AMENDMENT NUMBER ONE
TO THE
PUBLIC SERVICE COMPANY OF NEW MEXICO
MASTER DECOMMISSIONING TRUST AGREEMENT
FOR
PALO VERDE NUCLEAR GENERATING STATION
This Amendment Number One to the Public Service Company of New Mexico
Master Decommissioning Trust Agreement for Palo Verde Generating Station (the
"Agreement") made this 27th day of January, 1997 by and between Public Service
Company of New Mexico, a corporation organized and existing under the laws of
the State of New Mexico ("the Company") and Mellon Bank, N.A., a national
banking association having trust power (the "Trustee").
WITNESSETH:
WHEREAS, the Company entered into the Agreement with the Trustee on
March 15, 1996 to satisfy the Company's obligation to accumulate funds for the
payment of its share of Termination Costs for Palo Verde Xxxx 0, Xxxx Xxxxx Xxxx
0 and Palo Verde Unit 3, in accordance with the requirements of Section 8A.7.2
of the ANPP Participation Agreement; and
WHEREAS, it is the intent of the Company to transfer certain Insurance
Policies to the Master Trust and for the Trustee to hold such Insurance
Policies, provide for their segregated safekeeping, and use their proceeds all
in accordance with the terms of the Agreement; and
WHEREAS, Section 2.11 of the Agreement allows the Trustee and the
Company to amend the Agreement consistent with the purposes of the Agreement.
NOW THEREFORE, the Company and the Trustee hereby amend the Agreement
to make provisions necessary for the Trustee to accept such Insurance Policies
as Trustee under the Agreement:
1. The following terms shall be included under Article I,
Section 1.01, and the existing terms renumbered:
(2) "Annual Review" shall mean a review of the Insurance Policies
provided by the Insurance Servicing Agent pursuant to the Service
Agreement once each year for the purpose of determining the gross
insurance outstanding, the policy loans outstanding, interest due
on policy loans, and the cash value of outstanding Insurance
Policies and addressing certain other matters with respect to the
Insurance Policies as are more particularly provided in the
Service Agreement.
(9) "COMRep" shall meant the Cost of Money Reduction Plan, as more
fully described in Exhibit C hereto.
(15) "Insurance Policies" shall mean the policies of insurance
generally described in Exhibits D and E hereto, initially issued
or to be issued by the insurance companies listed in Exhibit D
hereto, and any additional, supplemental or replacement policies
therefor issued by such insurance companies or other insurance
companies that are transferred to the Master Trust.
(16) "Insurance Servicing Agent" shall mean Financial Marketing
Services, Inc., a Nebraska corporation, and its successors and
assigns under the Service Agreement, and any successor agent
engaged by the Company to perform servicing activities with
respect to the Insurance Policies.
(33) "Service Agreement" shall meant the Service Agreement among
the Insurance Servicing Agent, the Trustee and the Company dated
as of July 31, 1987, with respect to management and servicing of
the Insurance Policies, a copy of which is attached hereto as
Exhibit F, as it may be amended from time to time, and any
replacement agreement entered into by the Trustee and/or the
Company with respect to management and servicing of the Insurance
Policies.
2. The following shall be added after the second sentence of Section 3.05.
"Such report also shall include a statement of the property and funds,
if any, constituting part of the Master Trust in the possession of the
Insurance Servicing Agent on the date of such report, and any Annual
Review, actuarial analysis and outside evaluation of the Insurance
Policies provided by or through the Insurance Servicing Agent as
contemplated by the Service Agreement. Any such information with
respect to the Insurance Policies may be based solely upon the latest
information provided by the Insurance Service Agent pursuant to the
Service Agreement, and the Trustee is not responsible for the accuracy
of any information received from the Insurance Service Agent."
3. The following sentence shall be added to Section 5.04.
"Upon receipt, the Insurance Policies shall be deposited in the Master
Trust, although physical custody thereof shall be released to the
Insurance Servicing Agent pursuant to the Service Agreement."
4. The first clause of Section 5.11 shall be restated as follows:
"To do any and all other acts (including but not limited to, borrowing
or raising money from a lender, including the Trustee or an affiliate)
which the Trustee shall deem proper to effectuate the powers
specifically conferred upon it by this Agreement, provided, however,
that the Trustee may not, in its discretionary exercise of powers, do
any act or knowingly engage in any transactions which would:"
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5. The following sentence shall be added after the first sentence of
Article VI.
"Notwithstanding the foregoing, with respect to the Insurance
Policies, the Trustee shall upon the written direction of the Company
pay the premiums on the Insurance Policies; borrow against and pledge
the Insurance Policies as collateral; pay interest and repay prinicpal
on borrowings against the Insurance Policies, surrender the Insurance
Policies; substitute other investments of equivalent value for the
Insurance Policies; and transfer such Insurance Policies to the
Company; and perform such other services with respect to and incident
to the Insurance Policies as are specified in such written direction,
provided that the Company may delegate some or all of such activities
to the Insurance Servicing Agent as more particularly described in the
Service Agreement for ease of administration. The Trustee shall have
no duty to review such Insurance Policies, and has no duty to review
the directions, acts, omissions or overall performance of the Company
or the Insurance Servicing Agent with respect to the Insurance
Policies."
6. The following Section 7.12 shall be added:
"The Trustee shall not be responsible or liable for any losses to the
Master Trust resulting from nationalization, expropriation,
devaluation, seizure, or similar action by any governmental authority,
de facto or de jure; or enactment, promulgation, imposition or
enforcement by any such governmental authority of currency
restrictions, exchange controls, levies or other charges affecting the
Master Trust; or acts of war, terrorism, insurrection or revolution;
or acts of God; or any other similar event beyond the control of the
Trustee or its agents. This Section shall survive the termination of
this Agreement".
7. All other terms and conditions of the Agreement shall remain in full
force and effect.
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IN WITNESS WHEREOF, the parties hereto, each intending to be legally
bound hereby, have hereunto set their hands and seals as of the day and year
above written.
PUBLIC SERVICE COMPANY OF NEW MEXICO
By: /s/ Xxx X. Xxxxxx
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Name: Xxx X. Xxxxxx
Title: Chief Financial Officer
MELLON BANK, N.A.
By:
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Name:
Title:
