AMENDMENT NO. 4 to LEASE AGREEMENT
Exhibit
10.3
AMENDMENT
NO. 4
to
This
AMENDMENT
NO. 4,
dated
as of June 1, 2006, to Lease Agreement, dated as of December 1, 1985, between
TUCSON
ELECTRIC POWER COMPANY,
an
Arizona corporation (“TEP”), and SAN
XXXXXX RESOURCES INC.,
an
Arizona corporation (“San Xxxxxx”), jointly and severally as Lessee (such term
and all other capitalized terms used herein without definition having the
meanings provided in Section 1 hereof), and WILMINGTON
TRUST COMPANY,
a
Delaware corporation, and XXXXXXX
X. XXXX
(not in
their respective individual capacities but solely as Owner Trustee and
Cotrustee, respectively, under the Trust Agreement between such parties and
Xxxxxxx Finance LLC (formerly known as Emerson Finance Co.), as Owner
Participant), as Lessor (this “Lease Amendment”),
W
I T N E S S E T H
WHEREAS,
the
Lessee and the Lessor have heretofore entered into a Lease Agreement, dated
as
of December 1, 1985, as duly recorded in the office of the County Recorder
of
Apache County, Arizona on January 8, 1986, in Docket 499 at Pages 319-452,
as
supplemented by a Lease Supplement dated December 31, 1985, as duly recorded
in
the aforesaid office in Docket 499 at Pages 489-506, as amended by Amendment
No.
1 to Lease Agreement, dated as of December 15, 1992, duly recorded in the
aforesaid office in Docket 700 at Pages 372-398, as amended by Amendment No.
2
to Lease Agreement, dated as of December 1, 1999, duly recorded in the aforesaid
office in Docket 968 at Pages 594-601, and as amended by Amendment No. 3 to
Lease Agreement, dated as of June 1, 2003, duly recorded in the aforesaid office
on June 25, 2003 as Instrument No. 2003-05403, providing for the lease by the
Lessor to the Lessee of the Leased Assets (such Lease Agreement, as so
supplemented and amended and as further amended, modified or supplemented from
time to time in accordance with the provisions thereof, being hereinafter
referred to as the “Lease”),
WHEREAS,
the
Lessee and the Lessor have agreed pursuant to a Refinancing Agreement, dated
as
of June 1, 2006 (as amended, modified or supplemented from time to time in
accordance with the provisions thereof, the “Refinancing Agreement”), with the
Owner Participant, the Loan Participants named therein, the Indenture Trustee
and certain other parties to amend certain Operative Documents on the Amendment
Date (as defined in the Refinancing Agreement),
WHEREAS,
the
Lessee and Lessor have agreed to amend the Lease as contemplated
herein,
WHEREAS,
Section
31(b) of the Lease provides, among other things, that until the Lessee has
received notice from the Indenture Trustee that the Lien of the Indenture on
the
Trust Indenture Estate has been released, no term of the Lease shall be amended
without the consent of the Indenture Trustee, and
WHEREAS,
pursuant to Section 15.1 of the Indenture, the Indenture Trustee has, at the
direction and with the consent of each holder of a Secured Note, consented,
by
executing and delivering the Refinancing Agreement, to the amendments to the
Lease set forth in this Lease Amendment,
NOW
THEREFORE,
in
consideration of the premises and of such other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
Section
1. Definitions.
(a) General
Definitions.
Except
as otherwise expressly provided herein or unless the context otherwise requires,
capitalized terms used herein shall have the meanings set forth in Section
1 of
the Lease.
(b) Special
Event of Loss.
Clause
(iii) of the definition of “Special
Event of Loss”
in
Section 1 of the Lease is hereby amended in its entirety to read as
follows:
(iii)
[Deleted]
Section
2. Prepayment
Upon a Special Event of Loss.
The
first proviso to Section 11(a) of the Lease is hereby amended by deleting the
phrase “a Special Event of Loss described in (iii) of the definition thereof or”
in its entirety.
Section
3. Counterpart
Execution. This
Lease Amendment may be executed by the parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed an original, but
all such counterparts shall together constitute but one and the same instrument.
The single executed original of this Lease Amendment which provides that it
is
the “original counterpart” and which contains the receipt therefor executed by
the Indenture Trustee on or immediately following the signature page thereof
shall evidence the monetary obligations of the Lessee hereunder and thereunder.
To the extent, if any, that this Lease Amendment constitutes chattel paper
(as
such term is defined in the Uniform Commercial Code as in effect in any
applicable jurisdiction), no security interest in this Lease Amendment may
be
created by the transfer or possession of any counterpart thereof other than
the
original counterpart and containing the receipt therefor executed by the
Indenture Trustee on or immediately following the signature page
thereof.
Section
4. Ratification
of the Lease.
This
Lease Amendment is an amendment to the Lease. As amended by this Lease
Amendment, the Lease is in all respects ratified, approved and confirmed, and
the Lease and this Lease Amendment shall together constitute one and the same
instrument.
Section
5. Governing
Law.
This
Lease Amendment has been delivered in, and shall in all respects be governed
by
and construed in accordance with, the laws of the State of Arizona applicable
to
agreements made and to be performed entirely within such state, including
matters of construction, validity and performance.
2
Section
6. Liabilities
of Owner Participant.
Sections
23 and 31 of the Lease are hereby incorporated by reference mutatis
mutandis
in this
Lease Amendment.
3
IN
WITNESS WHEREOF,
the
undersigned Lessee and Lessor have each caused this Lease Amendment to be duly
executed and delivered and their corporate seals to be hereunto affixed and
attested or witnessed by their respective officers thereunto duly authorized
as
of the day and year first above written.
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TUCSON
ELECTRIC POWER COMPANY,
as
Lessee
|
||
|
By:
|
_____________________________ | |
|
Name:
Title:
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||
|
[seal]
Attest:
|
||
| _______________________ | ||
|
Assistant
Secretary
|
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SAN
XXXXXX RESOURCES INC.
as
Lessee
|
||
|
By:
|
_____________________________ | |
|
Name:
Title:
|
||
|
[seal]
Attest:
|
||
| _______________________ | ||
|
Assistant
Secretary
|
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WILMINGTON
TRUST COMPANY,
not
in its
individual capacity but solely as
Owner
Trustee under the
Trust Agreement,
as
Lessor
|
||
|
By:
|
_____________________________ | |
|
Name:
Title:
|
||
|
[seal]
Attest:
|
||
| _______________________ | ||
|
Title:
|
||
| _____________________________ | ||
|
XXXXXXX
X. XXXX,
not
in his
individual capacity but solely as
Cotrustee
under the Trust
Agreement, as
Lessor
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||
|
Witness:
|
||
| _______________________ | ||
Receipt
of this original counterpart of the foregoing Amendment No. 4 to Lease Agreement
is hereby acknowledged on
this day of June,
2006.
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THE
BANK OF NEW YORK,
as
Indenture Trustee
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|
By:
|
_______________________ | |
|
Name:
Title:
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ACKNOWLEDGEMENTS
TO LEASE AMENDMENT
STATE
OF
ARIZONA )
)
ss.:
COUNTY
OF
PIMA )
The
foregoing instrument was acknowledged before me this ____ day of June, 2006,
by
_________________, _________________ of TUCSON
ELECTRIC POWER COMPANY,
an
Arizona corporation, on behalf of said corporation.
________________________
Notary
Public
My
Commission Expires:
_____________________
STATE
OF
ARIZONA )
)
ss.:
COUNTY
OF
PIMA )
The
foregoing instrument was acknowledged before me this _____ day of June, 2006,
by
_________________, _____________________ of SAN
XXXXXX RESOURCES INC.,
an
Arizona corporation, on behalf of said corporation.
________________________
Notary
Public
My
Commission Expires:
_____________________
STATE
OF
DELAWARE )
)
ss.:
COUNTY
OF
NEW CASTLE )
The
foregoing instrument was acknowledged before me this _____ day of June, 2006,
by
__________________, __________________ of WILMINGTON
TRUST COMPANY,
a
Delaware banking corporation, on behalf of said corporation.
________________________
Notary
Public
My
Commission Expires:
_____________________
STATE
OF
DELAWARE )
)
ss.:
COUNTY
OF
NEW CASTLE )
The
foregoing instrument was acknowledged before me this _____ day of June, 2006,
by
XXXXXXX
X. XXXX,
an
individual.
________________________
Notary
Public
My
Commission Expires:
_____________________
