Exhibit 10.5
This Amendment No. 4, dated as of December 16, 1996, to the
Amended and Restated Decommissioning Trust Agreement (PVNGS Unit 2), dated as of
January 31, 1992, as amended by Amendment No. 1 thereto dated as of November 1,
1992, Amendment No. 2 thereto dated as of November 1, 1994, and Amendment No. 3
thereto dated as of June 20, 1996 (the "Decommissioning Trust Agreement"; terms
used herein as therein defined), is entered into between Arizona Public Service
Company ("APS"), State Street Bank and Trust Company, as successor to The First
National Bank of Boston, as Owner Trustee and as Lessor, and Mellon Bank, N.A.,
as Decommissioning Trustee ("Decommissioning Trustee").
R E C I T A L S:
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WHEREAS, the parties hereto wish to amend the limitations of
the parties' ability to modify the Decommissioning Trust Agreement under certain
circumstances;
NOW, THEREFORE, in consideration of the premises and of other
good and valuable consideration, receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
A G R E E M E N T S:
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SECTION 1. Amendments.
The Decommissioning Trust Agreement is hereby amended by
adding the following as the last sentence of Section 15: "Notwithstanding the
foregoing, this Agreement may not be amended or modified in violation of Section
468A of the Code or the regulations thereunder."
SECTION 2. Effectiveness.
This Amendment No. 4 shall become effective as of the date
hereof upon the execution and delivery of a counterpart of this Amendment No. 4
by each of the parties hereto.
SECTION 3. Miscellaneous.
(a) Full Force and Effect.
Except as expressly provided herein, the Decommissioning Trust
Agreement shall remain unchanged and in full force and effect. Each reference in
the Decommissioning Trust Agreement and in any exhibit or schedule thereto to
"this Agreement," "hereto," "hereof" and terms of similar import shall be deemed
to refer to the Decommissioning Trust Agreement as amended hereby.
(b) Counterparts.
This Amendment No. 4 may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument, and any of the parties hereto may execute this Amendment No. 4 by
signing any such counterpart.
(c) Arizona Law.
This Amendment No. 4 shall be construed in accordance with and
governed by the law of the State of Arizona.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 4 to the Decommissioning Trust Agreement to be duly executed as of
the day and year first above written.
ARIZONA PUBLIC SERVICE COMPANY
By XXXXX X. XXXXXXXX
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Title Treasurer
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MELLON BANK, N.A., as
Decommissioning Trustee
By XXXX X. XXXXXXXX
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Xxxx X. Xxxxxxxx
Title Vice President
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STATE STREET BANK AND TRUST COMPANY,
as Owner Trustee under a Trust Agreement
with Security Pacific Capital Leasing
Corporation and as Lessor under a
Facility Lease with Arizona Public
Service Company
By XXXX XXXXXXXX
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Title Assistant Vice President
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STATE STREET BANK AND TRUST COMPANY,
as Owner Trustee under a Trust Agreement
with Xxxxxxx Finance Co. and as Lessor
under a Facility Lease with Arizona
Public Service Company
By XXXX XXXXXXXX
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Title Assistant Vice President
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STATE OF ARIZONA )
) ss.
County of Maricopa )
The foregoing instrument was acknowledged before me this 16th
day of December, 1996, by Xxxxx X. Xxxxxxxx, the Treasurer of ARIZONA PUBLIC
SERVICE COMPANY, an Arizona corporation, on behalf of said corporation.
[Official Seal] XXXXX X. XXXXX
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Notary Public
My commission expires:
July 21, 0000
XXXXX XX XXXXXXXXXXXX )
) ss.
County of Allegheny )
The foregoing instrument was acknowledged before me this 16th
day of October, 1996, by Xxxx Xxxxxxxx, a Trust Officer of MELLON BANK, N.A., a
corporation having trust powers, as Decommissioning Trustee, on behalf of said
corporation.
[Official Seal] XXXXXXXXX XXXXXX
---------------------------------
Notary Public
My commission expires:
May 12, 0000
-0-
Xxxxxxxxxxxx xx Xxxxxxxxxxxxx )
) ss.
County of Suffolk )
The foregoing instrument was acknowledged before me this 13th
day of December, 1996, by Xxxx Xxxxxxxx, the Assistant Vice President of STATE
STREET BANK AND TRUST COMPANY, a Massachusetts trust company, in its capacity as
Owner Trustee under a Trust Agreement with Security Pacific Capital Leasing
Corporation, and as Lessor under a Facility Lease with Arizona Public Service
Company, on behalf of said association in such capacities.
[Official Seal] XXXXX XXXX
---------------------------------
Notary Public
My commission expires:
July 12, 2002
Commonwealth of Massachusetts )
) ss.
County of Suffolk )
The foregoing instrument was acknowledged before me this 13th
day of December, 1996, by Xxxx Xxxxxxxx, the Assistant Vice President of STATE
STREET BANK AND TRUST COMPANY, a Massachusetts trust company, in its capacity as
Owner Trustee under a Trust Agreement with Xxxxxxx Finance Co., and as Lessor
under a Facility Lease with Arizona Public Service Company, on behalf of said
association in such capacities.
[Official Seal] XXXXX XXXX
---------------------------------
Notary Public
My commission expires:
July 12, 2002
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