Annual Report — [x] Reg. S-K Item 405 — Form 10-K
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 10-K405 Form 10-K 61± 318K
2: EX-3.1 Bylaws 16± 69K
3: EX-3.2 Resolution 1 9K
4: EX-10.1 Amendment No. 1 7± 27K
5: EX-10.2 Amendment No. 1 7± 28K
6: EX-10.3 Amendment No. 2 7± 26K
7: EX-10.4A 1995 Key Employee Variable Pay Plan 1 6K
8: EX-10.5A 1995 Officers Variable Pay Plan 1 6K
9: EX-10.6A Letter Agreement 2± 12K
10: EX-10.7A Retirement Plan 7± 40K
11: EX-10.8AC Executive Agreement 15± 69K
12: EX-10.9AC Executive Agreement 15± 66K
13: EX-23.1 Independent Auditors' Consent 1 7K
14: EX-27 Financial Data Schedule 1 8K
EXHIBIT 10.1
AMENDMENT NO. 1
Decommissioning Trust Agreement
(PVNGS Unit 1)
Dated as of July 1, 1991
between
Arizona Public Service Company
and
Mellon Bank, N.A.
as Decommissioning Trustee
This Amendment No. 1, dated as of December 1, 1994, to the
Decommissioning Trust Agreement (PVNGS Unit 1), dated as of July 1, 1991 (the
"Decommissioning Trust Agreement"; terms used herein as therein defined), is
entered into between Arizona Public Service Company ("APS") 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 Exhibits B-1
and B-2 to the Decommissioning Trust Agreement and to clarify certain matters
regarding commingling of assets;
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. Amendments.
(a) Section 8(a) of the Decommissioning Trust Agreement is hereby
amended by replacing the words "Exhibits B-1 and B-2, respectively" therein with
the words "Exhibit B."
(b) The definition of the term "Permitted Investments" in Exhibit A to
the Decommissioning Trust Agreement is hereby amended by replacing the words
"Exhibits B-1 and B-2 hereto, respectively" with the words "Exhibit B."
(c) Exhibits B-1 and B-2 to the Decommissioning Trust Agreement are
hereby deleted and are replaced in their entirety by Exhibit B hereto.
(d) Section 6 of the Decommissioning Trust Agreement is hereby amended
in its entirety to read in full as follows:
Section 6. Commingling of Funds. APS and the Decommissioning Trustee
recognize that the assets of the funds established under the Unit 2 Trust
Agreement, certain funds established under the Unit 3 Trust Agreement, and the
Funds established under this Agreement have in the past been commingled, and
that such practice as it relates to the funds established under the Unit 2 Trust
Agreement was discontinued with respect to investments made after January 31,
1992. Notwithstanding that there shall be no further commingling of the assets
of the funds established under the Unit 2 Trust Agreement with the assets of any
fund(s) or Fund(s) established under the Unit 3 Trust Agreement or this
Agreement, APS desires the Decommissioning Trustee to allow or continue to allow
commingling of the assets of the Second Fund hereunder with the assets of the
"Second Fund" established under the Unit 3 Trust Agreement (the "Unit 3 Second
Fund" and, together with the Second Fund hereunder, the "Second Funds"), with
expenses, fees, income, profits and losses being apportioned among such funds as
provided in Section 21, so long as and to the extent that (a) such commingling
is permitted under the Regulations and (b) APS has not given written
notification to the Decommissioning Trustee, as provided below.
APS further desires the Decommissioning Trustee to allow or continue
to allow commingling of the assets of the Decommissioning Trust Fund hereunder
with the assets of the "Decommissioning Trust Fund" established under the Unit 3
Trust Agreement (the "Unit 3 Decommissioning Trust Fund" and, together with the
Decommissioning Trust Fund hereunder, the "Decommissioning Trust Funds"), with
expenses, fees, income, profits and losses being apportioned among such funds as
provided in Section 21.
APS and the Decommissioning Trustee recognize that no assets of any of
the Decommissioning Trust Funds have in the past been commingled with the assets
of any of the Second Funds. However, APS and the Decommissioning Trustee agree
that in the event that APS determines (and gives written notification to the
Decommissioning Trustee of such determination) that such commingling (a) is
permitted under the Regulations and other regulations promulgated under the Code
and (b) is otherwise advisable, the Decommissioning Trustee will allow
commingling of the assets of any or all of the Decommissioning Trust Funds with
the assets of any or all of the Second Funds, as instructed by APS, with
expenses, fees, income profits and losses being apportioned among such funds as
provided in Section 21, so long as and to the extent that (a) such commingling
continues to be permitted under the Regulations and other regulations
promulgated under the Code and (b) APS has not given written notification to the
Decommissioning Trustee, as provided below.
APS and the Decommissioning Trustee further agree that in the event
that either (x) amendments to the Regulations (or regulations promulgated under
any other section of the Code) are adopted which prohibit the manner of
commingling hitherto practiced by the Second Funds or the manner of commingling
of assets of the Decommissioning Trust Fund(s) with assets of the Second Fund(s)
established under the previous paragraph, or (y) APS determines (and gives
written notification to the Decommissioning Trustee of such determination) that
it is advisable to prohibit or otherwise alter the manner of commingling
hitherto practiced by the Second Funds or the Decommissioning Trust Funds or the
manner of such commingling established under the previous paragraph, then the
Decommissioning Trustee shall as soon as possible after the adoption of such
amendments or receipt of such notification, cooperate with the Investment
Manager(s) in taking such steps, including the selling of assets and any other
actions the Decommissioning Trustee deems advisable in the circumstances, to
cease commingling of assets or otherwise modify the investment practices of the
Second Funds and the Decommissioning Trust Funds to conform to such amendments
or such written notification. Decommissioning Trustee shall not be liable for
any claims made against it on account of the disqualification or asserted
disqualification of the Second Fund for any actions of the Decommissioning
Trustee taken prior to the adoption of any such amendments as contemplated in
this Section 6 or its receipt of written notification from APS as contemplated
in this Section 6, if such actions were otherwise in conformance with the
provisions of this Agreement.
Notwithstanding any other provision of this Agreement, with respect to
the commingling of Funds authorized by this Section 6, no part of any interest
of a Fund (or any interest of a subsequent holder) in a commingled investment,
nor any right pertaining to such interest (including any right to substitute
another entity for a Fund or for any subsequent holder, as holder of investments
commingled pursuant to this Agreement) may be sold, assigned, transferred or
otherwise alienated or disposed of by any holder of an interest in the
commingled investment unless the written consent to the transfer of every other
holder of interests in such commingled investment is obtained in advance of any
such transfer; provided, however, that nothing herein shall prevent the
Decommissioning Trustee from selling any commingled investment in the normal
exercise of its powers under this Agreement.
Notwithstanding the preceding paragraph of this Section 6, a Fund's
interest in a commingled arrangement may be withdrawn from the commingled
investment (but not from the trusts hereunder, except as otherwise permitted by
this Agreement) at any time upon 7 days written notice to the Decommissioning
Trustee by such Fund (acting through APS or any successor duly appointed). If a
Fund withdraws its entire interest in a commingled investment, the commingled
arrangement shall terminate with respect to all holders of interests in the
commingled arrangement 30 days after notice of final withdrawal has been given.
Upon termination of the commingled arrangement, the assets of each of the Funds
will be segregated into a separate account under this Agreement and the Unit 3
Trust Agreement and no further commingling may occur except upon notice of the
Fund, which notice may not be effective for a period of at least one year after
such termination.
This Section 6 applies to transfers of interests within, and
withdrawals from, the commingled arrangement. Nothing within this Section 6
shall be interpreted to permit or to limit transfers of interests in, or
withdrawals from, a Fund, which transfers and withdrawals are governed by other
provisions of this Agreement.
SECTION 2. Effectiveness.
This Amendment No. 1 shall become effective as of the date hereof upon
the execution and delivery of a counterpart of this Amendment No. 1 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. 1 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. 1 by signing any such
counterpart.
(c) Arizona Law.
This Amendment No. 1 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.
1 to the Decommissioning Trust Agreement to be duly executed as of the day and
year first above written.
ARIZONA PUBLIC SERVICE COMPANY
By Nancy E. Newquist
---------------------------
Title Treasurer
---------------------------
MELLON BANK N.A., as
Decommissioning Trustee
By Earl Kleckner
--------------------------
Title Vice President
--------------------------
STATE OF ARIZONA )
) ss.
County of Maricopa )
The foregoing instrument was acknowledged before me this 17th day of
November, 1994, by Nancy E. Newquist, the Treasurer of ARIZONA PUBLIC SERVICE
COMPANY, an Arizona corporation, on behalf of said corporation.
Maria R. Marrs
---------------------------------------
Notary Public
My commission expires:
July 21, 1998
--------------------------
STATE OF PENNSYLVANIA )
---------------------
) ss.
County of Allegheny )
---------
The foregoing instrument was acknowledged before me this 23rd day of
November, 1994, by Earl Kleckner, a Trust Officer of MELLON BANK, N.A., a
corporation having trust powers, as Decommissioning Trustee, on behalf of said
corporation.
Denise A. Fuhrer
--------------------------
Notary Public
My commission expires:
Notarial Seal
-------------
Denise A. Fuhrer, Notary Public
Pittsburgh, Allegheny County
My Commission Expires December 3, 1998
Member, Pennsylvania Association of Notaries
Exhibit B
PERMITTED INVESTMENTS FOR THE
DECOMMISSIONING TRUST FUND AND THE SECOND FUND
The Second Fund must meet all applicable requirements of the Code, and
applicable rules and regulations promulgated by the Internal Revenue Service
with respect to a Nuclear Decommissioning Reserve Fund.
Subject to the foregoing, the Decommissioning Trust Fund and the
Second Fund may invest in any of the following:
Securities
----------
Except as may be constrained elsewhere in these guidelines, the
following types of taxable or tax-exempt securities are eligible for investment,
including any investment in a common or collective trust fund (including but not
limited to, any such fund maintained by the Decommissioning Trustee or any of
its affiliates, including but not limited to, the Decommissioning Trustee's
Nuclear Decommissioning Trust Equity Index Fund) holding any securities listed
in items 1 through 3 below:
1. Debt Obligations of
- The U.S. Government and its agencies or instrumentalities
- States, U.S. possessions, District of Columbia, and any agency
or political subdivision thereof
- Domestic corporations
- Municipalities and municipal agencies
2. Asset-backed and mortgage-backed securities
3. Equities
4. FDIC Certificates of Deposit, including but not limited to,
those of the Decommissioning Trustee or any of its affiliates
5. Shares of regulated investment companies, including
but not limited to, mutual funds, including but not limited to,
those for which the Decommissioning Trustee performs advisory
management or other services for a fee
6. Cash equivalent securities, including but not limited
to, the Decommissioning Trustee's STIF accounts or those of
any of its affiliates
Quality
-------
1. Debt obligations other than U.S. Government and agency
securities must have a rating of at least A by both Moody's
Investors Services, Inc. ("Moody's") and Standard & Poor's
Ratings Group ("S & P") at time of purchase. This limitation
shall not apply to securities that have been pre-refunded
where a third party trustee holds direct U.S. Government or
agency obligations sufficient to pay debt service and the
specified call price to a specific call or maturity date.
2. Commercial paper must be rated at least A-1 by S&P and P-1
by Moody's.
3. Certificates of Deposit must be at a bank with a minimum
of one billion dollars in assets as of such bank's most recent
report of condition.
Diversification
---------------
No investment shall represent more than 10% of the aggregate assets held under
this Decommissioning Trust Agreement, the Unit 2 Trust Agreement, and the Unit 3
Trust Agreement combined, except for:
1. Positions in securities issued by the U.S. Government or
fully government backed securities or instruments fully
pre-refunded where a third party trustee holds direct U.S.
Government or agency obligations sufficient to pay debt service
and the specified call price to a specific call or maturity date.
2. Units of a common or collective trust fund.
Equity securities are limited to 60% of the aggregate assets held under this
Decommissioning Trust Agreement, the Unit 2 Trust Agreement, and the Unit 3
Trust Agreement combined.
Notwithstanding the foregoing, the following restrictions are placed
on the investment of the assets of the Funds:
1. Securities of APS, APS' parent corporation, Pinnacle West
Capital Corporation, or its affiliates, are not permitted.
2. Securities issued by Maricopa County, Arizona Pollution Control
Corporation in connection with the financing of certain facilities at the
Palo Verde Nuclear Generation Station are not permitted.
3. Securities issued by or on behalf of any participant in the Palo
Verde Nuclear Generating Station are not permitted.
4. The following securities and transactions are explicitly
prohibited unless engaged in in the ordinary course by a common
or collective trust fund described under the heading "Securities"
above:
(a) put and call options on securities, securities indices and
foreign currencies;
(b) financial futures contracts including bond, bond index,
foreign currency futures contracts and options thereon;
(c) spot and forward currency transactions both to effect
securities transactions and to manage currency;
(d) private placements;
(e) preferred stock;
(f) warrants;
(g) margin purchases or borrowing money; and
(h) short selling or securities lending.
Dates Referenced Herein and Documents Incorporated by Reference
4 Subsequent Filings that Reference this Filing
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