement.
(b) [Intentionally omitted]
(c) With respect to Seller's Qualified Decommissioning Fund, prior to
the Closing Date, Seller shall cause the Trustee of Seller's Qualified
Decommissioning Fund to pay estimated Income Taxes for the taxable period that
ends on the Closing Date in an amount equal to the estimated Income Tax
Liability of Seller's Qualified Decommissioning Fund for the taxable period that
ends on the Closing Date. To the extent the amount of estimated Income Taxes
paid pursuant to this Section 6.8(c) is less than the Income Tax Liability of
Seller's Qualified Decommissioning Fund for the taxable period that ends on the
Closing Date, any such deficiency will be paid by the Trustee of the
Post-Closing Decommissioning Trust Agreement and charged against the Excess
Qualified Decommissioning Fund assets, or if such Excess Qualified
Decommissioning Fund assets are not sufficient to pay such Income Tax Liability,
such deficiency will be paid by Seller. Such payment will be made no later than
the due date, as extended, of the initial Tax Return.
(d) Each of the Parties shall provide the other with such assistance
as may reasonably be requested by the other Party in connection with the
preparation of any Tax Return, any audit or other examination by any taxing
authority, or any judicial or administrative proceedings relating to Liability
for Taxes and each will retain and provide the requesting Party with any records
or information which may be relevant to such return, audit or examination,
proceedings or determination. Any information obtained pursuant to this Section
6.8(d) or pursuant to any other Section hereof providing for the sharing of
information or review of any Tax Return or other schedule relating to Taxes
shall be kept confidential by the Parties hereto, except to the extent such
information is required to be disclosed by Law.
(e) Seller shall use Commercially Reasonable Efforts to cooperate with
NMC and cause any of Seller's Affiliates that provide or have provided an IRS
Form W-2 to any Transferred Employee to cooperate with Buyer and Buyer's
Affiliate in the efforts to obtain "successor employer" or "same employer"
status for federal and state employment Tax and unemployment Tax purposes. Such
cooperation shall include but not be limited to compliance with all requirements
of applicable Laws and administrative practice of any Governmental Authority
relevant to obtaining such status to assist Buyer and its Affiliate in meeting
the requirements for obtaining such status. Seller shall also use Commercially
Reasonable Efforts to cooperate with NMC and cause any of Seller's Affiliates to
provide to Buyer all information reasonably available and necessary to enable
Buyer or its Affiliate to successfully transfer and transition payroll functions
with respect to the Transferred Employees. Such cooperation shall
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include but not be limited to payroll, salary, benefits and withholding and
employment Tax records and returns with respect to such Transferred Employees
6.9. Advice of Changes; Supplements to Schedules.
(a) Prior to the Closing, each Party will promptly advise the other in
writing of any change or discovery occurring after the Effective Date that, if
occurring on or prior to the Effective Date, would have been required to be
disclosed to the other Party and/or set forth or described in the
representations, warranties or covenants contained in this Agreement or on the
Schedules to this Agreement so as to have avoided a material breach of any
representation, warranty or covenant of the advising or other Party under this
Agreement. If a Party advises the other Party of any such matter with respect to
a deemed material breach by the advising Party, the other Party shall have the
right to terminate this Agreement in accordance with and subject to the
provisions of Sections 9.1(e) or (f), as the case may be. If a Party advises the
other Party of any such matter with respect to a deemed material breach by the
other Party, the advising Party shall have the right to terminate this Agreement
in accordance with and subject to the provisions of Sections 9.1(e) or (f), as
the case may be. If a Party fails to exercise its termination right, the written
notice under this Section 6.9(a) will be deemed to have amended this Agreement,
including the appropriate schedule, or to have qualified the applicable
representations and warranties and no indemnification may be sought with respect
to such matters.
(b) Five (5) Business Days prior to the Closing, each of the Parties
shall provide the other Party with any and all revisions, modifications and
updates to the Schedules, solely with respect to matters arising after the
Effective Date which if existing or occurring as of the Effective Date, would
have been required to be set forth or described in such Schedules, such that the
Schedules will be true and correct as of such date of delivery. To the extent
that such revisions, modifications and updates do not, either individually or in
the aggregate, create a Material Adverse Effect or a Buyer Material Adverse
Effect, then such revisions, modifications and updates shall be deemed to be
automatically incorporated into the Schedules.
6.10. Employees.
(a) Buyer shall offer employment, commencing as of the Closing, to all
Palisades Employees and Big Rock ISFSI Employees employed immediately prior to
the Closing, which Palisades Employees and Big Rock ISFSI Employees are set
forth on Schedule 6.10(a), as amended between the Effective Date and the Closing
Date to reflect any changes in the identities of work force personnel.
Notwithstanding the foregoing any individual who is absent from service due to
illness, leave of absence, military service or otherwise on the Closing Date
shall not be considered a Palisades Employee or a Big Rock ISFSI Employee (and
shall not be entitled to any wages, compensation, or benefits from Buyer) unless
or until such individual returns to work and is actively employed by Buyer no
later than fifty-two (52) weeks from the date his/her leave began or such later
date as required by Law or the Collective Bargaining Agreement, in which case
any wages, compensation, or benefits eligibility shall be prospective only, from
the date of such individual's active employment with Buyer. Each offer of
employment made by Buyer to a Palisades Employee or a Big Rock ISFSI Employee
shall be consistent with the standard hiring practices and employment
prerequisites of Buyer (applied consistent with Buyer's past practices), and to
the receipt by Buyer of confirmation from Seller
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or NMC that such individual (i) is currently performing and is qualified,
licensed, certified, or trained in accordance with any applicable requirement of
Governmental Authority to perform the duties and responsibilities of his or her
current job assignment or the position to be offered to him or her by Buyer; and
(ii) has the appropriate nuclear power plant access authorization. At the
Closing, Buyer shall assume the Collective Bargaining Agreement and shall assume
all of Seller's or NMC's obligations under the Collective Bargaining Agreement
with respect to each Bargaining Unit Transferred Employee as of the date he or
she commences employment with Buyer, including the provision of retirement and
insurance benefits, for the remainder of the term of the Collective Bargaining
Agreement. For purposes of this Section 6.10, Buyer shall include any Affiliate
of Buyer which offers employment to Palisades Employees or Big Rock ISFSI
Employees. Buyer does not assume any Liability under the Collective Bargaining
Agreement or otherwise with respect to any Palisades Employee unless and until
he or she becomes a Transferred Employee. Buyer's agreement to offer employment
to the Palisades Employees and Big Rock ISFSI Employees under this Section
6.10(a) shall not constitute an employment agreement or contract with any
Palisades Employee or Big Rock ISFSI Employee, and each Transferred Employee
shall be an "at-will" employee, subject to the Collective Bargaining Agreement,
if applicable.
(b) Each Palisades Employee or Big Rock ISFSI Employee who is offered,
accepts and commences employment with Buyer will be referred to herein as a
"Transferred Employee." With respect to each Big Rock ISFSI Employee who is a
Transferred Employee, Buyer shall not be required to provide any replacement
welfare, benefit, defined benefit or retiree coverages or plans separate from or
in addition to those being provided to the other Transferred Employees
hereunder. If, but only if, any Big Rock ISFSI Employee participates in a plan
or has a coverage as of the Effective Date identified in Schedules 4.8 or 4.9(a)
that is being replicated by Buyer hereunder, then such Big Rock ISFSI Employee
shall be permitted to participate in such replicated plan or coverage of Buyer.
Otherwise, such Big Rock ISFSI Employees shall be treated for all purposes under
this Agreement as Non-Bargaining Unit Transferred Employees.
(c) For the period commencing on the Closing Date and ending
thirty-six (36) months thereafter (regardless of whether a Non-Bargaining Unit
Transferred Employee becomes a Non-Bargaining Unit Transferred Employee after
the Closing Date), except as Buyer and any Non-Bargaining Unit Transferred
Employee may otherwise mutually agree, Buyer shall provide Non-Bargaining Unit
Transferred Employees with annualized total compensation, including base pay,
authorized overtime, bonuses, incentive compensation and benefits provided under
all applicable employee benefits plans and programs, and fringe benefit
arrangements (other than severance benefits, which are as set forth in Section
6.10(m)) (collectively, "Total Compensation") that in the aggregate is
comparable in value to the Non-Bargaining Unit Transferred Employees' annualized
Total Compensation immediately prior to the Closing Date. For the period
commencing on the Closing Date and ending on the date on which the Collective
Bargaining Agreement expires or terminates (such date, the "CBA Termination
Date"), except as Buyer and any Bargaining Unit Transferred Employee may
otherwise mutually agree, Buyer shall provide Bargaining Unit Transferred
Employees with Total Compensation in accordance with the terms set forth in the
Collective Bargaining Agreement. Notwithstanding anything to the contrary
herein, Buyer shall take all actions necessary to comply with the requirements
of MCL Section 460.10p, to the extent applicable.
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(d) Effective as of the Closing Date or such later date as they become
Transferred Employees, all Transferred Employees shall cease to participate in
the Employee Welfare Benefit Plans maintained or sponsored by NMC, Seller or
their Affiliates and shall commence participation (if applicable eligibility
requirements are satisfied) in the Employee Welfare Benefit Plans of Buyer or
its Affiliates (the "Replacement Welfare Plans") that (i) for Non-Bargaining
Unit Transferred Employees, will, when combined with the other elements of Total
Compensation, provide benefits and coverage that are comparable on average to
the benefits and coverage provided to the Non-Bargaining Unit Transferred
Employees on average under NMC's, Seller's, or their Affiliates', as the case
may be, Employee Welfare Benefit Plans in effect for the Non-Bargaining Unit
Transferred Employees immediately prior to the Closing Date and (ii) for
Bargaining Unit Transferred Employees, will provide benefits and coverage in
accordance with the terms set forth in the Collective Bargaining Agreement.
Buyer shall not be obligated to maintain such benefits and coverage in the
Replacement Welfare Plans as described in the preceding sentence (regardless of
whether any Transferred Employee becomes a Transferred Employee after the
Closing Date) (A) beyond the 36-month period following the Closing Date with
respect to Non-Bargaining Unit Transferred Employees, and (B) beyond the
remaining term of the Collective Bargaining Agreement with respect to Bargaining
Unit Transferred Employees. Buyer shall (i) waive all limitations as to
pre-existing condition exclusions and waiting periods with respect to the
Transferred Employees under the Replacement Welfare Plans, other than, but only
to the extent of, limitations or waiting periods that were in effect with
respect to such employees under the corollary Employee Welfare Benefit Plans
maintained by NMC, Seller or their Affiliates and that have not been satisfied
as of the Closing Date, and (ii) provide each Transferred Employee with credit
for any coinsurance limit payments and deductibles paid prior to the Closing
Date during a plan year under NMC's, Seller's or their Affiliates' plans that
have not ended as of the Closing Date, in satisfying any deductible or
coinsurance limit requirements under the Replacement Welfare Plans (on a
pro-rata basis in the event of a difference in plan years). In administering any
lifetime maximum claims amount, Buyer and its Affiliates shall reserve the right
to recognize claims under the corollary Employee Welfare Benefit Plans
maintained by NMC, Seller or their Affiliates.
(e) Other than with respect to Buyer's replacement 401(k) plans and
defined contribution plans, Replacement Defined Benefit Plans and Replacement
Retiree Coverages which are governed by Sections 6.10(f), (g) and (l),
respectively, Buyer shall give all Transferred Employees credit for all service
with NMC, Seller and their Affiliates under all Employee Welfare Benefit Plans
and all fringe benefit plans, programs and arrangements of Buyer ("Replacement
Benefit Plans") in which they become participants to the extent such service
would be credited under the corollary plans and arrangements maintained by NMC,
Seller or their Affiliates ("Credited Service"). The Credited Service given is
for purposes of eligibility, vesting and service related level of benefits, but
not benefit accrual (except as provided in the following sentence). For purposes
of benefit accrual, Buyer shall give Transferred Employees credit for all
Credited Service with NMC, Seller and their Affiliates under all Replacement
Benefit Plans, but the ultimate benefits provided under Replacement Benefit
Plans shall be offset by the corresponding benefits previously provided by NMC,
Seller or their Affiliates or benefit plans of NMC, Seller or their Affiliates,
or by the corresponding benefits accrued under the benefit plans of Seller or
its Affiliates or otherwise committed to be provided by NMC, Seller or their
Affiliates in the future.
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(f) Effective as of the Closing Date or such later date as they become
Transferred Employees, Buyer agrees to allow the Non-Bargaining Unit Transferred
Employees to be eligible to commence participation in one or more tax-qualified
401(k) plans sponsored by Buyer or its Affiliates that will, when combined with
the other elements of Total Compensation, provide benefits which in the
aggregate are comparable in value to the benefits provided to the Non-Bargaining
Unit Transferred Employees under the tax-qualified 401(k) plans sponsored by NMC
or its Affiliates in effect for Non-Bargaining Unit Transferred Employees
immediately prior to the Closing Date (the "Existing Savings Plans"). Effective
as of the Closing Date, or such later date as they become Transferred Employees,
Buyer agrees to allow the Bargaining Unit Transferred Employees to commence
participation in one or more tax-qualified 401(k) plans sponsored by Buyer or
its Affiliates that will provide benefits in accordance with the terms set forth
in the Collective Bargaining Agreement. In addition, Buyer agrees to allow the
Bargaining Unit Transferred Employees who participate in the Consumers Defined
Company Contribution Plan (the "Palisades Defined Contribution Plan"), effective
on the Closing Date, or such later date as they become Transferred Employees, to
be eligible to commence participation in one or more defined contribution plans
that will provide benefits which are equivalent in value to the benefits
provided to such employees under the Palisades Defined Contribution Plan. Buyer
shall give all Transferred Employees credit for all service with NMC, Seller and
their Affiliates under Buyer's replacement 401(k) plans and defined contribution
plans in which they become participants to the extent such service would be
credited under the Existing Savings Plans and the Palisades Defined Contribution
Plan, provided that such service credit shall be given only for purposes of
eligibility and vesting, but not benefit accrual. Buyer shall not be obligated
to maintain such participation and benefits under such defined contribution
plans (regardless of whether any Transferred Employee becomes a Transferred
Employee after the Closing Date) (A) beyond the 36-month period following the
Closing Date with respect to Non-Bargaining Unit Transferred Employees, and (B)
beyond the remaining term of the Collective Bargaining Agreement with respect to
Bargaining Unit Transferred Employees (provided, however, that if changes in the
Collective Bargaining Agreement or the Law, or failure to otherwise meet any
legal qualification requirements under existing Law, require(s) any terms of
such defined contribution plans to be modified, or if any such terms are
required by the IRS to be modified in connection with Buyer's application for a
determination letter for such defined contribution plans, Buyer may modify such
terms to the extent that it deems necessary to comply with such Laws, IRS
directives or changes in the Collective Bargaining Agreement). To the extent
allowable by Law and the applicable Seller plan, Buyer shall take any and all
necessary action to cause the trustee of any tax-qualified defined contribution
plan of Buyer or its Affiliates in which any Transferred Employee becomes a
participant to accept a direct "rollover" in cash of all or a portion of said
employee's "eligible rollover distribution" within the meaning of Section 402 of
the Code from the Existing Savings Plans and/or the Palisades Defined
Contribution Plan, if requested to do so by the Transferred Employee. Seller
covenants that Transferred Employees shall be fully vested under the Existing
Savings Plans and the Palisades Defined Contribution Plan as of the Closing
Date.
(g)
(1) Effective as of the Closing Date or such later date as they
become Transferred Employees, Buyer shall cause to be provided to those
Transferred Employees participating in the Pension Plan for Employees of
Consumers Energy and Other CMS
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Energy Companies (the "Palisades Defined Benefit Plan") one or more defined
benefit pension plans ("Replacement Defined Benefit Plans"). The
Replacement Defined Benefit Plans shall provide benefit formulas and
provisions that are identical to the final average pay benefit plan
formulas and provisions for such Transferred Employees in the Palisades
Defined Benefit Plan effective immediately prior to the Closing. For the
purposes of this Section 6.10(g), except as required by the Collective
Bargaining Agreement or Law, or as required by the IRS in connection with
applications for determination letters for the Palisades Defined Benefit
Plan, no material change shall be made to such benefit formulas and
provisions referenced above in the Palisades Defined Benefit Plan for the
Transferred Employees after the Effective Date and prior to the Closing
without the written consent of Buyer which consent shall not be
unreasonably withheld. Buyer agrees to maintain such final average pay
benefit formulas and provisions (A) for Non-Bargaining Unit Transferred
Employees for the period commencing on the Closing Date and ending
thirty-six (36) months thereafter and (B) for Bargaining Unit Transferred
Employees commencing on the Closing Date and for the remaining term of the
Collective Bargaining Agreement, (provided, however, that if changes in the
Collective Bargaining Agreement or the Law, or failure to otherwise meet
any legal qualification requirements under existing Law, require(s) any
such terms to be modified or if any such terms are required by the IRS to
be modified in connection with Buyer's application for a determination
letter for the Replacement Defined Benefit Plans, Buyer may modify such
terms to the extent that it deems necessary to comply with such Laws, IRS
directives or changes in the Collective Bargaining Agreement). Following
the end of the 36-month period described in the preceding sentence for
Non-Bargaining Unit Transferred Employees and the end of the term of the
Collective Bargaining Agreement for Bargaining Unit Transferred Employees,
nothing in this Section 6.10(g) shall require Buyer to increase any
benefits accrued under the Replacement Defined Benefit Plans that are
attributable to Credited Service or for any other purpose.
(2) The Transferred Employees participating in the Palisades
Defined Benefit Plan shall be given credit in the Replacement Defined
Benefit Plans for all service with and compensation from NMC, Seller, or
their Affiliates as if it were service with and compensation from Buyer for
purposes of determining eligibility for benefits, the amount of any
benefits or benefit accruals, vesting and service related levels of
benefits under the Replacement Defined Benefit Plans.
(3) At least thirty (30) days prior to the Closing Date, Seller
and Buyer shall file or cause to be filed any forms 5310-A that may be
required to be submitted to the IRS in connection with the transfers
described in this Section 6.10(g). The transfers and payments described in
this Section 6.10(g) shall in no event be made prior to the thirtieth
(30th) day following the filing of such form 5310-A with the IRS. In the
event that the IRS, the PBGC or any other Governmental Authority raises any
objections to the transfer, Seller and Buyer shall cooperate in good faith
to resolve any such objections.
(4) At the Closing, Seller shall cause to be transferred from the
Palisades Defined Benefit Plan to the corresponding Replacement Defined
Benefit Plans, assets equal to Seller's good faith estimate of the amount
that is required to be transferred in compliance with the requirements of
Section 414(l) of the Code and Treasury
72
Regulation Section 1.414(l)-1 (determined under assumptions used by the
PBGC as of the Closing Date including the assumptions set forth in Schedule
6.10(g)) (the "Initial Transfer").
(5) Seller shall furnish to Buyer, within forty-five (45) days or
as soon as reasonably practicable following the Closing Date, the amount of
the accrued benefits under the Palisades Defined Benefit Plan for each
Transferred Employee, and shall provide to Buyer a complete employment
history for each Transferred Employee, including date of birth, date of
hire, credited service, vesting service, breaks in employment, monthly
pensionable earnings history, and any other information, including
actuarial assumptions, necessary for Buyer to administer the accrued
benefits transferred pursuant to this Section 6.10(g), and to permit
Buyer's actuary to review and confirm the amounts of the benefit
Liabilities determined by Seller's actuary, and shall provide Buyer with
any actuarial tables or factors which Buyer may require in order to
properly administer the accrued benefits transferred.
(6) Within one hundred fifty (150) days after the Closing Date,
Seller shall calculate the actual amount that is required to be transferred
in compliance with the requirements of Section 414(l) of the Code and
Treasury Regulation Section 1.414(l)-1 (determined under assumptions used
by the PBGC as of the Closing Date including the assumptions set forth in
Schedule 6.10(g)) (the "Actual Amount"). To the extent that the Actual
Amount is less than the Initial Transfer, the amount of such differential
(together with interest accrued thereon at the Interest Rate from and
including the Closing Date to but excluding the date of payment) shall be
transferred by the applicable Replacement Defined Benefit Plan to the
Palisades Defined Benefit Plan within 10 days of such determination. To the
extent that the Actual Amount is greater than the Initial Transfer, Seller
shall cause to be transferred from the Palisades Defined Benefit Plan to
the applicable Replacement Defined Benefit Plan the amount of such
differential (together with interest accrued thereon at the Interest Rate
from and including the Closing Date to but excluding the date of payment)
within 10 days of such determination. To the extent the Actual Amount is
less than Eighteen Million Nine Hundred Thousand Dollars ($18,900,000), the
Purchase Price shall be decreased by the amount of the shortfall as part of
the Post-Closing Adjustment, which shall be completed in the manner
specified in Section 3.3(c). During the fifty-sixth week following the
Closing, Seller shall calculate the Actual Amount (the "Additional Actual
Amount") with respect to any Transferred Employee who was not included in
the calculation of the Actual Amount referred to in the first sentence of
this Section 6.10(g)(6) and Seller shall true up, to the extent required,
the adjustment provided in the previous sentence as if the Additional
Actual Amount had been included in the original determination of the Actual
Amount.
(7) All assets transferred under this Section 6.10(g) shall be
made in cash, or in marketable securities that are reasonably acceptable to
Buyer.
(8) Upon completion of the Initial Transfer under this Section
6.10(g), all benefit payments from the Replacement Defined Benefit Plans
shall be the responsibility of Buyer. Buyer shall not assume or bear any
Liability attributable to the costs of any changes to benefit formulas or
other benefits provisions or practices with
73
respect to Transferred Employees for periods prior to the Closing that are
required by the IRS or any court regarding the Tax-qualification
requirements under Section 401(a) of the Code, or any other legal
requirements, including any age discrimination requirements.
(h) Buyer and Seller do not anticipate the issuance of any notices
pursuant to the WARN Act. Notwithstanding the foregoing, Seller agrees to timely
perform and discharge all requirements under the WARN Act and under applicable
Laws for the notification of employees arising from the sale of the Included
Assets to Buyer up to the Closing Date for those employees who will not become
Transferred Employees effective as of the Closing Date. On and after the Closing
Date, Buyer shall be responsible for performing and discharging all requirements
under the WARN Act and under applicable Laws for the notification of Transferred
Employees with respect to the Included Assets. At Closing, Seller shall provide
to Buyer a certificate setting forth the number of employees, if any, who
suffered an "employment loss," as defined under the WARN Act, at the Included
Assets in the ninety (90) days immediately preceding the Closing Date, as well
as the dates of their respective employment loss (the "WARN Certificate").
(i) On and after the Closing Date, Buyer shall be responsible for
providing COBRA continuation coverage only to Transferred Employees and
qualified beneficiaries of such employees who become entitled to COBRA
continuation coverage by reason of the occurrence of a COBRA qualifying event
after becoming Transferred Employees.
(j) Seller shall remain responsible for paying Transferred Employees
for: (1) all salary, wages, Benefit Plan benefits (excluding under the Palisades
Defined Benefit Plan), and a pro rata portion of any bonuses or incentive
compensation that were earned for time worked for Seller or its Affiliates or
NMC prior to the respective dates they become Transferred Employees; (2) any
change-of-control, retention or similar payments to Transferred Employers
arising out of the consummation of the transactions contemplated by this
Agreement; and (3) all workers' compensation, disability benefits, or life
insurance benefits for which entitlement to payment is based upon events
occurring prior to the Closing including any incurred but unreported claims
and/or unpaid insurance premiums under the Benefit Plans. At Closing, and
thereafter as they become Transferred Employees, Seller shall pay to Buyer the
cash equivalent for all vacation time, floating holidays, paid time-off plan
Liabilities (including employee purchased paid time-off), sick days, personal
days and bonuses and incentive compensation for Transferred Employees (including
amounts carried over from prior years) which have accrued prior to but remain
unpaid as of the date of commencement of employment with Buyer (holiday time
shall not be included in such payment). For purposes hereof, the foregoing
calculations shall be determined consistent with NMC's and Seller's past
practices, as applicable.
(k) Consistent with the Collective Bargaining Agreement and applicable
Law, no provision of this Agreement shall be deemed to create any express or
implied obligation for Buyer not to modify any particular compensation or
benefits provided to Bargaining Unit Transferred Employees after the Closing.
(l)
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(1) For the period commencing on the Closing Date and ending
thirty-six (36) months thereafter for Non-Bargaining Unit Transferred
Employees, and beginning on the Closing Date and for the remaining term of
the Collective Bargaining Agreement for Bargaining Unit Transferred
Employees, Buyer shall provide all Transferred Employees who retire within
such period with retiree medical, prescription drug, dental and life
insurance (and with respect to Non-Bargaining Unit Transferred Employees,
executive survivor) coverages (the "Replacement Retiree Coverages") that
are equivalent on average in value (A) with respect to Non-Bargaining Unit
Transferred Employees (other than Big Rock ISFSI Employees), to the retiree
medical, prescription drug, dental, life insurance and executive survivor
coverages available to eligible Palisades Employees who retire from Seller
or NMC immediately prior to the Closing Date, (B) with respect to Big Rock
ISFSI Employees, to the retiree medical, prescription drug, dental, life
insurance and executive survivor coverages available to eligible Palisades
Employees, but only if such Big Rock ISFSI Employees would be eligible for
such coverages if they retired from Seller or NMC immediately prior to the
Closing Date and (C) with respect to Bargaining Unit Transferred Employees,
the retiree medical, prescription drug, dental and life insurance coverages
in accordance with the terms set forth in the Collective Bargaining
Agreement (the "Palisades Retiree Coverages"). Buyer shall (i) waive all
limitations as to pre-existing condition exclusions and waiting periods
with respect to the Transferred Employees under the Replacement Retiree
Coverages, other than, but only to the extent of limitations or waiting
periods that were in effect with respect to such employees under the
Palisades Retiree Coverages and that have not been satisfied as of the
Closing Date, and (ii) provide each Transferred Employee with credit for
any coinsurance limit payments and deductibles paid prior to the Closing
Date during a plan year under each applicable Palisades Retiree Coverages
plan that has not ended as of the Closing Date, in satisfying any
deductible or coinsurance limit requirements under the Replacement Retiree
Coverages (on a pro-rata basis in the event of a difference in plan years).
Buyer shall give all Transferred Employees credit for all service with NMC,
Seller and their Affiliates with respect to the Replacement Retiree
Coverages to the extent such service would be credited under the corollary
Palisades Retiree Coverages, provided that such service credit shall be
given only for purposes of eligibility and service-related levels of
benefits. Notwithstanding the foregoing, for purposes of Replacement
Retiree Coverages with respect to the Non-Bargaining Unit Transferred
Employees who participated in the NMC retiree coverages, Buyer shall not be
required to recognize such Transferred Employees' past service with Seller,
NMC or their Affiliates for any purpose whatsoever. Effective as of the
date any Transferred Employee becomes a Transferred Employee, neither
Seller nor NMC shall have any responsibility to provide retiree medical,
dental, prescription drug, life insurance or executive survivor coverages
for such Transferred Employee. Following the end of such thirty-six month
period for Non-Bargaining Unit Transferred Employees and the end of the
term of the Collective Bargaining Agreement for Bargaining Unit Transferred
Employees, nothing in this Section 6.10(l) shall prohibit Buyer from
changing or eliminating the Replacement Retiree Coverages for Transferred
Employees who retire within such period or thereafter, including but not
limited to prohibiting Buyer from implementing retiree cost sharing or
other provisions under the Replacement
75
Retiree Coverages that do not take into account service with Seller, NMC or
their Affiliates.
(2) At the Closing, Seller shall transfer to Buyer, either in
cash or from the Consumers Energy Co. Non-Union Welfare Benefit Trust to
Provide for Retiree Health Care & Other Benefits, the Consumers Energy Co.
Non-Union Welfare Benefit Trust to Provide for Retiree Life Insurance &
Other Benefits, the Consumers Energy Co. Union Welfare Benefit Trust to
Provide for Retiree Health Care & Other Benefits and the Consumers Energy
Co. Union Welfare Benefit Trust to Provide for Retiree Life Insurance &
Other Benefits to Buyer's applicable welfare benefit trusts for the
Replacement Retiree Coverages assets equal to Seller's good faith estimate
of the product of (i) the Accumulated Postretirement Benefit Obligation
("APBO") of Transferred Employees determined as of the Closing Date under
Statement of Financial Accounting Standards Number 106 ("SFAS 106"), based
on the actuarial assumptions used by Seller for the most recent SFAS 106
measurement date prior to the Closing Date (and for this purpose, no future
medical inflation is assumed) and (ii) for Non-Bargaining Unit Transferred
Employees, the funded percentage of Seller's overall Non-union SFAS 106
APBO, and for Bargaining Unit Transferred Employees, the funded percentage
of Seller's overall Union SFAS 106 APBO (in the aggregate, the "Initial
Retiree Medical and Life Insurance Transfer"). Such funded percentages will
be determined as of the Seller's most recent SFAS 106 measurement date
prior to the Closing Date, based on the actuarial assumptions used by
Seller as of that date for SFAS 106 purposes and the fair market value of
SFAS 106 assets respectively for Non-Bargaining Unit Transferred Employees
and Bargaining Unit Transferred Employees. Such asset transfers shall be
allocated among Seller's welfare benefit trusts based on the transfer
amounts determined for Bargaining Unit Transferred Employees and
Non-Bargaining Unit Transferred Employees in accordance with the preceding
two (2) sentences. These asset transfer amounts shall be further allocated,
separately for Bargaining Unit Transferred Employees and Non-Bargaining
Unit Transferred Employees between Seller's retiree health care and retiree
life insurance trusts for the respective employee groups, in proportion to
the assets of the four (4) trusts.
(3) Within sixty (60) days after the Closing Date, Seller shall
calculate the actual amount based on the product of subclauses (i) and (ii)
in Section 6.10(l)(2) above (the "Actual Retiree Medical and Life Insurance
Amount"). To the extent that the Actual Retiree Medical and Life Insurance
Amount is less than the Initial Retiree Medical and Life Insurance
Transfer, the amount of such differential (together with interest accrued
thereon at the Interest Rate from and including the Closing Date to but
excluding the date of payment) shall be transferred by Buyer to Seller
within 10 days of such calculation. To the extent that the Actual Retiree
Medical and Life Insurance Amount is greater than the Initial Retiree
Medical and Life Insurance Transfer, the amount of such differential
(together with interest accrued thereon at the Interest Rate from and
including the Closing Date to but excluding the date of payment) shall be
transferred by Seller to Buyer within 10 days of such calculation. If the
Actual Retiree Medical and Life Insurance Amount is less than Six Million
Two Hundred Fifty Thousand ($6,250,000), the Purchase Price shall be
decreased by the amount of the shortfall as part of the Post-Closing
Adjustment. During the fifty-sixth week following
76
the Closing, Seller shall calculate the Actual Retiree Medical and Life
Insurance Amount (the "Additional Retiree Medical and Life Insurance
Amount") with respect to any Transferred Employee who was not included in
the calculation of the Actual Retiree Medical and Life Insurance Amount
referred in this Section 6.10(l)(3), and Seller shall true up, to the
extent required, the adjustment provided in the previous sentence as if the
Additional Retiree Medical and Life Insurance Amount had been included in
the original determination of the Actual Retiree Medical and Life Insurance
Amount.
(m) Except as Buyer and any Transferred Employee may otherwise
mutually agree, Buyer shall pay to each Non-Bargaining Unit Transferred Employee
whose employment is terminated without cause by Buyer or one of its Affiliates
within the period commencing on the Closing Date and ending eighteen (18) months
thereafter severance payments equal to the greater of (i) such Transferred
Employee's Total Compensation for the remainder of such eighteen (18) month
period as if still employed and (ii) an amount equal to one (1) week's base pay
for each full year of service with Seller and/or NMC (up to a maximum of thirty
(30) weeks' base pay). Buyer is not establishing any separation plan or
severance agreement, plan or coverage to replicate any separation plan or
severance agreement, plan or coverage for the Non-Bargaining Unit Transferred
Employees that is identified in Schedules 4.8 or 4.9(a) (including any
agreement, coverage or plan so identified in Schedules 4.8 or 4.9(a) as being
specifically applicable to one or more Big Rock ISFSI Employees), and Buyer
shall not be obligated to provide any Non-Bargaining Unit Transferred Employee
any severance payment or other benefits upon the termination of such
Non-Bargaining Unit Transferred Employee's employment by Buyer without cause
other than as provided in the preceding sentence. Nothing contained herein shall
alter the at-will employment relationship of any Non-Bargaining Unit Transferred
Employee.
(n) Buyer shall provide relocation assistance to any Bargaining Unit
Transferred Employee transferred more than sixty (60) miles from his/her current
place of employment to one of Buyer's other facilities, in accordance with the
terms of the Collective Bargaining Agreement.
(o) Seller shall inform Buyer of any planned termination of employment
by any executive, key employee or group of five (5) or more employees at
Palisades reasonably promptly after Seller acquires Knowledge thereof.
6.11. Risk of Loss.
(a) Prior to the Closing, Buyer shall not bear any risk of loss or
damage to the property included in the Included Assets. Seller shall replace or
repair any damage to the Included Assets in accordance with Good Utility
Practices, except as otherwise provided in paragraphs (b) or (c) below.
(b) If, before the Closing, all or any material portion of the
Included Assets are taken by eminent domain or are the subject of a pending or
(to the Knowledge of Seller) contemplated taking which has not been consummated,
Seller shall notify Buyer promptly in writing of such fact. Buyer and Seller
shall negotiate in good faith to settle the Loss resulting from such taking
(including by making a fair and equitable adjustment to the Purchase Price)
77
and, upon such settlement, consummate the transactions contemplated by this
Agreement pursuant to the terms of this Agreement. If no such settlement is
reached within sixty (60) days after Seller has notified Buyer of such taking,
and if such taking creates a Material Adverse Effect, then Buyer or Seller may
terminate this Agreement pursuant to Section 9.1(g); provided, that any such
termination notice must be given no later than ten (10) Business Days after the
expiration of such sixty (60) day period.
(c) If, before the Closing, all or any material portion of the
Included Assets is damaged or destroyed by fire, or other casualty, Seller shall
notify Buyer promptly in writing of such fact. If Seller has not notified Buyer
within fifteen (15) days after its occurrence of its intention to repair such
damage, degradation or destruction (such repair to be reasonably satisfactory to
Buyer), Buyer and Seller shall negotiate in good faith to settle the Loss
resulting from such casualty (including by making a fair and equitable
adjustment to the Purchase Price) and, upon such settlement, consummate the
transactions contemplated by this Agreement pursuant to the terms of this
Agreement. If no such settlement is reached within sixty (60) days after Seller
has notified Buyer of such casualty, and if such damage or destruction creates a
Material Adverse Effect, then Buyer or Seller may terminate this Agreement
pursuant to Section 9.1(g); provided, that any such termination notice must be
given no later than ten (10) Business Days after the expiration of such sixty
(60) day period.
6.12. Qualified Decommissioning Fund.
(a) At the Closing, Seller shall cause to be transferred to the
Trustee under the Post-Closing Decommissioning Trust Agreement all of the assets
of the Seller's Qualified Decommissioning Fund, unless prior to such time Seller
shall have received a favorable private letter ruling from the IRS in respect of
withdrawing excess decommissioning funds, as contemplated by Section 6.18, in
which case Seller shall transfer an amount equal to the Decommissioning Target
or such other amount (but not less than the Decommissioning Target) specified in
such private letter ruling (the "PLR Decommissioning Amount"). Any assets held
by Seller's Qualified Decommissioning Fund that are in excess of the PLR
Decommissioning Amount (the "Excess PLR Decommissioning Amount") shall be
retained by the Seller's Qualified Decommissioning Fund for distribution to the
Seller as provided by the private letter ruling contemplated by Section 6.18.
(b) Buyer shall take all reasonable steps necessary to satisfy any
requirements imposed by the NRC regarding the Buyer's Qualified Decommissioning
Fund, in a manner sufficient to obtain NRC approval of the transfer of Qualified
Decommissioning Fund assets from Seller to Buyer.
(c) The Parties shall not take any actions that would cause the actual
Tax consequences of the transactions contemplated by this Agreement to differ
from or be inconsistent with the Requested Rulings set forth in Section 6.18.
(d) Seller shall cause the Trustee of Seller's Qualified
Decommissioning Fund to pay final expenses for trustee and investment management
fees and other administrative expenses of Seller's Qualified Decommissioning
Fund to the extent practicable before the Closing. Seller shall cause the
Trustee of Seller's Qualified Decommissioning Fund to notify
78
Buyer in writing of any such Qualified Decommissioning Fund expenses due after
the Closing. Buyer agrees to direct the Trustee of the Post-Closing Qualified
Decommissioning Trust Agreement to pay the Qualified Decommissioning Fund
expenses identified in the preceding sentence to the extent not paid before the
Closing and such amount shall be charged against the Excess Qualified
Decommissioning Fund assets, or if such Excess Qualified Decommissioning Fund
assets are not sufficient to pay such expenses, Seller shall pay the same. Buyer
agrees to ensure that its trust agreements allow for the payment of such
expenses.
(e) Any Excess Qualified Decommissioning Fund assets transferred to
Buyer pursuant to this Section 6.12 shall be distributed to Seller if and to the
extent required by Section 6.20(c).
(f) Seller agrees not to amend Seller's Decommissioning Trust
Agreement between the date of this Agreement and the Closing Date without
Buyer's prior written consent, which shall not be unreasonably withheld, except
for any amendment which may be required to be made to the Seller's
Decommissioning Trust Agreement by any Law or to permit the transfers referred
to in this Section 6.12 or to permit return to Seller of assets of the Qualified
Decommissioning Fund in excess of the Decommissioning Target.
6.13. Spent Nuclear Fuel Fees.
Before the Closing and at all times thereafter, Seller shall remain
liable for, and pay as they come due, all Spent Nuclear Fuel Fees attributable
to electricity generated at Palisades and the Big Rock Point Plant Operating
Facility and sold prior to the Closing, including the Pre-1983 Fee, and Buyer
shall have no Liability or responsibility therefor. Buyer shall be liable for
all Spent Nuclear Fuel Fees attributable to electricity generated at Palisades
and sold after the Closing, and Seller shall have no Liability or responsibility
therefor.
6.14. Standard Spent Fuel Disposal Contract; Spent Nuclear Fuel Litigation.
(a) At the Closing, (i) Seller shall assign to Buyer, and Buyer shall
assume, Seller's rights, duties, title and interest in and to the Standard Spent
Fuel Disposal Contract (except for the obligation to pay the Pre-1983 Fee),
including, to the extent permitted by Law but subject to the Department of
Energy Claim and Section 6.14(d) below, the right to pursue and recover damages
arising post-Closing from the Department of Energy's failure to commence the
removal, transportation and acceptance or its delay in accepting Spent Nuclear
Fuel from Palisades and from the Big Rock Point Plant Operating Facility (now
located at the Big Rock ISFSI) for disposal pursuant to the Standard Spent Fuel
Disposal Contract (the "Post-Closing SNF Claim") and (ii) Buyer shall assume
title to, and responsibility for the management, storage, removal,
transportation and disposal of, all Spent Nuclear Fuel of Palisades located at
the Palisades Site and all Spent Nuclear Fuel located at the Big Rock ISFSI Site
in each case as of the Closing. Seller shall provide the required notice to the
Department of Energy of the assignment of the Standard Spent Fuel Disposal
Contract to Buyer within ninety (90) days of Closing, such notice to be in a
form reasonably acceptable to Seller and Buyer and to include a copy of this
Agreement therewith. Notwithstanding the foregoing, if a court of competent
jurisdiction finally determines that the Post-Closing SNF Claim is not
assignable hereunder, then Seller shall retain and prosecute such claim in a
manner as reasonably directed by Buyer and, to
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the extent Seller actually recovers damages relating to any Post-Closing SNF
Claim, such amounts shall paid over to Buyer after deducting therefrom any
reasonable and documented costs, fees (including, without limitation, attorney,
consultant, engineer and expert fees) and expenses related to the prosecution of
such claims.
(b) In determining the scope of the Department of Energy Claim, it
shall be assumed that Seller would have made all improvements to Palisades that
would have been required for the acceptance, removal, transportation and/or
disposal of Spent Nuclear Fuel pursuant to the Standard Spent Fuel Disposal
Contract in a timely manner and that Seller was not required to make increased
contributions to Seller's Qualified Decommissioning Fund or other
Decommissioning trust as a result of the Department of Energy's failure to
commence the removal, transportation, acceptance or any delay in accepting Spent
Nuclear Fuel from Palisades and from the Big Rock Point Plant Operating Facility
(now located at the Big Rock ISFSI) for disposal pursuant to the Standard Spent
Fuel Disposal Contract. Seller agrees not to bring any claim against the
Department of Energy (or include any such claim within the Department of Energy
Claim) asserting that the amount of the Purchase Price was diminished or that
there has been any diminution in value of the Palisades Assets at or prior to
the Closing, that the Palisades Facility was subject to a taking by eminent
domain or otherwise, or that Seller was required to make increased contributions
to Seller's Qualified Decommissioning Fund as a result of the Department of
Energy's failure to commence the removal, transportation, acceptance or any
delay in accepting Spent Nuclear Fuel from Palisades and from the Big Rock Point
Plant Operating Facility (now located at the Big Rock ISFSI) for disposal
pursuant to the Standard Spent Fuel Disposal Contract. Seller also agrees that
any diminished value claim relating to the period from and after the Closing
that it brings against the Department of Energy with respect to the Big Rock
ISFSI shall be limited to a claim for Thirty Million Dollars ($30,000,000), plus
interest from and after the Closing.
(c) Buyer acknowledges and agrees that, in connection with the
Department of Energy Claim, Seller has calculated its claim for pre-Closing
damages and taken the position with the Department of Energy that Seller would
have allocated certain queue/scheduling rights under the Standard Spent Fuel
Disposal Contract in respect of the pick-up by the Department of Energy of Spent
Nuclear Fuel from Palisades to the Big Rock Point Plant Operating Facility, such
that all Spent Nuclear Fuel from the Big Rock Point Plant Operating Facility
would have been picked-up by the Department of Energy prior to any pick-up of
Spent Nuclear Fuel from Palisades and therefore Seller would not have had to
construct the Big Rock ISFSI but for the Department of Energy's breach of the
Standard Spent Fuel Disposal Contract. Buyer agrees not to take any position
inconsistent with the foregoing or to otherwise impair the potential damages
recoverable by Seller pursuant to the Department of Energy Claim.
(d) Buyer acknowledges and agrees that (i) the Post-Closing SNF Claim
does not include, and Seller has retained, the right to claim certain
post-Closing damages under the Standard Spent Fuel Disposal Contract in respect
of the Big Rock ISFSI, as more particularly described in the definition of the
Department of Energy Claim, (ii) Seller has retained rights under the Standard
Spent Fuel Disposal Contract to the extent necessary to prosecute such claims
and (iii) it shall not to take any position inconsistent with the foregoing.
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(e) Seller acknowledges and agrees that Buyer shall be entitled to
prosecute any and all claims for post-Closing damages arising under the Standard
Spent Fuel Disposal Contract, including post-Closing damages with respect to the
Big Rock ISFSI Assets in excess of the Big Rock Amount.
(f) Buyer agrees to provide Seller with a copy within ten (10)
Business Days of receipt of all notices provided to Buyer from the Department of
Energy regarding the date on which the Pre-1983 Fee will become due and payable
in accordance with the terms of the Standard Spent Fuel Disposal Contract, and
Seller agrees to cause such amounts to be duly paid when due as provided in
Section 2.4(h), subject to any rights of set-off to which Seller may be entitled
by reason of the Department of Energy's defaults under the Standard Spent Fuel
Disposal Contract.
(g) Seller shall deliver to Buyer at the Closing security in respect
of Seller's obligation to pay the Pre-1983 Fee in the form of cash, letter(s) of
credit, or other security reasonably acceptable to Buyer in an amount not less
than the then-outstanding amount of the Pre-1983 Fee (such cash, letter of
credit or security to be adjusted not less than annually to reflect changes in
the amount of the Pre-1983 Fee due); provided, however, that if at any time the
rating of the unsecured, senior long-term debt obligations (not supported by
third-party credit enhancements) of Seller's Parent shall equal or exceed Baa3
by Moody's Investment Services, Inc. (or its successor), or BBB- by Standard and
Poor's Rating Group (or its successor), Seller shall be permitted to substitute
in lieu of such cash, letter(s) of credit or other security a guaranty of
Seller's Parent in the form attached hereto as Exhibit K (the "Consumers
Guaranty").
(h) If future litigation by Buyer against the Department of Energy for
damages from the Department of Energy's failure to commence the removal,
transportation or acceptance or its delay in accepting Spent Nuclear Fuel from
Palisades or the Big Rock Point Plant Operating Facility (now located at the Big
Rock ISFSI) should result in a final, unappealable ruling that Buyer is entitled
to damages, but that such damages, in part or in full, must be offset against
any Liability to pay the Pre-1983 Fee, then Seller shall promptly pay to Buyer
the amount of any such offset, subject to receipt by Seller of either a written
acknowledgement by the Department of Energy or a Government Order that Seller's
liability for the Pre-1983 Fee shall be reduced by the amount of any such
offset.
6.15. Department of Energy Decontamination and Decommissioning Fees.
Seller will continue to pay all Department of Energy Decontamination
and Decommissioning Fees relating to separative work units purchased and/or
consumed at Palisades and the Big Rock Point Plant Operating Facility prior to
the Closing Date, including all annual Special Assessment invoices to be issued
after the Closing Date by the Department of Energy, as contemplated by its
regulations at 10 C.F.R. Part 766 implementing Sections 1801, 1802, and 1803 of
the Atomic Energy Act.
6.16. Cooperation Relating to Insurance and Price-Anderson Act.
Until the Closing, Seller will maintain, or cause to be maintained, in
effect (i) insurance in amounts and against such risks and losses as is
customary in the commercial nuclear
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power industry and (ii) not less than the level of property damage and liability
insurance for the Facilities as in effect on the Effective Date. Seller shall
cooperate with Buyer's efforts to obtain insurance, including insurance required
under the Price-Anderson Act or other Nuclear Laws with respect to the Palisades
Assets and the Big Rock ISFSI Assets. In addition, subject to Buyer's written
commitment to satisfy its indemnification obligations under Section 8.1(a),
Seller agrees to use Commercially Reasonable Efforts to assist Buyer in making
any claims against pre-Closing insurance policies that may provide coverage
related to Assumed Liabilities and Obligations.
6.17. Release of Seller.
Buyer shall use Commercially Reasonable Efforts to support Seller's
efforts to obtain a written release of Seller effective as of the Closing with
respect to obligations arising after the Closing under any of the Seller's
Agreements, Fuel Contracts or Non-material Contracts assigned to Buyer
hereunder, provided that Buyer shall not be required to assume additional costs,
expenses or Liabilities in connection therewith.
6.18. Private Letter Ruling.
The Parties agree to cooperate in good faith in the preparation and
joint filing of the private letter ruling request(s) to be made by Buyer and
Seller in order to obtain the Requested Rulings. Buyer and Seller shall use
Commercially Reasonable Efforts to obtain prior to the Closing Date one or more
private letter ruling(s) from the IRS (but receipt of any such letter rulings
shall not be a condition to the occurrence of the Closing) determining that (i)
the transfer of assets from the Seller's Qualified Decommissioning Fund to the
Buyer's Qualified Decommissioning Fund is a disposition that either satisfies or
is treated as satisfying the requirements of Treas. Reg. 1.468A-6(b) pursuant to
the IRS's exercise of discretion under Treas. Reg. 1.468A-6(g)(1) (including a
ruling that the Seller's Qualified Decommissioning Fund may transfer at Closing
a portion of its assets equal to the PLR Decommissioning Amount), (ii) none of
Seller, Buyer nor their respective Qualified Decommissioning Funds will
recognize gain or loss upon the transfer of assets from the Seller's Qualified
Decommissioning Fund to the Buyer's Qualified Decommissioning Fund, (iii) the
Buyer's Qualified Decommissioning Fund will be treated as satisfying the
requirements of Code Section 468A, (iv) the Buyer's Qualified Decommissioning
Fund will have a carryover Tax basis in the assets received from the Seller's
Qualified Decommissioning Fund and (v) Buyer is not treated as in constructive
receipt of any Excluded Assets comprised of any fund relating to
Decommissioning, other than the Seller's Qualified Decommissioning Fund, which
Excluded Assets shall be released from being dedicated to Decommissioning
Palisades (the "Requested Rulings"). The Requested Rulings shall be modified, as
necessary, to take into account any legislation enacted on or after the
Effective Date or any change in the Code or the Treasury Regulations promulgated
thereunder or the issuance of any notice, revenue procedure, private letter
ruling or similar administrative item by the IRS occurring on or after the
Effective Date. Neither Buyer nor Seller shall take any action that would cause
the transfer of assets from the Seller's Qualified Decommissioning Fund to the
Buyer's Qualified Decommissioning Fund to fail to be treated as satisfying the
requirements of Treas. Reg. 1.468A-6(b) (assuming solely for purposes of this
sentence that Palisades in the hands of Buyer qualifies as a "nuclear power
plant" within the meaning of Treasury Regulation Section 1.468A-1(b)(4) because
Buyer's rates for the sale or furnishing of
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electricity are not established or approved by a public utility commission or
under the jurisdiction of the Rural Electric Administration), or cause Buyer and
Seller to fail to obtain the Requested Rulings. The user fee set forth in the
applicable IRS Revenue Procedure for substantially identical letter rulings by a
common sponsor shall be shared equally by both Parties. Each Party will bear its
own legal fees with respect to any requests. The Parties agree to use
Commercially Reasonable Efforts to file the private letter ruling request
seeking the Requested Rulings within forty-five (45) days of the Effective Date.
6.19. NRC Commitments.
Following the Closing, Buyer shall maintain and operate the Facilities
in accordance with the NRC Commitments, the NRC Licenses, applicable NRC
regulations and policies and with applicable Nuclear Laws.
6.20. Decommissioning; Return of Excess Qualified Decommissioning Fund
Assets.
(a) Buyer hereby agrees that it will complete, at its expense, the
Decommissioning of the Facilities and each Site once that Site is no longer
utilized (i) in the case of Palisades, either for power generation of any kind
or for any storage of Spent Nuclear Fuel or other Nuclear Material and (ii) in
the case of the Big Rock ISFSI, for storage of Spent Nuclear Fuel or other
Greater Than Class C Waste, and that it will complete all Decommissioning
activities in accordance with all Nuclear Laws and Environmental Laws, including
applicable requirements of the Atomic Energy Act and the NRC's rules,
regulations, orders and pronouncements thereunder. The Parties acknowledge that
Seller shall have no obligation to audit, monitor or enforce rights and
obligations with respect to this Section 6.20.
(b) Buyer shall use Commercially Reasonable Efforts to obtain all
consents and approvals necessary to permit Buyer to ship Spent Nuclear Fuel and
other Nuclear Material stored at the Big Rock ISFSI from the Big Rock ISFSI to
Palisades in the event the current Law is amended to permit such storage.
(c) Without regard to the actual Decommissioning expenses incurred by
the Buyer or the Buyer's Qualified Decommissioning Fund, Buyer shall remit, or
cause Buyer's Qualified Decommissioning Fund to remit, to Seller an amount in
cash equal to (i) the assets of the Qualified Decommissioning Fund transferred
to Buyer, pursuant to Section 6.12 or Section 2.1 in excess of the
Decommissioning Target, if any, plus or less (as the case may be) (ii) earnings
(or losses) thereon accrued from and after the Closing Date to but not including
the date paid, at a rate equal to the total pre-tax return earned by the Buyer's
Qualified Decommissioning Fund during such period of time (such amounts under
clauses (i) and (ii) constituting the "Notional Investment Amount") (it being
understood earnings and losses shall be proportionately allocated to the
Notional Investment Amount), less (iii) the amount of any Income Taxes imposed
upon the Buyer's Qualified Decommissioning Fund properly allocable to the
Notional Investment Amount and any administrative expenses properly allocable to
such Notional Investment Amount (it being understood such Income Taxes and
administrative expenses shall be proportionately allocated to the Notional
Investment Amount), less (iv) any Income Taxes that would be imposed upon the
Buyer's Qualified Decommissioning Fund with respect to the distribution of such
excess to the Buyer if and to the extent that liquidation of investments would
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be required in order to make such distribution in cash in accordance with
Section 6.20(e) below or Income Taxes that would be imposed upon Buyer's
Qualified Decommissioning Fund on the distribution of assets, less (v) any
Income Tax liability that would be imposed upon Buyer upon withdrawal of the sum
required by this Section 6.20(c) from the Buyer's Qualified Decommissioning Fund
calculated by applying the then-maximum Tax rate applicable under Code Section
11 and relevant state Laws and assuming a full deduction for any state Taxes
(the "Tax Rate") (it being understood that the Income Tax basis of the assets
distributed or liquidated under clause (iv) or this clause (v) shall be
proportionate to the Income Tax basis of all of the assets in Buyer's Qualified
Decommissioning Fund), plus (vi) the net present value of any Income Tax
benefit, if any, accruing to Buyer resulting from the Buyer's obligation to make
or the making of the payment required by this Section 6.20(c) (it being
understood that to calculate the Tax benefit, the Parties shall utilize the Tax
Rate in effect on the date of payment and the long-term IRS applicable federal
rates, compounded annually, in effect on such date (or if applicable federal
rates are no longer published by the IRS, a comparable measure) less (vii)
Buyer's Qualified Decommissioning Fund Tax Amount (collectively, the "Excess
Qualified Decommissioning Fund Assets") promptly upon the occurrence of the
first to occur of the following events:
(1) The Palisades Facilities and the Palisades Site are
Decommissioned by Buyer or no funds remain in the Buyer's Qualified
Decommissioning Fund;
(2) (A) a change in the Code or the Treasury Regulations
promulgated thereunder or (B) the issuance of a notice, revenue procedure
or similar administrative item by the IRS, in either case, permitting the
Buyer without seeking a private letter ruling from the IRS to withdraw a
portion of the assets held by Buyer's Qualified Decommissioning Fund which
were transferred from Seller's Qualified Decommissioning Fund or
attributable to such assets without the imposition upon the Buyer or the
Buyer's Qualified Decommissioning Fund of any Tax (including any Tax
resulting from the failure of Buyer's Qualified Decommissioning Fund to
continue to satisfy the applicable requirements of Code Section 468A) other
than the Taxes specified in clauses (iii), (iv) and (v) above in this
Section 6.20(c); provided that Buyer shall not be required to rely on such
Code, Treasury Regulations or administrative item prior to Seller having
furnished Buyer and the Trustee of the Post-Closing Decommissioning Trust
Agreement with a legal opinion of Tax counsel (reasonably acceptable to
Buyer and the Trustee of the Post-Closing Decommissioning Trust Agreement),
in form and substance reasonably acceptable to Buyer and such Trustee, to
the effect that no Tax or penalty will be imposed upon the Buyer or the
Buyer's Qualified Decommissioning Fund (other than the Taxes specified in
clauses (iii), (iv) and (v) above in this Section 6.20(c)) in connection
with the distribution by the Buyer's Qualified Decommissioning Fund of a
specified portion of its assets to Buyer; or
(3) The receipt of a favorable private letter ruling from the IRS
that a portion of the assets of Buyer's Qualified Decommissioning Fund and
which were transferred from Seller's Qualified Decommissioning Fund or
attributable to such assets may be distributed by the Buyer's Qualified
Decommissioning Fund to the Buyer without the imposition of any Tax other
than the Taxes specified in clauses (iii), (iv) and (v)
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above in this Section 6.20(c); provided that the Buyer shall not be
required to seek such private letter ruling from the IRS unless and until
Seller shall have furnished to Buyer a legal opinion of Tax counsel
(reasonably acceptable to Buyer), in form and substance reasonably
acceptable to Buyer, to the effect that no Tax (including any Tax resulting
from the failure of Buyer's Qualified Decommissioning Fund to continue to
satisfy the applicable requirements of Code Section 468A) should be imposed
upon the Buyer or the Buyer's Qualified Decommissioning Fund (other than
the Taxes specified in clauses (iii), (iv) and (v) above in this Section
6.20(c) in connection with the distribution by the Buyer's Qualified
Decommissioning Fund of a specified portion of its assets to the Buyer, in
which case Buyer shall promptly prepare and file such private letter ruling
request and diligently pursue the same. The fees and costs in connection
with obtaining such private letter ruling shall be shared equally by Buyer
and Seller.
(d) If one of the events described in Section 6.20(c) shall have
occurred, but such event shall only permit the withdrawal of a portion, but not
all, of the Excess Qualified Decommissioning Fund assets, then the payment
obligation of Buyer contained in Section 6.20(c) shall nonetheless apply with
respect to such portion of the Excess Qualified Decommissioning Fund assets and
the provisions of Section 6.20(c) shall remain in full force and effect with
respect to any remaining Excess Qualified Decommissioning Fund assets not yet
paid to Seller.
(e) Following Closing and at all times thereafter until the Excess
Qualified Decommissioning Fund Assets are paid to the Seller pursuant to Section
6.20(c), Buyer shall (i) deliver or cause Trustee of the Buyer's Post-Closing
Decommissioning Trust Agreement to deliver to Seller all financial reports,
documents, information statements and schedules relating to the Buyer's
Qualified Decommissioning Fund promptly upon issuance thereof, (ii) provide
Seller promptly with copies of all written communications to or from the NRC and
the MPSC regarding Decommissioning of either the Big Rock ISFSI or Palisades or
regarding the level of Decommissioning funding for either Facility, including
but not limited to the periodic reports to the NRC regarding such funds, (iii)
use Commercially Reasonable Efforts to cause the Trustee to maintain all the
assets transferred by the Seller's Qualified Decommissioning Fund to the Buyer's
Qualified Decommissioning Fund in excess of the Decommissioning Target (plus all
earnings related thereto) in one separate account (the "First Decommissioning
Account") and assets in an amount equal to the Decommissioning Target (plus all
earnings related thereto) in a second separate account (the "Second
Decommissioning Account"), (iv) maintain sufficient funds in the Second
Decommissioning Account to comply with all NRC regulations, orders or directives
regarding the adequacy of Decommissioning funding, as if the First
Decommissioning Account were unavailable for Decommissioning, whether by
additional contributions or otherwise, (v) except to the extent provided in
Section 6.20(c), use Commercially Reasonable Efforts to cause the Trustee to
disburse funds from the Buyer's Qualified Decommissioning Fund only for
Decommissioning, the payment of the Buyer's Qualified Decommissioning Trust's
expenses and related purposes, and (vi) upon Decommissioning, use and exhaust
all funds in the Second Decommissioning Account before expending any funds from
the First Decommissioning Account. At Closing, all assets transferred by the
Seller's Qualified Decommissioning Fund to the Buyer's Qualified Decommissioning
Fund shall be apportioned pro rata between the First Decommissioning Account and
the Second Decommissioning Account with each account receiving an identical
percentage of each class or type of transferred assets to
85
the greatest extent possible. Each account shall be managed by the same
investment manager applying the same investment guidelines principles and all
expenses (including Taxes) shall be shared proportionately between the two
accounts. To the extent it is not possible under applicable Law to establish
separate accounts representing the First Decommissioning Account and the Second
Decommissioning Account, Buyer shall cause the Trustee of Buyer's Qualified
Decommissioning Fund to establish separate books and records containing notional
accounts for the amounts described in clause (iii) above, and Buyer shall
otherwise treat such notional accounts as separate accounts for all purposes and
comply with all of the requirements of this Section 6.20(e) with respect to such
notional accounts, as though such notional accounts were the First
Decommissioning Account and the Second Decommissioning Account, respectively.
(f) If any event described in Section 6.20(c) shall have occurred,
Buyer and Seller agree to cooperate and take all Commercially Reasonable Efforts
necessary to receive any additional consents (including any NRC consents) or to
satisfy any requirements not specified in Section 6.20(c) in order to permit the
transfers required by Section 6.20(c) above.
(g) Buyer agrees to deliver to Seller a copy of Buyer's Post-Closing
Decommissioning Trust Agreement (reflecting the requirements stated in Section
5.7) at least 20 days prior to the Closing Date and, except to the extent
required by law, to not amend the Buyer's Post Closing Decommissioning Trust
Agreement following such delivery in a manner that would be adverse to Seller,
without the Seller's prior written consent, which consent shall not be
unreasonably withheld.
6.21. Buyer's Parent Guaranty.
Buyer's Parent shall provide on the date hereof the Buyer's Parent
Guaranty to provide security for compliance with Buyer's payment obligations
under this Agreement, which guaranty shall remain in effect until the earliest
to occur of (i) all such obligations having been fully and irrevocably performed
and satisfied, (ii) the occurrence of the Closing and (iii) if applicable, the
termination of this Agreement pursuant to Section 9.1 (other than a termination
under Section 9.1(f)). If at any time there shall occur a Downgrade Event with
respect to Buyer's Parent, then Seller shall supplement the Buyer's Parent
Guaranty with either (i) a cash deposit in the amount of Thirty Million Dollars
($30,000,000), which deposit shall earn interest at the Interest Rate or (ii) a
letter of credit in the amount of Thirty Million Dollars ($30,000,000). Any such
letter of credit shall be reasonably satisfactory to Seller in form and
substance, shall be issued by a financial institution reasonably acceptable to
Seller, shall remain in effect until the expiration of the Buyer's Parent
Guaranty. Any such security shall be subject to all terms and conditions of this
Agreement otherwise applicable to the Buyer's Parent Guaranty. In the event
Buyer shall fail to provide such security within five (5) Business Days of
receipt of written notice, then a breach of this Agreement shall be deemed to
have occurred.
6.22. Nuclear Insurance Policies.
Following the Closing, Buyer shall use Commercially Reasonable Efforts
to maintain in effect policies of liability and property insurance with respect
to the ownership, operation and maintenance of the Facilities which shall afford
protection against the insurable hazards and risks with respect to which nuclear
facilities of similar size and type to the Facilities
86
customarily maintain insurance, and which meets the requirements of 10 C.F.R.
Section 50.54(w) and 10 C.F.R. Part 140. Such coverage shall include nuclear
liability insurance from ANI in such form and in such amount as will meet the
financial protection requirements of the Atomic Energy Act, and an agreement of
indemnification as contemplated by Section 170 of the Atomic Energy Act. In the
event that the nuclear liability protection system contemplated by Section 170
of the Atomic Energy Act is repealed or changed, Buyer shall use Commercially
Reasonable Efforts to maintain in effect alternate protection against nuclear
liability. In addition, Buyer shall provide the financial assurance that it will
be able to pay the retrospective premiums for the Facilities to the extent it is
liable for the same under this Agreement as prescribed by Section 170 of the
Atomic Energy Act.
6.23. No Transport or Storage of Waste.
From and after the Closing, Buyer shall not permit any Spent Nuclear
Fuel or other Nuclear Materials generated outside of the Palisades Facilities to
be transported to the Palisades Site or to be stored at the Palisades Site for
any period of time, provided this Section 6.23 shall not apply to Spent Nuclear
Fuel or other Nuclear Materials located at the Big Rock ISFSI if Buyer obtains
the necessary regulatory approvals to transport and store such Spent Nuclear
Fuel and other Nuclear Materials at the Palisades Site. From and after the
Closing, Buyer shall not permit any Spent Nuclear Fuel or other Nuclear
Material, other than that stored at the Big Rock ISFSI as of the Closing, to be
transported to the Big Rock ISFSI Site or to be stored at the Big Rock ISFSI
Site for any period of time.
6.24. Title and Survey.
(a) Seller will reimburse Buyer for fifty percent (50%) of the
premium(s) paid by Buyer for issuance of title insurance policies (including
endorsements) pursuant to and in accordance with the Approved Marked Up Title
Commitments. Buyer will make arrangements for the issuance of such policies, and
Seller shall reasonably cooperate with Buyer in connection therewith.
(b) Seller will, at its expense, deliver to Buyer as soon as
reasonably practicable but no later than December 31, 2006, revisions of the
existing survey for the Palisades Site identified as Sheridan Surveying Company
Drawing Number SF16761G, Sheet 1, Rev B, dated 3/23/06 (the "Palisades Survey")
and the existing survey for the Big Rock ISFSI Site identified as Ferguson &
Chamberlain Associates dated 10/20/2005 job SB-21094c.05 (the "Big Rock ISFSI
Survey") each to include necessary detail to constitute an "Urban ALTA/ACSM Land
Title Survey" meeting the 2005 Minimum Standard Detail Requirements for
ALTA/ACSM Land Title Surveys as adopted by the American Land Title Association
and the National Society of Professional Surveyors (a member organization of the
American Congress on Surveying and Mapping), and shall include and incorporate
items 1 through 4, 6, 10, 11a and 18 of Table A of such Minimum Standard Detail
Requirements. Each of the Palisades Survey and the Big Rock ISFSI Survey will be
certified to Buyer and the title insurance company.
(c) Buyer and Seller shall at or before Closing, enter into a license
agreement, on mutually acceptable terms (including a 99-year term), pursuant to
which Buyer shall grant Seller a non-terminable, nonexclusive license to
operate, maintain, repair, remove, upgrade,
87
modify, and replace Seller's currently existing radio communications system
antenna and related equipment, located on the "Meteorological Tower Site" (as
such term is defined in the Palisades Deed) and a right for ingress to and
egress from such Meteorological Tower Site.
(d) At the Closing, Seller will deliver a quitclaim deed conveying the
following easements: (1) easement recorded in Liber 2292, Page 598 Berrien
County records and (2) easement recorded in Liber 1009, Page 165 Allegan County
records.
6.25. Big Rock Amount.
At the Closing, Seller shall pay to Buyer an amount equal to Thirty
Million Dollars ($30,000,000) (the "Big Rock Amount"). Buyer expressly
acknowledges and agrees that, from and after the Closing Seller shall have no
further responsibility or Liability whatsoever in respect of the Big Rock ISFSI,
except for its obligations under Section 8.1, if any, and under the Power
Purchase Agreement.
6.26. Removal of Trade Names, Trademarks, etc.
Seller agrees, at Seller's expense, to remove prior to the Closing any
trade names, trademarks, logos and service marks of Consumers Energy or NMC
affixed to or appearing on any public signage, buildings, equipment or motorized
vehicles and included in the Included Assets.
6.27. Financial Assurances to the NRC.
If and to the extent required by the NRC, Buyer shall provide and
maintain sufficient financial assurances, whether in the form of a corporate
guaranty or other arrangement satisfactory to the NRC, so as to meet its license
obligations as to Palisades and the Big Rock ISFSI.
ARTICLE 7
CONDITIONS
7.1. Conditions to Obligations of Buyer.
The obligations of Buyer to purchase the Included Assets and to
consummate the other transactions contemplated by this Agreement shall be
subject to the fulfillment at or prior to the Closing of the following
conditions (any of which may be waived by Buyer prior to the Closing in whole or
in part which waiver shall be in writing and which waiver shall not be
considered a waiver of any other provision of this Agreement unless the writing
so specifically states):
(a) All applicable waiting periods under the HSR Act relating to the
consummation of the transactions contemplated hereby shall have expired or been
terminated;
(b) No preliminary or permanent injunction or other order or decree by
any federal or state court or Governmental Authority which restrains or prevents
the consummation of the transactions contemplated hereby shall have been issued
and remain in effect (each Party
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agreeing to cooperate in all efforts to have any such injunction, order or
decree lifted) and no Law shall have been enacted by any state or federal
government or Governmental Authority which prohibits the consummation of the
transactions contemplated hereby;
(c) Buyer shall have received all of Buyer's Required Regulatory
Approvals, in form and substance reasonably satisfactory to Buyer, and such
approvals shall be in full force and effect and either (i) shall be final and
non-appealable or (ii) if not final and non-appealable, shall not be subject to
the possibility of appeal, review or reconsideration which, in the reasonable
opinion of Buyer, is likely to be successful;
(d) Seller shall have received all of Seller's Required Regulatory
Approvals (other than those the failure of which to obtain would not reasonably
be expected to result in a Material Adverse Effect or a Buyer Material Adverse
Effect), none of such approvals shall contain any conditions that could
reasonably be expected to result in a Material Adverse Effect or a Buyer
Material Adverse Effect, and such approvals shall be in full force and effect
and either (i) shall be final and non-appealable or (ii) if not final and non-
appealable, shall not be subject to the possibility of appeal, review or
reconsideration which, in the reasonable opinion of Buyer (A) is likely to be
successful and (B) if successful, would reasonably be expected to create a
Material Adverse Effect or Buyer Material Adverse Effect;
(e) Seller shall have received and delivered to Buyer all third party
consents required for the transfer or assignment of all Seller's Agreements,
Fuel Contracts and, to the extent reasonably necessary to operate the
Facilities, the Transferable Permits;
(f) Seller shall have performed and complied in all material respects
with the covenants and agreements contained in this Agreement which are required
to be performed and complied with by Seller at or prior to the Closing;
(g) The representations and warranties of Seller set forth in this
Agreement that are qualified by materiality shall be true and correct as of the
Closing Date, and all other representations and warranties of Seller shall be
true and correct in all material respects as of the Closing Date, in each case
as though made at and as of the Closing Date (or, in each case, if made as of a
specified date, as of such date);
(h) Buyer shall have received a certificate from an authorized officer
of Seller, dated the Closing Date, to the effect that the conditions set forth
in Section 7.1(f) and (g) have been satisfied by Seller;
(i) Seller shall have delivered, or caused to be delivered, to Buyer
at the Closing, Seller's closing deliveries described in Section 3.6;
(j) Seller shall have delivered, or caused to be delivered, the
written consent of Michigan Department of Natural Resources (and/or other
appropriate State of Michigan agency) to the assignment from Seller to Buyer of
the Easement to Construct and Maintain Water Intake Line and Discharge Conduit
dated January 17, 1968 and recorded February 19, 1968 in Liber 570, Page 271,
Van Buren County Records;
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(k) No Buyer Material Adverse Effect or Material Adverse Effect shall
have occurred and be continuing;
(l) The lien of the Mortgage Indenture on the Included Assets shall
have been released and any documents necessary to evidence such release shall
have been delivered to Buyer;
(m) Releases pertaining to that certain Installment Sales Contract and
that certain Grant of Project Easements, each dated August 1, 1973, as
identified on Schedule 4.3(a), shall have been obtained;
(n) The Seller shall have transferred to the Trustee of the
Post-Closing Decommissioning Trust Agreement a portion or all of the assets of
Seller's Qualified Decommissioning Fund, in accordance with Section 6.12;
(o) The Ancillary Agreements shall be in full force and effect as of
the Closing;
(p) The NPPOSA shall have been terminated;
(q) Buyer shall be reasonably satisfied that no materially adverse
matters are disclosed by the updates to the Palisades Survey and the Big Rock
ISFSI Survey conducted pursuant to Section 6.24(b) that have not been previously
expressly shown on the Palisades Survey or the Big Rock ISFSI Survey or
expressly identified to Buyer in this Agreement.
(r) The Palisades Facilities shall have been operating at an average
of not less than ninety-five percent (95%) of its licensed thermal output for a
period of fourteen (14) days immediately preceding the Closing Date;
(s) Buyer shall have received from Chicago Title Insurance Company, at
Seller's sole cost (i) the Palisades Title Commitment, which shall have been
down-dated as of the Closing Date without any new or changed exceptions or
changes in Schedule A information, reflecting a coverage amount reasonably
acceptable to Buyer (not to exceed the Purchase Price) and confirming no
conditions to issuance of the title policy except for payment of the policy
premiums, except that such Palisades Title Commitment shall be marked up to
include (A) the following affirmative coverage endorsements: deletion of
standard exceptions; separate tax parcel; survey; contiguity and/or spreader;
location; owner's comprehensive; 9.0 environmental; access; creditor's rights;
3.1 zoning; and CC&R and (B) the following revisions to Schedule B, Part II
thereof: (1) the deletion of item 5 or the clarification of item 5 that it is
applicable only to Taxes that first become due and payable after the Closing;
(2) the deletion of each of items 21, 28 and 29; (3) the revision of item 24 to
clarify that the referenced mortgage therein encumbers only METC's interest
under the Amended and Restated Easement Agreement identified therein; and (4)
the limitation of the exception in item 6 to only those portions of the
Palisades Site that are specifically identified on the Palisades Survey as
updated pursuant to Section 6.24 as having been dedicated or conveyed for public
street, road or highway purposes, and (ii) the Big Rock Title Commitment, which
shall have been down-dated as of the Closing Date without any new or changed
exceptions or changes in Schedule A information, reflecting a coverage amount
reasonably acceptable to Buyer (not to exceed the Purchase Price) and confirming
no conditions
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to issuance of the title policy except for payment of the policy premiums,
except that such Big Rock Title Commitment shall be marked up to include (A) the
following affirmative coverage endorsements: deletion of standard exceptions;
separate tax parcel; survey; contiguity and/or spreader; location; owner's
comprehensive; 9.0 environmental; access; creditor's rights; 3.1 zoning; and
CC&R and (B) the following revisions to Schedule B, Part II thereof: (1) the
deletion of item 5 or the clarification of item 5 that it is applicable only to
Taxes that first become due and payable after the Closing and (2) the deletion
of each of items 7 and 9 (together, the "Approved Marked Up Title Commitments"),
and Buyer shall be reasonably satisfied that it will be able to procure two (2)
separate ALTA Owner's Title Policies, Form B, one covering the Palisades Site
and the other covering the Big Rock ISFSI Site, conforming to the Approved
Marked Up Title Commitments.
(t) Seller shall have amended its EPCRA Tier II report to include
stored amounts of boric acid and Dynacool, in addition to any other chemicals
required to be reported in such EPRCA report, and Buyer shall be reasonably
satisfied that such EPCRA report is in compliance with applicable Law;
(u) Buyer shall have entered into an agreement permitting Buyer the
continued use, after the Closing, of the Emergency Operations Facility known as
the Allegan Service Center as an alternative off-Site relocation and mustering
or assembly facility on terms and conditions reasonably satisfactory to Buyer;
(v) Buyer shall have entered into an agreement providing for the
purchase of energy for the operation of Palisades for station service, backup
and outage power when it is not self supplying such energy upon terms and
conditions reasonably acceptable to Buyer, and such agreement shall be in full
force and effect;
(w) Buyer and Seller shall have entered into an agreement satisfying
the applicable NRC Licenses and operating requirements providing energy from the
Consumers Energy Ludington Pumped Storage Facility to Buyer at the transmission
interconnection point for such facility. With respect to so called "black start"
power during periods when Palisades is not operating and energy is not otherwise
available, upon terms and conditions reasonably acceptable to Buyer and Seller,
and such agreement shall be in full force and effect;
(x) Seller shall have repaired in accordance with Good Utility
Practices the crane which was damaged in the 2006 refueling outage; and
(y) Seller shall have fully paid Babcock & Wilcox Canada, Ltd. and any
of its subcontractors all amounts due as of Closing with respect to the design
and fabrication of the Palisades replacement reactor head (the "Head"), pursuant
to Purchase Order P804313 Rev. 1 and Value Contract No. 30000445 for Reactor
Vessel Closure Head Supply (the "Head Contract") (only to the extent that such
amounts have not been paid prior to Closing or have not been otherwise already
included in the calculation of the Capital Expenditures Shortfall), all work
with respect thereto required to be completed at or prior to the Closing shall
have been completed in accordance with the specifications of the Head Contract
and the requirements of all applicable Governmental Authorities, each party to
the Head Contract shall be in compliance with the material terms thereof, and
Buyer shall be reasonably satisfied that the Head will be
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capable of being installed and operated in accordance with the Head Contract,
applicable Law and Good Utility Practices.
7.2. Conditions to Obligations of Seller.
The obligation of Seller to sell the Included Assets and to consummate
the other transactions contemplated by this Agreement shall be subject to the
fulfillment at or prior to the Closing of the following conditions (any of which
may be waived by Seller prior to the Closing in whole or in part which waiver
shall be in writing and which waiver shall not be considered a waiver of any
other provision of this Agreement unless the writing so specifically states):
(a) All applicable waiting periods under the HSR Act relating to the
consummation of the transactions contemplated hereby shall have expired or been
terminated;
(b) No preliminary or permanent injunction or other order or decree by
any federal or state court or Governmental Authority which restrains or prevents
the consummation of the transactions contemplated hereby shall have been issued
and remain in effect (each Party agreeing to cooperate in all efforts to have
any such injunction, order or decree lifted) and no Law shall have been enacted
by any state or federal government or Governmental Authority in the United
States which prohibits the consummation of the transactions contemplated hereby;
(c) Seller shall have received all of the Seller's Required Regulatory
Approvals, in form and substance reasonably satisfactory to Seller, and such
approvals shall be in full force and effect and either (i) shall be final and
non-appealable or (ii) if not final and non-appealable, shall not be subject to
the possibility of appeal, review or reconsideration which, in the reasonable
opinion of the Seller, is likely to be successful;
(d) Buyer shall have received all Buyer's Required Regulatory
Approvals (other than those the failure of which to obtain would not reasonably
be expected to result in a Material Adverse Effect, a material adverse effect on
the business, assets, operations or condition (financial or otherwise) of
Seller, or a Buyer Material Adverse Effect), none of such approvals shall
contain any conditions that could reasonably be expected to result in a Material
Adverse Effect, a material adverse effect on the business, assets, operations or
condition (financial or otherwise) of Seller, or a Buyer Material Adverse
Effect, and such approvals shall be in full force and effect and either (i)
shall be final and non-appealable or (ii) if not final and non-appealable, shall
not be subject to the possibility of appeal, review or reconsideration which, in
the reasonable opinion of Seller (A) is likely to be successful and (B) if
successful, would reasonably be expected to create a Material Adverse Effect, a
material adverse effect on the business, assets, operations or condition
(financial or otherwise) of Seller or a Buyer Material Adverse Effect;
(e) Buyer shall have performed and complied with in all material
respects the covenants and agreements contained in this Agreement which are
required to be performed and complied with by Buyer at or prior to the Closing;
(f) The representations and warranties of Buyer set forth in this
Agreement that are qualified by materiality shall be true and correct as of the
Closing Date and all other representations and warranties of Buyer shall be true
and correct in all material respects as of the
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Closing Date, in each case as though made at and as of the Closing Date (or, in
each case, if made as of a specified date, as of such date);
(g) Seller shall have received a certificate from an authorized
officer of Buyer, dated the Closing Date, to the effect that the conditions set
forth in Sections 7.2(e) and (f) have been satisfied;
(h) Buyer shall have delivered, or caused to be delivered, to Seller
at the Closing, Buyer's Closing deliveries described in Section 3.7;
(i) No Buyer Material Adverse Effect shall have occurred and be
continuing;
(j) Releases pertaining to that certain Installment Sales Contract and
that certain Grant of Project Easements, each dated August 1, 1973, as
identified on Schedule y4.3(a), shall have been obtained; and
(k) The Ancillary Agreements shall be in full force and effect as of
the Closing.
ARTICLE 8
INDEMNIFICATION
8.1. Indemnification.
(a) Following the Closing, Buyer shall indemnify, defend and hold
harmless Seller, its Affiliates, and each of their respective officers,
directors, employees, shareholders and agents (each, a "Seller Indemnitee") from
and against any and all claims, demands, suits, losses, liabilities, damages,
obligations, payments, costs and expenses (including the costs and expenses of
any and all actions, suits, proceedings, assessments, judgments, settlements and
compromises relating thereto and reasonable attorneys' fees and reasonable
disbursements in connection therewith) (each, an "Indemnifiable Loss"), asserted
against or suffered by any Seller Indemnitee relating to, resulting from or
arising out of (i) any breach by Buyer of the representations and warranties
that survive the Closing or any covenants contained in this Agreement, (ii) the
Assumed Liabilities and Obligations, (iii) any Third Party Claims against a
Seller Indemnitee arising out of or in connection with acts or omissions of
Buyer or Buyer's Parent related to the consummation of the transactions
contemplated by this Agreement or Buyer's ownership or operation of the Included
Assets following the Closing (other than any Third Party Claims that are
Excluded Liabilities) or (iv) fraud, intentional misrepresentation or a
deliberate or willful breach (without giving effect to any supplement to the
schedules) by Buyer of any representation, warranty or covenant under this
Agreement or in any certificate, schedule or exhibit pursuant hereto.
(b) Following the Closing, Seller shall indemnify, defend and hold
harmless Buyer, its Affiliates, and each of their respective officers,
directors, members, employees, shareholders and agents (each, a "Buyer
Indemnitee") from and against any and all Indemnifiable Losses asserted against
or suffered by any Buyer Indemnitee relating to, resulting from or arising out
of (i) any breach by Seller of the representations and warranties that survive
the Closing or any covenants contained in this Agreement, (ii) the Excluded
Liabilities, (iii) any
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Third Party Claims against a Buyer Indemnitee arising out of or in connection
with acts or omissions of Seller related to the consummation of the transactions
contemplated by this Agreement or Seller's or NMC's ownership or operation of
the Included Assets on or prior to the Closing, including the claim referenced
in Schedule 4.18 (other than any Third Party Claims that are Assumed Liabilities
and Obligations), (iv) fraud, intentional misrepresentation or a deliberate or
willful breach by Seller of any representation, warranty or covenant under this
Agreement or in any certificate, schedule or exhibit pursuant hereto or (v) the
exercise by Seller of any rights of set-off to which Seller may assert as
against Seller's obligation to pay the Pre-1983 Fee, as described in Section
6.14(f), by reason of the Department of Energy's defaults under the Standard
Spent Fuel Disposal Contract.
(c) In addition to Seller's obligation set forth in Section 8.1(b),
Seller shall indemnify, defend and hold harmless any Buyer Indemnitee from
Indemnifiable Losses with respect to the Palisades Assets under or related to
Environmental Laws that were, prior to, on or after the Closing Date, caused (or
allegedly caused) by the Release of Hazardous Materials at, on, in, under,
adjacent to or migrating from the Palisades Assets prior to the Closing Date.
Seller's obligations to indemnify Buyer pursuant to this Section 8.1(c) shall
survive the Closing for a period of three (3) years and any claim for
indemnification hereunder shall be brought prior to the third anniversary of the
Closing Date, or not at all. If Buyer makes a claim for indemnification pursuant
to this Section 8.1(c), Buyer shall be barred from making the same claim for a
breach of a representation or warranty pursuant to Section 8.1(b) hereof and
likewise, claims made under Section 8.1(b) may not also be made under this
Section 8.1(c). In regard to the matters covered by this Section 8.1(c)y, each
Party shall at all times act reasonably so as to avoid unnecessarily exposing
the other Party to liability or to otherwise unnecessarily cause the other Party
to incur costs or expenses.
(d) Following the Closing, the expiration or termination of any
representation, warranty, covenant or agreement shall not affect the Parties'
obligations under this Section 8.1 if the Person entitled to indemnification
hereunder (an "Indemnitee") provided the Person required to provide
indemnification under this Agreement (the "Indemnifying Party") with proper
notice of the claim or event for which indemnification is sought prior to such
expiration or termination.
(e) The Parties agree to treat all payments relating to
indemnifications as adjustments to the Purchase Price to the extent allowed by
Law.
8.2. Limitations on Indemnification.
(a) No Indemnitee shall be entitled to assert any right to
indemnification under Section 8.1(a)(i), 8.1(b)(i), or 8.1(c) until the amount
of Indemnifiable Losses actually suffered by such Indemnitee exceeds One Million
Dollars ($1,000,000) with respect to any individual claim or Three Million
Dollars ($3,000,000) in the aggregate (as applicable, the "Threshold Amount") at
which point the Indemnifying Party shall only be liable for those Indemnifiable
Losses in excess of the Threshold Amount.
(b) After the occurrence of the Closing the rights and remedies of
Seller and Buyer under this Article 8 are exclusive and in lieu of any and all
other rights and remedies which Seller and Buyer may have under this Agreement
or otherwise for monetary relief, with
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respect to (i) any breach of or failure to perform any covenant, agreement, or
representation or warranty set forth in this Agreement or (ii) the Assumed
Liabilities and Obligations or the Excluded Liabilities, as the case may be. The
indemnification obligations of the Parties set forth in this Article 8 apply
only to matters arising out of this Agreement, excluding the Ancillary
Agreements. Any Indemnifiable Loss arising under or pursuant to an Ancillary
Agreement shall be governed by the indemnification obligations, if any,
contained in the Ancillary Agreement under which the Indemnifiable Loss arises.
The maximum aggregate exposure for indemnity by any Indemnifying Party hereunder
for any and all Indemnifiable Losses under this Agreement (other than arising
out of claims for breach of the representations and warranties contained in
Sections 4.17 and 5.7, as applicable) shall be Thirty Million Dollars
($30,000,000); provided, that the foregoing limitation shall not prevent
recovery under this Article 8 by an Indemnitee of Indemnifiable Losses arising
out of Third Party Claims.
(c) Notwithstanding the foregoing or anything to the contrary herein,
the dollar deductibles and limitations set forth in Sections 8.2(a) and (b)
shall not apply with respect to (i) claims arising under Sections 4.1
(Organization), 4.2 (Authority Relative to this Agreement), (No Violation), 4.5
(Title and Related Matters), 4.9 (ERISA; Benefit Plans), 4.14 (NRC Licenses),
4.17 (Qualified Decommissioning Fund), 5.1 (Organization; Qualification), 5.2
(Authority Relative to this Agreement), and Section 6.20 (Decommissioning;
Return of Excess Qualified Decommissioning Fund Assets), (ii) claims involving
fraud, intentional misrepresentation, or deliberate or willful breach or
breaches of confidentiality provisions, and (iii) claims for indemnification
under Section 8.1(b)(v).
8.3. Defense of Claims.
(a) If any Indemnitee receives notice of the assertion of any claim or
of the commencement of any claim, action, or proceeding made or brought by any
Person who is not a Party to this Agreement or any Affiliate of a Party to this
Agreement (a "Third Party Claim"), including an information document request or
a notice of proposed disallowance issued by the IRS relating to a matter covered
by Section 5.7, with respect to which indemnification is to be sought from an
Indemnifying Party, the Indemnitee shall give such Indemnifying Party reasonably
prompt written notice thereof, but in any event such notice shall not be given
later than twenty (20) days after the Indemnitee's receipt of notice of such
Third Party Claim. Such notice shall describe the nature of the Third Party
Claim in reasonable detail and shall indicate the estimated amount, if
practicable, of the Indemnifiable Loss that has been or may be sustained by the
Indemnitee. The Indemnifying Party will have the right to participate in or, by
giving written notice to the Indemnitee, to elect to assume the defense of any
Third Party Claim at such Indemnifying Party's expense and by such Indemnifying
Party's own counsel, provided that the counsel for the Indemnifying Party who
shall conduct the defense of such Third Party Claim shall be reasonably
satisfactory to the Indemnitee. The Indemnitee shall cooperate in good faith in
such defense at such Indemnitee's own expense. If an Indemnifying Party elects
not to assume the defense of any Third Party Claim, the Indemnitee may
compromise or settle such Third Party Claim over the objection of the
Indemnifying Party, which settlement or compromise shall conclusively establish
the Indemnifying Party's Liability pursuant to this Agreement; provided,
however, that the Indemnitee provides written notice to the Indemnifying Party
of its intent to settle and such notice reasonably describes the terms of such
settlement at least ten (10) Business Days prior to entering into any
settlement.
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(b) (1) If, within twenty (20) days after an Indemnitee provides
written notice to the Indemnifying Party of any Third Party Claim, the
Indemnitee receives written notice from the Indemnifying Party that such
Indemnifying Party has elected to assume the defense of such Third Party Claim
as provided in Section 8.3(a), the Indemnifying Party will not be liable for any
legal expenses subsequently incurred by the Indemnitee in connection with the
defense thereof; provided, however, that if the Indemnifying Party shall fail to
take reasonable steps necessary to defend diligently such Third Party Claim
within twenty (20) days after receiving notice from the Indemnitee that the
Indemnitee believes the Indemnifying Party has failed to take such steps, the
Indemnitee may assume its own defense and the Indemnifying Party shall be liable
for all reasonable expenses thereof.
(2) Without the prior written consent of the Indemnitee, which
consent shall not be unreasonably withheld or delayed, the Indemnifying
Party shall not enter into any settlement of any Third Party Claim which
would lead to Liability or create any financial or other obligation on the
part of the Indemnitee for which the Indemnitee is not entitled to
indemnification hereunder. If a firm offer is made to settle a Third Party
Claim without leading to Liability or the creation of a financial or other
obligation on the part of the Indemnitee for which the Indemnitee is not
entitled to indemnification hereunder and the Indemnifying Party desires to
accept and agree to such offer, the Indemnifying Party shall give written
notice to the Indemnitee to that effect. If the Indemnitee fails to consent
to such firm offer within twenty (20) days after its receipt of such
notice, the Indemnifying Party shall be relieved of its obligations to
defend such Third Party Claim and the Indemnitee may contest or defend such
Third Party Claim. In such event, the maximum Liability of the Indemnifying
Party as to such Third Party Claim will be the amount of such settlement
offer.
(c) Any claim by an Indemnitee on account of an Indemnifiable Loss
which does not result from a Third Party Claim (a "Direct Claim") shall be
asserted by giving the Indemnifying Party reasonably prompt written notice
thereof, stating the nature of such claim in reasonable detail and indicating
the estimated amount, if practicable, but in any event such notice shall not be
given later than twenty (20) days after the Indemnitee becomes aware of such
Direct Claim, and the Indemnifying Party shall have a period of twenty (20) days
within which to respond to such Direct Claim. If the Indemnifying Party does not
respond within such twenty (20) day period, the Indemnifying Party shall be
deemed to have accepted such claim. If the Indemnifying Party rejects such
claim, the Indemnitee will be free to seek enforcement of its right to
indemnification under this Agreement.
(d) The amount of any Indemnifiable Loss shall be reduced to the
extent that the Indemnitee receives any insurance proceeds with respect to an
Indemnifiable Loss. If the amount of any Indemnifiable Loss, at any time
subsequent to the making of an indemnity payment in respect thereof, is reduced
by recovery, settlement or otherwise under or pursuant to any insurance
coverage, or pursuant to any claim, recovery, settlement or payment by, from or
against any other entity, the amount of such reduction, less any costs, expenses
or premiums incurred in connection therewith (together with interest accrued
thereon at the Interest Rate from and including the date of payment thereof to
but excluding the date or repayment) shall promptly be repaid by the Indemnitee
to the Indemnifying Party. Upon making any indemnity payment, the Indemnifying
Party shall, to the extent of such indemnity payment, be subrogated to all
rights
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of the Indemnitee against any third party in respect of the Indemnifiable Loss
to which the indemnity payment relates.
(e) A failure to give timely notice as provided in this Section 8.3
shall not affect the rights or obligations of any Party hereunder except if, and
only to the extent that, as a result of such failure, the Party that was
entitled to receive such notice was actually prejudiced as a result of such
failure.
ARTICLE 9
TERMINATION AND REMEDIES
9.1. Termination.
(a) This Agreement may be terminated at any time prior to the Closing
by mutual written consent of Seller and Buyer.
(b) This Agreement may be terminated by Seller or Buyer, if (i) any
Governmental Authority shall have enacted a Law or issued a Governmental Order
permanently restraining, enjoining or otherwise prohibiting the transactions
contemplated hereby, and in the case of a Governmental Order, it shall have
become final and nonappealable; or (ii) the Closing contemplated hereby shall
have not occurred on or before the date that is eighteen (18) months following
the date of this Agreement (the "Termination Date"); provided, that the right to
terminate this Agreement under this Section 9.1(b)(ii) shall not be available to
any Party whose failure to fulfill any obligation under this Agreement has been
the cause of, or resulted in, the failure of the Closing to occur on or before
such date and provided, further, that if on the Termination Date the conditions
to the Closing set forth in Sections 7.1(c), 7.1(d), 7.2(c) or 7.2(d) shall not
have been fulfilled but all other conditions to the Closing shall be fulfilled
or shall have been capable of being fulfilled, or shall have been waived, then
the Termination Date shall be the date that is twenty-four (24) months following
the Effective Date.
(c) This Agreement may be terminated by Buyer prior to the Closing if
any of Seller's Required Regulatory Approvals or Buyer's Required Regulatory
Approvals, the receipt of which is a condition to the obligation of Buyer to
consummate the Closing as set forth in Sections 7.1(c) and 7.1(d), shall have
been denied in a final, non-appealable Governmental Order or shall have been
granted subject to, or containing terms or conditions that prevents the
satisfaction of one or more of Buyer's conditions to Closing as set forth in
Sections 7.1(c) and 7.1(d), as applicable.
(d) This Agreement may be terminated by Seller prior to the Closing if
any of the Seller's Required Regulatory Approvals or Buyer's Regulatory
Approvals, the receipt of which are a condition to the obligation of Seller to
consummate the Closing as set forth in Sections 7.2(c) and 7.2(d), shall have
been denied in a final, non-appealable Governmental Order or shall have been
granted subject to, or containing terms or conditions that prevents the
satisfaction of one or more of Seller's conditions to Closing as set forth in
Sections 7.2(c) and 7.2(d), as applicable.
(e) This Agreement may be terminated by Buyer prior to the Closing if
there has been a breach by Seller of any applicable covenant, representation or
warranty contained in
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this Agreement constituting a Material Adverse Effect, such breach has not been
waived by Buyer, and such breach is not cured by the earlier of the Termination
Date or thirty (30) days after receipt by Seller (or Buyer in the case of notice
by Seller pursuant to Section 6.9) of written notice specifying particularly
such breach (provided that in the event Seller is attempting to cure the breach
in good faith, then Buyer may not terminate pursuant to this provision unless
the breach is not cured by the Termination Date).
(f) This Agreement may be terminated by Seller prior to the Closing if
there has been a material breach by Buyer of any covenant, representation or
warranty contained in this Agreement, such material breach has not been waived
by Seller and such material breach is not cured by the earlier of the
Termination Date or thirty (30) days after receipt by Buyer (or by Seller in the
case of notice by Buyer pursuant to Section 6.9) of written notice specifying
particularly such breach (provided that in the event Buyer or Buyer's Parent, as
the case may be, is attempting to cure the breach in good faith, then Seller may
not terminate pursuant to this provision unless the breach is not cured by the
Termination Date).
(g) This Agreement may be terminated by Buyer or Seller in accordance
with the provisions of Sections 6.11(b) or (c).
(h) This Agreement may be terminated by Buyer prior to the Closing if
any "extraordinary nuclear occurrence" or "nuclear incident" or "precautionary
evacuation" (as such terms are defined in the Atomic Energy Act), other than the
nuclear incident at Three Mile Island in 1979, occurs at either Site or at any
other licensed nuclear reactor sited in the United States.
9.2. Procedure and Effect of No Default Termination.
In the event of termination of this Agreement by Seller or Buyer
pursuant to Section 9.1, written notice thereof shall promptly be given by the
terminating Party to the other Party, and this Agreement shall thereupon
terminate. In the event a Party terminates this Agreement pursuant to Section
9.1, except as otherwise provided in Section 9.3, such termination shall be the
sole and exclusive remedy of the Parties with respect to breaches of any
agreement, covenant, representation or warranty. Following any such termination,
Buyer and Seller will continue to be bound by the obligations set forth in
Sections 6.2(b) and 6.5. If this Agreement is terminated as provided herein, all
filings, applications and other submissions made to any Governmental Authority
shall, to the extent practicable, be withdrawn from the Governmental Authority
to which they were made.
9.3. Remedies.
(a) Notwithstanding anything herein to the contrary, if this Agreement
is terminated pursuant to Section 9.1(e) or 9.1(f), the terminating Party may
pursue any rights or remedies available at Law or in equity. If either Party
elects to pursue singularly any remedy available to it under this Section 9.3,
then such Party may at any time thereafter continue to pursue or cease pursuing
that remedy and simultaneously elect to pursue any other remedy available to it
under this Section 9.3.
(b) Without limiting the generality of this Section 9.3, each of the
Parties acknowledges and agrees that the other Party would be damaged
irreparably in the event any of
98
the provisions of this Agreement are not performed in accordance with their
specific terms or otherwise are breached prior to the Closing. Accordingly, each
of the Parties agrees that the other Party shall be entitled to an injunction or
injunctions (preliminary, special and/or permanent) to prevent breaches of the
provisions of this Agreement and to enforce specifically this Agreement and the
terms and provisions hereof, in addition to any other remedy to which they may
be entitled, at law or in equity.
ARTICLE 10
MISCELLANEOUS PROVISIONS
10.1. Limitation of Liability; Waiver of Certain Damages.
Notwithstanding anything to the contrary herein, except in the case of
a Third Party Claim, or a Direct Claim that relates to a Third Party Claim, no
Party or Indemnitee shall be entitled to recover from any other Party (including
an Indemnifying Party) any liabilities, damages, obligations, payments, losses,
costs or expenses any amount in excess of the actual compensatory damages, court
costs and reasonable attorney's and other advisor fees suffered by such Party or
Indemnitee. Except for damages related to the other Party's breach of
obligations of confidentiality, Buyer, on behalf of itself and the Buyer
Indemnitees, and Seller, on behalf of itself and the Seller Indemnitees, hereby
waive any right to recover punitive, incidental, special, exemplary and
consequential damages arising in connection with or with respect to this
Agreement, including losses or damages caused by reason of unavailability of
Palisades, plant shutdowns or service interruptions, loss of use, profits or
revenue, inventory or use charges, cost of purchased or replacement power,
interest charges or cost of capital; provided, however, that for sake of clarity
the Parties acknowledge and agree that punitive, incidental, special, exemplary
or consequential damages that are an element of a Third Party Claim or a Direct
Claim that relates to a Third Party Claim, shall constitute Indemnifiable Losses
hereunder and as such are direct damages as between the Parties.
10.2. Amendment and Modification.
Subject to applicable Law, this Agreement may be amended, modified or
supplemented only by written agreement of Seller and Buyer.
10.3. Waiver of Compliance; Consents.
Except as otherwise provided in this Agreement, any failure of any of
the Parties to comply with any obligation, covenant, agreement or condition
herein may be waived, in whole or in part, by the Party entitled to the benefits
thereof only by a written instrument signed by the Party granting such waiver,
but such waiver of such obligation, covenant, agreement or condition shall not
operate as a waiver of, or estoppel with respect to, any subsequent failure to
comply therewith.
10.4. Survival of Representations, Warranties, Covenants and Obligations.
(a) The representations and warranties contained in this Agreement
shall survive the Closing for a period of eighteen (18) months from the Closing
Date except that (i) all representations and warranties set forth in Section 4.7
(Environmental Matters) shall survive the
99
Closing for a period of three (3) years from the Closing Date, (ii) all
representations and warranties set forth in Sections 4.9 (ERISA; Benefit Plans),
4.14 (NRC Licenses), and any claim with respect to fraud, intentional
misrepresentation or a deliberate or willful breach by Seller or Buyer shall
survive the Closing until the expiration of the applicable statutory period of
limitation plus any extensions or waivers thereof and (iii) all representations
and warranties set forth in Sections 4.1 (Organization), 4.2 (Authority Relative
to this Agreement), 4.5(a) and (b) (Title and Related Matters), 4.17 (Qualified
Decommissioning Fund) (except with respect to 4.17(a)(ii), (iv), (v), and (vi),
and 4.17(d)(ii) and 4.17(f)), 5.1 (Organization; Qualification), 5.2 (Authority
Relative to this Agreement), 5.7 (Transfer of Assets of Qualified
Decommissioning Fund) and 6.7 (Brokerage Fees and Commissions) hereof shall
survive the Closing indefinitely. Each Party shall be entitled to rely upon the
representations and warranties of the other Party set forth herein,
notwithstanding any investigation or audit conducted prior to or following the
Closing or the decision of any Party to complete the Closing.
(b) The covenants and obligations of the Parties set forth in this
Agreement, including the indemnification obligations of the Parties under
Article 8 hereof, shall (unless otherwise specifically set forth herein) survive
the Closing in accordance with their terms, and the Parties shall be entitled to
the full performance thereof by the other Parties hereto.
10.5. Notices.
All notices and other communications hereunder shall be in writing and
shall be deemed given if delivered personally or by facsimile transmission, or
mailed by overnight courier or registered or certified mail (return receipt
requested), postage prepaid, to the recipient Party at its address (or at such
other address or facsimile number for a Party as shall be specified by like
notice; provided, however, that notices of a change of address shall be
effective only upon receipt thereof):
(a) If to Seller, to:
Consumers Energy Company
One Energy Plaza
Jackson, MI 49201
Attention: Robert A. Fenech
Senior Vice President
Nuclear, Fossil & Hydro Operations
Facsimile: (517) 788-8936
with copies to:
Consumers Energy Company
One Energy Plaza
Jackson, MI 49201
Attention: General Counsel
Facsimile: (517) 788-0768
100
and
LeBoeuf, Lamb, Greene & MacRae LLP
125 West 55th Street
New York, New York 10019-5389
Attention: John D. Draghi, Esq.
Facsimile: (212) 649-0466
(b) if to Buyer, to:
Entergy Nuclear Palisades, LLC
c/o Entergy Nuclear Northeast
440 Hamilton Avenue
White Plains, NY 10601
Attention: Chief Executive Officer
Facsimile: (914) 272-3205
with a copy to:
Entergy Corporation
630 Loyola Avenue
New Orleans, LA 70113
Attention: General Counsel
Facsimile: (504) 576-4150
and with a copy to:
Entergy Nuclear, Inc.
1340 Echelon Parkway
Jackson, MS 39313
Attention: General Counsel
Facsimile: (601) 368-5694
10.6. Assignment.
This Agreement and all of the provisions hereof shall be binding upon
and inure to the benefit of the Parties hereto and their respective successors
and permitted assigns, but neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any Party hereto,
including by operation of Law, without the prior written consent of each other
Party, such consent not to be unreasonably withheld. Any assignment in
contravention of the foregoing sentence shall be null and void and without legal
effect on the rights and obligations of the Parties hereunder. Notwithstanding
the foregoing, but subject to all applicable legal requirements, (i) Buyer or
its permitted assignee may assign, transfer, pledge or otherwise dispose of
(absolutely or as security) all or any portion of its rights and interests
hereunder to a trustee, lending institution or other party for the purposes of
leasing, financing or refinancing the Included Assets, (ii) Buyer or its
permitted assignee may assign, transfer, pledge or otherwise dispose of
(absolutely or as security) all or any portion of its rights and interests
hereunder to an Affiliate of Buyer and (iii) Buyer may assign this Agreement and
all or any portion of its rights,
101
interests or obligations hereunder to a future purchaser, direct or indirect, of
all or substantially all of the Palisades Assets or the Big Rock ISFSI Assets;
provided, however, that no such assignment shall relieve or discharge Buyer from
any of its obligations hereunder nor shall any such assignment be made without
Seller's prior written consent if it would reasonably be expected to prevent or
materially impede, interfere with or delay the transactions contemplated by this
Agreement or increase the costs (to Seller) of the consummation of the
transactions contemplated by this Agreement. Each Party agrees, at the assigning
Party's expense, to execute and deliver such documents as may be reasonably
necessary to accomplish any such assignment, transfer, pledge or other
disposition of rights and interests hereunder so long as the non-assigning
Party's rights under this Agreement are not thereby altered, amended, diminished
or otherwise impaired. In the event Buyer assigns this agreement pursuant to
this Section 10.6, such assignee shall be defined as "Buyer" for all purposes
hereunder thereafter.
10.7. No Third Party Beneficiaries.
This Agreement shall not (except as specifically provided herein)
confer upon any other Person except the Parties hereto any rights, interests,
obligations or remedies hereunder, including as third party beneficiaries. In
furtherance of the foregoing, no provision of this Agreement shall create any
third party beneficiary rights in any employee or former employee of Seller or
NMC (including any beneficiary or dependent thereof) in respect of continued
employment or resumed employment, and no provision of this Agreement shall
create any rights in any such Persons in respect of any benefits that may be
provided, directly or indirectly, under any employee benefit plan or arrangement
except as expressly provided for thereunder.
10.8. Governing Law.
This Agreement shall be governed by and construed in accordance with
the law of the State of Michigan (without giving effect to the choice of law
principles thereof) as to all matters, including matters of validity,
construction, effect, performance and remedies. THE PARTIES HERETO AGREE THAT
VENUE IN ANY AND ALL ACTIONS AND PROCEEDINGS BETWEEN THE PARTIES RELATED TO THE
SUBJECT MATTER OF THIS AGREEMENT SHALL BE IN THE STATE COURTS OF MICHIGAN AND
FEDERAL COURTS FOR THE WESTERN DISTRICT OF MICHIGAN, WHICH COURTS SHALL HAVE
EXCLUSIVE JURISDICTION FOR SUCH PURPOSE, AND THE PARTIES HERETO IRREVOCABLY
SUBMIT TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS AND IRREVOCABLY WAIVE THE
DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF ANY SUCH ACTION OR
PROCEEDING. SERVICE OF PROCESS MAY BE MADE IN ANY MANNER RECOGNIZED BY SUCH
COURTS. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ITS RIGHT TO A JURY TRIAL
WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION
WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
102
10.9. Counterparts.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
10.10. Schedules and Exhibits.
Except as otherwise provided in this Agreement, all Exhibits and
Schedules referred to herein are intended to be and hereby are specifically made
a part of this Agreement. Any fact or item disclosed on any Schedule to this
Agreement shall be deemed disclosed on all other Schedules to this Agreement to
which such fact or item may reasonably apply so long as such disclosure is in
sufficient detail to enable a Party to identify the facts or items to which it
applies. Any fact or item disclosed on any Schedule hereto shall not by reason
only of such inclusion be deemed to be material and shall not be employed as a
point of reference in determining any standard of materiality under this
Agreement.
10.11. Entire Agreement.
This Agreement, the Confidentiality Agreement and the Ancillary
Agreements, including the Exhibits, Schedules, documents, certificates and
instruments referred to herein or therein, and any other documents that
specifically reference this Section 10.11, embody the entire agreement and
understanding of the Parties hereto in respect of the transactions contemplated
by this Agreement and shall supersede all previous oral and written and all
contemporaneous oral negotiations, commitments and understandings between the
Parties, including all letters, memoranda or other documents or communications,
whether oral, written or electronic, submitted or made by (a) Buyer or its
agents or representatives to Seller, Concentric Energy Advisors Inc. or their
respective agents or representatives, or (b) Seller, Concentric Energy Advisors
Inc. or their respective agents or representatives to Buyer or any of its agents
or representatives, in connection with the sale process that occurred prior to
the execution of this Agreement or otherwise in connection with the negotiation
and execution of this Agreement. No communications by or on behalf of Seller,
including responses to any questions or inquiries, whether orally, in writing or
electronically, and no information provided in any data room or any copies of
any information from any data room provided to Buyer or its agents or
representatives or any other information shall be deemed to (i) constitute a
representation, warranty, covenant, undertaking or agreement of Seller or (ii)
be part of this Agreement.
10.12. Acknowledgment; Independent Due Diligence.
Each Party acknowledges that the other Party has not made any
representation or warranty, express or implied, as to the accuracy or
completeness of any information regarding the transactions contemplated by this
Agreement and the Ancillary Agreements which is not included in this Agreement
or the Ancillary Agreements and the schedules thereto. Without limiting the
generality of the foregoing, no representation or warranty is made with respect
to any information contained in the Confidential Offering Memorandum relating to
the Facilities, dated January, 2006, or any supplement or amendment thereto
provided by Seller, such information having been provided for the convenience of
Buyer in order to assist Buyer in
103
framing its due diligence efforts. Each Party further acknowledges that: (a)
such Party, either alone or together with any individuals or entities that such
Party has retained to advise it with respect to the transactions contemplated by
this Agreement, has substantial knowledge and experience in transactions of this
type and in the business to which the Facilities relate and is therefore capable
of evaluating the risks and merits of undertaking such transactions; (b) such
Party has relied on its own independent investigation, and has not relied on any
information or representations furnished by the other Party or any
representative or agent of the other Party (except as specifically set forth in
this Agreement and the Ancillary Agreements), in determining to enter into this
Agreement and the Ancillary Agreements; (c) neither Party nor any of its
representatives or agents has given any investment, legal or other advice or
rendered any opinion as to whether the transactions contemplated by this
Agreement and the Ancillary Agreements are prudent, and no Party is relying on
any representation or warranty by the other Party or any representative or agent
of the other Party except as set forth in this Agreement and the Ancillary
Agreements; (d) Buyer has conducted extensive due diligence, including a review
of the documents provided by or on behalf of Seller; and (e) Buyer and its
attorneys, accountants and advisors have had the opportunity to visit the
Facilities and each Party has had the opportunity to ask questions and receive
answers concerning the Facilities and the terms and conditions of this Agreement
and the Ancillary Agreements. All such questions have been answered to Buyer's
or Seller's, as the case may be, complete satisfaction.
10.13. Bulk Sales Laws.
Buyer acknowledges that, notwithstanding anything in this Agreement to
the contrary, Seller will not comply with the provision of the bulk sales laws
of any jurisdiction in connection with the transactions contemplated by this
Agreement. Subject to Section 8.1, Buyer hereby waives compliance by Seller with
the provisions of the bulk sales laws of all applicable jurisdictions.
10.14. No Joint Venture.
Nothing in this Agreement creates or is intended to create an
association, trust, partnership, joint venture or other entity or similar legal
relationship among the Parties, or impose a trust, partnership or fiduciary
duty, obligation, or liability on or with respect to the Parties. Except as
expressly provided herein, neither Party is or shall act as or be the agent or
representative of the other Party.
10.15. Change in Law.
If and to the extent that any Laws or regulations that govern any
aspect of this Agreement shall change, so as to make any aspect of this
transaction unlawful, then the Parties agree to make such modifications to this
Agreement as may be reasonably necessary for this Agreement to accommodate any
such legal or regulatory changes, without materially changing the overall
benefits or consideration expected hereunder by any Party.
10.16. Severability.
Any term or provision of this Agreement that is held invalid or
unenforceable in any situation shall not affect the validity or enforceability
of the remaining terms and provisions
104
hereof or the validity or enforceability of the offending term or provision in
any other situation, provided, however, that the remaining terms and provisions
of this Agreement may be enforced only to the extent that such enforcement in
the absence of any invalid terms and provisions would not result in (a)
deprivation of a material aspect of a Party's original bargain upon execution of
this Agreement or any of the Ancillary Agreements, (b) unjust enrichment of a
Party, or (c) any other manifestly unfair or materially inequitable result.
[Signature Page Follows]
105
IN WITNESS WHEREOF, the Parties have caused this Agreement to be
signed by their respective duly authorized officers as of the date first above
written.
CONSUMERS ENERGY COMPANY
By: /s/ Robert A. Fenech
------------------------------------
Name: Robert A. Fenech
Title: Senior Vice President
Nuclear, Fossil &
Hydro Operations
ENTERGY NUCLEAR PALISADES, LLC
By: /s/ Gary J. Taylor
------------------------------------
Name: Gary J. Taylor
Title: President
Asset Sale Agreement - Signature Page
EXHIBIT A
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement") dated as of
__________, is by and between Consumers Energy Company, a Michigan corporation
(the "Seller"), and, a (the "Buyer").
WITNESSETH
WHEREAS, pursuant to that certain Asset Sale Agreement, dated as of __________,
(the "Asset Sale Agreement"), by and among Seller and Buyer, Seller has agreed,
subject to the terms and conditions of the Asset Sale Agreement, to sell,
assign, convey, transfer and deliver all of its right, title and interest in and
to the Included Assets (as defined in the Asset Sale Agreement); and
WHEREAS, pursuant to the Asset Sale Agreement, Buyer has agreed, subject to the
terms and conditions of the Asset Sale Agreement, to purchase and receive the
Included Assets and assume the Assumed Liabilities and Obligations.
NOW, THEREFORE, in consideration of the foregoing premises and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Seller and Buyer agree as follows:
1. Defined Terms. Capitalized terms used but not defined in this Agreement
shall have the meanings ascribed to such terms in the Asset Sale Agreement.
2. Assignment. Subject to Sections 2.2 and 6.4(d) and all other applicable
limitations, terms and conditions of the Asset Sale Agreement, Seller does
hereby sell, assign, convey, transfer and deliver to Buyer, free and clear of
all Encumbrances (except for Permitted Encumbrances) all of its right, title and
interest in and to the Seller's Agreements, the Fuel Contracts, the Non-material
Contracts, the Transferable Permits, licenses for emergency warning sirens,
dosimeters and environmental sampling stations that are not located on the
Sites, and the other intangible assets included in the Included Assets pursuant
to the Asset Sale Agreement.
3. Assumption of Assumed Liabilities and Obligations. Buyer hereby assumes and
agrees to pay, perform or discharge in accordance with their terms, to the
extent not heretofore paid, performed or discharged and subject to all
applicable limitations, terms and conditions contained herein and in the Asset
Sale Agreement, all of the Assumed Liabilities and Obligations.
4. No Waiver. It is understood and agreed that nothing in this Agreement shall
constitute a waiver or release of any claims arising out of the contractual
relationships between Seller and Buyer.
A-1
5. No Third Party Beneficiaries. Nothing in this Agreement, express or implied,
is intended or shall be construed to confer upon, or give to, any person other
than Buyer, Seller and their successors and permitted assigns any remedy or
claim under or by reason of this Agreement and all the agreements, terms,
covenants and conditions in this Agreement contained shall be for the sole and
exclusive benefit of Buyer, Seller and their successors and permitted assigns.
6. Binding Effect. This Agreement and all of the provisions hereof shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
7. Exclusive Remedy. Notwithstanding anything to the contrary herein, this
Agreement shall not give rise to any recourse or remedy against Assignor or any
other person except to the extent set forth in the Asset Sale Agreement, it
being the parties intention that the Asset Sale Agreement shall state the
exclusive remedies arising from the transactions contemplated by the Asset Sale
Agreement, including the assignment of the Included Assets.
8. Governing Law. This Agreement shall be governed by and construed in
accordance with the law of the State of Michigan (without giving effect to the
choice of law principles thereof) as to all matters, including matters of
validity, construction, effect, performance and remedies. THE PARTIES HERETO
AGREE THAT VENUE IN ANY AND ALL ACTIONS AND PROCEEDINGS RELATED TO THE SUBJECT
MATTER OF THIS AGREEMENT SHALL BE IN THE STATE COURTS OF MICHIGAN AND FEDERAL
COURTS FOR THE WESTERN DISTRICT OF MICHIGAN, WHICH COURTS SHALL HAVE EXCLUSIVE
JURISDICTION FOR SUCH PURPOSE, AND THE PARTIES HERETO IRREVOCABLY SUBMIT TO THE
EXCLUSIVE JURISDICTION OF SUCH COURTS AND IRREVOCABLY WAIVE THE DEFENSE OF AN
INCONVENIENT FORUM TO THE MAINTENANCE OF ANY SUCH ACTION OR PROCEEDING. SERVICE
OF PROCESS MAY BE MADE IN ANY MANNER RECOGNIZED BY SUCH COURTS. EACH OF THE
PARTIES HERETO IRREVOCABLY WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY
ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS AGREEMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY.
9. Construction. This Agreement is delivered pursuant to and is subject, in all
respects, to the terms and conditions of the Asset Sale Agreement. In the event
of any conflict between the terms of the Asset Sale Agreement and the terms of
this Agreement, the terms of the Asset Sale Agreement shall prevail.
10. Severability. Any term or provision of this Agreement that is held invalid
or unenforceable in any situation shall not effect the validity or
enforceability of the remaining terms and provisions hereof or the validity or
enforceability of the offending term or provision in any other situation.
11. Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
[Signature page follows.]
A-2
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the
duly authorized representatives of the parties hereto as of the date first above
written.
CONSUMERS ENERGY COMPANY
By:
Name:
Title:
[BUYER]
By:
Name:
Title:
A-3
EXHIBIT B
BILL OF SALE
KNOW ALL MEN BY THESE PRESENTS, that Consumers Energy Company, a Michigan
corporation ("Seller"), in consideration of the sum of _________ and other good
and valuable consideration to it paid by ________________ ("Buyer"), the receipt
and sufficiency whereof is hereby acknowledged, and pursuant to that certain
Asset Sale Agreement, dated as of ______, 2006 (the "Asset Sale Agreement"), by
and among Seller and Buyer, does hereby grant, bargain, sell, convey and assign
unto Buyer, its successors and assigns forever, free and clear of all
Encumbrances (except for Permitted Encumbrances) all of Seller's right, title
and interest in and to the tangible personal property included in the Included
Assets (collectively, the "Property").
TO HAVE AND TO HOLD the same unto the Buyer, its successors and assigns, to and
for its and their own use and benefit forever.
The provisions of this Bill of Sale are subject, in all respects, to the terms
and conditions of the Asset Sale Agreement. In the event of any conflict between
the terms of the Asset Sale Agreement and the terms of this Bill of Sale, the
terms of the Asset Sale Agreement shall prevail. This instrument shall inure to
the benefit of the Buyer, it successors and permitted assigns.
Notwithstanding anything to the contrary herein, this Bill of Sale shall not
give rise to any recourse or remedy against Seller or any other person except to
the extent set forth in the Asset Sale Agreement, it being the parties intention
that the Asset Sale Agreement shall state the exclusive remedies arising from
the transactions contemplated by the Asset Sale Agreement, including the
assignment of the Included Assets.
This Bill of Sale shall be governed by and construed in accordance with the law
of the State of Michigan (without giving effect to the choice of law principles
thereof) as to all matters, including matters of validity, construction, effect,
performance and remedies. THE PARTIES HERETO AGREE THAT VENUE IN ANY AND ALL
ACTIONS AND PROCEEDINGS RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT SHALL BE
IN THE STATE COURTS OF MICHIGAN AND FEDERAL COURTS FOR THE WESTERN DISTRICT OF
MICHIGAN, WHICH COURTS SHALL HAVE EXCLUSIVE JURISDICTION FOR SUCH PURPOSE, AND
THE PARTIES HERETO IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF SUCH
COURTS AND IRREVOCABLY WAIVE THE DEFENSE OF AN INCONVENIENT FORUM TO THE
MAINTENANCE OF ANY SUCH ACTION OR PROCEEDING. SERVICE OF PROCESS MAY BE MADE IN
ANY MANNER RECOGNIZED BY SUCH COURTS. EACH OF THE PARTIES HERETO IRREVOCABLY
WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT
OF ANY DISPUTE IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
B-1
Capitalized terms used but not otherwise defined in this Bill of Sale shall have
the meanings assigned to them in the Asset Sale Agreement.
[Signature page follows.]
B-2
IN WITNESS WHEREOF, Seller has caused this instrument to be executed by its
officers thereunto duly authorized and its corporate seal to be hereunto
affixed, this ___ day of ________, ______.
CONSUMERS ENERGY COMPANY
By:
Name:
Title:
STATE OF MICHIGAN )
) ss.
COUNTY OF ___________)
On this ____ day of _______________, ______, before me, the undersigned, a
Notary Public in and for the State of Michigan, personally appeared
__________________________________ to me personally known, who being by me duly
sworn did say that he is the _______________________ of Consumers Energy
Company; that said instrument was signed and sealed on behalf of said
corporation; and that said ___________________________, as an officer of said
corporation, acknowledged the execution of said instrument to be the voluntary
act and deed of said corporation, by it and by him voluntarily executed.
_____________________________________
Notary Public, ______________________ County, Michigan
Acting in ___________________________ County, Michigan
My commission expires _______________.
B-3
Original Sheet No. 1
EXHIBIT C
LARGE GENERATOR INTERCONNECTION
AGREEMENT (LGIA)
(Applicable to Generating Facilities that exceed 20 MW)
THIS LARGE GENERATOR INTERCONNECTION AGREEMENT ("LGIA") is made and entered into
this ____ day of ________ 2006, by and between Hornet, a limited liability
company organized and existing under the laws of the State of ("Interconnection
Customer" with a Large Generating Facility), and Michigan Electric Transmission
Company, LLC, a limited liability company organized and existing under the laws
of the State of Michigan ("Transmission Owner"), and the Midwest Independent
Transmission System Operator, Inc., a non-profit, non-stock corporation
organized and existing under the laws of the State of Delaware, ("Transmission
Provider"). Interconnection Customer, Transmission Owner and Transmission
Provider each may be referred to as a "Party," or collectively as the "Parties."
RECITALS
WHEREAS, Transmission Provider operates and/or controls the Transmission System;
and
WHEREAS, Interconnection Customer intends to own, lease and/or control and
operate the Generating Facility identified as a Large Generating Facility in
Appendix A to this LGIA; and,
WHEREAS, Transmission Owner owns or operates the Transmission System, whose
operations are subject to the functional control of the Transmission Provider,
to which the Interconnection Customer desires to connect the Large Generating
Facility, and may therefore be required to construct certain Interconnection
Facilities and Network Upgrades, as set forth in this LGIA; and
WHEREAS, Interconnection Customer, Transmission Owner and Transmission Provider
have agreed to enter into this LGIA for the purpose of interconnecting the Large
Generating Facility with the Transmission System;
NOW, THEREFORE, in consideration of and subject to the mutual covenants
contained herein, it is agreed:
ARTICLE 1. DEFINITIONS
When used in this LGIA, terms with initial capitalization that are not defined
in Article 1 shall have the meanings specified in the Article in which they are
used. Those capitalized terms used in this LGIA that are not otherwise defined
in this LGIA have the meaning set forth in the Tariff.
Original Sheet No. 2
EXHIBIT C
Adverse System Impact shall mean the negative effects due to technical or
operational limits on conductors or equipment being exceeded that may compromise
the safety and reliability of the electric system.
Affected System shall mean an electric transmission or distribution system or
the electric system associated with an existing generating facility or of a
higher queued Generating Facility, which is an electric system other than the
Transmission System that may be affected by the Interconnection Request. An
Affected System may or may not be subject to FERC jurisdiction.
Affected System Operator shall mean the entity that operates an Affected System.
Affiliate shall mean, with respect to a corporation, partnership or other
entity, each such other corporation, partnership or other entity that directly
or indirectly, through one or more intermediaries, controls, is controlled by,
or is under common control with, such corporation, partnership or other entity.
Ancillary Services shall mean those services that are necessary to support the
transmission of capacity and energy from resources to loads while maintaining
reliable operation of the Transmission System in accordance with Good Utility
Practice.
Applicable Laws and Regulations shall mean all duly promulgated applicable
federal, state and local laws, regulations, rules, ordinances, codes, decrees,
judgments, directives, or judicial or administrative orders, permits and other
duly authorized actions of any Governmental Authority having jurisdiction over
the Parties, their respective facilities and/or the respective services they
provide.
Applicable Reliability Council shall mean the reliability council of NERC
applicable to the Control Area of the Transmission System to which the
Generating Facility is directly interconnected.
Applicable Reliability Standards shall mean the requirements and guidelines of
NERC, the Applicable Reliability Council, and the Control Area of the
Transmission System to which the Generating Facility is directly interconnected.
Asset Sale Agreement shall mean that certain Asset Sale Agreement dated as of
________ by and between Consumers Energy Company and Interconnection Customer.
Base Case shall mean the base case power flow, short circuit, and stability
databases used for the Interconnection Studies by the Transmission Provider or
Interconnection Customer. Breach shall mean the failure of a Party to perform or
observe any material term or condition of this LGIA.
Breaching Party shall mean a Party that is in Breach of this LGIA. Business Day
shall mean Monday through Friday, excluding Federal Holidays.
Original Sheet No. 3
EXHIBIT C
Calendar Day shall mean any day including Saturday, Sunday or a Federal Holiday.
CE shall mean Consumers Energy Company.
Commercial Operation shall mean the status of a Generating Facility that has
commenced generating electricity for sale, excluding electricity generated
during Trial Operation.
Commercial Operation Date of a unit shall mean the date on which the Generating
Facility commences Commercial Operation as agreed to by the Parties pursuant to
Appendix E to this LGIA.
Confidential Information shall mean any proprietary or commercially or
competively sensitive information, trade secret or information regarding a plan,
specification, pattern, procedure, design, device, list, concept, policy or
compilation relating to the present or planned business of a Party, or any other
information as specified in Article 22, which is designated as confidential by
the Party supplying the information, whether conveyed orally, electronically, in
writing, through inspection, or otherwise, that is received by another Party and
is not disclosed except under the terms of a Confidential Information policy.
Control Area shall mean an electrical system or systems bounded by
interconnection metering and telemetry, capable of controlling generation to
maintain its interchange schedule with other Control Areas and contributing to
frequency regulation of the interconnection. A Control Area must be certified by
the Applicable Reliability Council.
Default shall mean the failure of a Breaching Party to cure its Breach in
accordance with Article 17 of this LGIA.
Demonstrated Capability shall mean the continuous net real power output that the
Generating Facility is required to demonstrate in compliance with Applicable
Reliability Standards.
Dispute Resolution shall mean the procedure for resolution of a dispute between
or among the Parties in which they will first attempt to resolve the dispute on
an informal basis. Distribution System shall mean the Transmission Owner's
facilities and equipment, or the Distribution System of another party that is
interconnection with Transmission Owner's Transmission System, if any, connected
to the Transmission System, over which facilities transmission service or
Wholesale Distribution Service under the Tariff is available at the time the
Interconnection Customer has requested interconnection of a Generating Facility
for the purpose of either transmitting electric energy in interstate commerce or
selling electric energy at wholesale in interstate commerce and which are used
to transmit electricity to ultimate usage points such as homes and industries
directly from nearby generators or from interchanges with higher voltage
transmission networks which transport bulk power over longer distances. The
Original Sheet No. 4
EXHIBIT C
voltage levels at which distribution systems operate differ among Control Areas
and other entities owning distribution facilities interconnected to the
Transmission System. Distribution Upgrades shall mean the additions,
modifications, and upgrades to the Distribution System at or beyond the Point of
Interconnection to facilitate interconnection of the Generating Facility and
render the delivery service necessary to effect Interconnection Customer's
wholesale sale of electricity in interstate commerce. Distribution Upgrades do
not include Interconnection Facilities.
Effective Date shall mean the date on which this LGIA becomes effective pursuant
to Section 2.1.
Emergency Condition shall mean a condition or situation: (1) that in the
reasonable judgment of the Party making the claim is imminently likely to
endanger, or is contributing to the endangerment of, life, property, or public
health and safety; or (2) that, in the case of either Transmission Provider or
Transmission Owner, is imminently likely (as determined in a nondiscriminatory
manner) to cause a material adverse effect on the security of, or damage to the
Transmission System, Transmission Owner's Interconnection Facilities or the
electric systems of others to which the Transmission System is directly
connected; or (3) that, in the case of Interconnection Customer, is imminently
likely (as determined in a non-discriminatory manner) to cause a material
adverse effect on the security of, or damage to, the Generating Facility or
Interconnection Customer's Interconnection Facilities. System restoration and
blackstart shall be considered Emergency Conditions; provided that
Interconnection Customer is not obligated by this LGIA to possess blackstart
capability. Any condition or situation that results from lack of sufficient
generating capacity to meet load requirements or that results solely from
economic conditions shall not constitute an Emergency Condition, unless one of
the enumerated conditions or situations identified in this definition also
exists.
Energy Resource Interconnection Service (ER Interconnection Service) shall mean
an Interconnection Service that allows the Interconnection Customer to connect
its Generating Facility to the Transmission System or Distribution System, as
applicable, to be eligible to deliver the Generating Facility's electric output
using the existing firm or non-firm capacity of the Transmission System on an as
available basis. Energy Resource Interconnection Service does not convey
transmission service.
Engineering & Procurement (E&P) Agreement shall mean an agreement that
authorizes the Transmission Owner to begin engineering and procurement of long
lead-time items necessary for the establishment of the interconnection in order
to advance the implementation of the Interconnection Request.
Environmental Law shall mean Applicable Laws or Regulations relating to
pollution or protection of the environment or natural resources.
Federal Holiday shall mean a Federal Reserve Bank holiday for a Party that has
its principal place of business in the United States and a Canadian Federal or
Provincial banking holiday for a Party that has its principal place of business
located in Canada.
Original Sheet No. 5
EXHIBIT C
Federal Power Act shall mean the Federal Power Act, as amended, 16 U.S.C.
Sections 791a et seq.
FERC shall mean the Federal Energy Regulatory Commission, also known as
Commission, or its successor.
Force Majeure shall mean any act of God, labor disturbance, act of the public
enemy, war, insurrection, riot, fire, storm or flood, explosion, breakage or
accident to machinery or equipment, any order, regulation or restriction imposed
by governmental, military or lawfully established civilian authorities, or any
other cause beyond a Party's control. A Force Majeure event does not include an
act of negligence or intentional wrongdoing by the Party claiming Force Majeure.
Generating Facility shall mean Interconnection Customer's device(s) for the
production of electricity (Palisades Nuclear Generating Plant) identified in
Appendix A, but shall not include the Interconnection Customer's Interconnection
Facilities.
Generating Facility Capacity shall mean the net capacity of the Generating
Facility and the aggregate net capacity of the Generating Facility where it
includes multiple energy production devices.
Generator Upgrades shall mean the additions, modifications, and upgrades to the
electric system of an existing generating facility or of a higher queued
Generating Facility at or beyond the Point of Interconnection to facilitate
interconnection of the Generating Facility and render the transmission service
necessary to affect Interconnection Customer's wholesale sale of electricity in
interstate commerce.
Good Utility Practice shall mean any of the practices, methods and acts engaged
in or approved by a significant portion of the electric industry during the
relevant time period, or any of the practices, methods and acts which, in the
exercise of reasonable judgment in light of the facts known at the time the
decision was made, could have been expected to accomplish the desired result at
a reasonable cost consistent with good business practices, reliability, safety
and expedition. Good Utility Practice is not intended to be limited to the
optimum practice, method, or act to the exclusion of all others, but rather to
be acceptable practices, methods, or acts generally accepted in the region.
Governmental Authority shall mean any federal, state, local or other
governmental regulatory or administrative agency, court, commission, department,
board, or other governmental subdivision, legislature, rulemaking board,
tribunal, or other governmental authority having jurisdiction over the Parties,
their respective facilities, or the respective services they provide, and
exercising or entitled to exercise any administrative, executive, police, or
taxing authority or power; provided, however, that such term does not include
Interconnection Customer, Transmission Provider, Transmission Owner, or any
Affiliate thereof.
Original Sheet No. 6
EXHIBIT C
Group Study(ies) shall mean the process whereby more than one Interconnection
Request is studied together, instead of serially, for the purpose of conducting
one or more of the required Studies.
Hazardous Substances shall mean any chemicals, materials or substances defined
as or included in the definition of "hazardous substances," "hazardous wastes,"
"hazardous materials," "hazardous constituents," "restricted hazardous
materials," "extremely hazardous substances," "toxic substances," "radioactive
substances," "contaminants," "pollutants," "toxic pollutants" or words of
similar meaning and regulatory effect under any applicable Environmental Law, or
any other chemical, material or substance, exposure to which is prohibited,
limited or regulated by any applicable Environmental Law.
Initial Synchronization Date shall mean the date upon which the Generating
Facility is initially synchronized and upon which Trial Operation begins.
In-Service Date shall mean the date upon which the Interconnection Customer
reasonably expects it will be ready to begin use of the Transmission Owner's
Interconnection Facilities to obtain backfeed power.
Interconnection Customer's Interconnection Facilities shall mean all facilities
and equipment, as identified in Appendix A of this LGIA, that are located
between the Generating Facility and the Point of Change of Ownership, including
any modification, addition, or upgrades to such facilities and equipment
necessary to physically and electrically interconnect the Generating Facility to
the Transmission System or Distribution System, as applicable. Interconnection
Customer's Interconnection Facilities are sole use facilities.
Interconnection Facilities shall mean the Transmission Owner's Interconnection
Facilities and the Interconnection Customer's Interconnection Facilities.
Collectively, Interconnection Facilities include all facilities and equipment
between the Generating Facility and the Point of Interconnection, including any
modification, additions or upgrades that are necessary to physically and
electrically interconnect the Generating Facility to the Transmission System.
Interconnection Facilities shall not include Distribution Upgrades, Generator
Upgrades, Stand Alone Network Upgrades or Network Upgrades.
Interconnection Facilities Study shall mean a study conducted by the
Transmission Provider, or its agent, for the Interconnection Customer to
determine a list of facilities (including Transmission Owner's Interconnection
Facilities, System Protection Facilities, and if such upgrades have been
determined, Network Upgrades, Distribution Upgrades, Generator Upgrades, and
upgrades on Affected Systems, as identified in the Interconnection System Impact
Study), the cost of those facilities, and the time required to interconnect the
Generating Facility with the Transmission System. The scope of the study is
defined in Section 8 of the Large Generator Interconnection Procedures.
Interconnection Facilities Study Agreement shall mean the form of agreement
contained in Appendix 4 of the Large Generator Interconnection Procedures for
conducting the Interconnection Facilities Study.
Original Sheet No. 7
EXHIBIT C
Interconnection Feasibility Study shall mean a preliminary evaluation of the
system impact of interconnecting the Generating Facility to the Transmission
System, the scope of which is described in Section 6 of the Large Generator
Interconnection Procedures. Interconnection Feasibility Study Agreement shall
mean the form of agreement contained in Appendix 2 of the Large Generator
Interconnection Procedures for conducting the Interconnection Feasibility Study.
Interconnection Request shall mean an Interconnection Customer's request, in the
form of Appendix 1 to the Large Generator Interconnection Procedures, to
interconnect a new Generating Facility, or to increase the capacity of, or make
a Material Modification to the operating characteristics of, an existing
Generating Facility that is interconnected with the Transmission System.
Interconnection Service shall mean the service provided by the Transmission
Provider associated with interconnecting the Generating Facility to the
Transmission System and enabling it to receive electric energy and capacity from
the Generating Facility at the Point of Interconnection, pursuant to the terms
of this LGIA and, if applicable, the Tariff. Interconnection Study shall mean
any of the following studies: the Interconnection Feasibility Study, the
Interconnection System Impact Study, and the Interconnection Facilities Study,
or the Restudy of any of the above, described in the Large Generator
Interconnection Procedures.
Interconnection System Impact Study shall mean an engineering study that
evaluates the impact of the proposed interconnection on the safety and
reliability of Transmission System and, if applicable, an Affected System. The
study shall identify and detail the system impacts that would result if the
Generating Facility were interconnected without project modifications or system
modifications, focusing on the Adverse System Impacts identified in the
Interconnection Feasibility Study, or to study potential impacts, including but
not limited to those identified in the Scoping Meeting as described in the Large
Generator Interconnection Procedures.
Interconnection System Impact Study Agreement shall mean the form of agreement
contained in Appendix 3 of the Large Generator Interconnection Procedures for
conducting the Interconnection System Impact Study.
IRS shall mean the Internal Revenue Service.
Large Generating Facility shall mean a Generating Facility having an aggregate
net Generating Facility Capacity of more than 20 MW.
Large Generator Interconnection Agreement (LGIA) shall mean the form of
interconnection agreement, in the form of Appendix 6 to the Large Generator
Interconnection Procedures, applicable to a Large Generating Facility.
Original Sheet No. 8
EXHIBIT C
Large Generator Interconnection Procedures (LGIP) shall mean the interconnection
procedures that are included in the Tariff and applicable to an Interconnection
Request pertaining to a Large Generating Facility.
Loss shall mean any and all damages, losses, claims, including claims and
actions relating to injury to or death of any person or damage to property,
demand, suits, recoveries, costs and expenses, court costs, attorney fees, and
all other obligations by or to third parties, arising out of or resulting from
the other Party's performance, or non-performance of its obligations under this
LGIA on behalf of the indemnifying Party, except in cases of gross negligence or
intentional wrongdoing, by the indemnified party.
Material Modification shall mean those modifications that have a material impact
on the cost or timing of any Interconnection Request with a later queue priority
date. Metering Equipment shall mean all metering equipment installed or to be
installed at the Generating Facility pursuant to this LGIA at the metering
points, including but not limited to instrument transformers, MWh-meters, data
acquisition equipment, transducers, remote terminal unit, communications
equipment, phone lines, and fiber optics.
NERC shall mean the North American Electric Reliability Council or its successor
organization.
Network Customer shall have that meaning as provided in the Tariff.
Network Resource shall mean any designated generating resource owned, purchased,
or leased by a Network Customer under the Network Integration Transmission
Service Tariff. Network Resources do not include any resource, or any portion
thereof, that is committed for sale to third parties or otherwise cannot be
called upon to meet the Network Customer's Network Load on a non-interruptible
basis.
Network Resource Interconnection Service (NR Interconnection Service) shall mean
an Interconnection Service that allows the Interconnection Customer to integrate
its Large Generating Facility with the Transmission System in the same manner as
for any Large Generating Facility being designated as a Network Resource.
Network Resource Interconnection Service does not convey transmission service.
Network Upgrades shall mean the additions, modifications, and upgrades to the
Transmission System required at or beyond the point at which the Interconnection
Facilities connect to the Transmission System or Distribution System, as
applicable, to accommodate the interconnection of the Generating Facility to the
Transmission System.
Notice of Dispute shall mean a written notice of a dispute or claim that arises
out of or in connection with this LGIA or its performance.
NRC shall mean the Nuclear Regulatory Commission, or its successor.
Original Sheet No. 9
EXHIBIT C
NRC Operating License shall mean the license, including associated Technical
Specifications, issued by the NRC authorizing the license holder to operate the
Generating Facility.
NRC Requirements and Commitments shall mean all the requirements, obligations,
duties, and commitments required to be followed and honored by Interconnection
Customer pursuant to the Atomic Energy Act of 1954, the regulations of the NRC,
the NRC Operating License, and Interconnection Customer's nuclear materials
licenses, as amended or superseded.
Optional Interconnection Study shall mean a sensitivity analysis based on
assumptions specified by the Interconnection Customer in the Optional
Interconnection Study Agreement.
Optional Interconnection Study Agreement shall mean the form of agreement
contained in Appendix 5 of the Large Generator Interconnection Procedures for
conducting the Optional Interconnection Study.
Palisades Switchyard shall mean the switchyard located at the Generating
Facility, as identified in Appendix A.
Party or Parties shall mean Transmission Provider, Transmission Owner,
Interconnection Customer, or any combination of the above.
Point of Change of Ownership shall mean the point, as set forth in Appendix A to
the Large Generator Interconnection Agreement, where the Interconnection
Customer's Interconnection Facilities connect to the Transmission Owner's
Interconnection Facilities.
Point of Interconnection shall mean the points of interconnection, as set forth
in Appendix A.
Protected Area shall mean the area on the grounds of the Generating Facility
surrounded by physical barriers and to which access is controlled in accordance
with Applicable Laws and Regulations.
Queue Position shall mean the order of a valid Interconnection Request, relative
to all other pending valid Interconnection Requests, that is established based
upon the date and time of receipt of the valid Interconnection Request by the
Transmission Provider.
Reasonable Efforts shall have that meaning as provided in the Tariff.
Scoping Meeting shall mean the meeting between representatives of the
Interconnection Customer, Transmission Owner, Affected System Operator(s) and
Transmission Provider conducted for the purpose of discussing alternative
interconnection options, to exchange information including any transmission data
and earlier study evaluations that would be reasonably expected to impact such
interconnection options, to analyze such information, and to determine the
potential feasible Points of Interconnection.
Original Sheet No. 10
EXHIBIT C
Site Control shall mean documentation reasonably demonstrating: (1) ownership
of, a leasehold interest in, or a right to develop a site for the purpose of
constructing the Generating Facility; (2) an option to purchase or acquire a
leasehold site for such purpose; or (3) an exclusivity or other business
relationship between Interconnection Customer and the entity having the right to
sell, lease or grant Interconnection Customer the right to possess or occupy a
site for such purpose.
Small Generating Facility shall mean a Generating Facility that has an aggregate
net Generating Facility Capacity of no more than 20 MW.
Special Protection System (SPS) shall mean an automatic protection system or
remedial action scheme designed to detect abnormal or predetermined system
conditions, and take corrective actions other than and/or in addition to the
isolation of faulted components, to maintain system reliability. Such action may
include changes in demand (MW and MVar), energy (MWh and MVarh), or system
configuration to maintain system stability, acceptable voltage, or power flows.
An SPS does not include (a) underfrequency or undervoltage load shedding, (b)
fault conditions that must be isolated, (c) out-of-step relaying not designed as
an integral part of an SPS, or (d) Transmission Control Devices.
Stand Alone Network Upgrades shall mean Network Upgrades that an Interconnection
Customer may construct without affecting day-to-day operations of the
Transmission System during their construction. The Transmission Provider,
Transmission Owner and the Interconnection Customer must agree as to what
constitutes Stand Alone Network Upgrades and identify them in Appendix A to this
LGIA.
System Protection Facilities shall mean the equipment, including necessary
protection signal communications equipment, required to protect (1) the
Transmission System or other delivery systems or other generating systems from
faults or other electrical disturbances occurring at the Generating Facility and
(2) the Generating Facility from faults or other electrical system disturbances
occurring on the Transmission System or on other delivery systems or other
generating systems to which the Transmission System is directly connected.
Tariff shall mean the Transmission Provider's Tariff through which open access
transmission service and Interconnection Service are offered, as filed with the
Commission, and as amended or supplemented from time to time, or any successor
tariff.
Transmission Control Devices shall mean a generally accepted transmission device
that is planned and designed to provide dynamic control of electric system
quantities, and are usually employed as solutions to specific system performance
issues. Examples of such devices include fast valving, high response exciters,
high voltage DC links, active or real power flow control and reactive
compensation devices using power electronics (e.g., unified power flow
controllers), static var compensators, thyristor controlled series capacitors,
braking resistors, and in some cases mechanically-switched capacitors and
reactors. In general, such systems are not considered to be Special Protection
Systems.
Original Sheet No. 11
EXHIBIT C
Transmission Owner shall mean that Transmission Owner as defined in the Tariff,
which includes an entity that owns, leases or otherwise possesses an interest in
the portion of the Transmission System at which the Interconnection Customer
proposes to interconnect or otherwise integrate the operation of the Generating
Facility. Transmission Owner should be read to include any Independent
Transmission Company that manages the transmission facilities of the
Transmission Owner and shall include, as applicable, the owner and/or operator
of distribution facilities interconnected to the Transmission System, over which
facilities transmission service or Wholesale Distribution Service under the
Tariff is available at the time the Interconnection Customer requests
Interconnection Service and to which the Interconnection Customer has requested
interconnection of a Generating Facility for the purpose of either transmitting
electric energy in interstate commerce or selling electric energy at wholesale
in interstate commerce.
Transmission Provider shall mean the Midwest Independent Transmission System
Operator, Inc. (the "Midwest ISO"), the Regional Transmission Organization that
controls or operates the transmission facilities of its transmission-owning
members used for the transmission of electricity in interstate commerce and
provides transmission service under the Tariff.
Transmission Owner's Interconnection Facilities shall mean all facilities and
equipment owned by the Transmission Owner from the Point of Change of Ownership
to the Point of Interconnection as identified in Appendix A to this LGIA,
including any modifications, additions or upgrades to such facilities and
equipment. Transmission Owner's Interconnection Facilities are sole use
facilities and shall not include Distribution Upgrades, Generator Upgrades,
Stand Alone Network Upgrades or Network Upgrades.
Transmission System shall mean the facilities owned by the Transmission Owner
and controlled or operated by the Transmission Provider or Transmission Owner
that are used to provide transmission service or Wholesale Distribution Service
under the Tariff. Trial Operation shall mean the period during which
Interconnection Customer is engaged in on-site test operations and commissioning
of the Generating Facility prior to Commercial Operation.
Wholesale Distribution Service shall have that meaning as provided in the
Tariff.
Wherever the term "transmission delivery service" is used, Wholesale
Distribution Service shall also be implied.
ARTICLE 2. EFFECTIVE DATE, TERM AND TERMINATION
2.1 Effective Date. This LGIA shall become effective on the Closing as defined
in the Asset Sale Agreement.
2.2 Term of Agreement. Subject to the provisions of Article 2.3, this LGIA shall
remain in effect for a period of ______ years from the Effective Date and shall
be automatically
Original Sheet No. 12
EXHIBIT C
renewed for each successive one-year period thereafter on the anniversary of the
Effective Date.
2.3 Termination Procedures. This LGIA may be terminated as follows:
2.3.1 Written Notice. This LGIA may be terminated by Interconnection Customer
after giving the Transmission Provider and Transmission Owner ninety (90)
Calendar Days advance written notice or by Transmission Provider if the
Generating Facility has ceased Commercial Operation for three (3) consecutive
years, beginning with the last date of Commercial Operation for the Generating
Facility, after giving the Interconnection Customer ninety (90) Calendar Days
advance written notice. The Generating Facility will not be deemed to have
ceased Commercial Operation for purposes of this Article 2.3.1 if the
Interconnection Customer can document that it has taken other significant steps
to maintain or restore operational readiness of the Generating Facility for the
purpose of returning the Generating Facility to Commercial Operation as soon as
possible.
2.3.2 Default. Any Party may terminate this LGIA in accordance with Article 17.
2.3.3 Notwithstanding Articles 2.3.1 and 2.3.2, no termination shall become
effective until the Parties have complied with all Applicable Laws and
Regulations applicable to such termination, including the filing with FERC of a
notice of termination of this LGIA, if required, which notice has been accepted
for filing by FERC.
2.4 Termination Costs. If a Party elects to terminate this LGIA pursuant to
Article 2.3 above, each Party shall pay all costs incurred for which that Party
is responsible (including any cancellation costs relating to orders or contracts
for Interconnection Facilities, applicable upgrades, and related equipment) or
charges assessed by the other Parties, as of the date of the other Parties'
receipt of such notice of termination, under this LGIA. In the event of
termination by a Party, the Parties shall use commercially Reasonable Efforts to
mitigate the costs, damages and charges arising as a consequence of termination.
Upon termination of this LGIA, unless otherwise ordered or approved by FERC:
2.4.1 With respect to any portion of the Transmission Owner's Interconnection
Facilities, Network Upgrades, System Protection Facilities, Distribution
Upgrades, Generator Upgrades, and if so determined and made a part of this LGIA,
upgrades on Affected Systems, that have not yet been constructed or installed,
the Transmission Owner shall to the extent possible and to the extent of
Interconnection Customer's written notice under Article 2.3.1, cancel any
pending orders of, or return, any materials or equipment for, or contracts for
construction of, such facilities; provided that in the event Interconnection
Customer elects not to authorize such cancellation, Interconnection Customer
shall assume all payment obligations with respect to such materials, equipment,
and contracts, and
Original Sheet No. 13
EXHIBIT C
the Transmission Owner shall deliver such material and equipment, and, if
necessary, assign such contracts, to Interconnection Customer as soon as
practicable, at Interconnection Customer's expense. To the extent that
Interconnection Customer has already paid Transmission Owner for any or all such
costs of materials or equipment not taken by Interconnection Customer,
Transmission Owner shall promptly refund such amounts to Interconnection
Customer, less any costs, including penalties incurred by the Transmission Owner
to cancel any pending orders of or return such materials, equipment, or
contracts. If an Interconnection Customer terminates this LGIA, it shall be
responsible for all costs incurred in association with that Interconnection
Customer's interconnection, including any cancellation costs relating to orders
or contracts for Interconnection Facilities and equipment, and other expenses
including any upgrades or related equipment for which the Transmission Owner has
incurred expenses and has not been reimbursed by the Interconnection Customer.
2.4.2 Transmission Owner may, at its option, retain any portion of such
materials, equipment, or facilities that Interconnection Customer chooses not to
accept delivery of, in which case Transmission Owner shall be responsible for
all costs associated with procuring such materials, equipment, or facilities. If
Transmission Owner does not so elect, then Interconnection Customer shall be
responsible for such costs.
2.4.3 With respect to any portion of the Interconnection Facilities, and any
other facilities already installed or constructed pursuant to the terms of this
LGIA, Interconnection Customer shall be responsible for all costs associated
with the removal, relocation, reconfiguration or other disposition or retirement
of such materials, equipment, or facilities, and such other expenses actually
incurred by Transmission Owner necessary to return the Transmission,
Distribution or Generator System, as applicable, to safe and reliable operation.
2.5 Disconnection. Upon termination of this LGIA, the Parties will take all
appropriate steps to disconnect the Generating Facility from the Transmission or
Distribution System, as applicable. All costs required to effectuate such
disconnection shall be borne by the terminating Party, unless such termination
resulted from the non-terminating Party's Default of this LGIA or such
non-terminating Party otherwise is responsible for these costs under this LGIA.
2.6 Survival. This LGIA shall continue in effect after termination to the extent
necessary to provide for final billings and payments and for costs incurred
hereunder, including billings and payments pursuant to this LGIA; to permit the
determination and enforcement of liability and indemnification obligations
arising from acts or events that occurred while this LGIA was in effect; and to
permit each Party to have access to the lands of the other Party pursuant to
this LGIA or other applicable agreements, to disconnect, remove or salvage its
own facilities and equipment.
Original Sheet No. 14
EXHIBIT C
ARTICLE 3. REGULATORY FILINGS
3.1 Filing. The Transmission Provider shall file this LGIA (and any amendment
hereto) with the appropriate Governmental Authority, if required. A Party may
request that any information so provided be subject to the confidentiality
provisions of Article 22. If that Party has executed this LGIA, or any amendment
thereto, the Party shall reasonably cooperate with Transmission Provider with
respect to such filing and to provide any information reasonably requested by
Transmission Provider needed to comply with applicable regulatory requirements.
ARTICLE 4. SCOPE OF SERVICE
4.1 Interconnection Product Options. Interconnection Customer has selected the
following (checked) type of Interconnection Service: Check: ____ER or __X__ NR
4.1.1 Energy Resource Interconnection Service (ER Interconnection Service).
4.1.1.1 The Product. ER Interconnection Service allows Interconnection Customer
to connect the Generating Facility to the Transmission or Distribution System,
as applicable, and be eligible to deliver the Generating Facility's output using
the existing firm or non-firm capacity of the Transmission System on an "as
available" basis. To the extent Interconnection Customer wants to receive ER
Interconnection Service, the Transmission Owner shall construct facilities
consistent with the studies identified in Appendix A.
4.1.1.2 Transmission Delivery Service Implications. Under ER Interconnection
Service, the Interconnection Customer will be eligible to inject power from the
Generating Facility into and deliver power across the Transmission System on an
"as available" basis up to the amount of MW identified in the applicable
stability and steady state studies to the extent the upgrades initially required
to qualify for ER Interconnection Service have been constructed. After that date
FERC makes effective the Midwest ISO's Energy Market Tariff filed in Docket No.
ER04-691-000, Interconnection Customer may place a bid to sell into the market
up to the maximum identified Generating Facility output, subject to any
conditions specified in the interconnection service approval, and the Generating
Facility will be dispatched to the extent the Interconnection Customer's bid
clears. In all other instances, no transmission or other delivery service from
the Generating Facility is assured, but the Interconnection Customer may obtain
Point-To-Point Transmission Service, Network Integration Transmission Service or
be
Original Sheet No. 15
EXHIBIT C
used for secondary network transmission service, pursuant to the Tariff, up to
the maximum output identified in the stability and steady state studies. In
those instances, in order for the Interconnection Customer to obtain the right
to deliver or inject energy beyond the Point of Interconnection or to improve
its ability to do so, transmission delivery service must be obtained pursuant to
the provisions of the Tariff. The Interconnection Customer's ability to inject
its Generating Facility output beyond the Point of Interconnection, therefore,
will depend on the existing capacity of the Transmission or Distribution System
as applicable, at such time as a transmission service request is made that would
accommodate such delivery. The provision of Firm Point-To-Point Transmission
Service or Network Integration Transmission Service may require the construction
of additional Network or Distribution Upgrades.
4.1.2 Network Resource Interconnection Service (NR Interconnection Service).
4.1.2.1 The Product. The Transmission Provider must conduct the necessary
studies and the Transmission Owner shall construct the facilities identified in
Appendix A of this LGIA, subject to the approval of Governmental Authorities,
needed to integrate the Generating Facility in the same manner as for any Large
Generating Facility being designated as a Network Resource.
4.1.2.2 Transmission Delivery Service Implications. NR Interconnection Service
allows the Generating Facility to be designated by any Network Customer under
the Tariff on the Transmission System as a Network Resource, up to the
Generating Facility's full output, on the same basis as existing Network
Resources that are interconnected to the Transmission or Distribution System, as
applicable, and to be studied as a Network Resource on the assumption that such
a designation will occur. Although NR Interconnection Service does not convey a
reservation of transmission service, any Network Customer can utilize network
service under the Tariff to obtain delivery of energy from the Generating
Facility in the same manner as it accesses Network Resources. A Generating
Facility receiving NR Interconnection Service may also be used to provide
Ancillary Services after technical studies and/or periodic analyses are
performed with respect to the Generating Facility's ability to provide any
applicable Ancillary Services, provided that such studies and analyses have been
or would be required in connection with the provision of such Ancillary Services
by any existing Network Resource. However, if the Generating Facility has not
been designated as a Network Resource by any Network Customer, it cannot be
required to provide Ancillary Services except to the extent such requirements
extend to all generating facilities that are similarly situated. The provision
of Network Integration Transmission Service or
Original Sheet No. 16
EXHIBIT C
Firm Point-To-Point Transmission Service may require additional studies and the
construction of additional upgrades. Because such studies and upgrades would be
associated with a request for delivery service under the Tariff, cost
responsibility for the studies and upgrades would be in accordance with FERC's
policy for pricing transmission delivery services.
NR Interconnection Service does not necessarily provide the Interconnection
Customer with the capability to physically deliver the output of its Generating
Facility to any particular load on the Transmission System without incurring
congestion costs. In the event of transmission or distribution constraints on
the Transmission or Distribution System, as applicable, the Generating Facility
shall be subject to the applicable congestion management procedures in the
Transmission System in the same manner as Network Resources.
There is no requirement either at the time of study or interconnection, or at
any point in the future, that the Generating Facility be designated as a Network
Resource by a Network Customer or that the Interconnection Customer identify a
specific buyer (or sink). To the extent a Network Customer does designate the
Generating Facility as a Network Resource, it must do so pursuant to the Tariff.
Once an Interconnection Customer satisfies the requirements for obtaining NR
Interconnection Service, any future transmission service request for delivery
from the Generating Facility within the Transmission System of any amount of
capacity and/or energy, up to the amount initially studied, will not require
that any additional studies be performed or that any further upgrades associated
with such Large Generating Facility be undertaken, regardless of whether such
Large Generating Facility is ever designated by a Network Customer as a Network
Resource and regardless of changes in ownership of the Generating Facility. To
the extent the Interconnection Customer enters into an arrangement for long term
transmission service for deliveries from the Generating Facility to customers
other than the studied Network Customers, or for any Point-To-Point Transmission
Service, such request may require additional studies and upgrades in order for
the Transmission Provider to grant such request. However, the reduction or
elimination of congestion or redispatch costs may require additional studies and
the construction of additional upgrades.
To the extent the Interconnection Customer enters into an arrangement for long
term transmission service for deliveries from the Generating Facility outside
the Transmission System, such request may require additional studies and
upgrades in order for the Transmission Provider to grant such request.
Original Sheet No. 17
EXHIBIT C
4.2 Provision of Service. Transmission Provider shall provide Interconnection
Service for the Generating Facility at the Point of Interconnection.
4.3 Performance Standards. Each Party shall perform all of its obligations under
this LGIA in accordance with Applicable Laws and Regulations, Applicable
Reliability Standards, and Good Utility Practice. To the extent a Party is
required or prevented or limited in taking any action by such regulations and
standards, or if the obligations of any Party may become limited by a change in
Applicable Laws and Regulations, Applicable Reliability Standards, and Good
Utility Practice after the execution of this LGIA, that Party shall not be
deemed to be in Breach of this LGIA for its compliance therewith. The Party so
limited shall notify the other Parties whereupon the Transmission Provider shall
amend this LGIA in concurrence with the other Parties and submit the amendment
to the Commission for approval.
4.4 No Transmission Delivery Service. The execution of this LGIA does not
constitute a request for, nor the provision of, any transmission delivery
service under the Tariff, and does not convey any right to deliver electricity
to any specific customer or Point of Delivery.
4.5 Interconnection Customer Provided Services. The services provided by
Interconnection Customer under this LGIA are set forth in Article 9.6.
Interconnection Customer shall be paid for such services in accordance with
Articles 9.6.3 and 11.6.
ARTICLE 5. INTERCONNECTION FACILITIES ENGINEERING, PROCUREMENT,
AND CONSTRUCTION
5.1 Options. [Intentionally left blank.]
5.1.1 Standard Option. [Intentionally left blank.]
5.1.2 Alternate Option. [Intentionally left blank.]
5.1.3 Option to Build. [Intentionally left blank.]
5.1.4 Negotiated Option. [Intentionally left blank.]
5.2 General Conditions Applicable to Option to Build. [Intentionally left
blank.]
5.3 Liquidated Damages. [Intentionally left blank.]
5.4 Power System Stabilizers. [Intentionally left blank.]
5.5 Equipment Procurement. [Intentionally left blank.]
Original Sheet No. 18
EXHIBIT C
5.5.1 [Intentionally left blank.]
5.5.2 [Intentionally left blank.]
5.5.3 [Intentionally left blank.]
5.6 Construction Commencement. [Intentionally left blank.]
5.6.1 [Intentionally left blank.]
5.6.2 [Intentionally left blank.]
5.6.3 [Intentionally left blank.]
5.6.4 [Intentionally left blank.]
5.7 Work Progress. [Intentionally left blank.]
5.8 Information Exchange. [Intentionally left blank.]
5.9 Limited Operation. [Intentionally left blank.]
5.10 Interconnection Customer's Interconnection Facilities ("ICIF").
[Intentionally left blank.]
5.10.1 Interconnection Customer's Interconnection Facility Specifications.
[Intentionally left blank.]
5.10.2 Transmission Provider's and Transmission Owner's Review. [Intentionally
left blank.]
5.10.3 ICIF Construction. [Intentionally left blank.]
5.11 Transmission Owner's Interconnection Facilities Construction.
[Intentionally left blank.]
5.12 Access Rights. Upon reasonable notice by a Party, and subject to any
required or necessary regulatory approvals, a Party ("Granting Party") shall
furnish at no cost to the other Party ("Access Party") any rights of use,
licenses, rights of way and easements with respect to lands owned or controlled
by the Granting Party, its agents (if allowed under the applicable agency
agreement), or any Affiliate, that are necessary to enable the Access Party to
obtain ingress and egress to construct, operate, maintain, repair, test (or
witness testing), inspect, replace or remove facilities and equipment to: (i)
interconnect the Generating Facility with the Transmission System; (ii) operate
and maintain the Generating Facility, the Interconnection Facilities and the
Transmission System; and (iii) disconnect or remove the Access Party's
facilities and equipment upon termination
Original Sheet No. 19
EXHIBIT C
of this LGIA. In exercising such licenses, rights of way and easements, the
Access Party shall not unreasonably disrupt or interfere with normal operation
of the Granting Party's business and shall adhere to the safety rules and
procedures established in advance, as may be changed from time to time, by the
Granting Party with the Access Party's written consent (which consent will not
be unreasonably withheld) and provided to the Access Party, including such
safety and security rules consistent with Applicable Laws and Regulations as
Interconnection Customer may maintain with respect to access to the Protected
Area. Access to and operation of the Palisades Switchyard will be governed by
the provisions of Appendix H..
5.13 Lands of Other Property Owners. [Intentionally left blank.]
5.14 Permits. [Intentionally left blank.]
5.15 Early Construction of Base Case Facilities. [Intentionally left blank.]
5.16 Suspension.
5.16.1 Interconnection Customer's Right to Suspend; Obligations. [Intentionally
left blank.]
5.16.2 Effect of Missed Interconnection Customer Milestones. [Intentionally left
blank.]
5.16.3 Effect of Suspension; Parties Obligations. [Intentionally left blank.]
5.17 Taxes.
5.17.1 Interconnection Customer Payments Not Taxable. [Intentionally left
blank.]
5.17.2 Representations and Covenants. [Intentionally left blank.]
5.17.3 Indemnification for the Cost Consequences of Current Tax Liability Upon
Transmission Owner. [Intentionally left blank.]
5.17.4 Tax Gross-Up Amount. [Intentionally left blank.]
5.17.5 Private Letter Ruling or Change or Clarification of Law. [Intentionally
left blank.]
5.17.6 Subsequent Taxable Events. [Intentionally left blank.]
5.17.7 Contests. [Intentionally left blank.]
5.17.8 Refund. [Intentionally left blank.]
Original Sheet No. 20
EXHIBIT C
5.17.9 Taxes Other Than Income Taxes. [Intentionally left blank.]
5.18 Tax Status. Each Party shall cooperate with the other Parties to maintain
each Party's tax status. Nothing in this LGIA is intended to adversely affect
any Party's tax-exempt status with respect to the issuance of bonds including,
but not limited to, Local Furnishing Bonds.
5.19 Modification.
5.19.1 General. Either Party may undertake modifications to its facilities. If a
Party plans to undertake a modification that reasonably may be expected to
affect another Party's facilities, that Party shall provide to the other Parties
sufficient information regarding such modification so that the other Parties may
evaluate the potential impact of such modification prior to commencement of the
work. Such information shall be deemed to be Confidential Information hereunder
and shall include information concerning the timing of such modifications and
whether such modifications are expected to interrupt the flow of electricity
from the Generating Facility. The Party desiring to perform such work shall
provide the relevant drawings, plans, and specifications to the other Parties at
least ninety (90) Calendar Days in advance of the commencement of the work or
such shorter period upon which the Parties may agree, which agreement shall not
unreasonably be withheld, conditioned or delayed. In the case of Generating
Facility modifications that do not require Interconnection Customer to submit an
Interconnection Request, Transmission Provider shall provide, within thirty (30)
Calendar Days (or such other time as the Parties may agree), an estimate of any
additional modifications to the Transmission or Distribution System as
applicable, Transmission Owner's Interconnection Facilities, Network Upgrades,
Transmission Owner's System Protection Facilities, and/or Distribution Upgrades
necessitated by such Interconnection Customer modification and a good faith
estimate of the costs thereof.
Any Generating Facility modification that would be treated as a new
Interconnection Request under the Transmission Provider's Tariff shall be
governed by the Transmission Provider's Tariff in effect at the time of such
modification including the then effective LGIA and LGIP.
5.19.2 Standards. Any additions, modifications, or replacements made to a
Party's facilities shall be designed, constructed and operated in accordance
with this LGIA and Good Utility Practice.
5.19.3 Modification Costs. Interconnection Customer shall not be directly
assigned the costs of any additions, modifications, or replacements that
Transmission Owner makes to the Transmission Owner's Interconnection Facilities,
Network
Original Sheet No. 21
EXHIBIT C
Upgrades, Transmission Owner's System Protection Facilities, Distribution
Upgrades, or the Transmission or Distribution System, as applicable, to
facilitate the interconnection of a third party to the Transmission Owner's
Interconnection Facilities or the Transmission or Distribution System, as
applicable, or to provide transmission service to a third party under the
Tariff. Interconnection Customer shall be responsible for the costs of any
additions, modifications, or replacements to the Interconnection Customer's
Interconnection Facilities that may be necessary to maintain or upgrade such
Interconnection Customer's Interconnection Facilities consistent with Applicable
Laws and Regulations, Applicable Reliability Standards or Good Utility Practice.
ARTICLE 6. TESTING AND INSPECTION
6.1 Pre-Commercial Operation Date Testing and Modifications. [Intentionally left
blank.]
6.2 Post-Commercial Operation Date Testing and Modifications. Subject to the
provisions of Appendix H, each Party shall at its own expense perform routine
inspection and testing of its facilities and equipment in accordance with Good
Utility Practice as may be necessary to ensure the continued interconnection of
the Generating Facility with the Transmission or Distribution System, as
applicable, in a safe and reliable manner. Each Party shall have the right, upon
advance written notice, to require reasonable additional testing of the
Interconnection Facilities, at the requesting Party's expense, as may be in
accordance with Good Utility Practice.
6.3 Right to Observe Testing. Each Party shall notify the other Parties in
advance of its performance of tests of its Interconnection Facilities. The other
Parties shall each have the right, at its own expense, to observe such testing.
6.4 Right to Inspect. Each Party shall have the right, but shall have no
obligation to: (i) observe Transmission Owner's and Interconnection Customer's
tests and/or inspection of any of their respective System Protection Facilities
and other protective equipment, including power system stabilizers; (ii) review
the settings of the System Protection Facilities and other protective equipment;
and (iii) review the maintenance records relative to the Interconnection
Facilities, the System Protection Facilities and other protective equipment. A
Party may exercise these rights from time to time as it deems necessary upon
reasonable notice to the other Parties. The exercise or non-exercise by a Party
of any such rights shall not be construed as an endorsement or confirmation of
any element or condition of the Interconnection Facilities or the System
Protection Facilities or other protective equipment or the operation thereof, or
as a warranty as to the fitness, safety, desirability, or reliability of same.
Any information that a Party obtains through the exercise of any of its rights
under this Article 6.4 shall be deemed to be Confidential Information and
treated pursuant to Article 22 of this LGIA.
Original Sheet No. 22
EXHIBIT C
ARTICLE 7. METERING
7.1 General. Each Party shall comply with the Applicable Reliability Council
requirements. Unless otherwise agreed by the Parties, Transmission Owner shall
own, operate, test and maintain Metering Equipment at the Palisades Switchyard
for the Main Transformer as set forth in Appendix A, and Transmission Owner
shall be a metering party ("Metering Party") as to such Metering Equipment.
Power flows to and from the Generating Facility shall be measured at the Main
Transformer. The Transmission Owner shall provide metering quantities, in analog
and/or digital form, to the other Parties upon request. Interconnection Customer
shall bear all reasonable documented costs associated with the operation,
testing, maintenance and replacement of the Metering Equipment at the Main
Transformer. Transmission Owner or its designated agent shall have access to
such Metering Equipment in order for Transmission Owner or its designated agent
to read metering quantities. Transmission Owner and Interconnection Customer
shall give Consumers Energy Company ("CE") access to such Metering Equipment in
order for CE to read metering quantities.
CE shall own, operate, test and maintain retail Metering Equipment at the
Startup Transformer and Safeguards Transformer as set forth in Appendix A, and
CE shall be a Metering Party as to such retail Metering Equipment. Power flows
to the Generating Facility shall be measured at the Startup Transformer and
Safeguards Transformer. By separate agreement, Interconnection Customer shall
use reasonable efforts to cause CE to provide retail metering quantities, in
analog and/or digital form, to the Parties upon request. Interconnection
Customer shall bear all reasonable documented costs associated with the
operation, testing, maintenance and replacement of the retail Metering Equipment
at the Startup Transformer and Safeguard Transformer. Transmission Owner and
Interconnection Customer shall give CE access to such retail Metering Equipment
in order for CE to read retail metering quantities and to operate, test,
maintain, and replace such retail Metering Equipment.
CE shall be a third party beneficiary with respect to this Article 7.1.
7.2 Check Meters. Interconnection Customer, at its option and expense, may
install and operate, on its premises and on its side of a Point of
Interconnection, one or more check meters to check the Metering Equipment owned
by a Metering Party. Such check meters shall be for check purposes only and
shall not be used for the measurement of power flows for purposes of this LGIA,
except as provided in Article 7.4 below. The check meters shall be subject at
all reasonable times to inspection and examination by Transmission Provider,
Transmission Owner or their designees. The installation, operation and
maintenance thereof shall be performed entirely by Interconnection Customer in
accordance with Good Utility Practice.
7.3 Standards. The Metering Party shall install, calibrate, and test revenue
quality Metering Equipment in accordance with applicable ANSI standards.
Original Sheet No. 23
EXHIBIT C
7.4 Testing of Metering Equipment. The Metering Party shall inspect and test
Metering Equipment upon installation and at least once every two (2) years
thereafter. If requested to do so by a Party, the Metering Party shall, at the
requesting Party's expense, inspect or test Metering Equipment more frequently
than every two (2) years. The Metering Party shall give reasonable notice to the
other Parties of the time when any inspection or test shall take place, and the
other Parties may have representatives present at the test or inspection. If at
any time Metering Equipment is found to be inaccurate or defective, it shall be
adjusted, repaired or replaced at Interconnection Customer's expense, in order
to provide accurate metering, unless the inaccuracy or defect is due to the
Metering Party's failure to maintain, then the Metering Party shall pay. If
Metering Equipment fails to register, or if the measurement made by Metering
Equipment during a test varies by more than one-half of one percent (0.5%) from
the measurement made by the standard meter used in the test, the Metering Party
shall adjust the measurements by correcting all measurements for the period
during which Metering Equipment was in error by using Interconnection Customer's
check meters, if installed and if when tested varied less than the Metering
Equipment. If no such check meters are installed, the Metering Party will use
the next best available technology to recreate the measurements for the period
in question. If no other data are available, or if the period cannot be
reasonably ascertained, the adjustment shall be for the period immediately
preceding the test of the Metering Equipment equal to one-half the time from the
date of the previous test of the Metering Equipment.
7.5 Metering Data. At Interconnection Customer's expense, the metered data shall
be telemetered by the Metering Party to one or more locations designated by
Transmission Provider and Transmission Owner and one or more locations
designated by Interconnection Customer. Such telemetered data shall be used,
under normal operating conditions, as the official measurement of the amount of
energy delivered from the Generating Facility to the Points of Interconnection.
Original Sheet No. 24
EXHIBIT C
ARTICLE 8. COMMUNICATIONS
8.1 Interconnection Customer Obligations. Interconnection Customer shall
maintain satisfactory operating communications with Transmission Provider's
Transmission System dispatcher or representative designated by Transmission
Provider. Interconnection Customer shall provide standard voice line, dedicated
voice line and facsimile communications at its Generating Facility control room
or central dispatch facility through use of either the public telephone system,
or a voice communications system that does not rely on the public telephone
system. Interconnection Customer shall also arrange for the provision of the
dedicated data circuit(s) necessary to provide Interconnection Customer data to
Transmission Provider as set forth in Appendix D, Security Arrangements Details.
The data circuit(s) shall extend from the Generating Facility to the location(s)
specified by Transmission Provider. Any required maintenance of such
communications equipment shall be performed by and at the cost of
Interconnection Customer. Operational communications shall be activated and
maintained under, but not be limited to, the following events: system
paralleling or separation, scheduled and unscheduled shutdowns, equipment
clearances, and hourly and daily load data.
8.2 Remote Terminal Unit. Prior to the Effective Date of the Generating
Facility, a Remote Terminal Unit, or equivalent data collection and transfer
equipment acceptable to both Parties, shall be installed by Interconnection
Customer, and/or by Transmission Owner at Interconnection Customer's expense, to
gather accumulated and instantaneous data to be telemetered to the location(s)
designated by Transmission Owner and Transmission Provider through use of a
dedicated point-to-point data circuit(s) as indicated in Article 8.1. The
communication protocol for the data circuit(s) shall be specified by
Transmission Owner and Transmission Provider. Instantaneous bi-directional
analog real power and reactive power flow information must be telemetered
directly to the location(s) specified by Transmission Provider and Transmission
Owner. Each Party will promptly advise the other Parties if it detects or
otherwise learns of any metering, telemetry or communications equipment errors
or malfunctions that require the attention and/or correction. The Party owning
such equipment shall correct such error or malfunction as soon as reasonably
feasible.
8.3 No Annexation. Any and all equipment placed on the premises of a Party shall
be and remain the property of the Party providing such equipment regardless of
the mode and manner of annexation or attachment to real property, unless
otherwise mutually agreed by the Parties.
ARTICLE 9. OPERATIONS
9.1 General. Each Party shall comply with the Applicable Reliability Council
requirements. Each Party shall provide to any Party all information that may
reasonably be required by
Original Sheet No. 25
EXHIBIT C
that Party to comply with Applicable Laws and Regulations and Applicable
Reliability Standards.
9.2 Control Area Notification. At least three months before Initial
Synchronization Date, the Interconnection Customer shall notify the Transmission
Provider and Transmission Owner in writing of the Control Area in which the
Generating Facility will be located. If the Interconnection Customer elects to
locate the Generating Facility through dynamic metering/scheduling in a Control
Area other than the Control Area in which the Generating Facility is physically
located, and if permitted to do so by the relevant transmission tariffs, all
necessary arrangements, including but not limited to those set forth in Article
7 and Article 8 of this LGIA, and remote Control Area generator interchange
agreements, if applicable, and the appropriate measures under such agreements,
shall be executed and implemented prior to the placement of the Generating
Facility in the other Control Area.
9.3 Transmission Provider and Transmission Owner Obligations. Transmission
Provider shall cause the Transmission System and the Transmission Owner's
Interconnection Facilities to be operated, maintained and controlled in a safe
and reliable manner in accordance with this LGIA. Transmission Provider, or its
designee, may provide operating instructions to Interconnection Customer
consistent with this LGIA and Transmission Provider's and, if applicable,
Transmission Owner's operating protocols and procedures as they may change from
time to time. Transmission Provider will consider changes to its operating
protocols and procedures proposed by Interconnection Customer. The Transmission
Provider or Transmission Owner, as applicable, shall, in accordance with NRC
Requirements and Commitments, Appendix H, Applicable Laws and Regulations,
Applicable Reliability Standards, and Good Utility Practice, operate the
Transmission System in order to maintain voltage and frequency levels at
Palisades Switchyard within limits established for safe operation of the
Generating Facility and to allow the Generating Facility to obtain reliable
supplies of off-site power. If Transmission Provider or Transmission Owner
changes any Applicable Reliability Standard, then Transmission Provider or
Transmission Owner, as applicable, shall notify Interconnection Customer in
order to allow Interconnection Customer to comply with NRC Requirements and
Commitments for the safe and reliable operation of the Generating Facility.
9.4 Interconnection Customer Obligations. Interconnection Customer shall at its
own expense operate, maintain and control the Generating Facility and the
Interconnection Customer's Interconnection Facilities in a safe and reliable
manner and in accordance with this LGIA. The Generating Facility must be
operated in accordance with the operating limits, if any, in the Interconnection
Facilities Study and specified in Appendix C of this LGIA. Interconnection
Customer shall operate the Generating Facility and the Interconnection
Customer's Interconnection Facilities in accordance with all applicable
requirements of the Transmission Provider or its designated Control Area
Operator of which the Generating Facility is part, as such requirements are set
forth in Appendix C, Interconnection Details, of this LGIA. Appendix C,
Interconnection Details, will be modified to reflect changes to the requirements
as they may change from time to time.
Original Sheet No. 26
EXHIBIT C
Any Party may request that a Party provide copies of the requirements set forth
in Appendix C, Interconnection Details, of this LGIA.
9.5 Start-Up and Synchronization. Consistent with the Parties' mutually
acceptable procedures, the Interconnection Customer is responsible for the
proper synchronization of the Generating Facility to the Transmission or
Distribution System, as applicable.
9.6 Reactive Power.
9.6.1 Power Factor Design Criteria. The Generating Facility is capable of
maintaining a composite power delivery at 802 MW at the Point of Interconnection
at all power factors over 0.967 leading to 0.981 lagging. This reactive power
capability may be restricted to lower values when the 345 kV bus at Palisades
Switchyard is operating at higher voltages and/or the real power output of the
Generating Facility, measured at the Point of Interconnection, is higher than
802 MW. This reactive power capability may be increased when the 345 kV bus at
Palisades Switchyard is operating at lower voltages and/or the real power output
of the Generating Facility, measured at the Point of Interconnection, is less
than 802 MW. The Generating Facility shall be capable of continuous dynamic
operation throughout the power factor design range as measured at the Point of
Interconnection. Such operation shall account for the net effect of all energy
production devices on the Interconnection Customer's side of the Point of
Interconnection.
9.6.2 Voltage Schedules. Transmission Provider shall require Interconnection
Customer to operate the Generating Facility to produce or absorb reactive power
within the design limitations of the Generating Facility set forth in Article
9.6.1 (Power Factor Design Criteria), to maintain the output voltage or power
factor at the Point of Interconnection as specified by the Transmission
Provider. Transmission Provider's voltage schedules shall treat all sources of
reactive power in the Control Area in an equitable and not unduly discriminatory
manner. Transmission Provider shall exercise Reasonable Efforts to provide
Interconnection Customer with such schedules at least one (1) day in advance,
and may make changes to such schedules as necessary to maintain the reliability
of the Transmission or Distribution System as applicable. Interconnection
Customer shall, consistent with NRC Requirements and Commitments, operate the
Generating Facility to maintain the specified output voltage or power factor at
the Point of Interconnection within the design limitations of the Generating
Facility set forth in Article 9.6.1 (Power Factor Design Criteria). If
Interconnection Customer is unable to maintain the specified voltage or power
factor, it shall promptly notify Transmission Provider's system operator, or its
designated representative.
9.6.2.1 Governors and Regulators. Whenever the Generating Facility is operated
in parallel with the Transmission or Distribution System as applicable and the
speed governors (if installed on the generating unit pursuant to Good Utility
Practice) and voltage regulators are capable of operation, Interconnection
Customer shall
Original Sheet No. 27
EXHIBIT C
operate the Generating Facility with its speed governors and voltage regulators
in automatic operation. If the Generating Facility's speed governors and voltage
regulators are not capable of such automatic operation, the Interconnection
Customer shall immediately notify Transmission Provider's system operator, or
its designated representative, and ensure that such Generating Facility's
reactive power production or absorption (measured in MVARs) are within the
design capability of the Generating Facility's generating unit(s) and steady
state stability limits. Interconnection Customer shall not cause its Generating
Facility to disconnect automatically or instantaneously from the Transmission or
Distribution System, as applicable, or trip any generating unit comprising the
Generating Facility for an under or over frequency condition unless the abnormal
frequency condition persists for a time period beyond the limits set forth in
ANSI/IEEE Standard C37.106, or such other standard as applied to other
generators in the Control Area on a comparable basis.
9.6.3 Payment for Reactive Power. Payments for reactive power shall be pursuant
to any tariff or rate schedule filed by the Transmission Provider and approved
by the FERC.
9.7 Outages and Interruptions.
9.7.1 Outages.
9.7.1.1 Outage Authority and Coordination. Interconnection Customer and
Transmission Owner may each in accordance with Good Utility Practice in
coordination with the other Party and Transmission Provider remove from service
any of its respective Interconnection Facilities, System Protection Facilities,
Network Upgrades, System Protection Facilities or Distribution Upgrades that may
impact the other Party's facilities as necessary to perform maintenance or
testing or to install or replace equipment. Absent an Emergency Condition, the
Party scheduling a removal of such facility(ies) from service will use
Reasonable Efforts to notify one another and schedule such removal on a date and
time mutually acceptable to the Parties. In all circumstances, any Party
planning to remove such facility(ies) from service shall use Reasonable Efforts
to minimize the effect on the other Parties of such removal.
9.7.1.2 Outage Schedules. The Transmission Provider shall post scheduled outages
of transmission facilities on the OASIS. Interconnection Customer shall submit
its planned maintenance schedules for the Generating Facility to Transmission
Provider and Transmission Owner for a minimum of a rolling twenty-four month
period in accordance with the Transmission Provider's procedures.
Interconnection Customer shall
Original Sheet No. 28
EXHIBIT C
update its planned maintenance schedules as necessary. Transmission Provider may
request Interconnection Customer to reschedule its maintenance as necessary to
maintain the reliability of the Transmission System; provided, however, adequacy
of generation supply shall not be a criterion in determining Transmission System
reliability. Transmission Provider shall compensate, pursuant to applicable
Transmission Provider tariff or rate schedule, Interconnection Customer for any
additional direct costs that the Interconnection Customer incurs as a result of
having to reschedule maintenance, including any additional overtime, breaking of
maintenance contracts or other costs above and beyond the cost the
Interconnection Customer would have incurred absent the Transmission Provider's
request to reschedule maintenance. Interconnection Customer will not be eligible
to receive compensation, if during the twelve (12) months prior to the date of
the scheduled maintenance, the Interconnection Customer had modified its
schedule of maintenance activities.
Costs shall be determined by negotiation between the Transmission Provider and
Interconnection Customer prior to implementation of the voluntary change in
outage schedules, or if such request is made by or on behalf of a Transmission
Customer requesting firm service, costs and recovery of costs shall be
determined through a bilateral agreement between the Transmission Customer and
the Interconnection Customer. Voluntary changes to outage schedules under this
Article 9.7.1.2 are separate from actions and compensation required under
Article 13 and for which costs are recovered in accordance with Transmission
Provider's applicable tariff or rate schedule.
9.7.1.3 Outage Restoration. If an outage on either the Interconnection
Customer's or Transmission Owner's Interconnection Facilities, Network Upgrades,
System Protection Facilities or Distribution Upgrades adversely affects a
Party's operations or facilities, the Party that owns or controls the facility
that is out of service shall use Reasonable Efforts to promptly restore such
facility(ies) to a normal operating condition consistent with the nature of the
outage. The Party that owns or controls the facility that is out of service
shall provide the other Parties, to the extent such information is known,
information on the nature of the Emergency Condition, an estimated time of
restoration, and any corrective actions required. Initial verbal notice shall be
followed up as soon as practicable with written notice to the other Parties
explaining the nature of the outage.
9.7.2 Interruption of Service. If required by Good Utility Practice to do so,
Transmission Provider may require Interconnection Customer to interrupt or
reduce deliveries of electricity if such delivery of electricity could adversely
affect Transmission Provider's ability to perform such activities as are
necessary
Original Sheet No. 29
EXHIBIT C
to safely and reliably operate and maintain the Transmission System. The
following provisions shall apply to any interruption or reduction permitted
under this Article 9.7.2:
9.7.2.1 The interruption or reduction shall continue only for so long as
reasonably necessary under Good Utility Practice;
9.7.2.2 Any such interruption or reduction shall be made on an equitable,
nondiscriminatory basis with respect to all generating facilities directly
connected to the Transmission or Distribution System, as applicable;
9.7.2.3 When the interruption or reduction must be made under circumstances
which do not allow for advance notice, Transmission Provider shall notify
Interconnection Customer by telephone as soon as practicable of the reasons for
the curtailment, interruption, or reduction, and, if known, its expected
duration. Telephone notification shall be followed by written notification as
soon as practicable;
9.7.2.4 Except during the existence of an Emergency Condition, when the
interruption or reduction can be scheduled without advance notice, Transmission
Provider shall notify Interconnection Customer in advance regarding the timing
of such scheduling and further notify Interconnection Customer of the expected
duration. Transmission Provider shall coordinate with the Interconnection
Customer using Good Utility Practice to schedule the interruption or reduction
during periods of least impact to the Interconnection Customer, Transmission
Owner and the Transmission Provider;
9.7.2.5 The Parties shall cooperate and coordinate with each other to the extent
necessary in order to restore the Generating Facility, Interconnection
Facilities, and the Transmission or Distribution System, as applicable to their
normal operating state, consistent with system conditions and Good Utility
Practice.
9.7.3 Under-Frequency and Over Frequency Conditions. The Transmission System is
designed to automatically activate a load-shed program as required by the
Applicable Reliability Council in the event of an under-frequency system
disturbance. Interconnection Customer shall implement under-frequency and
over-frequency relay set points for the Generating Facility as required by the
Applicable Reliability Council to ensure "ride through" capability of the
Transmission System. Generating Facility response to frequency deviations of
pre-determined magnitudes, both under-frequency and over-frequency deviations,
shall be studied and coordinated with the Transmission Provider in accordance
with Good Utility Practice. The term "ride through" as used herein shall mean
the ability of a Generating Facility to stay connected to and synchronized with
the Transmission System during system disturbances within a range of under
Original Sheet No. 30
EXHIBIT C
frequency and over-frequency conditions, in accordance with Good Utility
Practice.
9.7.4 System Protection and Other Control Requirements.
9.7.4.1 System Protection Facilities. Interconnection Customer shall, at its
expense, install, operate and maintain its System Protection Facilities as a
part of the Generating Facility or the Interconnection Customer's
Interconnection Facilities. Transmission Owner shall install at Interconnection
Customer's expense any Transmission Owner's System Protection Facilities that
may be required on the Transmission Owner's Interconnection Facilities or the
Transmission Owner's transmission or distribution facilities as a result of the
interconnection of the Generating Facility and the Interconnection Customer's
Interconnection Facilities.
9.7.4.2 Interconnection Customer's and Transmission Owner's System Protection
Facilities shall be designed and coordinated with Affected Systems in accordance
with Good Utility Practice.
9.7.4.3 Each Party shall be responsible for protection of its facilities
consistent with Good Utility Practice.
9.7.4.4 Each Party's protective relay design shall incorporate the necessary
test switches to perform the tests required in Article 6. The required test
switches will be placed such that they allow operation of lockout relays while
preventing breaker failure schemes from operating and causing unnecessary
breaker operations and/or the tripping of the Generating Facility.
9.7.4.5 Each Party will test, operate and maintain their respective System
Protection Facilities in accordance with Good Utility Practice.
9.7.4.6 Prior to the In-Service Date, and again prior to the Commercial
Operation Date, Interconnection Customer or Transmission Owner, or their
respective agents, shall perform a complete calibration test and functional trip
test of the System Protection Facilities. At intervals suggested by Good Utility
Practice and following any apparent malfunction of the System Protection
Facilities, Interconnection Customer or Transmission Owner shall each perform
both calibration and functional trip tests of their respective System Protection
Facilities. These tests do not require the tripping of any in-service generating
unit. These tests do, however, require that all protective relays and lockout
contacts be activated.
9.7.5 Requirements for Protection. In compliance with Good Utility Practice,
Interconnection Customer shall provide, install, own, and maintain relays,
circuit
Original Sheet No. 31
EXHIBIT C
breakers and all other devices necessary to remove any fault contribution of the
Generating Facility to any short circuit occurring on the Transmission or
Distribution System, as applicable, not otherwise isolated by Transmission
Owner's equipment, such that the removal of the fault contribution shall be
coordinated with the protective requirements of the Transmission or Distribution
System, as applicable. Such protective equipment shall include, without
limitation, a disconnecting device or switch with load-interrupting capability
located between the Generating Facility and the Transmission or Distribution
System, as applicable, at a site selected upon mutual agreement (not to be
unreasonably withheld, conditioned or delayed) of the Parties. Interconnection
Customer shall be responsible for protection of the Generating Facility and
Interconnection Customer's other equipment from such conditions as negative
sequence currents, over- or under-frequency, sudden load rejection, over- or
under-voltage, and generator loss-of-field. Interconnection Customer shall be
solely responsible to disconnect the Generating Facility and Interconnection
Customer's other equipment if conditions on the Transmission or Distribution
System, as applicable, could adversely affect the Generating Facility.
9.7.6 Power Quality. Neither Party's facilities shall cause excessive voltage
flicker nor introduce excessive distortion to the sinusoidal voltage or current
waves as defined by ANSI Standard C84.1-1989, in accordance with IEEE Standard
519, or any applicable superseding electric industry standard. In the event of a
conflict between ANSI Standard C84.1-1989, and any applicable superseding
electric industry standard, the applicable superseding electric industry
standard shall control.
9.8 Switching and Tagging Rules. Prior to the Effective Date, each Party shall
provide the other Parties a copy of its switching and tagging rules that are
applicable to the other Parties' activities. Such switching and tagging rules
shall be developed on a nondiscriminatory basis. The Parties shall comply with
applicable switching and tagging rules, as amended from time to time, in
obtaining clearances for work or for switching operations on equipment.
9.9 Use of Interconnection Facilities by Other Parties.
9.9.1 Purpose of Interconnection Facilities. Except as may be required by
Applicable Laws and Regulations, or as otherwise agreed to among the Parties,
the Interconnection Facilities shall be constructed for the sole purpose of
interconnecting the Generating Facility to the Transmission or Distribution
System, as applicable, and shall be used for no other purpose.
9.9.2 Other Users. If required by Applicable Laws and Regulations or if the
Parties mutually agree, such agreement not to be unreasonably withheld or
delayed, to allow one or more parties to use the Transmission Owner's
Interconnection Facilities, or any part thereof, Interconnection Customer will
be entitled to compensation for the capital expenses it incurred in connection
with the
Original Sheet No. 32
EXHIBIT C
Interconnection Facilities based upon the pro rata use of the Interconnection
Facilities by Transmission Owner, all non-party users, and Interconnection
Customer, in accordance with Applicable Laws and Regulations or upon some other
mutually-agreed upon methodology. In addition, cost responsibility for ongoing
costs, including operation and maintenance costs associated with the
Interconnection Facilities, will be allocated between Interconnection Customer
and any non-party users based upon the pro rata use of the Interconnection
Facilities by Transmission Owner, all non-party users, and Interconnection
Customer, in accordance with Applicable Laws and Regulations or upon some other
mutually agreed upon methodology. If the issue of such compensation or
allocation cannot be resolved through such negotiations, it shall be submitted
to Dispute Resolution pursuant to Section 12 of the Tariff.
9.10 Disturbance Analysis Data Exchange. The Parties will cooperate with one
another in the analysis of disturbances to either the Generating Facility or the
Transmission System by gathering and providing access to any information
relating to any disturbance, including information from oscillography,
protective relay targets, breaker operations and sequence of events records, and
any disturbance information required by Good Utility Practice.
9.11 Palisades Nuclear Generating Plant. Transmission Provider, Transmission
Owner, and Interconnection Customer agree that specific transmission system
operating limitations, parameters and requirements necessary to satisfy NRC
Operating License, NRC Requirements and Commitments, and design requirements
applicable to the Generating Facility are identified in Appendix H and shall be
adhered to by all Parties. Interconnection Customer shall be solely responsible
for obtaining, at its cost, and pursuant to the applicable tariff, station power
and offsite power for the Generating Facility, including any transmission
charges associated with such energy.
ARTICLE 10. MAINTENANCE
10.1 Transmission Owner Obligations. Transmission Owner shall maintain the
Transmission Owner's Interconnection Facilities in a safe and reliable manner
and in accordance with this LGIA and all Applicable Laws and Regulations.
10.2 Interconnection Customer Obligations. Interconnection Customer shall
maintain the Generating Facility and the Interconnection Customer's
Interconnection Facilities in a safe and reliable manner and in accordance with
this LGIA and all Applicable Laws and Regulations.
10.3 Coordination. The Parties shall confer regularly to coordinate the
planning, scheduling and performance of preventive and corrective maintenance on
the Generating Facility and the Interconnection Facilities.
10.4 Secondary Systems. Each Party shall cooperate with the other in the
inspection, maintenance, and testing of control or power circuits that operate
below 600 volts, AC or
Original Sheet No. 33
EXHIBIT C
DC, including, but not limited to, any hardware, control or protective devices,
cables, conductors, electric raceways, secondary equipment panels, transducers,
batteries, chargers, and voltage and current transformers that directly affect
the operation of a Party's facilities and equipment which may reasonably be
expected to impact another Party. Each Party shall provide advance notice to the
other Parties before undertaking any work on such circuits, especially on
electrical circuits involving circuit breaker trip and close contacts, current
transformers, or potential transformers.
10.5 Operating and Maintenance Expenses. Subject to the provisions herein
addressing the use of facilities by others, and except for operations and
maintenance expenses associated with modifications made for providing
interconnection or transmission service to a nonparty and such non-party pays
for such expenses, Interconnection Customer shall be responsible for all
reasonable expenses including overheads, associated with: (1) owning, operating,
maintaining, repairing, and replacing Interconnection Customer's Interconnection
Facilities; and (2) operation, maintenance, repair and replacement of
Transmission Owner's Interconnection Facilities to the extent required by the
Transmission Owner on a comparable basis.
ARTICLE 11. PERFORMANCE OBLIGATION
11.1 Interconnection Customer's Interconnection Facilities. Interconnection
Customer's Interconnection Facilities are described in Appendix A.
11.2 Transmission Owner's Interconnection Facilities. Transmission Owner shall
design, procure, construct, install, own and/or control the Transmission Owner's
Interconnection Facilities at the sole expense of the Interconnection Customer.
11.3 Network Upgrades, System Protection Facilities and Distribution Upgrades.
There are no Network Upgrades, Distribution Upgrades, or additional Transmission
Owner System Protection Facilities required at this time.
11.3.1 Contingencies Affecting Network Upgrades, System Protection Facilities
and Distribution Upgrades. [Intentionally left blank]
11.3.2 Agreement to Restudy. [Intentionally left blank]
11.4 Transmission Credits. [Intentionally left blank]
11.4.1 Repayment of Amounts Advanced for Network Upgrades. [Intentionally
left blank]
11.4.2 Special Provisions for the Transmission Provider as an Affected System.
[Intentionally left blank]
11.4.3 [Intentionally left blank]
Original Sheet No. 34
EXHIBIT C
11.5 Provision of Security. [Intentionally left blank]
11.5.1 [Intentionally left blank]
11.5.2 [Intentionally left blank]
11.5.3 [Intentionally left blank]
11.6 Interconnection Customer Compensation. If Transmission Provider requests or
directs Interconnection Customer to provide a service pursuant to Article 13.4
of this LGIA, Transmission Provider shall compensate Interconnection Customer in
accordance with any tariff or rate schedule filed by the Transmission Provider
and approved by the FERC.
ARTICLE 12. INVOICE
12.1 General. Each Party shall submit to the other Party, on a monthly basis,
invoices of amounts due, if any, for the preceding month. Each invoice shall
state the month to which the invoice applies and fully describe the services and
equipment provided. The Parties may discharge mutual debts and payment
obligations due and owing to each other on the same date through netting, in
which case all amounts a Party owes to the other Party under this LGIA,
including interest payments or credits, shall be netted so that only the net
amount remaining due shall be paid by the owing Party.
12.2 Final Invoice. [Intentionally left blank.]
12.3 Payment. Invoices shall be rendered to the paying Party at the address
specified in Appendix F. The Party receiving the invoice shall pay the invoice
within thirty (30) Calendar Days of receipt. All payments shall be made in
immediately available funds payable to the other Party, or by wire transfer to a
bank named and account designated by the invoicing Party. Payment of invoices by
a Party will not constitute a waiver of any rights or claims that Party may have
under this LGIA.
12.4 Disputes. In the event of a billing dispute among the Parties, Transmission
Provider shall continue to provide Interconnection Service under this LGIA as
long as Interconnection Customer: (i) continues to make all payments not in
dispute; and (ii) pays to Transmission Provider or Transmission Owner or into an
independent escrow account the portion of the invoice in dispute, pending
resolution of such dispute. If Interconnection Customer fails to meet these two
requirements for continuation of service, then Transmission Provider may or, at
Transmission Owner's request upon Interconnection Customer's failure to pay,
Transmission Owner, shall provide notice to Interconnection Customer of a
Default pursuant to Article 17. Within thirty (30) Calendar Days after the
resolution of the dispute, the Party that owes money to another Party shall pay
the amount due with interest calculated in accord with the methodology set forth
in 18 C.F.R. Section 35.19a(a)(2)(iii).
Original Sheet No. 35
EXHIBIT C
ARTICLE 13. EMERGENCIES
13.1 Obligations. Each Party shall comply with the Emergency Condition
procedures of the Transmission Provider, NERC, the Applicable Reliability
Council, and Applicable Laws and Regulations.
13.2 Notice. Transmission Provider or Transmission Owner shall notify the other
Parties promptly when it becomes aware of an Emergency Condition that affects
the Transmission Owner's Interconnection Facilities or the Transmission or
Distribution System, as applicable, that may reasonably be expected to affect
Interconnection Customer's operation of the Generating Facility or the
Interconnection Customer's Interconnection Facilities.
Interconnection Customer shall notify Transmission Provider and Transmission
Owner, which includes by definition if applicable, the operator of a
distribution system, promptly when it becomes aware of an Emergency Condition
that affects the Generating Facility or the Interconnection Customer's
Interconnection Facilities that may reasonably be expected to affect the
Transmission or Distribution System, as applicable, or the Transmission Owner's
Interconnection Facilities.
To the extent information is known, the notification shall describe the
Emergency Condition, the extent of the damage or deficiency, the expected effect
on the operation of Interconnection Customer's or Transmission Provider's or
Transmission Owner's facilities and operations, its anticipated duration and the
corrective action taken and/or to be taken. The initial notice shall be followed
as soon as practicable with written notice.
13.3 Immediate Action. Unless, in a Party's reasonable judgment, immediate
action is required, the Party exercising such judgment shall notify and obtain
the consent of the other Parties, such consent to not be unreasonably withheld,
prior to performing any manual switching operations at the Generating Facility
or the Interconnection Customer's Interconnection Facilities in response to an
Emergency Condition either declared by the Transmission Provider or otherwise
regarding the Transmission or Distribution System, as applicable.
13.4 Transmission Provider and Transmission Owner Authority.
13.4.1 General. Transmission Provider or Transmission Owner may take whatever
actions or inactions with regard to the Transmission System or the Transmission
Owner's Interconnection Facilities it deems necessary during an Emergency
Condition in order to (i) preserve public health and safety, (ii) preserve the
reliability of the Transmission System or the Transmission Owner's
Interconnection Facilities, (iii) limit or prevent damage, and (iv) expedite
restoration of service.
Original Sheet No. 36
EXHIBIT C
Transmission Provider or Transmission Owner shall use Reasonable Efforts to
minimize the effect of such actions or inactions on the Generating Facility or
the Interconnection Customer's Interconnection Facilities. Transmission Provider
or Transmission Owner may, on the basis of technical considerations, require the
Generating Facility to mitigate an Emergency Condition by taking actions
necessary and limited in scope to remedy the Emergency Condition, including, but
not limited to, directing Interconnection Customer to shut-down, start-up,
increase or decrease the real or reactive power output of the Generating
Facility; implementing a reduction or disconnection pursuant to Article 13.5.2;
directing the Interconnection Customer to assist with blackstart (if available)
or restoration efforts; or altering the outage schedules of the Generating
Facility and the Interconnection Customer's Interconnection Facilities.
Interconnection Customer shall comply with all of Transmission Provider's or
Transmission Owner's operating instructions concerning Generating Facility real
power and reactive power output within the manufacturer's design limitations of
the Generating Facility's equipment that is in service and physically available
for operation at the time, in compliance with Applicable Laws and Regulations.
13.4.2 Reduction and Disconnection. Transmission Provider or Transmission Owner
may reduce Interconnection Service or disconnect the Generating Facility or the
Interconnection Customer's Interconnection Facilities, when such, reduction or
disconnection is necessary under Good Utility Practice due to Emergency
Conditions. These rights are separate and distinct from any right of curtailment
of the Transmission Provider pursuant to the Tariff. When the Transmission
Provider can schedule the reduction or disconnection in advance, Transmission
Provider shall notify Interconnection Customer of the reasons, timing and
expected duration of the reduction or disconnection. Transmission Provider shall
coordinate with the Interconnection Customer and Transmission Owner using Good
Utility Practice to schedule the reduction or disconnection during periods of
least impact to the Interconnection Customer, Transmission Owner and the
Transmission Provider. Any reduction or disconnection shall continue only for so
long as reasonably necessary under Good Utility Practice. The Parties shall
cooperate with each other to restore the Generating Facility, the
Interconnection Facilities, and the Transmission System to their normal
operating state as soon as practicable consistent with Good Utility Practice.
13.5 Interconnection Customer Authority. Consistent with Good Utility Practice
and this LGIA and the LGIP, the Interconnection Customer may take whatever
actions or inactions with regard to the Generating Facility or the
Interconnection Customer's Interconnection Facilities during an Emergency
Condition in order to (i) preserve public health and safety, (ii) preserve the
reliability of the Generating Facility or the Interconnection Customer's
Interconnection Facilities, (iii) limit or prevent damage, (iv) expedite
restoration of service, and (v) comply with NRC Requirements and Commitments.
Interconnection Customer shall use Reasonable Efforts to minimize the effect of
such actions or inactions on the Transmission System and the Transmission
Original Sheet No. 37
EXHIBIT C
Owner's Interconnection Facilities. Transmission Provider and Transmission Owner
shall use Reasonable Efforts to assist Interconnection Customer in such actions.
13.6 Limited Liability. Except as otherwise provided in Article 11.6 of this
LGIA, no Party shall be liable to the other for any action it takes in
responding to an Emergency Condition so long as such action is made in good
faith and is consistent with Good Utility Practice.
13.7 Audit. In accordance with Article 25.3, any Party may audit the performance
of another Party when that Party declared an Emergency Condition.
ARTICLE 14. REGULATORY REQUIREMENTS AND GOVERNING LAW
14.1 Regulatory Requirements. Each Party's obligations under this LGIA shall be
subject to its receipt of any required approval or certificate from one or more
Governmental Authorities in the form and substance satisfactory to the applying
Party, or the Party making any required filings with, or providing notice to,
such Governmental Authorities, and the expiration of any time period associated
therewith. Each Party shall in good faith seek, and if necessary assist the
other Party and use its Reasonable Efforts to obtain such other approvals.
Nothing in this LGIA shall require Interconnection Customer to take any action
that could (i) result in its inability to obtain, or its loss of, status or
exemption under the Federal Power Act, the Public Utility Holding Company Act of
1935, as amended, the Public Utility Holding Company Act of 2005, or the Public
Utility Regulatory Policies Act of 1978, or (ii) cause it to fail to satisfy any
of its NRC Requirements and Commitments.
14.2 Governing Law.
14.2.1 The validity, interpretation and performance of this LGIA and each of its
provisions shall be governed by the laws of the state where the Point of
Interconnection is located, without regard to its conflicts of law principles.
14.2.2 This LGIA is subject to all Applicable Laws and Regulations.
14.2.3 Each Party expressly reserves the right to seek changes in, appeal, or
otherwise contest any laws, orders, rules, or regulations of a Governmental
Authority.
ARTICLE 15. NOTICES
15.1 General. Unless otherwise provided in this LGIA, any notice, demand or
request required or permitted to be given by any Party to the other Parties and
any instrument required or permitted to be tendered or delivered by a Party in
writing to the other Parties shall be effective when delivered and may be so
given, tendered or delivered, by recognized national courier, or by depositing
the same with the United States Postal
Original Sheet No. 38
EXHIBIT C
Service with postage prepaid, for delivery by certified or registered mail,
addressed to the Party, or personally delivered to the Party, at the address set
out in Appendix F, Addresses for Delivery of Notices and Billings.
Either Party may change the notice information in this LGIA by giving five (5)
Business Days written notice prior to the effective date of the change.
15.2 Billings and Payments. Billings and payments shall be sent to the addresses
set out in Appendix F.
15.3 Alternative Forms of Notice. Any notice or request required or permitted to
be given by any Party to the other and not required by this LGIA to be given in
writing may be so given by telephone, facsimile or email to the telephone
numbers and email addresses set out in Appendix F.
15.4 Operations and Maintenance Notice. Each Party shall notify the other
Parties in writing of the identity of the person(s) that it designates as the
point(s) of contact with respect to the implementation of Articles 9 and 10.
15.5 Palisades Supplement Notice. Notices required under Exhibit A of Appendix H
shall be addressed and delivered as indicated in paragraph 14 of Exhibit A of
Appendix H.
ARTICLE 16. FORCE MAJEURE
16.1 Force Majeure.
16.1.1 Economic hardship is not considered a Force Majeure event.
16.1.2 A Party shall not be considered to be in Default with respect to any
obligation hereunder, (including obligations under Article 4 and 5), other than
the obligation to pay money when due, if prevented from fulfilling such
obligation by Force Majeure. A Party unable to fulfill any obligation hereunder
(other than an obligation to pay money when due) by reason of Force Majeure
shall give notice and the full particulars of such Force Majeure to the other
Parties in writing or by telephone as soon as reasonably possible after the
occurrence of the cause relied upon. Telephone, facsimile or email notices given
pursuant to this Article shall be confirmed in writing as soon as reasonably
possible and shall specifically state full particulars of the Force Majeure, the
time and date when the Force Majeure occurred and when the Force Majeure is
reasonably expected to cease. The Party affected shall exercise Reasonable
Efforts to remove such disability with reasonable dispatch, but shall not be
required to accede or agree to any provision not satisfactory to it in order to
settle and terminate a strike or other labor disturbance.
Original Sheet No. 39
EXHIBIT C
ARTICLE 17. DEFAULT
17.1 Default
17.1.1 General. No Default shall exist where such failure to discharge an
obligation (other than the payment of money) is the result of Force Majeure as
defined in this LGIA or the result of an act or omission of another Party. Upon
a Breach, the non-Breaching Party or Parties shall give written notice of such
Breach to the Breaching Party with a copy to the other Party if one Party gives
notice of such Breach. Except as provided in Article 17.1.2, the Breaching Party
shall have thirty (30) Calendar Days from receipt of the Breach notice within
which to cure such Breach; provided however, if such Breach is not capable of
cure within thirty (30) Calendar Days, the Breaching Party shall commence such
cure within thirty (30) Calendar Days after notice and continuously and
diligently complete such cure within ninety (90) Calendar Days from receipt of
the Breach notice; and, if cured within such time, the Breach specified in such
notice shall cease to exist.
17.1.2 Right to Terminate. If a Breach is not cured as provided in this Article,
or if a Breach is not capable of being cured within the period provided for
herein, the non-Breaching Party or Parties shall have the right to terminate
this LGIA by written notice to the Breaching Party at any time until cure
occurs, with a copy to the other Party if one Party gives notice of such right
to terminate, and be relieved of any further obligation hereunder and, whether
or not that Party(ies) terminates this LGIA, to recover from the Breaching Party
all amounts due hereunder, plus all other damages and remedies to which it is
(they are) entitled at law or in equity. The provisions of this Article will
survive termination of this LGIA.
ARTICLE 18. LIMITATION OF LIABILITY, INDEMNITY, CONSEQUENTIAL
DAMAGES AND INSURANCE
18.1 Limitation of Liability. A Party shall not be liable to another Party or to
any third party or other person for any damages arising out of actions under
this LGIA, including, but not limited to, any act or omission that results in an
interruption, deficiency or imperfection of Interconnection Service, except as
provided in this Tariff. The provisions set forth in the Tariff shall be
additionally applicable to any Party acting in good faith to implement or comply
with its obligations under this LGIA.
18.2 Indemnity. An Indemnifying Party shall at all times indemnify, defend and
hold the other Parties harmless from Loss.
Original Sheet No. 40
EXHIBIT C
18.2.1 Indemnified Party. If an Indemnified Party is entitled to indemnification
under this Article 18 as a result of a claim by a non-party, and the
Indemnifying Party fails, after notice and reasonable opportunity to proceed
under Article 18.2, to assume the defense of such claim, such Indemnified Party
may at the expense of the Indemnifying Party contest, settle or consent to the
entry of any judgment with respect to, or pay in full, such claim.
18.2.2 Indemnifying Party. If an Indemnifying Party is obligated to indemnify
and hold any Indemnified Party harmless under this Article 18, the amount owing
to the Indemnified Party shall be the amount of such Indemnified Party's actual
Loss, net of any insurance or other recovery.
18.2.3 Indemnity Procedures. Promptly after receipt by an Indemnified Party of
any claim or notice of the commencement of any action or administrative or legal
proceeding or investigation as to which the indemnity provided for in Article
18.2 may apply, the Indemnified Party shall notify the Indemnifying Party of
such fact. Any failure of or delay in such notification shall not affect a
Party's indemnification obligation unless such failure or delay is materially
prejudicial to the Indemnifying Party.
The Indemnifying Party shall have the right to assume the defense thereof with
counsel designated by such Indemnifying Party and reasonably satisfactory to the
Indemnified Party. If the defendants in any such action include one or more
Indemnified Parties and the Indemnifying Party and if the Indemnified Party
reasonably concludes that there may be legal defenses available to it and/or
other Indemnified Parties which are different from or additional to those
available to the Indemnifying Party, the Indemnified Party shall have the right
to select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on its own behalf. In such instances,
the Indemnifying Party shall only be required to pay the fees and expenses of
one additional attorney to represent an Indemnified Party or Indemnified Parties
having such differing or additional legal defenses.
The Indemnified Party shall be entitled, at its expense, to participate in any
such action, suit or proceeding, the defense of which has been assumed by the
Indemnifying Party. Notwithstanding the foregoing, the Indemnifying Party (i)
shall not be entitled to assume and control the defense of any such action, suit
or proceedings if and to the extent that, in the opinion of the Indemnified
Party and its counsel, such action, suit or proceeding involves the potential
imposition of criminal liability on the Indemnified Party, or there exists a
conflict or adversity of interest between the Indemnified Party and the
Indemnifying Party, in such event the Indemnifying Party shall pay the
reasonable expenses of the Indemnified Party, and (ii) shall not settle or
consent to the entry of any judgment in any action, suit or proceeding without
the consent of the Indemnified Party, which shall not be reasonably withheld,
conditioned or delayed.
Original Sheet No. 41
EXHIBIT C
18.3 Consequential Damages. In no event shall any Party be liable under any
provision of this LGIA for any losses, damages, costs or expenses for any
special, indirect, incidental, consequential, or punitive damages, including but
not limited to loss of profit or revenue, loss of the use of equipment, cost of
capital, cost of temporary equipment or services, whether based in whole or in
part in contract, in tort, including negligence, strict liability, or any other
theory of liability; provided; however, that damages for which a Party may be
liable to the other Party under another agreement will not be considered to be
special, indirect, incidental, or consequential damages hereunder.
18.4 Insurance. Each Party shall, at their own expense, maintain in force
throughout the period of this LGIA, and until released by the other Parties, the
following minimum insurance coverages, with insurers authorized to do business
or an approved surplus lines carrier in the state where the Point of
Interconnection is located:
18.4.1 Employers' Liability and Workers' Compensation Insurance providing
statutory benefits in accordance with the laws and regulations of the state in
which the Point of Interconnection is located.
18.4.2 Commercial General Liability Insurance including premises and operations,
personal injury, broad form property damage, broad form blanket contractual
liability coverage (including coverage for the contractual indemnification)
products and completed operations coverage, coverage for explosion, collapse and
underground hazards, independent contractors coverage, coverage for pollution to
the extent normally available and punitive damages to the extent normally
available and a cross liability endorsement, with minimum limits of One Million
Dollars ($1,000,000) per occurrence/One Million Dollars ($1,000,000) aggregate
combined single limit for personal injury, bodily injury, including death and
property damage.
18.4.3 Comprehensive Automobile Liability Insurance, for coverage of owned and
non-owned and hired vehicles, trailers or semi-trailers licensed for travel on
public roads, with a minimum combined single limit of One Million Dollars
($1,000,000) each occurrence for bodily injury, including death, and property
damage.
18.4.4 Excess Public Liability Insurance over and above the Employer's
Liability, Commercial General Liability and Comprehensive Automobile Liability
Insurance coverage, with a minimum combined single limit of Twenty Million
Dollars ($20,000,000) per occurrence/Twenty Million Dollars ($20,000,000)
aggregate.
18.4.5 The Commercial General Liability Insurance, Comprehensive Automobile
Insurance and Excess Public Liability Insurance policies shall name the other
Parties, their parents, associated and Affiliate companies and their respective
directors, officers, agents, servants and employees ("Other Party Group") as
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EXHIBIT C
additional insured. With the exception of insurance listed in Article 18.4.1,
all policies shall contain provisions whereby the insurers waive all rights of
subrogation in accordance with the provisions of this LGIA against the Other
Party Groups, and the Parties shall use Reasonable Efforts to provide thirty
(30) Calendar Days' advance written notice to the Other Party Groups prior to
anniversary date of cancellation or any material change in coverage or
condition.
18.4.6 The Parties shall use Reasonable Efforts to obtain provisions in the
Commercial General Liability Insurance, Comprehensive Automobile Liability
Insurance and Excess Public Liability Insurance policies that specify that the
policies are primary and shall apply to such extent without consideration for
other policies separately carried and shall state that each insured is provided
coverage as though a separate policy had been issued to each, except the
insurer's liability shall not be increased beyond the amount for which the
insurer would have been liable had only one insured been covered. Each Party
shall be responsible for its respective deductibles or retentions.
18.4.7 The Commercial General Liability Insurance, Comprehensive Automobile
Liability Insurance and Excess Public Liability Insurance policies, if written
on a Claims First Made Basis, shall be maintained in full force and effect for
two (2) years after termination of this LGIA, which coverage may be in the form
of tail coverage or extended reporting period coverage if agreed by the Parties.
18.4.8 On or before the Effective Date, Interconnection Customer shall procure
and maintain a financial protection and indemnification agreement as provided in
Section 170 of the Atomic Energy Act of 1954, as amended, and the provisions of
10 CFR Part 140, and obtain a waiver of any subrogation rights against
Transmission Owner under such policy to the extent permitted thereby.
Interconnection Customer shall also procure and maintain a property insurance
policy from Nuclear Electric Insurance Limited in amounts equal to at least the
minimum amount required by the United States Government. The Interconnection
Customer shall provide property insurance to cover radioactive contamination of
the Transmission Owner's real and personal property. The insurance and indemnity
arrangement obtained by the Interconnection Customer shall continue in effect
for such period as may be necessary to cover liability arising out of the
operation of the Generating Facility, and in any case the Interconnection
Customer shall maintain such liability insurance, indemnifications or waivers as
may be necessary to maintain the protection of Transmission Owner afforded by
such nuclear liability protection system. In no event shall Transmission Owner
be liable to Interconnection Customer, or its insurers, for (A) any property
damage due to a nuclear energy hazard or (B) loss or damage resulting from the
unavailability of the Generating Facility or shutdowns of the Generating
Facility or other facilities or service interruptions (including loss of profits
or revenue, inventory or use charges, cost of
Original Sheet No. 43
EXHIBIT C
replacement power, cost of capital or claims by customers) due to a nuclear
energy hazard. Interconnection Customer hereby waives any right of recovery and
shall cause its insurers to waive any rights of recovery against Transmission
Owner for damages due to a nuclear energy hazard, and Interconnection Customer
agrees to indemnify, defend and hold harmless Transmission Owner and their
officers, managers, directors, agents and employees from and against any suit,
demand, claim, counter-claim, cross-claim, cause of action or actions and from
all damages that may be imposed on, incurred by or asserted against them, or any
one of them, in any manner arising out of, resulting from or in connection with
any type of nuclear accident or nuclear incident or event at or involving the
Generating Facility. For purposes of the foregoing, "nuclear energy hazard"
means a radioactive, toxic, explosive or other hazardous properties of any
"source material", "special nuclear material", or "by-product material" as such
terms are defined in the Atomic Energy Act of 1954, as amended.
Transmission Provider shall be provided, upon request, with evidence that
Interconnection Customer has entered into the insurance and indemnity
arrangements outlined above.
18.4.9 The requirements contained herein as to the types and limits of all
insurance to be maintained by the Parties are not intended to and shall not in
any manner, limit or qualify the liabilities and obligations assumed by the
Parties under this LGIA.
18.4.10 Within ten (10) days following execution of this LGIA, and as soon as
practicable after the end of each fiscal year or at the renewal of the insurance
policy and in any event within ninety (90) days thereafter, each Party shall
provide certificates of all insurance required in this LGIA, executed by each
insurer or by an authorized representative of each insurer. 18.4.11
Notwithstanding the foregoing, each Party may self-insure to meet the minimum
insurance requirements of Articles 18.4.1 through 18.4.8, to the extent it
maintains a self-insurance program; provided that, such Party's senior secured
debt is rated at investment grade, or better, by Standard & Poor's and that its
self-insurance program meets minimum insurance requirements under Articles
18.4.1 through 18.4.8. For any period of time that a Party's senior secured debt
is unrated by Standard & Poor's or is rated at less than investment grade by
Standard & Poor's, such Party shall comply with the insurance requirements
applicable to it under Articles 18.4.1 through 18.4.9. In the event that a Party
is permitted to self-insure pursuant to this article, it shall notify the other
Party that it meets the requirements to self-insure and that its self-insurance
program meets the minimum insurance requirements in a manner consistent with
that specified in Article 18.4.9.
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EXHIBIT C
18.4.12 The Parties agree to report to each other in writing as soon as
practical all accidents or occurrences resulting in injuries to any person,
including death, and any property damage arising out of this LGIA.
ARTICLE 19. ASSIGNMENT
19.1 Assignment. This LGIA may be assigned by any Party only with the written
consent of the other Parties; provided that a Party may assign this LGIA without
the consent of the other Parties to any Affiliate of the assigning Party with an
equal or greater credit rating and with the legal authority and operational
ability to satisfy the obligations of the assigning Party under this LGIA; and
provided further that the Interconnection Customer shall have the right to
assign this LGIA, without the consent of either the Transmission Provider or
Transmission Owner, for collateral security purposes to aid in providing
financing for the Generating Facility, provided that the Interconnection
Customer will promptly notify the Transmission Provider of any such assignment;
and provided further that the Interconnection Customer shall have the right to
assign this LGIA, without the consent of either the Transmission Provider or
Transmission Owner, to a successor holder of the NRC Operating License for the
Generating Facility, provided that the Interconnection Customer will promptly
notify the Transmission Provider and Transmission Owner of any such assignment.
Any financing arrangement entered into by the Interconnection Customer pursuant
to this Article will provide that prior to or upon the exercise of the secured
party's, trustee's or mortgagee's assignment rights pursuant to said
arrangement, the secured creditor, the trustee or mortgagee will notify the
Transmission Provider of the date and particulars of any such exercise of
assignment right(s), including providing the Transmission Provider and
Transmission Owner with proof that it meets the requirements of Article 11.5 and
18.3. Any attempted assignment that violates this Article is void and
ineffective. Any assignment under this LGIA shall not relieve a Party of its
obligations, nor shall a Party's obligations be enlarged, in whole or in part,
by reason thereof. Where required, consent to assignment will not be
unreasonably withheld, conditioned or delayed.
ARTICLE 20. SEVERABILITY
20.1 Severability. If any provision in this LGIA is finally determined to be
invalid, void or unenforceable by any court or other Governmental Authority
having jurisdiction, such determination shall not invalidate, void or make
unenforceable any other provision, agreement or covenant of this LGIA; provided
that if the Interconnection Customer (or any non-party, but only if such
non-party is not acting at the direction of either the Transmission Provider or
Transmission Owner) seeks and obtains such a final determination with respect to
any provision of the Alternate Option (Article 5.1.2), or the Negotiated Option
(Article 5.1.4), then none of these provisions shall thereafter have any force
or effect and the Parties' rights and obligations shall be governed solely by
the Standard Option (Article 5.1.1).
Original Sheet No. 45
EXHIBIT C
ARTICLE 21. COMPARABILITY
21.1 Comparability. The Parties will comply with all applicable comparability
and code of conduct laws, rules and regulations including such laws, rules and
regulations of Governmental Authorities establishing standards of conduct, as
amended from time to time.
ARTICLE 22. CONFIDENTIALITY
22.1 Confidentiality. Confidential Information shall include, without
limitation, all information relating to a Party's technology, research and
development, business affairs, and pricing, and any information supplied by a
Party to another Party prior to the execution of this LGIA.
Information is Confidential Information only if it is clearly designated or
marked in writing as confidential on the face of the document, or, if the
information is conveyed orally or by inspection, if the Party providing the
information orally informs the Party receiving the information that the
information is confidential. The Parties shall maintain as confidential any
information that is provided and identified by a Party as Critical Energy
Infrastructure Information (CEII), as that term is defined in 18 C.F.R. Section
388.113(c). Such confidentiality will be maintained in accordance with this
Article 22.
If requested by the receiving Party, the disclosing Party shall provide in
writing, the basis for asserting that the information referred to in this
Article warrants confidential treatment, and the requesting Party may disclose
such writing to the appropriate Governmental Authority. Each Party shall be
responsible for the costs associated with affording confidential treatment to
its information.
22.1.1 Term. During the term of this LGIA, and for a period of three (3) years
after the expiration or termination of this LGIA, except as otherwise provided
in this Article 22, each Party shall hold in confidence and shall not disclose
to any person Confidential Information.
22.1.2 Scope. Confidential Information shall not include information that the
receiving Party can demonstrate: (1) is generally available to the public other
than as a result of a disclosure by the receiving Party; (2) was in the lawful
possession of the receiving Party on a non-confidential basis before receiving
it from the disclosing Party; (3) was supplied to the receiving Party without
restriction by a non-party, who, to the knowledge of the receiving Party after
due inquiry, was under no obligation to the disclosing Party to keep such
information confidential; (4) was independently developed by the receiving Party
without reference to Confidential Information of the disclosing Party; (5) is,
or becomes, publicly known, through no wrongful act or omission of the
Original Sheet No. 46
EXHIBIT C
receiving Party or Breach of this LGIA; or (6) is required, in accordance with
Article 22.1.7 of this LGIA, Order of Disclosure, to be disclosed by any
Governmental Authority or is otherwise required to be disclosed by law or
subpoena, or is necessary in any legal proceeding establishing rights and
obligations under this LGIA. Information designated as Confidential Information
will no longer be deemed confidential if the Party that designated the
information as confidential notifies the receiving Party that it no longer is
confidential.
22.1.3 Release of Confidential Information. No Party shall release or disclose
Confidential Information to any other person, except to its Affiliates (limited
by the Standards of Conduct requirements), subcontractors, employees, agents,
consultants, or to non-parties who may be or considering providing financing to
or equity participation with Interconnection Customer, or to potential
purchasers or assignees of Interconnection Customer, on a need-to-know basis in
connection with this LGIA, unless such person has first been advised of the
confidentiality provisions of this Article 22 and has agreed to comply with such
provisions. Notwithstanding the foregoing, a Party providing Confidential
Information to any person shall remain primarily responsible for any release of
Confidential Information in contravention of this Article 22.
22.1.4 Rights. Each Party retains all rights, title, and interest in the
Confidential Information that it discloses to the receiving Party. The
disclosure by a Party to the receiving Party of Confidential Information shall
not be deemed a waiver by the disclosing Party or any other person or entity of
the right to protect the Confidential Information from public disclosure.
22.1.5 No Warranties. By providing Confidential Information, no Party makes any
warranties or representations as to its accuracy or completeness. In addition,
by supplying Confidential Information, no Party obligates itself to provide any
particular information or Confidential Information to another Party nor to enter
into any further agreements or proceed with any other relationship or joint
venture.
22.1.6 Standard of Care. Each Party shall use at least the same standard of care
to protect Confidential Information it receives as it uses to protect its own
Confidential Information from unauthorized disclosure, publication or
dissemination. Each Party may use Confidential Information solely to fulfill its
obligations to another Party under this LGIA or its regulatory requirements.
22.1.7 Order of Disclosure. If a court or a Government Authority or entity with
the right, power, and apparent authority to do so requests or requires any
Party, by subpoena, oral deposition, interrogatories, requests for production of
documents, administrative order, or otherwise, to disclose Confidential
Information, that Party shall provide the disclosing Party with prompt notice of
such request(s) or requirement(s) so that the disclosing Party may seek an
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EXHIBIT C
appropriate protective order or waive compliance with the terms of this LGIA.
Notwithstanding the absence of a protective order or waiver, the Party may
disclose such Confidential Information which, in the opinion of its counsel, the
Party is legally compelled to disclose. Each Party will use Reasonable Efforts
to obtain reliable assurance that confidential treatment will be accorded any
Confidential Information so furnished.
22.1.8 Termination of Agreement. Upon termination of this LGIA for any reason,
each Party shall, within ten (10) Calendar Days of receipt of a written request
from another Party, use Reasonable Efforts to destroy, erase, or delete (with
such destruction, erasure, and deletion certified in writing to the requesting
Party) or return to the requesting Party, without retaining copies thereof, any
and all written or electronic Confidential Information received from the
requesting Party, except that each Party may keep one copy for archival
purposes, provided that the obligation to treat it as Confidential Information
in accordance with this Article 22 shall survive such termination.
22.1.9 Remedies. The Parties agree that monetary damages would be inadequate to
compensate a Party for another Party's Breach of its obligations under this
Article 22. Each Party accordingly agrees that the disclosing Party shall be
entitled to equitable relief, by way of injunction or otherwise, if the
receiving Party Breaches or threatens to Breach its obligations under this
Article 22, which equitable relief shall be granted without bond or proof of
damages, and the Breaching Party shall not plead in defense that there would be
an adequate remedy at law. Such remedy shall not be deemed an exclusive remedy
for the Breach of this Article 22, but shall be in addition to all other
remedies available at law or in equity. The Parties further acknowledge and
agree that the covenants contained herein are necessary for the protection of
legitimate business interests and are reasonable in scope. No Party, however,
shall be liable for indirect, incidental, or consequential or punitive damages
of any nature or kind resulting from or arising in connection with this Article
22.
22.1.10 Disclosure to FERC, Its Staff or a State. Notwithstanding anything in
this Article 22 to the contrary, and pursuant to 18 CFR Section 1b.20, if FERC
or its staff, during the course of an investigation or otherwise, requests
information from a Party that is otherwise required to be maintained in
confidence pursuant to this LGIA, the Party shall provide the requested
information to FERC or its staff, within the time provided for in the request
for information. In providing the information to FERC or its staff, the Party
must, consistent with 18 CFR Section 388.112, request that the information be
treated as confidential and non-public by FERC and its staff and that the
information be withheld from public disclosure. Parties are prohibited from
notifying the other Parties to this LGIA prior to the release of the
Confidential Information to FERC or its staff. The Party shall notify the other
Parties to this LGIA when it is notified by FERC or its staff that a request to
release Confidential Information has been received by FERC, at which time any of
the Parties may respond before such information
Original Sheet No. 48
EXHIBIT C
would be made public, pursuant to 18 CFR Section 388.112. Requests from a state
regulatory body conducting a confidential investigation shall be treated in a
similar manner if consistent with the applicable state rules and regulations.
22.1.11 Subject to the exception in Article 22.1.10, any information that a
disclosing Party claims is competitively sensitive, commercial or financial
information under this LGIA ("Confidential Information") shall not be disclosed
by the receiving Party to any person not employed or retained by the receiving
Party, except to the extent disclosure is (i) required by law; (ii) reasonably
deemed by the receiving Party to be required to be disclosed in connection with
a dispute between or among the Parties, or the defense of litigation or dispute;
(iii) otherwise permitted by consent of the disclosing Party, such consent not
to be unreasonably withheld; or (iv) necessary to fulfill its obligations under
this LGIA or as the Regional Transmission Organization or a Control Area
operator including disclosing the Confidential Information to a regional or
national reliability organization. The Party asserting confidentiality shall
notify the receiving Party in writing of the information that Party claims is
confidential. Prior to any disclosures of the that Party's Confidential
Information under this subparagraph, or if any non-party or Governmental
Authority makes any request or demand for any of the information described in
this subparagraph, the Party who received the Confidential Information from the
disclosing Party agrees to promptly notify the disclosing Party in writing and
agrees to assert confidentiality and cooperate with the disclosing Party in
seeking to protect the Confidential Information from public disclosure by
confidentiality agreement, protective order or other reasonable measures.
ARTICLE 23. ENVIRONMENTAL RELEASES
23.1 Each Party shall notify the other Parties, first orally and then in
writing, of the release of any Hazardous Substances, any asbestos or lead
abatement activities, or any type of remediation activities related to the
Generating Facility or the Interconnection Facilities, each of which may
reasonably be expected to affect another Party. The notifying Party shall: (i)
provide the notice as soon as practicable, provided such Party makes a good
faith effort to provide the notice no later than twenty-four hours after such
Party becomes aware of the occurrence; and (ii) promptly furnish to the other
Parties copies of any publicly available reports filed with any Governmental
Authorities addressing such events.
ARTICLE 24. INFORMATION REQUIREMENTS
24.1 Information Acquisition. Transmission Provider, Transmission Owner and the
Interconnection Customer shall submit specific information regarding the
electrical characteristics of their respective facilities to each other as
described below and in accordance with Applicable Reliability Standards.
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EXHIBIT C
24.2 Information Submission. The Interconnection Customer shall provide
Transmission Owner and Transmission Provider any information regarding changes
due to equipment replacement, repair, or adjustment that take place after the
Effective Date and that may affect the Transmission Owner's Interconnection
Facilities no later than 180 Calendar Days prior to the date of the equipment
replacement, repair, or adjustment. Transmission Owner shall provide the
Interconnection Customer any information regarding changes due to Transmission
Owner's equipment replacement, repair or adjustment that take place after the
Effective Date in the directly connected substation or any adjacent Transmission
Owner substation that may affect the Interconnection Customer's Interconnection
Facilities. The Transmission Owner shall provide such information no later than
180 Calendar Days after the date of the equipment replacement, repair or
adjustment.
24.3 Updated Information Submission by Interconnection Customer. [Intentionally
left blank]
24.4 Information Supplementation. [Intentionally left blank]
ARTICLE 25. INFORMATION ACCESS AND AUDIT RIGHTS
25.1 Information Access. Each Party (the "disclosing Party") shall make
available to the other Parties information that is in the possession of the
disclosing Party and is necessary in order for the other Parties to: (i) verify
the costs incurred by the disclosing Party for which another Party is
responsible under this LGIA; and (ii) carry out its obligations and
responsibilities under this LGIA. The Parties shall not use such information for
purposes other than those set forth in this Article 25.1 and to enforce their
rights under this LGIA.
25.2 Reporting of Non-Force Majeure Events. A Party (the "notifying Party")
shall notify the other Parties when the notifying Party becomes aware of its
inability to comply with the provisions of this LGIA for a reason other than a
Force Majeure event. The Parties agree to cooperate with each other and provide
necessary information regarding such inability to comply, including the date,
duration, reason for the inability to comply, and corrective actions taken or
planned to be taken with respect to such inability to comply. Notwithstanding
the foregoing, notification, cooperation or information provided under this
Article shall not entitle any Party receiving such notification to allege a
cause for anticipatory breach of this LGIA.
25.3 Audit Rights. Subject to the requirements of confidentiality under Article
22 of this LGIA, each Party shall have the right, during normal business hours,
and upon prior reasonable notice to the other Parties, to audit at its own
expense the other Parties' accounts and records pertaining to the Parties'
performance or the Parties' satisfaction of obligations under this LGIA. Such
audit rights shall include audits of the other Parties' costs, calculation of
invoiced amounts, the Transmission Provider's efforts to allocate responsibility
for the provision of reactive support to the Transmission or Distribution
System, as applicable, the Transmission Provider's efforts to allocate
responsibility for interruption or reduction of generation, and each Party's
actions in an Emergency
Original Sheet No. 50
EXHIBIT C
Condition. Any audit authorized by this Article shall be performed at the
offices where such accounts and records are maintained and shall be limited to
those portions of such accounts and records that relate to each Party's
performance and satisfaction of obligations under this LGIA. Each Party shall
keep such accounts and records for a period equivalent to the audit rights
periods described in Article 25.4.
25.4 Audit Rights Periods.
25.4.1 Audit Rights Period for Construction-Related Accounts and Records.
[Intentionally left blank.]
25.4.2 Audit Rights Period for All Other Accounts and Records. Accounts and
records related to a Party's performance or satisfaction of all obligations
under this LGIA other than those described in Article 25.4.1 shall be subject to
audit as follows: (i) for an audit relating to cost obligations, the applicable
audit rights period shall be twenty-four months after the auditing Party's
receipt of an invoice giving rise to such cost obligations; and (ii) for an
audit relating to all other obligations, the applicable audit rights period
shall be twenty-four months after the event for which the audit is sought.
25.5 Audit Results. If an audit by a Party determines that an overpayment or an
underpayment has occurred, a notice of such overpayment or underpayment shall be
given to the Party or from whom the overpayment or underpayment is owed together
with those records from the audit which support such determination.
ARTICLE 26. SUBCONTRACTORS
26.1 General. Nothing in this LGIA shall prevent a Party from utilizing the
services of any subcontractor as it deems appropriate to perform its obligations
under this LGIA; provided, however, that each Party shall require its
subcontractors to comply with all applicable terms and conditions of this LGIA
in providing such services and each Party shall remain primarily liable to the
other Party for the performance of such subcontractor.
26.2 Responsibility of Principal. The creation of any subcontract relationship
shall not relieve the hiring Party of any of its obligations under this LGIA.
The hiring Party shall be fully responsible to the other Party for the acts or
omissions of any subcontractor the hiring Party hires as if no subcontract had
been made; provided, however, that in no event shall the Transmission Provider
or Transmission Owner be liable for the actions or inactions of the
Interconnection Customer or its subcontractors with respect to obligations of
the Interconnection Customer under Article 5 of this LGIA. Any applicable
obligation imposed by this LGIA upon the hiring Party shall be equally binding
upon, and shall be construed as having application to, any subcontractor of such
Party.
Original Sheet No. 51
EXHIBIT C
26.3 No Limitation by Insurance. The obligations under this Article 26 will not
be limited in any way by any limitation of subcontractor's insurance.
ARTICLE 27. DISPUTES
27.1 Submission. In the event any Party has a dispute, or asserts a claim, that
arises out of or in connection with this LGIA or its performance, such Party
(the "disputing Party") shall provide the other Parties with written notice of
the dispute or claim ("Notice of Dispute"). Such dispute or claim shall be
referred to a designated senior representative of each Party for resolution on
an informal basis as promptly as practicable after receipt of the Notice of
Dispute by the non-disputing Parties. In the event the designated
representatives are unable to resolve the claim or dispute through unassisted or
assisted negotiations within thirty (30) Calendar Days of the non-disputing
Parties' receipt of the Notice of Dispute, such claim or dispute shall be
submitted for resolution in accordance with the dispute resolution procedures of
the Tariff.
ARTICLE 28. REPRESENTATIONS, WARRANTIES AND COVENANTS
28.1 General. Each Party makes the following representations, warranties and
covenants:
28.1.1 Good Standing. Such Party is duly organized, validly existing and in good
standing under the laws of the state in which it is organized, formed, or
incorporated, as applicable; that it is qualified to do business in the state or
states in which the Generating Facility, Interconnection Facilities and Network
Upgrades owned by such Party, as applicable, are located; and that it has the
corporate power and authority to own its properties, to carry on its business as
now being conducted and to enter into this LGIA and carry out the transactions
contemplated hereby and perform and carry out all covenants and obligations on
its part to be performed under and pursuant to this LGIA.
28.1.2 Authority. Such Party has the right, power and authority to enter into
this LGIA, to become a Party hereto and to perform its obligations hereunder.
This LGIA is a legal, valid and binding obligation of such Party, enforceable
against such Party in accordance with its terms, except as the enforceability
thereof may be limited by applicable bankruptcy, insolvency, reorganization or
other similar laws affecting creditors' rights generally and by general
equitable principles (regardless of whether enforceability is sought in a
proceeding in equity or at law).
28.1.3 No Conflict. The execution, delivery and performance of this LGIA does
not violate or conflict with the organizational or formation documents, or
bylaws or operating agreement, of such Party, or any judgment, license, permit,
order, material agreement or instrument applicable to or binding upon such Party
or any of its assets.
Original Sheet No. 52
EXHIBIT C
28.1.4 Consent and Approval. Such Party has sought or obtained, or, in
accordance with this LGIA will seek or obtain, each consent, approval,
authorization, order, or acceptance by any Governmental Authority in connection
with the execution, delivery and performance of this LGIA, and it will provide
to any Governmental Authority notice of any actions under this LGIA that are
required by Applicable Laws and Regulations.
ARTICLE 29. (Reserved)
ARTICLE 30. MISCELLANEOUS
30.1 Binding Effect. This LGIA and the rights and obligations hereof, shall be
binding upon and shall inure to the benefit of the successors and assigns of the
Parties hereto.
30.2 Conflicts. In the event of a conflict between the body of this LGIA and any
attachment, appendices or exhibits hereto, the terms and provisions of such
attachment, appendix or exhibit shall prevail and be deemed the final intent of
the Parties.
30.3 Rules of Interpretation. This LGIA, unless a clear contrary intention
appears, shall be construed and interpreted as follows: (1) the singular number
includes the plural number and vice versa; (2) reference to any person includes
such person's successors and assigns but, in the case of a Party, only if such
successors and assigns are permitted by this LGIA, and reference to a person in
a particular capacity excludes such person in any other capacity or
individually; (3) reference to any agreement (including this LGIA), document,
instrument or tariff means such agreement, document, instrument, or tariff as
amended or modified and in effect from time to time in accordance with the terms
thereof and, if applicable, the terms hereof; (4) reference to any Applicable
Laws and Regulations means such Applicable Laws and Regulations as amended,
modified, codified, or reenacted, in whole or in part, and in effect from time
to time, including, if applicable, rules and regulations promulgated thereunder;
(5) unless expressly stated otherwise, reference to any Article, Section or
Appendix means such Article of this LGIA or such Appendix to this LGIA, or such
Section to the LGIP or such Appendix to the LGIP, as the case may be; (6)
"hereunder", "hereof", "herein", "hereto" and words of similar import shall be
deemed references to this LGIA as a whole and not to any particular Article or
other provision hereof or thereof; (7) "including" (and with correlative meaning
"include") means including without limiting the generality of any description
preceding such term; and (8) relative to the determination of any period of
time, "from" means "from and including", "to" means "to but excluding" and
"through" means "through and including".
30.4 Entire Agreement. This LGIA, including all Appendices and Schedules
attached hereto, constitutes the entire agreement between the Parties with
reference to the subject matter hereof, and supersedes all prior and
contemporaneous understandings or agreements, oral
Original Sheet No. 53
EXHIBIT C
or written, between the Parties with respect to the subject matter of this LGIA.
There are no other agreements, representations, warranties, or covenants, which
constitute any part of the consideration for, or any condition to, any Party's
compliance with its obligations under this LGIA.
30.5 No Third Party Beneficiaries. Except as set forth in Article 7.1, this LGIA
is not intended to and does not create rights, remedies, or benefits of any
character whatsoever in favor of any persons, corporations, associations, or
entities other than the Parties, and the obligations herein assumed are solely
for the use and benefit of the Parties, their successors in interest and, where
permitted, their assigns.
30.6 Waiver. The failure of a Party to this LGIA to insist, on any occasion,
upon strict performance of any provision of this LGIA will not be considered a
waiver of any obligation, right, or duty of, or imposed upon, such Party.
Any waiver at any time by any Party of its rights with respect to this LGIA
shall not be deemed a continuing waiver or a waiver with respect to any other
failure to comply with any other obligation, right, duty of this LGIA.
Termination or Default of this LGIA for any reason by the Interconnection
Customer shall not constitute a waiver of the Interconnection Customer's legal
rights to obtain Interconnection Service from the Transmission Provider. Any
waiver of this LGIA shall, if requested, be provided in writing.
30.7 Headings. The descriptive headings of the various Articles of this LGIA
have been inserted for convenience of reference only and are of no significance
in the interpretation or construction of this LGIA.
30.8 Multiple Counterparts. This LGIA may be executed in two or more
counterparts, each of which is deemed an original but all constitute one and the
same instrument.
30.9 Amendment. The Parties may by mutual agreement amend this LGIA by a written
instrument duly executed by all of the Parties.
30.10 Modification by the Parties. The Parties may by mutual agreement amend the
Appendices to this LGIA by a written instrument duly executed by all of the
Parties. Such amendment shall become effective and a part of this LGIA upon
satisfaction of all Applicable Laws and Regulations.
30.11 Reservation of Rights. Transmission Provider shall have the right to make
a unilateral filing with FERC to modify this LGIA with respect to any rates,
terms and conditions, charges, classifications of service, rule or regulation
under Section 205 or any other applicable provision of the Federal Power Act and
FERC's rules and regulations thereunder, and Transmission Owner and
Interconnection Customer shall have the right to make a unilateral filing with
FERC to modify this LGIA pursuant to Section 206 or any other applicable
provision of the Federal Power Act and FERC's rules and regulations thereunder;
provided that each Party shall have the right to protest any such
Original Sheet No. 54
EXHIBIT C
filing and to participate fully in any proceeding before FERC in which such
modifications may be considered. Nothing in this LGIA shall limit the rights of
the Parties or of FERC under Sections 205 or 206 of the Federal Power Act and
FERC's rules and regulations thereunder, except to the extent that the Parties
otherwise mutually agree as provided herein.
30.12 No Partnership. This LGIA shall not be interpreted or construed to create
an association, joint venture, agency relationship, or partnership among or
between the Parties or to impose any partnership obligation or partnership
liability upon any Party. No Party shall have any right, power or authority to
enter into any agreement or undertaking for, or act on behalf of, or to act as
or be an agent or representative of, or to otherwise bind, the other Parties.
IN WITNESS WHEREOF, the Parties have executed this Agreement in multiple
originals; each of which shall constitute and be an original Agreement among the
Parties. Midwest Independent Transmission System Operator, Inc
By:
Name:
Title:
Michigan Electric Transmission Company, LLC
By:
Name:
Title:
Hornet
By:
Name:
Title:
Original Sheet No. 55
EXHIBIT C
APPENDICES TO LGIA
Appendix A Interconnection Facilities, Network Upgrades, System Protection
Facilities, Generator Upgrades and Distribution Upgrades
Appendix B Milestones
Appendix C Interconnection Details
Appendix D Security Arrangements Details
Appendix E Commercial Operation Date
Appendix F Addresses for Delivery of Notices and Billings
Appendix G Requirements of Large Generating Facilities Relying on Newer
Technologies
Appendix H Palisades Interface Supplement to the Large Generator Interconnection
Agreement
Original Sheet No. 56
EXHIBIT C
Appendix A
To LGIA
Interconnection Facilities, System Protection Facilities, Distribution Upgrades,
Generator Upgrades and Network Upgrades
1. Description of Generating Facility
Upon Closing of the Asset Sale Agreement, Interconnection Customer will own a
955 MVA facility, rated at a nominal 860 MW gross and 820 MW net, with all
studies performed at or below these outputs. The original commercial operating
date of the Generating Facility was March 24, 1971. The Generating Facility is
composed of one (1) Pressurized Water Reactor Nuclear Power Plant.
Interconnection Customer shall interface with an installed switchyard with
appropriate protection equipment coordinated per Appendix C to this LGIA. The
existing Switchyard shall be made available for the output of the Generating
Facility.
2. Interconnection Facilities:
Five (5) Points of Interconnection exist between the Interconnection Customer
and the Transmission Owner switchyard facility. All interconnections are at
equipment presently installed in the transmission switchyard, with points listed
below (Reference Palisades Substation Drawing WD 1421, sheets 1, 1A, 11, and
31). Each of the facilities listed below is owned by Interconnection Customer
except where designated.
a) Main Transformer - The transmission switchyard side of Disconnect Switch
26H5. The physical interface point is where the 345 kV conductor on the
transmission switchyard side of the 26H5 switch terminates on the transmission
structure between Transmission Owner's 25F3 and 25H5 switches. Switches 25F3 and
25H5 are owned by the Transmission Owner.
b) Startup Transformers - The "R" Bus side of Disconnect Switch 24R2. The
physical interface point is where the 345 kV conductor on the transmission
switchyard side of the 24R2 switch terminates on the Palisades substation "R"
Bus.
c) Safeguard Transformer - The "F" Bus side of Disconnect Switch 24F1. The
physical interface point is where the 345 kV conductor on the transmission
switchyard side of the 24F1 switch terminates on the Palisades substation "F"
Bus.
d) Switchyard Station Service Transformer EX-50 - The low voltage (secondary
side) of the transformer EX-50. The physical interface point is where the
conductor from the transformer terminates on the transformer side of the 240v
breaker in the Relay House.
Original Sheet No. 57
EXHIBIT C
e) Switchyard Station Transformer EX-51 - The low voltage (secondary side) of
the transformer EX-51. The physical interface point is where the conductor from
the transformer terminates on the transformer side of the 240v breaker in the
Relay House.
3. System Protection Facilities
In accordance with the guidelines of the Applicable Reliability Council, there
are no System Protection Facility modifications required at the time ownership
of the Generating Facility is transferred to the Interconnection Customer. After
the transfer date, if the output capability of the Generating Facility is
revised, the normal process shall be followed to determine the need for the
System Protection Facility modifications.
Original Sheet No. 58
EXHIBIT C
Appendix B
To LGIA
Milestones
[Intentionally left blank.]
Original Sheet No. 59
EXHIBIT C
Appendix C
To LGIA
Interconnection Details
The unique requirements of each generation interconnection will dictate the
establishment of mutually agreeable Interconnection and/or Operating Guidelines
that further define the requirements of this LGIA. The Interconnection and/or
Operating Guidelines applicable to this LGIA consist of the following
information. Additional detail may be provided through attachment to this
Appendix C or through electronic means via the web address specified.
(a) System Protection Facilities;
The Generator System Protection Facilities that interface with the Transmission
Owner's System Protection Facilities are:
- - Highside (345 kV) Transform Ground Overcurrent Relay(s)
- - Generator Distance Backup Relay
The System Protection Facilities for both the Generating Facility and
Transmission Owner shall meet the current requirements of the applicable
Regional Reliability Organization ("RRO") for disturbance reporting,
maintenance, and testing.
(b) Communication requirements;
Consistent with the Transmission Owner specifications in effect as of the
Effective Date as they may be modified from time to time by agreement of the
Parties.
(c) Metering requirements;
Station metering is as detailed in Palisades Switchyard Drawing WD 1421 sheet 1
and 1A. A general description is shown in Exhibit 1 to this Appendix C.
(d) Grounding requirements;
Consistent with the Transmission Owner specifications in effect as of the
Effective Date as they may be modified from time to time by agreement of the
Parties.
(e) Transmission Line and Substation Connection configurations; See Palisades
Switchyard Diagrams.
(f) Unit Stability requirements;
Original Sheet No. 60
EXHIBIT C
All generator/exciter/governor manufacturers' data sheets shall be made
available to the Transmission Owner or its designated agent for modeling in
transient/voltage stability, short circuit, and relay setting calculation
programs. This includes generator reactive capability and exciter saturation
curves.
(g) Equipment ratings;
Consistent with the Transmission Owner specifications in effect as of the
Effective Date as they may be modified from time to time by agreement of the
Parties.
(h) Short Circuit requirements;
Consistent with the Transmission Owner specifications in effect as of the
Effective Date as they may be modified from time to time by agreement of the
Parties.
(i) Synchronizing requirements;
Transmission Owner shall operate and control Transmission Owner's System and
other Transmission Owner assets in a safe and reliable manner (a) in accordance
with Transmission Owner's applicable operational and/or reliability criteria,
protocols, and directives [which include those of NERC and Reliability First
Corporation (RFC)], (b) the Operating Agreement and (c) in accordance with the
provisions of this Agreement. From time to time, Interconnection Customer will
control and operate two 345 kV synchronizing circuit breakers (Nos. 25F7 and
25H9) to connect or disconnect the Generating Facility, as the case may be, from
the transmission system after obtaining real-time permission from the
Transmission Owner. The Parties may agree from time to time that the
Interconnection Customer, under the direction of the Transmission Owner, will
operate certain other Interconnection Assets of the Transmission Owner. Setting
changes of any synchronizing devices shall be approved by the Transmission Owner
or its designated agent, with a hard copy of the changes forwarded to the
Transmission Owner.
(j) Generation and Operation Control requirements;
Consistent with the Transmission Owner specifications in effect as of the
Effective Date as they may be modified from time to time by agreement of the
Parties.
(k) Data provisions;
Original Sheet No. 61
EXHIBIT C
Consistent with the Transmission Owner specifications in effect as of the
Effective Date as they may be modified from time to time by agreement of the
Parties.
(l) Energization inspection and testing requirements;
The Transmission Owner and Generating Facility interconnection facilities were
initially inspected and tested to support initial operation of the Generating
Facility. There is no requirement for this inspection or testing at the time
ownership is transferred to the Interconnection Customer other than testing
requirements unassociated with energization; however, nothing in the preceeding
language shall relieve Interconnection Customer of its requirements to meet
normal testing requirements.
(m) If applicable, the unique requirements, if any, of the Transmission Owner to
which the Facility will be physically interconnected;
The Generating Facility is capable of maintaining a composite power delivery at
802 MW at the Point of Interconnection at all power factors over 0.967 leading
to 0.981 lagging. This reactive power capability may be restricted to lower
values when the 345 kV bus at the Palisades Switchyard is operating at higher
voltages and/or the real power output of the Generating Facility, measured at
the Point of Interconnection, is higher than 802 MW. This reactive power
capability may be increased when the 345 kV bus at the Palisades Switchyard is
operating at lower voltages and/or the real power output of the Generating
Facility, measured at the Point of Interconnection, is less than 802 MW. The
Generating Facility shall be capable of continuous dynamic operation throughout
the power factor design range as measured at the Point of Interconnection. Any
changes to the Generating Facility net VAR capabilities, including changes to
either net static or net dynamic capability, shall be approved by the
Transmission Owner or its designated agent, such approval shall not be
unreasonably withheld.
(n) Switching and tagging;
Transmission Owner and Interconnection Customer shall comply with existing
regulatory requirement regarding Switching and Tagging procedures.
(o) Data reporting requirements;
The Interconnection Customer shall provide operating data and equipment
modeling to the Transmission Owner or its designated agent and/or the
appropriate Region Reliability Organization to support the following:
- - NERC Compliance Program(s)
- - Regional Reliability Organization Compliance Program(s)
- - Federal, State, and Local Regulatory programs
Original Sheet No. 62
EXHIBIT C
- - Other data reasonably determined by Transmission Owner and/or Transmission
Provider in order to operate the Transmission System reliably.
(p) Training;
Interconnection Customer, Transmission Provider, and Transmission Owner or its
designated agent shall provide necessary training to insure the reliability of
the electric transmission grid, in both normal and emergency conditions.
(q) Capacity determination and verification (including ancillary services and
certification);
The Interconnection Customer shall comply with the Capacity Determination
rules of the Regional Reliability Region that the Transmission Owner is a member
of.
(r) Emergency operations, including system restoration and blackstart
arrangements; The Interconnection Customer shall provide the Transmission Owner
or its designated agent with plant data and plant procedures necessary to
coordinate and implement the Transmission Owner or its designated agent
black-start plans. The Interconnection Customer will participate in black-start
drills as requested.
(s) Identified must-run conditions;
There are no identified must run conditions.
(t) Provision of ancillary services;
The Interconnection Customer shall provide Ancillary Services to Transmission
Owner or its designate agent as required by the Tariff and/or the Power Purchase
Agreement, as applicable.
(u) Specific transmission requirements of nuclear units to abide by all NRC
requirements and regulations;
Interconnection Customer, Transmission Provider, Transmission Owner, or their
designated agents, as applicable, shall cooperate to assist the Generating
Facility to comply with any NRC Requirements and Commitments, concerning offsite
supply of energy to nuclear units and station blackout recovery actions.
(v) Stability requirements, including generation short circuit ratio
considerations;
Original Sheet No. 63
EXHIBIT C
The stability and short circuit ratio considerations are those needed to meet
the applicable Regional Reliability Organization and Transmission Owner
requirements.
(w) Limitations of operations in support of emergency response;
Interconnection Customer shall comply with directives of the Transmission Owner
or its designated agent in its role as Reliability Coordinator to insure
reliability of the electric transmission grid.
(x) Maintenance and Testing;
The Transmission Owner and Generation Facility Owner interconnection facilities
shall be tested and maintained with a combination of condition based and
frequency based programs following Good Utility Practices. Observation, testing,
maintenance, inspection and calibration of the Palisades substation circuit
breakers, protective relays, and batteries shall be performed in accordance with
Nuclear Electric Insurance Limited - Loss Control Standards.
(y) Operating Protocols.
Transmission Provider, Transmission Owner, and Interconnection Customer shall
develop and amend operating protocols and procedures determined from time to
time to be necessary and consistent with Good Utility Practice, Applicable Laws
and Regulations, and Applicable Reliability Standards.
Original Sheet No. 64
EXHIBIT C
Appendix D
To LGIA
Security Arrangements Details
Infrastructure security of Transmission or Distribution System equipment and
operations, as applicable, and control hardware and software is essential to
ensure day-to-day Transmission and Distribution System reliability and
operational security. The Commission will expect all Transmission Providers,
market participants, and Interconnection Customers interconnected to the
Transmission or Distribution System, as applicable, to comply with the
recommendations provided by Governmental Authorities regarding Critical Energy
Infrastructure Information ("CEII") as that term is defined in 18 C.F.R. Section
388.113(c) and best practice recommendations from the electric reliability
authority. All public utilities will be expected to meet basic standards for
system infrastructure and operational security, including physical, operational,
and cyber-security practices.
Original Sheet No. 65
EXHIBIT C
Appendix E
To LGIA
Commercial Operation Date
[Intentionally left blank]
Original Sheet No. 66
EXHIBIT C
Appendix F
To LGIA
Addresses for Delivery of Notices and Billings
Notices:
Transmission Provider:
Midwest Independent Transmission System Operator, Inc.
Attn: Manager, Interconnection Planning
701 City Center Drive
Carmel, IN 46032
Transmission Owner:
[To be supplied.]
Interconnection Customer:
[To be supplied.]
Billings and Payments:
Transmission Provider:
Phone No.:
Fax No.:
Email:
Transmission Owner:
[To be supplied.]
Interconnection Customer:
[To be supplied.]
Alternative Forms of Delivery of Notices (telephone, facsimile or email):
Original Sheet No. 67
EXHIBIT C
Transmission Provider:
Midwest Independent Transmission System Operator, Inc.
Attn: Manager, Interconnection Engineering
701 City Center Drive
Carmel, IN 46032
Transmission Owner:
[To be supplied.]
Interconnection Customer:
[To be supplied.]
Original Sheet No. 68
EXHIBIT C
Appendix G
To LGIA
Requirements of Large Generating Facilities Relying on Newer Technologies.
[Intentionally left blank]
Original Sheet No. 69
EXHIBIT C
Appendix H
To LGIA
PALISADES SUPPLEMENT TO THE LARGE GENERATOR INTERCONNECTION AGREEMENT WHEREAS,
the Parties have entered into the LGIA to which this Palisades Supplement is an
appendix that, among other things, defines the responsibilities and authority of
the Transmission
Owner and Transmission Provider with respect to the Transmission System and the
obligations, rights and responsibilities of Interconnection Customer for the
connection of the Palisades Nuclear
Generating Plant ("Palisades") to Transmission Owner's Transmission System; and
WHEREAS, there are special interconnection requirements associated with
Palisades, due to it being a nuclear generating plant, including those
requirements contained in its NRC Operating
License and other NRC Requirements and Commitments and design requirements,
which are not fully covered in the Interconnection Agreement; and
WHEREAS, Section 9.11 of the LGIA specifically provides for further
supplementation of the LGIA with regard to Palisades; and
WHEREAS, the Parties are willing to maintain the interconnection of Palisades
with the Transmission System under the additional terms and conditions contained
herein.
NOW, THEREFORE, the Parties agree as follows:
ARTICLE 1
DEFINITIONS
All capitalized terms used herein shall have the same meaning ascribed thereto
in the LGIA, unless otherwise indicated. In addition, when used in this
Palisades Supplement, the following terms shall have the following meanings:
"Offsite Power Supply" shall mean the power available to Palisades from the
Transmission System through the Palisades substation.
ARTICLE 2
GENERAL PROVISIONS
Except as otherwise provided for in this Palisades Supplement, the provisions of
this LGIA shall apply to Palisades and Palisades-related Interconnection
Facilities. This Palisades Supplement covers additional provisions that relate
only to Palisades and Palisades-related Interconnection Facilities. Transmission
Owner and Interconnection Customer agree that specific transmission system
operating limitations required to satisfy NRC Operating License, NRC
Requirements and
Original Sheet No. 70
EXHIBIT C
Commitments and NRC design requirements applicable to the Palisades are
identified in Exhibit A of this Palisades Supplement and shall be adhered to by
both Parties.
ARTICLE 3
REQUIREMENTS FOR OFFSITE POWER SUPPLY TO PALISADES
3.1 In the event future changes in either (a) design or operation of Palisades,
(b) Interconnection Customer's requirements, or (c) Transmission Provider's or
Transmission Owner's requirements resulting from parallel operation of Palisades
with the Transmission System later necessitate additional Interconnection
Facilities or modifications to the then existing Interconnection Facilities, the
Parties shall undertake such additions and modifications as may be necessary.
Before undertaking such future additions or modifications, the Parties shall
consult, develop plans and coordinate schedules of activities, including the
making of necessary amendments to this Palisades Supplement (including its
Exhibits) and/or entering into new agreements, so as to insure continuous and
reliable operation of the Interconnection Facilities. The ownership, operation
and maintenance responsibilities for any such future additions or modifications
shall be made consistent with the responsibilities allocated in the
Interconnection Agreement.
3.2 Except as otherwise permitted by the NRC Operating License, two paths must
be available to transmit offsite power between the Palisades substation and the
Palisades equipment. During plant operation, offsite power can be supplied to
Palisades equipment through Safeguards Transformer 1-1 and Startup Transformer
1-2. When the plant is shut down, offsite power can also be supplied through
Main Transformer 1-1.
3.3 Interconnection Customer shall be solely responsible for obtaining, at its
cost, and pursuant to applicable tariffs, station power and offsite power.
Interconnection Customer shall be responsible for any transmission charges
associated with the delivery of such energy. In the event of a Transmission
System interruption or disruption that affects Palisades' receipt of an Offsite
Power Supply, Transmission Owner and Transmission Provider will promptly take
appropriate action to restore the Transmission System, including initiating the
Transmission Provider's black start plan or system restoration plan in
accordance with Applicable Laws and Regulations and Applicable Reliability
Standards. Interconnection Customer shall specify by separate correspondence the
specific unit or units designated to provide black start service for Palisades.
3.4 The specific requirements to determine adequacy of voltage, frequency,
capacity, and reliability of offsite power to meet the NRC Operating License and
design requirements are detailed in Exhibit A of this Palisades Supplement.
3.5 Specific procedures to minimize the potential for inadvertent interruptions
of the Offsite Power Supply and associated plant trips and transients are
specified in Exhibit A of this Palisades Supplement.
Original Sheet No. 71
EXHIBIT C
ARTICLE 4
EMERGENCIES
4.1 With respect to Palisades, the Transmission Provider's and Transmission
Owner's emergency procedures referred to in Article 13 of the LGIA shall include
Palisades' Emergency Condition procedures, as they may be amended or superseded.
Interconnection Customer shall provide its Emergency Condition procedures to the
Transmission Provider and Transmission Owner.
4.2 In the event of a declared Emergency at Palisades, Interconnection Customer
shall have authority to exercise complete control over the Palisades substation
and associated Transmission System easements located within the Exclusion Area
as defined in the Updated Final Safety Analysis Report (UFSAR), and to determine
all activities within that area, including evacuation and exclusion from the
Substation and the Exclusion Area of Transmission Provider and Transmission
Owner personnel, contractors, visitors, guests, and other persons.
ARTICLE 5
SAFETY AND SECURITY
Work performed by Transmission Owner in the Palisades substation shall be
subject to Transmission Owner's safety rules. Work performed by Interconnection
Customer in the Palisades substation shall be subject to Palisades safety rules.
Any Party performing work inside the Protected Area shall abide by the Palisades
safety and security rules.
ARTICLE 6
(RESERVED)
ARTICLE 7
MISCELLANEOUS
7.1 Provisions from Interconnection Agreement
All provisions contained in the Interconnection Agreement not specifically
supplemented or addressed herein shall apply to this Palisades Supplement as if
restated herein.
7.2 Agreement
To the extent there is an inconsistency between a provision in this Palisades
Supplement and a provision elsewhere in the LGIA, the provision in this
Palisades Supplement shall control. The terms and conditions of this Palisades
Supplement and any Exhibits thereto shall be amended, as mutually agreed to by
the Parties, to comply with changes or alterations made necessary by a valid
applicable order of any governmental regulatory authority, or any court, having
jurisdiction hereof.
Original Sheet No. 72
EXHIBIT C
EXHIBIT A
to
PALISADES INTERFACE SUPPLEMENT TO THE
LARGE GENERATOR INTERCONNECTION AGREEMENT
PALISADES REQUIREMENTS FOR
OFFSITE POWER SUPPLY OPERABILITY AND SUBSTATION INTERFACE
OVERVIEW
During normal operation Palisades electrical loads are supplied from the unit's
main onsite electrical generator and the 345 kV substation. If the generator is
not available, either due to unit shutdown or other reason, the loads fed
directly from the generator are transferred to an alternative source from the
345 kV substation. The preferred immediate alternate source of electrical power
for electric loads (safety-related and non-safety-related) is the Offsite Power
Supply or 345 kV grid. The Offsite Power Supply is sometimes referred to as the
"preferred power supply" in regulatory documents. The basic requirement for the
Offsite Power Supply is that it provides sufficient capacity and capability for
safe shutdown and design basis accident mitigation. When this condition is met,
the Offsite Power Supply is considered "Operable" with respect to NRC Operating
License and the "Technical Specifications" for Palisades. It is a necessary
condition of the NRC Operating License that the Offsite Power Supply be Operable
at all times. If the Offsite Power Supply is declared Inoperable, action must be
taken to shut down, and if the unit is off-line, to suspend certain activities,
as required by the NRC Operating License and Technical Specifications. The
Offsite Power Supply is considered Inoperable if it is degraded to the point
that it does not have the capability to effect safe shutdown and to mitigate the
effects of an accident. This level of degradation can be caused by an unstable
offsite power system, or any condition that renders the offsite power
unavailable for safe shutdown and emergency purposes.
The Palisades substation voltage will be planned as specified in the
Transmission Owner's FERC Form 715 Annual Transmission Planning and Evaluation
Report. The minimum tolerable transmission system operating voltage to ensure
the Offsite Power Supply is Operable shall be specified as 334 kV unless
Transmission Owner and Interconnection Customer agree in writing that a
different value should be specified.
Transmission System operating procedures and programs shall be in place to
ensure that various system operating conditions (generating unit outages, line
outages, system loads, spinning reserve, etc.), including multiple contingency
events, are evaluated and understood, such that impaired or potentially degraded
grid conditions are recognized, assessed, and immediately communicated to the
Palisades operating staff for Operability assessments of plant equipment.
The specific requirements in this Exhibit mirror operating protocols, equipment,
and regional and
Original Sheet No. 73
EXHIBIT C
national reliability organization standards existing at the time this Palisades
Supplement is signed, and are subject to modification as necessary when new
standards, equipment or protocols are adopted or updated.
SPECIFIC REQUIREMENTS
Note: This section identifies the operational requirements for the Palisades
Offsite Power Supply. These requirements are part of the Palisades design basis
and licensing basis. Failure to meet these requirements may render the Offsite
Power Supply Inoperable, thus requiring the unit to shut down. Failure to meet
these requirements must be immediately communicated to Interconnection Customer
and the Palisades operating staff for assessment of plant emergency equipment
operability. Changes in the operation of the transmission network that conflict
with these requirements require prior approval by Interconnection Customer.
1. The Palisades substation is connected to six 345kV transmission lines. Any
long term increase or decrease in the physical number of lines into the
Palisades substation requires prior notification of and review by the Palisades
Operating staff. Except in an emergency none of those six lines may be removed
from service without prior notification of the Palisades Operating staff.
At least two independent paths to transmit power between the substation and
Palisades' emergency safeguards busses are required to be available at all times
while the plant is operating. During shutdown conditions at least one power
transmission path is required. Operability of the Offsite Power Supply sources
through their associated transmission paths is to be determined by the Palisades
Operating staff.
2. The Palisades Offsite Power Supply shall be capable of providing 42 MW and 31
MVAR to Palisades for normal operation, safe shutdown, and design basis accident
mitigation.
3. All efforts will be made to operate the Transmission System such that the
voltage at the Palisades substation will promptly recover to a minimum of 334 kV
following a shutdown of the Palisades generator. The Palisades Operating staff
will monitor substation voltage and will notify Transmission Provider if voltage
falls below a predetermined screening value (e.g., 352 kV) to verify that any
necessary actions will be taken to assure that this criterion will be met.
4. Equipment operations, maintenance, and modification activities should be
planned and conducted to meet the following performance criteria:
a. The Front and Rear Busses are available greater than 99.8% per 12 months.
b. Breakers 25F7 and 25H9 have less than three Maintenance Preventable
Functional Failures per 24 months. Maintenance Preventable Functional Failures
are defined in NUMARC 93- 01 "Nuclear Energy institute Industry Guideline for
Monitoring the Effectiveness of Maintenance at Nuclear Power Plants," or
successor publication.
Original Sheet No. 74
EXHIBIT C
c. Breakers 25F7 and 25H9 are available greater than 98.6% per 12 months. If any
planned substation activities would invalidate these assumptions Palisades must
be informed and compensatory measures or corrective actions must be evaluated.
5. The maximum grid voltage at the Palisades substation shall be maintained at
or below 369 kV. This voltage shall not be exceeded unless required to preserve
transmission network integrity.
6. Transmission Provider will provide a voltage schedule to be maintained by the
Palisades generator.
7. System studies shall be performed periodically and updated by the
Transmission Provider based on changing grid conditions to verify that certain
postulated events will not render the Palisades offsite power supply inoperable.
Events to be postulated include, but are not limited to, the following:
a) The loss of Palisades.
b) The loss of any generating unit on the Transmission System.
c) The loss of any major transmission circuit or intertie on the Transmission
System.
d) The loss of any large load or block of load, (defined as 1000 MW) on the
Transmission System.
e) Power transfers
8. Records of the most recent system study results shall be maintained by the
Transmission Provider. These records are subject to Interconnection Customer and
NRC reviews. Study results, including revisions and updates, shall be
transmitted via letter to Interconnection Customer. Study results and
conclusions shall be assessed at least annually and updated by the Transmission
Provider, if needed, based on changing grid conditions.
9. In the event of loss of the Palisades Offsite Power Supply, transmission
lines terminating at the Palisades substation will be returned to service based
on the following criteria: Note: With regard to the NRC's rules regarding
Station Blackout (SBO), Palisades is a 4-hour coping plant. Applicable Law and
Regulations and NRC Requirements and Commitments with respect to SBO restoration
require that Palisades be able to withstand a loss of all AC power (loss of
Offsite Power Supply plus loss of both Emergency Diesel Generators) for 4 hours
without sustaining reactor core damage.
a) Transmission Provider and Transmission Owner shall give the highest possible
priority to restoring power to the Palisades substation under applicable
Blackout Restoration Procedures.
Original Sheet No. 75
EXHIBIT C
b) Should incoming lines to the Palisades substation be damaged, Transmission
Provider and Transmission Owner shall give the highest priority to the repair
and restoration of at least one line into the Palisades substation.
c) Transmission Provider and Transmission Owner shall give the repair crews
engaging in power restoration activities for Palisades the highest priority for
manpower, equipment, and materials.
10. Transmission Provider and Transmission Owner shall maintain Bulk Power
Transmission System Reliability as described in the Updated Final Safety
Analysis Report (UFSAR) for Palisades, sections 8.1 "Electrical Systems,
Introduction" and 8.2 "Network Interconnection" (or successor document). Changes
to planning criteria or operating practices that have the potential to adversely
impact grid reliability and availability as defined in the UFSAR require prior
notification of and evaluation by the Palisades Engineering staff.
11. Any equipment upgrades, circuit redesigns, or control logic revisions on the
Transmission System that affect the operational requirements of the Palisades
Offsite Power Supply shall be communicated to Interconnection Customer by the
Transmission Provider in sufficient detail to permit the Palisades Engineering
staff to accurately revise Section 8, "Electrical Systems", of the UFSAR. These
updates shall be provided to Interconnection Customer by the Transmission
Provider and will be used to prepare a UFSAR change submittal to the NRC. This
includes the issuance of all Palisades substation drawings to Interconnection
Customer at the time of revision.
12. Transmission Provider and Transmission Owner shall conduct observation,
testing, maintenance, inspection and calibration of the Palisades substation
circuit breakers, protective relays, and batteries in accordance with Nuclear
Electric Insurance Limited - Loss Control Standards.
13. General requirements for Palisades substation interfaces and services will
be addressed by protocols to be written by Transmission Provider, Transmission
Owner, and Interconnection Customer. These requirements may be amended from time
to time by mutual agreement among Transmission Provider, Transmission Owner, and
Interconnection Customer or any successor licensee of the Palisades Nuclear
Plant.
14. Notices, reports, etc. required under this Exhibit A shall be sent by either
facsimile transmission or US mail to the following contact person(s). Either
Party may change the following Notice information by giving the other Party
prior written Notice:
For Interconnection Customer: For Transmission Owner:
[_______] Michigan Electric Transmission Company, LLC
Palisades Nuclear Plant 540 Avis Drive, Suite H
27780 Blue Star Highway Ann Arbor, Michigan 48108
Covert, Michigan 49043
Attention: [___]
Attention: Executive Vice President and Chief Operating Officer
Original Sheet No. 76
EXHIBIT C
EXHIBIT D-1
FORM OF PALISADES DEED
DEED
THIS DEED is made this day of ___, 20-__, between CONSUMERS ENERGY COMPANY
(formerly known as Consumers Power Company), a Michigan corporation (successor
by merger to Consumers Power Company, a Maine corporation), whose address is One
Energy Plaza, Jackson, Michigan 49201 ("Grantor"), and -, a whose address is
("Grantee"),
WITNESSETH:
Grantor, for One Dollar ($1.00) and other good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged [REAL ESTATE VALUATION
AFFIDAVIT PILED], does hereby: (i) convey, grant, bargain and sell to Grantee
the land in the Township of Covert, Van Buren County, Michigan, described in
Section I of Exhibit A, attached hereto and made a part hereof (the
"Property"); and (ii) assign, transfer and set-over to Grantee the easements,
covering certain premises in the Townships of Covert and South Haven and the
City of South Haven, Van Buren County, Michigan, identified in Section I1 of
said Exhibit A (the "Assigned Easements").
This Deed is given subject to the reservations, covenants, agreements, terms and
conditions set forth on Exhibit B, attached hereto and made a part hereof.
Unless and except solely as may be set forth in this Deed or in a separate
written agreement duly entered into between Grantor and Grantee on or before the
date of this Deed, it is expressly understood that Grantor makes no covenants or
warranties of title whatsoever in respect to the Property or the Assigned
Easements. Grantor, for itself and its successors, covenants with Grantee, its
successors and assigns, that the Property and Assigned Easements are free from
all encumbrances of persons claiming by, through or under Grantor, but not
otherwise, and that Grantor and its successors shall warrant and defend the same
to Grantee, its successors and assigns, against the lawful claims and demands of
all persons claiming by, through or under Grantor, but not otherwise.
Statement pursuant to MCL 560.109 (3): Grantor grants to Grantee the right to
make such number of divisions of the unplatted portions of the Property as would
create up to 17 resulting parcels out of the unplatted portions of the Property,
under section 108 of the land division act. Act No. 288. of the Public Acts of
1967.
Notice pursuant to MCL 560.109 (4): This property may be located within
the vicinity of farmland or a farm operation. Generally accepted agricultural
and management practices which may generate noise, dust, odors, and other
associated conditions may be used and are protected by the Michigan right to
farm act.
IN WITNESS WHEREOF, the parties have caused this instrument to be executed by
their respective duly authorized representatives as of the date first above
written.
Grantor: Grantee:
CONSUMERS ENERGY COMPANY
Acknowledged before me in County, Michigan, on __________, 20-__
by of
CONSUMERS ENERGY COMPANY, a Michigan corporation, for the corporation.
Notary Public, County, Michigan
Acting in County, Michigan
My Commission Expires
Acknowledged before me in County, ____, on ____, 20-__
by. Of a, for the
Notary Public, County,
Acting in County,
My Commission Expires
Prepared by D. E. Barth
Consumers Energy Company
One Energy Plaza
Jackson, Michigan 49201
Exhibit A
Page 1 of 3
EXHIBIT A
Description of Property; Assigned Easements
I. The Property is described as follows:
A parcel of land in Sections 4 and 5, Township 2 South, Range 17 West, Covert
Township, Van Buren County, Michigan, more particularly described as follows:
Beginning at the Southeast 114 comer of said Section 5; thence N 00"06'00n E,
along the East line of said section, 405.69 feet; thence N 89'13'40" W 2659.12
feet; thence N 89 degrees 17'57" W 1723.14 feet, to the East line of Glenwood
Road; thence along said East line of Glenwood Road the following two courses: N
35"57'05" W 16.52 feet and N 30 degrees 53'07" E 27.75 feet, to the Easterly
extension of the line between Lots 19 and 20 of Block 2 of Dean's Addition to
Palisades Park per the plat thereof as recorded in Liber 3 of Plats, Page 4, Van
Buren County Records (which plat was partially vacated by instrument recorded in
Liber 585, Pages 903-906, Van Buren County Records); thence N 66'47'28" W 155.22
feet, to the Northeast comer of Lot 4 of said Dean's Addition to Palisades Park;
thence S 23"47'15" W 50.00 feet, to the Southeast comer of said Lot 4; thence N
66 - 47'28' W 130.00 feet, to the Southwest corner of said Lot 4; thence N 23
degrees 47115'v E 50.00 feet, to the Northwest corner of said Lot 4 and the
point of beginning of an intermediate traverse line, this point being S 66"47'
28" E 57 feet (more or less) from the Ordinary High Water Mark of Lake Michigan;
thence N 23'19'25" E, along said intermediate traverse line, 5079.91 feet, to
the point of ending of said intermediate traverse line, this point being S
88"58'2OU E 1 2 1 feet (more or less) from the Ordinary High Water Mark of Lake
Michigan; thence S 88 - 58'20" E 1448.14 feet, to the centerline of old Blue
Star Highway (now vacated); thence Southerly on a curve to the left, along said
centerline of vacated old Blue Star Highway, 659.45 feet (said curve having a
radius of 3819.80 feet, a delta angle of 09"53'30" and a chord of 658.63 feet
bearing S 02"23'07" W); thence S 88'58'20" E 1212.82 feet, to the East line of
said Section 5; thence S 89'03'50" E 860.50 feet, to Westerly line of "Rest
Area" as recorded in Liber 620, Pages 119-121, Van Buren County Records; thence
along said Westerly line of "Rest Area" the following 7 courses: Southerly on a
curve to the left 454.80 feet (said curve having a radius of 1910.08 feet, a
delta angle of 13'38'33" and a chord of 453.73 feet bearing S 02"55'53" E), S
09'47'50" E 275.00 feet, S 88"58'05" E 140.00 feet, S 01"01155" W 387.00 feet, S
88"58'0SV E 33.67 feet, S 17" 42' 10" W 68.90 feet, and S 88 degrees 58' 05 n E
31.32 feet, to the Westerly right-of-
Exhibit A
Page 2 of 3
way line of Highway 1-196; thence along said Westerly right-of-way line of
Highway 1-196 the following two courses: S 17'42'10"W 2788.56 feet and Southerly
on a curve to the right 765.03 feet (said curve having a radius of 11,309.16
feet, a delta angle of 03-52'33" and a chord of 764.88 feet bearing S 19"38'26"
W), to the South line of said Section 4; thence N 88"55'33" w, along said South
section line, 8.01 feet to the point of beginning.
Note: Bearings used in the preceding description are based on the Michigan State
Plane Coordination System South Zone.
Note: The land described hereinabove above includes certain platted land,
described as Lot 4 of Block 2 of Dean's Addition to Palisades Park.
ALSO, any land lying between the West line of the aforesaid Lot 1 of Block 2 of
Dean's Addition and the shore of Lake Michigan, and any land lying between the
hereinabove described intermediate traverse line and the shore of Lake Michigan,
if, as and to the extent Grantor has any right, title or interest therein.
All containing 469 acres, more or less.
Together with all buildings, fixtures and other improvements on the Property,
including any related easements and rights of ingress and egress, the water
intake and discharge structures serving the Property to the extent same may be
deemed real property, together will all rights of Seller in and to all air,
mineral and riparian rights, water (including without limitation ground water)
rights, and all and singular the tenements, hereditaments and appurtenances
thereunto belonging or in anywise appertaining, and land lying in the bed of any
street, road or avenue adjoining the Property to the center line thereof, but
only to the extent of Grantor's interest, if any, therein. 11. The "Assigned
Easements" are identified as all easements, rights and benefits, without
reservation, granted or accruing to Grantor (under its former name, Consumers
Power Company) in the following instruments, covering certain premises in Covert
and South Haven Townships and the City of South Haven, Van Buren County,
Michigan, as more particularly described in said instruments:
original original liber/page where date of easement easement premises recorded
(Van -in strument grantor grantee located in: Buren Co. Rec. l
1/17/1968 State of Consumers sec. 5-TZS-RI~W L. 570, P. 271
Michigan, Power Covert Township,
Department Company Van Buren County of Conservation 1
4/16/1981 David J. Consumers Secs. 19 & 24 - T ~ S - R ~ L ~.W 726, P. 616
Richards, Power Covert Twp.,
et ux company Van Buren County
Exhibit A
Page 3 of 3
Original date of easement instrument grantor original easement grantee
liber/page where recorded (Van Buren Co. Rec.) premises located in: 3/25/1981
Verna Priebe Sec. 25-T2S-R18W Covert Twp., Van Buren County Consumers Power
Company 3/5/1981 Florence B. Jone8 Consumers Power Company Sec. 9-T2S-R17W
Covert Twp., Van Buren County 3/13/1981 Harry sarno, et ux Consumers Power
Company Sec. 18-T2S-R17W Covert Twp., Van Buren County 4/6/1981 Palisades Park
Country Club Consumers Power Company Secs. 7&8-T2S-17W Covert Twp., Van Buren
County 5/12/1981 Jerry N. Beckwith, -et ux Consumers Power company Sec.
28-TlS-R17W South Haven Twp., Van Buren County 3/17/1981 City of South Haven
Consumers Power Company Sec. 26-T1S-R17W South Haven Twp., Van Buren County
3/18/1981 Southwest Michigan Council, Boy Scouts of America Consumers Power
company Sec. 33-TlS-R17W South Haven Twp., Van Buren County 3/19/1981 Donald F.
Walker, -et ux Consumers Power company Sec. 16-T1S-R17W South Haven Twp., Van
Buren County 6/21/1991 City of South Haven Consumers Power Company Sec6.
2.3,10&15 T1S-R17W, City of South Haven, Van Buren County 9/3/1991 south Haven
Board of Education Consumers Power Company Sec. 10-T1S-R17W City of South Haven.
Van Buren County
Exhibit B
Page 1 of 6
EXHIBIT B
Reservations, Etc. This Deed is made and given subject to the following
reservations, covenants, agreements, terms and conditions:
1 The Property is conveyed subject to the easement rights granted by Grantor to
Michigan Electric Transmission Company ("METC") in and to the following
described portions of the Property (the "METC-Palisades Easement Areas"):
"Palisades Substation Parcel": A parcel of land located in the Southeast 114 of
Section 5, TZS, R17W, more particularly described as follows: To find the point
of beginning, commence at the Southeast corner of said Section 5; thence N 00
degrees 05'35" E, along the East line of said section, 1131.80 feet; thence N
6S050'18" W 1238.46 feet to a point 5.00 feet Southerly and 5.00 feet Easterly
of the Southerly most substation fence corner as now exists and the point of
beginning of this description; thence continuing N 65'50'18' W, parallel to said
substation fence and 5.00 feet Southerly thereof, 559.49 feet; thence N 24
degrees 05'13M E 267.34 feet to the Southerly face of an existing concrete block
building; thence S 65'54'47" E, along said Southerly face, 5.00 feet to the
Southeasterly corner of said building; thence N 24 degrees 05113" E, along the
Easterly face of said building, 62.10 feet to the Northeasterly corner of said
building; thence N 65"54'47" W, along the Northeasterly face of said building,
5.00 feet; thence N 24 degrees 05'13" E 152.31 feet; thence S 65"48'16" E 504.86
feet; thence S 24'05'12" W 391.43 feet; thence S 65'48'26" E 54.10 feet; thence
S 23'45'26" W 90.00 feet to the point of beginning. "Ingress-Egress Strip": A
strip of land 20 feet in width, being 10 feet on each side of the centerline of
an existing drive located in the East 112 of Section 5, T2S, R17W, the
centerline of said strip being more particularly described as follows: To find
the point of beginning, commence at the Southeast corner of said Section 5;
thence N 89 degrees 13'13" W along the South line of said section, 788.97 feet;
thence N 04'56'09" E 406.70 feet to the point of beginning of this centerline
description; thence along a curve to the right, 35.43 feet, said curve having a
radius of 151.03 feet, delta angle of 13"26'33" and a chord of 35.35 feet
bearing N 00 degrees 23'01" W; thence N 06 degrees 20'16" E 430.63 feet; thence
along a curve to the left, 1422.27 feet, said curve having a radius of 5200.00
feet, delta angle of 15"40'16" and a chord of 1417.84 feet bearing N 02'53'58"
W; thence along a curve to the left. 1079.96 feet, said curve having a radius of
573.18 feet, delta angle of 107 degrees 57113v and a chord of 927.15 feet
bearing N 6Z010'01" W; thence S 63 degrees 51'22" W 47.82 feet; thence S 26
degrees 27'34" E 119.99 feet; thence along a curve to
Exhibit B
Page 2 of 6
the right, 425.44 feet, said curve having a radius of 697.46 feet, delta angle
of 34 degrees 56158" and a chord of 418.88 feet bearing S 06 degrees 11'49" E;
thence S 23 degrees 58'00" W 81.23 feet; thence S 65"54'47" E 40.84 feet to the
Palisades Substation Parcel described above and the point of ending of this
centerline description. The sidelines of said 20 foot wide strip of land are to
be extended or shortened to meet at angle points, said sidelines to begin at
points 10 feet on each side of and measured at right angles to the point of
beginning and to terminate at said Palisades Substation Parcel.
"Line 306A and Line 306B Parcel": A strip of land 150 feet in width, being 75
feet on each side of the centerline of an existing electric transmission line
located in the Southeast 1/4 of Section 5 and the Southwest 1/4 of Section 4,
T2S. R17W, the centerline of said strip being more particularly described as
follows: To find the point of beginning, commence at the Southwest corner of
said Section 4; thence N 00 degrees 05'35" E, along the West line of said
section, 1777.18 feet; thence S 89'54'25" E 600.43 feet to the intersection of
said centerline of existing electric transmission line and the Westerly
right-of-way line of Interstate Highway 1-196. also being the point of beginning
of this centerline description; thence along said centerline the following three
courses: N 73'12'43" W 631.22 feet, N 89"43'19" W 916.15 feet and N 65'54'48" W
114.91 feet to the Easterly line of the Palisades Substation Parcel described
above and the point of ending of this centerline description. The sidelines of
said 150 foot wide strip of land are to he extended or shortened to meet at
angle points, said sidelines to begin at the Westerly right-of-way line of said
1-196 and to terminate at said Palisades Substation Parcel.
"Line 309A and Line 3098 Parcel": A strip of land 150 feet in width, being 75
feet on each side of the centerline of an existing electric transmission line
located in the Southeast 1/4 of Section 5 and the Southwest 1/4 of Section 4,
T2S, R17W, the centerline of said strip being more particularly described as
follows: To find the point of beginning, commence at the Southwest comer of said
Section 4; thence N 0D005'35" E, along the West line of said section, 1371.98
feet; thence S 89"54'25' E 471.55 feet to the intersection of said centerline of
existing electric transmission line and the Westerly right-of-way line of
Interstate Highway 1-196, also being the point of beginning of this centerline
description; thence along said centerline the following three courses: N 70
degrees 53'42" W 760.76 feet, N 70 degrees 34'56" W 154.94 feet and N 65"54'48"
W 115.90 feet to the Palisades Substation Parcel described above and the point
of ending of this centerline description. The sidelines of said 150 foot wide
strip of land are to he extended or shortened to meet at angle points, said
sidelines to begin at the Westerly right-of-
Exhibit B
Page 3 of 6
way line of said 1-196 and to terminate at said Palisades Substation Parcel.
"Line 310A and Line 310B Parcel": A strip of land 150 feet in width, being 75
feet on each side of the centerline of an existing electric transmission line
located in the Southeast 1/4 of Section 5 and the Southwest 1/4 of Section 4,
TZS, R17W, the centerline of said strip being more particularly described as
follows: To find the point of beginning, commence at the Southwest corner of
said Section 4; thence N 00 degrees 05'35" E, along the West line of said
section, 1265.70 feet; thence S 89 degrees 54125" E 437.74 feet to the
intersection of said centerline of existing electric transmission line and the
Westerly right-of-way line of Interstate Highway 1-196. also being the point of
beginning of this centerline description; thence along said centerline the
following three courses: N 72 degrees 26'50" W 762.59 feet, N 72 degrees 17142"
W 769.88 feet and N 65O54'48" W 115.81 feet to the Palisades Substation Parcel
described above and the point of ending of this centerline description. The
sidelines of said 150 foot wide strip of land are to be extended or shortened to
meet at angle points, said sidelines to begin at the Westerly right-of way line
of said 1-196 and to terminate at said Palisades Substation Parcel.
"Addition to Palisades Substation Parcel": A n area of land located in the
Southeast 1/4 of Section 5, TZS, R17W, more particularly described as follows:
To find the point of beginning, commence at the Southeast corner of said Section
5; thence N 0O005'35" E, along the East line of said section. 1131.80 feet;
thence N 65050r18" W 1238.46 feet to a point 5.00 feet Southerly and 5.00 feet
Easterly of the Southernmost substation fence corner as now exists; thence N 23
degrees 45126" E 90.00 feet; thence N 65O48'26" W 54.10 feet; thence N 24
degrees 05'12" E 391.43 feet to the point of beginning of this description;
thence N 65O48'16" W 504.86 feet; thence N 24 degrees 11'44" E 51.00 feet;
thence S 65"48'16" E 504.86 feet; thence S 24 degrees 11144" W 51.00 feet to the
point of beginning.
"Palisades-Covert Line Parcel": A strip of land 150 feet in width, being 75 feet
on each side of the centerline of an existing electric transmission line located
in the southeast 1/4 of Section 5 and the Southwest 1/4 of Section 4, TZS, R17W,
the centerline of said 150-foot wide strip being more particularly described as
follows: To find the point of beginning, commence at the Southwest comer of said
Section 4; thence S 8E055'37" E, along the South line of said Section 4. 1852.45
feet; thence N 0l004'23" E 2072.68 feet to the centerline of the Covert
Substation Structure; thence N E1 degrees 58'57" W 443.60 feet; thence N 62
degrees 57'08" W 359.40 feet; thence S 8Z05l116" W 391.19 feet to the Westerly
right of-way line of Interstate Highway I- 196, also being the point of
beginning of this centerline description; thence along said centerline the
following
Exhibit B
Page 4 of 6
four courses: S 8Z051'16" W 567.54 feet, N 84 degrees 3B'30" W 681.05 feet, S
67004'24" W 372.73 feet, and N 73 degrees 02'21" W 145.04 feet to the point of
ending of this centerline description. The sidelines of said 150-foot wide strip
of land are to be extended or shortened to meet at angle points, said sidelines
to begin at the Westerly right-of way line of said 1-196 and to terminate at the
Easterly line of the Addition to Palisades Substation Parcel described above or
the extension thereof. as set forth in and on the terms and conditions of a
certain Amended and Restated Easement Agreement between Grantor and METC dated
April 29, 2002, recorded in Liber 1355 at Page 979 et seq, Van Buren County
Records (and also recorded in various other counties in the State of Michigan),
as amended by Supplement No. 2 to Amended and Restated Easement Agreement
recorded in Liber 1355 at Page 980 w, Van Buren County Records (collectively,
the "METC Easement Agreement"). Grantor does not hereby convey or assign to
Grantee any rights to receive any part of the Base Rent payable by METC, its
successors or assigns, under the METC Easement Agreement; and (as provided in
Section 10.2 of the METC Easement Agreement) Grantor reserves all rights to
receive said Base Rent in respect to the METC-Palisades Easement Areas. Grantor
also does not convey or assign to Grantee, and Grantor reserves, all rights
under, and subject to the terms and conditions of, the METC Easement Agreement
to use and occupy and to authorize any third parties to use and occupy METC's
Transmission Facilities located on the METC-Palisades Easement Areas with
facilities constituting "Compatible Uses" as defined in the METC Easement
Agreement, and to receive all revenues for any such third party uses or
occupations of METC1s Transmission Facilities; provided, however, that Grantor
hereby agrees that it will not itself exercise such rights to use and occupy
METC Transmission Facilities located on the METC-Palisades Easement Areas or
authorize third parties to use or occupy METC Transmission Facilities located on
the METC-Palisades Easement Areas without Grantee's prior written approval.
Except for the rights and interests under the METC Easement Agreement that are
reserved to Grantor herein, Grantor's rights and interests under the METC
Easement Agreement are, with respect (and only with respect) to the
METC-Palisades Easement Areas, hereby conveyed to Grantee. Except specifically
in connection with the use or exercise of rights under the METC Easement
Agreement expressly reserved by Grantor herein, Grantor's covenants, agreements
and obligations under the METC Easement Agreement shall, with respect (and only
with respect) to the METC-Palisades Easement Areas pass to Grantee and, as
expressly provided in Section 10.2 of the METC Easement Agreement, Grantor shall
not hereafter be liable therefor.
2. The conveyance hereunder does not include, and Grantor retains, Grantor's
existing radio communications system antenna and related equipment, located on
following described portion of the Property (the nMeteorological Tower Site"):
A parcel of land in the Northwest 1/4 of Section 4, TZS,
Exhibit B
Page 5 of 6
R17W, more particularly described as follows: To find the point of beginning of
this description, commence at the West 1/4 corner of said section; thence N 00
degrees 01'54" Z, along the West line of said section, 263.77 feet; thence S 89
degrees 58'06'f E 554.56 feet, to the point of beginning of this description;
thence S 7g036'59" E 105.00 feet; thence N 10 degrees 20'10" E 250.00 feet;
thence N 79O36-59 W 105.00 feet; thence S lOa20'10" W 250.00 feet to the point
of beginning; both as located on/attached to the existing meteorological tower
and on the ground (including without limitation in the existing equipment shed)
on said Meteorological Tower Site. The meteorological tower and equipment shed
themselves are not retained by Grantor and are included in the conveyance
hereunder.
Grantor's right to operate, maintain, repair, remove, upgrade, modify, and
replace Grantor's said radio communications system antenna and related
equipment, located both on said meteorological tower itself and on the ground
(including without limitation in said equipment shed) on said Meteorological
Tower Site, and to enter upon the Meteorological Tower Site for such purposes,
and for ingress to and egress from the Meteorological Tower Site, shall be only
as set forth in a separate license agreement between the parties dated
__________, 20-__. It is further understood that the aforesaid meteorological
tower and equipment shed, as well as such parts of the Property (including the
Meteorological Tower Site) as may be applicable, are conveyed subject to the
license and permit granted to the Van Buren County Sheriff's Department in a
certain license agreement dated May 3, 1996. All rights, interests and
obligations of Grantor as "Licensor" under said license agreement are hereby
assigned to and (to the extent first accruing or first required to be performed
on or after the date of this Deed) assumed by Grantee.
3. The Property is conveyed and the Assigned Easements are assigned to Grantee
further subject to all "Permitted Encumbrances" applicable to the Property as
that term is defined in a certain "Asset Sale Agreement' between the parties
dated 20-.
4. The Assigned Easements are assigned to Grantee subject to any express terms,
conditions and limitation set forth in the instruments by which the Assigned
Easements were originally granted to Grantor; and Grantee agrees to be bound by
all such express terms, conditions and limitations to the extent the duties,
obligations or liabilities thereunder accrue, arise or are first required to be
performed on or subsequent to the date of this Deed. From and after the date of
this Deed, Grantee assumes, agrees to perform, and shall hold Grantor harmless
from, all duties, obligations and liabilities of Grantor under the express terms
of the Assigned Easements, but only to the extent that such duties, obligations
and liabilities accrue, arise or are first required to be performed on or
subsequent to the date of this Deed.
5. As used in any of the foregoing provisions hereof, references to "Grantor,"
"Grantee" and "METC" shall include their respective successors and assigns. The
reservations, covenants, agreements, terms and conditions set forth herein shall
be construed as perpetual and
Exhibit B
Page 5 of 6
running with the land.
EXHIBIT D-2
FORM OF BIG ROCK ISFSI DEED
DEED
THIS DEED is made this ____ day of ___________, 20_____, between CONSUMERS
ENERGY COMPANY (formerly known as Consumers Power Company), a Michigan
corporation (successor by merger to Consumers Power Company, a Maine
corporation), whose address is One Energy Plaza, Jackson, Michigan 49201
("Grantor"), and _________________________________, a ________________________,
whose address is ____________________________________________ ("Grantee"),
WITNESSETH:
Grantor, for One Dollar ($1.00) and other good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged [REAL ESTATE VALUATION
AFFIDAVIT FILED], does hereby convey to Grantee the land in the Township of
Hayes, Charlevoix County, Michigan, described in Exhibit A, attached hereto and
made a part hereof (the "Property").
This Deed is given subject to the reservations, covenants, agreements, terms and
conditions set forth on Exhibit B, attached hereto and made a part hereof.
Unless and except solely as may be set forth in this Deed or in a separate
written agreement duly entered into between Grantor and Grantee on or before the
date of this Deed, it is expressly understood that Grantor makes no covenants or
warranties of title whatsoever in respect to the Property. Grantor, for itself
and its successors, covenants with Grantee, its successors and assigns, that the
Property is free from all encumbrances of persons claiming by, through or under
Grantor, but not otherwise, and that Grantor and its successors shall warrant
and defend the same to Grantee, its successors and assigns, against the lawful
claims and demands of all persons claiming by, through or under Grantor, but not
otherwise.
Statement pursuant to MCL 560.109(3): Grantor grants to Grantee the right to
make zero (0) divisions under section 108 of the land division act, Act No. 288
of the Public Acts of 1967.
Notice pursuant to MCL 560.109(4): This property may be located within the
vicinity of farmland or a farm operation. Generally accepted agricultural and
management practices which may generate noise, dust, odors, and other associated
conditions may be used and are protected by the Michigan right to farm act.
IN WITNESS WHEREOF, the parties have caused this instrument to be executed by
their respective duly authorized representatives as of the date first above
written.
Grantor: Grantee:
CONSUMERS ENERGY COMPANY ___________________________________ By
________________________________ By ________________________________
Acknowledged before me in _________ County, Michigan, on ___________, 20____ by
_______________________________, _____________________________________ of
CONSUMERS ENERGY COMPANY, a Michigan corporation, for the corporation.
________________________________________
Notary Public, ________ County, Michigan
Acting in _____________ County, Michigan
My Commission Expires __________________
Acknowledged before me in _________ County, ________, on ___________, 20____ by
_______________________________, _____________________________________ of
_____________________________, a ____________________, for the ___________.
________________________________________
Notary Public, ________ County, ________
Acting in _____________ County, ________
My Commission Expires __________________
Prepared by D. E. Barth
Consumers Energy Company
One Energy Plaza
Jackson, Michigan 49201
Exhibit A
Page 1 of 1
EXHIBIT A
Description of Property
The Property is described as follows:
A parcel of land in the West 1/2 of Section 8 and the North 1/2 of the Northwest
1/4 of Section 17, Township 34 North, Range 7 West, Hayes Township, Charlevoix
County, Michigan, more particularly described as follows: To find the point of
beginning of this description, commence at a Consumers Power Company marker at
the Southwest corner of said Section 8; run thence N 00degrees 05'57" W, along
the West line of said section, 580.70 feet; thence N 89 degrees 58'47" E 91.20
feet to a 1/2" rod, being the POINT OF BEGINNING of this description; thence N
00 degrees 05'21" W 2177.62 feet to a 1/2" rod (this location being hereafter in
this Deed referred to as "Point A"); thence N 89 degrees 56'29" E 2124.65 feet
to a 1/2" rod; thence S 00 degrees 03'57" E 2179.05 feet to a 1/2" rod; thence S
89 degrees 58'47" W 744.25 feet to a 1/2" rod (this location being hereafter in
this Deed referred to as "Point B"); thence S 25 degrees 00'34" E 919.08 feet to
a 1/2" rod; thence Southerly 167.07 feet along the arc of a 384.84-foot radius
curve to the right (said curve having a central angle of 24 degrees 52'28" and a
chord bearing S 12 degrees 34'20" E 165.77 feet) to a 1/2" rod; thence S 00
degrees 08'06" E 249.41 feet to a 1/2" rod on the Northwesterly right-of- way
line of Highway U.S.-31; thence S 29 degrees 42'25" W, along said highway
right-of-way line, 80.38 feet to a 1/2" rod; thence N 00 degrees 08'06" W 319.13
feet to a 1/2" rod; thence Northerly 149.71 feet along the arc of a 344.84-foot
radius curve to the left (said curve having a central angle of 24 degrees 52'28"
and a chord bearing N 12 degrees 34'20" W 148.54 feet) to a 1/2" rod; thence N
25 degrees 00'34" W 937.73 feet to a 1/2" rod; thence S 89 degrees 58'47" W
1335.38 feet to the POINT OF BEGINNING. Containing 107.486 acres, more or less.
Together with all buildings, fixtures and other improvements on the Property,
and all rights of Seller in and to all air rights, ground water rights, and all
and singular the tenements, hereditaments and appurtenances thereunto belonging
or in anywise appertaining, and land lying in the bed of any street, road or
avenue adjoining the Property to the center line thereof, but only to the extent
of Grantor's interest, if any, therein.
Exhibit B
Page 1 of 6
EXHIBIT B
Reservations, Etc.
This Deed is made and given subject to the following reservations, covenants,
agreements, terms and conditions:
1. Grantor hereby reserves an easement to operate, maintain, repair, inspect,
improve, modify, change, enlarge, remove and replace an existing electric line
consisting of towers and/or pole structures and/or poles, with wires, cables,
conduits, guys, anchors, crossarms, transformers and/or other fixtures and
appurtenances, for the purposes of transmitting and distributing electricity
and/or conducting a communication business, in, on, over and across the
following described portion of the Property; and Grantor shall have the right to
enter at any and all times upon said following described portion of the Property
for such purposes:
All that portion of a 160-foot wide strip of land, lying 80 feet on each side of
the following described centerline, as lies within the Property: This centerline
description runs across a portion of the W 1/2 of Section 8 and the N 1/2 of the
NW 1/4 of Section 17, T34N, R7W, and is described as beginning on the N'ly line
of the Property at a point located N 89 degrees 56'29" E 943.00 feet from the
point identified as "Point A" in the description of the Property in Exhibit A to
this Deed; running thence S 00 degrees 05'49" E 1246.10 feet; thence S 25
degrees 03'34" E 2038.50 feet; thence S 00 degrees 01'19" W 336.39 feet to a
point on the Northwesterly line of Highway U.S.-31, being the point of ending of
this centerline description.
Grantor also reserves an easement, for so long as the above electric line
easement remains in effect, to cut, trim, remove, destroy and/or otherwise
control any or all trees and brush which may now or at any time hereafter be
located anywhere on the foregoing described portion of the Property, and Grantor
shall have the right to enter at any and all times upon said portion of the
Property for such purposes. Grantee covenants and agrees that no buildings or
other structures (other than those of Grantor or any other buildings or
structures currently existing) will at any time be placed on any part of the
above-described portion of the Property that is within 40 feet on either side of
the centerline of Grantor's electric line as located on said portion of the
Property, except for such structures as Grantee may, in connection with
Grantee's Independent Spent Fuel Storage Installation located elsewhere on the
Property ("Grantee's ISFSI"), be required by applicable law or regulation to
locate in such area, provided further, that if Grantee is so required to place
any structures in such area Grantee shall consult with Grantor as to the
construction thereof to ensure that there will be no violations of the National
Electric Safety Code or other applicable law or regulations.
2. Grantor also reserves an easement to construct, operate, maintain, repair,
inspect, improve, modify, change, enlarge, remove and replace additional
electric lines, each such additional electric line to
Exhibit B
Page 2 of 6
consist of towers and/or pole structures and/or poles, with wires, cables,
conduits, guys, anchors, crossarms, transformers and/or other fixtures and
appurtenances, for the purposes of transmitting and distributing electricity
and/or conducting a communication business, in, on, over and across the
following described portions of the Property; and Grantor shall have the right
to enter at any and all times upon said following described portions of the
Property for such purposes:
A 30-foot wide strip of land in the W 1/2 of Section 8, T34N, R7W, said 30-foot
wide strip of land being described as lying 15 feet on each side of a centerline
that begins at the point of intersection of the W'ly line of the Property with
the E-W 1/4 line of said Section 8, said point being further described as lying
S 00 degrees 05'21" E 130.41 feet from the point identified as "Point A" in the
description of the Property in Exhibit A to this Deed; and running thence N 89
degrees 46'27" E along said E-W 1/4 line 2124.60 feet to its point of
intersection with the E'ly line of the Property, said point being the point of
ending of this centerline description; and A 30-foot wide strip of land in the W
1/2 of Section 8, T34N, R7W, said 30-foot wide strip of land being described as
lying 15 feet on each side of a centerline that begins at the point of
intersection of the N'ly line of the Property with the line that lies between
Government Lot 3 and Government Lot 4 of said Section 8, said point being
further described as lying N 89 degrees 56'29" E 1212.67 feet from the point
identified as "Point A" in the description of the Property in Exhibit A to this
Deed; and running thence S 00 degrees 45'43" E along said common line lying
between said government lots 126.87 feet to its point of intersection with the
E-W 1/4 line of said Section 8, said point being the point of ending of this
centerline description.
Grantor also reserves an easement, for so long as the above electric line
easement remains in effect, to cut, trim, remove, destroy and/or otherwise
control any or all trees and brush which may now or at any time hereafter be
located anywhere on the foregoing described portions of the Property, and
Grantor shall have the right to enter at any and all times upon said portions of
the Property for such purposes.
Grantee covenants and agrees that no buildings or other structures (other than
those of Grantor or any other buildings or structures currently existing) will
at any time be placed anywhere within said foregoing described portions of the
Property, except for such structures as Grantee may, in connection with
Grantee's ISFSI, be required by applicable law or regulation to locate in such
area, provided further, that if Grantee is so required to place any structures
in such area Grantee shall consult with Grantor as to the construction thereof
to ensure that there will be no violations of the National Electric Safety Code
or other applicable law or regulations.
Exhibit B
Page 3 of 6
3. The easements and rights reserved by Grantor in Items 1 and 2, above, of this
Exhibit B are subject to the following clauses (i) through (v). The easements
and rights reserved by Grantor in Item 5, below, of this Exhibit B are subject
to the following clauses (ii), (iii) and (v) only.
(i) Grantor will not assign or otherwise transfer said reserved easements
without Grantee's written consent, which consent shall in no event be
unreasonably withheld or delayed.
(ii) Grantor shall promptly at its sole cost restore and repair any portions of
the Property damaged by the exercise of Grantor's said reserved easements,
except that the foregoing does not require Grantor to restore trees and brush
that Grantor is authorized to cut, trim, remove, destroy or otherwise control as
expressly set forth in this Deed or other conditions that violate Grantee's
obligations or Grantor's rights hereunder.
(iii) Grantor shall indemnify, defend and hold harmless Grantee from and against
all claims, damages, losses, liabilities, actions, causes of action, costs and
expenses (including court costs and reasonable attorney fees) suffered or
incurred by Grantee by reason of injuries to persons or damage to property
arising from any act or omission of Grantor or any agent, representative,
contractor or subcontractor of Grantor in the use or exercise of said reserved
easements.
(iv) Grantor will, at its sole expense, promptly perform any necessary repairs
to or maintenance of Grantor's electric line facilities covered by said reserved
easements and keep same in compliance with applicable laws.
(v) Grantor's access to and use of each of the easement areas shall be subject
to such security measures and procedures as Grantee may implement pursuant to
applicable law, rule, regulation, code or ordinance and such other reasonable
security measures and procedures as Grantee may determine to implement from time
to time.
4. Grantor also reserves (a) all right, title and interest in and to all coal,
oil, gas and other minerals (but not including sand, clay or gravel) on, in or
under the Property, and (b) the exclusive right to store, re-store and protect
oil, gas and other minerals in the subsurface strata underlying the Property.
Grantor shall have the right, at any and all times, to use all usual, necessary
or convenient means for (i) exploring for, mining and removing said coal, oil,
gas and other minerals, and (ii) storing, re-storing and protecting oil, gas and
other minerals in such subsurface strata and taking and retaking same from
storage; but without entering upon the surface of the Property for any such
purposes or causing subsidence or loss of lateral support of the surface of the
Property, and subject also, in respect to any activities or operations in
pursuance of such purposes,
Exhibit B
Page 4 of 6
to the limitations of any licensing or regulatory requirements in regard to
Grantee's ISFSI.
5. Grantor also reserves an easement in, on, over, along, through and across the
following described portion of the Property: An area of land in the SW 1/4 of
Section 8 and the N 1/2 of the NW 1/4 of Section 17, T34N, R7W, described as
follows: Beginning at "Point B" as identified in the description of the Property
in Exhibit A to this Deed; running thence S 25 degrees 00'34" E 919.08 feet to a
1/2" rod; thence Southerly 167.07 feet along the arc of a 384.84-foot radius
curve to the right (said curve having a central angle of 24 degrees 52'28" and a
chord bearing S 12 degrees 34'20" E 165.77 feet) to a 1/2" rod; thence S 00
degrees 08'06" E 249.41 feet to a 1/2" rod on the Northwesterly right-of-way
line of Highway U.S.-31; thence S 29 degrees 42'25" W, along said highway
right-of-way line, 80.38 feet to a 1/2" rod; thence N 00 degrees 08'06" W 319.13
feet to a 1/2" rod; thence Northerly 149.71 feet along the arc of a 344.84- foot
radius curve to the left (said curve having a central angle of 24 degrees 52'28"
and a chord bearing N 12 degrees 34'20" W 148.54 feet) to a 1/2" rod; thence N
25 degrees 00'34" W 937.73 feet to a 1/2" rod; thence N 89 degrees 58'47" E
44.13 feet back to said "Point B"; (the "Access Area") for purposes of ingress,
egress and access to, from and/or between all lands now or hereafter owned by
Grantor, or in which Grantor now or hereafter otherwise has rights or
privileges, that adjoin, or are otherwise directly or indirectly accessible by
way of, said Access Area. Grantor shall have the right to maintain, repair
and/or (in consultation with Grantee) improve the Access Area if and as Grantor
deems necessary or desirable for such purposes. It is understood that any
maintenance (including without limitation snow clearing), repair and/or
improvement that either Grantor or Grantee may desire at any time to make to
said Access Area shall, unless otherwise mutually agreed in writing, be at the
applicable party's own cost and expense. Each party covenants and agrees that it
shall not (and shall not authorize others to) park vehicles on or otherwise take
any action to obstruct the other party's reasonable right of passage in, on,
over, along, through and across the Access Area.
6. From and after such time as the Property has been Decommissioned (defined as
referenced below), Grantor shall have a right of first refusal in respect to any
sale of the Property, or of any part of the Property (any of the foregoing, a
"Conveyance") as follows: (a) In the event Grantee, at any time from and after
such time as Grantee has Decommissioned the Property (and except as provided in
Subparagraph (b) below), intends to make a Conveyance, Grantee shall first
notify Grantor in writing of the specific scope of the intended Conveyance and
the sales price and terms and conditions upon which Grantee intends to make such
Conveyance, which notice (the "Sale Offer") shall constitute an offer by Grantee
to make a Conveyance to Grantor of the scope, for the price and on the terms and
conditions set forth therein. If
Exhibit B
Page 5 of 6
Grantor accepts the Sale Offer by giving written notice thereof to Grantee
within sixty (60) days after the giving of such Sale Offer by Grantee to
Grantor, then Grantee shall make a Conveyance to Grantor of the same scope, for
the same price and on the same terms and conditions as were set forth in the
Sale Offer. If Grantor does not so accept such Sale Offer by giving written
notice to Grantee within said sixty (60) day period, then Grantee may, at any
time within one (1) year after the date that Grantee gave said Sale Offer to
Grantor, make a Conveyance to a third party of the same scope, for the same or a
higher price and in all material respects on the same terms and conditions as
were set forth in the Sale Offer. If Grantee makes a Conveyance to a third party
in strict accordance with the immediately preceding sentence, then Grantor's
right of first refusal shall no longer apply to the extent of such Conveyance.
To the extent that such a Conveyance to a third party (combined with any prior
Conveyances, whether to a third party or to Grantor, made pursuant to the
provisions hereof) represents less than a final disposition of all of Grantee's
right, title and interest in and to the entire Property, Grantor's right of
first refusal hereunder shall remain in effect. In any Sale Offer given
hereunder, Grantee shall represent to Grantor that the intended Conveyance is a
good-faith, arms-length transaction.
(b) Grantor's right of first refusal will not apply to a Conveyance made by
Grantee to an affiliate of Grantee (hereby defined as any person, corporation,
limited liability company, partnership, or other entity that directly or
indirectly controls, is controlled by or is under common control with Grantee),
provided, that the purchaser in any such Conveyance shall take subject to
Grantor's right of first refusal set forth herein.
(c) Grantor's right of first refusal will also not apply to any Conveyance
(whether to an affiliate of Grantee of otherwise) made prior to the Property
having been Decommissioned, provided, that the purchaser in any Conveyance, and
any subsequent purchaser therefrom (direct or remote), made prior to the
Property having been Decommissioned shall take subject to Grantor's right of
first refusal set forth herein.
(d) As used herein, "Decommissioned" shall have the meaning attributed to that
term (in whatever grammatical form) in a certain "Asset Sale Agreement" between
Grantor and Grantee dated as of _______________, 20______. By this reference,
any purchaser or prospective purchaser of the Property, or of any part of the
Property, or of any interest in the Property or in any part of the Property, is
put on notice of the need for due inquiry into such definition.
(e) Notices pursuant to the foregoing provisions hereof shall be deemed to have
been given when personally delivered to the applicable party, or when sent by
certified or registered U.S. Mail (return receipt requested and with postage
fully prepaid) properly addressed to the applicable party at such party's
address set forth at the beginning of this Deed or such other
Exhibit B
Page 6 of 6
address as the applicable party may have notified the other of in writing in
accordance with this paragraph.
(f) Grantor's right of first refusal set forth herein shall, to the extent same
otherwise remains in effect pursuant to the preceding provisions hereof,
terminate seventy five (75) years after the date of this Deed.
7. The Property is conveyed to Grantee further subject to all "Permitted
Encumbrances" applicable to the Property as that term is defined in the
above-mentioned "Asset Sale Agreement" between the parties. 8. With respect to
each of the easements, rights or interests reserved to Grantor as expressly set
forth hereinabove, if Grantor at any time or from time to time hereafter:
(i) is not making use of the applicable easement, right or interest; or
(ii) is making use of the applicable easement, right or interest but to less
than the full scope and/or extent of such reserved easement, right or interest
as set forth hereinabove; then it is expressly understood and agreed that such
nonuse or such limited use, regardless of length of time, shall not by itself
prevent or limit Grantor from thereafter using and exercising the applicable
easement, right or interest to the full scope and extent reserved herein.
9. As used in any of the foregoing provisions hereof, references to "Grantor"
and "Grantee" shall include their respective successors and assigns. The
reservations, covenants, agreements, terms and conditions set forth herein shall
be construed as perpetual and running with the land.
EXHIBIT E
FORM OF FIRING RANGE LEASE
LEASE
IT IS HEREBY AGREED, between CONSUMERS ENERGY COMPANY, a Michigan corporation,
whose address is One Energy Plaza, Jackson, Michigan 49201 (hereinafter referred
to as "Lessor"), and a, whose address is (hereinafter referred to as "Lessee"),
as follows:
1. Lessor, in consideration of the rents to be paid and the covenants and
agreements to be performed by Lessee, does hereby LET and LEASE to Lessee, and
Lessee does hereby hire from Lessor, the following described premises in the
Township of Covert, County of Van Buren, and State of Michigan, to-wit: A parcel
of land in the Southeast 1/4 of Section 4, T2S. R17W, more particularly
described as follows: To find the place of beginning, commence at the South 1/4
corner of said Section 4; thence N 00 degrees 45'17" E, along the North-South
1/4 line of said section, 775.18 feet to the place of beginning of this
description; thence continuing N 00 degrees 45'17" E, along said North-South 1/4
line, 437.00 feet; thence S 89 degrees 05'04" E 1,045.00 feet; thence S 00
degrees 45'17" W 437.00 feet; thence N 89 degrees 05'04" W 1,045.00 feet to the
place of beginning;
(hereinafter referred to as the "Leased Premises", it being understood that
references in this Lease to the "Leased Premises" shall include all Improvements
(as hereinafter defined) thereon whether or not that is specifically mentioned).
The Leased Premises has vehicular access to a public road and may be used by
Lessee for a firearms practice range and puIposes incidental have thereto, and
for no other use or purposes without Lessor's prior written consent. Subject to
the preceding sentence, in no event shall the Leased Premises be used by Lessee
for any purpose which would be extra hazardous on account of fire.
2. The term of this Lease shall be three (3) years, commencing, 20-__ and
ending, 20-__. Said three year term, and any extension of such three year term
that may hereafter be mutually agreed upon in writing by the parties, is
hereinafter referred to as the "Term." Notwithstanding the foregoing, Lessee
shall have the right to terminate this Lease effective at the end of any
calendar month prior to the expiration of said three (3) year term by giving at
least thirty (30) days' prior written notice of such termination to Lessor.
3. Lessee shall pay to Lessor as rental for the Leased Premises the sum of One
Thousand Dollars ($1,000.00) per year, payable annually in advance.
4. In the event Lessee fails to pay any rent or other amount owing to Lessor
hereunder when due and fails to cure such default within ten (10) days
of written notice from Lessor, or in the event of default by Lessee at any time
in any other of the covenants and agreements herein contained and failure by
Lessee to cure same within thirty (30) days of written notice from Lessor,
Lessor shall (in addition to and without limiting any other rights or remedies
hereunder or at law or equity) have the right to terminate this Lease and shall
be entitled to possession of the Leased Premises. Lessor may make its election
to terminate known to Lessee by delivery of a notice of termination. Such notice
shall be immediately effective and Lessor shall be entitled to forthwith
commence an action in summary proceedings to recover possession of the Leased
Premises. Lessee waives all other notices in connection with such termination,
including but not limited to notice of intent to terminate, demand for
possession or payment and notice of re-entry.
5. It is a material consideration for the granting of this Lease that Lessee, at
all times during the Term, and at its own cost and expense, shall keep the
Leased Premises, including all buildings, fences, parking areas and other
improvements (except only utility facilities of Lessor or Michigan Electric
Transmission Company, if any) located thereon (collectively, "Improvements"), in
good condition and repair. This obligation includes, without limitation, that
Lessee shall at its own cost and expense: (i) perform all necessary or
appropriate snow plowing; (ii) perform all grass mowing and other landscape
maintenance needed to keep the Leased Premises in good and presentable
condition; (iii) collect and properly dispose of (off-site) all trash and debris
and otherwise take all actions needed to keep the Leased Premises in clean and
sanitary condition; (iv) perform all routine or nonroutine maintenance and
repairs to Improvements that may be needed to keep such Improvements in good,
safe, secure and otherwise proper condition. The performance of any maintenance
or repairs by Lessee shall not give Lessee any right, title or interest whatever
in the Leased Premises or any Improvements thereon, except only Lessee's
leasehold interest under and subject to the terms and conditions of this Lease,
and title thereto shall at all times be in Lessor, its successors or assigns.
Lessee shall not make any alterations of any kind to the Leased Premises
(whether to the grounds or to any Improvements), nor shall Lessee construct any
new Improvements, without Lessor's prior written consent. In the event that
Lessor gives any such consent, it is understood that Lessee shall perform such
work only in accordance with plans and specifications submitted by Lessee to
Lessor and approved in writing by Lessor. Unless Lessor specifies otherwise in
writing, Lessee shall not have any right, title or interest in any Improvements
altered or constructed by Lessee and title thereto shall at all times be in
Lessor, its successors or assigns. If at the time Lessor gives to Lessee
Lessor's approval for same, Lessor specifies that Lessee is to remove any
alterations or new Improvements made by Lessee and to restore the Leased
Premises to pre-existing condition upon termination or expiration of this Lease
as further specified in Section 7 below, then Lessee shall do so. All work done
by Lessee under the preceding paragraphs of this Section 5 shall be done in a
good and workmanlike manner satisfactory to Lessor.
6. Any and all electric, telephone or other utility services for Lessee's use of
the Leased Premises shall be obtained by Lessee in its own name and paid for
entirely by Lessee.
7. Upon expiration or termination of this Lease, Lessee shall yield and deliver
up the Leased Premises, including the grounds and all Improvements thereon, in
as good condition as upon commencement of this Lease, ordinary and reasonable
wear and tear and casualty loss excepted. Any personal property that Lessee
fails to remove by the date of expiration or termination shall, at Lessor's
option, become the property of Lessor, and/or, at Lessor's option, Lessor may
without notice to Lessee remove and/or dispose of same as Lessor sees fit, at
Lessee's expense, and without any liability on the part of Lessor therefor. If
specified by Lessor, Lessee shall upon expiration or termination of this Lease
remove any alterations to Improvements or new Improvements made by Lessee and
restore the Leased Premises, to Lessor's satisfaction, to preexisting condition.
Expiration or termination of this Lease shall not relieve Lessee of any
obligations or liabilities under or arising from this Lease that arise from or
relate to acts, omissions, events or occurrences while this Lease was in effect.
8. Lessee agrees to pay any increased property taxes attributable to new
Improvements or to alteration of Improvements made by Lessee. It is understood
that actual payment of such taxes would be by Lessor and that Lessor may invoice
Lessee for the reimbursement thereof; and Lessee shall reimburse Lessor within
thirty (30) days after receipt of invoice.
9. Lessor further expressly reserves from this Lease all oil, gas and other
minerals on, in or under the Leased Premises, and the right to store, restore
and protect oil, gas and other minerals in the subsurface strata underlying the
Leased Premises; provided, however, that Lessor will not enter the surface of
the Leased Premises or cause subsidence or loss of lateral support of the
surface of the Leased Premises in connection with the rights reserved to Lessor
in this sentence.
Lessor may (except as provided in the immediately preceding paragraph) enter the
Leased Premises at any time during the Term of this Lease for purposes of
exercising any of the rights and interests reserved to Lessor as set forth
herein, or to inspect the Leased Premises, or for any other reasonable purposes.
Lessee shall ensure all times that Lessor has been provided with keys to all
fence locks that prevent or restrict access to any part of the Leased Premises,
or that there is a dual lock arrangement such that either Lessee or Lessor will
independently have access via their own separate locks. In entering upon the
Leased Premises, Lessor will cooperate with Lessee's reasonable security
procedures.
10. If Lessee changes the shooting pattern, Lessee agrees to protect the towers,
poles, pole structures, supports, overhead or underground electric lines,
pipelines or other utility structures now or hereafter located on the Leased
Premises or now or hereafter located upon adjoining premises, by the erection
and maintenance, at Lessee's own expense, of such guard posts,
barriers or other suitable means of protection as may be deemed to be required
by the engineers of Lessor.
If as a result of Lessee changing the shooting pattern, Lessor shall find it
necessary to modify any towers, pole structures, poles, supports or other
structures of Lessor now or hereafter located on or in the vicinity of the
Leased Premises in order to accommodate Lessee's use of the Leased Premises or
any work to be done in connection with Lessee's use of the Leased Premises,
Lessee shall reimburse Lessor for Lessor's actual cost and expense incurred
thereby.
Lessee covenants that no work shall be done on, or use made of, the Leased
Premises pursuant hereto which shall in any way affect or interrupt the
continuity of service of Lessor as provided by any electric lines,
communications line or pipelines.
11. Without limiting Lessee's obligations as set forth elsewhere herein to mow
grass and otherwise maintain landscaping, Lessee shall, at its own cost and
expense, cut and remove from the Leased Premises during the Term all thistles
and noxious weeds as are during the Term required to be cut by law.
12. It is expressly understood that Lessee accepts the Leased Premises in their
present condition; and Lessee agrees that it will assume all liability for and
protect, indemnify and save Lessor, its successors and assigns, harmless from
and against all actions, claims, demands, judgments, losses, liabilities,
damages, expenaea of suits or actions and attorney fees for any type of injury
to or death of any person or persons and loss or damage to the property of any
person or persons whomsoever, including the parties hereto and their agents,
representatives, employees, contractors, subcontractors, invitees and licensees,
arising in connection with or as a direct or indirect result of the use and
occupancy of the Leased Premises or the exercise of the rights and privileges
hereby granted. The provisions of this paragraph shall apply to each and every
such injury, death, loss and damage, however caused, whether due, or claimed to
be due, to the negligence of Lessee, the negligence of Lessor, the negligence of
Lessor and the negligence of Lessee, the negligence of any other person, or
otherwise.
13. During the Term of this Lease, Lessee shall, at Lessee's sole cost and
expense, secure and maintain in force in the name of Lessee, a policy or
policies of insurance of the following type:
Owners', Landlords' and Tenants' Liability Insurance, with a minimum combined
bodily injury and property damage single limit of $1,000,000.00 per occurrence;
OR Commercial General Liability Insurance with a minimum combined bodily injury
and property damage single limit of $1,000,000.00 per occurrence.
The Leased Premises shall be described in such policy or policies in the same
manner as in the description set forth in this Lease including the entire
grounds and all equipment used or that may be used thereon pursuant to the lease
herein granted. The policy or policies must also contain the following
endorsement:
"This insurance will not be canceled by this Insurance Company nor any changes
made in the policy which change, restrict, or reduce the insurance provided, or
change the name of the Insured, without first giving ten (10) days' notice in
writing to Consumers Energy Company, One Energy Plaza, Jackson, Michigan 49201,
as evidenced by receipt of certified or registered letter."
Said policy or policies shall include contractual liability coverage, and
shall name Lessor as an additional insured. A certificate of insurance on a
form supplied by Lessor evidencing the above coverage, together with the above
cancellation/change clause endorsement, shall be forwarded to Consumers Energy
Company, Business Services-Real Estate Department, for its approval.
14. It is expressly understood that Lessee shall ensure that its use of and
operations upon the Leased Premises comply, in every respect with all Federal,
State and local laws, ordinances, orders, rules and regulations, which are now
or may hereafter be made effective while this Lease remains in effect.
15. It is expressly agreed that Lessee shall not dispose or suffer to be
disposed of any waste material whatsoever upon the Leased Premises without the
prior written consent of Lessor, and shall not, without the prior written
consent of Lessor, store, use, or maintain, or suffer to be stored, used or
maintained, upon the Leased Premises any material which is or may be or become
hazardous to human health or the environment or the storage, treatment or
disposal of which is regulated by any governmental authority. The granting or
withholding of any consent of Lessor under the terms of this paragraph shall be
within the sole discretion of Lessor; and Lessee shall, when requested by
Lessor, promptly give to Lessor any information required by Lessor concerning
products, substances, or processes used, stored, maintained or undertaken by
Lessee or on its behalf or with its approval upon the Leased Premises. Lessee
shall indemnify and save Lessor, its successors and assigns, harmless from all
actions, claims, demands, judgments, losses, liabilities, damages, expenses of
suits or actions and attorney fees as a result of any failure or alleged failure
of Lessee, its agents, representatives, employees, contractors, subcontractors,
invitees or licensees, to comply with the terms of this section.
16. No waiver by Lessor of any breach by Lessee of any of its obligations,
agreements or covenants hereunder shall be deemed to be a waiver of any
subsequent breach of the same or of any other covenant, agreement or obligation.
Nor shall any forbearance by Lessor to seek a remedy for any breach by Lessee be
deemed a waiver by Lessor of its rights or remedies with respect to such breach.
17. Any notice required or permitted to be given under the terms of this Lease
shall be in writing and given by personal delivery, or by U.S. mail (postage
prepaid), or by recognized courier service, or by fax, and in any case duly and
properly addressed to the party to whom the notice is to be given at its address
indicated below (or such other address as the party to whom such notice is to be
given may specify from time to time by notice to the other party in accordance
with this section).
If to Lessor: Consumers Energy Company
One Energy Plaza
Jackson, Michigan 49201
Fax: (517) --
Attention:
If to Lessee:
Fax: (__) - __________
Attention:
Each such notice shall be deemed to have been given when received, except that
any such notice that is sent by certified or registered U.S. mail, return
receipt requested, with postage prepaid and properly addressed as aforesaid,
shall be deemed given when mailed.
18. Lessee shall not assign this Lease, or any of its rights, interests or
obligations set forth herein, in whole or in part, nor shall Lessee sublet the
Leased Premises or any part thereof, without the prior written consent of
Lessor; provided however, that an assignment or sublease to any entity that is
controlled by or under common control with Lessee shall be permitted without the
need of consent (in which case written notice of the assignment shall be
promptly given to Lessor). Any assignment or subletting requiring Lessor's
consent that is effectuated without such consent of Lessor shall be void and not
merely voidable. No assignment or subletting shall relieve Lessee of any
obligation under this Lease. Subject to the foregoing, the covenants, conditions
and agreements made and entered into by the parties hereto are declared binding
on their respective successors and assigns.
19. Lessor makes no warranties or covenants as to the usability, fitness or
suitability of the Leased Premises for the purposes or uses for which they are
leased hereunder, or otherwise as to the condition of the Leased Premises.
20. It is further understood that this Lease is entered into and granted by
Lessor subject to any easements or other interests in land heretofore granted by
Lessor or its predecessors in title on the Leased Premises and to any such
interests reserved to other parties in instruments granted to Lessor or its
predecessors in title. Without limiting the generality of the foregoing, this
Lease is entered into and granted by Lessor subject to the rights and interests
of Michigan Electric Transmission Company pursuant to an Amended and Restated
Easement Agreement dated April 29, 2002 and recorded in Book 1355 at Page 979,
Van Buren County Records, and Lessee is responsible for complying with any
applicable notification, consent and other requirements thereof. Subject to the
foregoing, Lessee shall have during the term of this Lease the right of quiet
enjoyment of the Leased Premises so long as Lessee is not in default under this
Lease.
21. Lessee shall in all respects be as fully responsible and liable to Lessor
for the acts, omissions, operations, work or activities of Lessee's agents,
representatives, employees, contractors, subcontractors, invitees or licensees
as Lessee is for its own acts, omissions, operations, work or activities.
22. If Lessor sells the Leased Premises during the Term of this Lease, the
purchaser will take subject to the terms and conditions of this Lease; but
Lessor shall be entirely freed and relieved of any covenants or obligations of
the Lessor hereunder.
23. Except as expressly otherwise provided herein, this Lease and everything
herein contained shall extend to and bind and inure to the benefit of the
respective successors and assigns of Lessor and Lessee. 24. This Lease
supersedes any prior understandings or agreements between the parties hereto or
their representatives with respect to the subject matter hereof and constitutes
the entire agreement of the parties with respect to such subject matter. This
Lease may not be amended, supplemented, superseded or otherwise modified except
in writing, signed by the parties hereto. The invalidity or unenforceability of
any provision of this Lease shall not affect or impair any other provisions or
the validity and enforceability of the remainder of this Lease. Where
applicable, pronouns and relative words used herein shall be read as plural,
masculine, feminine or neuter. This Lease shall be interpreted and construed in
accordance with the laws of the State of Michigan.
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be executed by
their respective duly authorized representatives as of the day of 20-.
Lessor: Lessee:
CONSUMERS ENERGY COMPANY
EXHIBIT F
FORM OF POWER PURCHASE AGREEMENT
[Intentionally Omitted]
EXHIBIT G
FORM OF EMERGENCY OPERATIONS FACILITIES LEASE
-LEASE
THIS LEASE is made as of 20- between CONSUMERS ENERGY COMPANY. a Michigan
corporation. whose address is One Energy Plaza. Jackson. Michigan, 49201
("Landlord"), and - whose address is ("Tenant").
WITNESSETH:
1. DEFINITIONS. As used herein, the following terms shall have the following
indicated meanings:
(a) "Demised Premises" shall mean that area, containing approximately 1,868
square feet, which is shown outlined in red on the attached drawing marked
Exhibit A, located within Landlord's Building.
(b) "Landlord's Building" shall mean the semi-detached building known as the
Manorside conference building, located within Landlord's Conference Center
Complex.
(c) "Landlord's Conference Center Complex" shall mean, collectively, all of the
land and buildings constituting Landlord's South Haven Conference Center
complex, located at 410 North Adams Road, South Haven, Michigan.
(d) "Common Areas" shall, as further defined in and subject to Section 13
hereof, mean those areas located in Landlord's Building or otherwise within
Landlord's Conference Center Complex that are indicated in yellow on said
Exhibit A and on the attached drawing marked Exhibit B.
(e) "Term" shall have the meaning set forth in Section 4 hereof
2. LEASE OF DEMISED PREMISES. On and subject to the terms and conditions set
forth in this Lease, and in consideration of the rents Tenant is to pay and the
covenants and agreements Tenant is to perform as set forth in this Lease,
Landlord hereby lets and leases to Tenant the Demised Premises, together with
the use, in common with others so authorized, of the Common Areas.
3. USE OF PREMISES. Tenant may use and occupy the Demised Premises for meetings,
employee training seminars and other similar and consistent purposes associated
with the operation of Tenant's Palisades Nuclear Plant, including a command and
operations center for operation and monitoring of, and response to emergencies
at, said Palisades Nuclear Plant. Tenant shall not use the Demised Premises for
materially dissimilar or inconsistent purposes without Landlord's prior written
consent. Tenant shall in no event use the Demised Premises for any purpose that
would affect the fire insurance rating of Landlord's Building or any adjacent
buildings. Tenant shall not use the Demised Premises for any purpose that
requires the use of equipment that would result in overloading the floors in the
Demised Premises, and Tenant shall take care not to install any equipment in a
manner or location resulting in a floor overload exceeding the design
specifications at any point within the Demised Premises. Tenant shall ensure
that it, and its agents, contractors, subcontractors, employees and invitees,
comply with all laws, ordinances and regulations of all public authorities
relating to its use and occupancy of the Demised Premises and Common Areas under
this Lease. Tenant shall also ensure that it, and its agents, contractors,
subcontractors, employees and invitees, comply as well with Landlord's Rules as
set forth on Exhibit C, attached hereto, and with such other and further
reasonable rules as Landlord may make from time to time.
Unless and except as may be expressly otherwise provided herein, Tenant shall
not dispose or suffer to be disposed of any waste material whatsoever upon the
Demised Premises or the Common Areas without the prior written consent of
Landlord. Tenant shall not, without the prior written consent of Landlord,
store, use or maintain, or suffer to be stored, used or maintained, upon the
Demised Premises or the Common Areas any material that is or may be or become
hazardous to human health or the environment or the storage, treatment or
disposal of which is regulated by any governmental authority. The granting or
withholding of any consent of Landlord under the terms of this paragraph shall
be within the sole discretion of Landlord. Tenant shall, when requested by
Landlord, promptly give to Landlord any information required by Landlord
concerning products, substances or processes used, stored, maintained or
undertaken by Tenant or on its behalf or with its approval upon the Demised
Premises or the Common Areas. Tenant shall indemnify and save Landlord, its
successors and assigns, harmless from all loss, liability and expense as a
result of any failure of Tenant, its agents, contractors, subcontractors,
employees or invitees, to comply with the terms of this paragraph.
4. TERM. The term of this Lease shall be three (3) years. commencing ______,
20-__ and ending, 20-__. Said three year term, and any extension of such three
year term that may hereafter be mutually agreed upon in writing by the parties,
is hereinafter referred to as the "Term." Notwithstandinq the foregoing, Lessee
shall have the right to terminate this Lease effective at the end of-any
calendar month prior to the expiration of said three (3) year term by giving at
least ninety (90) days' prior written notice of such termination to Landlord.
5. RENT. Tenant shall pay to Landlord as rent for the Demised Premises the sum
of One Hundred Thousand Dollars ($100,000.00) per year, payable in equal
quarterly installments of Twenty Five Thousand Dollars ($25,000.00), in advance,
on the first day of each calendar quarter during the Term hereof. If the first
day and last day of the Term of this Lease are not the first and last day,
respectively, of a calendar quarter, then the aforesaid monthly rental
installment shall be prorated to cover the partial calendar quarters at the
beginning and end of the Term; said prorated monthly rental installment for said
initial and final partial calendar quarters to be paid by Tenant not later than
the first day of the Term and the first day of the final calendar quarter of the
Term, respectively. If any payment of rent is not made by Tenant within ten (10)
days after the date due, then Landlord (without limiting any other rights and
remedies it may have under this Lease or at law or equity), shall have the right
to assess, in addition to the rent itself, a late payment fee in the amount of
3% of the applicable rental amount, and Tenant shall pay same upon demand.
6. ACCEPTANCE OF PREMISES. Tenant acknowledges that it has examined the Demised
Premises and Common Areas prior to executing this Lease and that Landlord has
made no representations as to the condition of the Demised Premises or the
Common Areas. Tenant accepts the Demised Premises and Common Areas in the
condition existing at the execution of this Lease. Landlord shall have no
obligation to remodel the Demised Premises. Landlord shall have no obligation to
make any repairs to the Demised Premises or the Common Areas except as expressly
provided for in this Lease.
7. CLEANING, REPAIRS, MAINTENANCE AND UTILITY SERVICES.
(a) Cleaning Repairs and Maintenance. Landlord will, at its expense, provide the
following cleaning, maintenance and repairs:
(i) necessary structural and mechanical repair and maintenance of Landlord's
Building, including the roof, exterior and structural portions of Landlord's
Building and the electrical system, duct work and heating, pipes and plumbing,
ventilation system and air conditioning system within Landlord's Building;
(ii) replacement of worn out light bulbs and ballasts within the Demised
Premises, upon reasonable advance notice from Tenant;
(iii) interior cleaning/janitorial service including trash removal within the
Demised Premises in accordance with Landlord's normal cleaning schedule,
policies and procedures; and
(iv) snow removal on the sidewalks, driveways and parking areas that are
available to Tenant as Common Areas as more fully mentioned in Section 13 below,
in accordance with Landlord's normal snow removal policies and procedures.
Notwithstanding any of the foregoing, Tenant shall promptly reimburse Landlord
for the cost of any cleaning, maintenance or repairs occasioned by the
negligence of Tenant, its agents, contractors, subcontractors, employees or
invitees. Prior to occupancy of the Demised Premises, Landlord and Tenant
together shall inspect the Demised Premises and record any items not in a good
state of repair at that time.
If Landlord has a dumpster located outside Landlord's Building, then Tenant may
use same, but for the proper disposal of typical, non-hazardous, office-type
trash only.
Tenant, at its expense, shall be responsible for any interior decorative items
(such as hanging of pictures), as well as any and all furnishings and equipment
needed or desired for its use of the Demised Premises. (b) Utilities. Landlord
shall, without extra charge to Tenant, supply heat and air conditioning to the
Demised Premises at least similar to that which Landlord provides to its other
similar facilities at Landlord's Conference Center Complex. Landlord shall also,
without extra charge to Tenant, provide electric, water and sewage services for
the Demised Premises. Tenant shall arrange with the applicable service providers
for, and pay for at Tenant's own expense, any telephone, internet or other
communications services that Tenant desires to receive.
(c) Limitations. It is expressly agreed that Landlord's liability shall extend
only to providing the cleaning, maintenance, repair and utility services
specified above in this Section 7, and Tenant hereby expressly waives and
releases any and all claims against Landlord for incidental or consequential
damages resulting, in whole or part, from Landlord's actions or lack of actions
in connection with supplying said cleaning, maintenance, repairs and utility
services. Said release of incidental and consequential damages includes, without
limitation, damage to any of Tenant's property in the Demised Premises. Further,
Landlord's duty to supply utility services to the Demised Premises shall be
subject to Landlord's standard load management program. However, in the event
that Landlord from time to time reduces the level of utility services to the
Demised Premises, the level of utility services that Landlord provides to the
Demised Premises will be not less than the level of utility services that
Landlord provides to the remainder of Landlord's Building and the other
buildings in Landlord's Conference Center Complex.
8. ALTERATIONS. Tenant shall not make any changes or additions in or to the
Demised Premises without Landlord's prior written approval. Tenant shall, when
requesting any such approval, supply Landlord with such plans and details for
any proposed additions or alterations as Landlord may reasonably require.
Without limiting the generality of the foregoing: (i) if Tenant proposes to
carpet or re-carpet all or part of the Demised Premises and Landlord approves,
then Tenant shall consult with Landlord concerning the type, color and method of
affixing such carpeting, all of which must be satisfactory to Landlord; and (ii)
if Tenant proposes to paint or re-paint the Demised Premises and Landlord
approves, then Tenant shall consult with Landlord concerning the type and color
of paint and method of painting, all of which must be satisfactory to Landlord.
Also without limiting the generality of any of the foregoing, Tenant shall
coordinate with Landlord regarding, and obtain Landlord's approval regarding the
method of, Tenant's installation of any telephone system, internet facilities or
information technology infrastructure. Any work performed by Tenant shall be
performed in a good and workmanlike manner, acceptable to Landlord. If Tenant
has made any changes or additions in or to the Demised Premises then, upon
expiration or termination of this Lease, Tenant shall, if and to the extent
requested by Landlord, restore the Demised Premises to their condition existing
prior to the alterations, subject to ordinary and reasonable wear and tear. If
and to the extent Landlord does not request Tenant to so restore the demised
Premises to their condition existing prior to the alterations, Tenant may do so
at its option and remove any improvements or decorative items that it has placed
in the Demised Premises, but if it fails to do so, said improvements or
decorative items shall become Landlord's property.
Notwithstanding anything contained herein to the contrary, any personal property
belonging to Tenant left in or near the Demised Premises after this Lease
terminates or after Tenant vacates the Demised Premises shall at Landlord's
option be deemed abandoned by Tenant, and Landlord may at its option dispose of
such personal property without notice to Tenant and without obligation to
account therefor. In such event, Tenant shall pay Landlord for all expenses
incurred in connection with disposing of such property.
9. ASSIGNMENT AND SUBLETTING. Tenant shall not assign or transfer this Lease in
whole or in part, or sublet the Demised Premises or any part thereof, without
Landlord's prior written consent; provided however that an assignment or
sublease to any entity that is controlled by or under common control with Tenant
shall be permitted without the need of consent (in which case written notice of
the assignment shall be promptly granted to Landlord). Any assignment, transfer
or subletting requiring Landlord's consent that is effectuated without
Landlord's consent shall be void and not merely voidable. Any consent of
Landlord to an assignment or transfer of interest under this Lease or subletting
of the Demised Premises or any part thereof shall be limited to the instance
stated in such written consent and shall not constitute a release, wavier or
consent to any other assignment, transfer of interest or subletting. No
assignment, transfer of interest or subletting shall relieve Tenant of any
obligation under this Lease. In the event of any such assignment, transfer of
interest or subletting, Tenant shall supply to Landlord a fully executed copy of
the assignment, transfer of interest or sublease.
10. ENCUMBRANCES. Tenant shall not mortgage or encumber its leasehold interest
under this Lease. Tenant shall not do or suffer anything to be done whereby the
Demised Premises, Landlord's Building, or any other part of Landlord's
Conference Center Complex, may be encumbered by any construction lien. If any
construction lien is filed purporting to be for labor or materials furnished to
Tenant. Tenant shall cause same to be discharged of record within thirty (30)
days after its date of filing. Notice is hereby given that Landlord shall not be
liable for any labor or materials furnished or to be furnished to Tenant upon
credit and that no construction or other lien for any such labor or materials
shall attach to or affect the reversionary or other estate or interest of
Landlord in and to the Demised Premised, Landlord's Building, or any other part
of Landlord's Conference Center Complex.
11. FIRE OR OTHER CASUALTY. If, during the Term of this Lease, the demised
Premises are damaged by fire or other casualty, or any lawful authority orders
demolition, removal or non-use of any part of the Demised Premises, and if, in
Tenant's reasonable judgment, the Demised Premises are thereby rendered
substantially unusable for the purposes herein intended, then Tenant may
terminate this Lease and Landlord will refund to Tenant any unearned rent that
Tenant has paid in advance. If the Demised Premises are damaged by fire or other
casualty, or if any lawful authority orders demolition, removal or non-use of
any part of the Demised Premises, to an extent which does not render the Demised
Premises substantially unusable for the purposes herein intended, then rent
shall abate according to the extent to which the Demised Premises have been
rendered untenable or declared unusable until the Demised Premises are restored
and put in proper condition for Tenant's use, but if the Demised Premises are
not restored and put in proper condition within ninety (90) days of the event,
Tenant, at its option, may terminate this Lease and Landlord will refund to
Tenant any unearned rent that Tenant has paid in advance; provided, however,
that nothing herein shall be construed as to require Landlord to so repair or
restore the
Demised Premises, and in the event that any such damage or casualty is so
extensive as to render it unfeasible, in Landlord's opinion, to repair or
restore same, Landlord may terminate this Lease upon thirty (30) days' notice to
Tenant.
12. WAIVER OF SUBROGATION. Landlord and Tenant each hereby remise, release and
discharge the other, and any officer, agent, employee or representative of the
other, of and from any liability whatsoever hereafter arising from loss, damage
or injury caused by fire or other casualty for which the injured party carried
insurance (permitting waiver of liability and containing waiver of subrogation)
at the time of such loss, damage or injury, to the extent of the any recovery by
the insured party under such insurance.
13. COMMON AREAS. The "Common Areas" consist of certain entryway, restroom or
other areas in Landlord's Building, and certain driveways and parking areas on
Landlord's Conference Center Complex, as are designated in yellow on Exhibits A
and B.
If Landlord elects in its sole discretion to designate in writing additional
areas within Landlord's Conference Center Complex (whether inside or outside of
buildings) as Common Areas, then such additional areas so designated will be
governed by the terms of this Lease governing Common Areas the same as the
originally designated Common Areas.
The designation of any area or areas as part of the Common Areas shall not be
deemed to be a permanent designation, and, except for designated rest rooms and
entry/exit ways in Landlord's Building, Landlord shall have the right to
reclassify any area previously designated as part of the Common Areas (whether
same are areas originally designated herein as Common Areas per Exhibits A and B
hereto or otherwise); provided, that access driveways and parking areas
reasonably equivalent to those now designated on Exhibit B hereto will in any
case remain as Common Areas hereunder during the Term.
Tenant shall have a nonexclusive right during the Term of this Lease to use the
Common Areas as constituted from time to time. Such use shall be in common with
Landlord, with other tenants of Landlord if any, and with all other persons
designated by Landlord as entitled to use the same, and shall be subject at all
times to such reasonable rules and regulations governing use as Landlord may
from time to time prescribe.
The Common Areas, as constituted from time to time, shall be subject to
Landlord's sole management and control and shall be operated and maintained in
such manner as Landlord in its discretion determines. Tenant shall not take any
action that would interfere with the rights or privileges of other persons to
use the common Areas. Without limiting the generality of the foregoing, Tenant,
its agents, contractors, subcontractors, employees and invitees, shall park
vehicles only in properly marked parking spaces that are part of the Common
Areas and shall at no time block any driveways that are part of the Common
Areas. Landlord may temporarily close any part of the Common Areas for such
periods of time as may be necessary to make repairs or alterations, to prevent
the public from obtaining prescriptive rights, or for other reasonable purposes.
Notwithstanding anything herein, Tenant shall have access to the Demised
Premises on a twenty four (24) hour per day, seven (7) day per week basis.
14. EMINENT DOMAIN. If any portion of the Demised Premises or the use or
occupancy thereof is taken under the power of eminent domain, either Landlord or
Tenant may, at any time after the entry of the verdict or order for such taking,
terminate this Lease by giving the other not less than thirty (301 days' notice.
All damages and compensation awarded for any taking under the power of eminent
domain shall belong to and be the property of Landlord, whether such damages or
compensation are awarded for the leasehold or the fee or other interest of
Landlord or Tenant in the Demised Premises; provided, however, that Landlord
shall not be entitled to any award that may be made for Tenant's loss of
business or removal of Tenant's property. If all the Demised Premises or the use
or occupancy thereof are taken under the power of eminent domain, this Lease
shall automatically cease as of the day actual possession is taken by such power
and the rent shall be paid up to that day with a pro rata refund by Landlord of
any unearned rent that Tenant has paid in advance. If all or a portion of the
Demised Premises is taken under the power of eminent domain and this Lease is
terminated as provided herein, Tenant shall have no claim against Landlord for
the value of the unexpired Term hereof.
15. LIABILITY INSURANCE. Tenant shall procure and keep in effect, during the
Term of this Lease, Commercial General Liability Insurance (including
contractual liability) with a minimum combined bodily injury and property damage
single limit of $1,000,000.00 per occurrence. The policy or policies shall name
Landlord as an additional insured as its interests may appear. All policies
required by this section shall be endorsed to provide that the insurer shall not
cancel the policy or reduce coverage afforded by the policy without ten (10)
days' prior written notice to Landlord. Tenant shall deliver said policies or
certificates thereof to Landlord, and if Tenant fails to do so, Landlord may, at
its option, either consider such failure to be a default under Section 19 hereof
or obtain such insurance the cost of which Tenant shall pay as additional rent
due and payable with the next monthly rent.
16. DAMAGE. Landlord shall have no liability for any loss or damage that may be
occasioned by or through the acts or omissions of others, including persons
occupying other buildings or facilities in Landlord's Conference center Complex.
Landlord shall have no liability for any loss or damage from water leakage from
any source, or from leakage, overflow, stoppage or backing-up or other condition
of any facilities or utilities, or from fire, explosion or any other casualty,
or for any damage or loss that occurs in the parking lots, driveways or any
other Common Areas.
17. INDEMNIFICATION. Tenant shall assume all liability for and protect,
indemnify and save Landlord harmless from and against all actions, claims,
demands, judgments, losses, expenses of suits or actions and attorney fees, for
any injury to or death of any person or persons, and loss or damage to the
property of any person or persons whomsoever, including the parties hereto and
their agents, contractors, subcontractors, employees and invitees, arising in
connection with or as a direct or indirect result of the use and occupancy of
the Demised Premises or the Common Areas or the exercise of the rights and
privileges hereby granted. The provisions of this section shall apply to each
and every
such injury, death, loss and damage, however caused, whether due, or claimed to
be due, to Tenant's negligence, Landlord's negligence, Landlord's and Tenant's
combined negligence, any other person's negligence, or otherwise; provided,
however, Tenant shall not be required to indemnify Landlord for such injury,
death, loss or damage to the extent caused by Landlord's negligence.
18. SECURITY MEASURES. Tenant, its agents, contractors, subcontractors,
employees and invitees, shall be subject to Landlord's standard security
policies and procedures as in effect from time to time in and about Landlord's
Conference Center Complex. Such policies and procedures shall not prevent
Tenant's access to the Demised Premises and Common Areas on a 24 hour per day, 7
day per week basis.
19. LANDLORD'S REMEDIES IN EVENT OF DEFAULT. The following shall be events of
default: (a) Tenant fails to pay rent as required by this Lease and fails to
cure such default within seven (7) days after Landlord gives Tenant written
notice to do so; (b) Tenant causes health hazards or injury to the Demised
Premises or Common Areas, or fails to maintain or provide proof of insurance as
required herein, and fails to cure such default within seven (7) days after
Landlord gives Tenant written notice to do so; (c) Tenant fails to observe or
perform any other obligation under this Lease and fails to cure such default
within thirty (30) days after Landlord gives Tenant written notice to do so; or
(d) Tenant becomes insolvent, or Tenant or any third party commences any
proceedings seeking to have Tenant declared insolvent, or Tenant or any third
party files any petition seeking the appointment of a receiver for all or
substantially all of Tenant's assets and said petition is not dismissed within
thirty (30) days after its filing, or Tenant makes an assignment for the benefit
of creditors. In case of any such event of default, Landlord shall have the
right to terminate this Lease and to retake possession of the Demised Premises.
Landlord may make its election to terminate known to Tenant by delivery of a
notice of termination. Such notice shall be immediately effective and Landlord
shall be entitled to forthwith commence an action in summary proceedings to
recover possession of the Demised Premises. Tenant waives all other notice in
connection with such termination, including but not limited to notice of intent
to terminate, demand for possession or payment and notice of re-entry. In case
of such termination, Tenant shall indemnify Landlord against any and all loss of
rent that Landlord may incur by reason of such termination during the residue of
the Term. Such loss shall be determined by the amount by which the rents (after
deducting necessary expenses in re-renting and in regaining possession of the
Demised Premises) received by Landlord are less than the rents Tenant is to pay
under this Lease.
20. TEMPORARY USE OF ADDITIONAL SPACE. If Landlord from time to time authorizes
Tenant to make temporary use of additional space in Landlord's Conference Center
Complex (whether inside or outside of buildings), such as during emergencies at
Tenant's Palisades Nuclear Plant where meeting space and/or parking space for
more persons than usual may be desired by Tenant, then the applicable additional
space and the use thereof shall, for the time period in question, be subject to
and governed by all of the Tenant's obligations under this Lease.
21. RIGHT OF ENTRY BY LANDLORD. Landlord shall have the right to enter the
Demised Premises during the Term of this Lease to inspect or view them, or for
performance of cleaning, maintenance or repairs, or to show the Demised Premises
to others for the purpose of rental or sale, or for access to portions of
Landlord's Building that are not part of the Demised Premises, or for any other
reasonable purpose. Landlord shall use reasonable efforts to so arrange any such
entry as to minimize disruption to Tenant's use of the Demised Premises.
22. NOTICES. Any notice required or permitted to be given under the terms of
this Lease shall be in writing and given by personal delivery, or by U.S. mail
(postage prepaid), or by recognized courier service, or by fax, and in any case
duly and properly addressed to the party to whom the notice is to be given at
its address indicated below (or such other address as the party to whom such
notice is to be given may specify from time to time by notice to the other party
in accordance with this Section 22).
If to Landlord: Consumers Energy Company
One Energy Plaza
Jackson, Michigan 49201
Fax: (517) 788-2289
Attention: Paula K. Bamm
If to Tenant:
Fax: (1 - __________
Attention:
Each such notice shall be deemed to have been given when received, except that
any such notice that is sent by certified or registered U.S. mail, return
receipt requested, with postage prepaid and properly addressed as aforesaid,
shall be deemed given when mailed.
23. EFFECT OF CONVEYANCE. If Landlord sells Landlord's Building during
the Term of this Lease, the purchaser will take subject to the terms and
conditions of this Lease; but Landlord shall be entirely freed and relieved of
all covenants and obligations of the Landlord hereunder accruing subsequent to
the date of sale.
24. QUIET ENJOYMENT. Except as to Landlord's Trust Indenture dated September 1,
1945, as amended and supplemented, with the JPMorgan Chase Bank, as Trustee, if
Tenant pays the rent and performs all of its obligations under this Lease,
Tenant shall, during the Term of this Lease, freely, peaceably and quietly
occupy and enjoy the full possession of the Demised Premises.
25. MISCELLANEOUS.
(a) Vacation of Premises Upon Expiration or Termination. Upon expiration or
termination of this Lease, Tenant shall yield and deliver up the Demised
Premises in as good condition as upon commencement of this Lease, ordinary and
reasonable wear and tear and casualty loss excepted.
(b) Entire Agreement; Amendments. This Lease supersedes any prior understandings
or agreements between the parties hereto or their representatives with respect
to the subject matter hereof and constitutes the entire agreement of the parties
with respect to such subject matter. This Lease may not be amended,
supplemented, superseded or otherwise modified, except in writing signed by the
parties hereto.
(c) Responsibility of Tenant. Tenant shall in all respects be as fully
responsible and liable to Landlord for the acts, omissions, operations, work or
activities of Tenant's agents, representatives, employees, contractors,
subcontractors, invitees or licensees as Tenant is for its own acts, omissions,
operations, work or activities.
(d) Survival. Expiration or termination of this Lease shall not relieve Tenant
of any obligations or liabilities under or arising from this Lease that arise
from or relate to acts, omissions, events or occurrences while this Lease was in
effect.
(e) Successors and Assigns. This Lease and everything herein contained shall
extend to and bind and inure to the benefit of the respective successors and
assigns of Landlord and Tenant, except as expressly otherwise provided herein.
(f) Governing Law. This Lease shall be interpreted and construed under the laws
of the State of Michigan.
(g) Captions and Headings. The captions and headings herein are for convenience
and reference only and shall not be used to construe or interpret this Lease.
(h) Exhibits. All exhibits that are attached to this Lease as mentioned herein
shall be deemed in integral part of this Lease.
(i) Invalidity, Etc. The invalidity or unenforceability of any provision of this
Lease shall not affect or impair any other provisions or the validity and
enforceability of the remainder of this Lease.
(j) Pronouns, Etc. Where applicable, pronouns and relative words used herein
shall be read as plural, masculine, feminine or neuter.
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be executed in
duplicate as of the day and year first above written.
Landlord: Tenant:
CONSUMERS ENERGY COMPANY
Exhibit A to Exhibit G
Manorside Conference Center Floor Plan
Drawing is a Floor Plan of the Manorside Conference Center. There is
approximately 1868 square feet outlined in red on this drawing comprised of a
conference room and adjacent storage room located in Landlord's Building. Common
Areas are also included in this drawing, outlined in yellow and include the
entry, toilet, and storage, mechanical and electrical room located in the
Landlord's Building.
Exhibit B to Exhibit G
South Haven Conference Center Site Plan
Drawing is a site plan of the South Haven Conference Center. Outlined in yellow
on this drawing are the "Common Areas" including certain parking areas and the
entrance drive located on the Landlord's Conference Center Complex.
Exhibit C
Page 1 of 2
EXHIBIT C
LANDLORD'S RULES
Tenant is responsible for ensuring compliance with the following rules by
itself, its agents, employees, contractors, subcontractors and invitees. If
Landlord at any time, in its discretion, agrees to waive compliance with any of
such rules, then: (a) such waiver must be in writing and signed by Landlord; (b)
such waiver shall not relieve Tenant of the obligation to comply (and ensure
compliance as aforesaid) with such rule in the future unless Landlord expressly
consents to future noncompliance; and (c) the fact that Landlord may allow
tenants, occupants or users of other parts of Landlord's Conference Center
Complex to act contrary to any such rule does not constitute a waiver of such
rule for Tenant unless Landlord expressly grants Tenant a similar waiver in
writing.
1. Tenant shall not attach any awnings or other projections to the outside walls
of Landlord's Building without Landlord's prior written consent. Tenant shall
not change any of Landlord's drapes, blinds, shades or screens in any windows,
or add new drapes, blinds, shades or screens in any window, without Landlord's
prior written consent.
2. Tenant shall not inscribe, paint or affix any sign, advertisement, notice, or
other lettering on any part of the outside or inside of the Demised Premises, or
anywhere on the Common Areas, without Landlord's prior written consent.
3. No toilets, sinks, wash closets or other plumbing fixtures shall be used for
any purposes other than those for which they were constructed, and no sweepings,
rubbish, rags or other substances shall be thrown therein. Tenant shall bear the
cost of all damages resulting from any misuse of the fixtures by Tenant, its
agents, contractors, subcontractors, employees or invitees.
4. There shall be no marking, painting, drilling into, or other form of
defacing or damage of any part of the Demised Premises without Landlord's
written consent, except that Tenant may hang pictures or other decorations on
the walls. Boring, cutting, or stringing of wires is prohibited without
Landlord's written consent. Tenant shall not use or operate any loud speaker
system or other sound system that can be heard outside the Demised Premises.
5. Tenant shall not make, or permit other to make, any disturbing noises or
disturb or interfere with the occupants of neighboring buildings or premises or
those having business with them, whether by the use of any musical instrument,
radio, tape recorder, whistling, singing, or any other way. Tenant shall not
throw anything out of the doors or windows.
6. No animals, birds, or pets of any kind shall be brought into or kept in or
about the Demised Premises or Common Areas.
7. No cooking shall be done or permitted by Tenant on the Demised Premises,
except that, with Landlord's prior approval, Tenant may have a coffee room for
the convenience of its employees. Tenant shall not cause or permit any unusual
or objectionable odors to originate from the Demised Premises.
8. Tenant may not use any part of the Common Areas for the storage of any
equipment or other property of any kind.
9. Tenant may not bring into or keep upon the Demised Premises any inflammable,
combustible, or explosive fluid, chemical, or substance.
Exhibit C
Page 2 of 2
10. Tenant shall not place any additional locks or bolts of any kind upon any
doors or windows, nor shall Tenant make any changes in existing locks or the
mechanism thereof, without Landlord's written consent. Tenant shall, upon the
termination of its tenancy, return to Landlord all keys used in connection with
the Demised Premises or any part of the Demised Premises, whether or not such
keys were furnished by Landlord or procured by Tenant, and in the event of the
loss of any such keys, such Tenant shall pay to Landlord the cost of replacing
the locks.
11. All carrying in or out of any furniture or other bulky matter of any
description must take place in such manner and during such hours as Landlord may
require.
12. Landlord shall have the right to prohibit any advertising by Tenant that, in
Landlord's opinion, tends to impair the reputation or desirability of Landlord's
Conference Center Complex, and upon written notice from Landlord, Tenant shall
refrain from or discontinue such advertising.
13. Landlord reserves the right to exclude from Landlord's Conference Center
Complex at all times any person who is not known or does not properly identify
himself/herself to Landlord or its agents. Landlord may at its option require
registration of all persons admitted to or leaving Landlord's Conference Center
Complex outside of ordinary operating hours as designated by Landlord. Tenant
shall be responsible for all persons for whom it authorizes entry into
Landlord's Conference Center Complex and shall be liable to Landlord for all
acts and omissions of such persons. The policies and procedures under this
paragraph shall not prevent Tenant's access to the Demised Premises and Common
Areas on a 24 hour per day, 7 day per week basis.
14. Landlord will attend to Tenant's requirements only upon application at
Landlord's office. Landlord's Conference Center Complex employees or contractors
shall not perform any work or do anything outside of their regular duties,
unless under Landlord's special instructions.
15. Canvassing, soliciting, and peddling within Landlord's Conference Center
Complex is prohibited and Tenant shall cooperate to prevent the same.
16. No water cooler, plumbing, or electrical fixture shall be installed by
Tenant without Landlord's prior written consent.
17. Access plates to underfloor conduits shall be left exposed. If Tenant (with
Landlord's consent) installs or replaces carpeting, the carpet shall be cut
around access places.
18. Trash or other objects shall not be placed, even temporarily, outside the
doors of the Demised Premises or Landlord's Building.
19. Drapes installed by Landlord for the use of any Tenant or drapes installed
by Tenant that are visible from the exterior of Landlord's Building must be
cleaned by such Tenant at least once a year, without notice, at Tenant's own
expense.
20. Tenant shall not remove, tamper with or damage any fire extinguishers,
evacuation maps or other safety devices in the Demised Areas or Common Areas.
This clause shall not, however, prohibit proper emergency use of any fire
extinguishers or other safety devices.
21. Tenant shall not remove or damage any floor mats, waste receptacles or other
facilities of Landlord that may be located in the Common Areas.
22. No Smoking Policy. There shall be no smoking of cigarettes, cigars, pipes,
and the like anywhere within (i) the Demised Premises; (ii) any portions
Exhibit C
Page 3 of 2
of the Common Areas that may be located within Landlord's Building; or (iii)
much other such portions, if any, of the Common Areas as m y be located indoors.
EXHIBIT H
FORM OF BUYER'S PARENT GUARANTY
This Guaranty is made and given as of the day of 2006, by Entergy Corporation, a
Delaware corporation ("Guarantor"), in favor of Consumers Energy Company, a
Michigan corporation ("Beneficiary").
WHEREAS, Entergy Nuclear Palisades, LLC, a Delaware limited liability company
and an Affiliate of Guarantor ("Counterparty"), has entered into an Asset Sale
Agreement dated the date hereof (the "Asset Sale Agreement"), pursuant to which
Counterparty has agreed to purchase and Beneficiary has agreed to sell, the
Included Assets, all in accordance with the Asset Sale Agreement, and the
parties have undertaken certain duties, responsibilities and obligations as set
forth in the Asset Sale Agreement; and
WHEREAS, Guarantor has agreed to guarantee certain obligations of Counterparty
under the Asset Sale Agreement; and
WHEREAS, it is a condition to the obligations of Beneficiary under the Asset
Sale Agreement that the Guarantor execute and deliver this Guaranty; and
WHEREAS, the Guarantor will benefit from the transactions contemplated by the
Asset Sale Agreement.
NOW, THEREFORE, the Guarantor agrees as follows:
Section 1. Definitions. Capitalized terms used herein shall have the meanings
assigned to them herein or, if not defined herein, then such terms shall have
the meanings assigned to them in the Asset Sale Agreement.
Section 2. Guaranty. As an inducement to Beneficiary, for and in consideration
of Beneficiary entering into the Asset Sale Agreement, Guarantor hereby
absolutely, unconditionally, and irrevocably guarantees to Beneficiary and its
successors, endorsees and assigns, as primary obligor and not merely as a
surety, (i) the full and prompt payment, when due, of the Purchase Price by
Counterparty under Section 3.2 of the Asset Sale Agreement and (ii) the
performance by Counterparty of any of its other obligations that are required to
be performed at or prior to Closing in accordance with the terms and conditions
of the Asset Sale Agreement (collectively, the "Guaranteed Obligations"). The
Guaranteed Obligations shall include, without limitation, all reasonable costs
and expenses (including reasonable attorneys' fees), if any, incurred in
enforcing the Beneficiary's rights under this Guaranty, but only to the extent
that Beneficiary is successful in enforcing its rights under this Guaranty. This
is a guaranty of performance and payment and not of collection. Notwithstanding
any other provision of this Guaranty, the maximum recovery from the Guarantor
which may be collected pursuant to the provisions of this Guaranty shall in no
event exceed in the aggregate an amount
equal to the Purchase Price stated in Section 3.2 of the Asset Sale Agreement
plus the expenses set forth in this Section 2.
Section 3. Guaranty Absolute. Subject to the last sentence of Section 2 and
Section 6, the liability of Guarantor under this Guaranty shall be absolute,
unconditional and irrevocable, and nothing whatever except actual full payment
and performance to Beneficiary of the Guaranteed Obligations (and all other
debts, obligations and liabilities of Guarantor under this Guaranty) shall
operate to discharge Guarantor's liability hereunder. Without limiting the
generality of the foregoing, Guarantor's liability hereunder shall be unaffected
by:
(a) The occurrence or continuance of any event of bankruptcy, reorganization or
insolvency with respect to Counterparty, or any disallowance of all or any
portion of any claim by Beneficiary, its successors or permitted assigns in
connection with any such proceeding or in the event that all or any part of any
payment is recovered from Beneficiary as a preference payment or fraudulent
transfer under the Federal Bankruptcy Code or any applicable law, or the
dissolution, liquidation or winding up of Guarantor or Counterparty;
(b) Any amendment, supplement, reformation or other modification of the Asset
Sale Agreement;
(c) The exercise, non-exercise or delay in exercising, by Beneficiary or any
other Person, of any of their rights under this Guaranty or the Asset Sale
Agreement;
(d) Any change in time, manner or place of payment of, or in any other terms of,
all or any of the Guaranteed Obligations or any other amendment or waiver of, or
any consent to depart from, the Asset Sale Agreement or any other agreement,
document or instrument relating thereto;
(e) Any permitted assignment or other transfer of rights under this Guaranty by
Beneficiary, or any permitted assignment or other transfer of the Asset Sale
Agreement, including any assignment as security for financing purposes;
(f) Any merger or consolidation into or with any other entity, or other change
in the corporate existence or cessation of existence of, Counterparty or
Guarantor;
(g) Any change in ownership or control of Guarantor or Counterparty;
(h) Any sale, transfer or other disposition by Guarantor of any direct or
indirect interest it may have in Counterparty;
(i) The inaccuracy of any of the representations and warranties of Counterparty
under the Asset Sale Agreement;
(j) The absence of any notice to, or knowledge by, Guarantor of the existence or
occurrence of any of the matters or events set forth in the foregoing clauses;
(k) The failure to create, preserve, validate, perfect or protect any security
interest granted to, or in favor of, any Person;
(l) Any substitution, modification, exchange, release, settlement or compromise
of any security or collateral for or guaranty of any of the Guaranteed
Obligations or failure to apply such security or collateral or failure to
enforce such guaranty;
(m) Except as provided in Section 4(d), the existence of any claim, set-off, or
other rights which Guarantor or any Affiliate thereof may have at any time
against Beneficiary or any Affiliate thereof;
(n) The genuineness, validity, regularity, or enforceability of this Guaranty,
the Asset Sale Agreement or any other agreement, document or instrument related
to the transactions contemplated hereby or thereby; and
(o) Except as provided herein, any other circumstances which might otherwise
constitute a defense to, or discharge of, Guarantor or Counterparty in respect
of the Guaranteed Obligations or a legal or equitable discharge of Counterparty
in respect thereof, including, a discharge as a result of any bankruptcy or
similar law.
Section 4. Waiver. In addition to waiving any defenses to which clauses (a)
through (o) of Section 3 may refer:
(a) Guarantor hereby irrevocably, unconditionally and expressly waives, and
agrees that it shall not at any time insist upon, plead or in any manner
whatsoever claim or take the benefit or advantage of, any appraisal, valuation,
stay, extension, marshaling of assets or redemption laws, or exemption, whether
now or at any time hereafter in force, which may delay, prevent or otherwise
affect the performance by Guarantor of its obligations under, or the enforcement
by Beneficiary of, this Guaranty;
(b) Guarantor hereby irrevocably, unconditionally and expressly waives all
notices, diligence, presentment and demand of every kind (whether for nonpayment
or protest or of acceptance, maturity, extension of time, change in nature or
form of the Guaranteed Obligations, acceptance of security, release of security,
composition or agreement arrived at as to the amount of, or the terms of, the
Guaranteed Obligations, notice of adverse change in Counterparty's financial
condition, or any other fact which might materially increase the risk to
Guarantor hereunder) with respect to the Guaranteed Obligations which are not
specifically required to be given by Beneficiary to Guarantor in the Asset Sale
Agreement,
and any other demands whatsoever which are not specifically required to be given
by Beneficiary to Guarantor in the Asset Sale Agreement, and waives the benefit
of all provisions of law which are in conflict with the terms of this Guaranty;
provided, however, Beneficiary agrees that all demands under this Guaranty shall
be in writing and shall specify in what manner and what amount Counterparty has
failed to pay or perform and an explanation of why such payment or performance
is due, with a specific statement that Beneficiary is calling upon Guarantor to
pay or perform under this Guaranty. Any payment demand shall also include the
bank account and wire transfer information to which the funds should be wire
transferred;
(c) The Guarantor hereby irrevocably, unconditionally and expressly waives
promptness, diligence, notice of acceptance and any other notice with respect to
any of the Guaranteed Obligations and the delivery, acceptance, performance,
default or enforcement of this Guaranty and any requirement that Beneficiary
protect, secure or perfect any security interest or exhaust any right or first
proceed against Counterparty or any other person or entity or any other
security;
(d) Until termination of this Guaranty pursuant to Section 6, Guarantor
irrevocably, unconditionally and expressly waives (i) any right it may have to
bring in a case or proceeding against Counterparty by reason of Guarantor's
performance under this Guaranty or with respect to any other obligation of
Counterparty to Guarantor, under any state or federal bankruptcy, insolvency,
reorganization, moratorium or similar laws for the relief of debtors or
otherwise; (ii) any subrogation to the rights of Beneficiary against
Counterparty and any other claim against Counterparty which arises as a result
of payments made by Guarantor pursuant to this Guaranty, until the Guaranteed
Obligations have been paid and performed in full and such payments are not
subject to any right of recovery; and (iii) any setoffs or counterclaims against
Beneficiary which would otherwise impair Beneficiary's rights against Guarantor
hereunder, except Guarantor shall be entitled to set off any claims that
Counterparty may have against Beneficiary under the Asset Sale Agreement. If any
amount shall be paid to the Guarantor on account of such subrogation rights at
any time when this Guaranty shall not have terminated, such amount shall be held
in trust for the benefit of Beneficiary and shall forthwith be paid to
Beneficiary to be applied to the Guaranteed Obligations; and
(e) Notwithstanding anything contained herein, Guarantor shall not waive and
shall be entitled to assert defenses based on or arising out of any defense of
Counterparty based upon (1) the performance in full of all obligations that are
required to be performed at or prior to Closing, (2) in the case of obligations
required to be performed by Counterparty at Closing, the nonfulfillment of any
of the Closing conditions set forth in Section 7.1 of the Asset Sale Agreement,
(3) the termination of the Asset Sale Agreement pursuant to Section 9.1 thereof
at a time when Counterparty is not in breach of the Asset Sale Agreement, or (4)
the failure of Beneficiary to perform an obligation of Beneficiary under the
Asset
Sale Agreement that adversely affects Counterparty's performance of its
obligations under the Asset Sale Agreement.
Section 5. Representations and Warranties. Guarantor hereby represents and
warrants as follows:
(a) Guarantor is a corporation duly organized and validly existing under the
laws of Delaware.
(b) Guarantor has full corporate power, authority and legal right to execute and
deliver this Guaranty and to perform its obligations hereunder.
(c) This Guaranty has been duly authorized, executed and delivered by Guarantor.
(d) This Guaranty constitutes the legal, valid and binding obligation of
Guarantor enforceable against Guarantor in accordance with its terms.
(e) The execution and delivery by Guarantor of this Guaranty and the performance
by Guarantor of its obligations hereunder will not (i) conflict with or result
in any breach of any provisions of Guarantor's certificate of incorporation or
bylaws (or other similar governing documents); (ii) conflict with or result in
any breach of any provision of any law applicable to Guarantor or the
transactions contemplated hereby; (iii) result in a breach of or constitute a
default (or give rise to any right of termination, cancellation or acceleration)
under any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, lease, agreement or other instrument or obligation to which Guarantor
is a party or by which it or its assets or property are bound; or (iv) require
any consent, approval, permit or authorization of, or filing with or
notification to, any governmental or regulatory authority.
(f) No action, suit or proceeding at law or in equity or by or before any
governmental authority or arbitral tribunal is now pending or, to the best
knowledge of Guarantor, threatened against Guarantor that would reasonably be
expected to have a material adverse effect on Guarantor's ability to pay and
perform its obligations under this Guaranty.
(g) Guarantor's obligations under this Guaranty are not subject to any offsets
or claims of any kind against Counterparty, Beneficiary or any of their
Affiliates.
(h) It is not and shall not be necessary for Beneficiary to inquire into the
powers of Counterparty or the officers, directors, partners, trustees or agents
acting or purporting to act on Counterparty's behalf pursuant to the Asset Sale
Agreement, and any Guaranteed Obligations made or created in reliance upon the
professed
exercise of such powers shall be guaranteed hereunder to the extent made or
created in accordance with the terms of the Asset Sale Agreement.
Section 6. Continuing Guarantee. This Guaranty is a continuing guaranty and
shall remain in full force and effect until the earliest of (i) all Guaranteed
Obligations have been paid and performed in full or Counterparty's obligations
to pay the Purchase Price to Beneficiary has been terminated pursuant to the
terms of the Asset Sale Agreement, (ii) the Closing, or (iii) the termination of
the Asset Sale Agreement pursuant to Section 9.1 thereof at a time when
Counterparty is not in breach of the Asset Sale Agreement. This Guaranty shall
continue to be effective, or be reinstated, as the case may be, if at any time
payment, or any part thereof, of any of the Guaranteed Obligations by Guarantor
is rescinded and returned by Beneficiary to Guarantor upon the insolvency,
bankruptcy, dissolution, liquidation or reorganization of Counterparty or
Guarantor, or upon or as a result of the appointment of a receiver, intervenor
or conservator of, or trustee or similar officer for, Counterparty, Guarantor or
any substantial part of their respective properties, or otherwise, all as though
such payments had not been made. Guarantor agrees, upon the written request of
Beneficiary, to execute and deliver to Beneficiary any additional instruments or
documents necessary or advisable from time to time, in the reasonable and good
faith opinion of Beneficiary, to cause this Guaranty to be, become or remain
valid and effective in accordance with its terms.
Section 7. Amendments; Waivers; Etc. Neither this instrument nor any terms
hereof may be changed, waived, discharged or terminated orally, but only by an
instrument in writing signed by Beneficiary and Guarantor. No delay or failure
by Beneficiary to exercise any remedy against Counterparty or Guarantor shall be
construed as a waiver of that right or remedy. No failure on the part of
Beneficiary to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right hereunder preclude any other or further exercise thereof or the exercise
of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by any applicable law.
Section 8. Severability. In the event that the provisions of this Guaranty are
claimed or held to be inconsistent with any other instrument evidencing or
securing the Guaranteed Obligations, the terms of this Guaranty shall remain
fully valid and effective. If any one or more of the provisions of this Guaranty
should be determined to be illegal or unenforceable, all other provisions shall
remain effective.
Section 9. Assignment.
(a) Assignability. Guarantor shall not have the right to assign any of
Guarantor's rights or obligations or delegate any of its duties under this
Guaranty without the prior written consent of Beneficiary. Guarantor shall
remain liable under this Guaranty, notwithstanding assumption of this Guaranty
by a successor or assign, unless and until released in writing from its
obligations hereunder by Beneficiary. Beneficiary may, at any time and from time
to time, assign, in whole or in part, its rights hereunder to any Person to whom
Beneficiary has the right to assign its
rights or obligations under and pursuant to the terms of the Asset Sale
Agreement, whereupon such assignee shall succeed to all rights of Beneficiary
hereunder.
(b) Successors and Assigns. Subject to Section 9(a) hereof, all of the terms of
this instrument shall be binding upon and inure to the benefit of the parties
hereof and their respective permitted successors and assigns.
Section 10. Address for All Notices. All notices and other communications
provided for hereunder shall be given and effective in accordance with the
notice requirements of the Asset Sale Agreement and if to Guarantor, at the
following address:
Attn: Entergy Corporation
639 Loyola Ave.
New Orleans, LA 70161
Attn: Chief Financial Officer
Telecopy:
with a copy to: Entergy Corporation
639 Loyola Ave.
New Orleans, LA 70161
Attn: General Counsel
Telecopy:
Section 11. Governing Law. This Guaranty shall be governed by and construed in
accordance with the law of the State of Michigan (without giving effect to
conflict of law principles) as to all matters, including but not limited to
matters of validity, construction, effect, performance and remedies. THE PARTIES
HERETO AGREE THAT VENUE IN ANY AND ALL ACTIONS AND PROCEEDINGS RELATED TO THE
SUBJECT MATTER OF THIS GUARANTY SHALL BE IN THE UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF MICHIGAN. THE FOREGOING COURT SHALL HAVE EXCLUSIVE
JURISDICTION FOR SUCH PURPOSES, AND THE PARTIES HERETO IRREVOCABLY SUBMIT TO THE
EXCLUSIVE JURISDICTION OF SUCH COURT AND IRREVOCABLY WAIVE THE DEFENSE OF AN
INCONVENIENT FORUM TO THE MAINTENANCE OF ANY SUCH ACTION OR PROCEEDING. SERVICE
OF PROCESS MAY BE MADE IN ANY MANNER RECOGNIZED BY SUCH COURT. EACH OF THE
PARTIES HERETO IRREVOCABLY WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY
ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS GUARANTY OR
THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 12. Entire Agreement. This writing is the complete and exclusive
statement of the terms of this Guaranty and supersedes all prior oral or written
representations, understandings, and agreements between Beneficiary and
Guarantor with respect to the subject matter hereof. Guarantor agrees that there
are no conditions to the full effectiveness of this Guaranty.
IN WITNESS WHEREOF, Guarantor has duly caused this Guaranty to be executed and
delivered as of the date first written above.
ENTERGY CORPORATION
By:
---------------------------------
Name:
Title:
Hornet Comments 6/29/06
EXHIBIT I
FORM OF SELLER'S FIRPTA AFFIDAVIT
NON-FOREIGN CERTIFICATION
Section 1445 of the Internal Revenue Code provides that a transferee of a United
States real property interest must withhold tax if the transferor is a foreign
person. To inform ______________________________________, a ___________________,
whose address is _______________________________________ ("Transferee"), in
connection with the sale of a certain U. S. real property interest to Transferee
by CONSUMERS ENERGY COMPANY, a Michigan corporation ("Transferor"), as set forth
in a certain deed or deeds of even date herewith, that withholding of tax is not
required on such sale(s), Transferor hereby certifies to Transferee that:
1. Transferor is not a foreign corporation, foreign partnership, foreign trust
or foreign estate (as those terms are defined in the Internal Revenue Code and
the Treasury Regulations) for purposes of United States income taxation.
2. Transferor is not a disregarded entity as defined in Treasury Regulations
Section 1.1445- 2(b)(2)(iii).
3. Transferor's United States taxpayer identification number is 38-0442310.
4. Transferor's present address is One Energy Plaza, Jackson, Michigan 49201.
Transferor understands that this certification may be disclosed to the Internal
Revenue Service by Transferee and that any false statement contained herein
could be punished by fine, imprisonment or both.
Under penalty of perjury, I declare that this certificate is true and complete
to the best of my knowledge.
Dated: ____________, 20_____ CONSUMERS ENERGY COMPANY
By:
---------------------------------
Its:
--------------------------------
EXHIBIT J
FORM OF TITLE COMMITMENT
The "Title Commitment" consists of (i) the Palisades Site Title Commitment, and
(ii) the Big Rock ISFSI Site Title Commitment, each of which is attached hereto.
PRINTED - April 17, 2006 at 03:32-PM
FILE NO.: 800414496CML
Revision No: 6
ADDRESS: To Be Determined in Search
BUYER/BOR: Purchaser
SELLER: Energy
AMERICAN LAND TITLE ASSOCIATION COMMITMENT - 1966
CHICAGO TITLE INSURANCE COMPANY
COMMITMENT FOR TITLE INSURANCE
CHICAGO TITLE INSURANCE COMPANY, herein called the Company, for a valuable
consideration, hereby commits to issue its policy or policies of title
insurance, as identified in Schedule A, in favor of the proposed Insured named
in Schedule A, as owner or mortgagee of the estate or interest covered hereby in
the land described or referred to in Schedule A, upon payment of the premiums
and charges therefor; all subject to the provisions of Schedules A and B to the
Conditions and Stipulations hereof.
This Commitment shall be effective only when the identity of the proposed
Insured and the amount of the policy or policies committed for have been
inserted in Schedule A hereof by the Company, either at the time of the issuance
of this Commitment or by subsequent endorsement.
This Commitment is preliminary to the issuance of such policy or policies of
title insurance and all liability and obligations hereunder shall cease and
terminate 90 days after the effective date hereof or when the policy or policies
committed for shall issue, whichever first occurs, provided that the failure to
issue such policy or policies is not the fault of the Company.
IN WITNESS WHEREOF, CHICAGO TITLE INSURANCE COMPANY has caused this Commitment
to be signed and sealed as of the effective date of Commitment shown in Schedule
A, the Commitment to become valid when countersigned by an authorized signatory.
CHICAGO TITLE OF MICHIGAN
Countersigned: By
---------------------------
Authorized Signatory
EFFECTIVE DATE: APRIL 10, 2006 AT 08:00 AM
CONSUMERS ENERGY COMPANY INQUIRIES SHOULD BE DIRECTED TO:
Chicago Title of Michigan
3819 Rivertown Parkway SW, Suite 700
Grandville, MI 49418
PHONE: (616)257-3103
FAX: (616)257-3104
ONE ENERGY PLAZA
JACKSON, MI 49202
FILE NO.: 800414496CML
Revision No: 6
STANDARD EXCEPTIONS FOR OWNER'S POLICY
The owner's policy will be subject to the mortgage, if any, noted under item one
of Section 1 of Schedule B hereof and to the following exceptions: (1) rights or
claims of parties in possession not shown by the public records; (2)
encroachments, overlaps, boundary line disputes, and any matters which would be
disclosed by an accurate survey and inspection of the premises; (3) easements,
or claims of easements, not shown by the public records; (4) any lien, or right
to a lien, for services, labor, or material heretofore or hereafter furnished,
imposed by law and not shown by the public records; (5) taxes or special
assessments which are not shown as existing liens by the public records.
CONDITIONS AND STIPULATIONS
1. The term "mortgage," when used herein, shall include deed of trust, trust
deed or other security instrument.
2. If the proposed Insured has or acquires actual knowledge of any defect, lien,
encumbrance, adverse claim or other matter affecting the estate or interest or
mortgage thereon covered by this Commitment other than those shown in Schedule B
hereof, and shall fail to disclose such knowledge to the Company in writing, the
Company shall be relieved from liability for any loss or damage resulting from
any act of reliance hereon to the extent the Company is prejudiced by failure to
so disclose such knowledge. If the proposed Insured shall disclose such
knowledge to the Company, or if the Company otherwise acquires actual knowledge
of any such defect, lien, encumbrance, adverse claim or other matter, the
Company at its option may amend
Schedule B of this Commitment accordingly, but such amendment shall not relieve
the Company from liability previously incurred pursuant to paragraph 3 of these
Conditions and Stipulations.
3. Liability of the Company under this Commitment shall be only to the named
proposed Insured and such parties included under the definition of Insured in
the form of policy or policies committed for and only for actual loss incurred
in reliance hereon in undertaking in good faith (a) to comply with the
requirements hereof, or (b) to eliminate exceptions shown in Schedule B, or (c)
to acquire or create the estate or interest or mortgage thereon covered by this
Commitment. In no event shall such liability exceed the amount stated in
Schedule A for the policy or policies committed for and such liability is
subject to the insuring provisions, the Exclusions from Coverage and the
Conditions and Stipulations of the form of policy or policies committed for in
favor of the proposed Insured which are hereby incorporated by reference and are
made a part of this Commitment except as expressly modified herein.
4. Any action or actions or rights of action that the proposed Insured may have
or may bring against the Company arising out of the status of the title to the
estate or interest or the status of the mortgage thereon covered by this
Commitment must be based on and are subject to the provisions of this
Commitment.
REQUIREMENTS FOR ISSUANCE OF MORTGAGE POLICIES:
FOR ALL MORTGAGE POLICIES:
Requirement: Estoppel certificate on form provided by the Company signed by or
on behalf of all mortgagors acknowledging receipt of the mortgage consideration
and making representations as to the ages of individual mortgagors and such
other matters as are therein set forth.
FOR A.L.T.A. MORTGAGE POLICIES WITHOUT EXCEPTIONS:
Requirement: Proper sworn statements and waivers showing payment or release of
lien rights covering improvements made on subject land in the past 90 days or
satisfactory proof that no improvements have been made within the last 90 days.
Requirements: Survey satisfactory to the insurer made by surveyor acceptable to
it showing no variation in location or dimensions, encroachments, or adverse
rights, and such evidence of possession as may be required.
If any requirement is not satisfied, the policy will be issued subject to the
exceptions which would otherwise be eliminated by compliance with such
requirement. The policy will also contain such further exceptions, if any, as to
interests, rights, liens, encumbrances, or taxes, which may arise or be created
subsequent to the date hereof and which have not been eliminated to our
satisfaction. This commitment is subject to the terms, provisions, conditions
and stipulations of the kind of policy applied for by the respective applicants.
Owner's Policies and Mortgage Policies with Exceptions will be issued with the
standard exceptions set forth herein.
CHICAGO TITLE OF MICHIGAN
3819 RIVERTOWN PARKWAY SW, SUITE 700
GRANDVILLE, MI 49418
PHONE: (616)257-3103
FAX: (616)257-3104
SEE SCHEDULE B ATTACHED HERETO
Commitment (Schedule A) (800414496CML.PFD/800414496CML/76)
PRINTED - April 17, 2006 at 03:32-PM
Property Address: To Be Determined in Search FILE NO.: 800414496CML
Revision No: 6
CHICAGO TITLE INSURANCE COMPANY
A.L.T.A. COMMITMENT
File No.: 800414496CML
SCHEDULE A
Effective Date: April 10, 2006 at 08:00 AM
1. Policy or Policies To Be Issued: AMOUNT:
OWNER'S: TBD
Policy Form: ALTA Owners (10/17/1992) w/ exceptions
(a) Proposed Insured: Proposed Purchaser
LOAN: Policy Form:
(b) Proposed Insured:
2. The estate or interest in the land described or referred to in this
Commitment and covered herein is a Fee Simple, and title thereto is at the
effective date hereof vested in: Consumers Energy Company, a Michigan
corporation, formerly known as Consumers Power Company, a Michigan corporation
3. The land referred to in this Commitment is located in Township of Covert, Van
Buren County, State of Michigan, and is described as follows:
SEE EXHIBIT A ATTACHED HERETO AND MADE A PART HEREOF
Commitment (Schedule B) (800414496CML.PFD/800414496CML/76)
PRINTED - April 17, 2006 at 03:32-PM
FILE NO.: 800414496CML
Revision No: 6
SCHEDULE B
I. THE FOLLOWING ARE THE GENERAL REQUIREMENTS TO BE COMPLIED WITH:
1. Payment of the full consideration to, or for the account of, the grantors or
mortgagors.
2. Payment of all taxes, charges, assessments, levied and assessed against
subject premises, which are due and payable.
3. For all Loan Policies: Estoppel certificate on form provided by this company
signed by or on behalf of all mortgagors acknowledging receipt of the mortgage
consideration and making representations as to the ages of individual mortgagors
and such other matters as are therein set forth.
4. For ALTA Loan Policies without the exceptions in Schedule B, II hereof:
Proper sworn statements and waivers showing payment or release of all lien
rights covering improvements made on subject land in the last 90 days or
satisfactory proof that no improvements have been made within the last 90 days;
and, satisfactory survey by an approved surveyor showing no variation in
location or dimensions, encroachments, or adverse rights, and such evidence or
possession as may be required.
5. Instruments necessary to create the estate or interest to be insured must be
properly executed, delivered and duly filed for record.
6. Furnish to the Company the name(s) of the proposed Insured(s) This Commitment
is made subject to such further requirements and/or exceptions as may be deemed
necessary after a proper search of the name(s) of said Insured(s).
7. In regard to Consumers Energy Company, the Company must be furnished the
following documentation:
A. certified copy of the Articles of Incorporation.
B. certified copy of the proper corporate resolution(s) authorizing the sale of
the land and directing the proper officers to execute the proposed transaction
on behalf of said corporation.
C. Certificate of Good Standing or Certificate of Existence from the Secretary
of State of Michigan, attesting to the current good standing.
8. Record a Deed from Consumers Energy Company, a Michigan corporation, formerly
known as Consumers Power Company, a Michigan corporation to the Proposed
Purchaser.
9. Record a Partial Release of the Mortgage in the original amount of
$500,000,000.00, Executed by Consumers Power Company, a Maine corporation now
known as Consumers Energy Company, a Michigan corporation to City Bank Farmers
Trust Company, now held by JP Morgan Chase Bank, Trustee dated September 1,
1945, recorded September 24, 1945 in Liber 197 on Page 453, as amended and
supplemented.
10. Record approval from the Department of Natural Resources, formerly the
Department of Conservation of the State of Michigan to assign the Easement to
Construct and Maintain Water Intake Line and Discharge Conduit, dated January
17, 1968 and recorded on February 19, 1968 in Liber 570 on Page 271.
11. Record a Termination of the Grant of Project Easements by the Township of
Covert, dated August 1, 1973 and recorded July 27, 1973 in Liber 624 on page
437.
12. Record a Release of the Installment Sales Contract between the Township of
Covert, Michigan and
SCHEDULE B
(Continued)
File No.: 800414496CML
Commitment (Schedule B) (800414496CML.PFD/800414496CML/76)
Consumers Power Company, now known as Consumers Energy Company, dated August 1,
1973 and recorded July 27, 1973 in Liber 624 on Page 439.
II. THE POLICY OR POLICIES TO BE ISSUED WILL CONTAIN EXCEPTIONS TO THE FOLLOWING
MATTERS UNLESS THE SAME ARE DISPOSED OF TO THE SATISFACTION OF THE COMPANY.
1. Defects, liens, encumbrances, adverse claims or other matters, if any,
created, first appearing in the public records or attaching subsequent to the
effective date hereof but prior to the date the proposed insured acquires for
value of record the estate or interest or mortgage thereon covered by this
commitment.
2. Any Loan Policy issued pursuant hereto will contain under Schedule B thereof
the following exceptions:
(a) Rights or claims of parties in possession not shown by the public records.
(b) Encroachments, overlaps, boundary line disputes, and any other matters which
would be discovered by an accurate survey and inspection of the premises.
(c) Any lien, or right to a lien for services, labor, or material heretofore or
hereafter furnished, imposed by law and not shown by the public records.
3. Any owner's policy will be subject to the mortgage, if any, noted under item
one of Section 1 of Schedule B hereof and to the following exceptions (also set
forth at the inside cover hereof):
(1) rights or claims of parties in possession not shown by the public records;
(2) encroachments, overlaps, boundary line disputes, and any matters which would
be disclosed by an accurate survey and inspection of the premises; (3)
easements, or claims of easements, not shown by the public records; (4) any
lien, or right to a lien, for services, labor, or material heretofore or
hereafter furnished, imposed by law and not shown by the public records; (5) any
and all oil, gas, mineral, mining rights and/or reservations thereof; (6) taxes
or special assessments which are not shown as existing liens by the public
records.
The following language in the first two lines of Schedule B II, Item 3, above
will not be shown on the final policy when issued:
"the mortgage, if any, noted under item one of Section 1 of Schedule B hereof
and to" Schedule B II, Item 3 (5) and Item 3(6) are hereby removed from this
commitment and will not be shown on the final policy when issued.
4. No liability is assumed by the Company for tax increase occasioned by
retroactive revaluation or change in land usage or loss of any Principal
Residence Exemption status for the insured premises.
5. Taxes and/or assessments which become a lien or become due and payable
subsequent to the effective date herein.
6. Rights of the public and of any governmental unit in any part of the land
described in Schedule A taken, used or deeded for street, road or highway
purposes.
7. Easement to Indiana & Michigan Electric Company as recorded in Liber 274 on
Page 155.
8. Easement to Indiana & Michigan Electric Company as recorded in Liber 286 on
Page 439.
9. Easement to Indiana & Michigan Electric Company as recorded in Liber 286 on
Page 441.
10. Easement to Indiana & Michigan Electric Company as recorded in Liber 286 on
Page 445.
11. Easement to Indiana & Michigan Electric Company as recorded in Liber 399 on
Page 485.
SCHEDULE B
(Continued)
File No.: 800414496CML
Commitment (Schedule B) (800414496CML.PFD/800414496CML/76)
12. Easement to Indiana & Michigan Electric Company as recorded in Liber 399 on
Page 487.
13. Easement to Indiana & Michigan Electric Company as recorded in Liber 399 on
Page 489.
14. Easement to Indiana & Michigan Electric Company as recorded in Liber 399 on
Page 493.
15. Easement to Indiana & Michigan Electric Company as recorded in Liber 399 on
Page 497.
16. Easement to Indiana & Michigan Electric Company as recorded in Liber 404 on
Page 1.
17. Terms, covenants, conditions and restrictions as recorded in Liber 538 on
page 181.
18. Easement to General Telephone Company of Michigan as recorded in Liber 566
on Page 195.
19. Regulations and conditions of Easement to construct and maintain water
intake line and discharge conduit as recorded in Liber 570 on Page 271.
20. Highway Easement to the Board of County Road Commissioners of the County of
Van Buren as recorded in Liber 600 on Page 920.
21. Any claimed interest of Indiana and Michigan Electric Company, in that
portion of the easement premises described in instrument recorded in Liber 611
on Page 329, that overlap onto the premises to be insured. The grantor in such
instrument had no record title at the time said document was signed and
acknowledged to the portion of the therein described easement premises that
overlap the premises to be insured.
22. Distribution Easement to Indiana & Michigan Electric Company as recorded in
Liber 1173 on Page 531.
23. Easement to Verizon North, Inc. as recorded in Liber 1355 on Page 364.
24. Amended and Restated Easement Agreement between Consumers Energy Company and
Michigan Electric Transmission Company as recorded in Liber 1355 on Page 979 and
Supplement No. 2 to Amended and Restated Easement Agreement as recorded in Liber
1355 on page 980, and First Mortgage Indenture between Michigan Electric
Transmission Company, inc. and JPMorgan Chase Bank Trustee as recorded in Liber
1403 on Page 256.
25. The nature, extent or lack of riparian rights or the riparian rights of
riparian owners and the public in and to the use of waters of Lake Michigan.
26. Rights, if any, of the State of Michigan as to any part of the lands lying
in the bed of adjoining lake, and of the public to use the surface and
sub-surface of said lake for purposes of navigation and recreation.
27. Any adverse claim based upon the assertion that some portion of said land is
bottom land or has been created by artificial means or has accreted to such
portion so created.
28. Any claimed interest of Indiana & Michigan Electric Company, in that portion
of the easement premises described in instrument recorded in Liber 787 on page
565, that overlap unto the premises to be insured. The grantor in such
instrument had no record title at the time said document was signed and
acknowledged to the portion of the therein described easement premises that
overlap the premises to be insured.
29. Water and Sewer Usage Bills.
SCHEDULE B
(Continued)
File No.: 800414496CML
Commitment (Schedule B) (800414496CML.PFD/800414496CML/76)
Exhibit A (800414496CML.PFD/800414496CML/76)
EXHIBIT A
LEGAL DESCRIPTION
Your Reference No.: 800414496CML
Land located in the Township of Covert, Van Buren County, State of Michigan, and
described as follows:
A parcel of land in Sections 4 and 5, Township 2 South, Range 17 West, Covert
Township, Van Buren County, Michigan, more particularly described as:
Beginning at the Southeast 1/4 corner of said Section 5, thence N 00 degrees
06'00" E along the East Line of said section, 405.69 feet; thence N 89 degrees
13'40" W 2659.12 feet; thence N 89 degrees 17'57" W 1723.14 feet to the East
Line of Glenwood Road; thence along said East line of Glenwood Road the
following two courses: N 35 degrees 57'05" W 16.52 feet and N 30 degrees 53'07"
E 27.75 feet, to the Easterly extension of the line between Lots 19 and 20 of
Block 2 of Dean's Addition to Palisades Park per the plat thereof as record in
Liber 3 of Plats, Page 4, Van Buren County Records (which plat was partially
vacated by instrument recorded in Liber 585, Pages 903-906, Van Buren County
records); thence N 66 degrees 47'28" W 155.22 feet, to the Northeast corner of
Lot 4 of said Dean's Addition to Palisades Park; thence S 23 degrees 47'15" W
50.00 feet, to the Southeast corner of said Lot 4; thence N 66 degrees 47'28" W
130.00 feet, to the Southwest corner of said Lot 4; thence N 23 degrees 47'15" E
50.00 feet, to the Northwest corner of said Lot 4 and the point of beginning of
an intermediate traverse line, this point being S 66 degrees 47'28" E 57 feet
(more or less) from the Ordinary High Water Mark of Lake Michigan; thence N 23
degrees 19'25" E along said intermediate traverse line, 5079.91 feet, to the
point of ending of said intermediate traverse line, this point being S 88
degrees 58'20" E 121 feet (more or less) from the Ordinary High Water Mark of
Lake Michigan; thence S 88 degrees 58'20" E 1448.14 feet, to the centerline of
Old Blue Star Highway (now vacated); thence Southerly on a curve to the left,
along said centerline of vacated old Blue Star Highway, 659.45 feet (said curve
having a radius of 3819.80 feet, a delta angle of 9 degrees 53'30" and a chord
of 658.63 feet bearing S 02 degrees 23'07" W); thence S 88 degrees 58'20" E
1212.82 feet, to the East Line of said Section 5; thence S 89 degrees 03'50" E
860.50 feet, to the Westerly Line of "Rest Area" as recorded in Liber 620, Pages
119-121, Van Buren County Records; thence along said Westerly Line of "Rest
Area" the following 7 courses: Southerly on a curve to the left 454.80 feet
(said curve having a radius of 1910.08 feet, a delta angle of 13 degrees 38'33"
and a chord of 453.73 feet bearing S 02 degrees 55'53" E, S 09 degrees 47'50"E
275.00 feet, S 88 degrees 58'05" E 140.00 feet, S 01 degrees 01'55" W 387.00
feet, S 88 degrees 58'05" E 33.67 feet, S 17 degrees 42'10" W 68.90 feet, and S
88 degrees 58'05" E 31.32 feet, to the Westerly right-of-way of Highway I-196;
thence along said Westerly right-of-way the following two courses: S 17 degrees
42'10" W 2788.56 feet and Southerly along a curve to the right 765.03 feet (said
curve having a radius of 11,309.16 feet, a delta angle of 3 degrees 52'33" and a
chord of 764.88 feet bearing S 19 degrees 38'26"W), to the South Line of said
Section 4; thence N 88 degrees 55'33" W, along said South section line, 8.01
feet to the point of beginning. Bearings used in the preceding description are
based on the Michigan State Plane Coordination System South Zone.
The land described hereinabove includes certain platted land, described as Lot 4
of Block 2 of Dean's Addition to Palisades Park. Also, any land lying between
the West line of the aforesaid Lot 4 of Block 2 of Dean's Addition and the shore
of Lake Michigan, and any land lying between the hereinabove described
intermediate traverse line and the shore of Lake Michigan. Together with an
easement to construct and maintain water intake line and discharge conduit as
recorded on February 19, 1968 in Liber 570 on Page 271.
PRINTED - June 14, 2006 at 10:23-AM Reissue of: 150417986CML
FILE NO.: 150430683CML Revision No: 6
ADDRESS: Big Rock Plant
BUYER/BOR: Purchaser
SELLER: Energy
AMERICAN LAND TITLE ASSOCIATION COMMITMENT - 1966
CHICAGO TITLE INSURANCE COMPANY
COMMITMENT FOR TITLE INSURANCE
CHICAGO TITLE INSURANCE COMPANY, herein called the Company, for a valuable
consideration, hereby commits to issue its policy or policies of title
insurance, as identified in Schedule A, in favor of the proposed Insured named
in Schedule A, as owner or mortgagee of the estate or interest covered hereby in
the land described or referred to in Schedule A, upon payment of the premiums
and charges therefor; all subject to the provisions of Schedules A and B to the
Conditions and Stipulations hereof.
This Commitment shall be effective only when the identity of the proposed
Insured and the amount of the policy or policies committed for have been
inserted in Schedule A hereof by the Company, either at the time of the issuance
of this Commitment or by subsequent endorsement.
This Commitment is preliminary to the issuance of such policy or policies of
title insurance and all liability and obligations hereunder shall cease and
terminate 90 days after the effective date hereof or when the policy or policies
committed for shall issue, whichever first occurs, provided that the failure to
issue such policy or policies is not the fault of the Company.
IN WITNESS WHEREOF, CHICAGO TITLE INSURANCE COMPANY has caused this Commitment
to be signed and sealed as of the effective date of Commitment shown in Schedule
A, the Commitment to become valid when countersigned by an authorized signatory.
CHICAGO TITLE OF MICHIGAN
Countersigned: By
----------------------------
Authorized Signatory
EFFECTIVE DATE: MAY 10, 2006 AT 08:00 AM
CONSUMERS ENERGY INQUIRIES SHOULD BE DIRECTED TO:
Chicago Title of Michigan
941 W. Milham Rd
Portage, MI 49024
PHONE: (269)321-3055
FAX: (269)321-3051
FILE NO.: 150430683CML
Revision No: 6
STANDARD EXCEPTIONS FOR OWNER'S POLICY
The owner's policy will be subject to the mortgage, if any, noted under item one
of Section 1 of Schedule B hereof and to the following exceptions: (1) rights or
claims of parties in possession not shown by the public records; (2)
encroachments, overlaps, boundary line disputes, and any matters which would be
disclosed by an accurate survey and inspection of the premises; (3) easements,
or claims of easements, not shown by the public records; (4) any lien, or right
to a lien, for services, labor, or material heretofore or hereafter furnished,
imposed by law and not shown by the public records; (5) taxes or special
assessments which are not shown as existing liens by the public records.
CONDITIONS AND STIPULATIONS
1. The term "mortgage," when used herein, shall include deed of trust, trust
deed or other security instrument.
2. If the proposed Insured has or acquires actual knowledge of any defect, lien,
encumbrance, adverse claim or other matter affecting the estate or interest or
mortgage thereon covered by this Commitment other than those shown in Schedule B
hereof, and shall fail to disclose such knowledge to the Company in writing, the
Company shall be relieved from liability for any loss or damage resulting from
any act of reliance hereon to the extent the Company is prejudiced by failure to
so disclose such knowledge. If the proposed Insured shall disclose such
knowledge to the Company, or if the Company otherwise acquires actual knowledge
of any such defect, lien, encumbrance, adverse claim or other matter, the
Company at its option may amend Schedule B of this Commitment accordingly, but
such amendment shall not relieve the Company from liability previously incurred
pursuant to paragraph 3 of these Conditions and Stipulations.
3. Liability of the Company under this Commitment shall be only to the named
proposed Insured and such parties included under the definition of Insured in
the form of policy or policies committed for and only for actual loss incurred
in reliance hereon in undertaking in good faith (a) to comply with the
requirements hereof, or (b) to eliminate exceptions shown in Schedule B, or (c)
to acquire or create the estate or interest or mortgage thereon covered by this
Commitment. In no event shall such liability exceed the amount stated in
Schedule A for the policy or policies committed for and such liability is
subject to the insuring provisions, the Exclusions from Coverage and the
Conditions and Stipulations of the form of policy or policies committed for in
favor of the proposed Insured which are hereby incorporated by reference and are
made a part of this Commitment except as expressly modified herein.
4. Any action or actions or rights of action that the proposed Insured may have
or may bring against the Company arising out of the status of the title to the
estate or interest or the status of the mortgage thereon covered by this
Commitment must be based on and are subject to the provisions of this
Commitment.
REQUIREMENTS FOR ISSUANCE OF MORTGAGE POLICIES:
FOR ALL MORTGAGE POLICIES:
Requirement: Estoppel certificate on form provided by the Company signed by or
on behalf of all mortgagors acknowledging receipt of the mortgage consideration
and making representations as to the ages of individual mortgagors and such
other matters as are therein set forth.
FOR A.L.T.A. MORTGAGE POLICIES WITHOUT EXCEPTIONS:
Requirement: Proper sworn statements and waivers showing payment or release of
lien rights covering improvements made on subject land in the past 90 days or
satisfactory proof that no improvements have been made within the last 90 days.
Requirements: Survey satisfactory to the insurer made by surveyor acceptable to
it showing no variation in location or dimensions, encroachments, or adverse
rights, and such evidence of possession as may be required.
If any requirement is not satisfied, the policy will be issued subject to the
exceptions which would otherwise be eliminated by compliance with such
requirement. The policy will also contain such further exceptions, if any, as to
interests, rights, liens, encumbrances, or taxes, which may arise or be created
subsequent to the date hereof and which have not been eliminated to our
satisfaction. This commitment is subject to the terms, provisions, conditions
and stipulations of the kind of policy applied for by the respective applicants.
Owner's Policies and Mortgage Policies with Exceptions will be issued with the
standard exceptions set forth herein.
CHICAGO TITLE OF MICHIGAN
941 W. MILHAM RD
PORTAGE, MI 49024
PHONE: (269)321-3055
FAX: (269)321-3051
SEE SCHEDULE B ATTACHED HERETO
Commitment (Schedule A) (150430683CML.PFD/150430683CML/42)
PRINTED - June 14, 2006 at 10:23-AM REISSUE OF: 150417986CML
Property Address: Big Rock Plant FILE NO.: 150430683CML
Revision No: 6
CHICAGO TITLE INSURANCE COMPANY
A.L.T.A. COMMITMENT
File No.: 150430683CML
SCHEDULE A
Effective Date: May 10, 2006 at 08:00 AM
1. Policy or Policies To Be Issued:
AMOUNT: OWNER'S: TBD
Policy Form: ALTA Owners (10/17/1992) w/ exceptions
(a) Proposed Insured: Proposed Purchaser
LOAN: Policy Form:
(b) Proposed Insured:
2. The estate or interest in the land described or referred to in this
Commitment and covered herein is a Fee Simple, and title thereto is at the
effective date hereof vested in: Consumers Energy Company, a Michigan
corporation, formerly known as Consumers Power Company, a Michigan corporation
3. The land referred to in this Commitment is located in Township of Hayes,
Charleviox County, State of Michigan, and is described as follows:
A parcel of land in the West 1/2 of Section 8 and the North 1/2 of the Northwest
1/4 of Section 17, Township 34 North, Range 7 West, Hayes Township, Charlevoix
County, Michigan, more particularly described as follows: To find the point of
beginning of this description, commence at a Consumers Power Company Marker at
the Southwest corner of said Section 8; run thence N 00 degrees 05'57' W, along
the West line of said section, 580.70 feet; thence N 89 degrees 58'47" E 91.20
feet to to a 1/2 " rod, being the POINT OF BEGINNING of this description; thence
N 00 degrees 05'21" W 2177.62 feet to a 1/2 " rod; thence N 89 degrees 56'29" E
2124.65 feet to a 1/2 " rod; thence S 00 degrees 03'57" East 2179.05 feet to a
1/2" rod; thence S 89 degrees 58'47" W 744.25 feet to a
1/2 " rod; thence S 25 degrees 00'34" E 919.08 feet to a 1/2 " rod; thence
Southerly 167.07 feet along the arc of a 384.84 foot radius curve to the right
(said curve having a central angle of 24 degrees 52'28" and a chord bearing S 12
degrees 34'20" E 165.77 feet) to a 1/2" rod; thence S 00 degrees 08'06" E 249.41
feet to a 1/2" rod on the Northwesterly right-of-way line of Highway U.S.-31;
thence S 29 degrees 42'25" W, along said highway right-of-way line, 80.38 feet
to a 1/2" rod; thence N 00 degrees 08'06" W 319.13 feet to a 1/2" rod; thence
Northerly 149.71 feet along the arc of a 344.84 foot radius curve to the left
(said curve having a central angle of 24 degrees 52'28" and a chord bearing N 12
degrees 34'20" W 148.54 feet) to a 1/2" rod; thence N 25 degrees 00'34" West
937.73 feet to a 1/2" rod; thence S 89 degrees 58'47" W 1335.38 feet to the
POINT OF BEGINNING. Commitment (Schedule B) (150430683CML.PFD/150430683CML/42)
PRINTED - June 14, 2006 at 10:23-AM Reissue of: 150417986CML
FILE NO.: 150430683CML
Revision No: 6
SCHEDULE B
I. THE FOLLOWING ARE THE GENERAL REQUIREMENTS TO BE COMPLIED WITH:
1. Payment of the full consideration to, or for the account of, the grantors or
mortgagors.
2. Payment of all taxes, charges, assessments, levied and assessed against
subject premises, which are due and payable.
3. For all Loan Policies: Estoppel certificate on form provided by this company
signed by or on behalf of all mortgagors acknowledging receipt of the mortgage
consideration and making representations as to the ages of individual mortgagors
and such other matters as are therein set forth.
4. For ALTA Loan Policies without the exceptions in Schedule B, II hereof:
Proper sworn statements and waivers showing payment or release of all lien
rights covering improvements made on subject land in the last 90 days or
satisfactory proof that no improvements have been made within the last 90 days;
and, satisfactory survey by an approved surveyor showing no variation in
location or dimensions, encroachments, or adverse rights, and such evidence or
possession as may be required.
5. Instruments necessary to create the estate or interest to be insured must be
properly executed, delivered and duly filed for record.
6. Furnish to the Company the name(s) of the proposed Insured(s) This Commitment
is made subject to such further requirements and/or exceptions as may be deemed
necessary after a proper search of the name(s) of said Insured(s). 7. In regard
to Consumers Energy, the Company must be furnished the following documentation:
A. Certified copy of the Articles of Incorporation.
B. Certified copy of the proper corporate resolution(s) authorizing the sale of
the land and directing the proper officers to execute the proposed transaction
on behalf of said corporation.
C. Certificate of Good Standing or Certificate of Existence from the Secretary
of State of Michigan, attesting to the current good standing.
8. Record a Deed from Consumers Energy Company, a Michigan corporation, formerly
known as Consumers Power Company, a Michigan corporation to Proposed Purchaser.
9. Record a Partial Release of the Mortgage executed by Consumers Power Company,
a Maine corporation to City Bank Farmers Trust Company, now held by JP Morgan
Chase Bank, Trustee dated September 1, 1945, recorded in Liber 90 on Page 1,
releasing subject property from the lien thereof, as amended and supplemented.
10. Part of Tax Number 15-007-108-001-00
Taxes Paid through 2005
Special Assessments: None
Part of Tax Number 15-007-117-003-00
Taxes Paid through 2005
Special Assessments: None
SCHEDULE B
(Continued)
File No.: 150430683CML
Commitment (Schedule B) (150430683CML.PFD/150430683CML/42)
II. THE POLICY OR POLICIES TO BE ISSUED WILL CONTAIN EXCEPTIONS TO THE FOLLOWING
MATTERS UNLESS THE SAME ARE DISPOSED OF TO THE SATISFACTION OF THE COMPANY.
1. Defects, liens, encumbrances, adverse claims or other matters, if any,
created, first appearing in the public records or attaching subsequent to the
effective date hereof but prior to the date the proposed insured acquires for
value of record the estate or interest or mortgage thereon covered by this
commitment.
2. Any Loan Policy issued pursuant hereto will contain under Schedule B thereof
the following exceptions:
(a) Rights or claims of parties in possession not shown by the public records.
(b) Encroachments, overlaps, boundary line disputes, and any other matters which
would be discovered by an accurate survey and inspection of the premises.
(c) Any lien, or right to a lien for services, labor, or material heretofore or
hereafter furnished, imposed by law and not shown by the public records.
3. Any owner's policy will be subject to the mortgage, if any, noted under item
one of Section 1 of Schedule B hereof and to the following exceptions (also set
forth at the inside cover hereof): (1) rights or claims of parties in possession
not shown by the public records; (2) encroachments, overlaps, boundary line
disputes, and any matters which would be disclosed by an accurate survey and
inspection of the premises; (3) easements, or claims of easements, not shown by
the public records; (4) any lien, or right to a lien, for services, labor, or
material heretofore or hereafter furnished, imposed by law and not shown by the
public records; (5) any and all oil, gas, mineral, mining rights and/or
reservations thereof; (6) taxes or special assessments which are not shown as
existing liens by the public records. The following language in the first two
lines of Schedule B II, Item 3, above will not be shown on the final policy when
issued: "the mortgage, if any, noted under item one of Schedule B hereof and to"
Schedule B II, Item 3 (5) and 3 (6) are hereby removed from this commitment and
will not be shown on the final policy when issued.
4. No liability is assumed by the Company for tax increase occasioned by
retroactive revaluation or change in land usage or loss of any Principal
Residence Exemption status for the insured premises.
5. Taxes and/or assessments which become a lien or become due and payable
subsequent to the effective date herein.
6. Rights of the public and of any governmental unit in any part of the land
described in Schedule A taken, used or deeded for street, road or highway
purposes.
7. Rights of tenants under unrecorded leases and any and all parties claiming
by, through and thereunder.
8. Highway Easement Release of Right of Way recorded in Liber 124 on Page 89.
9. Water and Sewer Usage Bills.
Exhibit A (150430683CML.PFD/150430683CML/42)
EXHIBIT A
LEGAL DESCRIPTION
Your Reference No.: 150430683CML
Land located in the Township of Hayes, Charleviox County, State of Michigan, and
described as follows:
A parcel of land in the West 1/2 of Section 8 and the North 1/2 of the Northwest
1/4 of Section 17, Township 34 North, Range 7 West, Hayes Township, Charlevoix
County, Michigan, more particularly described as follows: To find the point of
beginning of this description, commence at a Consumers Power Company Marker at
the Southwest corner of said Section 8; run thence N 00 degrees 05'57' W, along
the West line of said section, 580.70 feet; thence N 89 degrees 58'47" E 91.20
feet to a 1/2 " rod, being the POINT OF BEGINNING of this description; thence N
00 degrees 05'21" W 2177.62 feet to a 1/2 " rod; thence N 89 degrees 56'29" E
2124.65 feet to a 1/2 " rod; thence S 00 degrees 03'57" East 2179.05 feet to a
1/2" rod; thence S 89 degrees 58'47" W 744.25 feet to a 1/2 " rod; thence S 25
degrees 00'34" E 919.08 feet to a 1/2 " rod; thence Southerly 167.07 feet along
the arc of a 384.84 foot radius curve to the right (said curve having a central
angle of 24 degrees 52'28" and a chord bearing S 12 degrees 34'20" E 165.77
feet) to a 1/2" rod; thence S 00 degrees 08'06" E 249.41 feet to a 1/2" rod on
the Northwesterly right-of-way line of Highway U.S.-31; thence S 29 degrees
42'25" W, along said highway right-of-way line, 80.38 feet to a 1/2" rod; thence
N 00 degrees 08'06" W 319.13 feet to a 1/2" rod; thence Northerly 149.71 feet
along the arc of a 344.84 foot radius curve to the left (said curve having a
central angle of 24 degrees 52'28" and a chord bearing N 12 degrees 34'20" W
148.54 feet) to a 1/2" rod; thence N 25 degrees 00'34" West 937.73 feet to a
1/2" rod; thence S 89 degrees 58'47" W 1335.38 feet to the POINT OF BEGINNING.
EXHIBIT K
FORM OF CONSUMERS GUARANTY
This Guaranty is made and given as of the day of 20___, by CMS Energy
Corporation, a Michigan corporation ("Guarantor"), in favor of Entergy Nuclear
Palisades, LLC ("Beneficiary").
WHEREAS, Consumers Energy Company ("Consumers"), an Affiliate of Guarantor, has
entered into an Asset Sale Agreement dated as of July ___, 2006 (the "Asset Sale
Agreement"), pursuant to which (i) Beneficiary has agreed to purchase, and
Consumers has agreed to sell, the Included Assets and (ii) Beneficiary has
agreed to assume the Assumed Liabilities and Obligations, each in accordance
with the Asset Sale Agreement, and the parties have undertaken certain duties,
responsibilities and obligations as set forth in the Asset Sale Agreement; and
WHEREAS, under the Asset Sale Agreement, Consumers is assigning to Beneficiary
the Standard Spent Fuel Disposal Contract, provided that Consumers has retained
the obligation to pay the Pre-1983 Fee due thereunder;
WHEREAS, pursuant to Section 6.14(g) of the Asset Sale Agreement, Beneficiary is
requiring Consumers to deliver this Guaranty executed by Guarantor to guarantee
Consumers' obligation to pay the Pre-1983 Fee; and
WHEREAS, Guarantor will benefit from the transactions contemplated by the Asset
Sale Agreement.
NOW, THEREFORE, Guarantor agrees as follows:
Section 1. Definitions. Capitalized terms used herein shall have the meanings
assigned to them herein or, if not defined herein, then such terms shall have
the meanings assigned to them in the Asset Sale Agreement.
Section 2. Guaranty. As an inducement to Beneficiary, for and in consideration
of Beneficiary consummating the transactions contemplated by the Asset Sale
Agreement, Guarantor hereby absolutely, unconditionally, and irrevocably
guarantees to Beneficiary and its successors, endorsees and assigns, as primary
obligor and not merely as a surety, the full and prompt payment, when due, of
the Pre-1983 Fee (as it exists from time to time) payable by Consumers under the
Asset Sale Agreement (the "Guaranteed Obligations"). The Guaranteed Obligations
shall include all reasonable costs and expenses (including reasonable attorneys'
fees), if any, incurred in enforcing Beneficiary's rights under this Guaranty,
but only to the extent that Beneficiary is successful in enforcing its rights
under this Guaranty. This is a guaranty of payment and not of performance or
collection.
Section 3. Guaranty Absolute. The liability of Guarantor under this Guaranty
shall be absolute, unconditional and irrevocable, and nothing whatever except
actual full payment to Beneficiary of the Guaranteed Obligations (and all other
debts, obligations and liabilities of Guarantor under this Guaranty) shall
operate to discharge Guarantor's liability hereunder.
-2-
Without limiting the generality of the foregoing, Guarantor's liability
hereunder shall be unaffected by:
(a) The occurrence or continuance of any event of bankruptcy, reorganization or
insolvency with respect to Consumers, or any disallowance of all or any portion
of any claim by Beneficiary, its successors or permitted assigns in connection
with any such proceeding or in the event that all or any part of any payment is
recovered from Beneficiary as a preference payment or fraudulent transfer under
the Federal Bankruptcy Code or any applicable law, or the dissolution,
liquidation or winding up of Guarantor or Consumers;
(b) Any amendment, supplement, reformation or other modification of the Asset
Sale Agreement;
(c) The exercise, non-exercise or delay in exercising, by Beneficiary or any
other Person, of any of their rights under this Guaranty or the Asset Sale
Agreement;
(d) Any change in time, manner or place of payment of, or in any other terms of,
all or any of the Guaranteed Obligations or any other amendment or waiver of, or
any consent to depart from, the Asset Sale Agreement or any other agreement,
document or instrument relating thereto;
(e) Any permitted assignment or other transfer of rights under this Guaranty by
Beneficiary, or any permitted assignment or other transfer of the Asset Sale
Agreement including any assignment as security for financing purposes;
(f) Any merger or consolidation into or with any other entity, or other change
in the corporate existence or cessation of existence of, Consumers or Guarantor;
(g) Any change in ownership or control of Guarantor or Consumers;
(h) Any sale, transfer or other disposition by Guarantor of any direct or
indirect interest it may have in Consumers;
(i) The inaccuracy of any of the representations and warranties of Consumers
under the Asset Sale Agreement;
(j) The absence of any notice to, or knowledge by, Guarantor of the existence or
occurrence of any of the matters or events set forth in the foregoing clauses;
(k) The failure to create, preserve, validate, perfect or protect any security
interest granted to, or in favor of, any Person;
(l) Any substitution, modification, exchange, release, settlement or compromise
of any security or collateral for or guaranty of any of the Guaranteed
Obligations or failure to apply such security or collateral or failure to
enforce such guaranty;
-3-
(m) Except as provided in Section 4(d), the existence of any claim, set-off, or
other rights which Guarantor or any Affiliate thereof may have at any time
against Beneficiary or any Affiliate thereof;
(n) The genuineness, validity, regularity, or enforceability of this Guaranty,
the Asset Sale Agreement or any other agreement, document or instrument related
to the transactions contemplated hereby or thereby; and
(o) Any other circumstances which might otherwise constitute a defense to, or
discharge of, Guarantor or Consumers in respect of the Guaranteed Obligations or
a legal or equitable discharge of Consumers in respect thereof, including, a
discharge as a result of any bankruptcy or similar law.
Section 4. Waiver. In addition to waiving any defenses to which clauses (a)
through (o) of Section 3 may refer:
(a) Guarantor hereby irrevocably, unconditionally and expressly waives, and
agrees that it shall not at any time insist upon, plead or in any manner
whatsoever claim or take the benefit or advantage of, any appraisal, valuation,
stay, extension, marshaling of assets or redemption laws, or exemption, whether
now or at any time hereafter in force, which may delay, prevent or otherwise
affect the performance by Guarantor of its obligations under, or the enforcement
by Beneficiary of, this Guaranty;
(b) Guarantor hereby irrevocably, unconditionally and expressly waives all
notices, diligence, presentment and demand of every kind (whether for nonpayment
or protest or of acceptance, maturity, extension of time, change in nature or
form of the Guaranteed Obligations, acceptance of security, release of security,
composition or agreement arrived at as to the amount of, or the terms of, the
Guaranteed Obligations, notice of adverse change in Consumers' financial
condition, or any other fact which might materially increase the risk to
Guarantor hereunder) with respect to the Guaranteed Obligations which are not
specifically required to be given by Beneficiary to Guarantor in the Asset Sale
Agreement, and any other demands whatsoever which are not specifically required
to be given by Beneficiary to Guarantor in the Asset Sale Agreement, and waives
the benefit of all provisions of law which are in conflict with the terms of
this Guaranty; provided, however, that Beneficiary agrees that all payment
demands under this Guaranty shall be in writing and shall specify in what manner
and what amount Consumers has failed to pay and an explanation of why such
payment is due, with a specific statement that Beneficiary is calling upon
Guarantor to pay under this Guaranty. The payment demand shall also include the
bank account and wire transfer information to which the funds should be wire
transferred;
(c) The Guarantor hereby irrevocably, unconditionally and expressly waives
promptness, diligence, notice of acceptance and any other notice with respect to
any of the Guaranteed Obligations and the delivery, acceptance, performance,
default or enforcement of this Guaranty and any requirement that Beneficiary
-4-
protect, secure or perfect any security interest or exhaust any right or first
proceed against Consumers or any other person or entity or any other security;
and
(d) Until payment and satisfaction in full of all Guaranteed Obligations,
Guarantor irrevocably, unconditionally and expressly waives (i) any right it may
have to bring in a case or proceeding against Consumers by reason of Guarantor's
performance under this Guaranty or with respect to any other obligation of
Consumers to Guarantor, under any state or federal bankruptcy, insolvency,
reorganization, moratorium or similar laws for the relief of debtors or
otherwise; (ii) any subrogation to the rights of Beneficiary against Consumers
and any other claim against Consumers which arises as a result of payments made
by Guarantor pursuant to this Guaranty, until the Guaranteed Obligations have
been paid in full and such payments are not subject to any right of recovery;
and (iii) any setoffs or counterclaims against Beneficiary which would otherwise
impair Beneficiary's rights against Guarantor hereunder, except Guarantor shall
be entitled to set off any claims that Consumers may have against the
Beneficiary under the Asset Sale Agreement. If any amount shall be paid to
Guarantor on account of such subrogation rights at any time when all the
Guaranteed Obligations shall not have been paid in full, such amount shall be
held in trust for the benefit of Beneficiary and shall forthwith be paid to
Beneficiary to be applied to the Guaranteed Obligations.
Section 5. Representations and Warranties. Guarantor hereby represents and
warrants as follows:
(a) Guarantor is a corporation duly organized and validly existing under the
laws of Michigan.
(b) Guarantor has full corporate power, authority and legal right to execute and
deliver this Guaranty and to perform its obligations hereunder.
(c) This Guaranty has been duly authorized, executed and delivered by Guarantor.
(d) This Guaranty constitutes the legal, valid and binding obligation of
Guarantor enforceable against Guarantor in accordance with its terms.
(e) The execution and delivery by Guarantor of this Guaranty and the performance
by Guarantor of its obligations hereunder will not (i) conflict with or result
in any breach of any provisions of Guarantor's certificate of incorporation or
bylaws (or other similar governing documents); (ii) conflict with or result in
any breach of any provision of any law applicable to Guarantor or the
transactions contemplated hereby; (iii) result in a breach of or constitute a
default (or give rise to any right of termination, cancellation or acceleration)
under any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, lease, agreement or other instrument or obligation to which Guarantor
is a party or by which it or its assets or property are bound; or (iv) require
any consent, approval, permit or
-5-
authorization of, or filing with or notification to, any governmental or
regulatory authority.
(f) No action, suit or proceeding at law or in equity or by or before any
governmental authority or arbitral tribunal is now pending or, to the best
knowledge of Guarantor, threatened against Guarantor that would reasonably be
expected to have a material adverse effect on Guarantor's ability to pay and
perform its obligations under this Guaranty.
(g) Guarantor's obligations under this Guaranty are not subject to any offsets
or claims of any kind against Consumers, Beneficiary or any of their respective
Affiliates.
(h) It is not and shall not be necessary for Beneficiary to inquire into the
powers of Consumers or the officers, directors, partners, trustees or agents
acting or purporting to act on Consumers' behalf pursuant to the Asset Sale
Agreement and any Guaranteed Obligations made or created in reliance upon the
professed exercise of such powers shall be guaranteed hereunder to the extent
made or created in accordance with the terms of the Asset Sale Agreement.
Section 6. Continuing Guarantee. This Guaranty is a continuing guaranty and
shall remain in full force and effect until all Guaranteed Obligations have been
paid and performed in full. This Guaranty shall continue to be effective, or be
reinstated, as the case may be, if at any time payment, or any part thereof, of
any of the Guaranteed Obligations by Guarantor is rescinded and returned by
Beneficiary to Guarantor upon the insolvency, bankruptcy, dissolution,
liquidation or reorganization of Consumers or Guarantor, or upon or as a result
of the appointment of a receiver, intervenor or conservator of, or trustee or
similar officer for, Consumers, Guarantor or any substantial part of their
respective properties, or otherwise, all as though such payments had not been
made. Guarantor agrees, upon the written request of Beneficiary, to execute and
deliver to Beneficiary any additional instruments or documents necessary or
advisable from time to time, in the reasonable and good faith opinion of
Beneficiary, to cause this Guaranty to be, become or remain valid and effective
in accordance with its terms.
Section 7. Amendments; Waivers; Etc. Neither this instrument nor any terms
hereof may be changed, waived, discharged or terminated orally, but only by an
instrument in writing signed by Beneficiary and Guarantor. No delay or failure
by Beneficiary to exercise any remedy against Consumers or Guarantor shall be
construed as a waiver of that right or remedy. No failure on the part of
Beneficiary to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right hereunder preclude any other or further exercise thereof or the exercise
of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by any applicable law.
Section 8. Severability. In the event that the provisions of this Guaranty are
claimed or held to be inconsistent with any other instrument evidencing or
securing the Guaranteed Obligations, the terms of this Guaranty shall remain
fully valid and effective. If any one or more
-6-
of the provisions of this Guaranty should be determined to be illegal or
unenforceable, all other provisions shall remain effective.
Section 9. Assignment.
(a) Assignability. Guarantor shall not have the right to assign any of
Guarantor's rights or obligations or delegate any of its duties under this
Guaranty without the prior written consent of Beneficiary. Guarantor shall
remain liable under this Guaranty, notwithstanding assumption of this Guaranty
by a successor or assign, unless and until released in writing from its
obligations hereunder by Beneficiary. Beneficiary may, at any time and from time
to time, assign, in whole or in part, its rights hereunder to any Person to whom
Beneficiary has the right to assign its rights or obligations under and pursuant
to the terms of the Asset Sale Agreement, whereupon such assignee shall succeed
to all rights of Beneficiary hereunder.
(b) Successors and Assigns. Subject to Section 9(a) hereof, all of the terms of
this instrument shall be binding upon and inure to the benefit of the parties
hereof and their respective permitted successors and assigns.
Section 10. Address for All Notices. All notices and other communications
provided for hereunder shall be given and effective in accordance with the
notice requirements of the Asset Sale Agreement and if to Guarantor, at the
following address:
Attn:
Telecopy:
with a copy to:
Telecopy:
Section 11. Governing Law. This Guaranty shall be governed by and construed in
accordance with the law of the State of Michigan (without giving effect to
conflict of law principles) as to all matters, including but not limited to
matters of validity, construction, effect, performance and remedies. THE PARTIES
HERETO AGREE THAT VENUE IN ANY AND ALL ACTIONS AND PROCEEDINGS RELATED TO THE
SUBJECT MATTER OF THIS GUARANTY SHALL BE IN THE UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF MICHIGAN. THE FOREGOING COURT SHALL HAVE EXCLUSIVE
JURISDICTION FOR SUCH PURPOSES, AND THE PARTIES HERETO IRREVOCABLY SUBMIT TO THE
EXCLUSIVE JURISDICTION OF SUCH COURT AND IRREVOCABLY WAIVE THE DEFENSE OF AN
INCONVENIENT FORUM TO THE MAINTENANCE OF ANY SUCH ACTION OR PROCEEDING. SERVICE
OF PROCESS MAY BE MADE IN ANY MANNER RECOGNIZED BY SUCH COURT. EACH OF THE
PARTIES HERETO IRREVOCABLY WAIVES ITS RIGHT TO A JURY TRIAL WITH
-7-
RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH
THIS GUARANTY OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 12. Entire Agreement. This writing is the complete and exclusive
statement of the terms of this Guaranty and supersedes all prior oral or written
representations, understandings, and agreements between Beneficiary and
Guarantor with respect to the subject matter hereof. Guarantor agrees that there
are no conditions to the full effectiveness of this Guaranty.
REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK
-8-
IN WITNESS WHEREOF, Guarantor has duly caused this Guaranty to be executed and
delivered as of the date first written above.
CMS ENERGY CORPORATION
By:
---------------------------------
Name:
Title:
SCHEDULES TO
ASSET SALE AGREEMENT
by and among
CONSUMERS ENERGY COMPANY,
as Seller
and
ENTERGY NUCLEAR PALISADES, LLC,
as Buyer
Dated as of July 11, 2006
TABLE OF CONTENTS
Schedule Description
1.1(26) Book Value
2.1(a) Description of Real Property
2.1(b) Description of Personal Property
2.1(l) ANI and AEC Insurance Policies and Indemnity Agreements
Included in the Included Assets
2.1(m) Radio Licenses
2.1(n) Pending Causes of Action
2.1(q) Emergency Equipment Easements and List of Emergency Sirens
2.2(o) Excluded Contracts
3.3(a)(4) Capital Budget
3.3(a)(5) Decrease in Purchase Price
4.3(a) Seller's Third Party Consents
4.3(b) Seller's Required Regulatory Approvals
4.6 Exceptions Related to Insurance
4.7 Environmental Matters
4.8 Labor Matters - Collective Bargaining Agreements and Other
Written Labor Agreements
4.9(a) Benefit Plans
4.9(e) Benefit Plan Exceptions
4.11(a)(i) Seller's Agreements
4.11(a)(ii) Fuel Contracts
4.11(b) Material Breaches
4.12 Legal Proceedings
4.13(b) Permits
4.14(b) NRC Licenses
4.16 Tax Matters
4.17 Tax and Financial Matters Relating to the Qualified
Decommissioning Fund
4.18 Exceptions to Ownership of Intellectual Property
4.19 Zoning Classification
5.3(a) Buyer's Third Party Consents
5.3(b) Buyer's Required Regulatory Approvals
6.10(a) Transferred Employees
6.10(g) Actuarial Assumptions
INTRODUCTION
The Schedules to the Asset Sale Agreement are set forth on the following pages.
These Schedules relate to certain matters concerning the disclosures required
and transactions contemplated by the Agreement. These Schedules are qualified in
their entirety by reference to specific provisions of the Agreement, and are not
intended to constitute, and shall not be construed as constituting, any
representation or warranty of Seller except as and to the extent expressly
provided in the Agreement. These Schedules are not intended to constitute, and
shall not be construed as an admission or indication that any such matter is
required to be disclosed, nor shall such disclosure be construed as an admission
or indication that such information would be material or would have a Material
Adverse Effect. Such additional matters are set forth for informational purposes
only. No disclosure in these Schedules relating to any possible breach or
violation of any agreement or Law shall be construed as an admission or
indication that any such breach or violation exists or has actually occurred.
The schedule headings contained in the Schedules are solely for the purpose of
reference, are not part of the agreement of the Parties and shall not in any way
affect the meaning or interpretation of the Agreement.
The date of all Schedules is the date of the Agreement, unless otherwise
indicated.
SCHEDULE 1.1(26)
Book Value - Nuclear Fuel and Nuclear Fuel Inventories
The following is the methodology used by Seller to calculate the Book Value of
the Nuclear Fuel and Nuclear Fuel Inventories, in accordance with GAAP,
consistently applied:
1. Additions
a. For purposes of accumulating costs, all invoices for purchases of uranium,
conversion, enrichment and fabrication services will be treated as additions to
the balance of Nuclear Fuel when materials are paid for, consistent with the
Seller's past practices.
b. No Taxes will be treated as additions to the balance of Nuclear Fuel.
c. Termination fees related to Nuclear Fuel contracts shall not be treated as
additions to the balance of Nuclear Fuel, regardless of the Seller's past
practices.
d. AFUDC and capitalized interest charges will be applied to the applicable
balance of Nuclear Fuel in process consistent with the Seller's past practices.
2. Subtractions
a. Accounting for the consumption of Nuclear Fuel will be based upon
amortization rates determined consistent with the Seller's past practices.
b. Any revisions to the Seller's "Palisades Nuclear Power Plant Nuclear Fuel
Forecast" or similar documents which provide the basis for Nuclear Fuel
amortization and the associated amortization factors will be prepared and
implemented in a manner consistent with past practice and will be provided to
the Buyer when available.
c. The amortization factors will be applied to the actual plant output on a
monthly basis to determine the reduction to the Book Value of the Nuclear Fuel.
[continued on next page]
3. Other
a. The Seller's calculation of its May 31, 2006 Book Value of its Nuclear Fuel
inventory using the above methodology is set forth in the following table:
Palisades Nuclear Fuel Book Value Balance of Nuclear Fuel Inventory
As of May 31, 2006
Item Amount
- ---- ---------------
Nuclear Fuel Materials In-Process (at cost)
Natural Uranium $ 3,105,350.56
Conversion $ 592,701.05
Enrichment $ 4,008,810.38
Cost of Fabrication $ 31,583.00
AFUDC and/or Capitalized Interest $ 0.00
Total $ 7,738,444.99
Nuclear Fuel Materials In-Stock (at cost) $ 0.00
Nuclear Fuel Assemblies $ 0.00
Accumulated Amortization of Nuclear Fuel (0.00)
Total $ 0.00
Nuclear Fuel Materials In-Reactor (at cost)
Nuclear Fuel Assemblies $ 99,627,602.63
Spent Nuclear Fuel Assemblies $ 0.00
Accumulated Amortization of Nuclear Fuel (40,083,534.48)
Total $ 59,544,068.15
Book Value of Nuclear Fuel $ 67,282,513.14
SCHEDULE 2.1(a)
Description of Real Property - Palisades Assets
A parcel of land in Sections 4 and 5, Township 2 South, Range 17 West, Covert
Township, Van Buren County, Michigan, more particularly described as follows:
Beginning at the Southeast 1/4 corner of said Section 5; thence N 00 degrees
06'00" E, along the East line of said section, 405.69 feet; thence N 89 degrees
13'40" W 2659.12 feet; thence N 89 degrees 17'57" W 1723.14 feet, to the East
line of Glenwood Road; thence along said East line of Glenwood Road the
following two courses: N 35 degrees 57'05" W 16.52 feet and N 30 degrees 53'07"
E 27.75 feet, to the Easterly extension of the line between Lots 19 and 20 of
Block 2 of Dean's Addition to Palisades Park per the plat thereof as recorded in
Liber 3 of Plats, Page 4, Van Buren County Records (which plat was partially
vacated by instrument recorded in Liber 585, Pages 903-906, Van Buren County
Records); thence N 66 degrees 47'28" W 155.22 feet, to the Northeast corner of
Lot 4 of said Dean's Addition to Palisades Park; thence S 23 degrees 47'15" W
50.00 feet, to the Southeast corner of said Lot 4; thence N 66 degrees 47'28" W
130.00 feet, to the Southwest corner of said Lot 4; thence N 23 degrees 47'15" E
50.00 feet, to the Northwest corner of said Lot 4 and the point of beginning of
an intermediate traverse line, this point being S 66 degrees 47'28" E 57 feet
(more or less) from the Ordinary High Water Mark of Lake Michigan; thence N 23
degrees 19'25" E, along said intermediate traverse line, 5079.91 feet, to the
point of ending of said intermediate traverse line, this point being S 88
degrees 58'20" E 121 feet (more or less) from the Ordinary High Water Mark of
Lake Michigan; thence S 88 degrees 58'20" E 1448.14 feet, to the centerline of
old Blue Star Highway (now vacated); thence Southerly on a curve to the left,
along said centerline of vacated old Blue Star Highway, 659.45 feet (said curve
having a radius of 3819.80 feet, a delta angle of 09 degrees 53'30" and a chord
of 658.63 feet bearing S 02 degrees 23'07" W); thence S 88 degrees 58'20" E
1212.82 feet, to the East line of said Section 5; thence S 89 degrees 03'50" E
860.50 feet, to Westerly line of "Rest Area" as recorded in Liber 620, Pages
119-121, Van Buren County Records; thence along said Westerly line of "Rest
Area" the following 7 courses: Southerly on a curve to the left 454.80 feet
(said curve having a radius of 1910.08 feet, a delta angle of 13 degrees 38'33"
and a chord of 453.73 feet bearing S 02 degrees 55'53" E), S 09 degrees 47'50" E
275.00 feet, S 88 degrees 58'05" E 140.00 feet, S 01 degrees 01'55" W 387.00
feet, S 88 degrees 58'05" E 33.67 feet, S 17 degrees 42'10" W 68.90 feet, and S
88 degrees 58'05" E 31.32 feet, to the Westerly right-of-way line of Highway
I-196; thence along said Westerly right-of-way line of Highway I-196 the
following two courses: S 17 degrees 42'10"W 2788.56 feet and Southerly on a
curve to the right 765.03 feet (said curve having a radius of 11,309.16 feet, a
delta angle of 03 degrees 52'33" and a chord of 764.88 feet bearing S 19 degrees
38'26" W), to the South line of said Section 4; thence N 88 degrees 55'33" W,
along said South section line, 8.01 feet to the point of beginning.
Note: Bearings used in the preceding description are based on the Michigan State
Plane Coordination System South Zone.
Note: The land described hereinabove above includes certain platted land,
described as Lot 4 of Block 2 of Dean's Addition to Palisades Park.
ALSO, any land lying between the West line of the aforesaid Lot 4 of Block 2 of
Dean's Addition and the shore of Lake Michigan, and any land lying between the
hereinabove described intermediate traverse line and the shore of Lake Michigan,
if, as and to the extent Grantor has any right, title or interest therein.
All containing 469 acres, more or less.
Together with easement granted by the State of Michigan, Department of
Conservation, to Consumers Power Company by instrument dated January 17, 1968,
recorded in Liber 570 at Page 271, Van Buren County Records, covering premises
in Section 5, T2S, R17W, Covert Township, Van Buren County, as set forth
therein.
Description of Real Property - Big Rock ISFSI Assets
A parcel of land in the West 1/2 of Section 8 and the North 1/2 of the Northwest
1/4 of Section 17, Township 34 North, Range 7 West, Hayes Township, Charlevoix
County, Michigan, more particularly described as follows:
To find the point of beginning of this description, commence at a Consumers
Power Company marker at the Southwest corner of said Section 8; run thence N 00
degrees 05'57" W, along the West line of said section, 580.70 feet; thence N 89
degrees 58'47" E 91.20 feet to a 1/2" rod, being the POINT OF BEGINNING of this
description; thence N 00 degrees 05'21" W 2177.62 feet to a 1/2" rod; thence N
89 degrees 56'29" E 2124.65 feet to a 1/2" rod; thence S 00 degrees 03'57" E
2179.05 feet to a 1/2" rod; thence S 89 degrees 58'47" W 744.25 feet to a 1/2"
rod; thence S 25 degrees 00'34" E 919.08 feet to a 1/2" rod; thence Southerly
167.07 feet along the arc of a 384.84-foot radius curve to the right (said curve
having a central angle of 24 degrees 52'28" and a chord bearing S 12 degrees
34'20" E 165.77 feet) to a 1/2" rod; thence S 00 degrees 08'06" E 249.41 feet to
a 1/2" rod on the Northwesterly right-of-way line of Highway U.S.-31; thence S
29 degrees 42'25" W, along said highway right-of-way line, 80.38 feet to a 1/2"
rod; thence N 00 degrees 08'06" W 319.13 feet to a 1/2" rod; thence Northerly
149.71 feet along the arc of a 344.84-foot radius curve to the left (said curve
having a central angle of 24 degrees 52'28" and a chord bearing N 12 degrees
34'20" W 148.54 feet) to a 1/2" rod; thence N 25 degrees 00'34" W 937.73 feet to
a 1/2" rod; thence S 89 degrees 58'47" W 1335.38 feet to the POINT OF BEGINNING.
Containing 107.486 acres, more or less.
SCHEDULE 2.1(b)
Description of Personal Property - Palisades Assets
CARS & TRUCKS
The following listed cars and trucks:
Consumers
Energy
Unit
Number
Unit
Model
Year
Vehicle Identification
Number (VIN) Unit Description
6288 1998 2G1WL52M9W9254442 Chevrolet Lumina 4Dr Sedan
6390 2000 2G1WL52JXY1288803 Chevrolet Lumina 4Dr Sedan
22045 1995 1GTEC14Z0SZ545951 GMC 1/2 ton Pick up 2WD
22391 1991 1GTDC14Z1ME528999 GMC 1/2 ton Pick up 2WD
22504 1994 1GKEK18K7RJ733511 GMC 1/2 ton Suburban 4WD
23008 1998 1FDXE40SXWHA61595 Ford 25 Passenger Shuttle Bus
23018 1998 1FDXE40S1WHA61596 Ford 25 Passenger Shuttle Bus
23035 1995 1GTHG35K5SF511925 GMC 1 ton full-size office van (Emerg.Van)
23069 * 1999 1GCHG35R0X1112003 Chevrolet 1 ton full-size cargo van
23095 1995 1GTHG35K7SF546143 GMC 1 ton Full size Cargo van
23505 1995 1FTFS24H9SHB59605 Ford 3/4 ton Ext Length Full size Van
23807 1998 1FDJE30L1VHC09852 Ford 14 Passenger Shuttle Bus
23835 1995 1GTHG35K2SF511946 GMC 2WD Full size Van W/ Compts
24064 1994 1GCCS1443RK156240 Chevrolet Compact Pickup 2WD
25048 1998 2B4GP4533WR836594 Dodge Caravan
28011 1991 1FTHF25H6MLA46125 FORD 3/4 ton Pick up 2WD
28039 1989 1GTFC24K0KE540253 GMC 3/4 ton Pick up 2WD
28104 1994 1FTEF25H1RNB46308 FORD 3/4 ton Pick up 2WD
28548 1998 1GTGK29R8WE547230 GMC 3/4 ton Pickup Ex Cab 4WD
29035 1995 1GTHK34K9SZ538978 GMC 1 ton Pick up 4WD
29208 1988 1B7KD345XJS772094 DODGE 1 ton Pick up 2WD
38041 * 2001 1GCHK24U61Z290425 CHEVROLET 3/4 ton Pick up 4WD
59583 1993 1GDKC34F4PJ504969 GMC Sierra 1 ton Stake Rack Bed w / Lift gate
81102 1981 1GDR7D4D0BV561550 GMC- Modified Flat Bed Chassis-Cask movement
83018 * 1998 1HTSCAAMXWH556059 International 4700 - 24' Flat Bed
83070 1980 T17DBAV605036 GMC - 16' Flat Bed with Stake Racks
86012 * 1992 1HTSDNZN3NH431484 International - Flat bed with Deck Winch
* Note: The vehicles indicated by an asterisk above are currently leased by
Seller from BLC Corporation under Amended and Restated Master Leasing
Agreement dated as of August 20, 1979. As between Seller and Buyer, prior
to Closing, Seller shall, as to each of those vehicles, have the option
either to: (i) purchase, or arrange to be purchased, the applicable vehicle
from the lessor, in which case the applicable vehicle will remain on this
Schedule 2.1(b); or (ii) remove the applicable vehicle from this Schedule
2.1(b) and instead add to Schedule 4.11(a)(i) ("Seller's Agreements") the
aforesaid lease insofar and only insofar as its covers and applies to the
applicable vehicle and also add to Schedule 4.3(a) ("Seller's Third Party
Consents") any consent that Seller deems necessary for assignment to Buyer
of such lease insofar and only insofar as it applies to the applicable
vehicle.
OTHER VEHICLES AND LARGE MOBILE POWERED EQUIPMENT
The following listed other vehicles and/or large mobile power equipment:
Unit Model
Year Serial Number Unit Description
3DW-170-FS 2000 VIN 40FW04369N1009747 Talbert- 170 Ton "Cask Mule"- DFS Cask
Trailer
RT518 44805 Mobile Hydraulic Crane- Grove 18Ton
RT530E 222078 Mobile Hydraulic Crane- Grove RT-530E (30Ton)
WA-65-3 HA 940711 Komat'su 65- Utility Fork Lift/ Sweeper/ Plow/Bucket Tractor
TH83 3RN00939 CAT- Model TH83 Fork Lift
0500-Y50 Y355- 12644323 Fork Lift- Clark 2100#
MA01L58 MA01-003462 Fork Lift- Nissan 3000#
B-30-TE/S 324-311-5105-15 Fork Lift- Baker 3000#
C500-Y50 Y355-0210-5465A Fork Lift- Clark 5000#
C500-Y50 Y355-0209-5465FA Fork Lift- Clark 5000#
VC60C Z89W00805 Fork Lift- Caterpillar 6000#
C500-YS80 Y685-178-5165 Fork Lift- Clark 8000#
GPL 40 1CM01084 Fork Lift- Caterpillar 8000#
CGP 55 CGP460L-0123-9486FB Fork Lift- Clark 10,000#
GLP-100 MLINGDV087 C813D02797X Fork Lift- Yale 10,000#
600AJ 1999 081503 0300039589 Manlift- JLG- 60'- w/Articulating Arm
Z20/8N 1998 695 Manlift- Genie- 20' Electric
355 355-3527 Tennant Sweeper
7200 7200-6414 Tennant Sweeper
COMPUTER EQUIPMENT
The following listed computer equipment:
Palisades Servers
Server Name - Model Quantity Description/Function
PLAS01 - ML370 G2 1 Knowledgebase no support contract
PLAS02 - ML370 G2 1 Crystal Server
PLDT02 - DL380G2 1 Oracle and web test, Audit Wizard, Vanguard.
PLPWNT10 - ML370 G2 1 SQL 2000 test WinCDMS
PLWS01 - DL380G2 1 Intranet
PLPWNT03 - PL 7000 1 PCDocs Sybase-production RECTrak, DOCTrak (DCR Log).
PLPWNT04 - PL 1600 1 Oracle running ASC Track Bar-coding application
PLEM01 - ML570 1 EMPAC Server
PLEM02 - ML530 1 EMPAC Server
PLEM03 - ML530 1 EMPAC Server
PLEM06 - ML570 1 EMPAC Server
PLPWNT01 - ML570 1 Receives CMS data modifies it & sends it to EMPAC server.
PLPWNT05 - PL 5500 1 Sybase-production PIF, WRG, EAR
PLTR01 - DL380G2 1 In use for Gothic, FDS, Sapphire, and MAAP
PLAS10 - DL380G3 1 Windows 2003 Application server, PI, Myriad
PLDB01 - DL380G3 1 Windows 2003 Database server Oracle
PLDB02 - DL380G3 1 Windows 2003 Database server MS SQL
PLPS10 - DL380G3 1 Windows 2003 Print Utility server RADIUS, Marimba
PLRS10 - DL380G3 1 Windows 2003 Resource server Home, Profiles, Team shares
PLBU10 - DL380G3 1 Windows 2003 Veritas BE 10 Backup server
ENDC13 - DL380G3 1 Windows 2003 Site Domain Controller
PLSP01 - DL360G3 1 Windows 2003 SharePoint server
PLSP02 - DL380 G3 1 Windows 2003 SharePoint Server MS SQL\
PLTE02 - DL380G4 1 Windows 2003 Total Exposure server, Passport
PALSTG01 - GX270, Dell 1 Consumers Image Stager box for IMPACT PCs on-site.
Spare - DL380G3 1
Spare - DL380G3 1
Spare - DL380G3 1
UNIX Servers
Server Name - Model Quantity Description/Function
DA-64BAA-xx 2 Alpha Server ES40 667, model 2, 0GB Tru64
KN610-BB 2 667 SMP Tru64 upgrade
MS610-DA 8 1-GB memory option (4 x 256-MB DIMMs)
BA61R-RM 2 Rack kit for Alpha Server ES40
286778-B22 12 72.8-GB Ultra3 SCSI 15,000 rpm 1-inch Universal disk drive
2 S510 15 inch (13.8 inch viewable)
SN-PBXGK-BB 2 ELSA Gloria Synergy graphics with 8 MB SGRAM
DS-KZPCC-AC 2 PCI 1-port PCI to Ultra2, 64-bit, LVD backplane RAID
204404-001 2 Compaq UPS R1500 XR
Personal Computers
Name Model Type Count
Dell, Inc. OptiPlex GX260 Mini Tower 138
Dell, Inc. OptiPlex GX270 Space-Saving 83
Dell, Inc. OptiPlex GX280 Mini Tower 75
Dell, Inc. Latitude D600 Portable, Docking Station 72
Dell, Inc. Latitude 110L Portable 64
Dell, Inc. OptiPlex GX150 Mini Tower 50
Dell, Inc. OptiPlex GX270 Mini Tower 41
Dell, Inc. Latitude C610 Portable, Docking Station 39
Dell, Inc. Latitude C640 Portable, Docking Station 38
Dell, Inc. Latitude C610 Portable 25
Dell, Inc. Latitude D600 Portable 24
Dell, Inc. Latitude D610 Portable, Docking Station 21
Dell, Inc. OptiPlex GX280 Space-Saving 10
Dell, Inc. OptiPlex GX150 Notebook 7
Dell, Inc. Latitude C640 Portable 6
Dell, Inc. Latitude C400 Portable 5
Dell, Inc. Latitude D610 Portable 5
Dell, Inc. Precision WorkStation 340 Mini Tower 4
Dell, Inc. Latitude X300 Portable, Docking Station 3
Dell, Inc. Latitude C400 Portable, Docking Station 2
Dell, Inc. Latitude 110L 2
Dell, Inc. Latitude C640 1
Dell, Inc. OptiPlex GX1 450MTbr+ Mini Tower 1
Dell, Inc. OptiPlex GX150 1
Dell, Inc. Latitude D810 Portable, Docking Station 1
Dell, Inc. Latitude CPx H500GT Portable, Docking Station 1
Dell, Inc. Latitude D400 Portable, Docking Station 1
Dell, Inc. OptiPlex GX150 Tower 1
Dell, Inc. OptiPlex GX260 1
Simulator Computer Components
- - 4 Dell Simulator PCs
- - 2 Dell Instructor station PCs
- - 2 Dell Engineering Workstation PCs
- - 1 rack mounted PC based Digital Electro-Hydraulic Control System (DEH)
- - 1 rack mounted PC based Thermal Margin Monitor System (TMM)
- - 5 VAX Station for the Plant Process Computer (PPC)
Plant Process Computing Inventory (PPC Inventory)
Equipment Name Component Description
VAX001 Server Main computer for PPC applications
VAX002 Workstation Backup computer for PPC apps.
OPCON1 Workstation User interface in Control Room
OPCON2 Workstation User interface in Control Room
OPCON3 Workstation User interface in Control Room
TSCCON Workstation User interface in Tech Support Center
CMSCON Workstation User interface and PI interface
JUSTME Workstation PPC Development System
XTERMCR X-terminal User interface in Control Room
XTERMEOF X-terminal User interface in Emerg Ops Center
Security Computing Inventory
Equipment Name Component Description
Pegasys Host Main Security Access Computer
Pegasys Host(Spare) Main Security Access Computer
Pegasys Workstation User interface in Secondary Alarm Station
Pegasys Workstation User interface in Identification Station
Pegasys Workstation User interface in Access Authorization
Pegasys Workstation User interface in Access Authorization
WinBadge Host Badging system
Recognition Systems Host Hand Geometry System
Mark XL Workstation Video Capture for BRP Security alarm system
Mark XL Host Perimeter Video Capture
Mark XL Workstation Perimeter Video Capture
Mark XL Workstation Perimeter Video Capture
MKY Omega Workstation OCA video capture
MKY Omega Workstation OCA video capture
MKY Omega Workstation OCA video capture
MKY Omega Workstation OCA video capture
Network Equipment Inventory
Equipment Quantity
Catalyst 6509 Switch 1
Catalyst 6513 Switch 1
Catalyst 4006 Switch 6
Catalyst 6006 Switch 2
Catalyst 3548 Switch 6
Catalyst 2950 Switch 2
Catalyst 2924 Switch 3
Cisco Terminal Router 1
Content Engine 507 3
2600 Router 2
1760 Router 1
1000BASE-SX Short Wavelength GBIC 57
16 port 1000mb GBIC FX Ethernet Card 2
48 port 10/100 RJ-45 Ethernet Card 23
48-port 10/100, Upgradable to Voice, Enh QoS card 6
Catalyst 4000 48-Port GE Module, 10/100/1000 Base-T (RJ45) 8
Cisco 1000Base-Lx/Lh Gbic 10
Cisco Catalyst 3550 Switch 2
Cisco Catalyst 3550 Switch 6
Catalyst 6000 16-Port Gig-Ethernet Mod 2
Cisco Catalyst 3550 Switch 1
Cisco Catalyst 3550 Switch 1
Apc Smart-Ups 3000Va 2
Apc Smart-Ups Rt 5000Va 1
Cisco 1000Btx-Gbic 3
Catalyst 2940 8 Port 10/100 1
Cisco Ethernet Sfp Long Haul Transceiver Lc Connector 1
Cisco Catalyst 3560 48 10/100/1000 2
Cisco Ge Sfp Lc Connector Sx 4
Cisco Catalyst 6000 48 Port 10/100 Rj45 Module 1
Catalyst 4006 Supervisor Ii 1
Catalyst 6000 48 Port 10/100 Rj45 Module 2
Catalyst 4006 Supervisor Iii 1
Catalyst 6500 Supervisor Engine 2 1
Catalyst 2940 8 Port 10/100 1
Cisco 1000Base-Sx Sfp 1
Outdoor Armored Cable - Mm Fiber - 130Ft 1
Cisco Catalyst 1000Base-Sx Gbic 6
Cisco 1000Base-Sx Sfp 3
COPIERS AND OTHER MAJOR ITEMS OF OFFICE EQUIPMENT
The following listed copy machines and other major items of office equipment:
MAKE DESCRIPTION MODEL
Brother Brother INTELLFAX 2800 2800
Brother Brother INTELLFAX 2800 2800
Brother Brother INTELLFAX 2820 INTELLIFAX-2820
Brother Brother INTELLFAX 2820 INTELLIFAX-2820
Brother DCP-1000 PRINTER/COPIER DCP-1000
Brother DCP-1000 PRINTER/COPIER DCP-1000
Brother DCP-1000 PRINTER/COPIER DCP-1000
Brother DCP-1000 PRINTER/COPIER DCP-1000
Brother MFC-7820 PRINTER/COPIER/FAX MFC-7820
Brother MFC-7820 PRINTER/COPIER/FAX MFC-7820
Brother MFC-7820 PRINTER/COPIER/FAX MFC-7820
Brother MFC-7820 PRINTER/COPIER/FAX MFC-7820
Brother MFC-7820 PRINTER/COPIER/FAX MFC-7820
Brother MFC-7820 PRINTER/COPIER/FAX MFC-7820
Brother MFC-7820 PRINTER/COPIER/FAX MFC-7820
Brother MFC-7820 PRINTER/COPIER/FAX MFC-7820
DICONIX DICONIX PRINTER
HP DJ DESKJET 2200DN
HP DJ DESKJET 2200DN
HP DJ DESKJET 2200DN
HP DJ DESKJET 2200DN
HP DJ DESKJET 2200DN
HP HP 4000T PRINTER
HP HP 4000T PRINTER
HP HP 4000T PRINTER
HP HP 4000T PRINTER
HP HP 4000T PRINTER C4119A
HP HP 4000T PRINTER C4119A
HP HP 4000T PRINTER C4119A
HP HP HP6P C3980A
HP HP HP6P C3980A
HP HP HP6P C3980A
HP HP HP6P C3980A
HP HP HP6P C3980A
HP HP LASERJET 4
HP HP LJ 6LXI C3996A
HP HP LJ 6LXI C3996A
HP HP LJ 6PXI C4213A
HP HP LJ 6PXI C4213A
HP HP LJ4 PLUS
HP HP LJ4 PLUS C2037A
HP HP BUSINESS INKJET 2600
HP HP COLOR LASERJET 4600DN
HP HP COLOR LASERJET 4600DN HP4600DN
HP HP COLOR LASERJET 4600DN
HP HP COLOR LJ 4500N
HP HP DESIGNJET 1055CM PLUS C6075B
HP HP DESIGNJET 430 C4714A
HP HP DESIGNJET 5000PS
HP HP DESIGNJET 5500PS J7934A
HP HP DESIGNJET 800
HP HP DESKJET 880C C6409A
HP HP DESKJET 895CXI
HP HP LASEJET 2200DSE
HP HP LASEJET 2200DSE
HP HP LASEJET 2200DSE
HP HP LASEJET 2200DSE
HP HP LASERJET 1200
HP HP LASERJET 1200
HP HP LASERJET 1200
HP HP LASERJET 1200 C7044A
HP HP LASERJET 1200 C7044A
HP HP LASERJET 1200
HP HP LASERJET 1200
HP HP LASERJET 1200
HP HP LASERJET 2100XI C4139A
HP HP LASERJET 2100XI C4139A
HP HP LASERJET 2200D
HP HP LASERJET 4050T C4252A
HP HP LASERJET 4100 DTN
HP HP LASERJET 4100 DTN
HP HP LASERJET 4100MFP LJ4100NFP
HP HP LASERJET 4101MFP HP4101MFP
HP HP LASERJET 4250N LJ4250N
HP HP LASERJET 4250N LJ4250N
HP HP LASERJET 4250N LJ4250N
HP HP LASERJET 4250TN LJ4250TN
HP HP LASERJET 4500
HP HP LASERJET 4500
HP HP LASERJET 4500
HP HP LASERJET 4500 C4084A
HP HP LASERJET 4550 COLOR PRINT C7085A
HP HP LASERJET 4550 COLOR PRINT
HP HP LASERJET 4550N COLOR PRINTE
HP HP LASERJET 8000
HP HP LASERJET 8000
HP HP LASERJET 8550DN 8550DN
HP HP LJ 2100XI
HP HP OFFICEJET K80XI
HP HP OFFICEJET K80XI
HP HP OFFICEJET K80XI
HP HP OFFICEJET K80XI
HP HP OFFICEJET K80XI C6751A
HP HP OFFICEJET K80XI
HP HP OFFICEJET K80XI
HP HP OFFICEJET K80XI
HP OJK80XI
HP HP OFFICEJET K80XI HP OJK80XI
HP HP PHOTOSMART S20 SCANNER C5101A
HP HP SCANJET 5300CXI
HP HP SCANJET 5370CXI
HP HP SCANJET 5370CXI C8473A
HP HP SCANJET 5370CXI C8473A
HP HP SCANJET 5470CXI
HP HP SCANJET 5470CXI
HP HP SCANJET 5490CXI SJ5940CXI
HP HP SCANJET 5490CXI SJ5940CXI
HP HP SCANJET 5490CXI SJ5940CXI
HP HP SCANJET 5490CXI 5490CXI
HP HP SCANJET 5490CXI SJ5940CXI
HP HP SCANJET 6250 CXI
HP HP SCANJET 6250 CXI C6275A
HP HP SCANJET 7400C 7400C
HP HP SCANJET 7400C 7400C
HP HP SCANJET 7490C
HP HP SCANJET 7490C
Panasonic Panasonic PRINTER-KX-P2123
Panasonic Panasonic PRINTER-KX-P2123
Xerox Xerox Plotter With Large Format Scanner 8825
Xerox Xerox Large Format 510 Copy System 510
Leasehold interest only in certain Xerox equipment referenced in Schedule
4.11(a)(i) subject to applicable agreements
RADIO EQUIPMENT
Existing radio equipment covered by the licenses listed on Schedule 2.1(m).
OTHER
All of the following, as owned by Seller and physically located on
below-indicated areas of the Site (or, if no specific area is mentioned, then
located anywhere on the Site) on the Closing Date.
Expressly excluded are any of the following items belonging to vendors,
consultants, contractors, subcontractors or their personnel, or to Palisades
Employees or visitors, that may be present on the Site on the Closing Date.
(a) Inventories of Spare Parts and Materials
All inventories of spare parts and materials located in either of the two
on-Site warehouses
(b) Furniture; Office Supplies; Etc.
All desks, tables, chairs, filing cabinets, storage cabinets, cubicle
partitions, credenzas, stools, shelving, racks, blackboards/whiteboards, easels,
coat racks, wall clocks, wastebaskets, drapes, blinds, carpets/rugs and other
furnishings located within any of the permanent buildings on the Site. Also, all
stocks of paper, pencils, pens, markers, erasers, staples, ink and other
consumable office supplies, staplers, pencil sharpeners and similar minor office
tools, and first-aid kits and supplies, maintained within said buildings.
(c) Shop Tools and Equipment; Etc.
All shop tools and equipment, small portable power tools and equipment, hand
tools, ladders.
(d) Telephones and Fax Machines
All "land-line" telephones and facsimile machines located in any of the
permanent buildings on the Site. All cellular telephones and pagers that are
both (i) owned by Seller and (ii) assigned on a full time basis to Palisades
Employees.
(e) Electronic
All television sets, television monitors, videocassette recorders, security
cameras, and associated equipment.
Description of Personal Property - Big Rock ISFSI Assets
Tools At The ISFSI Quantity
1/4 inch socket sets 2
1/2 inch breaker bar and sockets 1
3/8 inch metric socket set 1
Metric allen set 1
Set insulated wrenches 1/4 thru 3/4 inch 1
Wrenches 3/8 thru 11/4 inch 1
Milwaukee 1/2 inch hyd. Impact wrench 1
3/4 inch socket set 1
5 hp air compressor 1
Milwaukee circular saw 1
Equipment at the ISFSI Quantity
Simplex Hyd. Pump 1
Small 100 Ton Simplex Hyd. Rams 4
Large 100 Ton Hyd. Rams 9
11/2 Ton Come Alongs 4
75 Ft. Lift Tower Hoses 2
55 Ton Shackle 5
20 Ft. Sling 1
24 Ft. Slings 2
27 Ft. Slings 2
Softeners 6
10 Ft.Tuflex Sling 2
Ashley Slings 11/4X12'2" 6 Part 4
Swivel 236000 1
Ram Tripod 1
Lift System Towers 2 Glga677 And 2 Glga690 Units 4
Hyd. Control Units 2
Hyd. Hoses (Hpu-3, Hpu-2, Tlh51-3) 3
Crosby Shackles 5
Lift System Supports Mod. 101414 6
Lift System Supports Mod. 101404 4
Mod. 32Pt250Lt 1
Enerpac Grapple For The Ram 1
Impact Limiter Storage Units 4
Transfer Skid Rail System 1
Lifting Device 1
Cask Thermocouples 2
Camera Pan And Tilt Unit 1
W100-Spider-Hts 1
W150-Spider-Hts 1
Enerpac Hand Pump 2Sp. 10000 Psi 3
Pack Of W100-Transfer Cask Targets 1
Pack Of W150 Overpak Targets 1
Air Mover Pads 4
Microwave Transmitters (Security) 2
Microwave Receivers (Security) 2
Tower Position Indicators 4
55 Gallon Barrels Of Rykon Iso 32 Oil 3
45' Jlg Man Lift (At ISFSI Pad) 1
Cat Skid Steer With Bucket Attachment. (At ISFSI Pad) 1
Ariens Snowblowers (At Admin. Bldg.) 2
Toro Snowblower (At Admin. Bldg.) 1
Stihl Weedwhip 1
6' Stepladder 1
10' Stepladder 1
20' Ext. Ladder 1
Bags Pad Approved Deicer (55#) 18
Chairs 28
Fire Proof File Cab. 10
Refrigerators 2
Microwaves 2
Fax Machines 2
Shredders 1
Document Filmer 1
Document Film Reader 1
Film Cartridge Cabinets 4
Copier 1
Color Printer 1
Desks 7
Round Table 1
Rect. Tables 3
Double Wide File Cab. 2 Drawer 2
Double Wide File Cab. 4 Drawer 1
Double Wide File Cab. 5 Drawer 2
2 Drawer File Cab. 4
All equipment related to security monitoring housed in the primary security
monitoring station in the ISFSI Support Building. Note: This does not include
any weapons or ammunition located in that building as those items are owned by
the security vendor.
SCHEDULE 2.1(l)
American Nuclear Insurers and Atomic Energy Commission
Insurance Policies and Indemnity Agreements Included in the Palisades Assets
Master Worker Policy Certificates of Insurance covering bodily injury to workers
caused by nuclear hazards on or after August 15, 1969 and first reported to
insurers prior to January 1, 1998 - Certificates #NW-0087 and MW-0024; and on or
after January 1, 1998 - Certificate # NW-
SCHEDULE 2.1(M)
RADIO LICENSES - PALISADES ASSETS
0566. (original master policy is in the custody of American Nuclear Insurers)
Facility Form Policy covering damages because of bodily injury and property
damage legal liability caused by the nuclear hazards at the Palisades Plant. -
Policy # NF-179. Nuclear Energy Liability Insurance Association secondary
financial protection and payment bond policy - Certificate # N-20 (original
master policy no. 1 is in the custody of the Nuclear Regulatory Commission).
Atomic Energy Commission - Indemnity Agreement # B-40 - Indemnification and hold
harmless agreement for protection to licensee for certain nuclear incidents when
Facility Form Policy and secondary financial protection limits are less than
$560 million. American Nuclear Insurers and Atomic Energy Commission
Insurance Policies and Indemnity Agreements Included in the Big Rock ISFSI
Assets Master Worker Policy Certificates of Insurance covering bodily injury to
workers caused by nuclear hazards on or after January 15, 1962 and first
reported to insurers prior to January 1, 1998 - Certificates #NW-0053 and
MW-0137; and on or after January 1, 1998. - Certificate # NW-0536. (original
master policy is in the custody of American Nuclear Insurers) Facility Form
Policy covering damages because of bodily injury and property damage legal
liability caused by the nuclear hazards at the Big Rock Point Plant. - Policy #
NF-117. Atomic Energy Commission - Indemnity Agreement # B-22 - Indemnification
and hold harmless agreement for protection to licensee for certain nuclear
incidents excess of the limits provided under the Facility Form Policy.
EFFECTIVE EXPIRATION
-----------------------
CALL SIGN RADIO SERVICE DATE DATE RADIO USE FREQ. BAND
- --------- ------------------------- ---------- ---------- --------------------------------------- ----------
KB33073 Industrial/Business 5/31/2003 5/31/2013 Portable license - Not currently in use 467.750 Mhz
Industrial/Business
KB68144 Industrial/Business 1/12/2005 3/15/2015 Portable license - security radio 158.235 Mhz
KB75452 7/16/2005 10/04/2015 Portable license - Not currently in use 467.825 Mhz
KDE717 Industrial/Business 6/9/2004 8/29/2014 Plant operations 451.150 Mhz
451.150 Mhz
456.150 Mhz
KJY423 Industrial/Business 6/4/2005 8/9/2015 From Plant to South Haven 173.350 Mhz
Conference Center link for EOF
KKA850 Industrial/Business 1/12/2005 1/31/2015 From South Haven Conference 173.350 Mhz
Center to Plant link for EOF
KNEY775 Industrial/Business 11/30/2002 2/4/2013 Plant operations 451.100 Mhz
451.425 Mhz
451.525 Mhz
451.100 Mhz
451.425 Mhz
451.525 Mhz
456.100 Mhz
456.425 Mhz
456.525 Mhz
KNIE857 Industrial/Business 6/17/2004 8/29/2014 Plant operations 451.250 Mhz
451.250 Mhz
456.250 Mhz
WPUB616 Industrial/Business 1/30/2002 1/30/2012 Early warning system 461.150 Mhz
461.150 Mhz
466.150 Mhz
WQCU444 Marine Radiolocation Land 5/26/2005 5/26/2015 Radar system 9410 Mhz
RADIO LICENSES - BIG ROCK ISFSI ASSETS
EFFECTIVE EXPIRATION
CALL SIGN RADIO SERVICE DATE DATE RADIO USE FREQ. BAND
- --------- ------------------------- ---------- ---------- --------------------------------------- ----------
WYH317 Industrial/Business 5/23/2001 3/14/2014 ISFSI Operations 158.265 Mhz
SCHEDULE 2.1(N) PENDING CAUSES OF ACTION - PALISADES AND BIG ROCK ISFSI
ASSETS
Claim against AEGIS Insurance Services related to Palisades settlement of
employment-related litigation.
Claim against insurance carrier for settled ERISA litigation.
SCHEDULE 2.1(Q)
EMERGENCY EQUIPMENT EASEMENTS AND LIST OF EMERGENCY SIRENS - PALISADES ASSETS
Emergency Equipment Easements
LIBER/PAGE WHERE
DATE OF ORIGINAL EASEMENT ORIGINAL RECORDED (VAN
INSTRUMENT GRANTOR GRANTEE EASEMENT PREMISES LOCATED IN: BUREN CO. REC.)
- ---------- ------------------------- --------- -------- --------------------------------------------------------- ------------------
4/16/1981 David J. Richards, et ux Consumers Power Secs. 19&24-T2S-R17W Covert Twp., Van Buren County L. 726, P. 616
Company
3/25/1981 Verna Priebe Consumers Power Sec. 25-T2S-R18W Covert Twp., Van Buren County Sec. L. 725, P. 451
Company
3/5/1981 Florence B. Jones Consumers Power 9-T2S-R17W Covert Twp., Van Buren County L. 724, P. 09 L.
Company
3/13/1981 Harry Sarno, et ux Consumers Power Sex. 18-T2S-R17W Covert Twp., Van Buren County 725, P. 449 L.
Company
4/6/1981 Palisades Park Country Consumers Power Secs. 7&8-T2S-R17W Covert Twp., Van Buren County 727, P. 219 L.
Club Company
5/12/1981 Jerry N. Beckwith, et ux Consumers Power Sec. 28-T1S-R17W South Haven Twp., Van Buren County 727, P. 217 L.
Company
3/17/1981 City of South Haven Consumers Power Sec. 26-T1S-R17W South Haven Twp., Van Buren County 725, P. 453
Company
3/18/1981 Southwest Michigan Consumers Power Sec. 33-T1S-R17W South Haven Twp., Van Buren County L. 727, P. 215
Council, Boy Scouts of Company
America
3/19/1981 Donald F. Walker, et ux Consumers Power Sec. 16-T1S-R17W South Haven Twp, Van Buren County L. 724, P. 11 L.
Company
6/21/1991 City of South Haven Consumers Power Secs. 2, 3, 10&15 T1S-R17W, City of South Haven, Van 0913, P. 295 L.
Company Buren County
9/3/1991 South Haven Board of Consumers Power Sec. 10-T1S-R17W City of South Haven, Van Buren 0918, P. 428
Education Company County
6/11/2002 Stockwell Properties, LLC Consumers Energy Sec. 28-T3S-R17W, Coloma Twp., Berrien County Sec. L. 2292, P. 598 L.
Company
12/29/1981 John C. and Gloria B. Consumers Power 32-T1N-R16W, Casco Twp., Allegan County 1009, P.165
Telander Company
163
Sirens List
Site Location Electric Electric
# Site Address Description Latitude Longitude County Township Easement Provider Account #
- ---- -------------------- ----------------------- --------- ---------- --------- -------- -------- ----------- ----------
003 81250 CR376, North Side of 42.257854 -86.332997 Van Buren Covert COUNTY AEP/I&M 496114400
Coloma, MI 49038 CR376, across ROW
from 81241
CR376
004 43866 CR687, West side of 42.259018 -86.16704 Van Buren Bangor County Midwest 3497800
Hartford, MI CR687, North of ROW Energy Coop
49057 43898 CR687
005 62077 39th Ave, Southwest corner 42.275509 -86.148005 Van Buren Bangor County Midwest 3498000
Bangor, MI 49013 62nd St and 39th ROW Energy Coop
Ave
006 32420 60th St., West side of 60th 42.300354 -86.128636 Van Buren Bangor County AEP/I&M 454889210
Bangor, MI 49013 St, 7 miles North ROW
of 34th Ave.
007 63058 CR378, Northwest corner 42.309251 -86.157848 Van Buren Bangor County AEP/I&M 428882670
Bangor, MI 49013 of 63 rd St and ROW
CR378
008 71350 10th Ave, North side of 10th 42.382293 -86.23783 Van Buren South County City Of 4.07485.00
South Haven, MI Ave, Haven ROW South
49090 approximately 25 Haven
feet East of last
Power Pole
009 14241 73rd St, East side of 73 rd 42.2669 -86.2536 Van Buren South County 3.05055.00
South Haven, MI St, adjacent to Haven ROW
49090 14149 73rd St
010 70333 CR380, South side CR380, 42.345729 -86.232211 Van Buren South County City Of 3.05943.00
South Haven, MI between 72nd St Haven ROW South
49090 and 69 St. Haven
011 20105 Elm Ave, East side of Elm 42.345139 -86.296939 Van Buren South County City Of 3.00746.00
South Haven, MI St, 200 feet South of Haven ROW South
49090 20th Avenue across Haven
from 20096 Elm - 14
feet east of c/l of Elm
Drive (Fire Lane O)
Cherry Court, in front
of address
012 272 Cherry Court, 943, 17 feet west of 42.40365 -86.26177 Van Buren South County City Of 4.02425.00
South Haven, MI c/l, 60 feet Haven ROW South
49090 north of c/l of Haven
Business I-196. West
side of 711/2 Street
across
from 03115 71-1/2
13 03202 7150th St, Street 42.40765 -86.239967 Van Buren South County City Of 2.05895.00
South Haven, MI North side of Haven ROW South
49090 Baseline, across from Haven
358
Baseline. Between
14 359 Baseline, 7377 and 358 42.41945 -86.263683 Allegan Casco County City Of 1.01011.00
South Haven, MI Baseline Ave. East ROW South
49090 side of Blue Star Haven
Highway, 11/2 miles
south of
107th Street.
Between 365 and
015 367 Blue Star 370 Blue Star 42.444883 -86.25115 Allegan Casco County Consumers
Hwy, South Highway. Nort side of ROW Energy
Haven, MI 49090 8th Avenue. 0.4 miles
east of 64th Street.
County
ROW
16 63236 8th Ave, North side of 8th 42.389953 -86.157396 Van Buren Geneva County City Of 2.03415.00
South Haven, MI Avenue, 0.4 miles ROW South
49090 east of 64th Street. Haven
East side of 64th
17 19555 64th Street, Street, north of 20th 42.349067 -86.167533 Van Buren Geneva County Consumers
South Havern, MI Avenue. Between ROW Energy
49090 19748
64th Avenue and
63870 CR380
Northeast corner
of M-43 and 601/2
018 26721 6050th Street. Between 42.322433 -86.13385 Van Buren Bangor County Consumers
Street, Bangor, 60570 M-43 and ROW Energy
MI 49013 26613 60-1/2 Street
North side of CR380
at airport property.
Between 73736
and 74216 20th
019 73900 CR380, South Ave (CR380) 42.2075 -86.1594 Van Buren South County City Of 1.09325.00
Haven, MI 49090 Northwest corner of Haven ROW South
Blue Star and 16th Haven
Avenue Northwest
corner of 11th Street
and 76th Avenue
20 76377 16th Ave, 42.359979 -86.286549 Van Buren South County City Of 3.01995.00
South Haven, MI Haven ROW South
49090 Haven
21 10920 76th St, 42.378087 -86.283491 Van Buren South County City Of 3.04215.00
South Haven, MI Haven ROW South
49090 Haven
022 6935 Baseline North side of Baseline 42.419605 -86.217057 Allegan Casco County City Of 1.10570.00
Road, South adjacent ROW South
Haven, MI 49090 to 6939 Baseline , Haven
between 70th Street
and 68th Street.
Northeast corner of
67th Street and
023 6699 Baseline Baseline. Between 42.419183 -86.197167 Allegan Casco County Consumers
Road, South 66947 and 6705 ROW Energy
Haven, MI 49090 Baseline Road.
East side of 68th
Street, north of 8th
Street. Between
06951 and 06958 68th
Street. West side of
024 07007 68th St, 68th Street, north of 42.393017 -86.2071 Van Buren Geneva County City Of 2.01378.00
South Haven, CR384. ROW South
MI 49090 West side of 67th Haven
Street, south of M-43.
Between
21360 and 22800 67th
25 11872 68th St, Street. 42.375534 -86.206973 Van Buren Geneva County Consumers
South Haven, Corner of 65th & ROW Energy
MI 49090
26 23080 67th St, CR384, 70 feet south
Bangor, MI 49013 of CR384 on 42.333217 -86.196933 Van Buren Geneva County AEP/I&M 409950800
the East side of 65th ROW
Street. Nortwest
corner of
CR380 and 60th
Street. Between
027 12035 65th St, 42.2231 -86.1045 Van Buren Geneva County AEP/I&M
South Haven, ROW
MI 49090
028 19930 60th St, 42.346817 -86.128867 Van Buren Geneva County AEP/I&M 450887520
Bangor, MI 49013 ROW
6014 and 59955
CR380
South side of 34th
029 67577 34th Ave, Avenue East of 68th 42.29375 -86.201183 Van Buren Bangor County AEP/I&M 401399040
Bangor, MI 49013 Street. Between ROW
66525 and 68099 34th County
Avenue. ROW
South side of 40th
Avenue 200 feet west
of 66th Street.
030 66065 40th Ave, Between 42.272317 -86.187217 Van Buren Bangor County Midwest
Bangor, MI 49013 66031 and 66432 ROW Energy Coop
40th Avenue. South
side of 48th Avenue
adjacent
to 64541 48th
Ave. Between
031 64533 48th St, 64541 and 64473 42.243467 -86.172383 Van Buren Hartford County AEP/I&M 43301160
Hartford, MI 68th Avenue East side ROW
49057 of 68th Street across
from
47306 68th St.
Between 47350 and
47306 68th
032 47317 68th St, Avenue. 42.245367 -86.203967 Van Buren Bangor County AEP/I&M 407318080
Hartford, MI East side of 72nd ROW
49057 Street, across from
44686 72nd St.
Between 44200 and
44686 72nd Street
033 44777 72nd St, 42.254917 -86.243 Van Buren Covert County AEP/I&M 4760006180
Watervliet, MI ROW
49098
034 40634 M-140 Hwy, West side M-140, 42.269517 -86.262717 Van Buren Covert State AEP/I&M 443720960
Covert, MI 49043 adjacent to 40626 M- ROW
140. Between 40626
and 40642 M-140.
North side of 36th
035 73770 36th Ave, Avenue, 600 feet 42.28695 -86.260633 Van Buren Covert County AEP/I&M 405239920
Covert, MI 49043 east of M-140. ROW
Between 35937 and
36040 M-140.
South side of 38th
036 77591 38th Ave, Avenue, east of 78th 42.279396 -86.298717 Van Buren Covert County Midwest 34979000
st, opposite west ROW Energy Coop
Covert, MI 49043 fence line of the
cemetery. West side
of 29th Avenue, 0.4
miles west of Blue AEP/I&M 487645280
Star Highway, across
037 79343 Ravine Way, from the park office. 42.312355 -86.308777 Van Buren Covert County
Covert, MI 49043 End of Lois Lane, ROW
adjacent to 80600
and 80599 Lois
Lane
038 80610 32nd Ave, South side of 28th 42.300417 -86.326283 Van Buren Covert File # AEP/I&M 426104710
Covert, MI 49043 Avenue, 300 feet 3909,
east of M-140, Liber
across from 13818 0913, pgs
28th Avenue. 295 - 296
Between 13818 and
039 73895 28th Ave, 13779 28th 42.315633 -86.260817 Van Buren Covert County AEP/I&M 420582680
Covert, MI 49043 ROW
169
Avenue.
County
ROW
40 38950 Blue Star Approximately 1/2 42.27895 -86.33465 Van Buren Covert County AEP/I&M 457017470
Hwy, Covert, MI mile west of Blue ROW
49053 Star Highway on Fire
Lane 8 West of main
drive to state park on
41 23944 Ruggles Rd, the east edge of the 42.330998 -86.306259 Van Buren South State City Of 3.04720.00
South Haven, MI north parking lot, Haven ROW South
49090 seven feet east of the Haven
east edge of the
pavement.
approximately 1/2
mile west of Blue
Star Highway on Fire
Lane 11, then on the
042 42274 Blue Star first road to the north 42.215819 -86.20899 Van Buren Covert File # AEP/I&M 488273890
Hwy, (Fire Lane on the end of the 3909,
11), Covert, MI road on the dune. Liber
49043 East side of Blue Star 0725,
Highway, across pgs
from 47800 Blue Star 451 -
Highway. 452
Between 47988 and
47880 M-63.
043 47911 Blue Northeast corner of 42.243316 -86.35765 Van Buren Covert State AEP/I&M 451567950
Star Hwy, 76th Street and 48th ROW
Coloma, MI 49038 Avenue.
044 47955 76th St, 42.1463 -86.1688 Van Buren Covert County Midwest 3526900
Covert, MI 49043 ROW Energy Coop
045 53623 67 1/2th St, East side of 67-1/2 42.22375 -86.200833 Van Buren County AEP/I&M 441536950
Hartford, MI 49057 Street, across from Hartford ROW
53652 67-1/2
Street. Between
53460 and 53652
67-1/2 Street
046 59425 70th St, East side of 70th 42.202783 -86.222967 Van Buren County AEP/I&M 449006010
Hartford, MI Street adjacent to Hartford ROW
49057 59441 70th Street.
Between 59441 70th
Street and 69730
Shar-Sue
Drive.
North side Hagar
047 9139 Hager Shore Rd, Shore Rd, across 42.229583 -86.2369 Berrien Watervliet County AEP/I&M 452200220
Watervliet, MI from 9136 Hager ROW
49098 Shore Rd.
Between 9152 and
9136 CR372
Northeast corner of
Coloma North Road
048 6607 Little Paw and Little Paw Paw 42.214617 -86.301317 Berrien Coloma County AEP/I&M 495539390
Paw Lake Rd, Lake Road. Between ROW
Coloma, MI 49038 5757 Coloma
North and 6619
Little Paw Paw Lake
Road. South side of
Red Arrow Hwy,
adjacent to 6920 Red
Arrow Hwy.
Between 6920 and
049 6958 Red Arrow Hwy, 42.185917 -86.289333 Berrien Coloma County AEP/I&M 404175050
Coloma, MI 49038 ROW
County
6964 Red Arrow ROW
Highway.
050 320 First St, Behind police station 42.188367 -86.2611 Berrien Watervliet City AEP/I&M 402638490
Watervliet, MI at First and Pleasant ROW
49098 in Watervliet.
Between City Hall
at 158 West
Pleasant and Side
Track Cafe at 315
M-140.
North side of
Wilson across
051 5609 Wilson Rd, from 5602 Wilson. 42.1935 -86.322767 Berrien Coloma County AEP/I&M 423296000
Coloma, MI 49038 Between 5602 and ROW
5677 Wilson.
East side of Thar
Road across from
4530 Thar Road.
052 4100 Thar Rd, Between 4080 and 42.193217 -86.359483 Berrien Hager County AEP/I&M 481540940
Coloma, MI 49038 4530 Thar Road, ROW
south of Bundy. East
side of M-63,
adjacent to North
Shore Memory
Gardens. Between
053 4969 M-63, 4922 and 4903 M- 42.201817 -86.393783 Berrien Hager State ROW AEP/I&M 438723930
Coloma, MI 49038 63, 0.2 miles north
of Piper Road. South
side of Central
Avenue at Central
Court. 61
054 5950 Central 42.219855 -86.367498 Berrien Hager County AEP/I&M 475823490 ROW
Avenue, Coloma,
MI 49038
feet south of Central
Avenue, 29 feet west
of c/l McKinley
Avenue. West side of
Clymer Road, across
055 5822 Clymer Rd, from 5843 Clymer 42.2169 -86.3404 Berrien Hager County AEP/I&M 481902000
Coloma, MI 49038 Road. Between 5843 ROW
and
5860 Clymer
Road.
West side of Becht
Road, across from
056 6820 Becht Rd, 6828 Becht Road. 42.234783 -96.321017 Berrien Coloma County AEP/I&M 463778920
Coloma, MI 49038 Between 6828 and ROW
6815 Becht Road. 0.6
miles South of
CR378, east side of
57 34355 Blue Star Blue Star Highway. 42.1758 -86.1921 Van Buren Covert County AEP/I&M 451947030
Hwy, Covert, MI North of 8th Street, ROW
49043 adjacent to northeast
corner of building.
58 727 Aylworth Ave, West end of 42.389317 -86.267583 Van Buren South City ROW City Of 3.14705.00
South Haven, MI Michigan Avenue. Haven South
49090 Between 83 and 88 Haven
Michigan Avenue.
59 79 Michigan Ave, 42.401267 -86.28365 Van Buren South File # City Of 2.17275.00
South Haven, MI Haven 3909, South
49090 Liber Haven
0913,
pgs
295 -
296
060 5970 Paw Paw North side Paw Paw 42.2173 -86.268983 Berrien Coloma County AEP/I&M 498383550
Lake Rd, Coloma, Lake Road, across ROW
MI 49038 from 5939 Paw Paw
Lake Road. Between
5939 Paw Paw Lake
Road and
5800 Beach
Avenue.
Approximately
061 70688 CR378, Covert, 200 feet west of the 42.183 -86.1338 Van Buren Covert County AEP/I&M 468745520
MI 49043 CR378 & 70th ROW
Street intersection.
0.2 miles east of
062 76882 CR378, Covert, 77 1/2 Street, on 42.184 -86.173 Van Buren Covert County AEP/I&M 492892930
MI 49043 the north side of ROW
CR378 (32nd Ave).
0.2 miles east of 78th
063 77580 CR376, Covert, Street on north side of 42.15 -86.1755 Van Buren Covert County AEP/I&M 414924610
MI 49043 CR376 (44th Ave). ROW
Environmental Sampling and Dosimeter Stations
Sampling Location (from Air Air Environmental Accident
Station # plant) Location Description Particulates Iodine TLD TLD Easement
- --------- -------------------- ------------------------------------ ------------ ------ ------------- -------- --------
1 Palisades Nuclear Onsite, on tree near Northwest X Note 3
Plant corner of Building and Grounds crew
building
2 Rural Route 3, TLD located on 80th Street, west X Note 1
Coloma, MI (5.6 side on post. 200 feet south of the
miles south) old sample station.
3 76182 48th Ave, Along 48th Avenue, 1/4 mile west of X Note 1
Covert, MI (3.5 76th Street. In barnyard 50 yards
miles SSE) off north side of road.
4 36197 M-140 Hwy, Along 36th Avenue, 1/2 mile east of X X X Note 1
Covert, MI (3.5 M-140, 15 feet off the south side of
miles SE) the road. TLD located in front yard
of residence.
5 72723 CR378, Along CR378, 3/4 miles east of M- X X X Note 1
Covert, MI (3.5 140, 30 feet off north side of road.
miles ESE) TLD located at Paul Rood residence,
in tree in the back yard just pass
the - driveway.
6 Rural Route 3, Along 12th Avenue (CR384), turn NW X Note 1
South Haven, MI past Maple Grove, go 1/4 mile.
(4.5 miles NE) Located in orchard on north side of
road.
7a Emergency Siren 21 On Monroe Boulevard, at corner of X Note 2
(4.1 miles NNE) 11th Street.
8 State Park (1 mile Onsite along State Park boundary X X X Note 1
north) road, north of plant. One mile from
main gate. Near State Park boundary,
on side of road as road turns west.
9 Covert Township Along 32nd Avenue, 1/4 mile west of X X X Note 2
Park (1.5 miles SSW) Blue Star Highway. 5 Feet off south
side of road. TLD located at end of
road, at entrance to H Sarno
residence, attached to emergency
siren #38
10 Grand Rapids, MI Grand Rapids Service Center, in X X X Note 3
(55 miles NNE) storage area. Air sample station on
west side near shed. Control TLD
located 100 feet north of air sample
station.
1 Kalamazoo, MI (35 Kalamazoo Service Center, in parking X Note 3
miles E) area on post in southeast corner.
(Control TLD)
12 Dowagiac, MI (30 TLD located at first farm past old X Note 1
miles SSE) air sampler station, same side of
road.
13 Perimeter of Past #8 along State Park boundary X Note 3
Palisades (NNE) road. Proceed west up dune path at
right of containment test structure.
At first crest, turn north and
proceed up adjacent hill to top
(approximately 50 yards from crest).
Near State Park fence line)
14 Perimeter of Along State Park boundary road to X Note 3
Palisades (NE) point where fence divides old Blue
Star Highway, 25 yards to east of
road.
15 Perimeter of North along Blue star Highway, 0.75 X Note 3
Palisades (E) miles from site access road, 50 feet
off west side of road.
16 Perimeter of North along Blue star Highway, 0.4 X Note 3
Palisades (E) miles from site access road, 50 feet
off west side of road.
17 Perimeter of Along Access road, 25 yards south of X Note 3
Palisades (ESE) southern power line, 15 yards off
east side of road.
18 Perimeter of 20 yards from X Note 3
Palisades (SE) access road along south road. 40
yards off south road.
19 Perimeter of 0.2 miles along south road X Note 3
Palisades (SSE) from access road, 20 feet off south
side of road.
20 Perimeter of 0.4 miles along south road from X Note 3
Palisades (S) access road, 20 feet off south side
of road.
21 Perimeter of 0.7 miles along south road from X Note 3
Palisades (SSW) access road. Five (5) feet off east
side of road.
Near Lake Michigan bluff.
22 Mike Grogan Control TLD in lead cave inside X Note 1
residence (13 miles garage at RETS/REMP residence
SSW)
23 Emergency Siren 19 On CR380 X Note 2
(3 miles ENE)
24 Emergency Siren 26 On 67th Street X Note 2
(6 miles E)
33 Perimeter of Onsite along south side State Park X Note 3
Palisades (NE) boundary road, 15 yards west of Air
Sample Station #8
34 Perimeter of Along State Park boundary road to X Note 3
Palisades (NE) area where fence divides old Blue
Star Highway, 25 yards east of road,
near station 14.
35 Perimeter of Located on the main post directly X Note 3
Palisades (ENE) across the storeroom, near Training
Building.
36 Perimeter of North along Blue Star Highway, 0.9 X Note 3
Palisades (ENE) miles from access road, 50 feet off
west side of road.
37 Perimeter of North along Blue Star Highway, 0.6 X Note 3
Palisades (E) miles from access road, 50 feet off
west side of road.
38 Perimeter of North along Blue Star Highway, 0.15 X Note 3
Palisades (SE) miles from access road, near old
railroad spur, 50 feet off west side
of road.
ACC TLD-1 R1-1-1 Mile Ring Utility pole on south side of road X Note 1
near southwest corner of 20th Avenue
(CR380) and Oak Road
ACC TLD-2 R1-1-1 Mile Ring Metal post on east side of Blue Star X Note 1
Highway, approximately 1.75 miles
north of Plant Access road, planted
on top of the west end of expressway
culvert on the west side of the
expressway.
ACC TLD-3 R1-1-1 Mile Ring Utility pole on southwest corner of X Note 1
76th Street and 24th Avenue.
ACC TLD-4 R1-1-1 Mile Ring Utility pole on the west side of X Note 1
76th Street, 0.5 miles south of 24th
Avenue, at the edge of a blueberry
patch.
ACC TLD-5 R1-1-1 Mile Ring Utility pole on northwest corner of X Note 1
76th Street and 28th Avenue
ACC TLD-6 R1-1-1 Mile Ring Utility pole on northeast corner of X Note 1
77.5th Street and 30th Avenue.
ACC TLD-7 R1-1-1 Mile Ring Utility pole on northwest corner of X Note 1
77.5th Street and 32nd Avenue.
ACC TLD-8 R1-1-1 Mile Ring Utility pole on northeast corner of X Note 1
32nd Avenue and Blue Star Highway.
ACC TLD-9 R1-1-1 Mile Ring Beneath environmental air sampler, X Note 1
approximately 0.25 miles west of
Blue Star Highway on 32nd Avenue.
ACC TLD-10 R2 - 4-5 Mile Ring Utility pole on northwest corner of X Note 1
Blue Star Highway and M-140, in
front of Econo Lodge parking lot.
ACC TLD-11 R2 - 4-5 Mile Ring Utility pole on southeast corner of X Note 1
M-43 and CR384
ACC TLD-12 R2 - 4-5 Mile Ring Utility pole on south side of 20th X Note 1
Avenue, 0.5 miles west of 69th
Street.
ACC TLD-13 R2 - 4-5 Mile Ring Utility pole on north side of 26th X Note 1
Avenue, 0.5 miles west of 69th
Street
ACC TLD-14 R2 - 4-5 Mile Ring Utility pole on southeast corner of X Note 1
70th Street and 34th Avenue
ACC TLD-15 R2 - 4-5 Mile Ring Utility pole on west side of M-140, X Note 1
0.5 miles south of 40th Avenue,
across from house number 42009.
ACC TLD-16 R2 - 4-5 Mile Ring Siren pole on southeast corner of X Note 2
CR376 (44th Avenue) and 76th Street.
ACC TLD-17 R2 - 4-5 Mile Ring Utility pole on north corner of X Note 1
CR376 (44th Avenue) and 80th Street.
ACC TLD-18 R2 - 4-5 Mile Ring Utility pole west of CR376 and Blue X Note 1
Star Highway intersection.
Container 1 Van Buren County 200 Dosimeters
Facility
Container 2 Berrien County 100 Dosimeters
Facility
Container 3 Allegan County 200 Dosimeters
Facility
Note 1: No formal easement agreement exists, oral permission from property
owner.
Note 2: With siren easement agreement
Note 3: Located on Plant owner property
EMERGENCY EQUIPMENT EASEMENTS AND LIST OF EMERGENCY SIRENS - BIG ROCK
ISFSI ASSETS
None
SCHEDULE 2.2(o)
Excluded Contracts - Palisades Assets
1. Nuclear Power Plant Operating Services Agreement between Consumers Energy
Company and Nuclear Management Company, LLC dated November 7, 2000.
2. Operating Agreement of Nuclear Management Company, LLC dated February 25,
1999.
3. Subscription and Membership Agreement, between Consumers Energy Company and
Nuclear Management Company, LLC dated November 7, 2000.
4. Reciprocal Laboratory Use Agreement between American Electric Power and
Nuclear Management Company, LLC dated January 1, 1998, as amended August 31,
2005.
5. Mutual Assistance Agreement between Detroit Edison, American Electric Power
and Nuclear Management Company, LLC, executed various dates August and September
2005.
6. Amendment and Restatement of the April 1, 2001 Generator Interconnection
Agreement between Michigan Electric Transmission Company and Consumers Energy
Company.
7. Amendment and Restatement of the April 1, 2001 Network Operating Agreement
between Michigan Electric Transmission Company and Consumers Energy Company.
8. Amendment and Restatement of the April 1, 2001 Purchase and Sale Agreement
for Ancillary Services between Michigan Electric Transmission Company and
Consumers Energy Company.
9. Palisades Switchyard Protocol and Responsibility Agreement, Revision 0, dated
November 2005.
10. Letter Agreement between Northern States Power Company and Consumers Energy
Company dated May 10, 2006 for the sale of certain SWU credits.
11. Exchange Agreement between Eurodif SA and Nuclear Management Company, LLC,
as agent for Wisconsin Energy Corp dated August 31, 2005.
12. Amended and Restated Easement Agreement between Michigan Electric
Transmission Company and Consumers Energy Company dated April 29, 2002.
13. Contract for Furnishing Temporary Personnel dated December 1, 2001 with Acro
Service Corporation. Service provided: payroll service and staff augmentation.
14. Contract for Consulting Services dated February 9, 1987 with BP&R
Engineering, Inc. Service provided: various project support.
15. General Contract for Labor and Materials dated May 20, 1999 with BP&R
Construction, Inc. Service provided: construction and maintenance.
16. General Contract for Work Requests dated July 1, 1988 with Erickson's,
Incorporated. Service provided: mobile cranes, tractor-trailers, heavy hauling
and/or moving.
17. General Contract for Work Requests dated October 1, 1988 with Gelock
Transfer Line, Inc. Service provided: mobile cranes, tractor-trailers, heavy
hauling and/or moving.
18. Contract for Consulting Services dated January 3, 1977 with Materials
Testing Consultants, Inc. Service provided: field testing or material testing.
19. General Contract for Technical and Consulting Services dated February 1,
1996 with South Bend Medical Foundation, Inc. Service provided: fitness for duty
testing - alcohol and controlled substances.
20. Contract dated July 9, 1979 with Team Industrial Services, Inc. Service
provided: temporary pipe leak repairs/fixes.
21. Contract for Technical and Consulting Services dated August 1, 1996 with The
Stress Center, P.C. Service provided: psychological testing/MMPI and clinical
interviews.
22. Contract for Labor and Material dated November 24, 2003 with ThyssenKrupp
Elevator Corporation. Service provided: elevator maintenance.
23. General Contract for Technical and Consulting Services dated February 1,
1996 with Tom Allen Enterprises, Inc. Service provided: fitness for duty
collection/MRO services.
24. The Software Licenses for the following software are also Excluded
Contracts:
AMS Suite - Vibration Meter CSI RBM consultant
Mod 2120A Firmware Emerson Process Management
Computational Systems Incorporated (CSI) Division
Ultra Sonic module of RBMware Computations Systems, Inc.
WeldSpec C-Spee
Fuel Management and Accounting System Energy Resources International
SharePoint Microsoft
OutlookSoft Everest OutlookSoft
Self-Service Library Right Answers
SAP - Palisades SAP
Advanced Maintenance Management System CMS Energy
Human Resource Management System Integral Systems
IMPACT (Managed Desktop Application) CMS Energy
Lotus Notes Client IBM
Peregrine Hewlett Packard
Enterprise Maintenance Planning and Control(EMPAC)
Indus International
Passport Indus International
1. Memorandum of Understanding among the Nuclear Regulatory Commission, Michigan
State Historic Preservation Office and Consumers Energy Company dated January
31, 2006.
Excluded Contracts - Big Rock ISFSI Assets
2. Big Rock Decommissioning Core Team Letter Agreement - Lawrence Potter.
SCHEDULE 3.3(A)(4) CAPITAL BUDGET - PALISADES ASSETS ONLY
2006 CAPITAL BUDGET - MONTHLY SPENDING FORECAST
PALISADES - 2006 CAPITAL BUDGET ACT ACT ACT ACT ACT FCST FCST
PROJECT DESCRIPTION JAN-06 FEB-06 MAR-06 APR-06 MAY-06 JUN-06 JUL-06
- ------------------------------- --------- --------- --------- --------- --------- --------- ---------
REACTOR HEAD REPLACEMENT 3,931,450 2,871,151 267,467 2,347,016 3,218,435 2,347,903 569,247
CONTAINMENT SUMP MODIFICATIONS 50,065 52,405 280,410 471,728 128,351 409,004 508,014
SPENT FUEL TRANSPORTABLE CASK 28,957 676,855 135,921 36,316 (87,817) 66,191 1,279,608
PCP MOTORS REFURBISH AND REPLACE 40,604 160,227 1,598,449 541,317 348,168 189,556 51,533
LR - GENERAL 131,934 722,630 82,038 962,827 (399,258) 368,819 299,460
MAIN GENERATOR STATOR REWIND 216 7,396 434,691 1,627,511
REPLACE "A" COOLING TOWER DECKING 9,810 1,477,797 81,799
MITIGATING SYSTEM PERFORMANCE INDICATOR 350,000 450,000
LOAD TAP CHANGE TRANSFORMER FOR SUT 1-2 70,006 93,127 444,211 749,508 (108,153) 7,886
DEVELOP AC POWER SYSTEM ANALYSIS MODEL/U 15,948 17,957 72,755 97,754 114,168 75,977 37,977
CAPITAL HOLDING PROJECT FOR FUNDING DIST
CAPITAL HOLDING - OVERHEADS 107,520 107,520
NRC SECURITY ORDER (15,977) 50,814 40,519 11,932 20,703 120,846 100,846
REPLACE INCORE INSTRUMENTS 391,620 84,817 99,344 57,420
CONTROL ROOM HABITABILITY 1,466 1,055 410 37,142 48,567 68,567
PALISADES SIMULATOR UPGRADE 890 6,418 4,840 170,350
COST OF REMVAL - REACTOR HEAD REPLACEMEN (2,671) 2,671 211,703 105,850
PALISADES - 2006 CAPITAL BUDGET FCST FCST FCST FCST FCST
PROJECT DESCRIPTION AUG-06 SEP-06 OCT-06 NOV-06 DEC-06 2006 TOTAL
- ------------------------------- --------- --------- --------- --------- ---------- ----------
REACTOR HEAD REPLACEMENT 606,144 1,730,249 972,426 596,430 1,845,061 21,302,978
CONTAINMENT SUMP MODIFICATIONS 532,914 453,969 515,027 717,642 1,088,346 5,207,875
SPENT FUEL TRANSPORTABLE CASK 74,947 222,625 1,353,518 172,153 286,939 4,246,214
PCP MOTORS REFURBISH AND REPLACE 316,647 213,647 224,311 397,311 114,247 4,196,016
LR - GENERAL 257,376 244,376 223,680 188,680 153,960 3,236,521
MAIN GENERATOR STATOR REWIND 2,069,814
REPLACE "A" COOLING TOWER DECKING 1,569,407
MITIGATING SYSTEM PERFORMANCE INDICATOR 336,000 50,000 50,000 50,000 50,000 1,336,000
LOAD TAP CHANGE TRANSFORMER FOR SUT 1-2 1,256,584
DEVELOP AC POWER SYSTEM ANALYSIS MODEL/U 107,977 104,977 100,977 100,977 110,200 957,643
CAPITAL HOLDING PROJECT FOR FUNDING DIST 200,000 411,279 211,280 90,456 913,015
CAPITAL HOLDING - OVERHEADS 107,520 107,520 107,520 107,520 107,520 752,640
NRC SECURITY ORDER 89,846 84,346 77,751 52,000 22,000 655,626
REPLACE INCORE INSTRUMENTS 633,201
CONTROL ROOM HABITABILITY 68,567 47,134 13,567 13,567 234,590 534,633
PALISADES SIMULATOR UPGRADE 28,420 177,134 37,134 3,520 100,000 528,706
COST OF REMVAL - REACTOR HEAD REPLACEMEN 180,121 497,674
PALISADES - 2006 CAPITAL BUDGET ACT ACT ACT ACT ACT FCST FCST
PROJECT DESCRIPTION JAN-06 FEB-06 MAR-06 APR-06 MAY-06 JUN-06 JUL-06
- ------------------------------- --------- --------- --------- --------- --------- --------- ---------
PRIMARY COOLANT PUMP SEAL REBUILD 387,535 59,917 32,610
NRC SECURITY ORDER PHASE II 16,696 49,567 26,330 14,291 2,797 10,000 20,000
INSTALL STRUCTURES FOR OUTAGE SUPPORT 530,000 (77,019)
COST OF REMVAL - PCP MOTORS REFURBISH & 13,091 14,663 108,040 134,248 56,627 50,950 17,520
COOLING TOWER GEARBOX REPLACEMENT 8,976 159 245,762 (5,914)
SERVICE WATER CONTROL VALVES IMPROVEMENT 4,700 16,455 19,320 113,509 2,113 43,902 43,902
REPLACE "A" COOLING TOWER DECKING 352,600
COST OF REMOVAL - LOAD TAP CHANGER TRANS 3,265 5,078 29,408 198,517 58,237 13,567 14,063
REPLACE HPSI CV 3070 SUBCOOLING VALVE 305,049
REPLACE CONTAINMENT AIR COOLER VHX-4 1,363 773 2,155 20,440 3,977 30,878 30,878
CONTAINMENT AIR COOLER FAN REBUILDS 1,009 64,905 201,034 6,783
DESIGN/STUDY HEATER DRAIN PUMP P-10A 74,092 133,327 34,935
FIVE YEAR ROOF REPLACEMENT PLAN
FLOW ACCELERATED CORROSION PROGRAM 3,533 10,178 21,093 168,956 (2,058)
CONDENSATE PUMP P-2B MOTOR REWIND 99,648 97,766
COR - INSTALL STRUCTURES FOR OUTAGE 191,613
SITE SIREN AND SITE PA FOR EMERGENCY NOT 18,590 36,713 97,408 39,019 (4,002)
COR DOMESTIC WATER 36,778 85,727 12,120 50,000
REFURBISH SPARE VALVE FOR CCW HEAT EXCH (20,000) 21,516 237,876 (62,432)
SERVICE WATER PIPING REPLACEMENT 3,125 63,810 (13,634) 30,424 549 89,360
ADDITIONAL PUMP FOR CONTINUED CLEANUP DU 5,906 63,862 91,354 17,083 (15,025)
PROVIDE ALTERNATE SFP COOLING CAPABILITY 17,127 17,127
RAD SERVICES SMALL TOOL BUDGET 10,256 633 40,196
PALISADES - 2006 CAPITAL BUDGET FCST FCST FCST FCST FCST
PROJECT DESCRIPTION AUG-06 SEP-06 OCT-06 NOV-06 DEC-06 2006 TOTAL
- ------------------------------- --------- --------- --------- --------- ---------- ----------
PRIMARY COOLANT PUMP SEAL REBUILD 480,063
NRC SECURITY ORDER PHASE II 35,000 225,000 45,000 24,000 6,823 475,505
INSTALL STRUCTURES FOR OUTAGE SUPPORT 452,981
COST OF REMVAL - PCP MOTORS REFURBISH & 395,140
COOLING TOWER GEARBOX REPLACEMENT 108,000 356,983
SERVICE WATER CONTROL VALVES IMPROVEMENT 43,902 43,902 6,783 6,783 7,892 353,163
REPLACE "A" COOLING TOWER DECKING 352,600
COST OF REMOVAL - LOAD TAP CHANGER TRANS 322,135
REPLACE HPSI CV 3070 SUBCOOLING VALVE 305,049
REPLACE CONTAINMENT AIR COOLER VHX-4 25,878 95,878 39,878 25,076 12,676 289,852
CONTAINMENT AIR COOLER FAN REBUILDS 273,731
DESIGN/STUDY HEATER DRAIN PUMP P-10A 242,355
FIVE YEAR ROOF REPLACEMENT PLAN 220,000 220,000
FLOW ACCELERATED CORROSION PROGRAM 201,702
CONDENSATE PUMP P-2B MOTOR REWIND 197,414
COR - INSTALL STRUCTURES FOR OUTAGE 191,613
SITE SIREN AND SITE PA FOR EMERGENCY NOT 187,728
COR DOMESTIC WATER 184,625
REFURBISH SPARE VALVE FOR CCW HEAT EXCH 176,960
SERVICE WATER PIPING REPLACEMENT 173,634
ADDITIONAL PUMP FOR CONTINUED CLEANUP DU 163,181
PROVIDE ALTERNATE SFP COOLING CAPABILITY 17,127 32,127 32,127 17,127 17,127 149,889
RAD SERVICES SMALL TOOL BUDGET 94,074 145,159
PALISADES - 2006 CAPITAL BUDGET ACT ACT ACT ACT ACT FCST FCST
PROJECT DESCRIPTION JAN-06 FEB-06 MAR-06 APR-06 MAY-06 JUN-06 JUL-06
- ------------------------------- --------- --------- --------- --------- --------- --------- ---------
COST OF REMVAL - ULTRA FILTRATION SYSTEM 25,780 44,284 38,522 26,366 (11,386) 9,941
SPARE POWER RANGE NI DETECTORS 132,803
REPLACE PCP SEAL FLOW TRANSMITTERS 80,043 37,000
EEQ TRANSMITTER REPLACEMENTS 42,013 74,338
PURCHASE PREDICTIVE MAINT EQUIPMENT 88,000 17,494 6 3,506
REMOTE MONITORING AND COMMUNICATION SYS 1,327 531 101,820
PROCUREMENT OF MAJOR EQUIPMENT 329 1,008 21,335 9,252 10,898 38,525
COR PASM PANEL SYSTEM
PURCHASE PLANT EQUIPMENT/SMALL TOOLS 10,095 474 22,804 16,804 5,527 3,701 31,063
ALTERNATE PUMP FOR SECURITY RESPONSE
CONTROL ROOM HVAC (VC-10/11) (119) 40,322
COR REFURBISH SPARE VALVE FOR CCW HT EXC 75,653
P-74 RECIRCULATION PUMP REPLACEMENT 9 75,508
DESIGN/STUDY HEATER DRAIN PUMP P-10B 32,716 31,404
ALTERNATE SCREEN WASH SUPPLY TO TRAVELIN 4,883
OPERATIONS SECONDARY SIDE STORAGE AREA 60,970
RADWASTE ULTRA FILTRATION SYSTEM 1,782 11,194 7,498 140 5,222 14,840 9,737
CHEMISTRY SMALL TOOL BUDGET 12,445 221 9 5,838
PAVEMENT REPLACEMENT
REPLACE SI TANKS LEVEL TRANSMITTERS
PALISADES PLANT PRESERVATION EFFORTS 10,000
ADDITIONAL STEAM GENERATOR MANWAY REMOVA 33,000 1,990 2,954
EVALUATE/MODIFY 31,445 423 (423)
PALISADES - 2006 CAPITAL BUDGET FCST FCST FCST FCST FCST
PROJECT DESCRIPTION AUG-06 SEP-06 OCT-06 NOV-06 DEC-06 2006 TOTAL
- ------------------------------- --------- --------- --------- --------- ---------- ----------
COST OF REMVAL - ULTRA FILTRATION SYSTEM 133,506
SPARE POWER RANGE NI DETECTORS 132,803
REPLACE PCP SEAL FLOW TRANSMITTERS 117,043
EEQ TRANSMITTER REPLACEMENTS 116,351
PURCHASE PREDICTIVE MAINT EQUIPMENT 109,005
REMOTE MONITORING AND COMMUNICATION SYS 103,678
PROCUREMENT OF MAJOR EQUIPMENT 10,449 10,449 102,245
COR PASM PANEL SYSTEM 99,893 99,893
PURCHASE PLANT EQUIPMENT/SMALL TOOLS 90,468
ALTERNATE PUMP FOR SECURITY RESPONSE 27,208 27,208 27,208 81,624
CONTROL ROOM HVAC (VC-10/11) 40,322 80,525
COR REFURBISH SPARE VALVE FOR CCW HT EXC 75,653
P-74 RECIRCULATION PUMP REPLACEMENT 75,517
DESIGN/STUDY HEATER DRAIN PUMP P-10B 64,120
ALTERNATE SCREEN WASH SUPPLY TO TRAVELIN 4,883 14,883 4,883 4,883 28,483 62,898
OPERATIONS SECONDARY SIDE STORAGE AREA 60,970
RADWASTE ULTRA FILTRATION SYSTEM 5,268 55,682
CHEMISTRY SMALL TOOL BUDGET 4,555 27,162 50,229
PAVEMENT REPLACEMENT 50,000 50,000
REPLACE SI TANKS LEVEL TRANSMITTERS 45,520 45,520
PALISADES PLANT PRESERVATION EFFORTS 10,000 10,000 10,000 40,000
ADDITIONAL STEAM GENERATOR MANWAY REMOVA 37,944
EVALUATE/MODIFY 31,445
PALISADES - 2006 CAPITAL BUDGET ACT ACT ACT ACT ACT FCST FCST
PROJECT DESCRIPTION JAN-06 FEB-06 MAR-06 APR-06 MAY-06 JUN-06 JUL-06
- ------------------------------- --------- --------- --------- --------- --------- --------- ---------
TRAINING FACILITY UPGRADE (641) 219
RAD MONITOR RELIABILITY UPGRADE PROGRAM 4,012 4,498 4,292 69 6,500 6,500
FIVE YEAR ROOF REPLACEMENT PLAN
WARM WATER RECIRCULATION VALVE 17,791
REPLACE OBSOLETE FURNITURE
COR PAVEMENT REPLACEMENT
CAPITAL ADJUSTMENT LINE ACCOUNTING USE 9,555
OPERATIONS & SECURITY RADIO UPGRADE 2,462 1,749 1,982 180
INCORE INSTRUMENT DISPOSAL PROCESS 4,477
REPLACE C-42 SAMPLE PANEL COOLING SYSTEM 575 3.498 62
LAN HARDWARE UPGRADES 33,292 (29,205)
REBUILD DILUTION WATER PUMP P-40A/B 2,378 785
PURCHASE EQUIPMENT FOR PASSPORT - TOTAL 1,894
2006 SECURITY MODIFICATION (12) 1,848
REPLACE OBSOLETE RECORDERS IN CONTROL RM 140
PURCHASE REPLACEMENT BREAKERS (6)
CRD RACK EXTENSION PROCUREMENT (21,521)
REBUILD DILUTION WATER PUMP P-40A/B (2,378) (19,648)
REPLACE FEEDER CABLE FROM SAFEGUARDS (72,788)
TOTAL
PALISADES - 2006 CAPITAL BUDGET FCST FCST FCST FCST FCST
PROJECT DESCRIPTION AUG-06 SEP-06 OCT-06 NOV-06 DEC-06 2006 TOTAL
- ------------------------------- --------- --------- --------- --------- ---------- ----------
TRAINING FACILITY UPGRADE " 30,641 _ _ 30,219
RAD MONITOR RELIABILITY UPGRADE PROGRAM 4.184 _ _ 30,055
FIVE YEAR ROOF REPLACEMENT PLAN 24.000 " 24,000
WARM WATER RECIRCULATION VALVE _ _ 17.791
REPLACE OBSOLETE FURNITURE 6,000 6,000 _ _ 12,000
COR PAVEMENT REPLACEMENT " 10.000 _ _ 10.000
CAPITAL ADJUSTMENT LINE ACCOUNTING USE " 9,555
OPERATIONS & SECURITY RADIO UPGRADE " _ _ 6,373
INCORE INSTRUMENT DISPOSAL PROCESS " _ _ 4,477
REPLACE C-42 SAMPLE PANEL COOLING SYSTEM " 4,136
LAN HARDWARE UPGRADES 4,087
REBUILD DILUTION WATER PUMP P-40A/B " _ _ 3,162
PURCHASE EQUIPMENT FOR PASSPORT - TOTAL " _ _ 1,894
2006 SECURITY MODIFICATION 1,836
REPLACE OBSOLETE RECORDERS IN CONTROL RM " 140
PURCHASE REPLACEMENT BREAKERS " _ _ (6)
CRD RACK EXTENSION PROCUREMENT _ _ (21,521)
REBUILD DILUTION WATER PUMP P-40A/B " (22,026)
REPLACE FEEDER CABLE FROM SAFEGUARDS " (72,788)
TOTAL 58,046,513
2007 CAPITAL BUDGET - MONTHLY SPENDING FORECAST
PALISADES - 2007 CAPITAL BUDGET
PROJECT DESCRIPTION JAN-07 FEB-07 MAR-07 APR-07 MAY-07 JUN-07 JUL-07
- ------------------------------- --------- --------- --------- --------- --------- --------- ---------
REACTOR HEAD REPLACEMENT 3,361,074 1,524,320 365,117 351,112 3,245,767 342,551 356,220
MAIN GENERATOR STATOR REWIND 1,100,000
CONTAINMENT SUMP MODIFICATIONS 1,175,324 598,170 241,989 162,225 110,560 57,310 84,310
PALISADES DFS CASK LOADING 3,204,300 27,000 33,200 27,000 27,000 33,200 72,000
CAPITAL HOLDING FOR DIRECT CHARGING TO PROJECTS 121,920 121,920 121,920 335,253 335,253 335,253 335,253
CAPITAL HOLDING DOLLARS FOR PROJECT DISTRIBUTION
COST OF REMOVAL - PCP MOTORS REFURBISH AND REPLACE 60,000 60,000 60,000 60,000 60,000 60,000 60,000
REPLACE COOLING TOWER HOT WATER DISTRIBUTION
COMPONENTS
LICENSE RENEWAL 95,400 90,000 97,400 192,000 76,300 76,000 74,200
EMPLOYEE INPROCESSING
MODIFY STEAM GENERATORS FOR SINGLE NOZZLE DAM SYSTEM
CAPITAL PROJECT LABOR TO SPREAD 75,327 75,327 75,327 75,327 75,327 75,327 75,327
REPLACE STATION BATTERIES 10,000 10,000 10,000 260,000
ADDITIONAL PUMP FOR CONTINUED CLEANUP DURING SHUTDOWN 25,000 25,000 25,000
DEVELOP AC POWER SYSTEM ANALYSIS MODEL/UPDATE DESIGN
CALCULATIONS 10,000 15,000 30,000 25,000 75,000 60,000 60,000
MAINTENANCE SERVICES - SCAFFOLD AND INSULATION
REPLACE CONTAINMENT AIR COOLER VHX-4 20,000 20,000 20,000 20,000 5,000 126,000 27,000
TURBINE SUPERVISORY INSTRUMENTATION (TSI) SYSTEM
UPGRADE
INCORE REACTOR MONITORING INSTRUMENTATION SYSTEM
FIVE YEAR ROOF REPLACEMENT PLAN 50,000 100,000 100,000
PALISADES - 2007 CAPITAL BUDGET
PROJECT DESCRIPTION AUG-07 SEP-07 OCT-07 NOV-07 DEC-07 2007 TOTAL
- ------------------------------- --------- --------- --------- --------- ---------- ----------
REACTOR HEAD REPLACEMENT 1,210,744 442,490 522,623 405,248 2,337,900 14,465,166
MAIN GENERATOR STATOR REWIND 2,200,000 2,200,000 2,200,000 1,100,000 8,800,000
CONTAINMENT SUMP MODIFICATIONS 110,990 159,320 705,276 658,384 505,533 4,569,392
PALISADES DFS CASK LOADING 73,000 78,200 127,000 19,000 617,568 4,338,468
CAPITAL HOLDING FOR DIRECT CHARGING TO PROJECTS 335,253 335,253 335,253 335,253 335,256 3,383,038
CAPITAL HOLDING DOLLARS FOR PROJECT DISTRIBUTION 2,500,000 2,500,000
COST OF REMOVAL - PCP MOTORS REFURBISH AND REPLACE 60,000 570,000 570,000 54,000 32,400 1,706,400
REPLACE COOLING TOWER HOT WATER DISTRIBUTION
COMPONENTS 215,500 690,500 340,500 215,500 1,462,000
LICENSE RENEWAL 76,650 65,650 54,800 54,800 52,800 1,006,000
EMPLOYEE INPROCESSING 200,000 200,000 500,000 100,000 1,000,000
MODIFY STEAM GENERATORS FOR SINGLE NOZZLE DAM SYSTEM 250,000 250,000 250,000 250,000 1,000,000
CAPITAL PROJECT LABOR TO SPREAD 75,327 75,327 75,327 75,327 75,327 903,926
REPLACE STATION BATTERIES 200,000 50,000 50,000 160,000 750,000
ADDITIONAL PUMP FOR CONTINUED CLEANUP DURING SHUTDOWN 175,000 250,000 100,000 600,000
DEVELOP AC POWER SYSTEM ANALYSIS MODEL/UPDATE DESIGN
CALCULATIONS 85,000 60,000 60,000 60,000 60,000 600,000
MAINTENANCE SERVICES - SCAFFOLD AND INSULATION 507,000 507,000
REPLACE CONTAINMENT AIR COOLER VHX-4 15,000 25,000 140,000 69,000 13,000 500,000
TURBINE SUPERVISORY INSTRUMENTATION (TSI) SYSTEM
UPGRADE 475,000 475,000
INCORE REACTOR MONITORING INSTRUMENTATION SYSTEM 432,000 432,000
FIVE YEAR ROOF REPLACEMENT PLAN 100,000 35,000 385,000
PALISADES - 2007 CAPITAL BUDGET
PROJECT DESCRIPTION JAN-07 FEB-07 MAR-07 APR-07 MAY-07 JUN-07 JUL-07
- ------------------------------- --------- --------- --------- --------- --------- --------- ---------
CONTROL ROOM HABITABILITY 20,000 100,000 100,000 100,000 60,000
UPGRADE K-7A/P-1A AND K-7B/P-1B MONITORING INSTRUMENTS
FLOW ACCELERATED CORROSION (FAC) PROGRAM)
COST OF REMOVAL REACTOR HEAD REPLACEMENT
REPL CV-1057-CV-1059 25,000
COR COOLING TOWER HOT WATER DECK
PE75 PALISADES INFORMATION TECHNOLOGY PLAN/LAN
EXPANSION 25,000 25,000 25,000 25,000 25,000 25,000 25,000
REPLACE FLOOD BARRIER XJ'S 8,000 36,500 36,500 8,000
INCORE INSTRUMENT DISPOSAL PROCESS
CONTROL ROOM HVAC (VC-10/11) SERVICE WATER SYSTEM
PIPING REPLACEMENT 10,000 10,000 10,000 10,000 5,000
RADIOLOGICAL SERVICES SMALL TOOLS BUDGET 15,060 31,460 169,400
CONTAINMENT AIR COOLER FAN AND SAFEGUARDS COOLER FAN
MOTORS 10,000
COOLING TOWER GEARBOX REPLACEMENT 99,000 99,000
SERVICE WATER PIPING REPLACEMENT 30,000
COR - REPLACE CONTAINMENT AIR COOLER VHX-4 1,000 1,000 1,000
SPARE POWER RANGE NI DETECTORS
RADIATION MONITOR RELIABILITY UPGRADE PROGRAM 35,245 35,245 35,245
NFPA-805 IMPLEMENTATION 25,000 25,000
MAJOR EQUIPMENT PURCHASES FOR MAINTENANCE FACILITY
UPGRADES 12,000 7,000 7,000 7,000 12,000 17,000
MISC POWER PLANT EQUIPMENT AND SMALL TOOLS BLANKET GWO 12,500 12,500 11,000 6,000 19,000
PURCHASE OF PREDICTIVE MAINTENANCE EQUIPMENT 10,000 70,000
COST OF REMOVAL - VOLUME REDUCTION SYSTEM 22,484 22,484 22,485
PALISADES - 2007 CAPITAL BUDGET
PROJECT DESCRIPTION AUG-07 SEP-07 OCT-07 NOV-07 DEC-07 2007 TOTAL
- ------------------------------- --------- --------- --------- --------- ---------- ----------
CONTROL ROOM HABITABILITY 380,000
UPGRADE K-7A/P-1A AND K-7B/P-1B MONITORING INSTRUMENTS 375,000 375,000
FLOW ACCELERATED CORROSION (FAC) PROGRAM) 50,000 275,000 45,000 370,000
COST OF REMOVAL REACTOR HEAD REPLACEMENT 356,376 356,376
REPL CV-1057-CV-1059 100,000 150,000 75,000 350,000
COR COOLING TOWER HOT WATER DECK 350,000 350,000
PE75 PALISADES INFORMATION TECHNOLOGY PLAN/LAN
EXPANSION 25,000 25,000 25,000 25,000 25,000 300,000
REPLACE FLOOD BARRIER XJ'S 32,000 122,000 36,500 279,500
INCORE INSTRUMENT DISPOSAL PROCESS 137,500 137,500 275,000
CONTROL ROOM HVAC (VC-10/11) SERVICE WATER SYSTEM
PIPING REPLACEMENT 200,000 3,000 248,000
RADIOLOGICAL SERVICES SMALL TOOLS BUDGET 215,920
CONTAINMENT AIR COOLER FAN AND SAFEGUARDS COOLER FAN
MOTORS 10,000 90,000 90,000 200,000
COOLING TOWER GEARBOX REPLACEMENT 198,000
SERVICE WATER PIPING REPLACEMENT 50,000 90,000 24,000 194,000
COR - REPLACE CONTAINMENT AIR COOLER VHX-4 31,000 31,000 36,000 86,000 187,000
SPARE POWER RANGE NI DETECTORS 160,000 160,000
RADIATION MONITOR RELIABILITY UPGRADE PROGRAM 105,735
NFPA-805 IMPLEMENTATION 25,000 25,000 100,000
MAJOR EQUIPMENT PURCHASES FOR MAINTENANCE FACILITY
UPGRADES 3,000 10,000 75,000
MISC POWER PLANT EQUIPMENT AND SMALL TOOLS BLANKET GWO 14,000 75,000
PURCHASE OF PREDICTIVE MAINTENANCE EQUIPMENT (10,000) 70,000
COST OF REMOVAL - VOLUME REDUCTION SYSTEM 67,453
PALISADES - 2007 CAPITAL BUDGET
PROJECT DESCRIPTION JAN-07 FEB-07 MAR-07 APR-07 MAY-07 JUN-07 JUL-07
- ------------------------------- --------- --------- --------- --------- --------- --------- ---------
REPLACE CONTAINMENT FLOOR PLUGS WITH GRADING 20.000 20,000 25,000
COST OF REMOVAL - FAILED FUEL MONITOR REMOVAL 29,133 29,134
REPLACEMENT OF CVCS FILTERS F-54A/B 50,820
CHEMISTRY SMALL TOOL BUDGET 20,000 15.000 7,500 7,500
REPLACE STATION BATTERIES
PALISADES PLANT PRESERVATION EFFORTS 10,000 10,000 10,000
REPLACE TEMPORARY POWER PANELS W/PERMANENT 4,000 5,000 6.000 5,000 5,000 5,000
COST OF REMOVAL- FLOW ACCELERATED CORROSION (FAC)
PROGRAM)
TRAINING FACILITY UPGRADE 30,000
COST OF REMOVAL - FIVE YEAR ROOF REPLACEMENT PLAN 24,000
REPLACE OBSOLETE RECORDERS IN CONTROL ROOM 5,000 5,000 5.000 5.000 2,000
ELECTRICAL PENETRATION FOR S/G EDDY CURRENT TESTING 10,000 10,000
REPLACE C42 PANEL
OFFICE ENVIRONMENT UPGRADE (FURNISHINGS) 6,000 6,000
PALISADES SIMULATOR UPGRADE 10.000
EP FACILITY UPGRADES
RE-LICENSING VSC-24 ISFSI 10,000
TOTAL
PALISADES - 2007 CAPITAL BUDGET
PROJECT DESCRIPTION AUG-07 SEP-07 OCT-07 NOV-07 DEC-07 2007 TOTAL
- ------------------------------- --------- --------- --------- --------- ---------- ----------
REPLACE CONTAINMENT FLOOR PLUGS WITH GRADING 65,000
COST OF REMOVAL - FAILED FUEL MONITOR REMOVAL " 58,267
REPLACEMENT OF CVCS FILTERS F-54A/B 50,820
CHEMISTRY SMALL TOOL BUDGET " 50,000
REPLACE STATION BATTERIES 50,000 " 50,000
PALISADES PLANT PRESERVATION EFFORTS 10,000 " 40,000
REPLACE TEMPORARY POWER PANELS W/PERMANENT 2,000 3,000 3,000 38,000
COST OF REMOVAL- FLOW ACCELERATED CORROSION (FAC)
PROGRAM) 37,000 " 37,000
TRAINING FACILITY UPGRADE 30,000
COST OF REMOVAL - FIVE YEAR ROOF REPLACEMENT PLAN 24,000
REPLACE OBSOLETE RECORDERS IN CONTROL ROOM 22,000
ELECTRICAL PENETRATION FOR S/G EDDY CURRENT TESTING " 20,000
REPLACE C42 PANEL 20,000 " 20,000
OFFICE ENVIRONMENT UPGRADE (FURNISHINGS) " 12,000
PALISADES SIMULATOR UPGRADE 10,000
EP FACILITY UPGRADES 10,000 " 10,000
RE-LICENSING VSC-24 ISFSI " 10,000
----------
TOTAL 54,862,461
CAPITAL EXPENDITURES FOR 2008 SHALL BE $2,500,000 PER CALENDER MONTH.
SCHEDULE 3.3(a)(5)
Adjustment to Purchase Price
For each day that the Closing Date occurs after March 1, 2007, the Purchase
Price will be decreased as follows:
$79,306 each day beginning March 2, 2007 through and including March 31, 2007
$76,504 each day beginning April 1, 2007 through and including April 30, 2007
$82,917 each day beginning May 1, 2007 through and including May 31, 2007
$133,412 each day beginning June 1, 2007 through and including June 30, 2007
$133,412 each day beginning July 1, 2007 through and including July 15, 2007
If the closing occurs after the 2007 refueling outage has been completed
including completion of the following major projects in accordance with Good
Utility Practices:
- - Core Barrel ISI (UT/VT) Inspection
- - Steam Generator Eddy Current Testing, Tube Plugging and Sludge Lancing
- - Replacement of Primary Coolant Pump P-50D Impeller
- - Control Rod Drive Seal Rebuilds
- - Alternate Spent Fuel Pool Cooling for Service Water and Component Cooling
Water Valve Repairs
- - Shutdown Cooling, Engineered Safeguards System and Safety Injection
Refueling Water Tank Valve Repairs and Replacements
- - Replace Power Operated Relief Valves (PORV's)
- - Main Feedwater Pump P-1B Rebuild
- - Low Pressure "B" Turbine Inspection
- - Main Generator Stator Rewind or Replacement
- - Main Condenser Eddy Current Testing
- - Flow Accelerated Corrosion Inspections
- - In-Service Inspections
- - Eddy Current Testing of Multiple Heat Exchangers
Then the Purchase Price will be $425,000,000 and will be decreased for each day
that the Closing Date occurs after November 1, 2007 as follows:
$76,504 each day beginning November 2, 2007 through and including November 30,
2007
$82,917 each day beginning December 1, 2007 through and including December 31,
2007
$137,857 each day beginning January 1, 2008 through and including January 31,
2008
$89,062 each day beginning February 1, 2008 through and including February 28,
2008
$79,306 each day beginning March 2, 2008 through and including March 31, 2008
$76,504 each day beginning April 1, 2008 through and including April 30, 2008
$82,917 each day beginning May 1, 2008 through and including May 31, 2008
$133,412 each day beginning June 1, 2008 through and including June 30, 2008
$133,412 each day beginning July 1, 2008 through and including July
SCHEDULE 4.3(a)
Seller's Third Party Consents - Palisades Assets
1. Release is required from the trust indenture dated as of September 1, 1945
between Consumers Power Company (now Consumers Energy Company) and the City Bank
Farmers Trust Company (now held by JP Morgan Chase Bank, NA, successor trustee).
2. Release of Installment Sales Contract and of Grant of Project Easements each
dated August 1, 1973, recorded Liber 624, Page 439, and Liber 624, Page 437, Van
Buren County, respectively
Consent of the counterparty is required to assign the following agreements:
1. Contract for telecommunication services between Consumers Energy Company and
Verizon North, Inc. dated February 23, 2006.
2. Document Services Agreement No. 811202 between CMS Energy Corporation and
Xerox Corporation as it applies to the lease of those specific units of
equipment that are located at the Palisades Site.
3. Contract No. 30000006 with Everest VIT. Service being provided: Remote Visual
Services and Equipment Rental.
4. Non-Residential Lease Agreement between Nuclear Management Company, LLC, as
agent for Consumers Energy Company, and David A. and Cheryl A. Calvin, dated
October 27, 2003.
5. Easement to Construct and Maintain Water Intake Line and Discharge Conduit
given by the Department of Conservation of the State of Michigan to Consumers
Power Company, dated January 17, 1968, and recorded at Liber 570, Page 271, Van
Buren County Records.
6. Lease Agreement between The City of Benton Harbor and Nuclear Management
Company, LLC (as agent for Consumers Energy Company), dated June 2, 2004. Based
on structure of applicable assignment or partial assignment, consent of one or
more of the other parties or beneficiaries to the following Fuel Contracts may
or will be needed:
1. UF6 Conversion Services Agreement between Nuclear Management Company, LLC,
for itself and as agent for Consumers Energy Company, Xcel Energy and Wisconsin
Electric Power Company, and Cameco Inc. dated March 27, 2006.
2. Uranium Concentrates Sale Agreement between Nuclear Management Company, LLC,
for itself and as agent for Consumers Energy Company, Northern States Power
Company and Wisconsin Electric Power Company, and Rossing Uranium Limited dated
May 26, 2005.
3. Uranium Enrichment Services Contract between Consumers Energy Company,
Northern States Power Company and Wisconsin Electric Power Company represented
by their agent Nuclear Management Company, LLC, and Urenco Enrichment Company
Ltd, Urenco (Capenhurst) Ltd, Urenco Deutschland GmbH and Urenco Nederland BV
dated October 26, 2004.
4. Uranium Conversion Services Agreement between Nuclear Management Company,
LLC, and ConverDyn, dated January 1, 2003.
5. Allocation Agreement Regarding Purchase of Uranium Conversion between
Consumers Energy Company, Northern States Power Company, Wisconsin Electric
Power Company and Nuclear Management Company, dated January 1, 2003.
6. Conversion Services Contract between Nuclear Management Company, LLC. and
Areva NC Inc. (DRAFT, YET TO BE SIGNED).
7. Uranium Enrichment Services Contract between Nuclear Management Company, LLC.
and Areva NC Inc. (DRAFT, YET TO BE SIGNED).
8. Agreement between Rossing Uranium Limited and Nuclear Management Company,
LLC. for the Sale and Purchase of Natural Uranium Concentrates (DRAFT, YET TO BE
SIGNED).
9. Uranium Concentrates Sale Agreement between Itochu Corporation and Nuclear
Management Company, LLC. (DRAFT, YET TO BE SIGNED).
Seller's Third Party Consents - Big Rock ISFSI Assets
1. Release is required from the trust indenture dated as of September 1, 1945
between Consumers Power Company (now Consumers Energy Company) and the City Bank
Farmers Trust Company (now held by JP Morgan Chase Bank, NA, successor trustee).
2. Consent of counter parties is required under the Memorandum of Understanding
among NRC, Michigan State Historic Preservation Office and Consumers Energy
Company, dated January 31, 2006.
Seller's Third Party Consents - Safeguards Information - Palisades and Big Rock
ISFSI Assets
1. In each of the Site Security Plans for Palisades and Big Rock, there are
agreements with the applicable Michigan State Police Post and, in the case of
Big Rock with the Charlevoix County Sheriff and in the case of Palisades with
the Van Buren County Sheriff. Since these agreements are Safeguards Information
they are subject to specific security requirements. Bidders are being put on
notice that these agreements exist and may, by their terms, require permission
of the counterparty prior to transfer.
SCHEDULE 4.3(b)
Seller's Required Regulatory Approvals - Palisades and Big Rock ISFSI Assets
Michigan Public Service Commission
1. Approval of the Power Purchase Agreement from the MPSC pursuant to 1982 PA
304 (MCL 460.6j(13)(b)).
2. Approval by the MPSC of the manner in which Seller's rates will be adjusted
to remove the costs associated with ownership of the Palisades Plant and to
incorporate the costs incurred pursuant to the Power Purchase Agreement.
3. An MPSC order affirming that the requirements imposed by the October 24, 2000
Order in MPSC Case No. U-12505 (the "Securitization Order") authorizing the
securitization of Consumers' investment in Palisades have been satisfied.
4. An MPSC order affirming that the proposed transfer and disposition of assets
from the MPSC jurisdictional Decommissioning Funds is consistent with all
applicable MPSC requirements.
5. A certificate of public convenience and necessity pursuant to 1929 PA 69 (MCL
460.501 et seq) to provide retail electric service to Palisades.
Federal Energy Regulatory Commission
1. Authorization pursuant to Federal Power Act Section 203 for Seller to sell
and Buyer to purchase, those Facilities subject to FERC jurisdiction.
2. Grant of authority pursuant to Federal Power Act Section 205 to sell electric
capacity, energy and ancillary services at wholesale.
Nuclear Regulatory Commission
1. Authorization to transfer the NRC Licenses to Buyer and Buyer's Affiliate.
2. Approval of conforming administrative license amendments for the transfer.
Other
1. With respect to filings required under the HSR Act, the expiration, or the
earlier termination, of all applicable waiting periods under the HSR Act.
2. Approval by the Federal Communications Commission of the transfer to Buyer of
the radio licenses listed on Schedule 2.1(m).
3. Grant of a local franchise for the provision of retail electric service to
Palisades by Seller.
4. Such other declarations, filings, registrations, notices, authorizations,
consents or approvals of any Governmental Authority as are required by Law for
the consummation of the contemplated transactions.
5. Consent of the appropriate agency or department of the State of Michigan to
the assignment by Seller to Buyer of the easement granted by the State of
Michigan, Department of Conservation, to Consumers Power Company by instrument
dated January 17, 1968, recorded in Liber 570 at Page 271, Van Buren County
Records.
SCHEDULE 4.6
Exceptions Related to Insurance - Palisades Assets
Certain structures at the Palisades Plant do not meet the NEIL standard for
insurability for fire coverage. Therefore, the following structures or buildings
and their contents are excluded from the NEIL policy for loss caused directly or
indirectly by fire, or fire following lightning or explosion, or by any separate
and independent accident which ensues therefrom.
1. Trailers of combustible construction without acceptable suppression.
2. South Radwaste Pole Building.
3. Enclosed Wooden Stairway (located on east side protected area between the
upper road and lower grade level).
Exceptions Related to Insurance-Big Rock ISFSI Assets
Certain structures at the Big Rock Point Independent Spent Fuel Storage
Installation (ISFSI) Site do not meet the NEIL standard for insurability for
fire coverage. Therefore, the following structures or buildings and their
contents are excluded for loss caused directly or indirectly by fire, or fire
following lightning or explosion, or any separate and independent accident which
ensues therefrom.
1. The Pole Building adjacent to the ISFSI Pad.
2. The ISFSI Security (Administration) Building.
SCHEDULE 4.7
Environmental Matters
Noncompliance with Environmental Laws/Permits - Notices From Governmental
Authorities in Last Two Years
1. EPA Notice of Violation and Information Request Dated June 27, 2005. This
alleged that the Plant had violated the Resource Conservation and Recovery Act
by having a sign reading "Waste Oil" on a tank that should have been marked
"Used Oil." The Company responded by letter dated July 25, 2005. The Plant had
placed a new sign on the subject tank by March 16, 2005. A subsequent letter
from the EPA dated August 9, 2005, stated that the agency had determined that
"additional enforcement actions need not be taken at this time."
2. On December 14, 2004, Seller notified the Michigan Department of
Environmental Quality by telephone that there was an apparent difference from
the daily limitation for oil and grease at internal outfall 00F, the Turbine
Sump Oil Water Separator. Sample analysis showed that oil and grease exceeded
the daily limit of 20 mg/l. There was no sheen or other visible evidence on the
water. Upon detection, the system was immediately pumped and cleaned. The
problem has not recurred. The oral report was followed by a written Agency
Notification Report, attached to a letter from Jennifer A. Crawford, dated
December 17, 2004.
3. The U.S. EPA "ECHO" system on line shows a number of alleged violations of
reporting requirements. The EPA states: "An identified system compatibility
problem exists between Michigan and EPA, which is being worked on. Problems in
transferring data is resulting in faulty water compliance data, making it
difficult for the state to properly correct errors at this time."
Markus Tironi of the Michigan Department of Environmental Quality states:
"The database suggests that the Palisades Power Plant in Van Buren County,
Michigan is not in compliance due to non-receipt of DMR data and some other
violations in previous years. I have personally verified that the DMR's were
submitted and there are no violations contained therein. Talking with the DEQ
Lansing Staff, there appears to be a data uplink problem between NMS and PCS."
Therefore, while alleged violations currently show on the ECHO system, they do
not exist.
4. In January 2005, the Palisades Plant received a telephone call from the
Michigan Department of Environmental Quality (MDEQ), concerning an investigation
of potentially improper disposal of septic waste by Burrows Sanitation at
Off-Site Locations. The Plant provided to the MDEQ its records related to
shipments of septic waste pumped from the Plant septic system. The Plant also
ceased using Burrows Sanitation for its septic waste. Seller does not know the
results of the MDEQ investigation or whether any action was taken against
Burrows Sanitation by the MDEQ as a result. There were no allegations of
unlawful activity by the Plant.
5. The MDEQ Air Quality Division issued a Letter of Violation, dated September
20, 2004. The letter alleged that Palisades failed to do required annual sulfur
testing on Tank 9-26 since 2000. NMC disputed the violation, because the sulfur
content of the tank was determined from fuel oil specifications and/or analysis
for each delivery of fuel oil. Palisades also tested a sample from the tank to
verify that the tank met requirements. Palisades has heard nothing further about
it from the MDEQ.
In the same letter, the MDEQ inquired as to three other matters. It asked how
much hydrazine was emitted during the venting of excess steam from turbine
vents. NMC responded zero, because the hydrazine would have been chemically
changed to water and trace amounts of ammonia. The second question was why
Palisades preserved its records on microfilm, rather than saving originals. NMC
responded by stating that the NRC license refers to ANSIN 45.2.9, which requires
that records be saved by microfilm. The third matter related to the position of
certain stack/vents. The MDEQ suggested that Palisades file for an amendment to
Renewable Operating Permit 20020005 to clarify that the stack/vents discharge
horizontally instead of upwards. The amendment was filed.
6. In 2005, Palisades paid a $105.00 late fee for the late payment of Michigan
hazardous waste user fees, due April 30 each year.
Releases
See all matters described in the below-listed Phase I Environmental Site
Assessments, copies of which have been made available to Buyer:
Phase I Environmental Site Assessment
Palisades Nuclear Power Plant
Covert, Michigan
February 24, 2006, as amended May 19, 2006
Phase I Environmental Site Assessment
Consumers Energy Shooting Range
Covert, Michigan
February 24, 2006
See also the Environmental Cleanups listed later in this Schedule 4.7.
Other known releases of hazardous substances are shown in the following list
titled "Release Study - Palisades Nuclear Plant." This list contains releases
from 1987 to present. General records of prior releases have not been located.
RELEASE STUDY - PALISADES
Palisades has encountered numerous minor spills of oil and various chemicals in
use at the facility. Small spills occur on a regular basis which either have not
reached the environment or reached the environment in small non-reportable
quantities. Typically, these are immediately cleaned up by the personnel
involved. They are seldom reported to regulatory agencies. Listed below are the
releases reported to regulatory agencies and certain other releases deemed
appropriate for inclusion in this report.
Date Disc Contact/ Coord Material Loss to Cleanup
Quantity
(Approx)
Date
MDEQ
Notified
(Verbal)
Date on
MDEQ
Letter Notes
12/14/2004 Oil and Grease Lake Michigan No visible signs NPDES
exceeded
12/14/2004 12/17/2004 Turbine sump oil
separator
11/18/2003 JMcElrath, JHager Mineral oil (30 ppm
PCB)
Pavement and
Soil
removed all
Visible Signs,
sampling
verified <1 ppm
75 gal 11/18/2003 11/26/2003 Accidental loss
during
transformer
maintenance
4/11/2002 JHosking,AAurino Mineral Oil Substation
Stones
removed all
Visible Signs
< 5 gal 3/4 3/4
10/4/2002 Cleaning solution
with phosphoric acid
Warehouse Floor Janitors removed unknown none none Completely
contained in
building
3/27/2002 JHager Sulfate deposits
discovered
Near A Cooling
Tower Fire Main
and acid pump
house
Removed visible
contamination
and replaced
with backfill
2
dumpsters
none none Believed due to
historic sulfuric
acid releases
2/12/2002 EDehn Sewage (liquids
only)
Sand and Storm
Drain
None - soaked
into sand
300 gal 2/12/2002 2/13/2002 Pump failure
4/6/2001 EDean,JHager Grease Water Removed Sheen
and cleaned
excess grease
< 1 gal 4/6/2001 4/9/2001 Traveling Screens
(NRC)
3/31/2001 EDehn Oily water (60 ppm) Lake Michigan No visible signs 600 gal
3/31/2001 4/5/2001 bypassed
separator
5/14/1998 EDehn Oil and Grease Internal Outfall
00F
No visible signs.
Stopped
contractor from
further dumping
and installed
NPDES
exceeded
5/19/1998
Contractor
dumped oily
water down drain.
No exceedance at
outfall to Lake
signs Michigan
5/28/1997 EDehn R-22 Air Ventilated
Building
53 lbs 5/28/1997 6/2/1997 Pipe Failure
(EPA/LEPC)
10/23/1996 EDean Diesel Fuel Soil See Fuel Oil
Storage Tank
Release detail
1 gal 10/23/1996 10/30/1996 Oil Tank Fill Pipe
(Historic)
10/1/1996 Sulfuric Acid Soil near
feedwater purity
bldg
Tank and caustic
soil removed
Neutralizer Tank
T921
2/28/1996 Edehn/Jhager Sulfuric Acid
Solution 1.4%
Water in mixing
basin
None- pH was in
compliance with
NPDES permit
after mixing
with other
Palisades water.
15,000 gal 2/28/1996 2/13/1996 Broken Valve
9/5/1995 EDehn Hydraulic Oil from
truck
Soil removed all
visible signs
~ 5-10 gal 9/5/1995 9/6/1995 Broken hose on
truck
3/22/1994 ACalloway Clean Tightness Test
Water
Soil None required 720 gal No report on file -
obtained from
summary
7/13/1994 JMcElrath Water with small
amount of soap
Soil None 55 gal 7/13/1994 Bulldozer Hit
pipe
11/29/1994 EDehn Lube oil Cooling Water
System
Absorbed - No
release to
environment
10 gal 11/29/1994 12/9/1994 Two small
releases on same
report
11/11/1994 EDehn Groundwater with
low levels of
Trichlorethene (1.9
ug/L),
Tetrachloroethene
(0.2 ug/L)
Groundwater
remediation
building, Sand
and Storm Drain
5400 gal
of mixture
11/11/1994 11/21/1994
Groundwater
treatment system
for north fuel
depot release to
storm drain
11/2/1994 EDehn 19 gal Sodium
Hypochlorite 16%
and 331 gal water
Lake Michigan No adverse
impacts
observed
19 gal 11/2/1994 11/11/1994 Flange leak in
feed line during
chlorination of
intake water.
Release to South
Intake Structure
Overflow
Spillway
Stormwater
Discharge
10/25/1994 Clear Sewage 100 gal
10/6/1994 JPaver Lube oil Cooling Water
System
Absorbed - No
visible release to
environment
18 gal 10/7/1994 10/13/1994 Fan motor oil leak
8/30/1994 JPaver Clear Sewage storm drain none 5 gallons 8/30/1994 9/2/1994
Septic system
overflow
8/25/1994 JPaver Clear Sewage none 3 gallons Septic system
overflow
4/10/1994 RLFobes Total Residual
Oxidant exceedance
for less than 15
minutes
Lake Michigan No adverse
effects observed
NPDES
exceeded
not dated
3/24/1994 ACalloway Clear Sewage storm drain and
spillway - some
may have
reached lake
pumped out
what they could
<60 gal 3/24/1994 3/28/1994 Septic system
overflow due to
obstructed line
10/25/1993 ACalloway liquid Sewage Soil vacuumed as
much as possible
100 gal 10/25/1993 10/28/1993 Broken line
during repair
work
Aug 31
and Sep 1,
1993
RLFobes Groundwater with
low levels of
Trichlorethene (20.9
ppb),
Tetrachloroethene
(8.2 and 19.1 ppb)
Lake Michigan adjusted water
treatment
equipment
NPDES
exceeded
not dated Groundwater
treatment system
for north fuel
depot release
8/12/1993 RLFobes Total Residual
Oxidant
Lake Michigan No adverse
effects observed
NPDES
exceeded
not dated
5/12/1993 JHager Sulfuric Acid Containment
sump pit
pumped out -
repaired tank -
No release to
environment
<25 gal None None Small acid leak to
containment -
Tank T-907
1/5/1993 Sewage - clear liquid Storm drain No adverse
impact observed
50 gal not dated pump failure
7/13/1992 RLFobes Total Residual
Chlorine
Lake Michigan No adverse
impact observed
NPDES
exceeded
not dated routine
chlorination
7/9/1992 ACalloway Sewage Storm drain and
sand
No observed
remnants
100-200
gal
7/9/1992 not dated Septic system
overflow due to
obstructed line
5/17/1992 RLFobes Total Residual
Chlorine
Lake Michigan No adverse
impact observed
NPDES
exceeded
not dated
4/8/1992 RLFobes Oil and Grease Lake Michigan No adverse
impact observed
- - placed
absorbent
pillows in sump
NPDES
exceeded
not dated Turbine sump oil
separator
1/9/1992 ACalloway Sewage storm drain and
sand
No observed
remnants
10 gal 1/10/1992 1/16/1991 Septic system
overflow due to
obstructed line
12/10/1991 RLFobes Oil and Grease Lake Michigan No observed
remnants in
Lake - cleaned
out sump
NPDES
exceeded
not dated Turbine sump oil
separator
8/19/1991 ACalloway Hydrazine (14 liters
of hydrazine diluted
with very large
amount of water)
containment area
and Lake -
mixing basin
concentrations
measured 7 ppb
or less
Containment
area cleaned
<1 lb 8/20/1991 8/21/1991 Dilution water
valve left
unattended - tank
overflowed.
7/10/1991 ACalloway Sewage parking lot and
storm drain
Rinsed with fire
hose.
200 gal 7/19/1991 7/19/1991 Cracked sewer
cleanout cover
12/6/1990 ACalloway Hydraulic Oil Soil removed all
visible signs
25 gal 12/6/1990 12/11/1990
Broken hydraulic
line on truck
11/18/1990 JD'Addona water with
trichloroethylene
traces (16 ug/l and
20 ug/l in two
samples) Volume
reported is total
volume pumped.
Not all water
exceeded standards
Lake Michigan Improved air
stripper
172,800
gallons
12/18/1990 Groundwater
treatment system
for north fuel
depot release -
exceeded
standards during
initial testing.
10/13/1990 ACalloway Clear Liquid Sewage storm drain No observed
remnants
700 gal 10/15/1990 10/16/1990 septic system
overflow
9/20/1990 ACalloway Sewage beach No observed
remnants
5 gal 9/20/1990 9/21/1990 septic system
overflow
8/30/1990
&
9/4/1990
ACalloway Sewage storm drain No observed
remnants
5 gal & 5
gal
9/5/1990 9/5/1990 septic system
overflow
5/29/1990 Sewage Storm drain No observed
remnants
< 50 gal Septic system
overflow
4/16/1990 ACalloway Sewage soil No observed
remnants
unknown 4/16/1990 Septic tank
overflow
PM&MP Building
4/2/1989 ACalloway Diesel Fuel Soil near tank
T-10 west
standpipe
All visible signs
were removed
5-10 g Probable tank
overfill
6/16/1988 RLFobes chlorine residual Lake Michigan NPDES
exceeded
excess
hypochlorite
added to cooling
tower A.
5/16/1988 RLFobes Oil and Grease Lake Michigan NPDES
exceeded
5/23/1988 Turbine sump oil
separator
8/18/1987 ACalloway EHC fluid
(phosphate esther
synthetic oil)
Most absorbed -
less than 50 gal
released to the
Lake. No visible
amount in the
lake
System cleaned
and excess oil
removed
100-150
gal
8/18/1987 8/28/1987 Broken line
7/24/1987 ACalloway Sulfuric acid sand All acid-bearing
sand removed,
testing
10 gal
neutralizer tank
leak
confirmed
cleanup
5/27/1987 DAndrews Sodium hypochlorite Cooling Water
System
Did not reach
environment
30 gal tubing separated
during treatment
of water
8/12/1986 RLFobes demineralizer
regenerant
soil none needed -
soil was within
pH limits
200
gallons
8/12/1986 8/14/1986 overflow of
demineralizer
during rinse.
6/1/1986 RLFobes suspended solids Lake Michigan NPDES
Exceeded
7/10/1986 Neutralizer tank
was released with
excess suspended
solids
5/1/1986 RLFobes Oil and Grease - two
events
Lake Michigan oil/water
separator was
cleaned by
contractor
NPDES
Exceeded
6/9/1986 Turbine sump oil
separator
5/15/1986 RLFobes Regenerant - pH 2.6 sand under tank Repaired leaking
valve
1000
gallons
5/15/1986 5/21/1986 Deminerlizer tank
overflow
5/14/1986 RLFobes Oil and Grease Lake Michigan NPDES
Exceeded
5/21/1986 Turbine sump oil
separator
bypassed during
cleaning of sump
5/13/1986 RLFobes Regenerant - pH 1.7 sand under tank Repaired leaking
valve
100
gallons
5/13/1986 5/21/1986 Deminerlizer tank
overflow
10/28/1985 RLFobes chlorine residual Lake Michigan NPDES
Exceeded
11/6/1985 Sodium
hypochlorite
injection
10/21/1985 RLFobes Oil and Grease Lake Michigan NPDES
Exceeded
11/4/1985 Turbine sump oil
separator
10/25/1985 RLFobes 98% sulfuric acid Sand near tank
acid tank
containment
basin.
removed and
disposed acidic
sand
4 gallons 10/25/1985 11/1/1985
Piping failure on
acid tank fill line
9/19/1985 RLFobes Sulfuric Acid (0.3
gal acid in 25 gal
water)
Lake Michigan pumped liquid
from trench back
to tower,
neutralized soil
with lime and
water.
25 gal 9/25/1985 9/25/1985 Leak in acid
solution trough
sprayed water into
acid pipe trench
9/21/1985 RLFobes Oil and Grease Lake Michigan NPDES
Exceeded
10/4/1985 Turbine sump oil
separator
9/8/1985 RLFobes Lube oil Lake Michigan sorbent booms
placed to collect
oil film and
swept the Lake
10 gallons 9/8/1985 9/12/1985 oil spilled to
makeup basins
and flowed to
Lake Michigan -
causing a sheen
for about 50 feet
into the lake.
8/29/1985 RLFobes Lube oil Lake Michigan No oil film was
observed
<1 gal 8/29/1985 9/5/1985 small spill to
makeup basin
8/22/1985 RLFobes Lube oil Lake Michigan Sorbent pillows
in makeup basin
and mixing
basin. Booms in
makeup basin
<2 gallons 8/24/1985 9/3/1985 Oil from cooling
towers washed
through system at
startup.
7/31/1985 RLFobes #2 Fuel Oil Lake Michigan No oil film was
observed on the
Lake
10 gallons 7/31/1985 8/9/1985 Cooling tower
overflow washed
oil from a barrel
to storm drains
7/6/1985 RLFobes 13% Sulfuric Acid trench and soil pumped liquid
from trench back
to tower,
neutralized soil
with lime and
water.
10 gallons 7/8/1985 7/16/1985 Break in line on
pump discharge to
cooling towers.
About one gallon
escaped the trench
to soil.
6/14/1985 RLFobes 93% sulfuric acid Cooling tower A
building floor
and soil
Contractor
removed acid
and acidic sand
250
gallons
5/23/1985 RLFobes acid demineralizer
regenerant
Lake Michigan 3000 gal 6/4/1985 Acid released
from Neutralizer
tank. May have
caused effluent to
Lake Michigan to
fall below 6.0 pH
- - though grab
sample tested at
6.02 pH
5/2/1985 RLFobes caustic soda 20% recovered about
half the liquid.
1875
gallons
5/2/1985 5/10/1985 Overflow of T907
to chem sump
5/1/1985 RLFobes demineralizer
regenerants
Added lime.
Subsequent
release of caustic
soda neutralized
further
840
gallons
5/2/1985 5/10/1985 sulfuric acid
leaked to sand
4/15/1985 RLFobes Oil and Grease Lake Michigan NPDES
Exceeded
5/6/1985 Turbine sump oil
separator
4/19/1985 RLFobes 93% sulfuric acid Concrete trench
and sand
Added lime to
neutralize soil
332
gallons
4/10/1985 4/17/1985 Bolts failed on
flange in acid feed
line - cooling
tower "A". Most
of the acid was
contained in the
concrete trench
for the feed line.
2/1/1985 RLFobes Oil and Grease
several events
Lake Michigan tuning new
oil/water
separator
NPDES
Exceeded
3/19/1985 Turbine sump oil
separator
1/1/1985 RLFobes Oil and Grease
several events
Lake Michigan cleaned out
sump and tuning
new oil/water
separator
NPDES
Exceeded
2/6/1985 Turbine sump oil
separator
11/20/1984 RLFobes Oil and Grease Lake Michigan NPDES
Exceeded
12/3/1984
Oil/water
separator
bypassed - 7,000
gallons of water
pumped to outfall
- - may have had
oil or grease.
10/22/1984 RLFobes Oil and Grease Lake Michigan filters replaced NPDES
Exceeded
10/30/1984 Turbine sump oil
separator
10/12/1984 RLFobes 50 % Caustic Soda sand under
neutralizer tank
T921
soil removed and
disposed
50 gallons 10/12/1984 1/10/1985 Caustic transfer
line separated.
9/25/1984 DHAndrews Fuel Oil Sandy soil All visible signs
removed - 200
cubic yards soil.
Absorbent pads
removed oil
from water
250
gallons
9/25/1984 10/5/1984 Tank T-10
overfill
8/1/1984 RLFobes Oil and Grease - two
events
Lake Michigan filters replaced NPDES
Exceeded
10/3/1984 Turbine sump oil
separator
7/1/1984 RLFobes Oil and Grease
several events
Lake Michigan filters and
absorbent pads
replaced
NPDES
Exceeded
Several Turbine sump oil
separator
7/2/1984 RLFobes Oil and Grease Lake Michigan filters replaced NPDES
Exceeded
7/12/1984 Turbine sump oil
separator
5/29/1984 RLFobes Oil and Grease Lake Michigan filters replaced NPDES
Exceeded
6/11/1984 Turbine sump oil
separator
2/24/1984 ACKuhn Fuel Oil soil soil removed and
disposed
30 to 40
gallons
2/24/1984 3/8/1984 Tank T-10
overfill
2/1/1984 LDEverhart PCB-contaminated
Mineral Oil (unit
tested 65.7 ppm of
PCB)
soil and rocks
around and
under the
transformer and
absorbent pads
in catch basin
under the unit.
Retrofilled
transformer with
non-PCB oil.
Removed and
disposed of 30
cubic yards of
soil and
seeping to
catch
basin
2/24/1984 1/13/1985
Station Power
Transformer 1-1
leaked through
defective bushing
near top of the
transformer
absorbent pads.
1/11/1984 ACKuhn Fuel Oil Loss contained
by snow
snow removed
and disposed
150
gallons
1/11/1984 1/19/1984 Tank T-10
overfill
8/1/1983 RLFobes Oil and Grease - two
events
Lake Michigan NPDES
Exceeded
9/15/1983 Turbine sump oil
separator
6/20/1983 RLFobes Chlorine residual Lake Michigan NPDES
Exceeded
7/19/1983 Excess sodium
hypochlorite
injection. No
adverse effects
observed
6/1/1983 RLFobes Oil and Grease
several events
Lake Michigan filters replaced NPDES
Exceeded
6/28/1983 Turbine sump oil
separator
4/18/1983 RLFobes Oil and Grease Lake Michigan emptied oil
skimmers
NPDES
Exceeded
4/29/1983 Turbine sump oil
separator
4/9/1983 RLFobes Water pH 5.5
released to lake
Lake Michigan NPDES
Exceeded
4/21/1982
12/1/1982 RLFobes Oil and Grease Lake Michigan sump oil
absorbers
replaced
NPDES
Exceeded
12/21/1982 Turbine sump
emulsion filter
10/4/1982 RLFobes Chlorine residual Lake Michigan NPDES
Exceeded
11/24/1982 Excess sodium
hypochlorite
injection. No
adverse effects
observed
9/1/1982 RLFobes Oil and Grease
several events
Lake Michigan filters and
absorbent pads
replaced
NPDES
Exceeded
Several
Turbine sump oil
separator
8/1/1982 RLFobes Oil and Grease
several events
Lake Michigan NPDES
Exceeded
Several Turbine sump oil
separator
7/1/1982 RLFobes Oil and Grease
several events
Lake Michigan NPDES
Exceeded
8/16/1982 Turbine sump oil
separator
6/1/1982 RLFobes Oil and Grease
several events
Lake Michigan system repaired NPDES
Exceeded
several Turbine sump oil
separator
'Mar 1982 RLFobes oil and grease
several days and
monthly average
Lake Michigan Source of oil
leakage repaired
NPDES
Exceeded
4/12/1982
03/29/1982
Heating boiler oil
loss
6/14/1982 WPMullins 93% sulfuric acid trench and some
overflow to soil
pumped liquid to
cooling tower.
Added one ton
lime to ground
and watered to
neutralize soil
500
gallons
6/15/1982 6/18/1982 caused by
corrosion of
flange bolts at
joints between
acid tank and
cooling tower
1/1/1982 RLFobes Oil and grease -
several reports
Lake Michigan Source of oil
leakage repaired
NPDES
Exceeded
3/11/1982
1/27/1982
Turbine Sump
10/1/1981 RLFobes Total suspended
solids - several
reports
Lake Michigan fixed procedures NPDES
Exceeded
Laundry and
Neutralizer tank
issues
10/6/1981 RLFobes Oil and grease Lake Michigan NPDES
Exceeded
10/23/1981 Turbine Sump
Separator waste
9/1/1981 RLFobes Oil and grease -
several reports
Lake Michigan NPDES
Exceeded
11/20/81
10/13/81
Turbine Sump
Separator waste
9/10/1981 RLFobes Phosphate Lake Michigan Stopped using
phosphate
detergent
NPDES
Exceeded
10/20/1981 Laundry and
other cleaning
9/30/1981 RLFobes Total suspended
solids - monthly
avarage
Lake Michigan laundry filters
replaced
NPDES
Exceeded
10/20/1981
Laundry
8/10/1981 RLFobes Oil and grease Lake Michigan replaced filters NPDES
Exceeded
9/21/1981 Emulsion breaker
part of oil
removal system
failed
7/17/1981 RLFobes Oil and Grease Lake Michigan replaced filters NPDES
Exceeded
8/4/1981 emulsion breaker
filters plugged
7/2/1981 RLFobes Oil and Grease Lake Michigan NPDES
Exceeded
7/21/1981 system bypass
during
maintenance
6/8/1981 RLFobes Oil and Grease Lake Michigan replaced filters NPDES
Exceeded
6/25/1981 Emulsion breaker
filters failed
5/15/1981 Eanderson Sulfuric Acid Sand Sand removed
and replaced
with limestone
300 gal 15-May-81 Temporary line
broke duiring
work on
permanent system
2/3/1981 RLFobes Oil and Grease Lake Michigan NPDES
exceeded
2/19/1981 turbine sump
1/5/1981 RLFobes Oil and Grease Lake Michigan NPDES
exceeded
1/21/1981 Emulsion breaker
filters
6/21/1980 Sodium
Hypochlorite
Lake Michigan repaired bushing 200 gal 6/26/1980 valve bushing
failure
8/18/1980 DHAndrews oil/grease 27.3 mg/l Lake Michigan Detectable floor drains
10/8/1980 HDAndrews Diesel Coolant
(chromated)
floor drains water collected
and disposed
67.5
gallons
9-Oct-80 11/3/1980 No loss to water
or soil
'July 1980 RLFobes Oil grease Turbine Bldg
Floor and Lake
absorbent,
pumped oil out
10,000 gal
to floor,
18 gal to
lake
Broken seal on oil
strainer released
oil to turbine bldg
floor. NPDES
discharge
exceeded
oil/grease
standard for
month
6/30/1980 RLFobes oil/grease None Detectable
filter system issue
1/28/1980 RLFobes oil/grease Outfall
OOO/OOG
None Detectable filter system issue
3/21/1979 RLFobes acid in water Mixing Basin
and Lake
None 9000 gal Neutralizer tank
overflow
9/20/1978 LJKenaga CuSO4 cooling water
and Lake
Dilution small 8/28/1978 9/5/1978 caused by sulfuric
acid action on
copper in
condenser
5/22/1977 LJKenaga Lubrication Oil Lake Michigan None 25-30 gal 22-May-77
Accident during
maintenance in
turbine building
5/22/1977
Other Information - Specific Hazardous Materials
The following hazardous substances are or may be in use in large quantities at
the locations shown. Some have been used at other locations in the past. They
may also be in use in smaller quantities at other locations at the Palisades
Site.
1. Aliphatic Petroleum Distillates
T-10 A South of the Turbine Building
T-24 First Floor Turbine Building
T-25 A & B First Floor Turbine Building
T-926 West of Feed Water Purity Building
One Tank in Warehouse Parking Lot
2. Benzene, Petroleum Hydrocarbons
Two Tanks in Warehouse Parking Lot
3. Hydrazine
T-16 First Floor Turbine Building
T-19B & C First Floor Turbine Building
Storage Area in Warehouse
Storage Area by T-16, T-19B and T-19C
4. Lube Oil
Lube Oil is ubiquitous at the Palisades Site - large quantities at
T-11 First Floor Turbine Building
T-12 First Floor Turbine Building
T-21 A and B First Floor Turbine Building
5. Nitrogen (Liquid)
Tank South of the Turbine Building
Cylinders on West Side of Turbine Building
6. Sodium Hypochlorite
T-18A & B First Floor Turbine Building
Day Tank - Second Floor Feed Water Purity Bldg
Warehouse II
7. Sulfuric Acid
T-907 - 1st Floor Feed Water Purity Building
Warehouse
Chemistry Labs
T-955A 2d Floor Feed Water Purity Building
T-955B 2d Floor Feed Water Purity Building
8. Sulfuric Acid/Antimony Lead
Battery Bank Switchyard
Battery Bank Second Floor Turbine Building
Battery Bank Feed Water Purity Building
Battery Bank First Floor Service Building
Battery Bank Second Floor Aux Building
Battery Bank Second Floor Service Building
9. Trisodium Phosphate
Bins in Containment Building
Bins in Warehouse
10. Lead
Lead is ubiquitous at the Palisades Site
Among the locations with significant quantities:
East Radwaste Building
North Rad Materials Storage Building
South Pole Barn
Containment Building
Auxiliary Building
11. Asbestos
Asbestos is found at numerous locations at the Palisades Site.
12. Mineral oil - sometimes containing Polychlorinated Biphenyls (PCB) No
comprehensive PCB audit has been performed at Palisades. Large transformers have
been tested and are non-PCB (less than 50 parts per million of PCB). For certain
types of electrical equipment, Federal regulations at 40 CFR 761.2 require that
certain untested electrical equipment with mineral oil is presumed to be
PCB-contaminated, unless there is reason to know otherwise, such as by a "No
PCBs" label affixed by the manufacturer. Other presumptions may apply to other
types of untested electrical equipment. One large transformer contains 30 parts
per million of PCB. It previously had over 500 ppm, but was retro filled.
13. It is known that Trichloroethylene and tetrachloroethylene solvents had been
used in the past at the Palisades Site.
Waste Treatment and Disposal Sites
Name of Receiving Facility
at time of shipment EPA ID #
Currently
a disposal
facility in
business at
address?
Current facility
name, if different
than historical Address City St Zip
A-1 Disposal MID 059 695 452 No - 400 BROAD PLAINWELL MI 49080
Alma EER ( Consumers
Energy) MID 981 777 808 Yes - 1325 WRIGHT AVE ALMA MI 48801
Berreth Oil Co. INH 000 000 214 Yes - 1301 W. 6TH MISHAWAKA IN 46544
CECOS/SCMF OHD 087 433 744 Yes
CECOS
Environmental 5092 ABER ROAD WILLIAMSBURG OH 54176
Chem Met Services MID 096 963 194 Yes
Perma Fix of
Michigan Inc 18550 ALLEN ROAD WYANDOTTE MI 48192
Chemical Analytics, Inc MID 985 568 021 Yes - 29959 BEVERLY ROAD ROMULUS
MI 48174
City Disposal, Inc MID 054 683 429
Yes
(limited)
City Disposal
Systems Inc
1550 HARPER ST PO
BOX 260 DETROIT MI 48211
Crystal Flash Environmental
Services, Inc MID 985 602 846 Yes - 1754 ALPINE ST NW GRAND RAPIDS MI 49504
Chemical Waste Management
Chemical Services ( NY)
NYD 049 836 679 Yes - 1550 BALMER ROAD MODEL CITY NY 14107
Cyanokem MID 098 011 992 No Le Petomane VII
Custodial Trust
12381 SCHAEFER DETROIT MI 48227
Diversified Scientific
Services
TND 982 109 142 Yes - 657 GALLAHER ROAD KINGSTON TN 37763
Duratek TND 982 157 570 Yes - 1560 BEAR CREEK RD OAK RIDGE TN 37830
Dynecol, Inc MID 074 259 565 Yes - 6520 GEORGIA ST DETROIT MI 48211
Environmental Recycling, Inc OHR 000 034 025 Yes - 527 E WOODLAND
CIRCLE
BOWLING GREEN OH 43402
Environmental Waste Control MID 057 002 602 Yes Advance Resource
Recovery LLC
27140 PRINCETON
AVE
INKSTER MI
48141
EQ Industrial Services, Inc MI0 000 131 292
(old location)
No - 3650 CARPENTER
ROAD
YPSILANTI MI 48197
EQ Resource Recovery. Inc MID 060 975 844 Yes - 36345 VAN BORN RD ROMULUS
MI 48174
MID 047 189 568 Yes -
12680 BEECH DALY
General Oil Co. RD REDFORD MI 48239
Global Recycling
Technologies, Inc MAD 985 290 469 No - 387 PAGE STREET STOUGHTON MA 02072
Gold Shield Solvents MID 091 605 972 Yes Detrex Corporation 12886 EATON AVE
DETROIT MI 48227
Granger Landfill MID 082 771 700 Yes
Granger Land
Development Co
8550 W GRAND RIVER
RD GRAND LEDGE MI 48837
Michigan Disposal WTP MID 000 724 831 Yes
EQ Michigan
Disposal
49350 N I-94 SERVICE
DR. BELLEVILLE MI 48111
OHM Resource Recovery (
Solidtek) GAD 096 629 282 Yes
Onyx
Environmental
Services LLC 5371 COOK RD MORROW GA 30260
Oakland Heights
Development LF
NA (Auburn Hills
MI) Yes - 2350 BROWN ROAD AUBURN HILLS MI 48326
Orchard Hills Landfill
NA (Watervliet
MI) Yes
Landfill
Management Co 3378 HENNESSEY RD WATERVLIET MI 49098
Petro Chem Processing, Inc MID 980 615 298 Yes - 421 LYCASTE ST DETROIT MI 48214
Recovery and Reclamation,
Inc
TXD 981 514 268 Yes Trans Pecos
Recycling and
Materials
PO BOX 571 PECOS TX 79772
Recovery Specialists, Inc MID 000 722 652 Yes - PO BOX 255 SALINE MI 48176
Recyclelights MN0 000 903 468 Yes Onyx Special
Services Inc
401 W 86TH ST BLOOMINGTON MN 55420
Safety Kleen, Corp TXD 055 141 378 Yes Clean Harbors Deer
Park LP
2217 WESTERN AVE SOUTH BEND IN 46619
SQS, Inc MIR 000 020 719 Yes - 49350 N I-94 SERVICE
DR.
BELLEVILLE MI 48111
Stoddard Oil Co. MID 000 809 574 Yes - 3456 12TH ST WAYLAND MI 49348
Superior Special Services, Inc WID 988 642 424 Yes Onyx Special
Services Inc
1275 MINERAL
SPRINGS DR
PORT
WASHINGTON
WI 53074
Trade Waste Incinerator ILD 098 642 424 Yes Onyx
Environmental
#7 MOBILE AVE SAUGET IL
62201
Services Trade
Waste Incineration
Usher Oil Co. MID 016 985 814 Yes - 9000 ROSELAWN DETROIT MI 48204
USL City Environmental MID 980 991 566 Yes EQ Detroit Inc 1923 FREDERICK ST
DETROIT MI 48211
Wayne Disposal, Inc MID 048 090 633 Yes -
49350 N I-94 SERIVCE
DR BELLEVILLE MI 48111
Westside RDF
NA (Three Rivers
MI) 49093 Yes - 14094 M-60 WEST THREE RIVERS MI
Cleanups
Environmental cleanups which were performed with State of Michigan oversight are
listed below. Several of the releases listed in the "Release Study - Palisades
Nuclear Plant" as well as in the Phase I Environmental Site Assessments
previously referenced in this Schedule 4.7 also involved minor cleanups at the
Palisades Site.
1. Palisades Plant North Fuel Depot Area - An historic solvent spill of unknown
date was cleaned to generic residential standards, pursuant to Part 201 of the
Michigan Natural Resources and Environmental Protection Act, MCL 324.20201 et.
seq. A letter dated October 11, 2000 from David O'Donnell, supervisor of the
Michigan Department of Environmental Quality Plainwell District Office states
that, "Based upon our evaluation of your submittals, your request for a generic
residential closure for the former Fuel Depot area of the Palisades Nuclear
Power Plant has been approved."
2. Warehouse Hydrocarbon Release Area - A hydrocarbon release near the warehouse
was cleaned to the Type B Criteria in effect at the time (health-based criteria
roughly equivalent to today's generic residential criteria.) An April 17, 1995
letter from Larry Poynter of the Michigan Department of Natural Resources
Plainwell District Office states that, "Based on all supplied information, the
MDNR agrees that no further action is required on this matter."
3. Fuel Oil Storage Tank Release - When the former fuel oil storage tank T-10
and related piping were replaced at Palisades, a small area of fuel oil release
was discovered, and reported on October 23, 1996. The release was in the area of
the fill port, and is believed to have been caused by dripping from the fill
port, rather than from the tank. Approximately 20 cubic yards of soil were
excavated from the impacted area. The soil did not exhibit any discoloration,
staining or odor. Due to the presence of low-level radioactivity (Cs-137 at 1.2
E-7 TCi/gm), the soil could not be disposed off-site. The tank was removed, and
the sidewalls were tested for PAH and BTEX. All samples were either non-detect
or below generic residential cleanup standards. The soil was left exposed to air
to allow hydrocarbons to naturally attenuate. Analytical sampling on July 25,
1997 confirmed that the fuel oil in the soil had naturally attenuated to less
than the generic residential cleanup standards. Therefore the soil was returned
to the excavation as backfill, along with other excavated soil. On September 11,
1997, a letter from David A. Olsen, of Seller's Environmental Department to Mr.
Larry Poynter of the Michigan Department of Environmental Quality Plainwell
District Office recited the details, and indicated the Seller's position that
"At this time, no further remedial action is necessary, and we consider the site
closed under Part 201 of Act 451."
4. On February 24, 1984, a spill from a PCB-contaminated transformer (Station
Transformer 1-1) in the Palisades substation was reported to the MDNR. The
transformer tested at 65.7 ppm of PCB in mineral oil. The release was seeping
less than one pint per day from a defective bushing near the top of the
transformer, but it had been on-going for some time. There was a catch basin
under the transformer. Samples from the catch basin soil tested from 0.2 to 16.8
ppm of PCB. Soil near the sump and storm
drain tested from non-detect to 1.3 ppm. Absorbent pads in the sump tested from
12.9 to 61.4 ppm. Based on those results, cleanup efforts focused on the soil
and rocks under the transformer and the absorbent pads in the sump. The
transformer was retrofilled with non-PCB oil in April 1984. 30 cubic yards of
soil and rocks were removed and disposed, along with the absorbent pads from the
sump. Water from the sump tested less than 1 ppm of PCB.
Environmental Matters - Big Rock ISFSI Assets
See the following documents which have previously been provided to Buyer:
1. License Termination Plan for Big Rock Point, Revision 2, dated September 27,
2005
2. Phase I Environmental Site Assessment
Big Rock Point Restoration Project
Charlevoix, Michigan
February 24, 2006
3. Phase I Environmental Site Assessment
Independent Spent Fuel Storage Installation
Charlevoix, Michigan
February 24, 2006
SCHEDULE 4.8
Labor Matters - Collective Bargaining Agreements and Other Written Labor
Agreements
- - Palisades Assets
1. Working Agreement (Collective Bargaining Agreement) between Consumers Energy
and the Utility Workers Union of America, AFL-CIO, and its Michigan State
Utility Workers Council, June 1, 2005 to June 1, 2010.
2. Employee Assistance Service Letter of Agreement, dated March 28, 2005.
3. Employee Capabilities/Job Qualifications Letter of Agreement, dated March 29,
2005.
4. Contracting Letter of Agreement, dated March 30, 2005
5. Bulletin No. 90-8, Interpretation of the word "Assigned" in the Working
Agreement.
6. Bulletin 06-1, OM&C Mileage Rate.
7. Bulletin 86-1, Temporary Employees.
8. Bulletin 88-2, Non-Precedent Setting Nature of Local Agreements.
9. Bulleting 88-5, Time-Off Discipline for Safety Rule Violations.
10. Bulletin 90-4, Filling of Posted Jobs.
11. Bulletin 90-6, Discipline for Safety Rule Violations.
12. Bulletin 96-2, On-Call Provisions.
13. Bulletin 94-2, Definition of "Month" or "Months".
14. Palisades Plant Employee Retention Agreements for the following:
(a) Karl Jones, Facilities/FIN Team General Supervisor
(b) Dwight Mims, Site Operations Director
(c) John P. Broschak, Manager, Engineering Design
15. SRO Retention Incentive Agreement
16. Discipline for Safety Violations, dated 5/16/06
Labor Matters - Collective Bargaining Agreements and Other Written Labor
Agreements
- - Big Rock ISFSI Assets
- - Big Rock Decommissioning Core Team Letter Agreement - Lawrence Potter
SCHEDULE 4.9(a)
Benefit Plans
CONSUMERS ENERGY PLANS
1. Pension Plan for Employees of Consumers Energy and other CMS Energy Companies
2. Savings Plan for Employees of Consumers Energy and other CMS Energy Companies
3. Group Term Life Insurance for Operating, Maintenance and Construction
Employees Consumers Energy
4. Group Health Care Plan for Employees and Retired Employees of Consumers
Energy and other CMS Energy Companies
5. Term Life Insurance Plan for Retired Employees of Consumers Energy and other
CMS Energy Companies
6. Dependents Term Life Insurance
7. Vision Insurance
8. FlexFund Plan for Health Care Premiums
9. FlexFund Plan for Health Care Expenses
10. FlexFund Plan for Dependent Care Expenses
11. Long Term Care Insurance
12. Travel Accident Insurance Plan, Plan Number 508, for Employees of CMS Energy
Corporation and Subsidiary Companies dated January 1, 1997, as amended January
1, 2000 and January 1, 2002
13. Separation Allowance Plan for Employees of CMS Energy Corporation and other
CMS Energy Companies dated February 11, 2003
14. HRP 4039-03 Educational Assistance Program, Version 4, effective July 1,
2004
15. SRO Retention Incentive Agreement
16. Big Rock Decommissioning Core Team Letter Agreement - Lawrence Potter
17. Retired Executives Survivor Benefit Plan
18. Special Military Leave Provision
In addition to benefits listed here, see also items listed on Schedule 4.8.
NMC PLANS
1. Medical: Four self-insured PPO Plans and an Indemnity plan administered by a
third party, Aetna, BlueCare Network fully-insured HMO, Priority Health
fully-insured HMO. Aetna Plans include vision coverage.
2. Dental - self-insured and administered by a third party, Delta Dental of
Wisconsin
3. Life Insurance: Basic provided by NMC, Supplemental - employee's choice
4. Dependent Life - Spouse, Child are options
5. Accidental Death & Dismemberment: Basic provided by NMC, Supplemental is an
option
6. Universal Life Insurance (optional coverage available upon hire can be
converted to direct bill with the provider; limited opportunities to join after
initial enrollment.)
7. Flexible Spending Accounts for medical and dependent care
8. Short-Term Disability
9. Long-Term Disability - Basic (60%) provided by NMC, employee option for a 10%
buy up
10. Long Term Care Insurance available at hire; (can be converted to direct bill
with the provider)
11. Employee Assistance Program for certain employees of NMC, as amended by
Revision 3, dated January 1, 2006
12. Scholarship Program
13. Tuition Reimbursement Program
14. PTO Plan/Policy
15. PTO Buy Plan option
16. Auto/Home Insurance (can be converted to direct bill with the provider
17. Business Travel Accident Insurance for certain employees of NMC, as amended
by Revisions 2, dated January 1, 2005.
18. Long Term Incentive Plan
19. Short Term Incentive Plan
20. NMC Savings & Retirement Plan (the Money Purchase Pension Plan (MPP) and 401
(k) Savings Plan were merged effective January 17, 2006. The new plan is called
the NMC 401(k) Savings and Retirement Plan.) Prior to the merger, both plans had
favorable determination letters. NMC has not filed for a determination letter on
the new plan.
21. Deferred Compensation Plan
22. SERP Plan
23. Excess Plan
24. Grandfathered Sick Leave for certain former employees of Consumers Energy
25. Relocation Policy
26. Employee Recognition Plans - Site VP checkbook, Managers Certificates, NMC
Bucks
27. Service Awards
28. Severance Plan
29. WorldNet Travel Assistance Plan
30. Adoption Expense Assistance Plan/Policy
31. Policies Covering Paid and Unpaid Time Off
- - Funeral Leave
- - Military Leave
- - Holidays
- - Jury Duty
- - Personal Leave of Absence
- - FMLA
SCHEDULE 4.9(e)
Benefit Plan Exceptions - Palisades Assets and Big Rock ISFSI Assets
Consumers Energy Company
CMS Energy is a named defendant, along with Consumers Energy Company, CMS MST,
and certain named and unnamed officers and directors, in two lawsuits brought as
purported class actions on behalf of participants and beneficiaries of the CMS
Employees' Savings Plan (the Plan). The two cases, filed in July 2002 in United
States District Court for the Eastern District of Michigan, were consolidated by
the trial judge and an amended consolidated complaint was filed. Plaintiffs
allege breaches of fiduciary duties under ERISA and seek restitution on behalf
of the Plan with respect to a decline in value of the shares of CMS Energy
Common Stock held in the Plan. On March 1, 2006, CMS Energy and Consumers Energy
Company reached an agreement, subject to court and independent fiduciary
approval, to settle the consolidated lawsuits.
NMC
None
SCHEDULE 4.11(a)(i)
Seller's Agreements Palisades Assets
Agreements other than Software License Agreements:
1. Document Services Agreement No. 811202 between CMS Energy Corporation
and Xerox Corporation, INSOFAR AND ONLY INSOFAR as it covers and applies
to the lease of those specific units of equipment that are located at
the Palisades Site. (Virtual Document Room Index No. 11.01.02.005)
2. Contract(s) for telecommunication services between Consumers Energy and
Verizon North, Inc. dated February 23, 2006. (Virtual Document Room
Index No. 06.06.01.002)
3. Letter Agreement between Lake Michigan College Mendel Center and Nuclear
Management Company, LLC (as agent for Consumers Energy Company) dated
August 10, 2005. (Virtual Document Room Index No. 11.05.10.002)
4. Lease Agreement between The City of Benton Harbor and Nuclear Management
Company, LLC (as agent for Consumers Energy Company), dated June 2,
2004.
5. Public Warning Systems Operation Agreement between Consumers Power
Company, the County of Van Buren, Michigan, the Township of Covert,
Michigan, and the City of South Haven, Michigan, dated January 14, 1986.
(Virtual Document Room Index No. 11.05.13.001)
6. Letter Agreement between Nuclear Management Company, LLC (as agent for
Consumers Energy Company) and Covert Fire Department dated August 9,
2005. (Virtual Document Room Index No. 11.05.14.001)
7. Letter Agreement between Nuclear Management Company, LLC (as agent for
Consumers Energy Company) and South Haven Area Emergency Services
Authority dated November 7, 2005. (Virtual Document Room Index No.
11.05.14.001)
8. Letter Agreement between Nuclear Management Company, LLC (as agent for
Consumers Energy Company) and Lakeland Regional Health System dated
August 11, 2005. (Virtual Document Room Index No. 11.05.14.001)
9. Letter Agreement between Nuclear Management Company, LLC (as agent for
Consumers Energy Company) and South Haven Community Hospital dated
August 8, 2005. (Virtual Document Room Index No. 11.05.14.001)
10. Letter Agreement between Nuclear Management Company, LLC (as agent for
Consumers Energy Company) and Community Emergency Service dated August
23, 2005. (Virtual Document Room Index No. 11.05.14.001)
11. Letter Agreement between Nuclear Management Company, LLC (as agent for
Consumers Energy Company) and Environmental, Inc., Midwest Laboratory
dated August 22, 2005. (Virtual Document Room Index No. 11.05.14.001)
12. Plant emergency assistance agreement between INPO and its member
utilities dated September 24, 2004. (Virtual Document Room Index No.
11.05.14.001)
13. Contract for Labor and Materials between Consumers Energy Company and
Sunstates Facility Services, Inc. (assigned to GCA Nuclear Facility
Services, Inc.) dated February 22, 2002. (Virtual Document Room Index
No. 11.01.02.002)
14. Contract for Labor and Materials between Consumers Energy Company and
Ecolochem, Inc., original dated July 15, 1996. (Virtual Document Room
Index No. 11.01.02.003)
15. General Contract for Labor and Materials between Consumers Energy
Company and The Atlantic Group, Inc. dated June 5, 2000. (Virtual
Document Room Index No. 11.01.02.004)
16. The following contracts and any amendments thereto executed by NMC with
the indicated contractors or vendors; it being expressly understood that
if and to the extent any of these following contracts and amendments
thereto covers, relates or applies to goods, services or materials
intended for a nuclear plant or other location other than Palisades or
for an entity other than Seller, it is the intent hereof to include such
contracts on this Schedule 4.11(a)(i) insofar and only insofar as such
they cover or apply to goods, services or materials intended for
Palisades.
16.1. Contract No. 30000000 with Anatec Intl. Service being provided: BOP Eddy
Current. (Virtual Document Room Index No. 11.01.04.002)
16.2. Contract No. 965 with Anatec International Inc. Service being provided:
Eddy Current Services. (Virtual Document Room Index No. 11.01.04.003)
16.3. Contract No. 880 with The Atlantic Group, Inc. Service being provided:
Craft Labor Services. (Virtual Document Room Index No. 11.01.04.004)
16.4. Contract No. 993 with Automated Engineering Services Corp. Service being
provided: Specialty Eng. Services. (Virtual Document Room Index No.
11.01.04.005)
16.5. Contract No. 30000232 with Baley, Hinchy, Downes & Associates, Inc.
Service being provided: Background Investigation Services. (Virtual
Document Room Index No. 11.01.04.006)
16.6. Contract No. 30000327 with Barnhart Crane & Rigging Company. Service
being provided: Reactor Head Lifting System. (Virtual Document Room
Index No. 11.01.04.007)
16.7. Contract No. 1592 with BCP Technical Services, Inc. Service being
provided: Staff Aug. (Virtual Document Room Index No. 11.01.04.008)
16.8. Contract No. 30000278 with BWXT Services, Inc. Service being provided:
Test/Analyze Surveillance Capsule - Store for 3 Years. (Virtual Document
Room Index No. 11.01.04.009)
16.9. Contract No. 30000034 with Confidential Services Incorporated. Service
being provided: Nuclear Background Investigation Services. (Virtual
Document Room Index No. 11.01.04.010)
16.10. Contract No. 30000322 with Constellation Nuclear Services, Inc. Service
being provided: Environmental Review Reports. (Virtual Document Room
Index No. 11.01.04.011)
16.11. Contract No. 30000063 with Dialogic Communications Corp. Service being
provided: ERO Callout services. (Virtual Document Room Index No.
11.01.04.012)
16.12. Contract No. 30000035 with Diversified Information Services, Inc.
Service being provided: Nuclear Background Investigation Services.
(Virtual Document Room Index No. 11.01.04.013)
16.13. Contract No. 30000500 with Duratek Services, Inc. Service being
provided: Lease - Liquid Waste Processing. (Virtual Document Room Index
No. 11.01.04.014)
16.14. Contract No. 30000015 with Eagle-Picher Technologies, LLC. Service being
provided: Depleted Zinc Products. (Virtual Document Room Index No.
11.01.04.015)
16.15. Contract No. 30000451 with Environmental Inc. Service being provided:
REMP Analysis Services. (Virtual Document Room Index No. 11.01.04.016)
16.16. Contract No. 1814 with EP Consulting, LLC. Service being provided:
Consulting Services. (Virtual Document Room Index No. 11.01.04.017)
16.17. Contract No. 1014 with Erin Engineering & Research Inc. Service being
provided: Specialty Eng. Services. (Virtual Document Room Index No.
11.01.04.018)
16.18. Contract No. 30000458 with Ethany Corporation. Service being provided:
QSL & TAS hosting. (Virtual Document Room Index No. 11.01.04.019)
16.19. Contract No. 30000006 with Everest VIT, Inc. Service being provided:
Remote visual - Services and Equipment Rental. (Virtual Document Room
Index No. 11.01.04.020)
16.20. Contract No. 30000312 with Framatome ANP, Inc. Service being provided:
Nuclear & Commercial Parts Stocking - ASCO, Velan, Limitorque. (Virtual
Document Room Index No. 11.01.04.021)
16.21. Contract No. 30000353 with Frham Safety Products Inc. Service being
provided: Radiation Protection Supplies. (Virtual Document Room Index
No. 11.01.04.022)
16.22. Contract No. 30000438 with Graver Technologies. Service being provided:
ION Exchange Resin Supply. (Virtual Document Room Index No.
11.01.04.023)
16.23. Contract No. 30000001 with The Hartford Steam Boiler Inspection and
Service Co. Service being provided: ANII/AI Services. (Virtual Document
Room Index No. 11.01.04.024)
16.24. Contract No. 30000099 with ICN Dosimetry Service. Service being
provided: Dosimetry Equipment & Services. (Virtual Document Room Index
No. 11.01.04.025)
16.25. Contract No. 30000033 with Information Reporting Services, Inc. Service
being provided: Nuclear Background Investigation Services. (Virtual
Document Room Index No. 11.01.04.026)
16.26. Contract No. 30000008 with Lambert, MacGill, Thomas, Inc. Service being
provided: ISI/NDE. (Virtual Document Room Index No. 11.01.04.027)
16.27. Contract No. 1271 with Leak Testing Specialists, Inc. Service being
provided: Leak Testing Services. (Virtual Document Room Index No.
11.01.04.028)
16.28. Contract No. 1306 with MPR Associates Inc. Service being provided:
Specialty Eng. Services. (Virtual Document Room Index No. 11.01.04.029)
16.29. Contract No. 1913 with J Givoo Consultants, Inc. Service being provided:
Staff Aug. (Virtual Document Room Index No. 11.01.04.030)
16.30. Contract No. 30000241 with International Quality Consultants, Inc.
Service being provided: Oversight Service for RVH Projects (Japan and
Canada). (Virtual Document Room Index No. 11.01.04.031)
16.31. Contract No. 30000271 with Numerical Applications, Inc. Service being
provided: GL96-06 Water Hammer and Containment Analyses/Control Rm.
Habitability Analyses - additional scope for Control Rm. Habitability
Analyses. (Virtual Document Room Index No. 11.01.04.032)
16.32. Contract No. 1009 with Performance Power Services P.C. Service being
provided: Specialty Eng. Services. (Virtual Document Room Index No.
11.01.04.033)
16.33. Contract No. 1684 with Preferred Licensing Services, Inc.. Service being
provided: Staff Aug (license renewal project). (Virtual Document Room
Index No. 11.01.04.034)
16.34. Contract No. 958 with Proto Power Corporation. Service being provided:
Design Engineering Services. (Virtual Document Room Index No.
11.01.04.035)
16.35. Contract No. 981 with Sargent & Lundy, LLC. Service being provided:
Design Engineering Services. (Virtual Document Room Index No.
11.01.04.036)
16.36. Contract No. 1003 with Structural Integrity Associates. Service being
provided: Specialty Eng. Services. (Virtual Document Room Index No.
11.01.04.037)
16.37. Contract No. 998 with Stevenson & Associates. Service being provided:
Specialty Eng. Services. (Virtual Document Room Index No. 11.01.04.038)
16.38. Contract No. 30000004 with Scientech, Inc. Service being provided:
Licensing subscription. (Virtual Document Room Index No. 11.01.04.039)
16.39. Contract No. 30000476 with Structural Integrity Associates, Inc. Service
being provided: License Renewal. (Virtual Document Room Index No.
11.01.04.040)
16.40. Contract No. 30000002 with Structural Integrity Associates, Inc. Service
being provided: Evaluation Tool. (Virtual Document Room Index No.
11.01.04.041)
16.41. Contract No. 722 with Sun Technical Services Inc. Service being
provided: Staff Aug. (Virtual Document Room Index No. 11.01.04.042)
16.42. Contract No. 30000450 with Teledyne Instruments. Service being provided:
MOV Software. (Virtual Document Room Index No. 11.01.04.043)
16.43. Contract No. 30000009 with Tetra Tech Nus, Inc. Service being provided:
Environmental Review to Support License Renewal. (Virtual Document Room
Index No. 11.01.04.044)
16.44. Contract No. 30000013 with The Wackenhut Corporation. Service being
provided: Security Force Service. (Virtual Document Room Index No.
11.01.04.045)
16.45. Contract No. 30000012 with UniTech Services Group, Inc. Service being
provided: Laundry Service. (Virtual Document Room Index No.
11.01.04.046)
16.46. Contract No. 942 with WD Associates Inc. Service being provided: Staff
Aug. (Virtual Document Room Index No. 11.01.04.047)
16.47. Contract No. 30000023 with Transnuclear. Service being provided: Dry
Cask Storage - Spent Fuel. (Virtual Document Room Index No.
11.01.04.048)
16.48. Contract No. 30000369 with BNG Fuel Solutions Corporation. Service being
provided: Transportation licensing evaluation of VSC-24 Dry Storage
Casks. (Virtual Document Room Index No. 11.01.04.049)
16.49. Contract No. 30000502 with GE Energy, Nuclear. Service being provided:
Phase 1 - Design of Active Sump Strainer. (Virtual Document Room Index
No. 11.01.04.050)
16.50. Contract No. 1908 with Moretech Inc. (Virtual Document Room Index No.
11.01.04.051)
16.51. Contract No. 30000445 and PO P804313 Rev. 1 with Babcock & Wilcox
Canada, Ltd. Service being provided: Reactor Vessel Closure Head Supply.
(Virtual Document Room Index No. 11.01.04.052)
16.52. Contract No. 30000409 with BDN Industrial Hygiene Consultants, Inc.
Service being provided: Asbestos Fibre/Lead Paint Consulting, Testing,
Sample Collection & Lab. Analysis. (Virtual Document Room Index No.
11.01.04.053)
16.53. Contract No. 30000350 with American Maintenance & Engineering Services,
Inc. Service being provided: Multi-site Valve Services. (Virtual
Document Room Index No. 11.01.04.054)
16.54. Contract No. 30000525 with Fairbanks Morse Engine Division. Service
being provided: Refurbishment Diesel Gen. 1- 2. (Virtual Document Room
Index No. 11.01.04.057)
16.55. Contract No. 30000433 with Freight Flow, Ltd. Service being provided:
3rd Party Logistics. (Virtual Document Room Index No. 11.01.04.058)
16.56. Contract No. 30000366 with Hennigan Engineering Company, Inc. Service
being provided: Condenser Tube Cleaning Project. (Virtual Document Room
Index No. 11.01.04.059)
16.57. Contract No. 30000359 with MOR PPM, Inc. Service being provided: Crane
Operation, Rigging & Material Handling. (Virtual Document Room Index No.
11.01.04.060)
16.58. Contract No. 30000385 with Morris Material Handling. Service being
provided: Crane Inspection, Maintenance & Repairs. (Virtual Document
Room Index No. 11.01.04.061)
16.59. Contract No. 30000520 with Quality Air Heating & Cooling. Service being
provided: HVAC Maintenance. (Virtual Document Room Index No.
11.01.04.062)
16.60. Contract No. 30000481 with Reliable Disposal, Inc. Service being
provided: Garbage & Trash Removal. (Virtual Document Room Index No.
11.01.04.063)
16.61. Contract No. 30000511 with Sherriff-Goslin Co. Service being provided:
Roofing - Repairs and New Scope. (Virtual Document Room Index No.
11.01.04.064)
16.62. Contract No. 30000449 with Southwest Michigan Dust Control, Inc. Service
being provided: Snow Plowing/Removal; Misc. Earthwork & Misc. Support.
(Virtual Document Room Index No. 11.01.04.065)
16.63. Contract No. 30000364 with Underwater Construction Corporation. Service
being provided: Diving Services. (Virtual Document Room Index No.
11.01.04.066)
16.64. Contract No. 30000394 with Versatile Fabrication Co., Inc. Service being
provided: Assemble, Operate & Disassemble Lift Rig. (Virtual Document
Room Index No.11.01.04.067)
16.65. Contract No. 30000164 with West Shore Services Inc. Service being
provided: Public Warning Sys. Inspect/PM & Repairs. (Virtual Document
Room Index No. 11.01.04.068)
16.66. Non Residential Lease Agreement with David A. and Cheryl A. Calvin,
dated October 27, 2003. (Virtual Document Room Index No. 11.01.04.070)
16.67. Contract No. 30000259 with Corporate Express, Inc. Service being
provided: Office Products. (Virtual Document Room Index No.
11.01.04.071)
16.68. Contract No. 30000391 with (n,p) Energy, Inc.. Service being provided:
Source Term Management Initiative. (Virtual Document Room Index No.
11.01.04.072)
16.69. Contract No. 30000524 with Framatome ANP, Inc. Service being provided:
Low Power Physics Testing - REFOUT06. (Virtual Document Room Index No.
11.01.04.073)
16.70. Contract No. 30000491 with L Conway Consulting. Service being provided:
Consulting Services - Training. (Virtual Document Room Index No.
11.01.04.074)
16.71. Contract No. 30000296 with Boise Office Solutions. Service being
provided: Paper Contract. (Virtual Document Room Index No. 11.01.04.075)
16.72. Contract No. 2602 with Baley, Hinchy, Downes & Associates, Inc. Service
being provided: Background Investigation Services. (Virtual Document
Room Index No. 11.01.04.076)
16.73. Contract No. 1830 with NPTS, Inc. Service being provided: Staff Aug.
(Virtual Document Room Index No. 11.01.04.077)
16.74. Contract No. 2499 with Teledyne Brown Engineering, Inc. Service being
provided: Part 50/61 services. (Virtual Document Room Index No.
11.01.04.078)
16.75. Contract No. 30000330 with Bartlett Services, Inc. Service being
provided: Remote Audio/Video System Upgrade. (Virtual Document Room
Index No. 11.01.04.079)
16.76. Contract No. 30000072 with International Quality Consultants. Service
being provided: Quality Control Inspectors. (Virtual Document Room Index
No. 11.01.04.080)
16.77. Contract No. 30000376 with Primavera Systems Inc. Service being
provided: Software Implementation support. (Virtual Document Room Index
No. 11.01.04.081)
16.78. Contract No. 30000484 with Westinghouse Electric Company, LLC. Service
being provided: CRDM, Grayloc & Other Equipment - RVH replacement
project. (Virtual Document Room Index No. 11.01.04.082)
16.79. Contract No. 30000407 with HydroAire Services, Inc. Service being
provided: Emergency Cooling Water Pump. (Virtual Document Room Index No.
11.01.04.083)
16.80. Contract No. 987 with Enercon Services, Inc. Service being provided:
Design Engineering Services. (Virtual Document Room Index No.
11.01.04.084)
16.81. Contract No. 30000120 with Plant Protection Associates. Service being
provided: Fire Detection System services. (Virtual Document Room Index
No. 11.01.04.085)
16.82. Contract No. 1796 with Intech Inc. Service being provided: Support.
(Virtual Document Room Index No. 11.01.04.086)
16.83. Contract No. 3320 with Midwest Towers, Inc. Service being provided:
Cooling Tower Repairs. (Virtual Document Room Index No. 11.01.04.087)
16.84. Contract No. 30000242 with Westinghouse Electric Company, LLC. Service
being provided: Integrated Outage Support. (Virtual Document Room Index
No. 11.01.04.088)
16.85. Contract No. 00003880 with Asta, Inc.. Service being provided: Nuclear
Oversight Committee Consultant (Virtual Document Room Index No.
11.01.04.089)
16.86. Contract No. 00001335 with Nuclear Management Company, LLC. Service
being provided: Eng. Staff Aug. (Virtual Document Room Index No.
11.01.04.090)
16.87. Contract No. 30000494 with Atlantic Group. Service being provided: RP /
Chem. (Virtual Document Room Index No. 11.01.04.091)
16.88. Contract No. 30000317 with Nuclear Security Systems Corporation. Service
being provided: OCA Surveillance System. (Virtual Document Room Index
No. 11.01.04.092)
16.89. Contract No. 00002233 with Utility Resources Associates. Service being
provided: Eng. Staff Aug. (Virtual Document Room Index No. 11.01.04.093)
16.90. Contract No. 30000493 with PTI Systems. Service being provided: Passport
Security Access (Software). (Virtual Document Room Index No.
11.01.04.094)
16.91. Contract No. 6570 with Iepson Consulting Enterprises, Inc. Service being
provided: EQ File Conversion. (Virtual Document Room Index No.
11.01.04.095)
16.92. Contract No. 30000371 with Mitsubishi International Corporation/ and
Mitsubishi Power Systems, Inc. Service being provided: Turbine Generator
Maintenance. (Virtual Document Room Index No. 11.01.04.096)
16.93. Contract No. 00005549 with The Marathon Consulting Group, Inc. Service
being provided: Consulting Services. (Virtual Document Room Index No.
11.01.04.097)
16.94. Contract No. 30000251 with Chem-Nuclear Systems, LLC (CNS). Service
being provided: LLRW Barnwell Burial Agreement. (Virtual Document Room
Index No. 11.01.06.001)
16.95. Contract No. 30000314 with Duratek Services, Inc. Service being
provided: Reactor Vessel Head Component Disposal. (Virtual Document Room
Index No. 11.01.06.002)
16.96. Contract No. 30000435 with Duratek. Service being provided: LLRW
Processing Contract. (Virtual Document Room Index No. 11.01.06.003)
16.97. Contract No. 30000127 with Envirocare of Utah, Inc. Service being
provided: Low Level Radioactive Waste Disposal. (Virtual Document Room
Index No. 11.01.06.004)
16.98. Contract No. 30000102 with RWE Nukem Corporation. Service being
provided: PAL RVR System. (Virtual Document Room Index No. 11.01.06.005)
16.99. Contract No. 30000436 with Studsvik Processing Facility, LLC. Service
being provided: LLRW Processing. (Virtual Document Room Index No.
11.01.06.006)
16.100. Contract No. 0005144 with Aerotek, Inc. (Virtual Document Room Index No.
11.01.04.99)
16.101. Contract No. 00003503 with American Maintenance & Engineering Services,
Inc. (Virtual Document Room Index No. 11.01.04.001)
16.102. Contract No. 00002864 with Lambert, Macgill, Thomas, Inc. (Virtual
Document Room Index No. 11.01.04. 11.01.04.101)
16.103. Contract No. 00006320 with Plant Protection Associates. (Virtual
Document Room Index No. 11.01.04.102) 16.104. Contract No. 00005678 with
Thunder Simulations, Inc. (Virtual Document Room Index No. 11.01.04.098)
16.105. Contract No. 00006301 with Underwater Construction Services Corporation.
(Virtual Document Room Index No. 11.01.04.103)
17. The following contracts executed by Seller with the indicated
contractors or vendors; it being understood that each of these contracts
also covers or applies to goods, services or materials intended for
plants or locations of Seller other than Palisades and that it is the
intent hereof to include such contracts on this Schedule 4.11(a)(i)
insofar and only insofar as such contracts cover or apply to goods,
services or materials intended for Palisades:
17.1. Contract for Furnishing Temporary Personnel dated December 1, 2001 with
Acro Service Corporation. Service provided: payroll service and staff
augmentation.
17.2. Contract for Consulting Services dated February 9, 1987 with BP&R
Engineering, Inc. Service provided: various project support.
17.3. General Contract for Labor and Materials dated May 20, 1999 with BP&R
Construction, Inc. Service provided: construction and maintenance
17.4. General Contract for Work Requests dated July 1, 1988 with Erickson's,
Incorporated. Service provided: mobile cranes, tractor-trailers, heavy
hauling and/or moving.
17.5. General Contract for Work Requests dated October 1, 1988 with Gelock
Transfer Line, Inc. Service provided: mobile cranes, tractor-trailers,
heavy hauling and/or moving.
17.7. Contract for Consulting Services dated January 3, 1977 with Materials
Testing Consultants, Inc. Service provided: field testing or material
testing.
17.8. General Contract for Technical and Consulting Services dated February 1,
1996 with South Bend Medical Foundation, Inc. Service provided: fitness
for duty testing - alcohol and controlled substances.
17.9. Contract dated July 9, 1979 with Team Industrial Services, Inc. Service
provided: temporary pipe leak repairs/fixes.
17.10. Contract for Technical and Consulting Services dated August 1, 1996 with
The Stress Center, P.C. Service provided: psychological testing/MMPI and
clinical interviews.
17.11. Contract for Labor and Material dated November 24, 2003 with
ThyssenKrupp Elevator Corporation. Service provided: elevator
maintenance.
17.12. General Contract for Technical and Consulting Services dated February 1,
1996 with Tom Allen Enterprises, Inc. Service provided: fitness for duty
collection/MRO services.
SOFTWARE LICENSE AGREEMENTS/OTHER:
The software license agreements covering the following software, it being
expressly understood that if and to the extent any of these software license
agreements covers, relates or applies to the use or supply of software at or
for, or any services or other matters whatsoever relating to, a nuclear plant or
other location other than Palisades, it is the intent hereof to include such
software license agreements on this Schedule 4.11(a)(i) INSOFAR AND ONLY INSOFAR
as such they cover or apply to the use or supply of software at or for, or
services or other matters relating to, Palisades. Some items listed are
spreadsheets and other data compilations; by including them on this list the
Seller is not representing that they constitute software.
TITLE VENDOR FUNCTION/DESCRIPTION # OF LIC TYPE OF LIC
- --------------------- ---------------- ---------------------------------------------------------------- -------- -----------
LTOP ABB The low temperature overpressure protection system is designed
Combustion to sense the PCS pressure and temperature and use this
Eng intelligence to prevent an overpressure condition by relieving
through a Power Operated Relief Valve (PORV).
PIDAL-3 Family ABB The PIDAL-3 system is a Full Core On-Line Incore Monitoring
(SIMULATE-3) Combustion System. The PIDAL-3 system is used on-line to monitor the core
Eng. power distribution for technical specification compliance via
Surveillance Procedure MT-10.
PIDAL-3 Family ABB The PIDAL-3 system is a Full Core On-Line Incore Monitoring
(SHUFFLE-3) Combustion System. The PIDAL-3 system is used on-line to monitor the core
Eng. power distribution for technical specification compliance via
Surveillance Procedure MT-10.
PIDAL-3 Family ABB The PIDAL-3 system is a Full Core On-Line Incore Monitoring
(UNSAT-3) Combustion System. The PIDAL-3 system is used on-line to monitor the core
Eng. power distribution for technical specification compliance via
Surveillance Procedure MT-10.
Signature Crane Nuclear The Crane Nuclear Signature Software is used to acquire and 7 Single
Software - AOV analyze Air Operated Valve(AOV) Thrust, Torque, Stem Travel or
Module Rotation, Supply Pressure, and/or Control Pressure to
determine the ability of an AOV to perform its Design Basis
Function.
PPC - Critical ABB CFMS has been developed as an information display system that
Function Combustion will aid the operator in monitoring the operational and safety
Monitoring System Eng. status of the nuclear power plant to effectively display
instrumentation information to the operator.
PPC - ABB Interface to multiplexer. This module is part of
Cutler-Hammer Combustion SQAP-PL-0050, "Plant Process Computer." Does
Director Input Eng. engineering units conversions from raw counts.
Scanning Routine
PPC - NRC ABB Provides NRC with live plant data during emergencies.
Emergency Response Combustion Activated by Palisades as required.
Data System Data Eng.
Link
PPC - G2 ABB Interface between multiplexers and PPC point database.
Interface Combustion No control outputs. This module is part of SQAP-PL-0050,
Software Design Eng. "Plant Process Computer.
PPC - ABB The Heatup/Cooldown Rate calculations can be used to meet the
Heatup/Cooldown Combustion requirements of SOP-1. This program and associated displays are
Rate Calculation Eng. intended to help operators visually and quantitatively judge
rate of change.
PPC - UFM ABB Used to meet T.S. requirement. Not a specific program: It is
Corrected Heat Combustion primarily a set of calculations that are part of the
Balance Eng. Calculation-Tool environment. This module is part of
Calculation SQAP-PL-0050, "Plant Process Computer.
PPC - ABB METT displays information data linked from the
Meteorological Combustion meteorological tower. The information includes
Tower Datalink Eng. wind speed and direction and the tower temperature.
PPC - PIDAL ABB PIDAL controls alarm limits/setpoints. PIDAL performs the
Data Interface Combustion core power distribution calculation.
Eng.
PPC - ABB PIP monitors rod positions and user switches. Converts signal
Plant Combustion and displays positions. Calculates and provides permissives
Information Eng. for rod movement. Alarms on deviation, overlap and sequence
Processor conditions.
PPC - PMS Host ABB In-Core Neutron Flux Monitoring and Alarming, Core Power
Application Combustion Distribution Calculation, Generates data used by Nuclear
Reactor Eng. Analysis & Design (NAD).
Monitoring Software
PPC - PMS Host ABB Provides primary and alternate control rod positions to
Application Rod Combustion calculate, monitor, and alarm control rod sequencing during
Monitoring Eng. control rod movement. Not Safety Related. This module is
Software part of SQAP-PL-0050, "Plant Process Computer.
TACHSYS (Fuel Par Systems TACHSYS is a Proprietary Commercial Application for process and 3 Single
Handling robotics control.
Software)
PPC - Cooling ABB Used by operations personnel to monitor and control various
Tower Control Combustion aspects of the two cooling towers from control room.
System Eng.
PPC - IMP ABB Used for monitoring and trending.
Interface Combustion
Software (IMPIS) Eng.
Microstation CAD & Bentley Computer Aided Drafting (CAD) Software
Microstation Systems
I/RAS-B
PI Client - Datalink OSI-Soft Data access and presentation tool that queries a PI
server for plant process data. Datalink is a Excel
Add-in that allows data queries from PI directly into
excel spreadsheets.
PI Server OSI-Soft Used by plant personnel to view and trend plant process data.
PI-API-OVMS-VAX OSI-Soft Interface software. Communicates with PI server and
perform PI related tasks applicable to data
gathering, buffering, and threshold filtering.
PI OSI-Soft Data access and presentation tool that queries a PI server 1 Single
Client - ProcessBook for plant process data. ProcessBook is a graphical package
that allows building and using trends, mimics, etc.
ProControl PMS ABB Communication Protocol for communicating with the PPC.
Combustion
Eng.
Microsoft Microsoft Desktop Productivity Suite.
Office 2000
Professional 674
Full Install
Oracle Oracle SOMS, Open Plan (Pending), ACEMAN, & other general site DBs
Integrated DW James & A radioactive waste tracking program written in C++ and runs on
Shipping and Assoc. Windows 2000.
Inventory
Program (ISIP)
CONV2ASC Aerofin Generates Accident mode performance data for containment air 1 Site
Corporation coolers VHX-1, VHX-2, and VHX-3.
NUCK Aerofin NUCK predicts the accident condition thermodynamic performance 1 Site
Corporation of the cooling coils installed in safety-related Containment
Air Coolers VHX-1, VHX-2, and VHX-3. NUCK uses a variety of
physical parameters and containment atmosphere conditions as
inputs.
NUCK VIEW Aerofin Generates Accident mode performance data for containment air 1 Site
Corporation coolers VHX-1, VHX-2, and VHX-3.
PALISADE Aerofin Generates Accident mode performance data for containment air 1 Site
Corporation coolers VHX-1, VHX-2, and VHX-3.
Signature Software - Crane Nuclear Check Valve Data Acquisition is a check valve diagnostic test 1 Single
CHV System system that utilizes acoustic, ultrasonic, and eddy current
Analysis technologies. At the heart of the Check Valve System is the DAM,
which receives and controls all input and output signals.
Signature Software - Crane Nuclear The Crane Nuclear Signature Software is used to acquire and 1 Single
MCC Module (Crane analyze Motor Operated Valve(MOV) Switch Operation, Motor
Nuclear Signature) Voltage and Motor Current signatures within a condition
monitoring program.
Signature Software - Crane Nuclear The Crane Nuclear Signature Software is used to acquire and 2 Single
MOV Module analyze Motor Operated Valve(MOV) Thrust, Torque, Displacement,
Switch Operation, and Motor current to determine the ability of
an MOV to perform its Design Basis Function.
Crane Nuclear - Crane Nuclear The Crane Nuclear ValveVision (Packing 'nForcer) Software is 2 Single
ValveVision used to acquire and analyze Motor Operated Valve(MOV) Thrust,
and is capable of acquiring AOV thrust or torque to determine
the ability of an MOV or AOV to perform its Design Basis
Function.
EDSA Electrical EDSA Micro EDSA analyzes the electrical distribution system for loadflow,
Power System Corporation voltage, current, short circuit, transient stability and other
Design Software analysis requirements. The systems include safety-related,
Class 1E equipment along with non-Class 1E equipment.
EDSA Electrical EDSA Micro This product is used in the analysis of the electrical
Power System Corporation distribution system from the 345 kV level to the 125 V level.
Design Software Both ac and dc system are modeled. Analysis output provides
results which are used in the design analysis of the power
system.
Pipe-Flo Engineered Pipe-Flo is used for hydraulic analysis of various piping 1 Single
Software, systems.
Inc.
Performance EPRI The EPRI Performance Prediction Methodology (PPM) Software is 3 Site
Prediction used to calculate and analyze Motor Operated Valve (MOV) and Air
Methodology Operated Valve (AOV) thrust and/or torque requirements.
Software
Generation of EPRI GOTHIC (Generation of Thermal-Hydraulic Information for Site Site
Thermal-Hydraulic Containments) is a general purpose thermal-hydraulics computer
Information for program for design, licensing, safety and operating analysis of
Containments nuclear power plant containments and other confinement
buildings.
Framatome ANP Framatome - The Framatome ANP Spring Pack Tester (SPT) Software is used to 1 Single
Spring Pack Tester ANP acquire and analyze Motor Operated Valve spring pack behavior to
determine the ability of an MOV to perform its Design Basis
Function.
DBA/NSD Gould The DBA/NSD Sequencers provide sequencing of electrical loads
Sequencers Modicon onto the diesel supplied busses.
DORT Program Oak Ridge DORT, a Discrete ORdinates neutron/photon Transport code, is a
Group National two-dimensional neutral particle transport code which solves the
Laboratories time-independent Boltzmann Transport equation using the method
of Discrete Ordinates.
Heating 7 RSICC/ORNL A multi-dimensional finite-difference heat conduction analysis 1 Single
code system.
CMS Family Studsvik Used to design fuel cycle and provide input to PIDAL family and Site Site
- -INTERPIN-CS Arthur DORT.
DiGiovinie
FIC-0727 AFW Flow Yokogawa Combination of a Yokogawa programmable PID controller and custom
Controller application/data.
FIC-0736A AFW Yokogawa Combination of a Yokogawa programmable PID controller and custom
Flow Controller application/data.
FIC-0737A AFW Yokogawa Combination of a Yokogawa programmable PID controller and custom
Flow Controller application/data.
FIC-0749 AFW Flow Yokogawa Combination of a Yokogawa programmable PID controller and custom
Controller application/data.
System 1000 EQDB Used to determine the replacement schedules of safety-related Site
- -Material equipment in the plant.
Aging & Radiation
Effects Library
CROSSFLOW AMAG CROSSFLOW is used to calibrate feedwater flow as measured 2 Single
by the installed plant venturis.
ADLPIPE Bentley ADLPIPE is a piping analysis program, used to perform 1 Single
Systems modeling, piping stress analysis and hanger/ restraint
load development.
STAAD III Bentley STAAD-III is a comprehensive structural analysis software 1 SINGLE
Systems program used in the design of plant SSCs, such as pipe
supports, pipe whip restraints, building frames, etc.
Palisades Canberra The Palisades Isotopic Analysis System is a commercially
Isotopic developed application that performs a manual, quantitative
Analysis System analysis of the radioisotopes present in a given sample.
Plant Canberra This is an industry shared database for documenting
Inprocessing qualification of in-house workers for unescorted access.
Software
Environmental EPRI EQMS is a program management tool for helping EQ Site Site
Qualification Engineers and EQ Program interface organizations to
Management System document and maintain the qualification status of
environmentally qualified equipment.
CAFTA EPRI The EPRI developed CAFTA Fault Tree Analysis System is a EPRI User
series of routines that allow fault tree analysis (refer to Group
NUREG 2300 and NUREG 0492) written by EPRI. It is comprised of Memebership
a Fault Tree Editor, Cutset Editor, and Database Editor.
Equipment Out EPRI EOOS is a Microsoft Windows based Risk Awareness Tool for EPRI User
Of Service monitoring nuclear power plant safety when components or Group
systems are out of service. Memebership
Modular EPRI The MAAP4 computer code provides an integrated tool for
Accident evaluating the in-plant effects of a wide range of postulated
Analysis accidents and for examining the impact of operator actions on
Programs for accident progressions.
LWR Power
Plants
Set Equation EPRI The Set Equation Transformation System (SETS) is a Single
Transformation FORTRAN executable code employed to manipulate boolean
System equations symbolically.
Ethany Ethany Corp. The QSL is used by Supplier Assessment personnel and
Corporation Supply Chain as a basis for purchasing safety-related
Qualified material, items and services.
Suppliers List
Meteorlogical Hewlett This software gathers Meteorological Data, including 10 and 60
Tower Data Packard meter wind, speed, direction and sigma theta from calibrated
Acquisition System instruments, and transfers the data via modem to the Plant
Process Computer.
SAPHIRE Idaho This code supports the maintenance rule, various risk
National informed initiatives, the reactor oversight process as well
Engineering & as a variety of plant licensing issues.
Environmental
Laboratories
CCFWin - Common Idaho This version of the Common Cause Failure Database and Analysis
Cause Failure National System report presents an overview of common cause failure
Database and Engineering & methods for use in the U.S. commercial nuclear power industry.
Analysis System Environmental
Laboratories
PEGASYS Midstate This software is used to grant unescorted access to the
Security/Cardk plant's Protected and Vital areas. It is used in conjunction
with the badging and hand geometry systems. It processes the
data from the badge and the hand geometry.
Hand Geometry Midstate This is a biometric system. It identifies an individual by
Security/Godd reading their hand. It is used in conjunction with the PEGASYS
ard and badging system to grant unescorted access to the plant's
Technology Protected and Vital areas.
Corp.
PADS Visitor Check NEI This is a module of the Personnel Access Data System. It is an
industry shared database for transient workers. It is used to
check an individual's background prior to granting escorted
access to the Protected Area.
PADS NEI This is an industry shared database for transient workers. 3 Single
Video Capture Nuclear This system is an enhancement to the plant Protected Area 1
Security perimeter alarm system. It is the primary alarm system for the
Services Corp. ISFSI.
PGP Desktop Edition Pretty Good Commercially procured software designed to
Privacy Corp. encrypt information for secure transmission over
the Internet. Runs on a stand-alone computer.
GIPPER Stevenson & Stevenson & Associates (S&A/s) GIPPER software is the software Site Site
Associates version of the Seismic Qualification Utility Group manual,
"Generic Implementation Procedure (GIP) of Seismic
Verification of Nuclear Plant Equipment."
ANSYS/ED Swanson ANSYS/ED is used by structural and mechanical engineers to 1 Single
Analysis evaluate the design of components where finite element analysis
Systems, Inc. is required.
SOMS - Tech Assist SOMS is a Microsoft Windows based client-server software system Site Site
Clearance Module which is designed to automate and integrate the major processes
involved in plant operations management.
SOMS - Equipment Tech Assist SOMS is a Microsoft Windows based client-server software system
Database Module which is designed to automate and integrate the major processes
involved in plant operations management.
SOMS - Tech Assist SOMS is a Microsoft Windows based client-server software system Site Site
Narrative Logs which is designed to automate and integrate the major processes
Module involved in plant operations management.
SOMS - Tech Assist SOMS is a Microsoft Windows based client-server software system Site Site
Operator Rounds which is designed to automate and integrate the major processes
involved in plant operations management.
HIC-0525 Feedwater Yokogawa Combination of a Yokogawa programmable PID controller and custom
Regulation application/data.
Combined Speed
Controller
HIC-0526 Feedwater Yokogawa Combination of a Yokogawa programmable PID controller and custom
Regulation application/data.
Individual Speed
Controller
HIC-0529 Feedwater Yokogawa Combination of a Yokogawa programmable PID controller and custom
Regulation application/data.
Individual Speed
Controller
HIC-0780A Steam Yokogawa Combination of Yokogawa programmable PID controller and custom
Dump Controller applications/data.
LIC-0101A Yokogawa Combination of a Yokogawa programmable PID controller and custom
Pressurizer application/data.
Level
Controller
LIC-0101B Yokogawa Combination of a Yokogawa programmable PID controller and custom
Pressurizer application/data.
Level
Controller
LIC-0701 Feedwater Yokogawa Combination of a Yokogawa programmable PID controller and custom
Regulation Main application/data.
Level Controller
LIC-0703 Yokogawa Combination of a Yokogawa programmable PID controller and custom
Feedwater application/data.
Regulation Main
Level Controller
LIC-0734 Yokogawa Combination of a Yokogawa programmable PID controller and custom
Feedwater application/data.
Regulation Bypass
Controller
LIC-0735 Yokogawa Combination of a Yokogawa programmable PID controller and custom
Feedwater application/data.
Regulation Bypass
Controller
LIC-1300 Level Yokogawa Combination of a Yokogawa programmable PID controller and custom
Indicating Controller application/data.
PIC-0202 Letdown Yokogawa Combination of a Yokogawa programmable PID controller and custom
Pressure Controller application/data.
TYT-0100 PCS Loop Yokogawa Combination of a Yokogawa programmable PID controller and custom
1 Tave/Tref application/data.
Calculator
TYT-0200 PCS Loop Yokogawa Combination of a Yokogawa programmable PID controller and custom
2 Tave/Tref application/data.
Calculator
Advanced Systems Advanced ASC Trac bar code software is a materials management
Consultants Barcode System software/hardware package provided by Advanced Systems
Software Consultants Consultants of Dayton, Ohio has a front-end system to the
legacy (CMS Energy) CAS/MMS material management system.
Compliance All About Compliance Information Manager is a tool used to search a
Information Manager OSHA LLC database of regulations (Federal and State Regulations,
including updates, for the EPA, DOT and DOL; and construction
and general industry standards under OSHA.)
SWU Calculator - DOE A calculation program for nuclear fuel. Specifically, it 1 Site
Dos calculates the feed (UF6) and SWU (Separation Work Unit)
requirements for a given enriched uranium product.
Peaknet Dionex Peaknet is used to interface and control the
Corporation radiological(HOT SIDE) and non-radiological(COLD SIDE) Dionex
DX-500 ion chromatographs.
Biennial Resource EPA Biennial Hazardous waste report generator
Conservation
Recovery Act
Hazardous Waste
Report
SysMon EPRI SysMon software is used to evaluate critical components and Site Site
failure modes in a System and determine the appropriate
monitoring activities to mitigate these failures.
Chemworks - EPRI Chemworks is a collection of analytical tools created by EPRI to Site SITE
AminMOD model and evaluate plant chemistry systems.
Chexal-Horowitz EPRI The evaluations are used to help determine, along with other Site Site
Erosion Corrosion considerations, where and when to physically inspect in order to
Work Station prevent piping failure caused by FAC.
Software
(CHECWORKS)
Chemworks - EPRI Simplifies the evaluation of plant hideout return data by Site SITE
Hideout Return automating the extensive calculations required before hideout
Spreadsheet return data can be evaluated.
EPRI Chemworks - EPRI Produces quick calculations of equilibrium leakage from mixed Site SITE
Mixed Bed Ion bed ion exchangers, and time to breakthrough for common cationic
Exchange Calculator and anionic species.
Chemworks - Plant EPRI Used to provide in-depth modeling capabilities of the secondary Site SITE
Secondary Chemistry chemistry system including; transport of chemical species, steam
Simulator generator hideout, decomposition, and condensate
polisher/blowdown demineralizer impurity removal.
Chemworks - EPRI Used to calculate information regarding pH and B-Li control Site SITE
Primary pH Calculator bands.
Chemworks - EPRI Used to quantify the amount of radioactive species released Site SITE
Primary Shutdown during the shutdown/cooldown of the reactor coolant system.
Calculator
Chemworks - EPRI Used to rapidly calculate leakage from the primary system into Site SITE
Primary to Secondary the secondary system.
Leak Rate Calculator
The Assessment Ethany Corp. The Assesment System (TAS) database is used to schedule Nuclear
System Oversight assessments, document observations, produce reports
and allow the viewing of observations written at other NMC
plants.
ThermaCam Explorer FLIR Systems ThermaCam software is used to view and analyze thermographic 1 Single
99 (infrared) images recorded from an infrared camera. Images are
recorded and stored on a flash memory card by the camera and
transferred into the software via PC.
ThermaCam Reporter FLIR Systems ThermaCam software is used to view and analyze thermographic 1 Single
2000 Professional (infrared) images recorded from an infrared camera. Images are
recorded and stored on a flash memory card by the camera and
transferred into the software via PC.
ThermaCam Reporter FLIR Systems ThermaCam software is used to view and analyze thermographic 1 Single
Viewer 2000 (infrared) images recorded from an infrared camera. Images are
recorded and stored on a flash memory card by the camera and
transferred into the software via PC.
Chemistry Data GCR & WinCDMS32 is an effective data management application designed 1 Site
Management System Associates specifically to help Chemistry Department handle the vast
for Microsoft quantities of technical information for which it is
Windows responsible.
GPSteam General The GPSteam software is an 'add-in' to Microsoft Excel that 1 Single
Physics provides cell functions for the purposes of calculating steam
properties (ie. quality, enthalpy, entropy, etc.).
Honeywell Honeywell Plantscape Vista is designed to work with Honeywell Mircomax 1 Site
PlantVista Management Stations and Local Processing Unit lines of single
and multi-loop controllers, and with field-based control
solution.
Multiparser Honeywell This application runs concurrently with the Honeywell Plant 2 Site
Vista and parses reports from the Honeywell system which are
generated from the Chemistry inline instruments, and sends this
data to the WinCDMS32 system. This data is used for trending
purposes.
DOSIMASS MGP DOSIMASS is a maintenance and set-up software for the 3 Single
Instruments configuration of MGP Instruments DMC dosimeters.
TeleMap MGP The TeleMap software package provides radiation Site Site
Instruments protection personnel an on-line methodology of capturing
radiation data on P.C. based systems.
Teleview 2000 MGP Teleview 2000 is one of many tools used to enhance Site Site
Instruments radiation protection technicians ability to monitor work
remotely.
WCDM 2000 MGP Software calibrates a dosimetry device (radioactive).
Instruments
Primavera Project Primavera Software package used for project management
Management
ISIS Fuel Raytheon Software tool used to develop fuel movement plans. 2 Single
Management System Nuclear
Systems
Scientech Scientech These tables are bundled with and used by the PEPSE program,
Steamtables which has been classified as a Level 3.
PM7 Windows Thermo The PM7 Windows Calibration Program is used to calibrate
Calibration Program Electron Eberline PM7 personnel monitors
(Eberline)
AMS-4 Monitoring Thermo The AMS-4 Monitoring system software is used to calibrate,
System Software Electron troubleshoot, and obtain data from Eberline AMS-4 air monitors.
(Eberline)
PV-Plus YES North PV-Plus is commercially procured software for Nuclear Site
Consulting, Management Company, LLC, Palisades Nuclear Plant. This
LLC version uses a Microsoft Access database for storing,
reporting, and trending data obtained from Technical
Specification Surveillance Procedures.
FitPlus TSI Fit test program for negative pressure respirators.
Incorporated
SWU Cost Calculator United States A windows based calculation program for nuclear fuel. 1 Site
for Windows Enrichment Specifically, it calculates the feed (UF6) and SWU for a given
Corporation enriched uranium product, as well as the corresponding costs.
ME Scope Vibrant ME Scope is a modal analysis software product that takes 1
Technologies vibration test data gathered from a structure or piece of
equipment and provides an animated view of actual or
analytical motion. DAEC controls software.
Digital Electro- Westinghouse This system controls the turbine by modulating the governor
Hydraulic Turbine valves in response to error signals from the feedback loops
Control System (DEH) which monitor speed, impulse pressure, and megawatts.
PathWay Accessories Attachmate Pathway Accessories 64 Personal FTP Server is used to automate 24 Single
64 Personal FTP WRQ transfer of data and reports from RPMS and MIS down to a desktop
Server computer.
WinCharm - ACS - CHAR Program maintains an historical record of test results of
Network Services equipment tested by the CHAR system for trendable parameters.
Chesterton Valve Chesterton Valve Wizard is an Access 2000 application which holds the Unlimited
Wizard packing and information and torque requirements for valves.
Citrix Client32 Citrix Citrix Client 32 is simply communication software to allow Concurr.
Systems Inc. for viewing of the NMC Fleet RBMware database. (RBMware is
the fleet predictive maintenance programs primary database
for analysis and review of vibration data.)
CTI Toolkit (by Cooling Applications include, Air Properties Calculator, Merkel Number
Cooling Technology calculator, Demand Curve Worksheet (calculates tower
Technology Institute performance & characteristic curve test method) and Mechanical
Institute) Draft Tower Performance Test Analyzer (performance curve
method).
Characteristics DOE This is an old program (from 1992) that was referenced in 1 Single
Data Base past Engineering Analyses. It has not been used in recent
years at Palisades, but is potentially useful as a tool to
compare against Palisades specific calculations.
RTWIN Dynalco Crane This software provides the GUI and analysis tools to perform
diesel engine analysis.
CHIRON EPRI CHIRON is an EPRI fuel failure prediction code that aids in 1 Purchased
estimating the number of failed fuel rods.
PM Basis EPRI New Product. No information.
Winmeter Explorer The application downloads data from Red-Cal calibrated 2 Single
Technology equipment. It does not create or manipulate the data. It saves
Group the data for later retrieval, if desired, and will produce a
report of the retrieved data in a spreadsheet format.
Flukeview Fluke This program downloads and stores for historical retrieval 1 Single
for Windows data obtained by a calibrated Fluke 41 Total Harmonics
Distortion Analyzer.
Microshield Framatome Microshield calculates gamma radiation dose rates for various Single
-ANP purposes including control of radioactive material storage, and
verification of the adequacy of shielding for ALARA planning.
Omega Gerber
Gerber Scientific
Composer Products
Gravograph Gravograph
(Gravostyle)
Hydraulic HRS Systems Commercially developed tool, written in C++, for designing,
Analysis proving and reviewing fire sprinkler systems. The HASS
Sprinkler Systems program performs hydraulic analysis in accordance with
NFPA-13 and calculates any configuration of nodes and pipes.
Myriad Informative Myriad Engineering Viewer enables users to view drawing 10 Concurrent
Engineering Viewer Graphics electronically from their desktop. (10 Max)
Corporation
SmartSketch Intergraph Used by Engineers to sketch preliminary design ideas, create 27 Single
sketches for engineering documents (EA's, etc), view plant
drawings.
DASYLab Data Iotech The applications developed using the DASYLab software are used 5 Single
Acquisition to interface primarily with IoTech Wavebooks to collect events
and Analysis as they occur on equipment being monitored.
Software
Chemical Reg-A-Dex J. J. The Chemical Reg-A-Dex is a reference tool used to identify
Keller & chemicals for labeling, storage and handling.
Associates,
Inc.
Compliance Keller-Soft
Information
Manager Deluxe
KnowledgeBase KnowledgeBase KnowledgeBase provides an intelligent, integrated knowledge 1 Site
Enterprise Talisma management tool that promotes one-time single location
Edition Corp. information/article publishing, available to the site.
Mathcad Mathsoft MathCad is a shrink wrapped, commercially available, technical 1 Single
Engineering & calculation tool.
Education,
Inc.
Microboards MicroVision Software and hardware that will print labels on CDs.
CD Printer Development,
Inc.
DIAdem National DIAdem is a PC workshop for acquiring and processing measured 1 Single
Instruments data.
REIR View NRC Reirview is used to perform additional validations on the NRC
Personnel Exposure and Monitoring Report prior to the
submittal to the NRC.
Plateau Plateau Plateau Question Editor
Question
Editor
PGP Desktop 8.0 Pretty Good Encrypts email, files, and instant messages and also provides
Privacy Corp. the ability to manage PGP keys.
Bartender Seagull Software used to design labels and print labels
Barcode Label Scientific,
Software Inc.
Stream Diagnostic Stream An administrative tool to diagnose and manage
Analysis, organizational change using a comprehensive and
Inc. systematic approach.
CMS Family Studsvik XIMAGE is a point and click loading pattern and multicycle Site Site
- -Ximage Arthur scoping tool.
DiGiovinie
Toolbook Assistant SumTotal Tool used to build e-learning training applications. This
product was developed by the Click2Learn company.
Press The Technology Program is used to 'push' buttons that pop up during the
Freaking Button Lighthouse execution of programs. This program is used in conjunction
(PTFB) Freeware with Winbatch to automate the generation of reports from
Access and Open Plan.
Shaft Alignment TURVAC The Shaft Alignment software by TURVAC can do alignment 1 Single
calculations based on manual input of data.
Batch Programming Wilson Program is used to write excutables for downloading data 1 Single
Language for Window Ware, from the mainframe, report generation used for plant daily
Windows Inc schedules.
Convert Calculator Convert is an easy to use unit conversion program that will 2 Freeware
Program convert the most popular units of distance, temperature,
volume, time, speed, mass, power, density, pressure, energy, etc.
ABBYY FineReader ABBYY Optical Character Recognition software.
Pro
Macromedia Adobe
Captivate Systems
Macromedia Adobe Web development. Replacing Dreamweaver and Flash.
Studio MX Systems
CutePDF Adobe
Systems
Dreamweaver Adobe Application is the only one to effectively communicate with 1 Single
Systems Plateau.
Macromedia Adobe Application enables playing of various audio and video applets. Freeware
Shockwave v 8 Systems
Adobe Acrobat (full) Adobe Read and make new documents in the PDF format. Single
Systems
Adobe Acrobat (full) Adobe Read and make new documents in the PDF format. 67 Single
Systems
Adobe Acrobat Reader Adobe To read *.pdf files. Freeware
Systems
Adobe Photo Deluxe Adobe
Systems
Adobe Photoshop Adobe
Systems
Alber BCT-2000 Albercorp The software controls the load banks to apply the specified 2 Single
Battery Capacity loading required by analysis to the plant equipment to verify
Testing Software operability of station batteries and chargers.
Capture AnalogX Freeware Software for capturing screenshots. Freeware
Quick Time Apple Computer
Reflections X Attachmate Windows XP upgrade involved upgrading software product Single
WRQ from earlier versions (multiple ones were in use) to
version 10.
KEA 420 Emulation Attachmate PADS access to Alpha Server 24 Single
Software WRQ
Quickview Plus Avantstar Enables viewing of e-mail attachments without having 30
attachment's software loaded.
Avery Wizard Avery Label wizard for Word. 1
for Word2000 Dennison
Corporation
Crystal Reports Business Report Writer/converter 1 Single
Objects
ABACOS Plus Canberra ABACOS Plus provides all of the software functions needed
to perform internal measurements of nuclide activity and
calculate internal dose values for Whole Body Count
subjects.
CSDiff Component Textfile comparison software. Freeware
Software
ERWIN Computer Data Modeling Tool
Associates
International,
Inc.
CorelDraw 10 Corel Corp. Posters and translations 4 Single
Graphics Suite
CorelDraw 8 Corel Corp. graphics suite 6
Graphics Suite
CorelDraw 9 Corel Corp. Posters and translations 3 Single
Graphics Suite
Paint Shop Pro Corel Corp. Graphics creation/manipulation 1 Single
WordPerfect Corel Corp.
WordPerfect Corel Corp. Word Processing Software
WordPerfect Corel Corp. Word Processing Software 2 Single
DBArtisan Embarcadero Database Administration Tool 8 Single
Technologies,
Inc.
eSqug EPRI The program provides data for performing seismic
evaluations of equipment and components per NEP 15.32,
"Seismic Design and Analysis of Modified, New, and
Replacement Equipment Using the GIP Methodology."
CADNET EQuorum Inc. Add on program developed and sold by Equorum Inc., that is 8 Site
used by the Microstation CAD program to print drawings via a
plotter.
NUPIC System Ethany Corp NUPIC is not a software program. It's a website with database
information within. It is maintained totally by NUPIC, and is
accessed for Information Only. Accessed at www.nupic.com
Win32Pad Gena Text editor Free
HP Scanjet 5400c Hewlett HP Scanjet 5400c series flat bed scanner software and USB Driver 1 Single
series Software and Packard Installation.
USB Driver
HP JetAdmin Hewlett
Packard
HP Cd Writer Plus Hewlett CD Burning 1
Packard
Compaq Visual Intel Base software for PSS/E 2 Single
Fortran
Iomega ZIP100 Iomega Corp. Allows use of Iomega Zip drives Single
Irfanview Irfanview Picture viewer Free
Audit Wizard Layton PC Auditing for asset, user, hardware and software details. It
Technologies runs on a server and when users login, it records data about
their computer.
SummaGraphics Logic Group Drivers for the digitizer tablets
Tablet Drivers
Virus Scanning McAfee Business LAN Apps
Software (McAfee)
Microsoft Microsoft Database Administration Tools 3 Single
Developer's Network
(MSDN)
ActiveSync Microsoft Needed for Huskey Windows CE Computer. 1 Single
Microsoft Visual Microsoft Internet/Web Development Software 4 Single
Studio.NET 2003
Enterprise Developer
Microsoft Access Microsoft
Snapshot Viewer
Microsoft Photo Microsoft
Editor
Microsoft Publisher Microsoft Palisades Site Business Applications 650 Single
2000
Microsoft Visio Microsoft All around graphics program 161 Mselect
Professional 2002
Microsoft FrontPage Microsoft 1
Microsoft Project Microsoft Project Management Software 195 Single
Badging System Midstate This system fabricates and encodes badges used for access to the
Security/Godd plant Protected and Vital Areas. This system is used in
ard conjunction with the PEGASYS and Hand Geometry systems.
Technology
Mochasoft MochaSoft Mainframe emulation tool. Corporate
Milestone Mozilla Project Schedule Presentation(s). 5 Single
LabVIEW National National Instruments LABVIEW is a powerful development
Development System Instruments environment for signal acquisition, measurement analysis, and
data presentation, giving you the flexibility of a programming
language without the complexity of traditional development
tools.
Crossword Studio Nordic Training aid - crossword
Software
WordSearch Studio Nordic Training aid - crossword
Software
Nova Backup Novastor Used by Simulator Support Group to backup Simulator 2 Single
Professional Edition Servers/Computers.
CAMEDIA Master Olympus Download and edit Olympus digital camera pictures.
2.5 Imaging
America Inc.
MediaFACE On Line Design Software & Image Library Label maker 1
Label, Inc.
WinINSTALL 5.1 OnDemand
User Setup Software
WinInstall 5.1/32 OnDemand Business LAN Apps
Software
Oracle (Plateau) Oracle Plateau
Oracle RDB ODBC Oracle Driver installed on local PCs to allow access the DEC Alpha 1
Driver 2.10.17 Server.
Easy CD Creator Roxio CD Burning Software Single
Basic (Formerly
MGI)
Documents to go Palm
Intellisync for Palm Palm Porting of information form workstation to the palm device.
Palm Desktop Palm Allow connectivity between Palm handheld device and Desktop. Bundled
Palm OS Palm
Palm Portable Palm Communicates with Palm Portable Keyboard. 1 Single
Keyboard Software
PS Pad PSPAD
Easy CD Creator Roxio CD Burning software Single
Platinum (Formerly MGI)
Easy CD Creator Roxio CD Burning Software
Platinum (Formerly MGI)
MGI Photosuite Roxio Photo Manipulation 1 Single
(Formerly MGI)
MGI VideoWave III Roxio VideoWave is a suite of fully integrated video editing and DVD 1
SE (Formerly MGI) authoring tools.
Easy CD Creator Roxio CD Burning Software
Basic (Formerly MGI)
XOQDOQ RSICC/ORNL Used to evaluate the long term dispersion of contaminants in
the atmosphere in the Palisades Plant area. Palisades provides
data to contractor who runs the program for us.
SMART board Smart White Board with built in scanner. 1 Workstation
Technologies
EAStudio Suite Sybase Business LAN Apps 3
(PowerBuilder Tool)
Sybase Sybase
Sybase 11 Sybase 8
Native Driver
(Client)
Sybase 32 bit ODBC Sybase Sybase 32 bit ODBC (11)
Sybase Sybase
Ghost Symantec Imaging work stations
PC Anywhere Symantec PC Anywhere is a terminal emulation program which allows a
remote computer to dial into a local computer via modem and
manipulate/take control of the local computer.
SNAGIT Tech Smith Screen Capture Single
WHOHASIT The To see who is connected to file.
Gadgetfactory
WHOHASNT The
Gadgetfactory
WinMerge Thingamahooc Textfile comparison software Freeware
hie Software
Comply Plus Web Thomson Software from Dolphin (vendor) for Material Safety Data Fleetwide
- -Material Safety Micromedex Sheet (MSDS) tracking and Chemical Control.
Data Sheet
Power ZIP Trident Zip utility that compresses information
(PKZIP/UnZIP) Software
Utility (Like
WinZIP but Free!)
Lectora Trivantis Per Tim Guldan: Lectora is just a software package that
Preferred Corporation allows the users to develop online training/tests that
Enterprise they can then launch via the LMS.
Edition
PowerDesk 4 Pro Vcom File Management System - Used to transfer file paths and 1 Single
Products location into access database for comparison.
Vox Proxy Vox Proxy Creates Animations for PowerPoint. It is a PowerPoint plug-in. 1 Single
PrintKey2000 Ware Central Added [Print Screen] key functionality. Freeware
ZoneAlarm Pro Zone Labs Internet Firewall Software
2 User
NotePad + Freeware program that enhances the Windows Notepad program 1 Single
Windows O-I-Analytical WinTOC is a Windows-based software that enables the operator
Total to control and monitor a Model 1010 Total Organic Carbon (TOC)
Organic Analyzer from a PC.
Carbon Analyzer
CONTEMPT Energy The CONTEMPT code supports the plant containment pressure and
Incorporated temperature response analyses.
PSS/E Power System Power PSSE analyzes the electrical distribution system for loadflow,
Simulation/Engg Technologies voltage, current, short circuit, transient stability and other
Inc./Shaw analysis requirements. The systems include safety-related,
Group Class 1E equipment along with non-Class 1E equipment. 2 Single
Seismic Hazard Jack R. SHIP is a Windows based application that performs the
Integration Benjamin and numerical calculations to estimate the frequency of
Package Associates, occurrence of system failure due to earthquake ground
Inc. motions.
Top Event Prevention LOGIC The TEP Top Event Prevention code is a FORTRAN executable
Analysts code employed to manipulate boolean equations
Inc symbolically.
WIN-SRRA Westinghouse Win-SRRA is an executable personal computer program used to
specify input and calculate piping failure probabilities for
selected input values of key design, operational, and
inspection parameters.
STEAM CMS Energy The software is infrequently used these days. Results of the 1 Site
routine are used as inputs for other calculations. STEAM is
designed to run under MS-DOS.
LXR-Test Logic LXR is a third party Access Database based program used for 0
Professional Edition eXtension the creation and storage of training examination questions
Resources and the generation of exam questions.
Visio Templates Microsoft Visio Templates for Root Causal Analysis
for Root Causal
Analysis
Visual Microsoft Development software
Basic Professional
Visual Studio Microsoft Software Developers Package VB, C, ActiveX - Marked as
"Deferred" until decision comes from Mark Love on whether to
package or not Mark love says Package.
DB Server Microsoft Business LAN Apps 1 Single
Operating System NovaSoft
NetOP Host Semicron Allows remote access and control of workstations.
Systems
PAVAN Estimates the relative ground level air concentrations
(X/Q) for potential accidental releases of radioactive
material from Palisades Plant Installed on Comsumers
Mainframe.
Sitewise Interactive MJW Inc. Used to create virtual tours of plant areas. 650 Site
Virtual Tour System
Automated Framatome/ The Framatome-ANP Automatic Calculation Engine (ACE) software 10 Site
Calculation Areva is used to calculate and compare the seating or opening force
Engine (ACE) and/or torque to the actuator capability for safety-related
MOVs and AOVs to perform their safety functions against design
basis pressure and flow.
Advanced License AATS The LEX and ALEX software is a license renewal Unlimited
Extension Process program for scoping, aging, management review and
Management System creating the license renewal application.
PI Client - OSI-Soft Data access and presentation tool that queries a PI
Access Tools server for plant process data. PI Access tools (API,
ODBC, etc.) is a package of client products that allow PI
server queries from databases and applications.
Plateau Learning Plateau The Plateau LMS (Learning Management System) tool is a Web Based
Management System web-based tool that will be used for training history,
qualification tracks, on-line training delivery, class
scheduling, and individual personal development plans.
Fuel Supply Utility Tracks meetings, tasks, delivery dates, notices, etc., related Single
Commitment Resource to the Fleet's fuel contracts.
Tracking Associates
System
Connx Connx We currently only have one license for this software. This
Solutions software is currently used by the Teleview 2000 software to
access the data file of workers currently logged-in to the
radiation controlled area.
Performance Scientech The use of PEPSE is restricted to analyzing & trending 1 Single
Evaluation of plant secondary cycle performance. These results are used
Power System for business planning and improving plant efficiency. There
Efficiencies are no safety related or technical specification
applications for this software.
# OF
TITLE VENDOR FUNCTION/DESCRIPTION FUNCID LICENSES TYPE OF LICENSES
- --------------------- ------------- ------------------------------------------------------ -------- -------- ----------------
AMS Suite - Computationa Vibration testing of IST Program pumps. ENG 1
Vibration Meter l Systems
CSI RBM Incorporated
Consultant Mod (CSI)
2120A Firmware Division
Emerson Process
Management
Ultra Sonic module Computational RBMware is controlled by Duane Arnold, and is a fleet ENG
of RBMware Systems, application. Ultrasonic data is recorded to find
Inc. equipment faults before equipment failure occurs.
WeldSpec C-Spec This software is a tool for generating Welding Plan &
Procedure Specifications and a data base for welder Schedule
qualification records.
Fuel Management Energy Used for fuel cost projections which become part of ENG Single
and Accounting Resources Palisades' Michigan PSC Rate Cases.
System International
SharePoint Microsoft Document Management software.
OutlookSoft OutlookSoft Allows communication with the MS SQL Analysis Server FINANCE
Everest dbase which houses the financial reporting app.
Self-Service Right Reference and answers to software use questions to aid 1 Site
Library Answers end users in resolving their own questions without
having to call on the Help Desk for assistance.
SAP - Palisades SAP Used to report financial transactions for the plant. FINANCE Fleet
It also provides employees access to their own human
resource related data, such as benefits information,
contact information and time sheet and expense
reporting, through the Intranet or Internet.
Advanced CMS Energy The AMMS application is used to compile and track 1 Site Advanced
Maintenance maintenance on plant equipment. Maintenance
Management Management
System System
Human Resource Integral Consumers Energy Human Resources Mainframe Site Site
Management Systems Application, accessed via Mocha Soft.
System
IMPACT (Managed CMS Energy Consumers Energy Budgeting Tool.
Desktop Application)
Lotus Notes Client IBM
Peregrine Hewlett
Packard
Title Vendor Function/Description # of Lic Type of Lic
- --------------------- ---------------- ---------------------------------------------------------------- -------- -----------
DELTSTRAT Combustion The Spreadsheet calculates a correction factor for the Palisades Site
Engineering hot leg temperature measurements to account for stratification
in the hot leg nozzle.
Calibration Sheet In-House Verify accuracy of safety related Class 1E instruments
Database
PIDAL-3 Family In-House Runs PIDAL offline
(FETCH-3)
PIDAL-3 Family In-House The PIDAL-3 system is a Full Core On-Line Incore Monitoring
(P3PPC, System.
P3ALM, P3FBI)
CMS Family -CASLIB Studsvik Used to design fuel cycle and provide input to PIDAL family Site
and DORT.
CMS Family Studsvik Used to design fuel cycle and provide input to PIDAL family Site
- -CASMO-4 and DORT.
CMS Family Studsvik Used to design fuel cycle and provide input to PIDAL family Site
- -CMSLINK and DORT.
CMS Family Studsvik Used to design fuel cycle and provide input to PIDAL family Site
- -SIMULATE-3 and DORT.
CMS Family Studsvik Used to design fuel cycle and provide input to PIDAL family Site
- -CMSVIEW and DORT.
SFDP Tool Application extracts from EOOS a list of equipment that is out
of service and builds another list of other affected equipment
and the possible saftey issues arising because of the out of
service equipment.
GASPAR -Radiological Consumers The reports generated by the GASPAR application are required as
Impact Eval Pgm -Jackson part of the information supplied to the NRC for licensing.
LADTAP-Radiation Consumers LADTAP is used to calculate the radiation exposure to an
Exposure Calc Pgm -Jackson individual from the routine release of nuclear reactor liquid
effluents.
Initiate plant for Developed thru Reporting for the PIPS system, which is an industry shared
PIPS Reports Hudson by database for documenting qualification of in-house workers for
Duane Arnold unescorted access.
Appendix R In-House The Appendix R Program Manager is designed to access, maintain, Single
Program and print documentation of the Palisades Nuclear Plant Fire Safe
Manager Shutdown Analysis (FSSA).
CACTIS - In-House Tracks commitments that are ongoing and are tied to a procedure
Commitment or a PPAC.
Tracking
Circuit & In-House The Circuit & Raceway Schedule program is available to the 3 Single
Raceway Palisades general population via the Local Area Network.
Schedule
Emergency Plan In-House This software, used in conjuntion with the PEGASYS system,
Accountability accounts for personnel during Emergency situations at the Plant.
Measuring & In-House Tracks which test equipment was in use in that plant. Site
Test Equipment
System
Palisades Special In-House Provides electronic storage of records relating to nuclear fuel. Site
Nuclear Material
Database
Quality In-House Access database containing the requirements from Consumers
Requirements Energies Topical Report and all of the ANSI Standards and Reg
Matrix Guides to which Palisades is committed.
DOCS Open PCDocs This software displays record indexing information for
Document microfilmed records and enhance design data retrieval.
Management
System
(ReCTRAK)
Cable Tray Sargent & Used primarily by the Palisades Design Engineering group as 3 Single
Ampacity Lundy noted above.
Program
Maintenance The Maintenance Rule Availability Database is used to collect Site
Rule Availability Maintenance Rule availability performance monitoring results.
Database
Maintenance The Maintenance Rule Basis Database is used to collect and Site
Rule Basis report Maintenance Rule performance monitoring results.
Database
SCBA Database A Microsoft Access database that contains data about SCBA
respirators and their parts, and respiratory medicals.
Culinet CMS CAS/MMS2 is used to maintain several open purchase orders
Applications Energy maintained through Palisades Supply Chain. In addition, some
Software/MMS2 Palisades site nuclear fuel procurement activities are
administered using requisition authority (purchasing) through
CMS Energy using C
Culinet CMS CAS/MMS2 is used to maintain several open purchase orders
Applications Energy maintained through Palisades Supply Chain.
Software/MMS2
Air Sample In-House Excel spreadsheet which is used to analyze the results of
Calculation airborne radioactivity samples generated from the Gamma
Spreadsheet Spectroscopy system.
Air Sample In-House An internally developed MSAccess database used to store data
Database generated from the Air Sample Calculation Spreadsheet.
Critical In-House The database will be used to perform classification of all
Equipment components in the AMMS equipment database as either critical or
Database non-critical.
DAC Hour In-House Excel spreadsheet which is used to calculate DAC-Hours based on
Tracking airborne radioactivity sample results.
Dosimetry In-House Access database used to store TLD information
Database
Material Access In-House Palisades Supply Chain personnel use MATERIAL as a reference and Site
Database archival resource for maintaining traceability of non-stock
safety-related material.
MISER-2 In-House NRC Semi-Annual Special Nuclear Material Accountability Program. Site
ModTrack - In-House Modtrack is a Sybase DB with a PowerBuilder front end that is 3 Single
Database used to store data related to Plant Modifications.
ModTrack - In-House Modtrack is a Sybase DB with a PowerBuilder front end that is Site
Reports used to store data related to Plant Modifications.
Modtrack - In-House Modtrack is a Sybase DB with a PowerBuilder front end that is Site
Reports, used to store data related to Plant Modifications.
Supervisor Level
Personnel In-House Excel spreadsheet which is used to calculate the radiation
Contamination dose to skin from dispersed or discrete contamination.
Incident SDE
Calculation
Spreadsheet
Project In-House Internally developed MS Access 2000 Database developed for
Database/5 Year tracking and forcasting plant finances.
Plan
Pedlogs Access In-House The PEDLOGS database is composed of several active and Site
Database inactive/historical Access databases used within the Palisades
Supply Chain organization for internal information.
Procedure In-House PowerBuilder application which draws procedure processing
Tracking System information from the PC Docs applications.
REMP Annual In-House Excel spreadsheets results are used to prepare the Annual
Report Radiological Environmental Monitoring Report.
Spreadsheets
RETS Waste In-House Excel spreadsheet tool used to determine which of six waste gas
Tank Decay decay tanks has the lowest activity.
Activity
RWP (radiation In-House Access database used to generate printed radiation work
work permits) permits(RWP).
Database
Time Sheet In-House Used to manage the overtime scheduling for staff to ensure Site
Administrative Overtime Limits are not exceeded.
Tier Two Michigan Report generator for the Tier Two Emergency and Hazardous
Emergency and State Chemical Inventory Report.
Hazardous
Chemical
Inventory Report
APE Database APE Database is an Access 2000 application which holds details
about work orders that require engineeing details.
Plateau Plus
Training Reports
Shift Electronic
Log
Simulator Crew The operations shift crews are observed in the simulator, and Site
Performance results of those observations (simulator performance grades and
Database comments) are captured in the database.
Simulator MS Access Database developed on site to track simulator exercise Site
Exercise content.
Database
UPS Hazardous
Materials
Shipper
UPS Worldship
Work Order Work Order History is an Access 2000 application which reports Site
History on the history of and active work orders from the AMMS mainframe
program.
PowerOnTheWeb Developed Interface for displaying power in megawatts
by DAEC
Scaffold and In-House Program is an Access 2000 database used by the Planning
Insulation Department to detail scaffold and insulation requests.
Access Database
Safety & Design In-House Used to document, track and print reports of reviews performed Corporate
Review Database by the Safety & Design Review Department.
Icon
Access In-House Microsoft Access database used for tracking personnel with
Authorization unescorted access.
Database
ACEMAN In-House The database is used by all plant personnel, specifically Site
Observation managers and supervisors, to conduct in-field observations of
Database direct reports conducting work activities.
ACEMAN In-House The database is used by senior management to track on a Internal
Scorecard monthly basis by department overall performance related to
Database the aceman acronym (accident free, control dose, event free,
meets schedule, attend training, no rework)
CACTIS - CA In-House CACTIS report module that generates 104 Forms for
104 Form transmitting completed A-PALs and A-CMTs to the ERC for filming.
Calculation In-House Sybase Database with a PowerBuilder front end. 1 Site
Cross Reference Developed internally by Palisades IT Dept.
Chiller Load In-House Microsoft Excel spreadsheet utilized to expedite a series of
Prediction iterative calculation steps.
ERC Document In-House The reports display a users request for information from
Search (ERC DOCTRAK. It is only a report generator.
Reports)
Event Clock In-House The database is used to catalog event clock reset information. Site
CACTIS - In-House CACTIS Module containing historical Industry Experience
Industry information.
Experience
Database &
Report
License Data In-House Used by Operations Training Instructors to track Licensed
Operator and SRO license renewal dates.
LOR 6 Year In-House Used by Operations Training to document/plan and track
Training Matrix required training and tasks to be completed for Licensed
Operator Requalification.
Lubrication In-House The Lubrication Manual is primarily used by Engineering Site
Manual Programs and Operations for general information about the
lubrication of components in the plant.
System In-House The application is designed to be used by plant staff to 2 Site
Engineering monitor plant systems by integrating data available from
Menu many sources.
Ops In-House Microsoft Excel spread sheet containing a listing of values
Calculations.xls - and calculation results pertaining to routine reactor
Reactivity operations.
Management
Sheet
Palisades In-House Internally developed Microsoft Access 2000 Database used Site
Catalog System for controlling Vendor Manuals
Palisades Tech In-House Used to log/catalog documents retained in the Tech Library. Site
Library
Simulator In-House Paltrack is an MSAccess based application that is used to
Mod/Plant Mod monitor and track identified simulator deficiencies and
Database plant modifications.
PDR Database In-House Software is to be used by plant supply chain organizations for
tracking procurement deficiencies for material prior to the
material's acceptance at the site.
Request for In-House The RPA provides a consistent method of documenting the
Project Approval project description, justification, ranking, alternatives, and
risk.
Sample Plan In-House MS Access Database developed to track objectives taught in
2001-2002 Operator training.
Site Access In-House Program notifies security of plant visitors who will need
Requesst Form access to the Owner Controlled or Protected Areas.
STATISTICS In-House Used to track monthly electrical and thermal performance
statistics for input into NRC monthly operating report.
Work Review In-House The database is used to review and assign priority codes to
Group EARs.
Tank Volume Excel spreadsheet to calculate the volume of various tans at any
level of fill used by the Engineering department.
System Internally The application is designed to be used by systems engineers to 1
Monitoring and Developed monitor and report on plant systems health by integrating data
Reporting Tool available from many sources. All data generated by external
departments is read-only and manipulated only be outside
programs.
Offsite Dose Independent The program is used during exercises, drills and actual
Projection Model Contractor emergencies by the Health Physics groups located in the
Technical Support Center (TSC) and the Emergency Operations
Facility (EOF).
Segmented Gaussian Independent Used in conjunction with/and is a subset of OFFSITE Dose
Dose Projection Model Contractor Projection Model. Under some circumstances this application will
provide better and/quicker indication as to where an offsite
"hot-spot" may exist. This model is better for a longer term
radiation
Decision Tools -@Risk Palisade These risk analysis macros support the maintenance rule, various 2 Single
Corporation risk informed initiatives, the reactor oversight process as well
as a variety of plant licensing issues.
Decision Tools Palisade These risk analysis macros support the maintenance rule, various
- -BestFit Corporation risk informed initiatives, the reactor oversight process as well
as a variety of plant licensing issues.
Equipment NMC The Equipment Monitoring Program does not interface with any
Monitoring predictive maintenance data collection equipment and does not
Program perform any calculations. It is merely a repository of text
Database information for purposes of tracking equipment problems and
generating
Program Health NMC The software is used by Programs Engineers to create and store Site
Report Database program health reports. The software does not perform any
monitoring or calculations. There are no safety-related or tech
spec applications for this software.
PC Docs PDF Hummingbir This is an implementation of the Docs Open Software Product
Procedures d/In-House that allows for the storage, full text searching, indexing,
etc. of documents stored as PDF files.
PC DOCS - Word Hummingbir This is an implementation of the Docs Open Software Product
d/In-House that allows for the storage, full text searching, indexing,
etc. of documents developed in MS Word.
C&RPS In-House The C&RP Management Information System (MIS) computer system is
a tool the department uses to process data relevant to
radiation workers exposure to ionizing radiation.
DOCTRAK In-House The database is used to track DCR status and to provide an Site
electronic listing of DCRs. Used as a tool and in no way impacts
plant design, safety, or operation.
PIDAL-3 In-House The PIDAL-3 system is used on-line to monitor the core power
Family distribution for technical specification compliance via
Surveillance Procedure MT-10. PIDAL-3 can also be
run off-line for benchmarking and uncertainty analysis.
Xensam In-house Xensam is a program that estimates the reactivity insertion due
to the concentrations of Xenon-135 and Samarium-149. Xensam is
Excel based and uses Visual Basic.
Seller's Agreements - Big Rock ISFSI Assets
1. Contract for Technical and Consulting Services between Consumers Energy
Company and BNG America (formerly BNFL, Inc.) dated September 1, 2002.
2. Contract for Security Services between Securitas Security Systems Services,
USA, Inc. and Consumers Energy Company dated May 30, 2004.
3. Contract for Labor and Material between Nuclear Security Services Corporation
and Consumers Energy Company dated September 15, 2005.
4. Amended and Restated Contract for Spent Fuel Storage/Transportation System
between BNFL Fuel Solutions Corporation and Consumers Energy Company dated May
23, 2002.
5. Letter agreement between Consumers Energy Company and Allied EMS Systems,
Inc. dated October 22, 2004.
6. Letter agreement between Consumers Energy Company and Charlevoix Fire
Department dated October 26, 2004.
7. Letter agreement between Consumers Energy Company and Northern Michigan
Hospitals, Inc. dated March 26, 2004.
8. Letter agreement between Consumers Energy Company and Charlevoix Area
Hospital dated October 21, 2004.
9. Letter agreement between Consumers Energy Company and Charlevoix Township
Board dated October 11, 2004.
10. Letter agreement between Consumers Energy Company and Environmental, Inc.,
Midwest Laboratory, dated October 26, 2004.
Seller's Agreements - Palisades and Big Rock ISFSI Assets
1. Contract for Disposal of Spent Nuclear Fuel and/or High Level Radioactive
Waste (Contract No. DE-CR01-83NE44374) between Consumers Energy Company and the
United States of America, represented by the United States Department of Energy,
dated June 3, 1983.
Seller's Agreements - Safeguards Information - Palisades and Big Rock ISFSI
Assets
281
1. In each of the Site Security Plans for Palisades and Big Rock, there are
agreements with the applicable Michigan State Police Post and, in the case of
Big Rock with the Charlevoix County Sheriff and in the case of Palisades with
the Van Buren County Sheriff. Since these agreements are Safeguards Information
they are subject to specific security requirements. Bidders are being put on
notice that these agreements exist and may, by their terms, require permission
of the counterparty prior to transfer.
282
SCHEDULE 4.11(a)(ii)
Fuel Contracts - Palisades Assets
1. Palisades Nuclear Contract between Consumers Power Company and Siemens Power
Company - Nuclear Division, later assigned to Framatome ANP, Inc., dated
November 1, 1995, including Change Orders #1 through #3 and #5 through #10 and
Assignment and Assumption Agreement effective September 1, 2001 between
Framatome ANP Richland, Inc., Framatome ANP, Inc. and Consumers Energy Company.
2. Uranium Conversion Services Agreement between Nuclear Management Company,
LLC, and ConverDyn, dated January 1, 2003, including Amendment #1 dated January
1, 2005 and Amendment #2 dated January 18, 2006.*
3. Allocation Agreement Regarding Purchase of Uranium Conversion between
Consumers Energy Company, Northern States Power Company, Wisconsin Electric
Power Company and Nuclear Management Company, dated January 1, 2003, including
Modification #1 dated April 19, 2006 and Modification #2 dated April 19, 2006.*
4. Uranium Enrichment Services Contract between Consumers Energy Company,
Northern States Power Company and Wisconsin Electric Power Company represented
by their agent Nuclear Management Company, LLC, and Urenco Enrichment Company
Ltd, Urenco (Capenhurst) Ltd, Urenco Deutschland GmbH and Urenco Nederland BV
dated October 26, 2004, including Amendment dated January 18, 2006.*
5. Uranium Enrichment Services Agreement between Consumers Energy Company and
Cogema, Inc., dated September 24, 2002.
6. Uranium Concentrates Sale Agreement between Nuclear Management Company, LLC,
for itself and as agent for Consumers Energy Company, Northern States Power
Company and Wisconsin Electric Power Company, and Rossing Uranium Limited dated
May 26, 2005.*
7. Nuclear Fuel Fabrication Contract between Framatome ANP, Inc. and Consumers
Energy Company, dated March 3, 2006.
8. Supporting Letter Agreement between Framatome ANP, Inc. and Consumers Energy
Company dated May 10, 2006, provided that this Letter Agreement is an Excluded
Contract insofar and only insofar as it covers use or disposition of excess SWU
credits and not insofar as it covers use or disposition of excess UF6 feed
component.
9. UF6 Conversion Services Agreement between Nuclear Management Company, LLC,
for itself and as agent for Consumers Energy Company, Xcel Energy and Wisconsin
Electric Power Company, and Cameco Inc. dated March 27, 2006.*
283
10. Conversion Services Contract between Nuclear Management Company, LLC. and
Areva NC Inc. (DRAFT, YET TO BE SIGNED).*
11. Uranium Enrichment Services Contract between Nuclear Management Company,
LLC. and Areva NC Inc. dated April 3, 2006.*
12. Agreement between Rossing Uranium Limited and Nuclear Management Company,
LLC. for the Sale and Purchase of Natural Uranium Concentrates (DRAFT, YET TO BE
SIGNED).*
13. Uranium Concentrates Sale Agreement between Itochu Corporation and Nuclear
Management Company, LLC. (DRAFT, YET TO BE SIGNED).*
* Insofar and only insofar as such agreement covers or applies to goods,
services, or materials intended for Consumers Energy Company.
Fuel Contracts - Big Rock ISFSI Assets
None
284
SCHEDULE 4.11(b)
Material Breaches - Palisades Assets
1. Failure of the DOE to accept waste under the Contract for Disposal of Spent
Nuclear Fuel and/or High Level Radioactive Waste, No. DE-CR-01-83NE44374, dated
June 3, 1983 entered into between Consumers Energy Company and the USA
represented by the Department of Energy, as amended.
2. There is the potential for a material breach by Babcock and Wilcox Canada,
Ltd under Contract Number 30000445, for the Reactor Vessel Head nozzle J-Welds
identified in Technical Paper Q, Revision 1.
Material Breaches - Big Rock ISFSI Assets
1. Failure of the DOE to accept waste under the Contract for Disposal of Spent
Nuclear Fuel and/or High Level Radioactive Waste, No. DE-CR-01-83NE44374, dated
June 3, 1983 entered into between Consumers Energy Company and the USA
represented by the Department of Energy, as amended.
285
SCHEDULE 4.12
Legal Proceedings- Palisades Assets Only
1. Michigan Environmental Council, Don't Waste Michigan, Michigan Land Trustees,
West Michigan Environmental Action Council, Green Party of Van Buren County and
the Nuclear Information and Resource Service argued before the Atomic Safety and
Licensing Board and have appealed to the full NRC that, based on alleged safety
concerns, the Palisades Operating License should not be renewed. The NRC has
rejected their arguments, the groups have a right to appeal to the US Court of
Appeals.
2. In March 2003, a complaint was filed at the Michigan Public Service
Commission (MPSC) in MPSC Case U-13771 on behalf of the Michigan Environmental
Council (MEC), Public Interest Research Group in Michigan (PIRGIM), and Michigan
Consumer Federation (MCF) against Consumers Energy Company, Detroit Edison
Company, Indiana Michigan Power/AEP, Wisconsin Electric Power and Wisconsin
Public Service Corp. The complaint asked the MPSC to review all facts and issues
concerning costs associated with spent nuclear fuel storage and disposal. It
sought a variety of relief, including a request that amounts collected from
customers for spent nuclear fuel disposal and storage be placed in an external
independent trust. The complaint also asked the MPSC to take a variety of
additional actions. On September 20, 2005 the MPSC issued an order dismissing
the complaint for failure to state a prima facie case without prejudice to
re-filing the complaint. MEC/PIRGIM/MCF filed an appeal with the Michigan Court
of Appeals from the (i) MPSC's September 2005 order dismissing their spent
nuclear fuel complaint and (ii) the MPSC's February 9, 2006 order denying their
request for rehearing.
3. Seller is a Potentially Responsible Party with respect to the Maxey Flats
Nuclear Disposal Superfund Site near Morehead, Kentucky. Seller has paid
$530,216.32 for study, remedial action and other response costs at the Maxey
Flats site. Seller has recovered $218,804.00 of this amount in settlement of
contractual claims. Of approximately 35,450 cubic feet of waste shipped by
Seller to the site during 1968 to 1977, Seller believes that about 2/3 of the
waste came from the Palisades plant and none came from the Big Rock Point Plant
Operating Facility. Under a Consent Decree and related agreements, Seller is
responsible for 1.7123% of the costs to be incurred by the Maxey Flats Steering
Committee. Potential future cost is estimated to range from $12,000 to $129,000.
The difference is primarily the Seller's share of a horizontal flow barrier if
one is required. Seller has accrued $13,840.00 for future Maxey Flats liability
(2/3 of which is related to the Palisades Assets).
286
4. Michael Lewandowski v. Nuclear Management Company, Van Buren County Circuit
court, alleging violation of Michigan Whistleblower's Protection Act (MCL
15.362) as well as claim he was discharged while on a leave under the Family
Medical Leave Act (29 USC 22611(2)). Claims were dismissed by the Circuit Court
and plaintiff has filed an appeal with the Michigan Court of Appeals.
5. Gary Stama v. Nuclear Management Company, Van Buren County Circuit Court,
alleging violation of Michigan Whistleblower's Protection Act (MCL 15.362),
violation of public policy via retaliatory discharge and violation of
Bullard-Plawecki Right to Know Act (MCL 423.01). Case is in discovery phase with
trial set for September 26, 2006.
287
SCHEDULE 4.13(b)
Material Permits - Palisades Assets
1. South Carolina Radioactive Waste Transport Permit 0006-21-06, expiring
December 31, 2006, issued by the South Carolina Department of Health and
Control.
2. Radiation Machine Registration Certificate 9071, expiring July 1, 2007,
issued by the Michigan Department of Community Health.
3. Sand Dunes Protection and Management Permit 04-80-0044-P, with extension to
Aug 2, 2006, issued by MDEQ. This permit is for an inactive project and will not
be renewed.
4. Scientific Collector's Permit, expiring December 31, 2006, issued by Michigan
Department of Natural Resources.
5. Tennessee License to Transport Radioactive Material T-MI003-L06, expiring
December 31, 2006, issued by the State of Tennessee Department of Environment
and Conservation Division of Radiological Health.
6. Refrigerant Transition and Recovery Program Certification 101133948,
certified July 19, 2005.
7. Hazardous Materials Certificate of Registration Year(s) 2006-2007,
certification number 050206 550 041O, expiring June 30, 2007, issued by United
States of America Department of Transportation Pipeline and Hazardous Materials
Safety Administration.
8. Boiler and piping repair request authorization, expiring March 11, 2006,
issued by the Michigan Department of Consumer & Industry Services. A letter from
the State says that the authorization remains in effect pending a state audit.
9. Notification of Regulated Waste Activity Form MID 098644685 - filed with the
MDEQ in accordance with NREPA Part 115 (MCLA 324.11501, et. seq.).
10. Authorization from the Michigan State Police to use 800 Mhz radio frequency,
for emergency purposes.
Material Permits - Big Rock ISFSI Assets
LIBC/2774117.3
288
1. Authorization to use emergency radio frequencies 155.565 and 154.650 (PL
131.8) licensed to the Charlevoix-Cheboygan-Emmet Central Dispatch Authority
under letter agreement dated December 5, 2000.
Material Transferable Permits - Palisades Assets
1. Determination of No Hazard to Air Navigation, extended January 17, 1978,
issued by the Department of Transportation Federal Aviation Administration
2. Antenna Structure Registration 1000599, issued by the United States of
America Federal Communications Commission
3. The following resolutions grant permission to maintain and operate sirens and
public warning systems in public street, road or highway right of way listed on
Schedule 2.1(q). Note: the extent and nature of the rights under such
resolutions held by a non-public utility may not be the same as those held by a
public utility:
(a) City of Watervliet, Berrien County - Dated 12/06/1988
(b) Township of Watervliet, Berrien County - Dated 11/21/1988
(c) Casco Township, Allegan County - Dated 12/12/1988
(d) Casco Township, Allegan County - Dated 4/8/2002
(e) Coloma Township, Berrien County - Dated 12/05/1988
(f) Coloma Township, Berrien County - Dated 6/12/2002
(g) Covert Township, Van Buren County - Dated 11/14/1988
(h) Covert Township, Van Buren County - Dated 3/12/2002
(i) Covert Township, Van Buren County - Dated 8/13/2002
(j) Geneva Township, Van Buren County - Dated 01/03/1989
(k) Geneva Township, Van Buren County - Dated 3/12/2002
(l) Hagar Township, Berrien County - Dated 11/14/1988
(m) Hagar Township, Berrien County - Dated 5/13/2002
(n) Hartford Township, Van Buren County - Dated 01/11/1989
(o) South Haven Charter Township, Van Buren County - Dated 01/11/1989
289
(p) City of South Haven, Van Buren County - Dated 03/11/2002
(q) Township of South Haven, Van Buren County - Dated 3/13/2002
(r) Bangor Township, Van Buren County - Dated 12/13/1988
(s) Bangor Township, Van Buren County - Dated 5/14/2002
4. National Pollution Discharge Elimination System (NPDES) Permit MI0001457,
expiring October 1, 2008, issued by the Michigan Department of Environmental
Quality (MDEQ).
5. Renewable Operating Permit 200200005 (State Registration Number B2934),
expiring February 4, 2008, issued by the Air Quality Division of the MDEQ.
6. Above Ground Storage Tanks Certification, issued by MDEQ for Tanks T-25A and
T- 25B.
7. Permit to Install No. 183-06, issued June 21, 2006 by the Air Quality
Division of the MDEQ, for an added backup emergency generator. On June 28, 2006
the Plant filed a notification with the MDEQ and EPA that this permit will be
incorporated into Renewable Operating Permit 2002200005 at the time of its
renewal.
Material Transferable Permits - Big Rock ISFSI Assets
None
290
SCHEDULE 4.14(b)
NRC Licenses - Palisades Assets
1. NRC Operating License No. DPR-20 (Docket Number 50-255)
2. General License No. SFGL-01 under 10 CFR Part 72, Subpart K, for operation of
the Independent Spent Fuel Storage Installation (ISFSI). Note that Transnuclear
holds the Certificate of Compliance ("CoC") No. 10074 for the NUHOMS 32PT casks
and the CoC No. 1007 for the VSC-24 casks is held by BNG (formerly BNFL) Fuel
Solutions and previously held by Sierra Nuclear.
NRC Licenses - Big Rock ISFSI Assets
1. NRC Operating License DPR-6 (Docket Number 50-155)
2. General License No. SFGL-16 under 10 CFR Part 72, Subpart K, for operation of
the Independent Spent Fuel Storage Installation (ISFSI). Note that a CoC 72-1026
is held by BNG (formerly BNFL) Fuel Solutions for Dry Fuel Storage System
(WSNF-220) and W74 Canister (WSNF-223)
3. General License as a Registered User pursuant to 10 CFR Part 71, Subpart C,
for future BNG (formerly BNFL) Fuel Solutions TS-125 Transportation - CoC
71-9276
291
SCHEDULE 4.16
Tax Matters - Palisades Assets
None
Tax Matters - Big Rock ISFSI Assets
None
292
SCHEDULE 4.17
Tax and Financial Matters Relating to the Qualified Decommissioning Fund -
Palisades Assets Only
None
293
SCHEDULE 4.18
Exceptions to Ownership of Intellectual Property - Palisades Assets and Big Rock
ISFSI Assets CMS Energy was contacted some time ago by a representative of
Ronald A. Katz, asserting that certain activities, including the automated
customer service system of Consumers, bill payment and gas leak reporting, may
infringe on patents held by RAKTL, and offering to sell a license under those
patents. Seller does not believe that the menu and transfer options of the
answering systems at Palisades/Big Rock ISFSI would be encompassed within the
patents that RAKTL has identified.
Software needing new license and/or updating of maintenance payments (will be
completed prior to transfer):
Title: Chesterton Valve Wizard - Vendor: Chesterton
Title: Sitewise Interactive Virtual Tour System - Vendor: MJW Inc.
Title: Automated Calculation Engine (ACE) - Vendor: Framatome/Areva
294
SCHEDULE 4.19
Zoning Classification - Palisades Assets
The Real Property is zoned by the Township of Covert as General Industrial
(I-2). As such, the following use is authorized as a Principal Permitted Use
pursuant to Article XIV, Section 1401, subsection 2:
2. Heating and electric power generating plants together with all necessary
accessory uses, and during periods of construction or emergencies temporary
housing may be provided subject to the review and approval of the Planning
Commission....
The Covert Township Planning Consultant, Charles Eckenstahler, has informed
Seller by letter, dated March 3, 2006, that:
"The Township Planning Commission for the past 12-months has prepared a
comprehensive revision to the current zoning ordinance. The document is expected
to be released for public review within the next 60-90 days. Pursuant to the
provisions of the Township Zoning Act, the Planning Commission is required to
hold, after public notice, a public hearing. Procedurally, after the hearing the
Planning Commission will make applicable changes offered during the public
hearing process and recommend to the Township Board its adoption. It is the
responsibility of the Township Board to make the final decision relative to
adoption of the ordinance.
The draft document includes language found in the current ordinance specifically
Article XIV, Section 1401, subparagraph 2 providing for the location of 'heating
and electric power generating plants ...'."
295
SCHEDULE 5.3(a)
Buyer's 3rd Party Consents
None.
296
SCHEDULE 5.3(b)
BUYER'S REQUIRED REGULATORY APPROVALS
Michigan Public Service Commission
1. Approval of the Power Purchase Agreement from the MPSC pursuant to 1982 PA
304 (MCL 460.6j(13)(b)).
2. Determination that Palisades is an "eligible facility" as defined by Section
32 (c) of the Public Utility Holding Company Act 1935, as amended.
Federal Energy Regulatory Commission
1. Authorization pursuant to Federal Power Act Section 203 for Seller to sell
and Buyer to purchase, those Facilities subject to FERC jurisdiction.
2. Acceptance of the Interconnection Agreement pursuant to Federal Power Act
Section 205.
3. Grant of authority to Buyer pursuant to Federal Power Act Section 205 to sell
electric capacity, energy and ancillary services at wholesale.
4. Acceptance of any subsidiary agreements required for implementation of the
Interconnection Agreement and Power Purchase Agreement.
5. Grant of exempt wholesale generator status to Buyer. Nuclear Regulatory
Commission
1. Authorization to transfer the NRC Licenses to Buyer and Buyer's Affiliate.
2. Approval of conforming administrative license amendments for the transfer.
Other
1. With respect to filings required under the HSR Act, the expiration, or the
earlier termination of all applicable waiting periods under the HSR Act.
2. Approval by the Federal Communications Commission of the transfer to Buyer of
the radio licenses listed on Schedule 2.1(m).
297
3. Such other declarations, filings, registrations, notices, authorizations,
consents or approvals of any Governmental Authority as are required by Law for
the consummation of the contemplated transactions.
4. Consent of the appropriate agency or department of the State of Michigan to
the assignment by Seller to Buyer of the easement granted by the State of
Michigan, Department of Conservation, to Consumers Power Company by instrument
dated January 17, 1968, recorded in Liber 570 at Page 271, Van Buren County
Records.
298
SCHEDULE 6.10(a)
TRANSFERRED EMPLOYEES - PALISADES ASSETS
EMPLOYEE HOURLY/NON-EXEMPT;
LAST NAME FIRST NAME GROUP JOB TITLE SEX AGE HIRE DATE SALARY/EXEMPT; COOP
- -------------- ----------- --------- ----------------------------------------- ------ --- ------------ -------------------
BACHMAN BRET S CONSUMERS MECH RPR WKR A-PALS M 47 11/13/1978 Hourly/Non-Exempt
BAILEY MICHAEL A CONSUMERS NUCL CONTROL OPER M 35 2/14/1997 Hourly/Non-Exempt
BAIN GREGORY L CONSUMERS QUALIFIED WELDER-NUCLEAR M 53 7/27/1981 Hourly/Non-Exempt
BARCLAY BRUCE K CONSUMERS RADWASTE HANDLER A-PALS M 58 6/24/1985 Hourly/Non-Exempt
BAUER TERRENCE L CONSUMERS NUCL AUXILIARY OPER M 57 8/5/1985 Hourly/Non-Exempt
BERRY THEODORE C CONSUMERS NUCL AUXILIARY OPER M 35 1/2/2002 Hourly/Non-Exempt
BOGUCKI PATRICK A CONSUMERS NUCL AUXILIARY OPER M 52 1/8/2001 Hourly/Non-Exempt
BOSS ERICH A CONSUMERS AUX OPER IN TRNG M 29 1/3/2006 Hourly/Non-Exempt
BRAUSS STEPHEN P CONSUMERS ELEC RPR WKR A-PALS M 30 6/23/2003 Hourly/Non-Exempt
BRINKS DIANE M CONSUMERS LEAD RADWASTE HANDLER-PAL F 53 12/9/1985 Hourly/Non-Exempt
BRINKS WILLIAM B CONSUMERS ELEC RPR WKR B-PAL M 36 9/7/2004 Hourly/Non-Exempt
BROWN CHRISTOPHER CONSUMERS MECH RPR WKR A-PALS M 58 12/26/1972 Hourly/Non-Exempt
BROWN DAVID B CONSUMERS MECH RPR WKR A-PALS M 56 8/10/1983 Hourly/Non-Exempt
BURCHFIELD CHARLES CONSUMERS NUCL AUXILIARY OPER M 38 3/12/1999 Hourly/Non-Exempt
CAMPBELL THOMAS J CONSUMERS LEAD ELEC RPR WKR M 52 7/6/1982 Hourly/Non-Exempt
CAMPBELL DAVID B CONSUMERS NUCL CONTROL OPER M 49 4/13/1981 Hourly/Non-Exempt
CHAPMAN RICHARD A CONSUMERS MECH RPR WKR A-PALS M 52 10/9/1978 Hourly/Non-Exempt
COGSWELL STEPHEN M CONSUMERS NUCL CONTROL OPER M 56 5/9/1977 Hourly/Non-Exempt
COSSEY BILLY H CONSUMERS RADWASTE HANDLER A-PALS M 55 9/29/1986 Hourly/Non-Exempt
CURRY EDWIN M CONSUMERS NUCL CONTROL OPER M 42 11/2/1992 Hourly/Non-Exempt
CUTHBERT ROBERT M CONSUMERS MACHINIST-NUCLEAR M 50 5/2/1983 Hourly/Non-Exempt
DERIGE HENRY M CONSUMERS ELEC RPR WKR B-PAL M 56 5/23/1989 Hourly/Non-Exempt
DEROSIA KEITH R CONSUMERS QUALIFIED WELDER-NUCLEAR M 49 7/26/1982 Hourly/Non-Exempt
DICKENSON KIMBALL CONSUMERS NUCL CONTROL OPER M 46 10/12/1992 Hourly/Non-Exempt
DOOLEN SHANNON D CONSUMERS LEAD MECH RPR WKR M 48 10/9/1978 Hourly/Non-Exempt
DOPP RANDOLPH G CONSUMERS NUCL CONTROL OPER M 45 10/20/1986 Hourly/Non-Exempt
DOYLE MARK E CONSUMERS MECH RPR WKR A-PALS M 57 2/10/1992 Hourly/Non-Exempt
DUNHAM KURT H CONSUMERS NUCL PLT STOCKKEEPER I M 56 3/14/1977 Hourly/Non-Exempt
EDDINGER TAMMY S CONSUMERS MECH RPR WKR A-PALS F 37 8/19/1991 Hourly/Non-Exempt
EDWARDS DANIEL L CONSUMERS NUCL AUXILIARY OPER M 34 2/4/2000 Hourly/Non-Exempt
ELDER RONALD D CONSUMERS NUCL AUXILIARY OPER M 43 1/8/2001 Hourly/Non-Exempt
FELLOWS STEPHEN E CONSUMERS LEAD BLDG UTIL WKR-PALS M 49 2/8/1982 Hourly/Non-Exempt
FLAMAND RYAN S CONSUMERS NUCL CONTROL OPER M 32 2/4/2000 Hourly/Non-Exempt
FLOERCHINGER JEFFE CONSUMERS ELEC RPR WKR A-PALS M 40 9/3/1996 Hourly/Non-Exempt
FRIDLEY ROGER W CONSUMERS ELEC RPR WKR A-PALS M 52 10/23/1978 Hourly/Non-Exempt
GILBERT PAUL J CONSUMERS MACHINIST-NUCLEAR M 46 2/24/1994 Hourly/Non-Exempt
GILBERT LUCAS A CONSUMERS NUCL AUXILIARY OPER M 28 9/29/2003 Hourly/Non-Exempt
GROFF GARY H CONSUMERS NUCL CONTROL OPER M 56 12/6/1976 Hourly/Non-Exempt
HANSEN JAMIE L CONSUMERS NUCL AUXILIARY OPER M 32 2/4/2000 Hourly/Non-Exempt
HAPKE JR PAUL E CONSUMERS QUALIFIED WELDER-NUCLEAR M 51 6/16/1980 Hourly/Non-Exempt
HARDIN MELISSA M CONSUMERS NUCL AUXILIARY OPER F 26 9/29/2003 Hourly/Non-Exempt
HARKENRIDER JOHN E CONSUMERS MACHINIST-NUCLEAR M 53 6/12/1978 Hourly/Non-Exempt
HARRISON II JAMES CONSUMERS NUCL AUXILIARY OPER M 34 2/18/2000 Hourly/Non-Exempt
HOERLE JOSEPH M CONSUMERS AUX OPER IN TRNG M 33 1/3/2006 Hourly/Non-Exempt
HOFFMAN JEFFREY J CONSUMERS LEAD ELEC RPR WKR M 45 7/27/1981 Hourly/Non-Exempt
HOWELL ERVIN L CONSUMERS MECH RPR WKR A-PALS M 57 11/25/1985 Hourly/Non-Exempt
HUDZIK RONALD J CONSUMERS NUCL CONTROL OPER M 39 1/22/1996 Hourly/Non-Exempt
JEFFRIES VERNE S CONSUMERS RADWASTE HANDLER A-PALS M 48 5/2/1983 Hourly/Non-Exempt
JOHNSON ERIC M CONSUMERS NUCL AUXILIARY OPER M 37 1/19/2001 Hourly/Non-Exempt
JOHNSON KENNETH M CONSUMERS NUCL AUXILIARY OPER M 32 10/30/1998 Hourly/Non-Exempt
JOHNSON EDWARD G CONSUMERS NUCL AUXILIARY OPER M 33 2/4/2000 Hourly/Non-Exempt
KARPE PETER J CONSUMERS BLDG UTIL WKR B-PALS M 49 1/9/1995 Hourly/Non-Exempt
LAKE MICHAEL A CONSUMERS NUCL CONTROL OPER M 44 5/26/1987 Hourly/Non-Exempt
LEBLANG JOHN T CONSUMERS NUCL CONTROL OPER M 41 3/18/1991 Hourly/Non-Exempt
LEDESMA LARRY M CONSUMERS RADWASTE HANDLER A-PALS M 39 11/26/1985 Hourly/Non-Exempt
LEWIS JEFFREY D CONSUMERS NUCL CONTROL OPER M 45 2/17/1986 Hourly/Non-Exempt
LIVSEY JR JOHN D CONSUMERS NUCL AUXILIARY OPER M 36 10/30/1998 Hourly/Non-Exempt
MANNIKKO JOHN M CONSUMERS NUCL CONTROL OPER M 41 2/24/1994 Hourly/Non-Exempt
MANYEN RAYMOND D CONSUMERS QUALIFIED WELDER-NUCLEAR M 53 6/20/1983 Hourly/Non-Exempt
MCCLURE KEITH E CONSUMERS NUCL AUXILIARY OPER M 37 1/8/2001 Hourly/Non-Exempt
MCDONALD STEPHEN A CONSUMERS NUCL CONTROL OPER M 39 11/2/1992 Hourly/Non-Exempt
MCVAY AARON D CONSUMERS AUX OPER IN TRNG M 30 1/3/2006 Hourly/Non-Exempt
MEDLOCK DEAN D CONSUMERS NUCL AUXILIARY OPER M 43 9/29/2003 Hourly/Non-Exempt
MIELKE DANNY E CONSUMERS MECH RPR WKR A-PALS M 60 2/4/1976 Hourly/Non-Exempt
MILLER AARON J CONSUMERS NUCL CONTROL OPER M 36 1/9/1995 Hourly/Non-Exempt
MIRELES JR SAMUEL CONSUMERS ELEC RPR WKR B-PAL M 37 9/26/2005 Hourly/Non-Exempt
MOBLEY TERRENCE J CONSUMERS AUX OPER IN TRNG M 31 1/3/2006 Hourly/Non-Exempt
MOORE SCOTT T CONSUMERS NUCL CONTROL OPER M 32 10/30/1998 Hourly/Non-Exempt
MORGAN ELBERT D CONSUMERS ELEC RPR WKR A-PALS M 38 6/23/2003 Hourly/Non-Exempt
MORITTI DAVID F CONSUMERS NUCL PLT STOCKKEEPER I M 53 1/30/1978 Hourly/Non-Exempt
NICHOLSON TIMOTHY CONSUMERS TOOL KEEPER-NUCL M 57 2/23/1976 Hourly/Non-Exempt
NORTHRUP CLAYTON V CONSUMERS ELEC RPR WKR B-PAL M 43 7/12/2004 Hourly/Non-Exempt
O'FLYNN MARVELL L CONSUMERS LEAD RADWASTE HANDLER-PAL M 54 9/29/1986 Hourly/Non-Exempt
ORDIWAY WILLIAM J CONSUMERS QUALIFIED WELDER-NUCLEAR M 45 10/18/1982 Hourly/Non-Exempt
OVERHISER DENNIS R CONSUMERS NUCL PLT STOCKKEEPER I M 57 1/21/1980 Hourly/Non-Exempt
OWSIANY MICHAEL J CONSUMERS QUALIFIED WELDER-NUCLEAR M 49 1/3/1977 Hourly/Non-Exempt
PALANZI EDWARD P CONSUMERS RADWASTE HANDLER A-PALS M 47 7/11/1994 Hourly/Non-Exempt
PERKINS GERALD D CONSUMERS NUCL CONTROL OPER M 55 12/18/1978 Hourly/Non-Exempt
PETERSON SR CHARLE CONSUMERS RADWASTE HANDLER A-PALS M 56 10/7/1986 Hourly/Non-Exempt
PFAFF MARTIN M CONSUMERS MACHINIST-NUCLEAR M 49 2/10/1982 Hourly/Non-Exempt
PLAUGHER TODD W CONSUMERS NUCL AUXILIARY OPER M 39 3/3/2003 Hourly/Non-Exempt
POLAND DAVID R CONSUMERS LEAD MECH RPR WKR M 54 4/20/1981 Hourly/Non-Exempt
POLHAMUS TROY A CONSUMERS NUCL AUXILIARY OPER M 32 1/8/2001 Hourly/Non-Exempt
POSTMA ERIC J CONSUMERS NUCL AUXILIARY OPER M 30 1/2/2002 Hourly/Non-Exempt
RADTKE PHILLIP L CONSUMERS MECH RPR WKR A-PALS M 55 2/12/1992 Hourly/Non-Exempt
RAVEN DEBRA L CONSUMERS BLDG UTIL WKR B-PALS F 50 6/27/1994 Hourly/Non-Exempt
REED GREGORY R CONSUMERS AUX OPER IN TRNG M 37 1/2/1996 Hourly/Non-Exempt
RODARTE JOSE A CONSUMERS BLDG UTIL WKR A-PALS M 56 5/9/1988 Hourly/Non-Exempt
RUELL FREDRIC S CONSUMERS MACHINIST-NUCLEAR M 56 7/23/1979 Hourly/Non-Exempt
RUIZ RUBEN I CONSUMERS NUCL AUXILIARY OPER M 42 3/15/1993 Hourly/Non-Exempt
SAENZ MICHAEL S CONSUMERS LEAD ELEC RPR WKR M 43 11/2/1992 Hourly/Non-Exempt
SALINAS PAUL T CONSUMERS ELEC RPR WKR A-PALS M 48 1/6/1992 Hourly/Non-Exempt
SCHWANEKAMP JOHN C CONSUMERS NUCL CONTROL OPER M 55 8/23/1982 Hourly/Non-Exempt
SEILER MARK J CONSUMERS NUCL PLT STOCKKEEPER I M 52 1/14/1980 Hourly/Non-Exempt
SHOLEY JIMMY W CONSUMERS NUCL AUXILIARY OPER M 30 1/2/2002 Hourly/Non-Exempt
SIMPSON KEITH R CONSUMERS NUCL AUXILIARY OPER M 39 2/18/2000 Hourly/Non-Exempt
SMITH LARRY L CONSUMERS MECH RPR WKR A-PALS M 59 8/5/1985 Hourly/Non-Exempt
SMITH RICHARD J CONSUMERS NUCL AUXILIARY OPER M 30 9/29/2003 Hourly/Non-Exempt
STANTON JR ROBERT CONSUMERS NUCL PLT STOCKKEEPER I M 55 4/19/1976 Hourly/Non-Exempt
STEVENSON THOMAS N CONSUMERS BLDG UTIL WKR A-PALS M 63 3/11/1968 Hourly/Non-Exempt
STIEBER JR GEORGE CONSUMERS NUCL CONTROL OPER M 43 5/16/1988 Hourly/Non-Exempt
STRATTON SR DANIEL CONSUMERS MECH RPR WKR A-PALS M 50 10/14/1991 Hourly/Non-Exempt
TAYLOR LONZEY T CONSUMERS LEAD MECH RPR WKR M 49 7/12/1976 Hourly/Non-Exempt
THOMPSON GERALD E CONSUMERS NUCL AUXILIARY OPER M 58 1/8/2001 Hourly/Non-Exempt
TIMMER DALE M CONSUMERS NUCL AUXILIARY OPER M 61 1/23/1990 Hourly/Non-Exempt
TOWNES WILLIAM D CONSUMERS NUCL CONTROL OPER M 36 2/14/1997 Hourly/Non-Exempt
TRANTHAM LARRY D CONSUMERS QUALIFIED WELDER-NUCLEAR M 58 3/1/1982 Hourly/Non-Exempt
TURNER JOHN H CONSUMERS MECH RPR WKR A-PALS M 55 2/18/1981 Hourly/Non-Exempt
VAN WYNEN ROBERT L CONSUMERS LEAD MECH RPR WKR M 51 2/4/1976 Hourly/Non-Exempt
WASKIEWICZ JOSEPH CONSUMERS NUCL CONTROL OPER M 56 3/14/1977 Hourly/Non-Exempt
WATSON GRADY L CONSUMERS NUCL PLT STOCKKEEPER I M 58 6/30/1980 Hourly/Non-Exempt
WATSON LARRY E CONSUMERS MECH RPR WKR A-PALS M 53 4/29/1985 Hourly/Non-Exempt
WATSON WESLEY E CONSUMERS NUCL AUXILIARY OPER M 30 1/2/2002 Hourly/Non-Exempt
WELCH THOMAS W CONSUMERS NUCL AUXILIARY OPER M 51 2/18/2000 Hourly/Non-Exempt
WELLINGTON DIRK E CONSUMERS BLDG UTIL WKR A-PALS M 61 8/4/1969 Hourly/Non-Exempt
WHITEHURST SCOTT C CONSUMERS NUCL AUXILIARY OPER M 40 9/3/1996 Hourly/Non-Exempt
ZIELINSKI CLIFFORD CONSUMERS NUCL AUXILIARY OPER M 40 2/18/2000 Hourly/Non-Exempt
Aalderink Douglas NMC Quality Control Inspector Senior Male 60 11/05/1979 Hourly/Non-Exempt
Acerra Roger NMC Instructor Technical Senior Male 61 01/07/1985 Salary/Exempt
Acker Michael NMC Engineer Senior Male 54 01/24/1978 Salary/Exempt
Adams Paul NMC Control Room Supervisor Female 41 03/18/1991 Salary/Exempt
Alderink James NMC Engineer Senior Male 57 07/01/1974 Salary/Exempt
Alkire Gary NMC Shift Manager Male 54 03/14/1977 Salary/Exempt
Allard Michael NMC Instructor Technical Principal Male 54 12/28/1983 Salary/Exempt
Allen Clifford NMC Human Resources Manager Male 52 11/05/2001 Salary/Exempt
Allen Robbie NMC Document Control Supervisor Female 51 08/12/2002 Salary/Exempt
Allen Thomas NMC Senior Engineer Male 54 10/11/1999 Salary/Exempt
Alles Christopher NMC Instrument & Control Technician Senior Male 45 11/23/1987 Hourly/Non-Exempt
Anderson Thomas NMC Quality Assurance Assessor Principal Male 52 11/03/1982 Salary/Exempt
Andrews Steven NMC Chemistry Technician Male 38 09/20/1999 Hourly/Non-Exempt
Arent Gordon NMC Business & Strategic Planning Manager Male 49 12/16/2002 Salary/Exempt
Attard Carl NMC Accounting Analyst Senior Male 60 01/26/2004 Salary/Exempt
Bach Steven NMC Maintenance Supervisor Male 45 10/17/2005 Salary/Exempt
Badley David NMC Chemistry Technician Senior Male 59 03/10/1975 Hourly/Non-Exempt
Baerren Jr Albert NMC Engineer Senior Male 60 05/04/1981 Salary/Exempt
Baker Bret NMC Shift Manager Male 46 04/22/1985 Salary/Exempt
Baker Lisa NMC Bus Process Assistant III Female 44 02/15/1982 Hourly/Non-Exempt
Bareham Christopher NMC Planner Male 49 01/08/2001 Salary/Exempt
Barr Elizabeth NMC Information Technology Analyst Female 50 04/17/2006 Salary/Exempt
Bauer Bruce NMC Shift Manager Male 56 01/16/1981 Salary/Exempt
Baustian Gregory NMC Training Manager Male 44 06/17/1985 Salary/Exempt
Beer Joseph NMC Health Physicist Principal Male 55 05/16/1977 Salary/Exempt
Beilfuss Vernon NMC Project Manager Male 60 11/27/1978 Salary/Exempt
Bell Daniel NMC Engineering Analyst Senior Male 49 07/01/1991 Salary/Exempt
Benson Bernt NMC Shift Manager Male 52 02/08/1982 Salary/Exempt
Benson Dawn NMC Engineering Technician Senior Female 46 05/28/1985 Hourly/Non-Exempt
Bergeron Jason NMC Maintenance Supervisor Male 32 07/25/2005 Salary/Exempt
Berggren Carl NMC Rad Protect Analyst Senior Male 48 10/01/1991 Salary/Exempt
Berles Bradley NMC Engineering Supervisor Male 35 05/03/1993 Salary/Exempt
Biegler Douglas NMC Chemistry Technician Senior Male 55 05/22/2000 Hourly/Non-Exempt
Blake Timothy NMC Performance Manager (std org) Male 53 06/17/2002 Salary/Exempt
Blasco Thomas NMC Planner Male 55 06/11/1982 Salary/Exempt
Blocker Lenard NMC Outage Manager Male 44 03/01/2004 Salary/Exempt
Bloomfield Ronald NMC Project Manager Male 52 03/07/2005 Salary/Exempt
Bock David NMC Scheduler Male 53 02/08/1982 Salary/Exempt
Bond Jeffrey NMC Materials Management Supervisor (std org Male 49 01/01/2001 Salary/Exempt
Bonnett Richard NMC Instrument & Control Technician Senior Male 46 02/10/1992 Hourly/Non-Exempt
Borah Jeff NMC Engineer Senior Male 39 11/01/1999 Salary/Exempt
Bordine Ruth NMC Information Technology Manager Female 59 07/05/2005 Salary/Exempt
Bordine Thomas NMC Fuel Services Manager Male 59 03/31/1975 Salary/Exempt
Botimer Stephen NMC Instructor Simulator/Operations Senior Male 55 01/06/1975 Salary/Exempt
Brisboe Dale NMC Contracts Administrator Senior Male 57 04/15/1985 Salary/Exempt
Brock Gregory NMC Engineer Senior Male 48 08/23/1982 Salary/Exempt
Brogan Brian NMC Engineer Principal Male 54 12/19/1988 Salary/Exempt
Broschak John NMC Engineering Site Director Male 42 10/01/1992 Salary/Exempt
Brott Norman NMC Emergency Prepared Coordinator Senior Male 51 07/12/1982 Salary/Exempt
Brown Timothy NMC Chemistry Technician Male 29 2/20/2006 Hourly/Non-Exempt
Brzezinski Raymond NMC Engineering Supervisor Male 60 04/19/1976 Salary/Exempt
Burnett Jeffrey NMC Health Physicist Male 51 03/13/1995 Salary/Exempt
Bus Ronald NMC Instrument & Control Technician Senior Male 40 11/11/1991 Hourly/Non-Exempt
Bynon Jr Bernard NMC Maintenance Supervisor Male 50 09/02/2001 Salary/Exempt
Byrd James NMC Control Room Supervisor Male 39 11/18/1996 Salary/Exempt
Calloway Anthony NMC Corrective Action Coordinator Male 53 05/26/1981 Salary/Exempt
Capaccio Martin NMC Project Coordinator Senior Male 47 03/11/1985 Salary/Exempt
Caruthers Jr Henry NMC Instrument & Control Technician Senior Male 50 04/03/1978 Hourly/Non-Exempt
Chapman Louise NMC Bus Process Assistant II Female 62 12/10/2001 Hourly/Non-Exempt
Chase Leo NMC Instrument & Control Technician Senior Male 60 06/25/1979 H Hourly/Non-Exempt
Chatfield Ernest NMC Self Assessment & Improvemnt Coordinator Male 55 12/02/1996 Salary/Exempt
[page 430]
Cheatom Syreeta NMC Engineer Female 32 11/22/1999 Salary/Exempt
Christopher Joseph NMC Instrument & Control Technician Senior Male 43 07/01/1985 Hourly/Non-Exempt
Cimock Mark NMC Engineer Senior Male 51 05/29/1990 Salary/Exempt
Clark William NMC Security Manager Male 53 03/01/2006 Salary/Exempt
Clock Russell NMC Chemistry Technician Senior Male 44 07/01/1985 Hourly/Non-Exempt
Coddington Mark NMC Engineer II Male 30 08/26/2002 Salary/Exempt
Cooper Richard NMC Instructor Operations Senior Male 50 04/18/1989 Salary/Exempt
Copi Andrew NMC Engineer Senior Male 42 02/13/2006 Salary/Exempt
Corbin Darrell NMC Control Room Supervisor Male 39 09/03/1996 Salary/Exempt
Cowan David NMC Control Room Supervisor Male 44 12/08/2003 Salary/Exempt
Crutcher Richard NMC Maintenance Supervisor Male 41 07/12/2004 Salary/Exempt
Cser Anthony NMC Scheduler Male 46 12/15/1987 Salary/Exempt
Daggett Gregory NMC Project Coordinator Senior Male 60 04/29/1974 Salary/Exempt
Dahlgren Christer NMC Control Room Supervisor Male 36 11/01/1999 Salary/Exempt
Davis Terry NMC Training General Supervisor Operations Male 50 06/01/1987 Salary/Exempt
Dawson Michael NMC Instructor Technical Senior Male 54 04/27/1981 Salary/Exempt
Dehn Eric NMC Engineering Analyst Male 43 09/16/1985 Salary/Exempt
DeMaster Nathan NMC Operations Procedures Writer Male 26 11/14/2005 Salary/Exempt
Denbow Linda NMC Bus Process Assistant III Female 60 11/09/1992 Hourly/Non-Exempt
Depuydt Daniel NMC Engineer Senior Male 46 04/11/1994 Salary/Exempt
DesJardins Richard NMC Engineer Senior Male 52 01/27/1975 Salary/Exempt
Dine Linda NMC Radiation Protection Technician Senior Female 56 02/15/1982 Hourly/Non-Exempt
Dix Michael NMC Scheduler Male 46 07/22/1981 Salary/Exempt
Dixon Ronald NMC Instrument & Control Technician Senior Male 50 09/15/1980 Hourly/Non-Exempt
Dotson Barbara NMC Engineering Analyst Female 45 08/10/1981 Salary/Exempt
Dotson Timothy NMC Radiation Protection Technician Senior Male 48 12/19/1988 Hourly/Non-Exempt
Dudley John NMC Maintenance Supervisor Male 60 09/02/2003 Salary/Exempt
Eastman Warren NMC Radiation Protection Technician Senior Male 57 08/14/1972 Hourly/Non-Exempt
Edwards William NMC Chemistry Technician Male 58 09/30/1974 Hourly/Non-Exempt
Elder Marie NMC Radiation Protection Technician Senior Female 47 07/06/1981 Hourly/Non-Exempt
Engle Dale NMC Engineer Senior Male 54 07/07/1980 Salary/Exempt
Engle Mary NMC Site Finance/Acct Analyst Female 56 06/07/1982 Salary/Exempt
Engleman Katie NMC Human Resources Consultant Female 27 05/07/1998 Salary/Exempt
Engleman Christopher NMC Buyer Male 35 09/04/2001 Salary/Exempt
Erickson Jeffrey NMC Engineer Senior Male 48 12/13/1982 Salary/Exempt
Erwin Philip NMC Maintenance Supervisor Male 36 04/17/2006 Salary/Exempt
Fagundo Jonathan NMC Planner Male 43 02/24/1997 Salary/Exempt
Farnum Steven NMC Radiation Protection Technician Male 44 01/08/2001 Hourly/Non-Exempt
Farnworth Belinda NMC Bus Process Assistant III Female 52 01/03/1994 Hourly/Non-Exempt
Fields Marsha NMC Technical Support Specialist Female 49 04/01/1996 Hourly/Non-Exempt
Fitzgibbon Dennis NMC Engineering Supervisor Male 50 10/03/1983 Salary/Exempt
Fletcher Jeff NMC Access Authorization/FFD Supervisor Male 50 04/27/1992 Salary/Exempt
Fogarty Ellen NMC Chemistry Technician Female 42 01/02/2001 Hourly/Non-Exempt
Fontaine Jr James NMC Emergency Prepared Coordinator Senior Male 49 08/17/1981 Salary/Exempt
Ford Judith NMC Emergency Preparedness Manager Female 46 06/06/1983 Salary/Exempt
Ford Jr William NMC Training Mtn/Tech General Supervisor Male 46 09/03/1982 Salary/Exempt
Forehand James NMC Control Room Supervisor Female 32 12/05/2005 Salary/Exempt
Fouty Thomas NMC Engineering Programs Manager Male 49 02/26/1979 Salary/Exempt
Freeman Susan NMC Supervisor Training Maintenance/Techl Female 52 07/15/2002 Salary/Exempt
Freeman Gregory NMC Quality Assurance Assessor Principal Male 55 01/05/1976 Salary/Exempt
Frigo Ronald NMC Instructor Simulator/Operations Senior Male 55 06/30/1980 Salary/Exempt
Gallagher Irish NMC Chemist Senior Male 41 06/27/1988 Salary/Exempt
Garvison Janet NMC Training Specialist Female 44 05/20/1985 Salary/Exempt
Ginzel Michael NMC Health Physicist Senior Male 45 09/26/2005 Salary/Exempt
Goralski George NMC Engineering Supervisor Male 46 06/25/1982 Salary/Exempt
Gosler Jason NMC Maintenance Supervisor Male 34 04/18/2005 Salary/Exempt
Grieves Thomas NMC Engineering Supervisor Male 47 12/13/1982 Salary/Exempt
Griffin Michael NMC Radiation Protection Technician Male 39 07/02/2001 Hourly/Non-Exempt
Grimes Tim NMC Operations Coordinator Male 56 08/24/1981 Salary/Exempt
Groth Terry NMC Engineer I Male 25 05/02/2005 Salary/Exempt
Gustafson Otto NMC Control Room Supervisor Male 36 02/14/1997 Salary/Exempt
Hager Joe NMC Environmental Analyst Senior Male 52 06/23/1980 Salary/Exempt
Hager John NMC Engineering Analyst Senior Male 53 04/26/1976 Salary/Exempt
Hager Ryan NMC Engineering Analyst Senior Male 25 06/09/2003 Salary/Exempt
Halliburton Shirley NMC Engineering Analyst Female 49 09/16/1985 Salary/Exempt
Hamm Robert NMC Engineer Senior Male 60 01/24/1977 Salary/Exempt
Harden Paul NMC Site Vice President (<1000MW) Male 39 06/05/1990 Salary/Exempt
Harper William NMC Work Week Manager Male 36 11/02/1992 Salary/Exempt
Harvey Jordan NMC Instructor Technical Male 31 10/17/2005 Salary/Exempt
Harvill Rodney NMC Engineer Senior Male 37 10/05/1998 Salary/Exempt
Haumersen Johannes NMC Project Manager Male 47 12/17/1982 Salary/Exempt
Hazelhoff Amy NMC Engineer Senior Female 32 04/01/1998 Salary/Exempt
Hedman Lisa NMC Chemistry Technician Senior Female 37 03/13/2000 Hourly/Non-Exempt
Hehl Scott NMC Instructor Simulator/Operations Senior Male 46 04/16/2001 Salary/Exempt
Heimsath Robert NMC Project Manager Sernior Male 48 08/08/1994 Salary/Exempt
Helms Jennifer NMC Administrative Support Supervisor Female 51 06/11/1973 Salary/Exempt
Hensley Darrell NMC Instructor Simulator/Operations Senior Male 57 01/12/1978 Salary/Exempt
Hettel William NMC Plant Manager (<1000MW) Male 45 11/05/2001 Salary/Exempt
Higgs Gregory NMC Maintenance Manager (<1000MW) Male 46 02/16/2004 Salary/Exempt
Holbein Mark NMC Maintenance Supervisor Male 49 10/31/1977 Salary/Exempt
Housh Kenneth NMC Engineer Senior Male 44 03/10/2003 Salary/Exempt
Huss Edward NMC Buyer Principal Male 56 09/18/1973 Salary/Exempt
Iliff Jeffrey NMC Instructor Simulator/Operations Senior Male 38 09/08/1995 Salary/Exempt
Irving Kevin NMC Instrument & Control General Supervisor Male 41 03/17/1997 Salary/Exempt
Jana Biswanath NMC Engineer Senior Male 60 08/26/2002 Salary/Exempt
Janecko Jennifer NMC Bus Process Assistant III Female 48 08/01/1983 Hourly/Non-Exempt
Jarka Gary NMC Engineer Senior Male 53 09/01/1994 Salary/Exempt
Jerz Joseph NMC Engineer I Male 24 05/01/2006 Salary/Exempt
Johnson Paul NMC Safety & Health Program Manager Male 55 08/19/2002 Salary/Exempt
Jolly Om NMC Engineer Principal Male 61 01/17/1983 Salary/Exempt
Jones Carrie NMC Engineer II Female 30 06/01/2001 Salary/Exempt
Jones Karl NMC Facilities General Supervisor Male 41 04/04/2005 Salary/Exempt
Jones Jr Andrew NMC Quality Assurance Assessor Senior Male 44 09/22/1999 Salary/Exempt
Kall Robert NMC Instrument & Control Technician Male 51 06/05/1995 Hourly/Non-Exempt
Kane Michael NMC Shift Manager Male 56 03/14/1977 Salary/Exempt
Karnes Donald NMC Instructor Simulator/Operations Senior Male 51 11/05/2001 Salary/Exempt
Kasishke Kristina NMC Bus Process Assistant III Female 46 04/27/1981 Hourly/Non-Exempt
Katt Gary NMC Engineer Senior Male 43 10/19/1992 Salary/Exempt
Katz Robert NMC Quality Assurance Assessor Principal Male 53 01/03/2006 Salary/Exempt
Keene Arthur NMC Information Technology Analyst Male 37 05/13/2002 Salary/Exempt
Kelemen Amy NMC Instrument & Control Technician Female 30 12/04/2000 Hourly/Non-Exempt
Keller Joyce NMC Corrective Action Coordinator Female 47 11/14/1988 Salary/Exempt
Kempski Janie NMC Human Resource Assistant Female 51 08/15/1994 Hourly/Non-Exempt
Kennedy David NMC Engineer Senior Male 53 05/01/1978 Salary/Exempt
Kennedy Sandra NMC Payroll Site Representative Female 55 07/18/1973 Hourly/Non-Exempt
Kneeland Jr John NMC Engineer Senior Male 52 06/13/1988 Salary/Exempt
Koch Robert NMC Engineer Senior Male 50 11/11/2002 Salary/Exempt
Kolberg Rita NMC Executive Coordinator Female 44 11/02/1998 Salary/Exempt
Krugh Colleen NMC Technical Support Specialist Female 47 07/06/1982 Hourly/Non-Exempt
Kryska Jayson NMC Human Performance Coordinator Male 39 06/05/1989 Salary/Exempt
Kuemin James NMC Engineer Senior Male 56 07/10/1972 Salary/ Exempt
Kuiper Karen NMC Executive Assistant (NE) Female 64 11/21/2005 Hourly/ Non-Exempt
Kupka Stanley NMC Engineer Senior Male 51 07/08/1985 Salary/ Exempt
Lahti Laurie NMC Regulatory Affairs Manager Female 42 10/01/2001 Salary/ Exempt
Lane Jr Neil NMC Project Manager Male 44 06/02/1997 Salary/ Exempt
Larson Matthew NMC Work Week Manager Male 41 01/09/1990 Salary/ Exempt
LaSota Brian NMC Facilities Supervisor Male 47 05/29/2001 Salary/ Exempt
Leblang Suzanne NMC Engineering Support Supervisor Female 43 02/21/1994 Salary/ Exempt
Lee Michael NMC Control Room Supervisor Male 39 09/21/1990 Salary/ Exempt
Leibel Donald NMC Supervisor Training Maintenance/Techl Male 58 05/22/2000 Salary/ Exempt
Letke Eugene NMC Engineer Senior Male 57 04/26/1982 Salary/ Exempt
Leto James NMC Outage Management Supervisor Male 48 05/02/2002 Salary/ Exempt
Lewis Atanya NMC Engineer Senior Female 37 10/11/1999 Salary/ Exempt
Lewis Jerry NMC Human Resources Consultant Senior Male 59 06/01/1976 Salary/ Exempt
Lewis Kenneth NMC Maintenance Supervisor Male 40 04/05/2004 Salary/ Exempt
Little Sherry NMC Bus Process Assistant II Female 29 11/29/2004 Hourly/ Non-Exempt
Lucy Dale NMC Maintenance Supervisor Male 43 02/14/1997 Salary/ Exempt
Lyon Alan NMC Engineer Senior Male 52 07/15/1991 Salary/ Exempt
Main Chad NMC Project Manager Male 51 03/16/1992 Salary/ Exempt
Malone Daniel NMC Licensing Supervisor Male 50 07/18/1980 Salary/ Exempt
Marbaugh Kenneth NMC Procedures Manager Male 57 11/01/1976 Salary/ Exempt
Margol Richard NMC Engineer Senior Male 53 09/29/1975 Salary/ Exempt
Marlatt George NMC Engineer Senior Male 61 11/16/2000 Salary/ Exempt
Mashburn Lorretta NMC Instrument & Control Technician Female 39 02/02/1995 Hourly/ Non-Exempt
May Elaine NMC Chemistry Technician Senior Female 41 06/18/1990 Hourly/ Non-Exempt
McCarty Paulette NMC Access Analyst Female 52 04/08/1974 Salary/ Exempt
McElrath Joel NMC Engineering Supervisor Male 48 07/12/1982 Salary/ Exempt
Means Bracy NMC Engineer Senior Male 49 09/01/2005 Salary/ Exempt
Mennucci Michael NMC Project Coordinator Senior Male 50 08/31/1981 Salary/ Exempt
Meredith Brian NMC Engineer Senior Male 50 10/07/1985 Salary/ Exempt
Mergen Joel NMC Supply Chain Manager Male 41 06/11/2001 Salary/ Exempt
Meyers Christopher NMC Engineer Senior Male 36 05/09/2006 Salary/ Exempt
Miksa James NMC Project Coordinator Senior Male 42 10/13/1986 Salary/ Exempt
Milan Janice NMC Bus Process Assistant III Female 56 02/14/1979 Hourly/ Non-Exempt
Miller Jarrod NMC Chemistry Technician Male 28 02/20/2006 Hourly/ Non-Exempt
Mims Dwight NMC Site Operations Director (<1000MW) Male 57 12/13/2004 Salary/ Exempt
Mlynarek Michael NMC Shift Manager Male 43 07/01/1985 Salary/ Exempt
Moceri Richard NMC Engineer Senior Male 39 08/20/1990 Salary/ Exempt
Moceri Virginia NMC Shift Manager Female 39 09/05/1989 Salary/ Exempt
Moeller Carl NMC Radiation Protection General Supervisor Male 38 10/26/1998 Salary/ Exempt
Monacelli Mark NMC Planner Male 52 07/25/1977 Salary/ Exempt
Monacelli Michael NMC Engineer I Male 25 05/29/2001 Salary/ Exempt
Mongeau Steven NMC Engineer Senior Male 37 05/18/1998 Salary/ Exempt
Moody Daryl NMC Radiation Protection Technician Male 41 03/27/2006 Hourly/ Non-Exempt
Morse LeAnn NMC Business Process Assistant Lead Female 58 08/28/1989 Hourly/ Non-Exempt
Mulford Todd NMC Control Room Supervisor Male 37 09/08/1995 Salary/ Exempt
Nelson Walter NMC Corrective Action Coordinator Male 50 01/15/2001 Salary/ Exempt
Nestle David NMC Health Physicist Senior Male 33 09/12/2005 Salary/ Exempt
Newton IV Thomas NMC Engineering Analyst Senior Male 59 09/21/1981 Salary/ Exempt
Nicholson Jamie NMC Instructor Male 27 05/29/2001 Salary/ Exempt
Niffenegger Kevin NMC Instrument & Control Technician Senior Male 50 07/06/1981 Hourly/ Non-Exempt
Niffenegger Christopher NMC Instructor Technical Male 39 03/21/2006 Salary/ Exempt
Nixon Hugh NMC On-Line Manager Male 49 08/27/1990 Salary/ Exempt
Nock Michael NMC Access Analyst Male 45 02/23/1987 Salary/ Exempt
Nordby Jerome NMC Engineer Senior Male 47 02/07/1983 Salary/ Exempt
Nordin Michael NMC Engineering Supervisor Male 57 01/15/1979 Salary/ Exempt
Nyberg Kevin NMC Security Consultant Male 35 04/03/2006 Salary/ Exempt
Oakley Stevan NMC Work Control Center Manager Male 48 06/30/1980 Salary/ Exempt
Oberlin Carl NMC Instructor Simulator/Operations Principa Male 59 10/26/1981 Salary/ Exempt
O'Leary Timothy NMC Business Support Manager (std org) Male 45 04/16/2002 Salary/ Exempt
Osborne Keith NMC Engineer Principal Male 57 07/09/1973 Salary/ Exempt
Overway Steven NMC Engineer Senior Male 41 09/16/1992 Salary/ Exempt
Patrick Brian NMC Radiation Protection & Chemistry Manager Male 44 01/17/2005 Salary/ Exempt
Pavlinik James NMC Quality Control Inspector Senior Male 57 02/18/2002 Hourly/ Non-Exempt
Pearlstein Eric NMC Engineer Senior Male 41 10/03/1994 Salary/ Exempt
Penna Ronald NMC Engineering Analyst Senior Male 43 10/01/1998 Salary/ Exempt
Petro John NMC Quality Control Inspector Senior Male 55 04/11/1983 Hourly/ Non-Exempt
Pierce Stanley NMC Engineering Analyst Senior Male 55 06/11/1973 Salary/ Exempt
Pitcher Patrick NMC Control Room Supervisor Male 53 03/27/1990 Salary/ Exempt
Pitts Dorothy NMC Bus Process Assistant II Female 48 07/13/1992 Hourly/ Non-Exempt
Plachta Christopher NMC Radiation Protection General Supervisor Male 44 09/16/1985 Salary/ Exempt
Plumb Jason NMC Radiation Protection Technician Male 28 09/12/2005 Hourly/ Non-Exempt
Privett Archie NMC Radiation Protection Technician Senior Male 57 09/22/1986 Hourly/ Non-Exempt
Rabideau Brian NMC Security Consultant Senior Male 51 10/01/1985 Salary/ Exempt
Radosevich James NMC Radiation Protection Technician Senior Male 55 10/24/1994 Hourly/ Non-Exempt
Ramsey Heather NMC Bus Process Assistant II Female 28 06/19/1995 Hourly/ Non-Exempt
Rarick Charles NMC Instrument & Control Technician Male 53 04/05/1999 Hourly/ Non-Exempt
Rarrick Bruce NMC Quality Assurance Assessor Principal Male 50 08/14/2001 Salary/ Exempt
Rau Gilbert NMC Instrument & Control Technician Senior Male 54 05/11/1981 Hourly/ Non-Exempt
Rexius Thomas NMC Engineering Analyst Senior Male 52 11/30/1976 Salary/ Exempt
Reyna-Rodarte Mary NMC Bus Process Assistant II Female 45 05/05/2003 Hourly/ Non-Exempt
Reyner Holly NMC Engineer Senior Female 42 01/03/1989 Salary/ Exempt
Rhodes Paul NMC Control Room Supervisor Male 42 03/15/1999 Salary/ Exempt
Rice Robert NMC Project Manager Senior Male 55 06/07/1976 Salary/ Exempt
Rich Thomas NMC Scheduling Coordinator Male 45 01/06/1993 Salary/ Exempt
Richey Marty NMC Production Manager Male 44 03/25/2002 Salary/ Exempt
Ridley James NMC Instructor Technical Senior Male 49 08/19/1985 Salary/ Exempt
Ridley Karen NMC Safety Specialist Female 52 04/26/1976 Hourly/ Non-Exempt
Ritt Carolyn NMC Technical Advisor Senior Female 58 06/01/1977 Salary/ Exempt
Roberts William NMC Engineer Senior Male 55 06/10/1974 Salary/ Exempt
Rodriguez Joseph NMC Instructor Operations Senior Male 45 09/05/2000 Salary/ Exempt
Rogers David NMC Business Support Manager (std org) Male 53 07/16/1986 Salary/ Exempt
Rose Tina NMC Scheduler Female 38 11/02/1998 Salary/ Exempt
Rose Kevin NMC Maintenance Supervisor Male 44 02/09/2004 Salary/Exempt
Ross Leonard NMC Maintenance General Supervisor Male 53 07/15/1972 Salary/Exempt
Ruff David NMC Planner Male 55 09/19/1977 Salary/Exempt
Russell Raymond NMC Engineering Technician Male 55 10/06/1982 Hourly/Non-Exempt
Russell Patrick NMC Perf Assessment Director Male 44 09/10/2001 Salary/Exempt
Saarela Thomas NMC Engineer Senior Male 57 06/05/1978 Salary/Exempt
Saarela R NMC Procedures Specialist Female 50 04/06/1981 Salary/Exempt
Sabo Peter NMC Accounting Site Manager Male 49 02/02/2004 Salary/Exempt
Salgia Surendra NMC Engineer Senior Male 60 08/01/1994 Salary/Exempt
Savage Mark NMC Communications Consultant Senior Male 56 11/02/1987 Salary/Exempt
Schmidt Richard NMC Engineer Senior Male 46 11/03/1997 Salary/Exempt
Schmidt Paul NMC Training Supervisor Operations Male 53 04/03/1989 Salary/Exempt
Schneider Kevin NMC Instructor Technical Senior Male 47 06/13/1983 Salary/Exempt
Schneider Linda NMC Bus Process Assistant II Female 54 07/20/1992 Hourly/Non-Exempt
Schout Mark NMC Radiation Protection Technician Senior Male 48 08/01/1983 Hourly/Non-Exempt
Schrader George NMC Engineer Senior Male 49 09/08/1980 Salary/Exempt
Schultz Steven NMC Information Technology Analyst Principal Male 44 11/23/1992 Salary/Exempt
Schwan James NMC Engineer Senior Male 46 11/03/1997 Salary/Exempt
Scott William NMC Engineering Supervisor Male 60 06/27/2005 Salary/Exempt
Scott Charley NMC Employee Concerns Coordinator Male 58 12/01/1999 Salary/Exempt
Scudder Ronald NMC Engineer Senior Male 55 03/12/1979 Salary/Exempt
Seamans Larry NMC Engineer Senior Male 55 07/06/1981 Salary/Exempt
Seleski Michael NMC Chemistry Technician Male 44 02/05/2001 Hourly/Non-Exempt
Shaffer Roger NMC Shift Manager Male 48 08/16/1982 Salary/Exempt
Shaffer Geri NMC Control Room Supervisor Female 49 06/15/1981 Salary/Exempt
Shaler Brian NMC Engineer Senior Male 46 08/03/1992 Salary/Exempt
Shimer Elizabeth NMC Business Process Assistant Lead Female 46 08/12/1991 Hourly/Non-Exempt
Simpson Roberta NMC Supply Chain Specialist Female 42 07/22/2002 Hourly/Non-Exempt
Slakes Richard NMC Engineer Senior Male 35 11/23/1998 Salary/Exempt
Slattery James NMC Radiation Protection Technician Male 44 10/03/2005 Hourly/Non-Exempt
Sleeper George NMC Operations Support Manager Male 48 01/16/1981 Salary/Exempt
Smell Michael NMC Engineering Technician Senior Male 56 01/07/1974 Hourly/Non-Exempt
Smith Keith NMC Engineering Analyst Senior Male 49 08/31/1981 Salary/Exempt
Smith Natasha NMC Engineer II Female 30 08/01/2000 Salary/Exempt
Smith Roger NMC Work Week Manager Male 61 10/09/1978 Salary/Exempt
Smith Joyce NMC Bus Process Assistant II Female 54 09/20/1982 Hourly/Non-Exempt
Smith Jeffrey NMC Radiation Protection Technician Senior Male 46 08/03/1987 Hourly/Non-Exempt
Smith Gregg NMC Training Supervisor Operations Male 56 01/06/2003 Salary/Exempt
Smith Koda NMC Operations Manager (<1000MW) Male 50 09/14/2004 Salary/Exempt
Smith Gregory NMC Engineer I Male 26 03/07/2006 Salary/Exempt
Smith-Torp Shirley NMC Bus Process Assistant II Female 48 07/14/2003 Hourly/Non-Exempt
Smoot William NMC Radiation Protection Supervisor Male 35 01/11/1999 Salary/Exempt
Snowden Phillip NMC Engineer Senior Male 55 08/01/2000 Salary/Exempt
Snuggerud Ross NMC Control Room Supervisor Male 37 02/01/1993 Salary/Exempt
Sonnenberg Donald NMC Engineering Analyst Senior Male 46 09/18/1989 Salary/Exempt
Sonnenberg David NMC Instrument & Control Technician Senior Male 47 06/04/1982 Hourly/Non-Exempt
Sorenson-Brower Shona NMC Business Process Assistant Lead Female 36 07/18/1994 Hourly/Non-Exempt
Sosinski Bryan NMC Supply Chain Supervisor Male 33 06/01/1992 Salary/Exempt
Sova Brian NMC Engineer Senior Male 39 07/16/1990 Salary/Exempt
Stacks Hubert NMC Engineer Senior Male 52 10/03/1994 Salary/Exempt
Starland Jr Ralph NMC Engineering Analyst Senior Male 56 05/21/1979 Salary/Exempt
Steffler Thomas NMC Shift Manager Male 56 11/01/1979 Salary/Exempt
Stell Thomas NMC Instructor Simulator/Operations Senior Male 53 04/02/1982 Salary/Exempt
Stevens Kenneth NMC Engineer Senior Male 59 06/24/1974 Salary/Exempt
Stoner Michael NMC Planning Supervisor Male 39 02/14/1997 Salary/Exempt
Strebeck Daniel NMC Engineer Senior Male 49 03/06/2006 Salary/Exempt
Stringham David NMC Scheduling Coordinator Male 49 07/06/1981 Salary/Exempt
Sturm Gary NMC Rad Protect Analyst Senior Male 52 10/16/1978 Salary/Exempt
Sullivan Michael NMC Chemistry General Supervisor Male 49 09/08/1981 Salary/Exempt
Sweet Michael NMC Emergency Prepared Coordinator Senior Male 50 11/03/1980 Salary/Exempt
Swetay Beverly NMC Bus Process Assistant II Female 62 04/15/1985 Hourly/Non-Exempt
Swiecicki Thomas NMC Engineer Senior Male 42 06/01/1987 Salary/Exempt
Tessin Karen NMC Technical Support Specialist Female 52 04/26/1982 Hourly/Non-Exempt
Thomas Michael NMC Work Week Manager Male 51 02/07/1983 Salary/Exempt
Thon Michael NMC Instrument & Control Technician Senior Male 46 05/26/1981 Hourly/Non-Exempt
Tiffany Eric NMC Engineer Senior Male 46 06/18/1982 Salary/Exempt
Tiffany Lea NMC Training Specialist Female 54 08/21/1986 Salary/Exempt
Tilton James NMC Engineer Senior Male 58 09/13/1982 Salary/Exempt
Tipton Kenneth NMC Engineer Senior Male 44 01/27/2003 Salary/Exempt
Todd Leonard NMC Project Manager Senior Male 56 08/22/1977 Salary/Exempt
Toner Kerry NMC Supervisor Training Maintenance/Techl Male 58 05/20/1985 Salary/Exempt
Torp Richard NMC Planner Male 55 01/16/1978 Salary/Exempt
Tucker Robert NMC Control Room Supervisor Male 49 02/04/1981 Salary/Exempt
Turco William NMC Chemistry Technician Male 39 09/18/2000 Hourly/Non-Exempt
Turner Darrel NMC Projects, Manager of (Std Org) Male 59 01/03/1977 Salary/Exempt
Vaishnavi Bihari NMC Engineer Principal Male 62 03/20/2006 Salary/Exempt
Vaive Kevin NMC Planner Male 49 02/10/1986 Salary/Exempt
Valha Marcia NMC Leadership Development Specialist Female 39 05/06/2002 Salary/Exempt
Vanwagner Bob NMC Engineering Supervisor Male 53 07/27/1981 Salary/Exempt
Vegter II William NMC Information Technology Analyst Male 27 04/24/2006 Salary/Exempt
Vellenga David NMC Information Technology Analyst Male 45 06/10/2002 Salary/Exempt
Vincent Robert NMC Project Manager Male 61 09/17/1975 Salary/Exempt
Voskuil Jeffrey NMC Engineer Senior Male 38 10/05/1998 Salary/Exempt
Waaso Andrew NMC Intern Engineer Male 22 05/03/2004 Coop
Walker Bobby NMC Bus Process Assistant III Male 52 04/03/1985 Hourly/Non-Exempt
Walker John NMC Training Supervisor Operations Male 54 02/23/2004 Salary/Exempt
Wallace Asa NMC Radiation Protection Technician Male 31 09/12/2005 Hourly/Non-Exempt
Warner James NMC Security Consultant Senior Male 54 06/16/1981 Salary/Exempt
Watkins Douglas NMC Rad Protect Analyst Senior Male 47 04/18/1983 Salary/Exempt
Watson Thomas NMC Instructor Simulator/Operations Senior Male 48 07/08/1981 Salary/Exempt
Wcisel James NMC Operations Procedures Writer Male 56 10/23/1978 Salary/Exempt
Weathersby Joyce NMC Bus Process Assistant I Female 20 07/26/2004 Hourly/Non-Exempt
Werdann Richard NMC Supply Chain Manager Male 48 11/06/2001 Salary/Exempt
Westerhof Robert NMC Engineering Supervisor Male 48 07/18/1983 Salary/Exempt
White Robert NMC Control Room Supervisor Male 46 10/18/1982 Salary/Exempt
Wicks James NMC Fleet Procedures Manager Male 51 02/12/1979 Salary/Exempt
Wiese Brian NMC Assessment Supervisor Male 35 05/03/2004 Salary/Exempt
Wiggins Guy NMC Engineer Senior Male 42 11/01/2000 Salary/Exempt
Wilkens Sharon NMC Bus Process Assistant II Female 55 08/14/1989 Hourly/Non-Exempt
Wilkins Joe NMC Engineering Technician Male 41 05/08/1990 Hourly/Non-Exempt
Willett Jennifer NMC Bus Process Assistant I Female 22 07/01/2001 Hourly/Non-Exempt
Williams Edward NMC Radiation Protection Technician Male 42 03/11/2002 Hourly/Non-Exempt
Williams David NMC Engineering Analyst Senior Male 55 11/13/1978 Salary/Exempt
Williams Dane NMC Radiation Protection & Chemistry Manager Male 48 02/03/2003 Salary/Exempt
Winkel Tammy NMC Business Process Assistant Lead Female 38 12/18/1990 Hourly/Non-Exempt
Witt Danny NMC Procedures Specialist Male 54 08/14/1978 Salary/Exempt
Wong James NMC Engineer Senior Male 52 08/02/1993 Salary/Exempt
Woody Thomas NMC Engineer II Male 31 04/18/2005 Salary/Exempt
Wright Gerald NMC Radiation Protection Supervisor Male 42 01/21/1987 Salary/Exempt
Wright Tammy NMC Bus Process Assistant III Female 38 12/12/1994 Hourly/Non-Exempt
Yanik Jr Frank NMC Engineer Senior Male 58 01/12/1981 Salary/Exempt
Yeager Kenneth NMC Operations Assistant Manager <1000MW Male 52 09/18/1978 Salary/Exempt
Yeisley Glenn NMC Engineer Senior Male 54 01/11/1982 Salary/Exempt
Zielinski Kathleen NMC Bus Process Assistant III Female 53 01/08/1979 Hourly/Non-Exempt
Zillins Andrew NMC Engineer Senior Male 48 02/21/1983 Salary/Exempt
Zwissler Paul NMC Projects Coordinator Male 55 02/08/1982 Salary/Exempt
05/02/1977
Transferred Employees - Big Rock ISFSI Assets
Potter Lawrence R CONSUMERS Big Rock Point Male 52 Salary/ Exempt (nonbargaining
unit employee)
SCHEDULE 6.10(G)
ACTUARIAL ASSUMPTIONS - PALISADES ASSETS AND BIG ROCK ISFSI ASSETS
Interest Rates - PBGC plan termination interest rates as of the Closing Date, as
described in Appendix B to Section 4044 of ERISA (For example, rates as of March
2006 are 5.70% for the first 20 years; 4.75% thereafter).
Retirement Age - PBGC plan termination expected retirement ages as described in
Appendix D to Section 4044 of ERISA.
Mortality Rates - PBGC plan termination mortality rates as described in Table 1,
Appendix A to Section 4044 of ERISA.
Withdrawal and Disability Rates - None assumed.
Marital Status - 85% of the participants are assumed to be married with females
two years younger than males.
Expense Loading Charge - None.
Allocation of Assets - Based on the priority categories in Section 4044 of
ERISA.
FIRST AMENDMENT TO ASSET SALE AGREEMENT
This First Amendment to Asset Sale Agreement ("Amendment") is made as of
April 10, 2007, by and between Consumers Energy Company, a Michigan corporation
("Seller"), and Entergy Nuclear Palisades, LLC, a Delaware limited liability
company ("Buyer"). Seller and Buyer are referred to individually as a "Party,"
and collectively as the "Parties."
WHEREAS, Seller and Buyer are parties to an Asset Sale Agreement dated as
of July 11, 2006 (the "Asset Sale Agreement"), providing, among other things,
for the sale by Seller to Buyer, and the purchase by Buyer from Seller, of the
Included Assets;
WHEREAS, the Parties wish to amend the Asset Sale Agreement as provided in
this First Amendment;
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, and intending to be legally bound,
the Parties hereby agree as follows:
1. Defined Terms. Terms used but not defined in this First Amendment that
are defined in the Asset Sale Agreement shall have the respective meanings set
forth in the Asset Sale Agreement.
2. Amendment of Defined Terms. The definition of "Head" and the definition
of "Head Contract" in Section 1.1(103) and Section 1.1(104), respectively, of
the Asset Sale Agreement are each hereby amended to substitute "Section 7.1(y)"
for "Section 7. Hz)" referenced therein.
3. Amendment of Section 2.1 (1). Section 2.1 (1) of the Asset Sale
Agreement is hereby amended to substitute "Schedule 2.1(1)" for "Schedule
2.2(1)".
4. Amendment of Section 3.3(a)(6). Section 3.3(AX6) of the Asset Sale
Agreement is hereby amended to substitute "Schedule 3.3(a)(6)" for "Schedule
3.3(a)(5)" in the last sentence.
5. Addition of Section 3.8. A new Section 3.8 of the Asset Sale Agreement
as follows is hereby added:
"3.8 Consumer Liabilities at Closing
At the Closing Seller shall deposit with Buyer an amount
("Deposit") determined by Seller which shall be held by Buyer on
behalf of Seller and disbursed by Buyer as set forth below. If and to
the extent within 180 days following the Closing ("Payment Period")
Buyer receives bills or other payment requests from Seller with
respect to vendors of Seller or NMC for goods delivered or services
rendered in connection with Palisades or Big Rock at or prior to the
Closing (which amounts are Excluded Liabilities pursuant to Section
2.4(e)), then Buyer shall pay such amounts on Seller's or NMC's behalf
from the Deposit in accordance with Buyer's normal accounts payable
procedures. In the event at any time during the Payment Period it
reasonably appears the Deposit will not be sufficient to allow Buyer
to pay bills or other payment requests of Seller, it shall notify
Seller of such fact and Seller may, but shall not be obligated to,
make additional payments to Buyer which shall be added to the Deposit.
Within fifteen days following the end of the Payment Period, Buyer
shall render to Seller an accounting of the payments made hereunder
and shall return to Seller any unused portion of the Deposit. No
interest shall be payable on the Deposit. Buyer shall have no
obligation to pay any amounts pursuant to this Section 3.8 if and to
the extent the Deposit has been otherwise disbursed."
6. Amendment of Section 6.6(c). Section 6.6(c) of the Asset Sale Agreement
is hereby amended to substitute the words "one hundred thirty-five (135) days"
for "forty five (45) days" in the second sentence.
7. Amendment of Section 6.6(e). Section 6.6(e) of the Asset Sale Agreement
is hereby amended to substitute the word "Seller" for the word "Buyer" in the
last sentence.
8. Amendment of Section 6.21. The second sentence of Section 6.21 of the
Asset Sale Agreement is hereby amended to substitute the word "Buyer" for the
word "Seller."
9. Addition of Schedule. Schedule 3.3(a)(6) attached hereto is hereby added
to the Asset Sale Agreement.
10. Effect of Amendment. The Parties acknowledge and agree that (a) except
as specifically amended by this First Amendment, the Asset Sale Agreement is
unchanged, and (b) the Asset Sale Agreement, as amended by this First Amendment,
remains in full force and effect.
11. Counterparts. This First Amendment may be executed in one or more
counterparts, each of which shall be deemed to be an original and all of which
shall constitute one and the same agreement.
[SIGNATURE PAGE FOLLOWS]
2
IN WITNESS WHEREOF, the Parties have caused this First Amendment to be
signed by their respective duly authorized officers as of the date first above
written.
CONSUMERS ENERGY COMPANY
By: /s/ Robert A. Fenech
------------------------------------
Name: Robert A. Fenech
Title: Senior Vice President
Nuclear, Fossil & Hydro
Operations
ENTERGY NUCLEAR PALISADES, LLC
By: /s/ Michael R. Kansler
------------------------------------
Name: Michael R. Kansler
Title: President
3
SCHEDULE 3.3(a)(6)
LOW LEVEL WASTE DISPOSAL COST METHODOLOGY - PALISADES ASSETS ONLY
The methodology for determining cost is identified in the value contracts
established by NMC and the vendors providing Low Level Waste disposal services.
There are exceptions where special quotes are solicited and provided. The
contracts themselves identify pricing for the various services associated with
processing, transportation or disposal of Low Level Waste. Pricing is generally
based on volume, weight, dose rates and the amount of activity associated with
the Low Level Waste being shipped. The methodology selected should use the least
cost alternative for disposing of Low Level Waste.
Please reference: Contract #30000435 for Duratek Services, Inc.
Contract #30000127 for Envirocare of Utah, Inc. (Energy
Solutions)
Contract #30000436 for STUDSVIK Processing Facility, LLC
Contract #30000251 for Chem-Nuclear Systems
Contract #30000314 for Duratek Services, Inc.
Contract #30000102 for RWE Nukem Corporation
SECOND AMENDMENT TO ASSET SALE AGREEMENT
This Second Amendment to Asset Sale Agreement (the "Amendment") is made as of
April 11,2007 by and between Consumers Energy Company, a Michigan corporation
("Seller"), and Entergy Nuclear Palisades, LLC, a Delaware limited liability
company ("Buyer"). Seller and Buyer are referred to herein individually as a
"Party" and collectively as the "Parties."
WHEREAS, Seller and Buyer are parties to an Asset Sale Agreement dated as of
July 11,2006, as amended by the First Amendment dated April 10,2007
(collectively, the "Asset Sale Agreement"), providing, among other things, for
the sale by Seller to Buyer, and the purchase by Buyer from Seller, of the
Included Assets;
WHEREAS, the Parties wish to further amend the Asset Sale Agreement as provided
in this Second Amendment;
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, and intending to be legally bound,
the Parties hereby agree as follows:
1. Defined Terms. Terms used but not defined in this Amendment that are defined
in the Asset Sale Agreement shall have the respective meanings set forth in the
Asset Sale Agreement.
2. Addition of Defined Terms. The following new defined terms are added to
Section 1.1 of the Asset Sale Agreement, in proper alphabetical order:
"Alternative Requested Ruling" has the meaning set forth in Section 6.18.
"Nonqualified Decommissioning Fund" means, with respect to Seller, Seller's
external trust funds, taken together, for purposes of Decommissioning
Palisades which do not meet the requirements of Code Section 468A and
Treas. Reg. Section 1.468A-5, maintained by Seller with respect to
Palisades prior to the Closing pursuant to Seller's Decommissioning Trust
Agreement, other than any trust fund that has been established by Seller
specifically to satisfy FERC requirements regarding Decommissioning
Palisades, and, if applicable, with respect to Buyer, Buyer's external
trust fund for purposes of Decommissioning Palisades which does not meet
the requirements of Code Section 468A and Treas. Reg. Section 1.468A-5,
established and maintained by the Trustee pursuant to the Post-Closing
Decommissioning Trust Agreement.
"Nonqualified Decommissioning Fund Additional Deposit" has the meaning set
forth in Section 6.12(a).
3. Deletion of Defined Terms. The following defined terms are deleted from the
Asset Sale Agreement:
"Excess PLR Decommissioning Amount"," Excess Qualified Decommissioning Fund
Assets", "First Decommissioning Account", "Notional Investment Amount",
"PLR Decommissioning Amount", "Requested Rulings", "Second Decommissioning
Account" and "Tax Rate".
4. Amendment of Certain Defined Terms.
(a) The definition of "Post-Closing Decommissioning Trust Agreement" in
Section 1.1 of the Asset Sale Agreement is hereby amended by replacing said
definition with the following:
"Post-Closing Decommissioning Trust Agreement" means the
decommissioning trust agreement between Buyer and the Trustee pursuant
to which any assets of the Nonqualified Decommissioning Fund that are
transferred by Seller at Closing pursuant to Section 6.12(a) will be
held in trust.
(b) The definition of "Qualified Decommissioning Fund" in Section 1.1 of
the Asset Sale Agreement is hereby amended by replacing said definition with the
following:
"Qualified Decommissioning Fund" means, with respect to Seller,
Seller's external trust fund for purposes of Decommissioning Palisades
that meets the requirements of Code Section 468A and Treas. Reg.
Section 1.468A-5, maintained by Seller with respect to the Facilities
prior to Closing pursuant to Seller's Decommissioning Trust Agreement.
(c) The definition of "Seller's Decommissioning Trust Agreement" in Section
1.1 of the Asset Sale Agreement is hereby amended by replacing said definition
with the following:
"Seller's Decommissioning Trust Agreement" means the Amended and
Restated Master Trust Agreement, dated January 1,2004, by and between
Consumers and State Street Bank and Trust Company, regarding the
Nonqualified Decommissioning Fund of Seller.
(d) The definition of "Trustee" in Section 1.1 of the Asset Sale Agreement
is hereby amended by replacing said definition with the following:
"Trustee" means with respect to Seller prior to the Closing, the
trustee appointed by Seller pursuant to the Seller's Decommissioning
Trust Agreement and, after the Closing, the trustee appointed pursuant
to the Post-Closing Decommissioning Trust Agreement.
5. Amendment of various Sections. The following Sections of the Asset Sale
Agreement are amended as follows:
(i) Section 2.1 (k) of the Asset Sale Agreement is hereby amended by
replacing said Section with the following:
"(k) Those assets comprising the Nonqualified
Decommissioning Fund (including the Nonqualified Decommissioning
Fund Additional Deposit, if applicable) relating to the Palisades
Facilities being transferred to Buyer pursuant to Section 6.12(a)
including all interest accrued thereon, together with all related
Tax, accounting and other records for such assets, including all
Decommissioning studies, analyses and cost estimates and all
records related to the determination of the Tax basis of such
assets;"
(ii) Section 2.2(d) of the Asset Sale Agreement shall be amended by
substituting the phrase "Nonqualified Decommissioning Fund
(including the Nonqualified Decommissioning Fund Additional
Deposit, if applicable)" for the words "Qualified Decommissioning
Fund".
(iii) Section 2.2(g) of the Asset Sale Agreement shall be amended by
substituting the phrase "Nonqualified Decommissioning Fund
(including the Nonqualified Decommissioning Fund Additional
Deposit, if applicable)" for the words "Qualified Decommissioning
Fund".
(iv) Section 2.2(q) of the Asset Sale Agreement shall be amended by
substituting the phrase "Nonqualified Decommissioning Fund
(including the Nonqualified Decommissioning Fund Additional
Deposit, if applicable)" for the words "Qualified Decommissioning
Fund".
(v) Section 2.2(r) of the Asset Sale Agreement shall be deleted in
its entirety and the words 'INTENTIONALLY OMITTED' shall be
substituted therefor.
(vi) Section 2.4(1) of the Asset Sale Agreement shall be amended by
replacing said Section with the following:
2
"(1) Any Taxes incurred by Seller's Nonqualified
Decommissioning Fund for taxable periods, or portions thereof,
ending on or prior to the Closing Date;"
(vii) Section 3.4(a) of the Asset Sale Agreement shall be amended by
replacing said Section with the following:
"Buyer and Seller shall use their reasonable good faith efforts
to jointly agree prior to the Closing Date to an estimated
allocation among the Included Assets of the sum of the Purchase
Price and the Assumed Liabilities and Obligations that is
consistent with the allocation methodology provided by Section
1060 of the Code and the regulations promulgated thereunder and
the private letter rulings issued by the IRS under Code Section
468A relating to the transfer of Nonqualified Decommissioning
Fund assets (the "Estimated Allocation"). The Estimated
Allocation, to the extent agreed to, will be used for transfer
and sales tax filings and for all other Closing document
purposes."
(viii) Section 3.6(g) of the Asset Sale Agreement shall be amended by
substituting the phrase "Nonqualified Decommissioning Fund
(including the Nonqualified Decommissioning Fund Additional
Deposit, if applicable)" for the words "Qualified Decommissioning
Fund".
(ix) Section 4.16 of the Asset Sale Agreement shall be amended by
deleting the consecutive words "and except with respect to the
portion of the Included Assets that are part of the Qualified
Decommissioning Fund" from said Section.
(x) The heading for Section 4.17 of the Asset Sale Agreement shall be
renamed "Nonqualified Decommissioning Fund".
(xi) Section 4.17(a) of the Asset Sale Agreement shall be amended by
replacing said Section with the following:
"(a) Except as described on Schedule 4.17. with respect to
all periods prior to the Closing: (i) Seller's Nonqualified
Decommissioning Fund has been a trust, validly existing under the
Laws of the Commonwealth of Massachusetts or the State of
Michigan, as applicable, with all requisite authority to conduct
its affairs as it now does; (ii) Seller's Nonqualified
Decommissioning Fund has been in compliance with all applicable
Laws of the NRC, FERC, the IRS, MPSC and any other Governmental
Authority; and (iii) Seller's Nonqualified Decommissioning Fund
has been classified as a grantor trust owned by Seller under
Sections 671 through 677 of the Code."
(xii) Section 4.17(c) of the Asset Sale Agreement shall be amended by
substituting the phrase "Nonqualified Decommissioning Fund
(including the Nonqualified Decommissioning Fund Additional
Deposit, if applicable)" for the words "Qualified Decommissioning
Fund".
(xiii) Section 4.17(d) of the Asset Sale Agreement shall be amended by
replacing said Section with the following:
"(d) With respect to all periods prior to the Closing,
Seller and/or the Trustee of Seller's Nonqualified
Decommissioning Fund has/have filed or caused to be filed with
the NRC, FERC, MPSC and any other Governmental Authority all
material forms, statements, reports and documents (including all
exhibits, amendments and supplements thereto) required to be
filed with such entities. Seller has delivered to Buyer a copy of
the schedule of ruling amounts most recently issued by the IRS
for Seller's Qualified Decommissioning Fund and a complete copy
of the currently pending request for revised ruling amounts,
together with all exhibits, amendments and supplements thereto."
3
(xiv) Section 4.17(e) of the Asset Sale Agreement shall be amended by
(A) substituting the words "Nonqualified Decommissioning Fund"
for the words "Qualified Decommissioning Fund" and (B)
substituting the date "December 31, 2006" for the date "December
31, 2005".
(xv) Section 4.17(f) of the Asset Sale Agreement shall be deleted in
its entirety.
(xvi) Section 5.7 of the Asset Sale Agreement and the heading thereof
shall be amended by replacing said Section and its heading with
the following:
"5.7 Post-Closing Decommissioning Trust Agreement
At the Closing, the Post-Closing Decommissioning Trust Agreement
will satisfy the NRC's requirement for decommissioning trust
provisions in 10 C.F.R. 50.75(h)(1)."
(xvii) Section 6.8(c) of the Asset Sale Agreement shall be amended by
replacing said Section with the following:
"(c) With respect to Seller's Nonqualified Decommissioning
Fund, Seller shall be responsible for and shall pay all Income
Taxes for all taxable periods ending prior to or on the Closing
Date, and Seller shall not cause any amounts relating to Income
Taxes for Seller's Nonqualified Decommissioning Fund to be paid
from or reimbursed from Seller's Nonqualified Decommissioning
Fund assets".
(xviii) Section 6.12 of the Asset Sale Agreement is hereby amended by
replacing said Section 6.12 in its entirety with the following:
"6.12 Decommissioning Fund.
(a) At the Closing, Seller shall cause to be transferred to
the Trustee under the Post-Closing Decommissioning Trust
Agreement all of the assets of Seller's Nonqualified
Decommissioning Fund, all of which assets, including those assets
referred to in the following sentence, shall be comprised only of
non-cash marketable securities reasonably acceptable to Buyer as
listed on Schedule 6.12(a). To the extent necessary, Seller shall
be required to make a deposit to its Nonqualified Decommissioning
Fund prior to the Closing so that the aggregate value of the
Nonqualified Decommissioning Fund, measured as of the Closing, is
equal to the Decommissioning Target (as calculated as of the
Closing Date) (such deposit, the "Nonqualified Decommissioning
Fund Additional Deposit").
(b) Buyer shall take all reasonable steps necessary to
satisfy any requirements imposed by the NRC regarding Buyer's
Nonqualified Decommissioning Fund in a manner sufficient to
obtain NRC approval of the transfer of assets from Seller's
Nonqualified Decommissioning Fund to Buyer.
(c) The Parties shall not take any actions that would cause
the actual Tax consequences of the transactions contemplated by
this Agreement to differ from or be inconsistent with the
Alternative Requested Ruling.
(d) [INTENTIONALLY OMITTED.]
(e) [INTENTIONALLY OMITTED.]
4
(f) Seller agrees not to amend Seller's Decommissioning
Trust Agreement between the Effective Date and the Closing Date
without Buyer's prior written consent, which shall not be
unreasonably withheld, except for any amendment which may be
required to be made to the Seller's Decommissioning Trust
Agreement by any Law or to permit the transfers referred to in
Section 6.12(a), or to permit return to Seller of assets of
Seller's Qualified Decommissioning Fund.
(xix) Section 6.18 of the Asset Sale Agreement is hereby amended by
replacing said Section 6.18 in its entirety with the following:
"6.18. Private Letter Rulings.
Buyer and Seller shall use Commercially Reasonable Efforts
to obtain prior to the Closing Date a private letter ruling from
the IRS (but receipt of any such letter ruling shall not be a
condition to the occurrence of the Closing) determining that the
IRS, pursuant to the exercise of its discretion as provided in
Treasury Regulation Section 1.468A-5(c)(l), will disqualify the
Seller's Qualified Decommissioning Fund in its entirety as of the
Closing Date but prior to any transfer or distribution of assets
out of Seller's Qualified Decommissioning Fund that occurs on the
Closing Date and, consequently, the entire amount of assets held
in Seller's Qualified Decommissioning Fund will be deemed to be
distributed to Seller on the Closing Date (with the resulting tax
consequences described in Treasury Regulation Section
1.468A-5(c)(3)) (the "Alternative Requested Ruling"). The
Alternative Requested Ruling shall be modified (including to the
extent necessary, withdrawn), as necessary, to take into account
or reflect any mutually agreed-to changes in the transaction
structure by the Parties that reflects the comments and
statements made by the IRS during the process of attempting to
obtain the Alternative Requested Ruling that occur on or after
the Effective Date, and the term "Alternative Requested
Ruling" shall be modified as necessary to take into account any
changes that are permitted pursuant to this sentence."
(xx) Sections 6.20(c), (d), (e) and (f) of the Asset Sale Agreement
are hereby deleted in their entirety and the words "INTENTIONALLY
OMITTED" shall be substituted therefor.
(xxi) Section 6.20(g) of the Asset Sale Agreement shall be amended by
deleting the words "at least 20 days" therefrom.
(xxii) Section 7.l(n) of the Asset Sale Agreement shall be amended by
replacing said Section with the following:
"(n) Seller shall have transferred to the Trustee of the
Post-Closing Decommissioning Trust Agreement all of the assets of
Seller's Nonqualified Decommissioning Fund (including the
Nonqualified Decommissioning Fund Additional Deposit, if
applicable), in accordance with Section 6.12(a):"
(xxiii) Section 8.2(c) of the Asset Sale Agreement shall be amended by
substituting the phrase "4.17 (Nonqualified Decommissioning
Fund)" for the phrase "4.17 (Qualified Decommissioning Fund)" and
the phrase "6.20 (Decommissioning)" for the phrase "6.20
(Decommissioning, Return of Excess Qualified Decommissioning Fund
Assets)" in said Section.
(xxiv) Section 10.4(a) of the Asset Sale Agreement shall be amended by
(A) substituting the phrase "4.17 (Nonqualified Decommissioning
Fund) (except with respect to 4.17(a)(iii))" for the phrase "4.17
(Qualified Decommissioning Fund) (except with respect to
4.17(a)(ii). (iv). (v). and (vi). and 4.17(d)(ii) and 4.17(f))"
and (B) substituting the phrase "5J (Post-Closing Decommissioning
Trust Agreement)" for the phrase "5.7 (Transfer of Assets of
Qualified Decommissioning Fund)".
5
6. Addition of Schedule. Schedule 6.12(a) attached hereto is hereby added to the
Asset Sale Agreement.
7. Amendment of List of Exhibits and Schedules. The List of Exhibits and
Schedules in the Asset Sale Agreement shall be amended by adding the following
at the end of the List of Schedules:
"6.12(a) Non-Cash Marketable Securities"
8. Effect of Amendment. The Parties acknowledge and agree that (a) except as
specifically amended by this Second Amendment, the Asset Sale Agreement is
unchanged, and (b) the Asset Sale Agreement, as further amended by this Second
Amendment, remains in full force and effect.
9. Counterparts. This Second Amendment may be executed in one or more
counterparts, each of which shall be deemed to be an original and all of which
shall constitute one and the same agreement.
[SIGNATURE PAGE IMMEDIATELY FOLLOWS]
6
IN WITNESS WHEREOF, the Parties have caused this Amendment to be signed by
their respective duly authorized officers as of the date first above written.
CONSUMERS ENERGY COMPANY
By: /s/ Robert A. Fenech
------------------------------------
Name:
Title:
ENTERGY NUCLEAR PALISADES, LLC
By: /s/ Michael R. Kansler
------------------------------------
Name: MICHAEL R. KANSLER
Title: PRESIDENT
SCHEDULE 6.12(A)
NON-CASH MARKETABLE SECURITIES
Intermediate maturity (i.e., maturity of two to six years) Treasury Notes.
Cash or cash equivalents (i.e., investments with a maturity of one year or less)
shall not in the aggregate exceed $250,000.