EXHIBIT 10.1.9.3
EXECUTION COPY
AMENDMENT No. 1
Dated as of April 2, 2002
To
LEASE AGREEMENT
between
HAWKEYE FUNDING, LIMITED PARTNERSHIP,
as Lessor
and
NEWINGTON ENERGY, L.L.C.,
as Lessee
This Amendment No. 1 has been manually executed in 40 counterparts, numbered
consecutively from 1 through 40, of which this is No. ___. To the extent, if
any, that this Amendment No. 1 constitutes chattel paper (as such term is
defined in the Uniform Commercial Code as in effect in any jurisdiction), no
security interest in this Amendment No. 1 may be created or perfected through
the transfer or possession of any counterpart other than the original
counterpart which shall be the counterpart identified as counterpart No. 1.
This Amendment No. 1 dated as of April 2, 2002 to Lease Agreement
("AMENDMENT NO. 1"), between HAWKEYE FUNDING, LIMITED PARTNERSHIP, a Delaware
limited partnership ("LESSOR"), and NEWINGTON ENERGY, L.L.C., a Delaware limited
liability company ("LESSEE"), amending the Original Lease referred to below.
WHEREAS, Lessor and Lessee have heretofore entered into a Lease
Agreement dated as of November 14, 2000 (the "ORIGINAL LEASE"); and
WHEREAS, Lessor and Lessee wish to amend the Original Lease as
hereinafter provided (the Original Lease, as amended hereby and as may hereafter
be further amended, modified, supplemented or restated from time to time, the
"LEASE");
NOW, THEREFORE, in consideration of the premises and in order to induce
Lessor to amend the Original Lease, the parties hereto agree as follows:
SECTION 1. DEFINITIONS. Capitalized terms used but not defined herein shall
have the meanings assigned to such terms in the Original Lease.
SECTION 2. AMENDMENTS. The Original Lease is hereby amended as follows:
2.1 Paragraph (c) of Section 12 of the Original Lease is amended by
deleting such paragraph and inserting the following in its place:
"(c) In the event the Lessee exercises its right to terminate the
lease of the Project pursuant to this Section 12 on the last day of
the last month of the Extended Term or on any Basic Rent Payment Date
during any Renewal Term or in the event a termination of the lease of
the Project occurs pursuant to paragraph (a) of Section 14 hereof or
the Lessee exercises its option under paragraph (e) of Section 13 to
arrange for the Project to be sold and the date on which such
termination occurs or such option is exercised is on or before the
last day of the last month of the Extended Term or during any Renewal
Term and the Lessee chooses to effect a sale pursuant to this
Section 12:
(i) if the Cash Proceeds are greater than the Adjusted
Acquisition Cost, the Lessor shall pay to the Lessee the
amount by which such Cash Proceeds exceed the Adjusted
Acquisition Cost;
(ii) if the Cash Proceeds are equal to or less than the
Adjusted Acquisition Cost, but greater than or equal to
the percentage of the Adjusted Acquisition Cost described
under the heading "Column I" on Exhibit H hereto and for
the periods described therein, the Lessee shall pay to the
Lessor an amount equal to (A) the Adjusted Acquisition
Cost less (B) the Cash Proceeds; and
(iii) if the Cash Proceeds are less than the percentage of the
Adjusted Acquisition Cost described under the heading
"Column I" on Exhibit H hereto and for the periods
described therein (or if there are no Cash Proceeds), the
Lessee shall pay to the Lessor an amount equal to the sum
-1-
of (A) the percentage of the Adjusted Acquisition Cost
described under the heading "Column II" on Exhibit H
hereto and for the periods described therein and (B) the
amount, if any, by which the residual value of the Project
has been reduced by wear and tear in excess of that
attributable to normal and proper use (the amount of such
excess wear and tear to be such amount as the Lessor and
the Lessee agree, or if no agreement is reached, the
amount determined pursuant to the Appraisal Procedure)."
2.2 Exhibit H to the Original Lease is amended by deleting such Exhibit
and inserting the following Exhibit H to read in its entirety in the
form attached hereto and made a part hereof as Annex I.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF LESSEE. Lessee hereby represents
and warrants as follows:
3.1 The execution, delivery and performance by Lessee of this Amendment
No. 1 are within Lessee's power and authority, have been duly
authorized by all necessary corporate action and do not contravene
Lessee's certificate of formation or the operating agreement, any law,
rule or regulation or any contractual restriction binding on or
affecting Lessee.
3.2 The representations and warranties of Lessee contained in the Original
Lease, after giving effect to this Amendment No. 1, are and remain
true and correct in all material respects on and as of the date of
this Amendment No. 1 with the same effect as though such
representations and warranties had been made on and as of such date,
except to the extent such representations and warranties expressly
relate specifically to an earlier date.
SECTION 4. MISCELLANEOUS.
4.1 Upon the effectiveness of Section 2 hereof: (a) each reference in the
Lease to "this Agreement", "hereunder", "hereof" or words of like
import referring to the Lease shall mean and be a reference to the
Lease as amended hereby, and (b) each reference in any other related
agreements to the "Lease", "thereunder", "thereof" or words of like
import referring to the Lease, shall mean and be a reference to the
Lease as amended hereby.
4.2 Except as specifically amended above, the Lease shall continue to be
in full force and effect and is hereby in all respects ratified and
confirmed.
4.3 THIS AMENDMENT NO. 1 SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
4.4 This Amendment No. 1 may be executed in any number of counterparts and
by different parties hereto in separate counterparts, each of which
when so executed and delivered shall be deemed to be an original and
all of which taken together shall constitute but one and the same
instrument.
[SIGNATURE PAGE FOLLOWS]
-2-
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1
to be duly executed as of the date first above written.
HAWKEYE FUNDING, LIMITED PARTNERSHIP
By Hawkeye Funding, Inc.,
its General Partner
By:
----------------------------------------------------
Name:
Title:
NEWINGTON ENERGY, L.L.C.
By:
----------------------------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President and Chief Operating Officer
-3-
ANNEX I
EXHIBIT H
SECTION 12(C) PERCENTAGES
DATES COLUMN I COLUMN II
------------------------- -------- ---------
07/01/2010 - 12/29/2010 10.50% 89.50%
12/30/2010 - 06/29/2011 11.00% 89.00%
06/30/2011 - 12/29/2011 11.51% 88.49%
12/30/2011 - 06/29/2012 12.06% 87.94%
06/30/2012 - 12/29/2012 12.63% 87.37%
12/30/2012 - 06/29/2013 13.23% 86.77%
06/30/2013 - 12/29/2013 13.86% 86.14%
12/30/2013 - 06/29/2014 14.52% 85.48%
06/30/2014 - 12/29/2014 15.21% 84.79%
12/30/2014 - 06/29/2015 15.94% 84.06%
06/30/2015 - 12/29/2015 16.70% 83.30%
12/30/2015 - 06/29/2016 17.51% 82.49%
06/30/2016 - 12/29/2016 18.35% 81.65%
12/30/2016 - 06/29/2017 19.24% 80.76%
06/30/2017 - 12/29/2017 20.17% 79.83%
12/30/2017 - 06/29/2018 21.15% 78.85%
06/30/2018 - 12/29/2018 22.18% 77.82%
12/30/2018 - 06/29/2019 23.27% 76.73%
06/30/2019 - 12/29/2019 24.41% 75.59%
12/30/2019 - 06/29/2020 25.62% 74.38%
06/30/2020 - 12/29/2020 26.88% 73.12%
12/30/2020 - 06/29/2021 28.22% 71.78%
06/30/2021 - 12/29/2021 29.63% 70.37%
12/30/2021 - 06/29/2022 31.12% 68.88%
06/30/2022 33.13% 66.87%
-5-
