EXHIBIT B-3(i)
AMENDED AND RESTATED
TRUST AGREEMENT
Dated as of November 17, 0000
Xxxxx
XXXX XXXX XXXX., xx Xxxxxxx
xxx
XXXXXX XXXXXX TRUST COMPANY OF NEW YORK, as Owner Trustee
and
JERSEY CENTRAL POWER & LIGHT COMPANY,
METROPOLITAN EDISON COMPANY AND
PENNSYLVANIA ELECTRIC COMPANY,
each as Lessees under certain lease agreements
and
LORD FUEL CORP., as Trust Beneficiary
________________
TMI-1 FUEL CORP. AND OYSTER CREEK FUEL CORP.
TRUST
_______________
TRUST AGREEMENT
TABLE OF CONTENTS
RECITALS . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1. DEFINITIONS . . . . . . . . . . . . . . . . . . 2
SECTION 2. AUTHORITY TO EXECUTE AND PERFORM DOCUMENTS;
DECLARATION OF TRUST . . . . . . . . . . . . . 2
2.1 Execution of Documents and Performance of Duties 2
2.2 Declaration of Trust . . . . . . . . . . . . . . 2
2.3 Name of Trust . . . . . . . . . . . . . . . . . . 2
2.4 No Other Business or Obligation . . . . . . . . . 2
2.5 No Disposition of Owner Trust Estate . . . . . . 3
SECTION 3. TRUSTOR'S INTEREST. . . . . . . . . . . . . . . 3
3.1 Investment by Trustor . . . . . . . . . . . . . . 3
3.2 Payment from Proceeds of Owner Trust Estate Only 3
3.3 Manner of Payment . . . . . . . . . . . . . . . . 3
SECTION 4. ACQUISITION AND FINANCING OF NUCLEAR MATERIAL . 3
4.1 Authorization of Transactions . . . . . . . . . . 3
4.2 Closing Procedures . . . . . . . . . . . . . . . 6
4.3 Conditions to Effecting Transactions . . . . . . 6
SECTION 5. RECEIPT, DISTRIBUTION AND APPLICATION OF INCOME
FROM THE OWNER TRUST ESTATE . . . . . . . . . 7
5.1 Application of Proceeds of Financings and Specific
Payments . . . . . . . . . . . . . . . . . . . . 7
5.2 Amounts Payable to the Banks . . . . . . . . . . 7
5.3 Other Amounts . . . . . . . . . . . . . . . . . . 7
5.4 Excepted Payments . . . . . . . . . . . . . . . . 7
SECTION 6. DUTIES OF THE OWNER TRUSTEE . . . . . . . . . . 7
6.1 Documents . . . . . . . . . . . . . . . . . . . . 7
6.2 Notice of Default . . . . . . . . . . . . . . . . 7
6.3 Indemnification; Legal Action . . . . . . . . . . 8
6.4 No Implied Duties . . . . . . . . . . . . . . . . 8
6.5 No Unauthorized Transactions . . . . . . . . . . 9
SECTION 7. THE OWNER TRUSTEE . . . . . . . . . . . . . . . 9
7.1 Acceptance of Trust, Etc. . . . . . . . . . . . . 9
7.2 Limitation of Duties . . . . . . . . . . . . . . 10
7.3 Representations and Warranties of Owner Trustee . 11
7.4 Deposit of Funds . . . . . . . . . . . . . . . . 11
7.5 Reliance on Documents; Agents; Right to Consult
with Counsel and Others; Etc. . . . . . . . . . 11
7.6 Not Acting in Individual Capacity . . . . . . . . 12
7.7 Interpretation of Trust Agreement . . . . . . . . 12
7.8 Compensation . . . . . . . . . . . . . . . . . . 12
7.9 Books, Records and Tax Returns . . . . . . . . . 12
7.10 Effect of Sales by a Company . . . . . . . . . . 13
7.11 Exculpatory Provisions . . . . . . . . . . . . . 14
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SECTION 8. INDEMNIFICATION OF THE OWNER TRUSTEE . . . . . 15
SECTION 9. CO-TRUSTEES, SEPARATE TRUSTEES . . . . . . . . 16
SECTION 10. SUCCESSOR TRUSTEES . . . . . . . . . . . . . . 18
SECTION 11. SUPPLEMENTS AND AMENDMENTS TO THIS TRUST
AGREEMENT AND THE BASIC DOCUMENTS . . . . . . 20
11.1 Supplements Upon Request of the Lessee . . . . 20
11.2 Amendments and Supplements Affecting Owner
Trustee . . . . . . . . . . . . . . . . . . . 20
SECTION 12. TERMINATION OF TRUST, ETC. . . . . . . . . . . 21
SECTION 13. MISCELLANEOUS . . . . . . . . . . . . . . . . . 21
13.1 Legal Title to Owner Trust Estate . . . . . . . 21
13.2 Validity of Sale of Owner Trustee . . . . . . . 21
13.3 Trust Agreement for Benefit of Parties thereto 22
13.4 Notices . . . . . . . . . . . . . . . . . . . . 22
13.5 Severability . . . . . . . . . . . . . . . . . 22
13.6 Waivers, Etc. . . . . . . . . . . . . . . . . . 22
13.7 Counterparts . . . . . . . . . . . . . . . . . 23
13.8 Successors and Assigns . . . . . . . . . . . . 23
13.9 Headings. . . . . . . . . . . . . . . . . . . 23
13.10 Self-Dealing . . . . . . . . . . . . . . . . . 23
13.11 Governing Law . . . . . . . . . . . . . . . . . 23
13.12 No Unauthorized Transactions . . . . . . . . . 23
13.13 Rights and Remedies . . . . . . . . . . . . . . 23
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AMENDED AND RESTATED TRUST AGREEMENT, dated as of
November 17, 1995 (this "Trust Agreement"), among Lord Fuel
Corp., a Delaware corporation, as trustor (herein, together with
its successors and assigns hereunder, called the "Trustor"),
United States Trust Company of New York, a New York corporation,
as trustee (herein, together with its successors and assigns
hereunder, called the "Owner Trustee"), and Jersey Central Power
& Light Company, a New Jersey corporation, Metropolitan Edison
Company, a Pennsylvania corporation, and Pennsylvania Electric
Company, a Pennsylvania corporation, each as lessees under the
Lease Agreements as defined herein (each a "Lessee", together
with their successors and assigns hereunder, called the
"Lessees") and Lord Fuel Corp., as trust beneficiary (herein,
together with its successors and assigns hereunder, called the
"Trust Beneficiary").
RECITALS
A. The Trustor, the Owner Trustee, the Lessees and
the Trust Beneficiary are parties to a certain Trust Agreement
dated as of August 1, 1991 ("Original Trust Agreement") under
which a trust was created for the purpose of enabling the Owner
Trustee to acquire as part of the Trust Estate all of the
outstanding stock of each of TMI-1 Fuel Corp. and Oyster Creek
Fuel Corp, each Delaware corporations (each, a "Company";
together, the "Companies") and the Owner Trustee caused the
Companies to each acquire certain Nuclear Material.
B. Under the Original Trust Agreement, the Lessees
have provided for the direction of the Owner Trustee with respect
to actions to be taken by the Companies pursuant to the Basic
Documents, as defined in the Original Trust Agreement, to provide
for the lease of Nuclear Material thereunder and certain
transactions related thereto.
C. The Original Trust Agreement provided that the
Companies enter into certain loan agreements and ancillary
documents with The Prudential Insurance Company of America and
affiliates thereof ("Prudential") to provide financing from
Prudential for the acquisition of Nuclear Material leased under
the Lease Agreements.
D. Concurrent with the execution and delivery hereof,
the Companies are entering into new credit agreements and related
instruments pursuant to which a bank syndicate, for which Union
Bank of Switzerland, New York Branch will act as agent, will
provide financing for the acquisition of Nuclear Material being
leased under the Lease Agreements.
E. The parties to the Original Trust Agreement desire
to amend and restate such Agreement to reflect necessary
modifications consistent with the establishment of such new
credit facility.
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F. The Owner Trustee is willing to accept the duties
and obligations imposed hereby subject to the terms and
conditions as provided herein.
NOW, THEREFORE, the parties thereby agree as follows:
SECTION 1. DEFINITIONS.
For all purposes of this Trust Agreement, unless the
context requires otherwise, capitalized terms used herein which
are defined in Exhibit A hereto, which is hereby incorporated by
reference for all purposes, shall have the respective meanings
assigned in said Exhibit A.
SECTION 2. AUTHORITY TO EXECUTE AND PERFORM
DOCUMENTS; DECLARATION OF TRUST.
2.1 Execution of Documents and Performance of Duties.
The Trustor hereby authorizes and directs the Owner Trustee
(without any further action, approval, authorization or consent
by Trustor), and the Owner Trustee hereby agrees (a) to maintain
its ownership of all of the authorized capital stock of each of
the Companies, (b) to cause each of the Companies, on such
date(s) as the applicable Lessees shall specify to the Owner
Trustee, to execute and deliver, or accept, as the case may be,
the Basic Documents or amendments thereto to which each of the
Companies shall be a party, in such respective forms as the
applicable Lessees shall approve and as are acceptable to the
Owner Trustee, and thereafter, but only upon written instruction
of the applicable Lessees or in accordance with Section 6 hereof,
to cause each of the Companies to exercise rights, make payments
and expenditures, and perform their duties under such Basic
Documents or amendments thereto, subject to the terms of this
Trust Agreement, and (c) upon written instruction of the
applicable Lessees to the Owner Trustee requesting action by the
Owner Trustee, and only upon such instructions, to do all such
things, and to take all such actions, as may be necessary,
appropriate or convenient to consummate the transactions contem-
plated hereby or to effect the Owner Trustee's performance of its
duties and obligations as the Owner Trustee as contemplated
hereby; provided that such actions are reasonably satisfactory to
the Owner Trustee and its counsel.
2.2 Declaration of Trust. The Owner Trustee hereby
declares that it will hold the Owner Trust Estate in trust upon
the terms and conditions hereinafter set forth for the use and
benefit of the Trust Beneficiary.
2.3 Name of Trust. For convenience of reference, the
trust created hereby may be referred to as the TMI-1 Fuel Corp.
and Oyster Creek Fuel Corp. Fuel Trust. This Trust is also
referred to as the Trust in the Basic Documents.
2.4 No Other Business or Obligation. The Trust shall
not engage in any business or enter in any Obligations other than
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the Basic Documents and the transactions and Obligations contem-
plated by the Basic Documents.
2.5 No Disposition of Owner Trust Estate. Except to
exercise and carry out the rights, duties and obligations of the
Owner Trustee under this Trust Agreement, including its rights to
obtain payment of compensation and indemnification to which it
may be entitled hereunder, the Owner Trustee shall not sell,
assign, transfer, convey, pledge, or otherwise dispose of or
encumber in any manner the Owner Trust Estate, including but not
limited to the stock of each of the Companies, or approve, vote
for, consent to or otherwise agree to the liquidation,
dissolution, merger or consolidation of either of the Companies
except upon the written direction of the applicable Lessees or,
if at such time there are any Outstandings, any Commitments shall
not have been terminated. The Owner Trustee shall cause each of
the Companies to engage solely in the business of acquiring the
Nuclear Material and consummating the transactions contemplated
by the Basic Documents. The Owner Trustee shall not accept from
or permit either of the Companies to pay or to distribute to it
as dividends, or otherwise, any funds or property of either of
the Companies except as provided in Section 5.3 hereof.
SECTION 3. TRUSTOR'S INTEREST.
3.1 Investment by Trustor. Prior to the date of
execution and delivery hereof, the Trustor has made a cash
conveyance to the Trust of $10.00.
3.2 Payment from Proceeds of Owner Trust Estate Only.
Any and all amounts payable by the Owner Trustee with respect to
the Owner Trust Estate and under this Trust Agreement shall be
payable only from the Owner Trust Estate. The Owner Trustee
shall not be personally liable to any Person for any amounts
payable under this Trust Agreement or the Basic Documents or,
except as expressly provided in this Trust Agreement or the Basic
Documents, for any liability under this Trust Agreement and the
Basic Documents.
3.3 Manner of Payment. Amounts payable to the Trust
Beneficiary pursuant to or under this Trust Agreement shall be
paid by the Owner Trustee, in funds of the type received by the
Owner Trustee, in such manner and at such place as the Trust
Beneficiary shall from time to time request in writing, subject
in all events to the terms and conditions of this Trust Agreement
and the Basic Documents.
SECTION 4. ACQUISITION AND FINANCING OF NUCLEAR
MATERIAL.
4.1 Authorization of Transactions. Without limiting
the generality of the authorization and directions contained in
Section 2.1 hereof, the Owner Trustee is hereby authorized and
directed to, and the Owner Trustee agrees that it will, upon the
written direction of the applicable Lessees or in accordance with
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Section 6 hereof and subject to compliance with Section 4.3
hereof, cause the Companies to:
(a) Accept, execute and deliver the Lease Agreements
relating to them and any modification thereof or supplement
thereto and perform all of the obligations and duties, and
exercise all of the rights, of each of the Companies thereunder
(including the giving of notice of termination under Section 8(c)
thereof pursuant to written instructions of the Lessees);
(b) Accept, execute and deliver the Credit Agreements
relating to them and perform all of the obligations and duties,
and exercise, pursuant to written instructions of the Lessees,
all of the rights, of each of the Companies thereunder;
(c) Accept, execute and deliver the Basic Documents
relating to them and perform all of the obligations and duties,
and exercise, pursuant to written instructions of the Lessees,
all of the rights, of each of the Companies thereunder;
(d) Accept, execute and deliver any agreements which
are entered into in accordance with the terms of the Basic
Documents relating to them, and perform all of the obligations
and duties, and exercise, pursuant to written instructions of the
Lessees, all of the rights, of each of the Companies thereunder;
(e) Issue, execute and deliver their Commercial Paper
to the Depositary and issue, execute and deliver their Notes to
the Banks pursuant to the Credit Agreements relating to them, and
apply the proceeds thereof as permitted by the Basic Documents to
which they shall be a party;
(f) Apply the proceeds received from issuance of their
Commercial Paper and Notes as provided in the Basic Documents to
which they shall be a party;
(g) Acquire, pay for, and hold such title to and/or
interest in the Nuclear Material as shall be conveyed to them
pursuant to the Basic Documents to which they shall be a party;
(h) Lease the Nuclear Material relating to them to the
Lessees pursuant to the Lease Agreements to which they shall be a
party;
(i) Grant to the Secured Parties the security
interests provided for in the Security Agreements;
(j) Execute and deliver to their Lessees such agree-
ments, documents, instruments, pledges, chattel mortgages,
security agreements, financing statements and certificates
prepared and submitted to them by their Lessees and perform all
such other acts which (i) each of the Companies is obligated to
execute, deliver or perform, and record or file, under any of the
provisions of the Basic Documents relating to them, or (ii) are
in accordance with written instructions of the applicable Lessees
are necessary or advisable in connection with the transactions
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contemplated by the Basic Documents to which they shall be a
party, or are incidental to or necessary or appropriate to
consummate any such transactions;
(k) Borrow such amounts, including, without
limitation, amounts in respect of the Credit Agreements to which
they shall be a party, and upon such terms and conditions, issue
such drafts, bills of exchange, promissory notes, obligations or
evidences of indebtedness as may be necessary or desirable to
perform their obligations under the Lease Agreements to which
they shall be a party, all as provided under or permitted by the
terms of the Basic Documents to which they shall be a party, and
perform all of the obligations and duties of each of the
Companies thereunder;
(l) Execute and deliver from time to time, such notes,
drafts, instruments, financing statements, continuation
statements, endorsements and certificates as may be required
pursuant to the terms and conditions of the Credit Agreements, or
Collateral Agreements to which they shall be a party;
(m) Perform each of the Companies' duties and,
pursuant to written instructions of the Lessees, pay each of the
Companies' obligations and exercise each of their rights under
each of the aforesaid agreements and documents, including,
without limitation, from time to time, to:
(i) acquire title and dispose of title to
Nuclear Material pursuant to the terms of the Lease
Agreements relating to them and accept invoices and
Bills of Sale and assignments and partial assignments
of Nuclear Material Contracts and other contracts in
respect thereof;
(ii) make payments for Nuclear Material pur-
suant to the terms of the Lease Agreements; and
(iii) take such action as may be reasonably
requested by any Secured Party under the Collateral
Agreements to perfect or maintain the security
interests thereby created or intended to so be created;
(n) Accept, execute and deliver all other instruments,
documents and agreements presented to each of the Companies by
the applicable Lessees; provided that such instruments, documents
and agreements are reasonably satisfactory to the Owner Trustee
and its counsel, and, upon the written instructions of the
applicable Lessees and only upon such instructions, do all such
things and take all such action as may be necessary, appropriate
or convenient to consummate the transactions contemplated herein
and to perform their duties and obligations as contemplated by
the documents referred to herein, provided that such doing,
taking and performing shall be reasonably satisfactory to the
Owner Trustee;
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(o) Execute and deliver such other agreements, accept
the assignment of such other agreements or rights, and acquire
and dispose of such properties and enter into such transactions,
as the applicable Lessees may lawfully request; provided that
such agreements, assignments, acquisitions and transactions are
reasonably satisfactory to the Owner Trustee and to its counsel;
and perform all of the obligations and duties, and exercise all
of the rights, of the Companies under any such agreements,
assignments, rights or transactions;
(p) Deliver to their Lessees copies of any notices
received by the Companies under any Basic Documents or otherwise
relating to the transactions contemplated thereby; and
(q) Agree to execute and deliver amendments,
modifications, and changes in any Basic Documents when requested
by the applicable Lessees or when requested by the parties hereto
other than the applicable Lessees with and only with the written
consent of the applicable Lessees.
The documents referred to in clauses (a) through (q) of
this Section 4.1 shall be executed in substantially the forms
delivered to the Owner Trustee or the Companies by the applicable
Lessees on or after the date hereof, with such changes as shall
be approved by the applicable Lessees.
4.2 Closing Procedures. The Owner Trustee understands
and agrees that at the direction of the applicable Lessees, it
may be obligated to cause either of the Companies from time to
time to take certain action and execute the documents and
instruments to be executed by them (including Commercial Paper
and Notes) prior to the actual issuance of such Commercial Paper
and Notes and deliver such documents and instruments, some of
which shall be undated, to a law firm representing one of the
Lessees or the Banks, to be held in escrow, which law firm shall,
at the time of closing of such transaction, date all undated
documents and instruments so held by it (including Commercial
Paper and Notes) and deliver them to the appropriate Persons,
such delivery to constitute delivery by the Companies or a
Company, as the case may be, at such time. The Owner Trustee
also agrees that it will cause each of the Companies to take such
other action as may be reasonably requested by the applicable
Lessees in order to effect transactions contemplated by the Basic
Documents.
4.3 Conditions to Effecting Transactions. The
authority and obligation of the Owner Trustee to take the action
required by Section 4.1 hereof shall be subject to the
fulfillment to the satisfaction of the Owner Trustee of each of
the conditions precedent to the action specified in the
applicable Basic Documents.
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SECTION 5. RECEIPT, DISTRIBUTION AND APPLICATION OF
INCOME FROM THE OWNER TRUST ESTATE.
5.1 Application of Proceeds of Financings and Specific
Payments. The Owner Trustee shall cause each of the Companies to
promptly pay all amounts received by them from the issuance of
Commercial Paper and Notes as provided in the Basic Documents to
which they shall be a party and to apply all payments received by
them for which provision as to the application thereof is made in
such Basic Documents forthwith to the purpose for which such
payments were made in accordance with the terms of such Basic
Documents.
5.2 Amounts Payable to the Banks. Unless and until
all Outstandings have been paid in full, the Owner Trustee shall
cause the Companies to pay over upon receipt thereof all amounts
received by them pursuant to the Basic Documents to which they
shall be a party (other than Excepted Payments and amounts
received and applied pursuant to Section 5.4) to the Banks.
5.3 Other Amounts. Except as otherwise provided in
Section 5.4 hereof with respect to Excepted Payments, the Owner
Trustee shall cause each of the Companies to distribute or pay
over all amounts received by them pursuant to the Basic Documents
to which they shall be a party that are not applied pursuant to
Section 5.1 hereof or that are not payable to the Banks pursuant
to Section 5.2 hereof in the following order of priority:
First -- such amounts as may be due and owing
to the Owner Trustee hereunder to the Owner Trustee in
reimbursement therefor; and
Second -- the remainder of such amounts shall
be promptly distributed and paid over to the Trust
Beneficiary.
5.4 Excepted Payments. Notwithstanding anything to
the contrary contained in this Section 5, each Excepted Payment
shall be promptly distributed to the Person to whom such Excepted
Payment is owed in accordance with the Basic Documents.
SECTION 6. DUTIES OF THE OWNER TRUSTEE.
6.1 Documents. The Owner Trustee agrees, subject to
the terms of this Trust Agreement, to cause each of the Companies
pursuant to Section 2.1 or 4.1 hereof to perform the duties
imposed upon them by the Basic Documents to which they shall be a
party and the other agreements, documents, instruments and
certificates executed and delivered, and to be executed and
delivered, by them.
6.2 Notice of Default. In the event the Owner Trustee
shall have knowledge of a default or an event of default, or any
event ("potential default event") which would, with the lapse of
time or the giving of notice or both, constitute an event of
default under any Basic Document, the Owner Trustee shall give
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prompt telex, telegraphic or telephonic notice thereof (followed
by prompt written notice in the manner provided in Section 13.4
hereof) to the Trustor, the Lessees and the Secured Parties.
Subject to Section 6.3, the Owner Trustee shall cause each of the
Companies to take such action, and only such action, not
inconsistent with the terms of the Basic Documents to which they
shall be a party, with respect to such default, event of default
or potential default event, as the Owner Trustee or the
applicable Company shall be instructed in writing pursuant to the
Security Agreement to which it is a party. For all purposes of
this Trust Agreement, in the absence of actual knowledge of an
officer in the Corporate Trust Department of the Owner Trustee
who is also an officer or director of either of such Companies,
the Owner Trustee shall not be deemed to have knowledge of a
default, event of default or potential default event, unless and
until notified thereof in writing by the Administrative Agent, a
Secured Party or the Lessee. The Owner Trustee shall have no
duty to inquire as to whether a default, event of default or
potential default event has occurred.
6.3 Indemnification; Legal Action. The Owner Trustee
shall not be required to take any action or refrain from taking
any action under Section 6.2 hereof, or any action which in its
opinion may involve expense or liability to the Owner Trustee,
unless it and each of the applicable Companies, if required, and
the directors, officers, employees and agents of the Owner
Trustee and each of the applicable Companies, if required, shall
have been indemnified by the Banks, in manner and form
satisfactory to the Owner Trustee, against any liability, cost or
expense (including reasonable counsel fees) which may be incurred
in connection with such action or inaction. The Owner Trustee
shall not take any action under Section 6.2 hereof, nor shall any
other provision of this Trust Agreement be deemed to impose a
duty on the Owner Trustee to take any action, if the Owner
Trustee shall reasonably determine, or shall have been advised by
counsel, that such action is contrary to the provisions of this
Trust Agreement or any other Basic Document, or is contrary to
law.
6.4 No Implied Duties. The Owner Trustee shall not
have any duty or obligation to cause either of the Companies to
manage, control, use, sell, dispose of or otherwise deal with the
Nuclear Material or any part thereof or any other part of its
property, or, either in its individual capacity or as trustee,
otherwise to cause either of the Companies to take or refrain
from taking any action under or in connection with this Trust
Agreement or any other Basic Document to which they shall be a
party, except as expressly provided by the provisions of this
Trust Agreement or any other Basic Document to which they shall
be a party, or as expressly provided in written instructions
pursuant to this Section 6 or Section 7.7 hereof and reasonably
satisfactory to the Owner Trustee and its counsel, and shall not
cause either of the Companies to take or refrain from taking any
such action unless expressly so provided or instructed; and no
implied duties or obligations which are additional to the
obligations and duties contained in such Basic Documents shall be
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read into this Trust Agreement or the other Basic Documents
against the Owner Trustee. The United States Trust Company of
New York, in its individual capacity, nevertheless agrees that it
will, at its own cost and expense, promptly take such action as
may be necessary duly to discharge any Liens other than Permitted
Liens or any part of the property of either Company or the Owner
Trust Estate (a) resulting from any claim against the Owner
Trustee in its individual capacity arising out of events or
conditions not related to or connected with the ownership of the
Owner Trust Estate, the administration of the Owner Trust Estate
or any other transaction contemplated by any of the Basic
Documents or (b) resulting from any voluntary action of the Owner
Trustee which (i) is taken other than pursuant to the
instructions of either of the Lessees or the Secured Parties and
(ii) is not taken as the result of any default by any of the
Lessees under any Basic Documents or in the performance of the
obligations of either of the Companies under any Basic Document
to which either of the Companies shall be a party. Nothing in
this Section 6.4 shall be construed to affect the legality,
validity or enforceability of the obligations of either of the
Companies under the Basic Documents to which they shall be a
party or to restrict the rights and remedies available against
either of the Companies under such Basic Documents.
6.5 No Unauthorized Transactions. The Owner Trustee
agrees that it will not cause or permit either of the Companies
to manage, control, use, sell, dispose of or otherwise deal with
any part of the Nuclear Material or any other part of its
property except (a) as expressly permitted or required by the
terms of any Basic Document to which they shall be a party, (b)
in accordance with the powers granted to or the authority
conferred on the Owner Trustee pursuant to this Trust Agreement
or (c) in accordance with written instructions pursuant to this
Section 6 or Section 7.7 hereof.
SECTION 7. THE OWNER TRUSTEE.
7.1 Acceptance of Trust, Etc.
(a) The Owner Trustee accepts the trusts hereby
created and agrees to perform the same upon the terms of this
Trust Agreement, and agrees to disburse any and all moneys and
property received by it constituting part of the Owner Trust
Estate in accordance with the terms of this Trust Agreement.
(b) The Owner Trustee and any of its officers,
employees, agents or representatives serving as an officer or
director of either of the Companies shall not be answerable or
accountable under any circumstances except for their or such
Person's own willful misconduct or gross negligence. The Owner
Trustee shall not be liable for any loss, damage, liability,
claim, cost or expense (including reasonable counsel fees and
expenses) incurred by or asserted against the Trustor, the Trust
Beneficiary, any Lessee, or either of the Companies (whether
resulting from any diminution of the Owner Trust Estate by reason
of a claim against the Owner Trust Estate or otherwise) except
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for such losses, damages, liability, claims, costs, or expenses
caused by (i) the willful misconduct or gross negligence of the
Owner Trustee, (ii) the Owner Trustee's failure to discharge
Liens pursuant to the penultimate sentence of Section 6.4 hereof,
(iii) the inaccuracy of any of the representations or warranties
contained in Section 7.3 of this Trust Agreement, (iv) taxes,
fees or other governmental charges imposed on the Owner Trustee,
based on or measured by any fees, commissions or compensation
received by it for services rendered in connection with any of
the transactions contemplated by the Basic Documents and (v) its
failure to use the degree of care of a reasonable corporate
trustee to disburse moneys actually received by it in accordance
with the terms hereof.
(c) Whether or not expressly so provided, every
provision of this Trust Agreement relating to the conduct or
affecting the liability of or affording protection to the Owner
Trustee shall be subject to the provisions of Section 7.1(b)
hereof.
7.2 Limitation of Duties.
The Owner Trustee shall have no duty itself and no duty
to cause either Company (i) to see to any recording or filing of
this Trust Agreement or of any Basic Document or of any other
document referred to herein or therein or with respect to any
security interest or lien, or to see to the maintenance of any
such recording or filing, (ii) to see to any insurance on the
Nuclear Material or to effect or maintain any such insurance,
whether or not the Lessee shall be in default with respect
thereto, other than to receive and forward to the Collateral
Agent any notices, policies, certificates or binders received by
the Owner Trustee or either of the Companies pursuant to the
Lease Agreements, (iii) except as provided in the penultimate
sentence of Section 6.4 hereof, to see to the payment or
discharge of any tax, assessment or other governmental charge or
any Lien of any kind owing with respect to, assessed or levied
against any part of the Owner Trust Estate or property of either
Company, or any fees or charges in connection therewith, other
than to forward notice of such tax, assessment or other
governmental charge or Lien received by the Owner Trustee to the
applicable Lessees, (iv) to monitor the receipt of or confirm or
verify any financial statements of a Lessee or (v) to inspect the
Nuclear Material at any time or ascertain or inquire as to the
performance or observance of any of a Lessee's covenants under
the Lease Agreement or any other Basic Documents. Notwith-
standing the foregoing, the Owner Trustee will furnish to the
applicable Lessees, promptly upon receipt thereof, duplicates of
all reports, notices, requests, demands, certificates and other
instruments furnished to the Owner Trustee or either of the
Companies under any of the Basic Documents to which they shall be
a party unless any such document or accompanying documentation
shall state that such document has previously been furnished
directly to such Lessees.
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7.3 Representations and Warranties of Owner Trustee.
THE OWNER TRUSTEE MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR
IMPLIED, AS TO THE VALUE, CONDITION, DESIGN, OPERATION, QUALITY,
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF ANY PART
OF THE NUCLEAR MATERIAL, OR AS TO THE OWNER TRUSTEE'S OR A
COMPANY'S TITLE THERETO, OR LEASEHOLD INTEREST THEREIN, OR ANY
OTHER REPRESENTATION OR WARRANTY WITH RESPECT TO THE NUCLEAR
MATERIAL WHATSOEVER, EXCEPT that the Owner Trustee hereby
represents, warrants and covenants to the applicable Lessees that
the Owner Trustee shall have caused each of the Companies to have
accepted whatever title to or leasehold interest in the Nuclear
Material as was conveyed to it.
7.4 Deposit of Funds. Moneys received by the Owner
Trustee or a Company may be deposited with the Owner Trustee
under such general conditions as may be prescribed by law in the
general banking department of the Owner Trustee and the Owner
Trustee shall not be liable for any interest thereon except as
may be agreed to by it.
7.5 Reliance on Documents; Agents; Right to Consult
with Counsel and Others; Etc.
(a) The Owner Trustee shall not be liable to the
Trustor, Lessees, the Beneficiary or others who are or may be
parties to agreements with the Owner Trustee in acting upon any
writing or oral notification; including but not limited to,
instructions from the Beneficiary, the applicable Lessee
(pursuant to the Lease Agreements), or such other parties and
certificates of any officer thereof, letters, facsimile
transmissions, telexes, telegrams and cablegrams, in assuming the
truth and correctness of any statement, opinion or assertion of
any nature therein, provided, however, that any such writing or
oral notification is believed by the Owner Trustee to be genuine
and to have been sent or communicated by or on behalf of a party
or parties to the Basic Documents.
(b) The Owner Trustee shall not incur any liability to
anyone in acting in reliance upon any signature, instrument,
notice, resolution, request, consent, telegram, order,
certificate, report, opinion, bond or other document or paper
believed by it in good faith to be genuine and believed by it in
good faith to be signed by the proper party or parties. The
Owner Trustee may accept a copy of a resolution of the Board of
Directors (or the Executive Committee thereof) of any party,
certified by the Secretary or an Assistant Secretary of the same
as duly adopted and in full force and effect as conclusive
evidence that such resolution has been duly adopted by said Board
of Directors (or Executive Committee thereof) and that such
resolution is in full force and effect. As to any fact or matter
the manner of ascertainment of which is not specifically
prescribed herein, the Owner Trustee may for all purposes hereof
rely as to such fact or matter on an Officer's Certificate as to
such fact or matter, and such an Officer's Certificate shall
constitute full protection to the Owner Trustee for any action
taken or omitted to be taken by it in good faith in reliance
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thereon. In the administration of the trusts hereunder the Owner
Trustee may execute any of the trusts or powers hereof and
perform its powers and duties hereunder directly or through
agents or attorneys and may, at the expense of the Owner Trust
Estate (unless such person is regularly in the Owner Trustee's
employ), consult with counsel, accountants and other skilled
persons of generally accepted competence to be selected and
retained by it, and the Owner Trustee shall not be liable for
anything done, suffered or omitted in good faith by it in
accordance with the advice or opinion of any such counsel,
accountants or other skilled persons (unless such person is
regularly in the Owner Trustee's employ), provided such thing is
not contrary to this Trust Agreement and such advice or opinion
interprets or applies to this Trust Agreement.
7.6 Not Acting in Individual Capacity. In accepting
the trusts hereby created, the Owner Trustee acts solely as
trustee hereunder and not in its individual capacity and all
Persons, other than as provided in Section 7.1(b) herein, having
any claim against the Owner Trustee by reason of the transactions
contemplated hereby shall look only to the Owner Trust Estate for
payment or satisfaction thereof.
7.7 Interpretation of Trust Agreement. In the event
that the Owner Trustee is uncertain as to the application of any
provision of this Trust Agreement, or such provision is ambiguous
as to its application or is, or appears to be, in conflict with
any other applicable provision hereof, or in the event that this
Trust Agreement permits any determination by the Owner Trustee or
is silent or incomplete as to the course of action which the
Owner Trustee is required to take with respect to a particular
set of facts, the Owner Trustee may seek instructions from the
applicable Lessees and shall not be liable to any Person to the
extent that its acts in good faith in accordance with the
instructions of such Lessees.
7.8 Compensation. The applicable Lessees shall pay to
the Owner Trustee, and the Owner Trustee shall be entitled to
receive from the applicable Lessees, reasonable compensation for
its services, including without limitation, services in causing
each of the Companies to take actions hereunder, and
reimbursement for its expenses hereunder, which fees shall not be
limited by any provisions of law with respect to the trustee of
an express trust. No separate fee shall be chargeable to a
Company except as provided in the Basic Documents to which they
shall be a party.
7.9 Books, Records and Tax Returns.
(a) Except for financial statements and tax returns,
the Owner Trustee shall be responsible for the keeping of all
books and records relating to the receipt and disbursement of all
moneys under this Trust Agreement. The Owner Trustee agrees to
prepare, sign and/or file and to cause each of the Companies to
prepare, sign and/or file all returns and reports with respect to
taxes (including but not limited to tax returns and any
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information, returns or reports for each of the Companies and the
Trust, if any) as the applicable Lessees shall direct with
respect to all transactions encompassed by the Basic Documents as
provided in this Section 7.9. The Owner Trustee shall keep
copies of all returns delivered to it or filed by it. The Owner
Trustee shall not be personally liable for any tax due and
payable in connection with this Trust Agreement or any other
Basic Document except for any such tax arising from its own
willful misconduct or gross negligence and except for any tax
based on or measured by amounts paid to the Owner Trustee as fees
or compensation in connection with the transactions contemplated
hereby pursuant to Section 7.8 hereof or otherwise.
(b) In addition, the Owner Trustee shall be
responsible for certain administrative activities to be performed
on behalf of the Companies including (i) receiving and causing
the Company to countersign Leasing Records; (ii) receiving
invoices relating to Nuclear Material Contracts; (iii) receiving
and causing the Company to approve administrative invoices
relating to the Companies; (iv) receiving monthly rate notices
from the Banks with respect to the payment of Outstandings and
causing the Company to forward copies to Lessees; (v) receiving
periodic reports from Lessee as described in Section 20 of the
Lease Agreements; (vi) maintaining records of the Stipulated
Casualty Value of Nuclear Material under the Lease Agreements and
the limitations on such Stipulated Casualty Value as set forth in
Section 4 of the Lease Agreements; (vii) preparing and
maintaining all books of account of the Companies; and (viii)
performing any other duties as may be agreed upon in writing with
the applicable Lessees.
(c) The Owner Trustee shall retain Coopers & Xxxxxxx
L.L.P. or another firm of certified accountants of nationally
recognized standing to prepare financial statements for the
Companies and to prepare and file with all appropriate
governmental authorities all returns and reports with respect to
taxes (including but not limited to tax returns and any
information, returns or reports for each of the Companies and the
Trust, if any) as the applicable Lessees shall direct with
respect to all transactions encompassed by the Basic Documents on
behalf of the Companies and the Trust. The applicable Lessees
shall be responsible for payment of such firm in connection with
the performance of such services.
7.10 Effect of Sales by a Company. Any sale of all or
part of the Nuclear Material or other property owned by either of
the Companies which the Owner Trustee causes such Company to make
shall bind the Trust and the Trust Beneficiary and shall be
effective for the benefit of the purchasers thereof and their
respective successors and assigns to divest and transfer all
right, title and interest in the property so sold, and no such
purchasers shall be required to inquire as to compliance by the
Owner Trustee with any of the terms of this Trust Agreement or to
see to the application of any consideration paid for such
property; provided, however, that, except in the case of the
security interest in the Nuclear Material granted by either of
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the Companies to the Secured Parties, the Owner Trustee shall not
cause or permit such Company to make any sale or other transfer
of title to or right to possession or use of any part of the
Nuclear Material (other than pursuant to the Lease Agreements to
which it shall be a party) unless and until the Owner Trustee
shall have received from the proposed transferee an opinion of
counsel, satisfactory to the Owner Trustee, that such transferee
has obtained all permits, licenses, consents, approvals and
authorizations necessary for such sale or other transfer, and
that such sale or other transfer will not otherwise violate any
applicable law or regulations; provided, further, that notice of
such sale and a copy of such opinion of counsel shall be given to
the Secured Parties; and provided, further, that, except as
expressly permitted by the Collateral Agreements to which they
shall be a party, the Owner Trustee shall have no right or power
itself and shall not cause or permit either Company to sell or
otherwise transfer title to or the right to possession or use of
any part of the Nuclear Material other than to their Lessees or
the designees thereof pursuant to the Lease Agreements to which
they shall be a party.
7.11 Exculpatory Provisions. Except for those set
forth in Section 7.3, the Owner Trustee shall not be responsible
in any manner whatsoever for the correctness of any recitals,
statements, representations or warranties contained herein or in
the Basic Documents, all of which are made solely by each of the
Companies. The Owner Trustee makes no representations as to the
value or condition of the Collateral or any part thereof, or as
to the title of either Company to the Collateral (other than as
provided in Section 7.3) or as to the security afforded by the
Collateral Agreements, or as to the validity, execution,
enforceability, legality or sufficiency hereof or of the
Collateral Agreements, and the Owner Trustee shall incur no
liability or responsibility in respect of any such matters. The
Trust Agreement and any other document executed and delivered by
the Owner Trustee in connection herewith is intended to be a
corporate obligation of the Owner Trustee only. Therefore,
anything contained in the Trust Agreement, the Lease Agreements,
the Credit Agreements, the Security Agreements and any other
document to the contrary notwithstanding, no recourse may be made
by the Trust Beneficiary, the Lessees, any of the Secured Parties
or any other Person against any incorporator, shareholder (direct
or indirect), Affiliate, director, officer, employee or agent of
the Owner Trustee with respect to claims against the Owner
Trustee arising under or relating to this Trust Agreement;
provided, however, that nothing in this Section 7.11 shall
relieve the Owner Trustee from its corporate obligations under
this Trust Agreement.
SECTION 8. INDEMNIFICATION OF THE OWNER TRUSTEE, THE
TRUSTOR AND THE TRUST BENEFICIARY.
The Lessees agree (whether or not any of the
transactions contemplated hereby are consummated) to assume
liability for, and do hereby indemnify, protect, save and keep
harmless the Owner Trustee, the Trustor and the Trust Beneficiary
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and each of their successors, assigns, agents, representatives
and servants, in the case of the Owner Trustee including but not
limited to its employees, agents, representatives or designees
acting as officers or directors of either of the Companies, (the
Owner Trustee, the Trustor and the Trust Beneficiary and such
others being collectively referred to as the "Indemnified
Persons") from and against, any and all liabilities, obligations,
losses, damages, taxes (except as set forth below), penalties,
claims, actions, suits, costs, expenses and disbursements
(including reasonable legal fees and disbursements) of any kind
and nature whatsoever (for purposes of this Section 8,
collectively referred to as "Liabilities") which may be imposed
on, incurred by or asserted at any time against the Indemnified
Persons (whether or not also indemnified against by any other
Person under any other document) in any way relating to or
arising out of the administration of the Owner Trust Estate or
the action or inaction of the Indemnified Persons in connection
with the provisions hereof or: (a) the manufacture, design,
acquisition, construction, installation, ownership, purchase,
acceptance, nonacceptance, possession, use, operation, condition,
sale, lease, sublease or other disposition of the Nuclear
Material or Owner Trust Estate property or any part thereof,
including, without limitation, (i) latent and other defects,
whether or not discoverable, (ii) any claim, for patent,
trademark or copyright infringement, (iii) loss of or damage to
any property or the environment, (iv) death of or injury to any
person and (v) tort claims of any kind; or (b) this Trust
Agreement or any of the Basic Documents or any other document
referred to herein or therein pertaining to the transactions
contemplated hereby and thereby, or the enforcement of any of the
terms hereof or thereof; except only that the Lessees shall not
be required to indemnify the Indemnified Persons for: (A)
Liabilities resulting solely from willful misconduct or gross
negligence on the part of the Indemnified Persons; and (B)
Liabilities resulting from matters from which the Owner Trustee
is not exculpated pursuant to the last sentence of Section 7.1(b)
hereof. Notwithstanding anything in this Trust Agreement to the
contrary, the Lessees shall have no obligation whatsoever to the
Indemnified Persons for any Liabilities with respect to, or
resulting from, any taxes based on or measured by amounts paid to
the Owner Trustee as fees or compensation in connection with the
transactions contemplated hereby pursuant to Section 7.8 hereof
or otherwise. With respect to any taxes for which the Lessees
are liable to the Indemnified Persons under this Section 8 (the
"Indemnified Taxes"), the Indemnified Persons shall be obligated
to claim, on a timely basis, any refund to which they may be
entitled with respect to any Indemnified Taxes, to take all steps
necessary to diligently prosecute such claim, and to pay over to
the Lessees any refund (and any interest thereon) recovered by
them as soon as practicable after receipt thereof. The indemni-
ties, rights and obligations contained in this Section 8 shall
survive the termination of this Trust Agreement. The Owner
Trustee shall be entitled to indemnification from the Owner Trust
Estate for any Liabilities indemnified against pursuant to this
Section 8 to the extent not reimbursed by the applicable Lessees
or any other Person; and to secure the same the Owner Trustee
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shall have a lien on the Owner Trust Estate prior to any interest
therein of the Trust Beneficiary but subject and subordinate to
the lien of the Collateral Documents upon the Nuclear Material
and other property of the Companies.
SECTION 9. CO-TRUSTEES, SEPARATE TRUSTEES.
(a) At any time, for the purposes of conforming to the
legal requirements or restrictions of any jurisdiction in which
any part of the Owner Trust Estate (owned directly or indirectly)
may at the time be located and subject to the prior receipt of
all necessary governmental approvals and consents, the Owner
Trustee shall have the power to appoint one or more Persons
approved by the Lessees either to act as a co-trustee or co-
trustees, jointly with the Owner Trustee, of all or any part of
the Owner Trust Estate, or to act as separate trustee or trustees
of any property constituting part of the Owner Trust Estate, in
either case with such powers as may be provided in the instrument
of appointment, and to vest in such Person or Persons, in the
capacity as aforesaid, any property, title, right or power deemed
necessary or desirable, subject to the remaining provisions of
this Section 9.
(b) Every co-trustee or separate trustee shall, to the
extent permitted by law, be appointed subject to the following
terms:
(i) All rights, powers, duties and obligations
conferred upon the Owner Trustee in respect of the
receipt, custody and payment of moneys shall be
exercised solely by the Owner Trustee;
(ii) All other rights, powers, duties and obliga-
tions conferred or imposed upon the Owner Trustee
hereby or by any Basic Document to which the Owner
Trustee shall be a party shall be conferred or imposed
upon and exercised or performed by the Owner Trustee or
by the Owner Trustee and such co-trustee or co-trustees
or separate trustee or separate trustees jointly, as
shall be provided in the instrument appointing such co-
trustee or co-trustees or separate trustee or separate
trustees, except to the extent that, under the law of
any jurisdiction in which any particular act or acts
are to be performed, the Owner Trustee shall be
incompetent or unqualified to perform such act or acts,
in which event such rights, powers, duties and
obligations shall be exercised and performed by such
co-trustee or co-trustees or separate trustee or
separate trustees;
(iii) The Owner Trustee at any time, by an
instrument in writing executed by it, may accept the
resignation of or remove any co-trustee or separate
trustee appointed under this Section 9, and a successor
to any co-trustee or separate trustee so resigned or
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removed may be appointed in the manner provided in this
Section 9;
(iv) No trustee hereunder shall be personally
liable by reason of any act or omission of any other
trustee hereunder except, in the case of the Owner
Trustee, if a co-trustee or separate trustee is an
employee of the Owner Trustee;
(v) No power given hereby to any such co-trustee
or separate trustee shall be separately exercised
hereunder by such co-trustee or separate trustee except
with the consent in writing of the Owner Trustee,
anything herein contained to the contrary
notwithstanding. The power to vote or appoint proxies
to vote with respect to any shares of the capital stock
of the Company shall be exercised solely by the Owner
Trustee itself or its successor Owner Trustees
hereunder.
(c) Any notice, request or other writing delivered to
the Owner Trustee shall be deemed to have been delivered to all
of the then co-trustees or separate trustees as effectively as if
delivered to each of them. Every instrument appointing any
trustee or trustees other than a successor to the original Owner
Trustee shall refer to this Section 9 and the conditions
expressed herein. Upon the acceptance in writing of such
appointment by any such co-trustee or separate trustee, he, she
or it shall be vested with the estate or property specified in
the instrument of appointment jointly with the Owner Trustee
(except insofar as local law makes it necessary for any such co-
trustee or separate trustee to act alone) subject to all the
provisions of this Trust Agreement. Each such acceptance shall
be filed with the Owner Trustee with copies to the Trust
Beneficiary, the Lessees and the Secured Parties. Any co-trustee
or separate trustee may, at any time by an instrument in writing,
constitute the Owner Trustee his or its agent and attorney-in-
fact, with full power and authority to do all acts and things and
to exercise all discretion on his or its behalf and in his or its
name. In case any co-trustee or separate trustee shall die or be
dissolved, become incapable of acting, resign or be removed, all
the estates, properties, rights, powers, trusts, duties and
obligations of said co-trustee or separate trustee, as far as
permitted by law, shall vest in and be exercised by the Owner
Trustee without the appointment of a new trustee as successor to
such co-trustee or separate trustee.
(d) Any and all exculpatory provisions, immunities and
indemnities in favor of the Owner Trustee under this Trust
Agreement or under any other agreement, document or instrument
described or referred to which apply to the Owner Trustee shall
also apply to any co-trustees and separate trustees appointed
pursuant to this Section 9.
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SECTION 10. SUCCESSOR TRUSTEES.
(a) The Owner Trustee or any successor thereto may
resign without cause at any time by giving at least 90 days'
prior written notice to the Trust Beneficiary, the Lessees and
the Secured Parties. Any such resignation shall become effective
upon acceptance of appointment by the successor Owner Trustee
under Section 10(c) hereof. In addition, the Lessees may at any
time remove the Owner Trustee with or without cause by an
instrument in writing delivered to the aforesaid Persons and to
the Owner Trustee, such removal to be effective upon the
acceptance of appointment by the successor Owner Trustee under
Section 10(c) hereof; provided, however, that if an Event of
Default under the Lease Agreements has occurred and is
continuing, such removal shall be effective only with the consent
of the Secured Parties. In the case of the resignation or
removal of the Owner Trustee, the Lessees may appoint, by an
instrument in writing, with copies to the Secured Parties, a
successor Owner Trustee. If a successor Owner Trustee shall not
have been appointed and accepted its appointment under Section
10(c) hereof within 60 days after such written notice of such
resignation or such delivery of the notice relating to such
removal, the Owner Trustee or the Lessees may apply to any court
of competent jurisdiction to appoint a successor Owner Trustee to
act until such time, if any, as a successor Owner Trustee shall
have accepted its appointment as above provided. Any successor
Owner Trustee so appointed by such court shall immediately and
without further act be superseded by any successor Owner Trustee
appointed by the Lessees as above provided.
(b) Should the Person then serving as Owner Trustee
hereunder (a) cease its activities or cease doing business as a
going concern (other than pursuant to a transaction described in
Section 10(e) hereof), or (b) become incapable of acting as such,
or (c) make an assignment for the benefit of creditors, or (d)
admit in writing his or its inability to pay its debts as they
become due or (e) file a voluntary petition in bankruptcy, or (f)
be adjudicated a bankrupt or insolvent or have an order for
relief entered against it in any proceeding under the Bankruptcy
Reform Act of 1978, as amended, or any law with respect to
bankruptcy, insolvency or reorganization that is a successor
thereto, or (g) file a petition seeking for itself any
reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar arrangement under any present
or future statute, law or regulation, or (h) file an answer
admitting the material allegations of such a petition filed
against it in any such proceeding, or (i) consent to or acquiesce
in the appointment of a trustee, receiver or liquidator of him or
it or all or any substantial part of its assets or properties, or
(j) take any action looking to its dissolution or liquidation, or
(k) be subject to any proceeding against it seeking
reorganization, arrangement, readjustment, liquidation,
dissolution or similar relief under any present or future
statute, law or regulation, which proceeding is not dismissed
within forty-five (45) days after commencement thereof, or (1) be
subject to the appointment, without its consent or acquiescence,
of any trustee, receiver or liquidator of it or all or any
substantial part of its assets or properties, which appointment
- 18 -
is not vacated within forty-five (45) days after the date
thereof, then such Person shall be deemed to have resigned as
Owner Trustee hereunder effective immediately prior to the
occurrence of any matter specified in items (a) through (j)
above, or, in the event of the occurrence of any of the matters
specified in items (k) or (l) above, immediately prior to the
expiration of the 45-day period specified therein. Upon any
resignation of the Owner Trustee, the Lessees shall appoint a
successor trustee hereunder.
(c) Any successor Owner Trustee, whether appointed by
a court or by the Lessees or otherwise, shall execute and deliver
to the predecessor Owner Trustee an instrument accepting such
appointment, and thereupon such successor Owner Trustee, without
further act, shall become vested with all the estates,
properties, rights, powers, duties, obligations and trusts of the
predecessor Owner Trustee with like effect as if originally named
as Owner Trustee herein; but nevertheless, upon the written
request of such successor Owner Trustee, such predecessor Owner
Trustee shall execute and deliver an instrument transferring to
such successor Owner Trustee, subject to its lien pursuant to
Section 8 of this Trust Agreement and payment of any amounts due
the predecessor Owner Trustee, upon the trusts herein expressed,
all the estates, properties, rights, powers and trusts of such
predecessor Owner Trustee hereunder (including, without
limitation, all such instruments, in proper form for recording
where appropriate as may be necessary or appropriate to transfer
the Owner Trust Estate to such successor Owner Trustee), and such
predecessor Owner Trustee shall duly assign, transfer, deliver
and pay over to such successor Owner Trustee certificates
representing all of the issued and outstanding capital stock of
each of the Companies registered in the name of the Owner Trustee
and all moneys or other property then held by such predecessor
Owner Trustee upon the trusts herein expressed, and shall deliver
to such successor Owner Trustee any and all records or copies
thereof, in respect of the Trust or the Owner Trust Estate which
it may have.
(d) Any successor Owner Trustee, however appointed,
shall be a Qualified Institution if there be such an institution
willing, able and legally qualified to perform the duties of the
Owner Trustee hereunder upon reasonable or customary terms;
provided, however, that the appointment of such Qualified
Institution as successor Owner Trustee shall not violate any
provision of any law or regulation or create a relationship which
would be in violation thereof, and that all consents and
approvals of, and filings and declarations with, any governmental
authority which are necessary in connection with such appointment
shall have been obtained or made and shall be in full force and
effect.
(e) Any corporation into which the Owner Trustee in
its individual capacity may be merged or converted or with which
it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Owner Trustee in
its individual capacity shall be a party, or any corporation to
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which all or substantially all the corporate trust business of
the Owner Trustee in its individual capacity may be transferred,
shall, subject to the terms of Section 10(d) hereof, be Owner
Trustee under this Agreement without further act.
SECTION 11. SUPPLEMENTS AND AMENDMENTS TO THIS TRUST
AGREEMENT AND THE BASIC DOCUMENTS.
11.1 Supplements Upon Request of the Lessee. Subject
to Section 11.2 hereof and any applicable provision of the Basic
Documents (including but not limited to the Credit Agreements),
at any time and from time to time, upon the written request of
the Lessees, (a) the Owner Trustee together with the Lessees,
with the consent of the Trustor, shall execute an amendment or
supplement hereto for the purpose of adding provisions to, or
changing or eliminating provisions of, this Trust Agreement as
specified in such request and (b) the Owner Trustee shall cause
either of the Companies to enter into such written amendment of
or supplement to any of the Basic Documents to which they shall
be a party or other documents referred to in any thereof as the
other party or parties to any such instrument may agree to and as
may be specified in such request, or execute and delivery such
written waiver or modification of the terms of any such
instrument as may be specified in such request; provided,
however, that no such amendment or supplement shall extend the
maximum term of this Trust beyond the term provided for by
Section 12 hereof. It shall not be necessary for any such
written request to specify the particular form of the proposed
document to be executed, but it shall be sufficient if such
request shall indicate the substance thereof. Except as
expressly provided herein, the Owner Trustee and the Trustor need
not consent to, approve, or join in any such amendment or
supplement for it to be valid and effective; provided, however,
that no such amendment or supplement may increase any duties or
responsibilities of the Owner Trustee or affect any immunity or
indemnity in its favor under this Trust Agreement or any of the
Basic Documents or increase its duties or obligations hereunder
or thereunder without the Owner Trustee's written consent.
11.2 Amendments and Supplements Affecting Owner
Trustee. If in the opinion of the Owner Trustee any document
required to be executed pursuant to the terms of Section 11.1
hereof affects any immunity or indemnity in its favor under this
Trust Agreement or any of the Basic Documents or increases its
duties or obligations hereunder or thereunder, the Owner Trustee
may in its discretion decline to execute such document.
SECTION 12. TERMINATION OF TRUST, ETC.
This Trust Agreement and the Trust created hereby shall
terminate and this Trust Agreement shall be of no further force
and effect upon the earlier of (i) the payment in full of all
Outstandings under the Credit Agreements and the expiration or
termination of all Commitments, and the sale or other final
disposition by the Secured Parties and/or the Owner Trustee and
each of the Companies, as the case may be, of all property
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consisting of the Owner Trust Estate and property of each of the
Companies and the final distribution by the Secured Parties
and/or the Owner Trustee and each of the Companies, as the case
may be, of all moneys and other property or proceeds constituting
a part of the Owner Trust Estate and property of each of the
Companies in accordance with the terms of this Trust Agreement
and/or the Collateral Agreements, as the case may be; provided
that at such time the Lessee shall have fully complied with all
of the terms of the Basic Documents, or (ii) twenty-one years
less one day after the death of the life of the last survivor of
the members of the Board of Directors of General Public Utilities
Corporation now in office and their children, living on the date
hereof. Otherwise, this Trust Agreement and the Trust created
hereby shall continue in full force and effect in accordance with
the terms hereof. If the Trust shall terminate by operation of
law prior to its intended termination, the Owner Trustee and the
Trustor agree to take all reasonable actions to extend or reform
the Trust. Upon termination of the Trust, the funds held in the
Owner Trust Estate shall be distributed as provided in Section 5
of this Trust Agreement and all other property in the Owner Trust
Estate including but not limited to all of the stock of the
Companies, shall be assigned and distributed to the Trust
Beneficiary, or as otherwise then directed in writing by the
Trust Beneficiary.
SECTION 13. MISCELLANEOUS.
13.1 Legal Title to Owner Trust Estate. No Person
other than the Owner Trustee shall have legal title to any part
of the Owner Trust Estate. No transfer, by operation of law or
otherwise, of any right, title or interest of any Person in and
to the Owner Trust Estate or hereunder shall operate to terminate
this Trust Agreement or the trusts hereunder to entitle any
successor or transferee of such Person to an accounting or to the
transfer to it of legal title to any part of the Owner Trust
Estate.
13.2 Validity of Sale of Owner Trustee. Any sale or
other conveyance of the Nuclear Material or other property of
either Company or Owner Trust Estate property or any part thereof
by such Company or the Owner Trustee made pursuant to the terms
of this Trust Agreement or the Lease Agreement or any other Basic
Documents to which such Company is a party shall bind each Person
having any right, title or interest in such Nuclear Material,
other property, or Owner Trust Estate, and shall be effective to
transfer or convey all right, title and interest of either
Company, the Owner Trustee and such Persons in and to the Nuclear
Material or leasehold interest or any part thereof. No purchaser
or other grantee shall be required to inquire as to the
authorization, necessity, expediency or regularity of such sale
or conveyance or as to the application of any sale or other
proceeds with respect thereto by either Company or the Owner
Trustee.
13.3 Trust Agreement for Benefit of Parties thereto.
Nothing in this Trust Agreement, whether expressed or implied,
- 21 -
shall be construed to give to any Person, other than the Owner
Trustee, the Trustor, the Lessees and the Trust Beneficiary any
legal or equitable right, remedy or claim under or in respect of
this Trust Agreement or the Owner Trust Estate, and this Trust
Agreement shall be for the sole and exclusive benefit of such
Persons. Notwithstanding the foregoing sentence, the Companies
shall be third party beneficiaries of Section 7.1(b).
13.4 Notices. Unless otherwise expressly specified or
permitted by the terms hereof, all notices and other
communications hereunder shall be in writing, personally
delivered or mailed by certified mail, postage prepaid or
telegraphed, telecopied or telexed and (a) if to the Trustor,
addressed to it at c/o Lord Securities Corporation, 0 Xxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Fax: (212) 316-
9012, Attention: Vice President; (b) if to the Owner Trustee,
addressed to it at the principal office of the Owner Trustee at
United States Trust Company of New York, 000 Xxxx 00xx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust and Agency
Division, Fax: (000) 000-0000; (c) if to the Lessees, addressed
to them at Jersey Central Power & Light Company, 000 Xxxxxxx
Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000, Attention: Comptroller; and
Metropolitan Edison Company and Pennsylvania Electric Company,
0000 Xxxxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxx 00000, Attention:
Comptroller; with a copy to GPU Service Corporation, 000
Xxxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000, Attention:
Assistant Treasurer; (d) if to the Trust Beneficiary, addressed
to it at the same address as the Trustor; and (e) if to the
Secured Parties, addressed to them as described in the Security
Agreements or (f) as to any such party, at such other address as
such party shall have furnished to the other party. Each notice
shall be deemed received when personally delivered, five days
after sent by certified mail or one day after sent by telecopy.
13.5 Severability. Any provision of this Trust
Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to each jurisdiction, be ineffective to
the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such
prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
13.6 Waivers, Etc. No term or provision of this Trust
Agreement may be changed, waived, discharged or terminated
orally, but only by an instrument in writing signed by the party
against whom enforcement of the change, waiver, discharge or
termination is sought, and any waiver of the terms hereof shall
be effective only in the specific instance and for the specific
purpose given.
13.7 Counterparts. This Trust Agreement may be
executed by the parties hereto in separate counterparts, each of
which when so executed and delivered shall be an original, but
all such counterparts shall together constitute but one and the
same instrument.
- 22 -
13.8 Successors and Assigns. All covenants and agree-
ments contained herein shall be binding upon and shall inure to
the benefit of the Owner Trustee and its successors and the
Trustor and its successors, and the Lessees and Trust Beneficiary
and its successors. The Trustor and the Trust Beneficiary shall
not transfer nor assign (otherwise than by merger or
consolidation or transfer by the Trust Beneficiary otherwise
permitted by the Lease Agreement with respect to the Trust
Beneficiary's interest thereunder) any or all interests
hereunder.
13.9 Headings. The headings of the various Sections
herein are for convenience of reference only and shall not define
or limit any of the terms or provisions hereof.
13.10 Self-Dealing. The Owner Trustee in its
individual capacity or any corporation in or with which the Owner
Trustee in its individual capacity or its shareholders may be
interested or affiliated, including but not limited to the
Companies, or any officer or director of the Owner Trustee in its
individual capacity or of any other such corporation, or any
agent appointed by the Owner Trustee, may have commercial
relations and otherwise deal with the Trustor, the Trust
Beneficiary, any Secured Party, the Companies, and the Lessees or
with any other corporation having relations with the Trustor, the
Trust Beneficiary, the Banks, the Companies, or the Lessees and
with any other corporation or entity, whether or not affiliated
with the Owner Trustee.
13.11 Governing Law. THIS TRUST AGREEMENT SHALL IN
ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAW OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, EXCEPT TO THE EXTENT THAT
THE DELAWARE GENERAL CORPORATION LAW GOVERNS THE COMPANIES'
RELATIONSHIP WITH THE TRUST AS ITS SOLE STOCKHOLDER.
13.12 No Unauthorized Transactions. The Trustor
agrees that it will not take or refrain from taking any action
under this Trust Agreement or in connection with the Owner Trust
Estate except as expressly required by the terms of this Trust
Agreement.
13.13 Rights and Remedies.
(a) Pursuit of any remedy shall not be deemed a waiver
of any other remedy hereunder or at law or equity; and
(b) The rights, remedies, powers and privileges herein
provided are cumulative and not exhaustive of the rights,
remedies, powers and privileges permitted by law.
IN WITNESS WHEREOF, the parties hereto have caused this
Trust Agreement to be duly executed as of the day and year first
above written in the presence of the undersigned witnesses.
- 23 -
TRUSTOR AND TRUST BENEFICIARY
Witnesses: LORD FUEL CORP., AS TRUSTOR
AND TRUST BENEFICIARY
______________________
______________________ By :_________________________
Name:_________________________
Title:_________________________
OWNER TRUSTEE
Witnesses: UNITED STATES TRUST COMPANY OF
NEW YORK, as trustee
______________________
______________________ By:_________________________
Name:_________________________
Title:_________________________
LESSEES
Witnesses: JERSEY CENTRAL POWER & LIGHT
COMPANY
______________________
______________________ By:_________________________
Name:X. X. Xxxxxx
Title:Vice President & Treasurer
- 24 -
Witnesses: METROPOLITAN EDISON COMPANY
______________________
______________________ By:_________________________
Name :X. X. Xxxxxx
Title:Vice President & Treasurer
Witnesses: PENNSYLVANIA ELECTRIC COMPANY
______________________
______________________ By:_________________________
Name:X. X. Xxxxxx
Title:Vice President & Treasurer
- 25 -
STATE OF _____________)
: ss:
COUNTY OF ____________)
On this _____ day of November, 1995, before me
personally appeared ____________________, to me personally known,
who, being by me duly sworn, says that he is a
_____________________ of Lord Fuel Corp. and that said instrument
was signed on behalf of said corporation by authority of its
Board of Directors, and he acknowledged that the execution of the
foregoing instrument was the free act and deed of said
corporation.
________________________________
Notary Public
My Commission Expires:
STATE OF _____________)
: ss:
COUNTY OF ____________)
On this _____ day of November, 1995, before me
personally appeared ____________________, to me personally known,
who, being by me duly sworn, says that he is a
_____________________ of United States Trust Company of New York
and that said instrument was signed on behalf of said corporation
by authority of its Board of Directors, and he acknowledged that
the execution of the foregoing instrument was the free act and
deed of said corporation.
________________________________
Notary Public
My Commission Expires:
- 26 -
STATE OF NEW JERSEY)
: ss:
COUNTY OF XXXXXX )
On this _____ day of November, 1995, before me
personally appeared X. X. Xxxxxx, to me personally known, who,
being by me duly sworn, says that he is a Vice President of
Jersey Central Power & Light Company and that said instrument was
signed on behalf of said corporation by authority of its Board of
Directors, and he acknowledged that the execution of the
foregoing instrument was the free act and deed of said
corporation.
________________________________
Notary Public
My Commission Expires:
STATE OF NEW JERSEY)
: ss:
COUNTY OF XXXXXX )
On this _____ day of November, 1995, before me
personally appeared X. X. Xxxxxx, to me personally known, who,
being by me duly sworn, says that he is a Vice President of
Metropolitan Edison Company and that said instrument was signed
on behalf of said corporation by authority of its Board of
Directors, and he acknowledged that the execution of the
foregoing instrument was the free act and deed of said
corporation.
________________________________
Notary Public
My Commission Expires:
- 27 -
STATE OF NEW JERSEY)
: ss:
COUNTY OF XXXXXX)
On this _____ day of November, 1995, before me
personally appeared X. X. Xxxxxx, to me personally known, who,
being by me duly sworn, says that he is a Vice President of
Pennsylvania Electric Company and that said instrument was signed
on behalf of said corporation by authority of its Board of
Directors, and he acknowledged that the execution of the
foregoing instrument was the free act and deed of said
corporation.
________________________________
Notary Public
My Commission Expires:
- 28 -
EXHIBIT A
DEFINITIONS
As used in the Trust Agreement (as defined below) the
following terms shall have the following meanings (such
definitions to be applicable to both singular and plural forms of
the terms defined), except as otherwise specifically defined
therein:
"Administrative Agent" shall have the meaning specified
therefor in the first paragraph of the Credit Agreements.
"Affiliate" of any Person means any other Person
directly or indirectly controlling, controlled by or under direct
or indirect common control with such Person. For purposes of
this definition, the term "control" as used with respect to any
Person, shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting
securities, by contract or otherwise.
"Assigned Agreement" means a Nuclear Material Contract
which has been assigned to a Company in the manner specified in
Section 5 of the Lease Agreements pursuant to a duly executed and
delivered Assignment Agreement. The term Assigned Agreement
shall include a Partially Assigned Agreement.
"Assignment Agreement" means an assignment agreement
substantially in the forms of Exhibit D to the Lease Agreements.
"Banks" shall have the meaning specified therefor in
Section 1.02 of the Credit Agreements.
"Basic Documents" means the Lease Agreements, the
Credit Agreements, the Security Agreements, the Commercial Paper,
the Letter of Credit, the Notes, the Letter Agreements, the
Assigned Agreements, the Assignment Agreements, the Trust
Agreement, the Depositary Agreements, each Xxxx of Sale, each
Leasing Record, each Rent Due and SCV Confirmation Schedule, and
other agreements related or incidental thereto which are
identified in writing by either Company, the Lessees and the
Secured Parties as one of the "Basic Documents", in each case, as
such documents may be amended from time to time.
"Basic Rent Period" means each calendar month or
portion thereof commencing on, in the case of the first such
period, the effective date of the Lease Agreements, and in case
of each succeeding period, the first day following the
immediately preceding Basic Rent Period, and ending on the
earliest of (i) the last day of any calendar month or (ii) the
Termination Settlement Date.
"Xxxx of Sale" means a xxxx of sale substantially in
the forms of Exhibit E to the Lease Agreements, pursuant to which
- 1 -
title to all or any portion of the Nuclear Material is
transferred to a Lessee or any designee of a Lessee.
"Capitalized Lease" means any and all lease obligations
which are or should be capitalized on the balance sheet of the
Person in question in accordance with generally accepted
accounting principles and Statement No. 13 of the Financial
Accounting Standards Board or any successor to such pronouncement
regarding lease accounting, without regard for the accounting
treatment permitted or required under any applicable state or
federal public utility regulatory accounting system, unless such
treatment controls the determination of the generally accepted
accounting principles applicable to such Person.
"Closing" means November 17, 1995.
"Collateral" has the meaning set forth in the granting
clauses of a Security Agreement and includes all property of a
Company described in a Security Agreement as comprising part of
the Collateral.
"Collateral Agent" shall have the meaning specified
therefor in Section 1.02 of the Credit Agreements.
"Collateral Agreements" means, collectively, the
Security Agreements, all Assignment Agreements, and any other
assignment, security agreement or instrument executed and
delivered to the Secured Parties hereafter relating to property
of a Company which is security for the Letter of Credit and the
Notes.
"Commercial Paper" shall have the meaning set forth in
Section 1.2 of the Credit Agreements.
"Commitment" means the commitment of the Banks to make
Loans or of the Issuing Bank to issue a Letter of Credit from
time to time under any Credit Agreement.
"Companies" means TMI-1 Fuel Corp. and Oyster Creek
Fuel Corp., each Delaware corporations.
"Company" means TMI-1 Fuel Corp. or Oyster Creek Fuel
Corp., each Delaware corporations.
"Credit Agreements" mean (i) the Credit Agreement,
dated as of November 17, 1995 between TMI-1 Fuel Corp. and Union
Bank of Switzerland, New York Branch, as Arranging Agent, Issuing
Bank and Administrative Agent, Canadian Imperial Bank of
Commerce, Mellon Bank, N.A. and PNC Bank, National Associations,
as Lead Managers and the Banks Party thereto and (ii) the Credit
Agreement, dated as of November 17, 1995, between Oyster Creek
Fuel Corp. and Union Bank of Switzerland, New York Branch, as
Arranging Agent, Issuing Bank and Administrative Agent, Canadian
Imperial Bank of Commerce, Mellon Bank, N.A. and PNC Bank,
- 2 -
National Associations, as Lead Managers and the Banks Party
thereto, as each may be amended from time to time.
"Depositary Agreements" mean the (i) Depositary
Agreement dated as of November 17, 1995 among TMI-1 Fuel Corp.,
Chemical Bank, as Depositary Agent, and Union Bank of
Switzerland, New York Branch, as Issuing Agent, Arranging Agent
and Administrative Agent and (ii) Depositary Agreement dated as
of November 17, 1995 among Oyster Creek Fuel Corp., Chemical Bank
as Depositary Agent and Union Bank of Switzerland, New York
Branch, as Issuing Agent, Arranging Agent and Administrative
Agent.
"Excepted Payments" means (i) any indemnity, expense,
or other payment which by the terms of any of the Basic Documents
shall be payable to a Company in order for such Company to
satisfy its obligations pursuant to Section 7.8 of the Trust
Agreement, (ii) any payment by any Company pursuant to Section
7.8 of the Trust Agreement, or (iii) a payment by any Lessee
pursuant to Section 8 of the Trust Agreement.
"Final Leasing Record" means a Leasing Record which
records the leasing of Nuclear Material during any period when
such Nuclear Material is installed for operation in a Generating
Facility. A Final Leasing Record shall be in the forms of
Exhibit C to the Lease Agreements.
"Generating Facility" means each of Unit No. 1 of Three
Mile Island Nuclear Generating Station, located in Londonderry
Township, Pennsylvania and Oyster Creek Nuclear Generating
Station, located in Lacey Township, New Jersey.
"Hereof", "herein", "hereunder" and words of similar
import when used in a Basic Document refer to such Basic Document
as a whole and not to any particular section or provision
thereof.
"Impositions" means all payments required by a public
or governmental authority in respect of any property subject to a
Lease Agreement or any transaction pursuant to a Lease Agreement
or any right or interest held by virtue of a Lease Agreement.
"Interim Leasing Record" means a Leasing Record which
records the leasing of Nuclear Material (i) prior to installation
for operation in a Generating Facility, (ii) after removal from a
Generating Facility during the "cooling off" and storage period,
and (iii) while being reprocessed. An Interim Leasing Record
shall be in the form of Exhibit A to the Lease Agreements.
"Lease Agreements" means (i) the Amended and Restated
Nuclear Material Lease Agreements each dated as of November 17,
1995 between TMI-1 Fuel Corp., as Lessor, and Jersey Central
Power & Light Company, Metropolitan Edison Company and
Pennsylvania Electric Company, respectively, as Lessees, in
connection with the Three Mile Island Unit 1 Nuclear Generating
- 3 -
Facility, and (ii) the Amended and Restated Nuclear Material
Lease Agreement, dated as of November 17, 1995 between Oyster
Creek Fuel Corp. as Lessor and Jersey Central Power & Light
Company, as Lessee, in connection with the Oyster Creek Nuclear
Generating Facility, as each of the same may be modified, supple-
mented or amended from time to time.
"Leasing Record" is a form signed by a Lessor and its
Lessee to record the leasing under a Lease Agreement of the
Nuclear Material specified in such Leasing Record. A Leasing
Record shall be either an Interim Leasing Record or a Final
Leasing Record.
"Lessee" or "Lessees" shall have the meanings specified
therefor in the introduction to the Lease Agreements.
"Lessor" or "Lessors" shall have the meanings specified
therefor in the introduction to the Lease Agreements and its
successors and assigns.
"Letter Agreements" means the Letter Agreements, each
dated as of November 17, 1995 between the Lessees, the Companies
and Union Bank of Switzerland, New York Branch, as Administrative
Agent, as the same may be amended from time to time.
"Letter of Credit" shall have the meaning specified
therefor in Section 1.02 of the Credit Agreements.
"Lien" means any mortgage, pledge, lien, security
interest, title retention, charge or other encumbrance of any
nature whatsoever (including any conditional sale or other title
retention agreement, any lease in the nature thereof and the
filing of or agreement to execute and deliver any financing
statement under the Uniform Commercial Code of any jurisdiction).
"Loans" shall have the meaning specified therefor in
Section 1.02 of the Credit Agreements.
"Manufacturer" means any supplier of Nuclear Material
or of any service (including without limitation, enrichment,
fabrication, transportation, storage and processing) in
connection therewith, or any agent or licensee of any such
supplier.
"Notes" shall have the meaning specified therefor in
Section 1.02 of the Credit Agreements.
"Nuclear Material" means those items which have been
purchased by or on behalf of a Company for which a duly executed
Leasing Record has been delivered to a Company and which continue
to be subject to a Lease Agreement consisting of (i) the items
described in such Leasing Record and each of the components
thereof in the respective forms in which such items exist during
each stage of the Nuclear Material Cycle, being substances and
equipment which, when fabricated and assembled and loaded into a
- 4 -
nuclear reactor, are intended to produce heat, together with all
attachments, accessories, parts and additions and all
improvements and repairs thereto, and all replacements thereof
and substitutions therefor and (ii) the substances and materials
underlying the right, title and interest of a Lessee under any
Nuclear Material Contract assigned to a Company pursuant to a
Lease Agreement; provided, however, that the term Nuclear
Material shall not include spent fuel.
"Nuclear Material Contract" means any contract, as from
time to time amended, modified or supplemented, entered into by a
Lessee with one or more Manufacturers relating to the acquisition
of Nuclear Material or any service in connection with the Nuclear
Material.
"Nuclear Material Cycle" means the various stages in
the process, whether physical or chemical, by which the component
parts of the Nuclear Material are designed, mined, milled,
processed, converted, enriched, fabricated into assemblies
utilizable for Heat Production, loaded or installed into a
reactor core, utilized, disengaged from a reactor core or stored,
together with all incidental processes with respect to the
Nuclear Material at any such stage.
"Obligations" means (i) all items (including, without
limitation, Capitalized Leases but excluding shareholders' equity
and minority interests) which in accordance with generally
accepted accounting principles should be reflected on the
liability side of a balance sheet as at the date as of which such
obligations are to be determined; (ii) all obligations and
liabilities (whether or not reflected upon such balance sheet)
secured by any Lien existing on the Property held subject to such
Lien, whether or not the obligation or liability secured thereby
shall have been assumed; and (iii) all guarantees, endorsements
(other than for collection in the ordinary course of business)
and contingent obligations in
respect of any liabilities of the type described in clauses (i)
and (ii) of this definition (whether or not reflected on such
balance sheet); provided, however, that the term "Obligations"
shall not include deferred taxes.
"Officer's Certificate" means, with respect to any
corporation, a certificate signed by the President, any Vice
President, the Treasurer or any Assistant Treasurer, the Comp-
troller or any Assistant Comptroller of such corporation, and
with respect to any other entity, a certificate signed by an
individual generally authorized to execute and deliver contracts
on behalf of such entity.
"Original Trust Agreement" means the Trust Agreement
dated as of August 1, 1991, among Lord Fuel Corp., as Trustor,
United States Trust Company of New York, as Owner Trustee, Jersey
Central Power & Light Company, Metropolitan Edison Company and
Pennsylvania Electric Company, as Lessees, and Lord Fuel Corp.,
- 5 -
as Trust Beneficiary, as the same may be amended, modified or
supplemented from time to time.
"Outstandings" shall have the meaning specified
therefor in Section 1.02 of the Credit Agreements.
"Owner Trust Estate" means all estate, right, title and
interest of the Owner Trustee in and to the outstanding stock of
the Companies and in and to all monies, securities, investments,
instruments, documents, rights, claims, contracts, and other
property held by the Owner Trustee under the Trust Agreement;
provided, however, that there shall be excluded from the Owner
Trust Estate all Excepted Payments.
"Owner Trustee" means the United States Trust Company
of New York, not in its individual capacity but solely acting as
trustee under and pursuant to the Trust Agreement, and its
permitted successors.
"Partially Assigned Agreement" means a Nuclear Material
Contract which has been assigned, in part but not in full, to a
Company in the manner specified in Section 5 of each Lease
Agreement pursuant to a duly executed and delivered Assignment
Agreement.
"Permitted Liens" means (i) any assignment of a Lease
Agreement permitted thereby, by a Note Agreement and by a Credit
Agreement, (ii) liens for Impositions not yet payable, or payable
without the addition of any fine, penalty, interest or cost for
nonpayment, or being contested by a Lessee as permitted by
Section 11 of the Lease Agreements, (iii) liens and security
interests created by a Security Agreement, (iv) the title
transfer and commingling of the Nuclear Material contemplated by
paragraph (h) of Section 10 of the Lease Agreements and (v) liens
of mechanics, laborers, materialmen, suppliers or vendors, or
rights thereto, incurred in the ordinary course of business for
sums of money which under the terms of the related contracts are
not more than 30 days past due or are being contested in good
faith by a Lessee as permitted by Section 11 of the Lease
Agreements; provided, however, that, in each case, such reserve
or other appropriate provision, if any, as shall be required by
generally accepted accounting principles shall have been made in
respect thereto.
"Person" means any individual, partnership, joint
venture, corporation, trust, unincorporated organization or other
business entity or any government or any political subdivision or
agency thereof.
"Proceeds" shall have the meaning assigned to it under
the Uniform Commercial Code, as amended, and, in any event, shall
include, but not be limited to, (i) any and all proceeds of any
insurance, indemnity, warranty or guaranty payable to a Company
from time to time with respect to the Collateral, (ii) any and
all payments (in any form whatsoever) made or due and payable to
- 6 -
a Company from time to time in connection with any requisition,
confiscation, condemnation, seizure or forfeiture of all or part
of any part of the Collateral by any governmental body,
authority, bureau or agency (or any person acting under color of
governmental authority), and (iii) any and all other amounts from
time to time paid or payable under or in connection with any of
the Collateral.
"Property" means any interest in any kind of property
or asset, whether real, personal or mixed, or tangible or
intangible.
"Qualified Institution" means a commercial bank
organized under the laws of, and doing business in, the United
States of America or in any State thereof, which has combined
capital, surplus and undivided profits of at least $150,000,000
having trust power.
"Rent Due and SCV Confirmation Schedule" means an
instrument substantially in the form of Exhibit F to the Lease
Agreements which is to be completed by a Lessee for the purpose
of calculating and acknowledging the SCV at the end of each Basic
Rent Period.
"Secured Parties" means the Banks and any other holder
from time to time of any Note.
"Security Agreements" means the (i) Jersey Central
Power & Light Company Security Agreement and Assignment of
Contracts dated as of November 17, 1995, (ii) Metropolitan Edison
Company Security Agreement and Assignment of Contracts dated as
of November 17, 1995 and (iii) Pennsylvania Electric Company
Security Agreement and Assignment of Contract dated as of
November 17, 1995 between TMI-1 Fuel Corp. and the Secured
Parties and (iv) the Security Agreement and Assignment of
Contracts, dated as of November 17, 1995, between Oyster Creek
Fuel Corp. and the Secured Parties.
"Terminating Event" shall have the meaning set forth in
Section 18 of the Lease Agreements.
"Termination Settlement Date" shall have the meaning
specified therefor in Section 8(c) or 18(c) of the Lease
Agreements.
"Trust" means the TMI-1 Fuel Corp. and Oyster Creek
Fuel Corp. Trust, a trust formed pursuant to the Trust Agreement.
"Trust Agreement" means the Amended and Restated Trust
Agreement dated as of November 17, 1995, among Lord Fuel Corp.,
as Trustor, United States Trust Company of New York, as Owner
Trustee, Jersey Central Power & Light Company, Metropolitan
Edison Company and Pennsylvania Electric Company, as Lessees, and
Lord Fuel Corp., as Trust Beneficiary, as the same may be
amended, modified or supplemented from time to time.
- 7 -
"Trust Beneficiary" means Lord Fuel Corp., a Delaware
corporation, and its permitted successors.
"Trustor" means the institution designated as such in
the Trust Agreement and its permitted successors.
- 8 -
