Exhibit 10.1
This Amendment No. 5, dated as of June 30, 2000, to the Amended and
Restated Decommissioning Trust Agreement (PVNGS Unit 2), dated as of January 31,
1992, as amended by Amendment No. 1 thereto dated as of November 1, 1992,
Amendment No. 2 thereto dated as of November 1, 1994, Amendment No. 3 thereto
dated as of June 20, 1996, and Amendment No. 4 thereto dated as of December 16,
1996 (the "Decommissioning Trust Agreement"; terms used herein as therein
defined), is entered into between Arizona Public Service Company ("APS"), State
Street Bank and Trust Company, as successor to The First National Bank of
Boston, as Owner Trustee and as Lessor, and Mellon Bank, N.A., as
Decommissioning Trustee ("Decommissioning Trustee").
R E C I T A L S:
WHEREAS, the parties hereto wish to amend the investment parameters for the
Decommissioning Trust Fund and the Second Fund contained in Exhibit B to the
Decommissioning Trust Agreement;
NOW, THEREFORE, in consideration of the premises and of other good and
valuable consideration, receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
A G R E E M E N T S:
SECTION 1. Amendment.
Paragraph (l) of Exhibit B to the Decommissioning Trust Agreement is hereby
deleted and is replaced in its entirety by the following:
(l) (x) corporate equity securities, including, but not limited to,
investment in units of common or collective trust funds investing in
corporate equity securities; including, but not limited to, the
Decommissioning Trustee's Nuclear Decommissioning Trust Equity Index
Fund (the "NDT Equity Index Fund") and (y) obligations not included in
clauses (a) through (k) issued or guaranteed by a person controlled or
supervised by and acting as an instrumentality of the United States of
America pursuant to authority granted by the Congress of the United
States of America, including Federal Intermediate Credit Bank, Banks
for Cooperatives, Federal Land Banks, Federal Home Loan Banks, Federal
Home Loan Mortgage Corporation; provided, that no more than fifty
percent (50%) of the aggregate assets of the Funds may be invested in
securities described in (x) and (y) of this subparagraph (l) during
the period from June 27, 1996 through December 31, 2003, no more than
thirty percent (30%) during the period from January 1, 2004 through
December 31, 2006, and no more than fifteen percent (15%) during the
period from January 1, 2007 through January 31, 2010; and provided
further that after January 31, 2010, no investments shall be made in
such securities.
SECTION 2. Effectiveness.
This Amendment No. 5 shall become effective as of the date hereof upon the
execution and delivery of a counterpart of this Amendment No. 5 by each of the
parties hereto.
SECTION 3. Miscellaneous
(a) Full Force and Effect.
Except as expressly provided herein, the Decommissioning Trust Agreement
shall remain unchanged and in full force and effect. Each reference in the
Decommissioning Trust Agreement and in any exhibit or schedule thereto to "this
Agreement," "hereto," "hereof" and terms of similar import shall be deemed to
refer to the Decommissioning Trust Agreement as amended hereby.
(b) Counterparts.
This Amendment No. 5 may be executed in any number of counterparts, all of
which taken together shall constitute one and the same instrument, and any of
the parties hereto may execute this Amendment No. 5 by signing any such
counterpart.
(c) Arizona Law.
This Amendment No. 5 shall be construed in accordance with and governed by
the law of the State of Arizona.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 5 to
the Decommissioning Trust Agreement to be duly executed as of the day and year
first above written.
ARIZONA PUBLIC SERVICE COMPANY
By Xxxxxxx X. Xxxxx
-------------------------------------
Title Treasurer
----------------------------------
-2-
MELLON BANK N.A., as
Decommissioning Trustee
By Xxxxxx X. XxXxxxxxx
-------------------------------------
Title Vice President
----------------------------------
STATE STREET BANK AND TRUST COMPANY, as
Owner Trustee under a Trust Agreement
with Security Pacific Capital Leasing
Corporation and as Lessor under a
Facility Lease with Arizona Public
Service Company
By Xxxx Xxxxxxx
-------------------------------------
Title Assistant Vice President
----------------------------------
STATE STREET BANK AND TRUST COMPANY, as
Owner Trustee under a Trust Agreement
with Xxxxxxx Finance Co. and as Lessor
under a Facility Lease with Arizona
Public Service Company
By Xxxx Xxxxxxx
-------------------------------------
Title Assistant Vice President
----------------------------------
-3-
STATE OF ARIZONA )
) ss.
County of Maricopa )
The foregoing instrument was acknowledged before me this 8th day of
December, 2000, by Xxxxxxx X. Xxxxx, the Treasurer of ARIZONA PUBLIC SERVICE
COMPANY, an Arizona corporation, on behalf of said corporation.
Xxxxxxx X. Xxxxx
----------------------------------------
Notary Public
My commission expires:
June 20, 2003
----------------------
STATE OF PENNSYLVANIA )
) ss.
County of Allegheny )
The foregoing instrument was acknowledged before me this 14th day of
December, 2000, by Xxxxxx X. XxXxxxxxx, a Trust Officer of MELLON BANK, N.A., a
corporation having trust powers, as Decommissioning Trustee, on behalf of said
corporation.
Xxxxx Xxxxx
----------------------------------------
Notary Public
My commission expires:
11-18-02
----------------------
-4-
STATE OF MASSACHUSETTS )
) ss.
County of Suffolk )
The foregoing instrument was acknowledged before me this 7th day of
December, 2000, by Xxxx Xxxxxxx, the Assistant Vice President of STATE STREET
BANK AND TRUST COMPANY, a Massachusetts trust company, in its capacity as Owner
Trustee under a Trust Agreement with Security Pacific Capital Leasing
Corporation, and as Lessor under a Facility Lease with Arizona Public Service
Company, on behalf of said association in such capacities.
Xxxxx X. Xxxxxxxx
----------------------------------------
Notary Public
My commission expires:
June 19, 2003
----------------------
STATE OF MASSACHUSETTS )
) ss.
County of Suffolk )
The foregoing instrument was acknowledged before me this 7th day of
December, 2000, by Xxxx Xxxxxxx, the Assistant Vice President of STATE STREET
BANK AND TRUST COMPANY, a Massachusetts trust company, in its capacity as Owner
Trustee under a Trust Agreement with Xxxxxxx Finance Co., and as Lessor under a
Facility Lease with Arizona Public Service Company, on behalf of said
association in such capacities.
Xxxxx X. Xxxxxxxx
----------------------------------------
Notary Public
My commission expires:
June 19, 2003
----------------------
-5-
