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Exhibit 10(b)
CITICORP LESCAMAN, INC. - TRUST H
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AMENDMENT NO. 3
dated as of December 12, 1997
to
FACILITY LEASE
dated as of September 30, 1987
as amended February 26, 1988
and as amended as of June 13, 1997
among
WILMINGTON TRUST COMPANY,
not in its individual capacity, but solely
as Owner Trustee for Xxxxx Xxxxxxxxx 1987 Trust H
under and pursuant to a Trust Agreement,
dated as of September 30, 1987, with
CITICORP LESCAMAN, INC.,
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 WILMINGTON TRUST COMPANY), AS OWNER TRUSTEE FOR XXXXX
XXXXXXXXX 1987 TRUST H (UNDER AND PURSUANT TO A TRUST AGREEMENT, DATED AS OF
SEPTEMBER 30, 1987, AS AMENDED, BETWEEN SUCH PARTY AND MERIDIAN TRUST COMPANY,
PREDECESSOR TO WILMINGTON TRUST COMPANY) 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.
3 HAS BEEN EXECUTED IN SEVERAL COUNTERPARTS. SEE SECTION 3(d) OF THIS AMENDMENT
NO. 3 FOR INFORMATION CONCERNING THE RIGHTS OF HOLDERS OF VARIOUS COUNTERPARTS
HEREOF.
THIS COUNTERPART IS NOT THE ORIGINAL COUNTERPART.
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CITICORP LESCAMAN, INC. - TRUST H
AMENDMENT NO. 3, dated as of December 12, 1997 ("Amendment No.
3"), to the Facility Lease, dated as of September 30, 1987, as amended by
Amendment No. 1 thereto, dated as of February 26, 1988 and as amended by
Amendment No. 2 thereto, dated as of June 13, 1997, all as in effect on the date
hereof (the "Facility Lease"), among WILMINGTON TRUST COMPANY, a Delaware trust
company (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, the Lessor and the Lessees have agreed to adjust the
Basic Lease Rate Factors and the Stipulated Loss Value, Termination Value and
Special Termination Value percentages in connection with the transactions
contemplated by the Second Amended and Restated Shippingport Trust Participation
Agreement, dated as of the date hereof; and
WHEREAS, subject to the terms and conditions hereof, the
Lessees propose to make a special payment of Basic Rent in the amount of
$800,908.58 (the "Special Rent Payment") to Wilmington Trust Company, as Owner
Trustee; and
WHEREAS, upon receipt of the Special Rent Payment from the
Lessees, Wilmington Trust Company shall make a payment of interest in the amount
of $763,113.78 on behalf of the Lessor to Mansfield Capital Trust;
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.
Schedules 1 through 3 of the Facility Lease are hereby amended as
follows:
(a) Schedule 1 entitled "Basic Lease Rate Factors" is
deleted in its entirety and is hereby replaced with Schedule 1 hereto
(which includes the Special Rent Payment).
(b) Schedule 2 entitled "Stipulated Loss Value" is
deleted in its entirety and is hereby replaced with Schedule 2
hereto.
(c) Schedule 3 entitled "Termination Value" is
deleted in its entirety and is hereby replaced with Schedule 3
hereto.
SECTION 3. MISCELLANEOUS.
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CITICORP LESCAMAN, INC. - TRUST H
(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. 3 shall be effective
as of the date upon which the Owner Trustee receives the Special Rent
Payment as provided in the Facility Lease (the "Effective Date").
This Amendment No. 3 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 by Amendment No. 2 thereto, dated as of June 13, 1997, and
by this Amendment No. 3.
(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. 3 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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CITICORP LESCAMAN, INC. - TRUST H
(d) Original Counterpart. The single executed original of
this Amendment No. 3 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. 3. No
security interest in this Amendment No. 3 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. 3 to Facility Lease to be
duly executed by an officer thereunto duly authorized.
WILMINGTON TRUST COMPANY, not in its individual capacity,
but solely as Owner Trustee for Xxxxx Xxxxxxxxx 1987 Trust H under and pursuant
to a Trust Agreement dated as of September 30, 1987 between Meridian Trust
Company, predecessor to Wilmington Trust Company, and Citicorp Lescaman, Inc.
ATTEST:
[Corporate Seal] By: /s/ XXXXX X. XXXXXX
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By:__________________________ Name: Xxxxx X. Xxxxxx
Title:_______________________ Title: Financial Services Officer
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:__________________________ Name: Xxxxxxxx X. Xxxxxx XX
Title:_______________________ Title: Treasurer of each
Date: November 14, 1997
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CITICORP LESCAMAN, INC. - TRUST H
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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CITICORP LESCAMAN, INC. - TRUST H
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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CITICORP LESCAMAN, INC. - TRUST H
STATE OF DELAWARE )
) ss:
COUNTY OF NEW CASTLE )
On this 14th day of November, 1997, before me, the undersigned
notary public, personally appeared Xxxxx X. Xxxxxx who acknowledged himself to
be a Financial Services Officer 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/ XXXXXXXX X. XXXX
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Notary Public
My Commission Expires: July 12, 1999
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CITICORP LESCAMAN, INC. - TRUST H
SCHEDULE 1
TO AMENDMENT NO. 3
TO FACILITY LEASE
BASIC LEASE RATE FACTORS
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Date % of Facility Cost
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CITICORP LESCAMAN, INC. - TRUST H
SCHEDULE 2
TO AMENDMENT NO. 3
TO FACILITY LEASE
STIPULATED LOSS VALUE
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Date % of Facility Cost
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CITICORP LESCAMAN, INC. - TRUST H
SCHEDULE 3
TO AMENDMENT NO. 3
TO FACILITY LEASE
TERMINATION VALUE
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Date % of Facility Cost
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