FORM U-7D
CERTIFICATE PURSUANT TO RULE 7(d)
PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
Amendment
The undersigned certifies that this certificate accurately summarizes, as
required in the instructions hereto, the information requested as to the
contracts identified herein and the transactions for the financing thereof.
1. User public-utility company: South Carolina Electric & Gas Company
("SCE&G").
Address: 1426 Main Street, Columbia, South Carolina 29201.
2. Date: December 22, 1997
2a. Expected date facility will be placed in service: The facility is
to be used at SCE&G's V. C. Summer Nuclear Station, Parr Shoals,
Fairfield County, South Carolina, which has been completed and is
presently operating under a full power license.
3. Regulatory authority which has acted on transactions:
Name: The Public Service Commission of South Carolina
Date of Order: September 21, 1979, as supplemented September 25,
1984, November 24, 1993 and December 21, 1994.
4. Initial term of fuel contract: The fuel contract (the "Fuel
Contract") dated as of December 19, 1997 between SCE&G and its
wholly-owned subsidiary, South Carolina Fuel Company, Inc. ("Fuel
Company"), pursuant to which Fuel Company owns and finances certain
Nuclear Fuel (as defined in Item 5 of this Certificate) and to
which SCE&G will make payment therefor as such Nuclear Fuel is used
by SCE&G, replaces the fuel contract between SCE&G and Fuel Company
dated October 11, 1979, as amended November 17, 1982, September 26,
1984, July 27, 1989 and November 30, 1993. The Fuel Contract does
not have a fixed term, but is terminable upon notice by either
party or upon the happening of certain contingencies specified
therein.
4a. Renewal options: No renewal options are provided in the Fuel
Contract.
5. Brief description of facility: The subject matter of the Fuel
Contract is any Nuclear Fuel, to the extent of Fuel Company's
interest therein, with respect to which Fuel Company has made or is
to make payments or with respect to which SCE&G has made or is to
make certain payments for the account of Fuel Company, as
contemplated by the Fuel Contract. "Nuclear Fuel" is defined in
the Fuel Contract as, and herein means, any source material or
special nuclear material (as defined in the Atomic Energy Act and
regulations thereunder) and any assemblies containing such
material. Such subject matter, to the extent in existence at
December 22, 1997, consisted of a two-thirds undivided interest in
an approximate inventory of 359,471 kilograms of uranium in the
form of UF6, an inventory of 157 fuel assemblies of fabricated
uranium, and the contract obligation to purchase approximately 512
additional fuel assemblies.
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6. Manufacturer or supplier: Nuclear Fuel subject to the Fuel Contract
and in existence at December 22, 1997 has been or is to be supplied
by Power Resources, Inc. and Energy Resources of Australia Ltd.,
converted by ConverDyn, enriched by the United States Enrichment
Corporation, and fabricated into fuel assemblies by Westinghouse
Electric Corporation. Contractual obligations from these
manufacturers and suppliers vary from the present time to the year
2001 for varying portions of the Nuclear Fuel requirements. The
identity of other manufacturers and suppliers of any Nuclear Fuel
which may become subject to the Fuel Contract in the future will
depend upon future contractual arrangements which will be
negotiated on the basis of prevailing market conditions.
7. Cost of facility: The cost of Nuclear Fuel subject to the Fuel
Contract and in existence at December 22, 1997 was $54,870,848.
The cost of Nuclear Fuel becoming subject to the Fuel Contract
after such date will depend on future contractual arrangements and
market conditions and is not currently determinable.
8. Basic Payments: Pertinent excerpts from the Fuel Contract are
attached as Annex A.
8a. Periodic installment: See Annex A.
9. Holder of legal title to facility: South Carolina Fuel Company,
Inc.*
Address: 1426 Main Street, Columbia, South Carolina 29218.
*Pursuant to a security agreement (the "Security Agreement"), dated
as of December 19, 1997, between Fuel Company and Wachovia Bank,
N.A., as Collateral Agent (the "Collateral Agent"), Fuel Company
has granted a security interest in all its right, title and
interest in and to the Nuclear Fuel which is or may become subject
to the Fuel Contract, as well as certain contract rights, to the
Collateral Agent as security for the payment of borrowings of Fuel
Company under the Credit Agreement referred to in Item 11 of this
Certificate in connection with its purchase, ownership and
financing of Nuclear Fuel. The Security Agreement replaces a
security agreement, dated as of October 11, 1979, as amended
November 17, 1982, September 26, 1984, and November 30, 1993,
between Fuel Company and The South Carolina National Bank, as
Trustee.
10. Holder of beneficial interest:
Name and Address Amount Invested Percent of Equity
---------------- --------------- -----------------
South Carolina Fuel $54,870,848 100%
Company, Inc.**
1426 Main Street
Columbia, SC 29201
**Under the terms of the Fuel Contract, upon payment to Fuel
Company of an amount based upon Fuel Company's investment at that
time in any Nuclear Fuel subject to the Fuel Contract, SCE&G or its
designee may acquire title to and ownership of such Nuclear Fuel.
Pertinent provisions of the Fuel Contract appear in Annex A.
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11. If part or all of the financing is supplied by loan on which only
principal and interest is payable, state:
Amount borrowed: Interest rate: Number of lenders:
Terms of repayment. Amount: Period:
Fuel Company finances its purchase and ownership of certain
Nuclear Fuel by the issuance and sale of notes with maturities of
270 days or less from the date of issuance (such notes are referred
to herein as "commercial paper") in the normal commercial paper
market. SCE&G guarantees payment of the commercial paper.
$45,360,320 face amount of such commercial paper was outstanding on
December 22, 1997.
Under the terms of a credit agreement (the "Credit Agreement")
dated as of December 19, 1997 among Wachovia Bank, N.A., as Agent,
five banks (each, a "Bank") and Fuel Company, the Banks have agreed
to severally make loans to Fuel Company in an aggregate principal
amount not to exceed $125,000,000 outstanding at any one time, the
purpose of such credit to provide a standby facility to finance
nuclear fuel, fossil fuel and sulfur dioxide emission allowances in
the event financing through the issuance of commercial paper is not
available or desirable. SCE&G has guaranteed payment of the loans.
The Credit Agreement replaces a credit agreement, dated as of
November 30, 1993, among The South Carolina National Bank, CIBC,
Inc., NationsBank of North Carolina, N.A., Wachovia Bank of
Georgia, N.A., as Agent, and Fuel Company. Fuel Company had no
loans outstanding under the Credit Agreement on December 22, 1997.
Each loan made under the Credit Agreement may be either a
"Base Rate Loan" or a "Euro-Dollar Loan." Each Base Rate Loan is
payable in full 30 days after it is made. Each Euro-Dollar Loan is
payable either one, two, three or six months after it is made, at
the option of Fuel Company. Notwithstanding the foregoing, all
loans under the Credit Agreement must be paid in full on December
19, 2000, or any extension of such date made pursuant to the Credit
Agreement. Each Base Rate Loan will bear interest each day at a
rate per annum equal to the greater of (a) the federal funds rate
for that day plus one-half of one percent or (b) the prime rate set
by Wachovia Bank, N.A. applicable to that day. Each Euro-Dollar
Loan will bear interest at a rate per annum based on the London
Interbank Offered Rate and upon Fuel Company's and SCE&G's
commercial paper ratings. Interest rates will be computed on the
basis of a 360-day year.
A facility fee, which will vary depending upon Fuel Company's
and SCE&G's commercial paper ratings but which will not be less
than nine-hundredths of one percent per annum on the total amount
committed to be loaned by the Banks under the Credit Agreement, is
also payable by Fuel Company under the Credit Agreement.
Date Executed: January 22, 1998
Signature of holder of legal title:
SOUTH CAROLINA FUEL COMPANY, INC.
By: /s/ Mark R. Cannon
-------------------------------
Mark R. Cannon, Treasurer
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ANNEX A TO FORM U-7D
EXCERPTS FROM NUCLEAR FUEL CONTRACT
* * *
ARTICLE 1
Definitions
-----------
The capitalized terms used in this Contract shall have the respective
meanings set forth below, unless the context otherwise requires:
Assembly:
--------
Any one of the separate fuel assemblies constituting a part of Contract
Nuclear Fuel fabricated for use in the reactor of the Plant, together with the
source material and special nuclear material contained therein and all its
other components and contents.
* * *
Batch:
-----
A discrete group of Assemblies put together during initial fueling or a
refueling process for insertion in the reactor core of the Plant.
Borrowings:
----------
Borrowings as defined in the Credit Agreement incurred by Fuel Company in
connection with the purchase or carrying of, or investment in, Contract
Nuclear Fuel or the performance of its obligations under this Contract or any
Nuclear Fuel Contract.
Capitalized Costs:
-----------------
Those costs incurred in connection with the transactions contemplated by
this Contract other than Direct Acquisition Costs, which in the opinion of
Utility, in accordance with interpretations of the FERC Uniform System of
Accounts and of generally accepted accounting principles, should be
capitalized, including, without limitation, Capitalized Financing Charges.
Capitalized Financing Charges:
-----------------------------
All Financing Charges allocable to the Contract Nuclear Fuel or any part
thereof during the processes of refinement, conversion, enrichment,
fabrication and reprocessing, if available, in accordance with the FERC
Uniform System of Accounts (plus, to the extent, if any, not permitted by such
system of accounts, unearned discount on Commercial Paper Notes and Term
Notes), and while in transit and in storage to the extent permitted by the
FERC Uniform System of Accounts.
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Commercial Paper Notes:
----------------------
Promissory notes of Fuel Company with maturities of no more than 270 days
from the date of issuance issued pursuant to the Issuance and Paying Agent
Agreement (for Commercial Paper) dated as of April 6, 1995 between Fuel
Company and Chemical Bank, or other issuing and paying agency agreements, in
connection with the purchase or carrying of or investment in Contract Nuclear
Fuel or the performance of Fuel Company's obligations under this Contract or
any Nuclear Fuel Contracts, even though any such promissory note may have been
issued in reliance upon the exemption from the registration requirements of
the Securities Act of 1933 provided by Section 4(2) of said Act, rather than
on the exemption provided by Section 3(a)(3) of said Act, and as a result of
the conditions required in order for said exemption pursuant to Section 4(2)
to be available, such promissory note may not come within the ordinary usage
of the term "commercial paper."
Contract Nuclear Fuel:
---------------------
Any Nuclear Fuel, to the extent of the interest of Fuel Company therein,
with respect to which Utility has required Fuel Company to make any payment or
has itself made any advance or payment required to be repaid, or offset
against Monthly Accrual Payments, by Fuel Company or with respect to which
Fuel Company has made payment to any other party, with the consent of Utility,
as contemplated by this Contract. Contract Nuclear Fuel shall not include any
Nuclear Fuel to the extent title thereto shall have been transferred by Fuel
Company to Utility or its designee pursuant to the provisions of this
Contract.
Credit Agreement:
----------------
The Credit Agreement dated as of December 19, 1997, among the Fuel
Company, the Banks and the Agent, as it may hereafter be amended, supplemented
or modified, which provides for a standby facility to finance or refinance,
among other things, Nuclear Fuel in the event such financing is not available
through the issuance of Commercial Paper Notes or Term Notes or if financing
through the issuance of Commercial Paper Notes or Term Notes is not desirable
to the Fuel Company.
Direct Acquisition Costs:
------------------------
The purchase price paid by Fuel Company (or paid or advanced by Utility
and repaid or to be repaid by Fuel Company to Utility or offset or to be
offset against Monthly Accrual Payments pursuant to Section 3.06 of this
Contract) for the acquisition by Fuel Company of any Contract Nuclear Fuel,
including payments made by Fuel Company (or by Utility as aforesaid) under
Nuclear Fuel Contracts with respect to any Nuclear Fuel, including costs of
milling, conversion, enrichment, fabrication, installation, delivery,
containerization, transportation, storage, processing, reprocessing, if
available, and any other direct costs with respect to acquiring, processing or
fabricating any Nuclear Fuel for use in any stage of its Nuclear Fuel Cycle,
but excluding therefrom all Capitalized Costs with respect thereto.
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Estimated Net Investment:
------------------------
A dollar amount calculated (i) with respect to any Assembly in the
reactor core of the Plant, by multiplying the MBTU then remaining in such
Assembly by the MBTU Rate then applicable to the Batch in which such Assembly
is located or, (ii) in the case of an Assembly which has been removed from the
reactor core of the Plant, by multiplying the MBTU then remaining in such
Assembly by the MBTU Rate applicable, at the time of such removal, to the
Batch in which such Assembly was then located. Estimated Net Investment in an
Assembly of Spent Fuel which has not been reprocessed shall be zero.
* * *
Financing Charges:
-----------------
Interest, discount (including unearned discount on Commercial Paper Notes
and Term Notes), commitment fees, facility fees, agents; fees and expenses,
counsel fees, commissions or other financing costs related to (i) Purpose
Indebtedness, (ii) related issuing and paying agency agreements, and (iii) the
Credit Agreement.
Financing Charges - Expenses:
----------------------------
For any period during the term of this Contract, Financing Charges for
such period to the extent such items would not constitute Capitalized Costs
for such period.
* * *
Heat Production:
---------------
The stage of the Nuclear Fuel Cycle in which Nuclear Fuel is engaged in
the reactor core of the Plant and is being consumed in the production of heat
to generate steam for the generation of electric energy.
Impositions:
-----------
All license, documentary and registration fees and all taxes, charges or
withholdings of any nature whatsoever, together with any penalties or interest
thereon, imposed by any taxing authority or governmental subdivision upon or
in respect of, or measured by, any payments under this Contract from Utility
to Fuel Company or in respect of any property subject to this Contract or any
transaction pursuant to this Contract or any right or interest held by virtue
of this Contract.
Investment:
----------
With respect to any part of Contract Nuclear Fuel, the sum of (i) the
Direct Acquisition Costs for such part plus (ii) the Capitalized Costs
allocable to such part.
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MBTU:
----
The estimated economically usable million British Thermal Units in, or
remaining in, a Batch or Assembly, as determined from time to time by an
engineer of Utility.
MBTU Rate:
---------
The MBTU Rate for each Batch in the reactor core of the Plant shall be
computed at the beginning of each month or date of commencement of Heat
Production, if occurring later, and, in the case of a Batch which has been
removed from the core of the reactor and reinserted, at the date of
reinsertion, by dividing the Net Investment in such Batch at such date by the
MBTU remaining in such Batch at such date.
mbtu:
----
The million British Thermal Units generated by a Batch during a period
when Contract Nuclear Fuel is in Heat Production, as determined by an engineer
of Utility.
Monthly Accrual Payment:
-----------------------
The sum, for any month, of the Monthly Purchase Allocations for all
Batches in Heat Production plus the Financing Charges - Expenses for such
month.
Monthly Purchase Allocation:
---------------------------
With respect to each Batch in the reactor core of the Plant, a dollar
amount determined by multiplying the number of mbtu generated by such Batch
during a month, or shorter period or periods during such month while such
Batch is in Heat Production, by the MBTU Rate or Rates for such Batch for such
month or shorter period or periods.
Net Investment:
--------------
With respect to any part of Contract Nuclear Fuel other than an Assembly
which is or has been in the reactor core of the Plant, the excess of the
amount of the Investment in such part over the aggregate amount of the Monthly
Purchase Allocations, if any, theretofore accrued with respect to such part
and, with respect to any Assembly which is or has been in the reactor core of
the Plant, the Estimated Net Investment with respect to such Assembly.
Nuclear Fuel:
------------
Any source material or special nuclear material (as defined in the Atomic
Energy Act and the regulations promulgated thereunder) and any Assemblies
containing such special nuclear material or source material, or both. Such
materials and items shall continue to be Nuclear Fuel for purposes of this
Contract regardless of changes therein during the Nuclear Fuel Cycle.
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Nuclear Fuel Contract:
---------------------
Any contract entered into by Utility or by Fuel Company, with Utility's
consent, with one or more Suppliers relating to the acquisition of Nuclear
Fuel or to performance of any service, including reprocessing, if available,
transportation and storage, in connection with Nuclear Fuel.
Nuclear Fuel Cycle:
------------------
The various stages in the process by which Nuclear Fuel is mined,
processed, enriched, designed, fabricated into assemblies utilizable for Heat
Production, loaded into a reactor core, utilized, disengaged, reprocessed (if
available) and stored, together with all incidental processes with respect to
Nuclear Fuel at any stage of the Nuclear Fuel Cycle.
* * *
Purpose Indebtedness:
--------------------
Indebtedness of Fuel Company secured under the Security Agreement and
other indebtedness for borrowed money (except indebtedness to SCANA
Corporation or Utility) incurred by Fuel Company in connection with the
purchase or carrying of, or investment in, Contract Nuclear Fuel or the
performance of its obligations under this Contract or under any Nuclear Fuel
Contracts. For purposes of any limitation contained in this Contract, the
outstanding amount of Purpose Indebtedness or Secured Purpose Indebtedness
shall be determined from the accounting records of the Company maintained
pursuant to Article 6 of the Security Agreement.
Secured Purpose Indebtedness:
----------------------------
Purpose Indebtedness secured under the Security Agreement or by any other
security interest in Contract Nuclear Fuel permitted by Article 9 hereof of
prior or equal rank with the security interest created by the Security
Agreement.
Security Agreement:
------------------
The security agreement, dated as of the date hereof, as the same may be
amended, supplemented or modified, between Fuel Company and Wachovia Bank,
N.A., as Collateral Agent, providing a security interest in the Contract
Nuclear Fuel and rights under Nuclear Fuel Contracts for the benefit of the
Banks, the Agent and the holders of Commercial Paper Notes, Term Notes and all
other Obligations (as defined in the Security Agreement).
Spent Fuel:
----------
Nuclear Fuel that has been removed from a nuclear reactor at the
conclusion of its economically useful life (without reprocessing) as fuel for
a nuclear reactor.
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Supplier:
--------
Any supplier of Nuclear Fuel or any service, including reprocessing, if
available, transportation and storage, in connection with Nuclear Fuel.
Termination Payment:
-------------------
Such amount, if any, as, when added to the Net Investment then payable by
Utility to Fuel Company pursuant to Section 8.02 of this Contract, will be
sufficient (a) to enable Fuel Company to pay in full all of Fuel Company's
obligations under the Credit Agreement, Term Notes and Commercial Paper Notes
at their respective maturities, all of Fuel Company's obligations under
related issuing and paying agency agreements and all sums payable by Fuel
Company to others pursuant to the terms of Nuclear Fuel Contracts or otherwise
with respect to the purchase or carrying of, or investment in, Contract
Nuclear Fuel and (b) to pay all sums otherwise payable by Utility to Fuel
Company under this Contract (including any unpaid Monthly Accrual Payments
payable pursuant to Section 3.04).
Term Notes:
----------
Notes evidencing indebtedness for borrowed money with maturities in
excess of 270 days from the date of issuance issued by Fuel Company in
connection with the purchase or carrying of or investment in Contract Nuclear
Fuel or the performance of Fuel Company's obligations under this Contract or
Nuclear Fuel Contracts.
* * *
ARTICLE 3
Accounts; Payments by Utility and Fuel Company
- ----------------------------------------------
3.01 Subject to the terms and conditions hereof, Fuel Company shall pay,
from time to time, at Utility's request during the term of this Contract and
in accordance with the provisions of any Nuclear Fuel Contracts, such amounts
as shall become due and payable under such Nuclear Fuel Contracts and will
reimburse Utility for any payments made by Utility pursuant to any of said
contracts on its own behalf or on behalf of or for the account of Fuel
Company. Each such payment or reimbursement shall be allocated among specific
Assemblies, Batches, or such other parts of Contract Nuclear Fuel as Utility
may determine, in accordance with the provisions of this Contract, and a Fuel
Schedule in the form of Schedule A thereto shall be completed by Utility and
Fuel Company in respect thereof. Fuel Company may finance and refinance
Contract Nuclear Fuel and any payments to be made pursuant to Nuclear Fuel
Contracts or otherwise in connection with its purchase and ownership of
Contract Nuclear Fuel through the issuance of Commercial Paper Notes or Term
Notes, the incurring of Borrowings under the Credit Agreement or other
borrowings; provided, however, that at no time shall the aggregate amount of
outstanding Purpose Indebtedness exceed the Net Investment in Contract Nuclear
Fuel.
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3.02 Utility and Fuel Company shall, no later than the first day of the
second succeeding month, prepare a Net Investment Schedule as of the end of
and for each calendar month with respect to each Assembly, Batch or other part
of Contract Nuclear Fuel (as Utility and Fuel Company shall determine) showing
Fuel Company's Net Investment in each such Assembly, Batch or other part of
Contract Nuclear Fuel and in all Contract Nuclear Fuel. Notwithstanding any
other provision of this Contract, each completion of a Fuel Schedule in the
form of Schedule A hereto shall be deemed to amend, accordingly, the Net
Investment Schedule in the form of Schedule B hereto last prepared by Utility
and Fuel Company.
3.03 Commencing at the time any Contract Nuclear Fuel has begun Heat
Production, Utility will pay to or on behalf of Fuel Company, from time to
time, such amounts as Fuel Company may request in order to meet payments of
principal due on Commercial Paper Notes, Term Notes, Borrowings and other
borrowings and all Financing Charges then due and payable or to meet payments
required to be made by Fuel Company under any Nuclear Fuel Contracts or
requested by Fuel Company for the acquisition or carrying of or investment in
Contract Nuclear Fuel, up to an amount equal to the sum of the Monthly Accrual
Payments set forth in Annex I to all Net Investment Schedules (up to and
including the most recent Net Investment Schedule) theretofore required
pursuant to Section 3.02 to the extent such Monthly Accrual Payments are
unpaid and no sums have been offset against them pursuant to Section 3.06 at
the time of such request; provided that, so long as any Obligation covered by
the Banks' commitments under the Credit Agreement is outstanding, not later
than 90 days after the date of any required Net Investment Schedule, to the
extent, if any, that amounts equal to the Monthly Accrual Payment set forth in
Annex I to such Net Investment Schedule have not theretofore been paid by
Utility pursuant to the foregoing provisions of this Section 3.03 or offset
against such Monthly Accrual Payment pursuant to Section 3.06, Fuel Company
will request, and Utility will make, payment to or on behalf of Fuel Company
of such unpaid amount.
3.04 As additional consideration Utility will, during the term of this
Contract, pay to or on behalf of Fuel Company, from time to time as agent of
Fuel Company or otherwise, to the extent Fuel Company does not have funds from
other sources for such purpose and payments pursuant to Section 3.03 are
insufficient to pay the same in full, all charges, costs (including legal,
accounting, administrative and other operating expenses), fees or Impositions
incurred by Fuel Company in connection with its acquisition and ownership of
Contract Nuclear Fuel and the financing thereof, including, without
limitation, any amounts required to pay when due the principal amount of
Commercial Paper Notes, Term Notes, Obligations under the Credit Agreement and
any other indebtedness of Fuel Company, all Financing Charges and any amounts
due under Nuclear Fuel Contracts, and no amounts payable to Utility by Fuel
Company (which are outstanding at the date a payment is required under this
Section 3.04) may be offset, pursuant to Section 3.06, against Utility's
obligation to make such a payment under this Section.
3.05 The obligation of Utility to make any payments required by this
Contract to or on behalf of Fuel Company shall be unconditional and shall not
be excused by force majeure or commercial impracticability or any other excuse
in law.
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3.06 Utility may at any time on Fuel Company's request advance to or on
behalf of Fuel Company funds in excess of amounts payable under Sections 3.03
and 3.04 for the acquisition of Contract Nuclear Fuel and any such advances,
as well as payments made under Section 3.04 to the extent used to acquire
Contract Nuclear Fuel or to retire indebtedness of Fuel Company incurred in
connection with the acquisition or ownership of Contract Nuclear Fuel, may be
repaid to Utility by Fuel Company or at the option of Utility offset against
Monthly Accrual Payments for succeeding months.
3.07 At any time when an engineer of Utility shall certify in a
certificate delivered to Fuel Company that specified Assemblies have, as at
the end of a stated month, become Spent Fuel within the meaning of this
Contract, if at such time Utility has made all payments required of it
pursuant to Sections 3.03 and 3.04 hereof, Fuel Company shall so certify to
the Collateral Agent and any other Assignee and shall obtain the release of
such Spent Fuel from the Security Agreement and any other security agreement
or security interest in favor of an Assignee to which such Spent Fuel may be
subject. At such time or at any time thereafter, upon request of Utility and
solely at Utility's option, Fuel Company shall execute a bill of sale with
respect to such Assemblies of Spent Fuel evidencing the transfer to Utility,
or Utility's designee legally permitted to receive title thereto, of all Fuel
Company's right, title and interest in and to such Assemblies of Spent Fuel
free and clear of any such security interest, without payment of further
consideration by Utility. Notwithstanding the foregoing, Utility may not,
under this Section 3.07, acquire or secure the release from any such security
agreement or security interest of any Spent Fuel as to which Fuel Company has
incurred costs for the purpose of reprocessing.
3.08 At any time when Utility has made all payments then required of it
pursuant to Sections 3.03 and 3.04, Utility may purchase and obtain the
release of any or all Contract Nuclear Fuel not covered by Section 3.07 from
this Contract, the Security Agreement and any other security agreement or
security interest in favor of an Assignee by and upon paying to Fuel Company
an amount equal to Fuel Company's Net Investment in such Contract Nuclear Fuel
less, in the case of a sale to Utility, any amounts repayable to Utility or
available to be offset against Monthly Accrual Payments pursuant to Section
3.06; provided, however, that if any Secured Purpose Indebtedness is
outstanding at the time of such purchase, no part of such amounts may be
offset against the price payable by Utility unless the sum of (a) the Net
Investment in any Contract Nuclear Fuel not being so purchased, and (b) the
purchase price paid by Utility pursuant to this Section 3.08 is at least equal
to the amount of Secured Purpose Indebtedness outstanding at the date of such
purchase; and provided further that the amount of Purpose Indebtedness
outstanding will not, after giving effect to such purchase, exceed the Net
Investment in Contract Nuclear Fuel and that any Nuclear Fuel so sold shall be
accounted for separately from Contract Nuclear Fuel in such a manner that
Contract Nuclear Fuel may be readily identified and the Net Investment therein
may be readily determined. Upon such payment, Fuel Company shall promptly
execute and deliver to Utility, or to Utility's designee lawfully entitled to
receive title to Nuclear Fuel, a bill of sale transferring title and ownership
of such Contract Nuclear Fuel free and clear of any such security interest
therein.
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3.09 Unless otherwise expressly provided in this Contract, whenever,
under this Contract, computations are required to be made involving a cost,
price, payment, charge, discount, burn-up or any other amount relating to a
single Assembly, Batch or other part of Contract Nuclear Fuel, such cost,
price, payment, charge, discount, burn-up or other amount shall be determined
or estimated by Utility in its reasonable judgment consistent with good
utility practice; provided, however, that there shall be deducted from Net
Investment in any Batch, and accounted for separately until insertion thereof
into another Batch, the Estimated Net Investment in any Assembly or Assemblies
of Contract Nuclear Fuel removed from such Batch prior to the time that Net
Investment in such Batch is equal to zero.
* * *
ARTICLE 7
Events Upon Which Contract to Terminate
---------------------------------------
This Contract shall be terminated in the manner and with the effect
hereinafter set forth in Article 8:
(a) if either Utility or Fuel Company shall have notified the other that
it desires to terminate this Contract; or
(b) if either party shall have notified the other of the happening of
any of the following events:
(i) Any law or regulation or interpretation of any law or
regulation shall be adopted or enforced by any governmental or regulatory
authority (including, without limitation, the NRC, The Public Service
Commission of South Carolina, the Securities and Exchange Commission or the
FERC) and as a result of such adoption or enforcement, approval of the
transactions contemplated by this Contract shall be required and shall not
have been obtained within any grace period after such adoption or enforcement
or as a result of any such adoption or enforcement this Contract or any
transaction contemplated hereby shall be or become, or with the passage of a
specific period of time would become, unlawful or the performance of this
Contract or any term hereof shall be rendered impracticable in any material
way, unlawful or unenforceable; or
(ii) The existence of Utility shall have terminated or its business
shall have failed or Utility shall have made an assignment for the benefit of
creditors; or
(c) Bankruptcy, reorganization, liquidation or receivership proceedings
shall have been instituted by or against Utility, and, if proceedings shall
have been instituted against Utility, it shall have consented thereto or such
proceedings shall have been pending for 60 days.
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ARTICLE 8
Procedure for Termination of Contract
-------------------------------------
8.01 Upon the occurrence of any of the events listed in subparagraph (c)
of Article 7 or upon the giving of notice of termination or of the happening
of any of the other events listed in Article 7, this Contract shall cease and
terminate, except with respect to obligations and liabilities of Utility,
actual or contingent, which arose under this Contract on or prior to the date
of termination and except for Utility's obligations set forth in Section 8.02,
all of which obligations shall continue until discharged as provided below.
Upon such termination, the parties shall select a settlement date not less
than 90 or more than 120 days after the giving of such notice or the
occurrence of such termination event in the case of events listed in
subparagraph (c) of Article 7. Notwithstanding the foregoing, the parties
may, in their discretion, agree to a settlement date less than 90 days after
the date of such notice or occurrence of such termination event.
8.02 Upon the settlement date referred to in Section 8.01, Utility shall
pay to Fuel Company, or to such other person at such address as shall have
been designated by Fuel Company, an amount equal to the Net Investment of Fuel
Company with respect to all Contract Nuclear Fuel, plus the Termination
Payment, in such funds as Fuel Company shall designate. Upon such payment
Fuel Company shall deliver to Utility or its designee a confirmatory bill of
sale acknowledging the transfer of title and ownership of all Contract Nuclear
Fuel and all Fuel Company's right, title and interest in, to and under the
Nuclear Fuel Contracts previously assigned to or entered into by Fuel Company
to, and the vesting of the same in, Utility or Utility's designee lawfully
entitled to receive the same, and, if the Banks and all Assignees (or persons
for whose benefit any Assignee holds a security interest) have been paid in
full (or if funds required for such payment in full have been irrevocably
deposited by Fuel Company with such Assignee in an account or appropriate
accounts established with a paying agent for such purpose), an appropriate
instrument or instruments duly executed by the Agent, on behalf of the Banks,
the Collateral Agent and any other Assignees, canceling and discharging the
Credit Agreement (except for any obligation of Fuel Company to indemnify the
Agent and the Banks under Sections 9.03(a)(ii) or 9.03(c) of the Credit
Agreement, which obligation shall survive the termination of the Credit
Agreement) the Security Agreement, any other security agreements and any liens
or security interests created thereby or otherwise existing in Contract
Nuclear Fuel in favor of an Assignee. Utility will pay all expenses in
connection with such transfer.
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