Exhibit 10(d)31
SECOND AMENDMENT TO
DECOMMISSIONING TRUST AGREEMENT
This Second Amendment to Decommissioning Trust Agreement
("Second Amendment") made effective as of the 1st day of
November, 1995 by and between Gulf States Utilities Company
(the "Company"), and Mellon Bank, N.A. (the "Successor
Trustee").
WHEREAS, on March 15, 1989, the Company and Morgan
Guaranty Trust Company of New York (the "Trustee") entered
into a Decommissioning Trust Agreement (the "Trust
Agreement"), which provided for the establishment and
maintenance of a nuclear decommissioning reserve fund (the
"Trust Fund") to hold and invest revenues collected by the
Company for the decommissioning of Unit No. 1 of the River
Bend Steam Electric Generating Station; and
WHEREAS, as of April 8, 1992, in connection with the
promulgation of certain rules by the Public Utility
Commission of Texas applicable to the investment or
reinvestment of funds held under the Trust Agreement, the
Company and the Trustee entered into Amendment No. 1 to
Decommissioning Trust Agreement (the "First Amendment"); and
WHEREAS, the Company wishes to remove the Trustee,
continue to maintain the Trust Fund, and appoint Mellon Bank,
N.A. as Successor Trustee; and
WHEREAS, Mellon Bank, N.A. is a national banking
association with trust powers and has full power and
authority to enter into this Second Amendment; and
WHEREAS, Mellon Bank, N.A. is willing to serve as
Successor Trustee on the terms and conditions herein set
forth;
NOW, THEREFORE, the Company and Mellon Bank, N.A. agree
as follows:
1. In accordance with section 6.01 of the Trust
Agreement, as amended by the First Amendment, the Company
hereby appoints Mellon Bank, N.A. as Successor Trustee of the
Trust Fund, and Mellon Bank, N.A. hereby accepts such
appointment.
2. "Successor Trustee" shall mean Mellon Bank, N.A. and
any successor thereto.
3. "First Amendment" shall mean the Trust Agreement, as
amended by Amendment No. 1 to Decommissioning Trust Agreement
made effective on April 8, 1992.
4. The Company and the Successor Trustee agree to be
bound by the terms of the First Amendment, with the following
modifications:
a. The definitions of "Contribution," "Investment
Account," and "Order" in Article I of the First
Amendment are hereby amended by replacing
"Trustee" with "Successor Trustee."
b. All pertinent sections of the First Amendment
are hereby amended by replacing "Trustee" with
"Successor Trustee" unless the context clearly
requires otherwise.
c. Section 2.01 of the First Amendment is hereby
amended by adding the following additional
sentence at its conclusion:
"The assets of the Qualified Fund may be used
only in a manner authorized by Section 468A of
the Code and the regulations thereunder."
d. Section 2.03 of the First Amendment is hereby
amended to provide as follows:
"Acceptance of Appointment. Upon the terms and
conditions herein set forth, Mellon Bank, N.A.
accepts the appointment as Successor Trustee of
this Trust and each of the Funds.
Notwithstanding its acceptance of this
appointment, the Successor Trustee shall not be
responsible for the adequacy of the assets of
the Trust to pay amounts reflected in any
Certificate and shall make such payments only to
the extent of the assets of the Trust. The
Successor Trustee shall receive any
Contributions transferred to it by the Company
and shall hold, manage, invest and administer
such Contributions, together with earnings and
appreciation thereon. Notwithstanding the
foregoing sentence, the Successor Trustee is
under no duty to compel the Company to make any
Contribution to the Trust or to inquire into or
otherwise verify the correctness, accuracy or
amount of any such Contribution."
e. Section 2.08 of the First Amendment is hereby
amended by adding the following additional
sentence at its conclusion:
"The Agreement cannot be amended to violate
Section 468A of the Code or the regulations
thereunder."
f. The sixth sentence of Section 7.01 of the First
Amendment is hereby amended to provide as
follows:
"An Investment Manager shall certify in writing
to the Trustee that it is registered under the
Investment Advisers Act of 1940, or is a bank as
defined in that Act, shall accept its
appointment as Investment Manager, shall certify
the identity of the person or persons authorized
to give instructions or directions to the
Trustee on its behalf, including specimen
signatures, and shall undertake to perform the
duties imposed on it under an Investment Manager
Agreement."
g. Add a new Section 8.09 to provide as follows:
"Legal Proceedings. To commence or defend
suits or legal proceedings and represent the
Fund in all suits or legal proceedings in any
court or before any other body or tribunal as
the Trustee shall deem necessary to protect the
Fund.
Notwithstanding the provisions of this
Article VIII, to the extent any fiduciary powers
granted to the Trustee involve investment
discretion over assets managed by an Investment
Manager, and the Company does not otherwise
direct the Trustee in the exercise of such
power, the Trustee shall exercise such power at
the direction of the Investment Manager."
h. Paragraph (1) of Section 9.02 of the First
Amendment is hereby amended to provide as
follows:
"Unless such investment is permitted to be made
by Section 468A(e)(4)(c) of the Code, the
regulations thereunder, and any applicable
successor provisions; or"
i. Section 9.05 of the First Amendment is hereby
amended by adding the following wording to the
end of the last sentence:
"; and to hold uninvested cash in its commercial
bank or that of an affiliate, as it shall deem
reasonable or necessary; and to settle
investments in any collective investment fund,
including a collective investment fund
maintained by the Trustee or an affiliate and
appoint agents and sub-trustees; provided that
to the extent that any investment is made in any
such collective investment fund, the terms of
the collective trust indenture shall solely
govern the investment duties, responsibilities
and powers of the trustee of such collective
investment fund and , to the extent required by
law, such terms, responsibilities and powers
shall be incorporated herein by reference and
shall be a part of this Agreement and provided
further that the Company expressly understands
and agrees that any such collective investment
fund may provide for the lending of its
securities by the collective investment fund
trustee and that such collective investment fund
trustee will receive compensation for the
lending of securities that is separate from any
compensation of the Trustee hereunder, or any
compensation of the collective investment fund
trustee for the management of such fund; to
purchase or sell stock index future contracts
from time to time only to provide liquidity for
cash flows, and reduce tracking error due to
dividend accruals.
Notwithstanding anything else in this
Agreement to the contrary, including, without
limitation, any specific or general power
granted to the Trustee and to the Investment
Managers, including the power to invest in real
property, no portion of the Fund shall be
invested in real estate. For this purpose "real
estate" includes direct interests in real
property, leaseholds or mineral interests."
j. Section 10.04 of the First Amendment is hereby
amended to provide as follows:
"Any notice required by this Agreement to be
given to the Company or the Successor Trustee
shall be deemed to have been properly given when
mailed, postage prepaid, by registered or
certified mail, to the person to be notified as
set forth below:
If to the Company:
Gulf States Utilities Company
P.O. Box 61000
New Orleans, Louisiana 70161
Attention: Steven C. McNeal
If to the Successor Trustee:
Mellon Bank, N.A.
One Mellon Bank Center
Room 3346
Pittsburgh, Pennsylvania 15258-0001
Attention: Earl G. Kleckner
The Company or the Successor Trustee may change
the above addresses by delivering notice thereof
in writing to the other party."
k. Section 10.06 of the First Amendment is hereby
amended by replacing "New York" with "Texas".
IN WITNESS WHEREOF, the parties hereto have caused this
Second Amendment to be duly executed by their respective
authorized officers as of the effective date indicated on the
first page hereof.
GULF STATES UTILITIES COMPANY MELLON BANK, N.A. Successor Trustee
By: _________________________ By: _______________________________
William J. Regan, Jr.
Title: Vice President Title:
and Treasurer ____________________________
Date: Date:
____________________________ ____________________________
STATE OF LOUISIANA
PARISH OF ORLEANS
Personally came and appeared before me, the undersigned
authority, in and for the jurisdiction aforesaid,
__________________________________, who acknowledged to
me that he is _____________________________________ of
Gulf States Utilities Company and that he signed and
delivered the foregoing instrument on the day and year
therein mentioned as the act and deed of said
corporation, having first been duly authorized so to do.
Given under my hand and official seal on this the ___
day of _____________, 19____.
____________________________
NOTARY PUBLIC
My Commission is issued for life.
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF ALLEGHENY
Personally came and appeared before me, the
undersigned authority, in and for the jurisdiction
aforesaid, ___________________________, who acknowledged
to me that he is _________________________________ of
Mellon Bank, N.A. and that he signed and delivered the
foregoing instrument on the day and year therein
mentioned as the act and deed of said corporation,
having first been duly authorized so to do.
Given under my hand and official seal on this the ___
day of _____________, 19____.
_______________________
NOTARY PUBLIC
My Commission Expires: _________________