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EXHIBIT 10-V
SECOND AMENDED AND RESTATED
TRUST AGREEMENT
Dated as of November 5, 1998
Among
LORD FUEL CORP., as Trustor
and
UNITED STATES 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
---------------
45909v4
TRUST AGREEMENT
TABLE OF CONTENTS
1 DEFINITION 2
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 3
2.3 Name of Trust 3
2.4 No Other Business or Obligation 3
2.5 No Disposition of Owner Trust Estate 3
3 TRUSTOR'S INTEREST 4
3.1 Investment by Trustor 4
3.2 Payment from Proceeds of Owner Trust Estate Only 4
3.3 Manner of Payment 4
4 ACQUISITION AND FINANCING OF NUCLEAR MATERIAL 4
4.1 Authorization of Transactions 4
4.2 Closing Procedures 7
4.3 Conditions to Effecting Transactions 8
5 RECEIPT, DISTRIBUTION AND APPLICATION OF INCOME
FROM THE OWNER TRUST ESTATE 8
5.1 Application of Proceeds of Financings and
Specific Payments 8
5.2 Amounts Payable to the Banks 8
5.3 Other Amounts 8
5.4 Excepted Payments 8
6 DUTIES OF THE OWNER TRUSTEE 9
6.1 Documents 9
6.2 Notice of Default 9
6.3 Indemnification; Legal Action 9
6.4 No Implied Duties 10
6.5 No Unauthorized Transaction 10
7 THE OWNER TRUSTEE 11
7.1 Acceptance of Trust, Etc. 11
7.2 Limitation of Duties 12
7.3 Representations and Warranties of Owner Trustee 12
7.4 Deposit of Funds 13
7.5 Reliance on Documents; Agents; Right to
Consult with Counsel and Others; Etc. 13
7.6 Not Acting in Individual Capacity 14
7.7 Interpretation of Trust Agreement 14
7.8 Compensation 14
7.9 Books, Records and Tax Returns 15
7.10 Effect of Sales by a Company 16
7.11 Exculpatory Provisions 16
8 INDEMNIFICATION OF THE OWNER TRUSTEE 17
9 CO-TRUSTEE, SEPARATE TRUSTEE 19
10 SUCCESSOR TRUSTEES 21
11 SUPPLEMENTS AND AMENDMENTS TO THIS TRUST AGREEMENT
AND THE BASIC DOCUMENTS 23
11.1 Supplements Upon Request of the Lessee 23
11.2 Amendments and Supplements Affecting
Owner Trustee 24
12 TERMINATION OF TRUST, ETC. 24
13 MISCELLANEOUS 25
13.1 Legal Title to Owner Trust Estate 25
13.2 Validity of Sale of Owner Trustee 25
13.3 Trust Agreement for Benefit of Parties thereto 26
13.4 Notices 26
13.5 Severability 26
13.6 Waivers, Etc. 26
13.7 Counterparts 27
13.8 Successors and Assigns 27
13.9 Headings 27
13.10 Self-Dealing 27
13.11 Governing Law 27
13.12 No Unauthorized Transactions 28
13.13 Rights and Remedies 28
SECOND AMENDED AND RESTATED TRUST AGREEMENT, dated as of November 5,
1998 (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. The Companies entered into credit agreements and related
instruments pursuant to which a bank syndicate, for which Union Bank of
Switzerland, New York Branch ("UBS") acted as agent, provided financing for the
acquisition of Nuclear Material being leased under the Lease Agreements.
E. The parties to the Original Trust Agreement entered into an
Amended and Restated Trust Agreement to reflect necessary modifications
consistent with the establishment of the credit facility with UBS.
F. Concurrent with the execution and delivery hereof, The Companies
are entering into new credit agreement and related instruments pursuant to which
a bank syndicate, for which The First National Bank of Chicago and PNC Bank,
National Association, will act as agents, will provide financing for the
acquisition of the Nuclear Material being leased under the Lease Agreements.
G. The parties to the Amended and Restated Trust Agreement desire to
amend and restate such Agreement to reflect necessary modifications consistent
with the establishment of such new credit facility.
H. 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:
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.
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
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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 contemplated 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 the Basic Documents and the
transactions and Obligations contemplated 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.
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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.
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 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;
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(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 agreements, 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 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;
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(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 pursuant 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.
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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.
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.
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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 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
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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 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.
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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.
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 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.
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(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.
Notwithstanding 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.
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
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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
13
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 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.
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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 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 PricewaterhouseCoopers 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
15
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 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
16
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.
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 and each of the successors, assigns, agents,
representatives and servants, in the case of the Owner Trustee including but not
limited to the 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,
17
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 indemnities, 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 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.
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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 obligations
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;
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(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
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
20
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.
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,
21
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 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,
22
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
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.
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
23
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.
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 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
24
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 GPU, Inc. 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.
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.
25
13.3 Trust Agreement for Benefit of Parties thereto. Nothing in this
Trust Agreement, whether expressed or implied, 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, 2 Wall Street, 19th Floor, New York, New York
10005, 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, 114 West 47th Street, New York, New York
10036, Attention: Corporate Trust and Agency Division, Fax: (212) 852-1625; (c)
if to the Lessees, addressed to them at Jersey Central Power & Light Company,
Metropolitan Edison Company and Pennsylvania Electric Company, 2800 Pottsville
Pike, Reading, Pennsylvania 19640, Attention: Comptroller; with a copy to GPU
Service, Inc., 310 Madison Avenue, Morristown, New Jersey 07962-1957, 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.
26
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.
13.8 Successors and Assigns. All covenants and agreements 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.
27
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.
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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.
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:
--------------------------------
Title:
--------------------------------
29
Witnesses: METROPOLITAN EDISON COMPANY
- ----------------------
______________________ By: ______________________________
Name: _____________________________
Title: _____________________________
Witnesses: PENNSYLVANIA ELECTRIC COMPANY
- ----------------------
By:
- ---------------------- --------------------------------
Name:
--------------------------------
Title:
--------------------------------
30
STATE OF ------------ )
: ss:
COUNTY OF ------------)
On this 5th day of November, 1998, 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:
31
STATE OF -------------)
: ss:
COUNTY OF ------------)
On this 5th day of November, 1998, 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:
32
STATE OF NEW JERSEY)
: ss:
COUNTY OF MORRIS )
On this 5th day of November, 1998, before me personally appeared
- -----------------, to me personally known, who, being by me duly sworn, says
that he is a --------------- 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:
33
STATE OF NEW JERSEY)
: ss:
COUNTY OF MORRIS )
On this 5th day of November, 1998, before me personally appeared
- ------------------, to me personally known, who, being by me duly sworn, says
that he is a --------------- 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:
34
STATE OF NEW JERSEY)
: ss:
COUNTY OF MORRIS )
On this 5th day of November, 1998, before me personally appeared
- -----------------, to me personally known, who, being by me duly sworn, says
that he is a -------------- 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:
35
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.
"Bank" 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 Notes, the Letter Agreements,
the Assigned Agreements, the Assignment Agreements, the Trust Agreement, the
Depositary Agreements, each Bill 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.
36
"Bill of Sale" means a bill of sale substantially in the forms of
Exhibit E to the Lease Agreements, pursuant to which 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 5, 1998.
"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 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 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.
37
"Credit Agreements" means (i) the Credit Agreement, dated as of
November 5, 1998, between TMI-1 Fuel Corp. (ii) the Credit Agreement, dated as
of November 5, 1998 between Oyster Creek Fuel Corp. and The First National Bank
of Chicago, as Administrative Agent, PNC Bank, National Association, as
Syndication Agent, the Banks parties thereto and First Chicago Capital Markets,
Inc. and PNC Capital Markets Inc., as Arrangers, and, as each may be amended
from time to time.
"Depositary Agreements" means (i) the Depositary Agreement, dated as
of November 5, 1998 among TMI-1 Fuel Corp., The Chase Manhattan Bank and The
First National Bank of Chicago.
"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 B 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.
38
"Lease Agreements" means (i) the Second Amended and Restated Nuclear
Material Lease Agreements each dated as of November 5, 1998 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 Facility, and
(ii) the Second Amended and Restated Nuclear Material Lease Agreement, dated as
of November 5, 1998 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, supplemented 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 5, 1998 between the Lessees, the Companies and The First National Bank
of Chicago, as Administrative Agent, as the same may be amended from time to
time.
"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.
39
"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 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;
40
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 Comptroller 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., 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.
41
"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 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.
42
"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 5,
1998, (ii) Metropolitan Edison Company Security Agreement and Assignment of
Contracts dated as of ------------, 1998 and (iii) Pennsylvania Electric Company
Security Agreement and Assignment of Contract dated as of November 5, 1998
between TMI-1 Fuel Corp. and the Secured Parties and (iv) the Security Agreement
and Assignment of Contracts, dated as of November 5, 1998, 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 Second Amended and Restated Trust
Agreement dated as of November 5, 1998, 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.
"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.
43