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MIDWEST POWER COMPANY - TRUST A Exhibit 10(e)
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AMENDMENT NO. 2
dated as December 12, 1997
to
FACILITY LEASE
dated as of September 30, 1987
as amended February 26, 1988
among
FIRST UNION TRUST COMPANY, NATIONAL ASSOCIATION
not in its individual capacity, but solely
as Owner Trustee for Xxxxx Xxxxxxxxx 1987 Trust A
under and pursuant to a Trust Agreement,
dated as of September 30, 1987, with
MIDWEST POWER COMPANY
as Lessor
and
THE TOLEDO EDISON COMPANY
and
THE CLEVELAND ELECTRIC ILLUMINATING COMPANY,
as Lessees
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NOTE: CERTAIN RIGHTS OF THE LESSOR UNDER THIS LEASE AGREEMENT AS AMENDED HAVE
BEEN ASSIGNED TO AND ARE SUBJECT TO A SECURITY INTEREST IN FAVOR OF IBJ
XXXXXXXX BANK & TRUST COMPANY, INDENTURE TRUSTEE, UNDER AND TO THE EXTENT SET
FORTH IN THE TRUST INDENTURE, MORTGAGE, SECURITY AGREEMENT AND ASSIGNMENT OF
LEASE, DATED AS OF SEPTEMBER 30, 1987, AS AMENDED AND SUPPLEMENTED BETWEEN
MERIDIAN TRUST COMPANY (PREDECESSOR TO FIRST UNION TRUST COMPANY, NATIONAL
ASSOCIATION), AS OWNER TRUSTEE FOR XXXXX XXXXXXXXX 1987 TRUST A (UNDER AND
PURSUANT TO A TRUST AGREEMENT, DATED AS OF SEPTEMBER 30, 1987, AS AMENDED,
BETWEEN SUCH PARTY AND MERIDIAN TRUST COMPANY, PREDECESSOR TO FIRST UNION TRUST
COMPANY, NATIONAL ASSOCIATION) AND IBJ XXXXXXXX BANK & TRUST COMPANY, AS
INDENTURE TRUSTEE, AS SUCH INDENTURE MAY BE AMENDED, MODIFIED OR SUPPLEMENTED
FROM TIME TO TIME IN ACCORDANCE WITH THE PROVISIONS THEREOF. THIS AMENDMENT NO.
2 HAS BEEN EXECUTED IN SEVERAL COUNTERPARTS. SEE SECTION 3(d) OF THIS AMENDMENT
NO. 2 FOR INFORMATION CONCERNING THE RIGHTS OF HOLDERS OF VARIOUS COUNTERPARTS
HEREOF.
THIS COUNTERPART IS NOT THE ORIGINAL COUNTERPART.
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MIDWEST POWER COMPANY - TRUST A
AMENDMENT NO. 2, dated as of December 12, 1997 ("Amendment
No. 2"), to the Facility Lease, dated as of September 30, 1987, as amended by
Amendment No. 1 thereto, dated as of February 26, 1988, all as in effect on the
date hereof (the "Facility Lease"), among FIRST UNION TRUST COMPANY, NATIONAL
ASSOCIATION, a national banking association (successor to Meridian Trust
Company), not in its individual capacity, but solely as Owner Trustee under a
Trust Agreement, as amended, dated as of September 30, 1987, with the Owner
Participant identified on the cover page hereof (in such capacity, the
"Lessor"), THE TOLEDO EDISON COMPANY, an Ohio corporation ("Toledo Edison"),
and THE CLEVELAND ELECTRIC ILLUMINATING COMPANY, an Ohio corporation
("Cleveland Electric") (Cleveland Electric and Toledo Edison being collectively
referred to as the "Lessees"),
W I T N E S S E T H:
WHEREAS, the Lessees and the Lessor have heretofore entered
into the Facility Lease providing for the lease by the Lessor to the Lessees of
the Undivided Interest; and
WHEREAS, Section 3(f) of the Facility Lease provides for an
adjustment to the Basic Lease Rate Factors and the Stipulated Loss Value,
Termination Value and Special Termination Value percentages in the event, among
other things, Refunding Notes are issued resulting in a change in the actual
interest rate payable on the Secured Notes, the dates on which interest is
payable thereon, the amortization schedules and/or the debt/equity ratio; and
WHEREAS, Section 8.01 of the Indenture provides, among other
things, that the Lessor and Indenture Trustee may, without the consent of any
Holder of Secured Notes, execute a supplement to the Indenture in order to
establish and issue the Refunding Notes in accordance with Section 2.12 of the
Indenture; and
WHEREAS, pursuant to that certain Refinancing Agreement dated
as of December 12, 1997, between the parties hereto and others, the Lessor and
the Indenture Trustee intend to execute a Supplemental Indenture No. 2 to the
Indenture, dated the date hereof, providing for the issuance of one new
promissory note;
NOW, THEREFORE, in consideration of the premises and of other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
SECTION 1. DEFINITIONS.
For purposes hereof, capitalized terms used herein and not
otherwise defined herein or in the recitals shall have the meanings assigned to
such terms in the Facility Lease.
SECTION 2. AMENDMENTS.
(i) Schedule 1 entitled "Basic Lease Rate Factors"
is deleted in its entirety and is hereby replaced with Schedule 1
hereto.
(ii) Schedule 2 entitled "Stipulated Loss Value" is
deleted in its entirety and is hereby replaced with Schedule 2
hereto.
(iii) Schedule 3 entitled "Termination Value" is
deleted in its entirety and is hereby replaced with Schedule 3
hereto.
(iv) Schedule 4 entitled "Special Termination Value"
is deleted in its entirety and is hereby replaced with Schedule 4
hereto.
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MIDWEST POWER COMPANY - TRUST A
SECTION 3. MISCELLANEOUS.
(a) Execution. The actual dates of execution hereof by the
parties hereto are respectively the dates set forth under the signatures
hereto; however, this Agreement shall be effective as of the date first written
above. This Amendment No. 2 shall be effective as of December 12, 1997 (the
"Effective Date"). This Amendment No. 2 amends and modifies the Facility Lease
and is to be read with and form part of the Facility Lease. On and from the
Effective Date, any reference in any Operative Document to the Facility Lease
shall be deemed to refer to the Facility Lease as amended and modified by
Amendment No. 1 thereto, dated as of February 26, 1988, and by this Amendment
No. 2.
(b) Non-Waiver or Amendment. The agreements contained in this
Amendment shall not, except as expressly provided in this Amendment, operate as
a waiver of any right, power or remedy of any party under any Operative
Document, nor constitute, except as expressly provided in this Amendment, a
waiver of any provision of any Operative Document.
Except as amended hereby, the Facility Lease shall continue
in full force and effect in accordance with the provisions thereof.
(c) Governing Law. This Amendment No. 2 shall be governed by
and construed in accordance with the laws of the State of New York, except to
the extent that the laws of the Commonwealth of Pennsylvania govern the
creation of, and perfection of, interest in property (whether real or personal)
and except to the extent that the Federal laws of the United States are
mandatorily applicable.
[The remainder of this page intentionally left blank.]
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MIDWEST POWER COMPANY - TRUST A
(d) Original Counterpart. The single executed original of
this Amendment No. 2 marked "THIS COUNTERPART IS THE ORIGINAL COUNTERPART" and
containing the receipt of the Lease Indenture Trustee thereon shall be the
"Original" of this Amendment No. 2. No security interest in this Amendment No.
2 may be created or continued through the transfer or possession of any
counterpart other than the "Original."
IN WITNESS WHEREOF, intending to be legally bound, each of
the parties hereto has caused this Amendment No. 2 to Facility Lease to be duly
executed by an officer thereunto duly authorized.
FIRST UNION TRUST COMPANY, NATIONAL
ASSOCIATION, not in its individual
capacity, but solely as Owner Trustee
for Xxxxx Xxxxxxxxx 1987 Trust A under
and pursuant to a Trust Agreement dated
as of September 30, 1987 between
Meridian Trust Company, predecessor to
First Union Trust Company, National
Association and Midwest Power Company
ATTEST:
[Corporate Seal] By: /s/ XXXXXX X. XXXXXX, XX.
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By: /s/ X. Xxxxxxx Name: Xxxxxx X. Xxxxxx, Xx.
Title: Vice President Title: Assistant Vice President
Date: November 14, 1997
THE TOLEDO EDISON COMPANY
and
THE CLEVELAND ELECTRIC
ILLUMINATING COMPANY
ATTEST:
[Corporate Seal] By: /s/ XXXXXXXX X. XXXXXX XX
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By:/s/ Xxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx XX
Title: Secretary Title: Treasurer of each
Date: November 14, 1997
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MIDWEST POWER COMPANY - TRUST A
CERTIFICATE OF SERVICE
The Lessee, The Toledo Edison Company, hereby certifies that
its precise address is 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxx 00000.
By: /s/ XXXXXXXX X. XXXXXX XX
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Name: Xxxxxxxx X. Xxxxxx XX
Title: Treasurer
Date: December 15, 1997
CERTIFICATE OF SERVICE
The Lessee, The Cleveland Electric Illuminating Company,
hereby certifies that its precise address is 00 Xxxxx Xxxx Xxxxxx, Xxxxx, Xxxx
00000.
By: /s/ XXXXXXXX X. XXXXXX XX
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Name: Xxxxxxxx X. Xxxxxx XX
Title: Treasurer
Date: December 15, 1997
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MIDWEST POWER COMPANY - TRUST A
STATE OF OHIO )
) ss:
COUNTY OF SUMMIT )
BEFORE ME, a Notary Public in and for said County and State,
personally appeared the above-named THE TOLEDO EDISON COMPANY, by Xxxxxxxx X.
Xxxxxx XX, its Treasurer, who acknowledged that he/she did sign the foregoing
instrument on behalf of said corporation by authority of its Board of Directors
and that the same is the free act and deed of said corporation and his/her free
act and deed individually and as such officer.
IN TESTIMONY WHEREOF, I have hereunto set my hand and
official seal at Akron, Ohio this 14th day of November, 1997.
/s/ XXXXXXX X. XXXXXXXX
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Notary Public
My Commission Expires: February 24, 0000
XXXXX XX XXXX )
) ss:
COUNTY OF SUMMIT )
BEFORE ME, a Notary Public in and for said County and State,
personally appeared the above-named THE CLEVELAND ELECTRIC ILLUMINATING
COMPANY, by Xxxxxxxx X. Xxxxxx XX, its Treasurer, who acknowledged that he/she
did sign the foregoing instrument on behalf of said corporation by authority of
its Board of Directors and that the same is the free act and deed of said
corporation and his/her free act and deed individually and as such officer.
IN TESTIMONY WHEREOF, I have hereunto set my hand and
official seal at Akron, Ohio this 14th day of November, 1997.
/s/ XXXXXXX X. XXXXXXXX
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Notary Public
My Commission Expires: February 24, 1998
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MIDWEST POWER COMPANY - TRUST A
STATE OF DELAWARE )
) ss:
COUNTY OF NEW CASTLE )
On this 14th day of December, 1997, before me, the
undersigned notary public, personally appeared Xxxxxx X. Xxxxxx, Xx. who
acknowledged himself to be a Assistant Vice President of WILMINGTON TRUST
COMPANY, a Delaware trust company, and that he, as such officer being
authorized to do so, executed the foregoing instrument in the capacity and for
the purposes therein contained by signing the name of the trust company by
himself as such officer.
IN TESTIMONY WHEREOF, I have hereunto set my hand and
official seal.
[Notarial Seal]
/s/ XXXXXX X. XXX
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Notary Public
My Commission Expires: May 14, 1999
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MIDWEST POWER COMPANY - TRUST A
SCHEDULE 1
TO AMENDMENT NO. 2
TO FACILITY LEASE
BASIC LEASE RATE FACTORS
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Date % of Facility Cost
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MIDWEST POWER COMPANY - TRUST A
SCHEDULE 2
TO AMENDMENT NO. 2
TO FACILITY LEASE
STIPULATED LOSS VALUE
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Date % of Facility Cost
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MIDWEST POWER COMPANY - TRUST A
SCHEDULE 3
TO AMENDMENT NO. 2
TO FACILITY LEASE
TERMINATION VALUE
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Date % of Facility Cost
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MIDWEST POWER COMPANY - TRUST A
SCHEDULE 4
TO AMENDMENT NO. 2
TO FACILITY LEASE
SPECIAL TERMINATION VALUE
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Date % of Facility Cost
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