EXHIBIT 10.4
AMENDMENT NO. 7
Decommissioning Trust Agreement
(PVNGS Unit 2)
This Amendment No. 7 dated as of December 19, 2003, 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, Amendment No. 4 thereto dated as of December 16,
1996, Amendment No. 5 thereto dated as of June 30, 2000 and Amendment No. 6
thereto dated as of March 18, 2002 (the "Decommissioning Trust Agreement", terms
used herein as therein defined), is entered into between Arizona Public Service
Company ("APS"), U.S. Bank National Association, as successor to 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 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:
SECTION 1. Amendment.
(a) A new Section 34 will be added at the end of the
Decommissioning Trust Agreement and will read in full
as follows:
Section 34. Notice Regarding Disbursements or
Payments. Notwithstanding anything to the contrary in
this Agreement, except for (i) payments of ordinary
administrative costs (including taxes) and other
incidental expenses of the Funds (including legal,
accounting, actuarial, and trustee expenses) in
connection with the operation of the Funds, (ii)
withdrawals being made under 10 CFR 50.82(a)(8), and
(iii) transfers between the Funds in accordance with
the provisions of this Agreement, no disbursement or
payment may be made from the Funds until written
notice of the intention to make a disbursement or
payment has been given to the Director, Office of
Nuclear Reactor Regulation, or the Director, Office
of Nuclear Material Safety and Safeguards, as
applicable, at least 30 working days before the date
of the intended disbursement or payment. The
disbursement or payment from the Funds, if it is
otherwise in compliance with the terms and conditions
of this Agreement, may be made following the
30-working day notice period if no written notice of
objection from the Director, Office of Nuclear
Reactor Regulation, or the Director, Office of
Nuclear Material Safety and Safeguards, as
applicable, is received by the Decommissioning
Trustee or APS within the notice period. The required
notice may be made by the Decommissioning
Trustee or on the Decommissioning Trustee's behalf.
No such notice is required for withdrawals being made
pursuant to 10 CFR 50.82(a)(8)(ii), including
withdrawals made during the operating life of Unit 2
to be used for decommissioning planning. In addition,
no such notice is required to be made to the NRC
after decommissioning has begun and withdrawals are
being made under 10 CFR 50.82(a)(8). This Section 34
is intended to qualify each and every provision of
this Agreement allowing distributions from the Funds,
including but not limited to Section 11 and Section
12 hereof, and in the event of any conflict between
any such provision and this Section 34, the
provisions of this Section 34 shall control.
(b) 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 of 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 forty percent (40%) during the period
from January 1, 2004 through December 31, 2006, and
no more than twenty percent (20%) 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. 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.
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(b) Counterparts/Representations.
The Amendment No. 7 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. 7 by signing any such
counterpart. Each party represents and warrants to the other that it has full
authority to enter into this Amendment upon the terms and conditions hereof and
that the individual executing this Amendment on its behalf has the requisite
authority to bind that Party.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 7
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
---------------------------------
MELLON BANK, N.A. as Decommissioning
Trustee
By: /s/ Xxxxxx Xxxxxxx
---------------------------------
Title: Vice President
---------------------------------
U.S. BANK NATIONAL ASSOCIATION, 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: Xxxxx X. Xxxxxx
---------------------------------
Title: Trust Officer
---------------------------------
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U.S. BANK NATIONAL ASSOCIATION, as Owner
Trustee under a Trust Agreement with
Xxxxxxx Finance LLC and as Lessor under
a Facility Lease with Arizona Public
Service Company
By: Xxxxx X. Xxxxxx
---------------------------------
Title: Trust Officer
---------------------------------
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STATE OF ARIZONA )
) ss:
County of Maricopa )
The foregoing instrument was acknowledged before me this 12th day of
December, 2003, by Xxxxxxx X. Xxxxx, the Treasurer of ARIZONA PUBLIC SERVICE
COMPANY, an Arizona corporation, on behalf of said corporation.
Xxxxx X. Xxxxxxx
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Notary Public
My commission expires:
June 7, 2004
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COMMONWEALTH OF PENNSYLVANIA )
) ss:
County of Allegheny )
The foregoing instrument was acknowledged before me this 19th day of
December, 2003, by Xxxxxx Xxxxxxx, a Vice President of Mellon Bank, N.A. a
national banking association having trust powers, as Decommissioning Trustee, on
behalf of said national banking association.
Xxxxx Xxx Xxxxx
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Notary Public
My commission expires:
October 13, 2007
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[COMMONWEALTH OF MASSACHUSETTS] )
) ss:
County of )
The foregoing instrument was acknowledged before me this 17th day of
December, 2003, by Xxxxx X. Xxxxxx, a Trust Officer of U.S. Bank National
Association, 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:
September 9, 2005
----------------------
[COMMONWEALTH OF MASSACHUSETTS] )
) ss:
County of )
The foregoing instrument was acknowledged before me this 17th day of
December, 2003, by Xxxxx X. Xxxxxx, a Trust Officer of U.S. Bank National
Association, in its capacity as Owner Trustee under a Trust Agreement with
Xxxxxxx Finance LLC 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:
September 9, 2005
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