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Exhibit 10.1
ESCROW AGREEMENT
ESCROW AGREEMENT made this 10th day of November, 1999, by and between
Little Bay Power Corporation, a New Hampshire corporation with a principal place
of business of 00 Xxxxxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx, Xxx Xxxxxxxxx
00000, ("Little Bay") and Citizens Bank New Hampshire (the "Escrow Agent").
WHEREAS, Little Bay has agreed to acquire Montaup Electric Company's
("Montaup") approximate 2.9% ownership interest in Seabrook Station Unit No. 1
("Seabrook") pursuant to an Asset Purchase Agreement dated as of June 24, 1998
by and between Montaup and Great Bay Power Corporation, which was subsequently
assigned to Little Bay (the "Asset Purchase Agreement"); and
WHEREAS, Little Bay and Montaup requested regulatory approvals for the
consummation of the sale of Montaup's ownership interest in Seabrook to Little
Bay (the "Sale") from the Nuclear Regulatory Commission ("NRC"), the
Massachusetts Department of Telecommunications and Energy ("MDTE"), the New
Hampshire Public Utilities Commission ("NHPUC"), among other Federal and State
regulatory authorities; and
WHEREAS, in connection with the settlement of certain regulatory
proceedings and consistent with a June 21, 1999 Order of the NHPUC, Little Bay
desires to set aside, at the time of the closing of the Sale, in an escrow
account held by the Escrow Agent, cash reserves sufficient to cover Little Bay's
share of budgeted cash requirements for a six-month period to pay for Little
Bay's Share of Seabrook costs of operations and capital expenditures during
periods of Seabrook shutdowns; and
WHEREAS, the Escrow Agent desires to hold funds of Little Bay in escrow
and to invest and distribute such funds in accordance with this Agreement;
NOW THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. ESCROW AGENT. Little Bay hereby appoints Citizens Bank New
Hampshire as Escrow Agent, and the Escrow Agent hereby accepts appointment as
such, all upon the terms and provisions set forth in this Escrow Agreement. The
Escrow Agent shall charge Little Bay, and Little Bay shall promptly pay, fees
for its services rendered pursuant to this Agreement, in accordance with
attached Appendix A, which may be modified by Escrow Agent from time to time
upon reasonable written notice of such to Little Bay.
2. ESCROW FUNDS. Little Bay shall forecast its cash requirements
in connection with its ownership of 2.89989% ownership interest in Seabrook, for
each calendar year, in its good faith judgment and based upon the operating and
capital budgets adopted by the operator of Seabrook, such cash requirements to
include but not be limited to costs of operation, maintenance, fuel, fuel
procurement, and capital additions (the "Cash Requirements Budget"). The initial
Cash Requirements Budget is attached to this Agreement as Appendix B, and by
January 31 of each year Little Bay
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shall deliver to the Escrow Agent the Cash Requirement Budget for that calendar
year, and each such budget shall constitute an amendment to Appendix B. One-half
of the Cash Requirements Budget, as amended from time to time, shall constitute
the Initial Escrow Amount.
3. DEPOSIT WITH ESCROW AGENT. Pursuant to the terms and
conditions of the Settlement Agreement, Little Bay agrees to deposit the Initial
Escrow Amount with the Escrow Agent at the time of the Closing as defined in the
Asset Purchase Agreement. Such deposit, along with earnings credited and all
additional deposits made pursuant to the terms of this Agreement, shall
constitute the Escrow Fund.
4. INVESTMENT OF ESCROW FUND. Escrow Agent shall hold and invest
the Escrow Fund monies pursuant to investment guidelines provided to it in
writing by Little Bay (and which Little Bay may modify from time to time) and
shall credit all earnings on monies invested to the Escrow Fund.
5. DISBURSEMENT OF ESCROW FUND. Promptly upon receipt of and as
specified in written instructions from Little Bay, Escrow Agent shall disburse
funds from the Escrow Fund to North Atlantic Energy Service Corporation or to
any successor operator of Seabrook. The Escrow Agent shall have no obligation to
disburse monies in excess of the amount of the Escrow Fund.
6. RESTORATION OF ESCROW FUNDS. On or before January 31 of each
year, Little Bay will deliver to the Escrow Agent for deposit to the Escrow Fund
monies sufficient to cause the Escrow Fund to equal the Initial Escrow amount
for that year. In addition, at such time as the Escrow Fund is equal to less
than 50% of the Initial Escrow Amount (as amended), Little Bay will within sixty
(60) days of such event deliver to the Escrow Agent for deposit to the Escrow
Fund monies sufficient to cause the Escrow Fund to equal the Initial Escrow
amount for that year.
7. LIMITATION OF ESCROW AGENT'S DUTIES.
a. Little Bay acknowledges that the duties of the Escrow
Agent hereunder are solely ministerial in nature, and have been
requested for their convenience. The Escrow Agent shall not be deemed
to be the agent of Little Bay, or to have any legal or beneficial
interest in any of the Escrow Fund. Little Bay agrees that the Escrow
Agent is a party to the Escrow Agreement only and has no duties or
responsibilities in connection with any other agreements related
hereto. Little Bay agrees that the Escrow Agent shall not be liable for
any act or omission taken or suffered in good faith with respect to
this Agreement unless such act or omission is the result of the gross
negligence or willful misconduct of the Escrow Agent.
b. The Escrow Agent may consult with legal counsel and
shall be fully protected and incur no liability relative to any action
or inaction taken in good faith in accordance with the advice of such
counsel. The Escrow Agent shall have no responsibility for determining
the genuineness or validity of any certificate, document, notice or
other instrument or item presented to or deposited
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with it, and shall be fully protected in acting in accordance with any
written instruction given to it by Little Bay and reasonably believed
by the Escrow Agent to have been signed by the proper representatives
of Little Bay.
c. The Escrow Agent shall not be responsible for any
losses relative to the investment or liquidation of the Escrow Fund,
provided such Escrow Fund are invested and held in accordance with
Section 4. The Escrow Agent further shall not be responsible for
assuring that the Escrow Fund are sufficient for the disbursements
contemplated under Section 5 hereof.
d. The Escrow Agent shall not be required to institute
legal proceedings of any kind. The Escrow Agent shall not be required
to defend any legal proceedings which may be instituted against it with
respect to this Agreement unless requested to do so in writing by
Little Bay, and unless and until it is indemnified by Little Bay to the
satisfaction of the Escrow Agent, in its sole discretion, against the
cost and expense of such defense, including without limitation the
reasonable fees and expenses of its legal counsel.
8. INDEMNIFICATION. Little Bay agrees to indemnify the Escrow
Agent for, and to hold it harmless against, any loss, liability, cost or expense
(including without limitation reasonable attorney's fees, costs, and expenses)
incurred by the Escrow Agent (or any of its agents or employees) in connection
with its entering into and carrying out its duties under this Escrow Agreement,
including without limitation any cost and expense of defending itself against
any claim of liability which arises in connection with disputes or controversies
arising hereunder other than those relating to the administration of the Escrow
Fund. Little Bay's obligations under this Section 8 shall survive any
resignation of the Escrow Agent or termination of this Agreement.
9. REMOVAL AND RESIGNATION; SUCCESSOR.
a. GENERAL. Little Bay may remove the Escrow Agent at
any time for any reason (or for no reason) by giving written notice of
such removal to the Escrow Agent or any successor to the Escrow Agent
("Successor Escrow Agent"), which shall specify the date (not earlier
than thirty (30) days after the giving of such notice) upon which such
removal shall take effect. The Escrow Agent or any Successor Escrow
Agent may resign at any time for any reason (or for no reason) by
giving written notice to the Little Bay specifying the date (not
earlier than ninety (90) days after the giving of such notice) upon
which it desires that such resignation shall take effect.
b. EFFECTIVE TIME. Such removal or resignation shall
take effect on the date specified in the notice of removal or
resignation; provided, however, that such removal or resignation shall
not be effective before a Successor Escrow Agent has been appointed and
accepted its obligations under this Agreement; and provided, further,
that if Little Bay shall have sooner appointed a Successor Escrow Agent
pursuant to subsection (c) below and such Successor Escrow Agent shall
have accepted such appointment, then such removal or resignation shall
take effect upon the acceptance by such Successor Escrow Agent.
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c. SUCCESSOR ESCROW AGENT. In the event of the
resignation or removal of the Escrow Agent or a Successor Escrow Agent,
Little Bay shall promptly appoint a Successor Escrow Agent by a written
instrument delivered to the Escrow Agent (or Successor Escrow Agent)
and the Successor Escrow Agent being appointed. Upon the effectiveness
of the resignation or removal of the Escrow Agent (or Successor Escrow
Agent), the Successor Escrow Agent being appointed shall become vested
with all the rights, powers, duties and obligations of its predecessor
hereunder. If no Successor Escrow Agent shall have been appointed as of
the effective date of the resignation or removal of the Escrow Agent as
set forth in the notice provided for in subsection (a) above, then the
Escrow Agent, or Little Bay may petition a court of competent
jurisdiction for the appointment of a successor.
10. TERMINATION. This Agreement may be terminated at the election
of Little Bay by delivery of written notice of termination to the Escrow Agent,
specifying the date of termination. Upon termination, Escrow Agent shall pay all
amounts held in or credited to the Escrow Fund to Little Bay, and all
obligations under this Agreement shall cease other than Little Bay's
indemnification obligations under Section 7.
11. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement among the parties with respect to the subject matter hereof, and any
prior or simultaneous promises, agreements, conditions, understandings, or
representations, oral or written, relating to the subject matter hereof are
merged herein and no longer of any force or effect. This Agreement may not be
modified or amended except by a written agreement signed by all parties hereto.
12. THIRD PARTY BENEFICIARIES. Notwithstanding the fact that the
establishment and maintenance of the Escrow Fund is consistent with any
agreements binding Little Bay or orders of governmental regulatory bodies, there
are no intended third party beneficiaries of this Agreement, and this Agreement
is not intended to establish any rights with respect to any persons other than
Little Bay and the Escrow Agent.
13. NOTICES. All notices given under this Escrow Agreement shall
be in writing and shall be sufficient if delivered, sent or mailed registered or
certified mail, return receipt requested, postage prepaid, to the addresses set
forth above, or to such other address as a party may specify in a notice
complying with this provision and sent to the other party.
14. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
15. SEVERABILITY. All provisions contained in this Agreement are
severable. In the event that any of them shall be held to be invalid or
unenforceable by a court of competent jurisdiction, then this Agreement shall be
interpreted as if such invalid or unenforceable provision were not contained
herein.
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16. BINDING EFFECT. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their successors and assigns.
17. GOVERNING LAW. This Agreement shall be construed and enforced
in accordance with the laws of the State of New Hampshire.
18. TITLES AND SECTION HEADINGS. Titles and section headings are
for convenience of reference only and neither form a part of this Agreement or
are to be used as an aid in its interpretation.
IN WITNESS WHEREOF, the parties have set their hands to this Agreement
as of the date first above written.
LITTLE BAY POWER CORPORATION
/s/ Xxxxxxxx Xxxxxxx By: /s/ XXXXX X. XXXXXX
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Witness Xxxxx X. Xxxxxx, President
CITIZENS BANK NEW HAMPSHIRE
/s/ [illegible] By: /s/ XXXXXXXX CALDWELLL TADDEL
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Witness , duly authorized
Xxxxxxxx Xxxxxxxx Taddel
Senior Vice President
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EXHIBIT B
1999 CASH REQUIREMENTS BUDGET
LITTLE BAY ESCROW ACCOUNT
SEABROOK FUNDING REQUIREMENTS:
1999
(ACT JAN-NOV;
BDGT DEC)*
GBPC (12.1324%) LBPC (2.899%)
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$21,036,567 $5,028,184
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ESCROW AMOUNT = $2,514,092 (1/2 OF ANNUAL CASH REQUIREMENTS)
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*1999 INFORMATION IS BASED UPON ACTUAL SEABROOK FUNDING TO DATE AND THE 1999
SEABROOK BUDGET
