Exhibit 4(f)-4
AMENDMENT NO. 1
dated as of ______ __, 199_
to
PARTICIPATION AGREEMENT NO. [1/2/3]
dated as of September 1, 1989
among
ESSL 2, INC.,
as Owner Participant
W3A FUNDING CORPORATION,
as Funding Corporation
FIRST NATIONAL BANK OF COMMERCE,
as Owner Trustee
BANKERS TRUST COMPANY,
as [successor] Corporate Indenture Trustee
under Indenture of Mortgage and Deed of Trust No. [1/2/3],
dated as of September 1, 1989,
as supplemented, with the Owner Trustee,
and as Collateral Trust Trustee
under Collateral Trust Indenture
dated as of _________________, 199__
with the Lessee and Funding Corporation,
XXXXXXX XXXX,
as [successor] Individual Indenture Trustee
under Indenture of Mortgage and Deed of Trust No. [1/2/3],
dated as of September 1, 1989,
as supplemented, with the Owner Trustee,
and
LOUISIANA POWER & LIGHT COMPANY,
as Lessee
THIS AMENDMENT NO. 1, dated as of _____ ___, 199_ ("PA
Amendment No. 1"), to PARTICIPATION AGREEMENT NO. [1/2/3], dated
as of September 1, 1989, among ESSL 2, Inc., as Owner Participant
(such term and all other capitalized terms used herein and not
defined herein having the respective meanings specified in
Appendix A to the Participation Agreement, as modified by
Schedule A-1 thereto), W3A FUNDING CORPORATION, as Funding
Corporation, FIRST NATIONAL BANK OF COMMERCE, not in its
individual capacity but solely as Owner Trustee, BANKERS TRUST
COMPANY, as [successor] Corporate Indenture Trustee under the
Indenture and as Collateral Trust Trustee under the Collateral
Trust Indenture, XXXXXXX XXXX, not in his individual capacity but
solely as [successor] Individual Indenture Trustee under the
Indenture, and LOUISIANA POWER & LIGHT COMPANY, as Lessee.
W I T N E S S E T H:
WHEREAS, the parties to this PA Amendment No. 1, other
than Funding Corporation and the Collateral Trust Trustee, are
parties to Participation Agreement No. [1/2/3], dated as of
September 1, 1989 (the "Participation Agreement"), among the
Owner Participant, the Owner Trustee, the Corporate Indenture
Trustee, the Individual Indenture Trustee and the Lessee; and
WHEREAS, the Initial Series Bonds were issued by the
Owner Trustee in connection with the acquisition of the Undivided
Interest; and
WHEREAS, Section 2(b) of the Participation Agreement
provides for a refunding of outstanding Bonds upon the
satisfaction of the conditions set forth in Sections 2 and 10(c)
of the Participation Agreement and Section 2.05 of the Indenture;
and
WHEREAS, the Lessee, the Owner Participant, the Owner
Trustee, Funding Corporation, the Indenture Trustee and the
Collateral Trust Trustee have entered into the Refunding
Agreement, dated as of ________ __, 199_, providing for the
issuance by the Owner Trustee of Additional Bonds, including
Refunding Bonds, to provide funds to redeem the Outstanding
Initial Series Bonds and to pay certain other costs incurred in
connection therewith; and
WHEREAS, the Lessee and the Owner Participant have
agreed for the Owner Participant to make an additional equity
investment and to cause the refinancing of the Outstanding
Initial Series Bonds through the issuance of Additional Bonds
(including Refunding Bonds) and Collateral Bonds in amounts
sufficient to finance certain transaction expenses associated
with the refinancing and the premium on the Initial Series Bonds,
and accordingly have agreed that the refunding contemplated by
the Refunding Agreement will require certain amendments to the
Transaction Documents; and
WHEREAS, the parties hereto wish (x) to amend the
Participation Agreement to provide for the utilization of Funding
Corporation in connection with the refunding of Bonds, and (y) to
effect the refunding of the Outstanding Initial Series Bonds
through a refunding transaction in which, among other things,
Funding Corporation will issue Collateral Bonds to the public and
will apply a portion of the proceeds thereof as a Refunding Loan
for the account of the Owner Trustee for the refunding in whole
of the Outstanding Initial Series Bonds, such loan to be
evidenced by Additional Bonds issued by the Owner Trustee to or
upon the order of Funding Corporation;
WHEREAS, Basic Rent and the Value Schedules, as set
forth in Lease Supplement No. 1, have been adjusted to take into
effect, among other things, the additional Tax Assumptions set
forth in TIA Amendment No. 1 and the additional Pricing
Assumptions set forth in Schedule 2 hereto;
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:
ARTICLE ONE
AMENDMENTS
Section 1.01. Amendments.
(a) The Participation Agreement is hereby amended by adding
Funding Corporation and the Collateral Trust Trustee as parties
thereto. The Participation Agreement is further amended in the
following respects:
(b) The first sentence of Section 1 is deleted and the
following inserted in lieu thereof:
"For the purposes hereof, capitalized terms used
herein shall have the meanings assigned to such terms
in Appendix A hereto as modified by Schedule A-1
thereto."
(c) Section 2 is amended as follows:
(1) Paragraphs (b), (c) and (d) are deleted and the
following inserted in lieu thereof:
"(b) Refunding of Bonds. (1) Subject to satisfaction
of the conditions set forth in this Section 2 and Section
10(c), Section 2.05 of the Indenture and the terms of the
Refunded Bonds (as defined below), the Lessee shall have the
right to request the Owner Trustee to, and upon any such
request the Owner Trustee shall, take such steps as may be
necessary to refund in whole or in part any Bonds then
Outstanding (the "Refunded Bonds"), including the issuance
on any Refunding Date of one or more series of Additional
Bonds (any such Additional Bonds with respect to which the
proceeds are used to refund the Refunded Bonds being
hereinafter referred to as the "Refunding Bonds") to or upon
the order of Funding Corporation in an aggregate principal
amount equal to such Refunded Bonds; provided, however, that
unless the Owner Participant shall have consented thereto,
the Lessee shall not exercise the right granted in this
Section 2(b) on more than six occasions. In addition,
subject to the terms of the Indenture and Section 10(c), the
Lessee may require the Owner Trustee to issue Additional
Bonds and to use the proceeds thereof to finance (x) all
fees, expenses, disbursements and costs (including legal and
other professional fees and expenses) incurred by the Owner
Participant, the Owner Trustee, the Indenture Trustee and
the Collateral Trust Trustee (to the extent that the Lessee
is liable therefor pursuant to Section 13(c)) in connection
with any refunding pursuant to this Section 2(b)[,][and] (y)
all fees, expenses, disbursements and costs incurred by the
Lessee in connection with any such refunding pursuant to
this Section 2(b), including, without limitation, the costs
of preparing any related underwriting agreement and
registration statement, all filing fees relating to any such
registration statement, the fees, expenses and disbursements
of counsel to any underwriters of the Additional Bonds,
rating agency fees, and the fees and commissions of the
underwriters of such Additional Bonds (including the
Refunding Bonds) [and (z) any premium payable on the
Refunded Bonds].
(2) Subject to satisfaction of the conditions set
forth in this Section 2 and Section 10(c) and Section 2.04
of the Collateral Trust Indenture, the Lessee shall have the
right to request Funding Corporation to issue Collateral
Bonds in connection with the issuance of Additional Bonds
pursuant to this Section 2(b), and upon such request, on any
Refunding Date, Funding Corporation shall issue and sell
Collateral Bonds and lend a portion of the proceeds thereof
for the account of the Owner Trustee in an amount (a
"Refunding Loan") equal to the aggregate principal amount of
the related Additional Bonds, provided, however, that unless
the Owner Participant shall have consented thereto, the
Lessee shall not exercise the right granted in this
Section 2(b) on more than six occasions. Funding
Corporation shall pay the proceeds of any Refunding Loan
directly to the Indenture Trustee in immediately available
funds at the Corporate Trust Office. The Owner Trustee's
obligation to repay a Refunding Loan shall be evidenced by
one or more Additional Bonds, issued to or upon the order of
Funding Corporation and pledged to the Collateral Trust
Trustee as security for the related Collateral Bonds, which
Additional Bonds shall be in an aggregate principal amount
equal to the Refunding Loan, shall bear interest at the rate
per annum, and shall be payable as set forth in, or
determined under, the Indenture. Not less than three
Business Days prior to the Refunding Date, Funding
Corporation shall deliver to the Owner Participant and the
Lessee a certificate setting forth the information necessary
to complete the Additional Bond or Bonds to be issued in
exchange for such Refunding Loan (including any schedule or
schedules thereto). Upon such delivery, and upon approval
by the Lessee and the Owner Participant of the terms
thereof, the Owner Participant and the Lessee shall cause
the form of each such Additional Bond to be completed and
forwarded to the Owner Trustee for execution. Anything
herein to the contrary notwithstanding, the Lessee shall be
under no obligation whatsoever to utilize Funding
Corporation or cause the issuance of Collateral Bonds in
connection with any refundings contemplated by this Section
2(b).
(3) The refundings contemplated by this Section 2(b)
shall be effected at the request of the Lessee given in
writing to the Owner Participant at least 20 Business Days
prior to the Refunding Date; provided, however, that (i) no
such request shall be made or refunding shall occur while an
Event of Default shall have occurred and be continuing, (ii)
except as contemplated in Sections 3(d), 3(e) and 3(f) of
the Facility Lease, Net Economic Return shall not be
adversely affected thereby (or appropriate adjustments shall
have been made or shall be made on the Refunding Date
pursuant to Sections 3(e) and 3(f) of the Facility Lease to
preserve Net Economic Return), and (iii) any modifications
of the Transaction Documents (after giving effect to any
adjustments pursuant to clause (ii) above) shall not, in the
opinion of the Owner Participant's Special Tax Counsel,
adversely affect the tax benefits contemplated by the Owner
Participant in entering into the transactions contemplated
by this Participation Agreement and the other Transaction
Documents; and provided, further, that any notice of
refunding given by the Lessee to the Owner Participant as
contemplated by this sentence shall be revocable by the
Lessee and shall be sufficient if such notice sets forth an
approximate date on which a particular refunding is to
occur; and provided, further, that the Lessee shall give the
Owner Participant at least three Business Days' irrevocable
notice prior to the Refunding Date of those terms of the
Additional Bonds which the Lessee may determine as provided
below. Subject to the conditions of this Section 2(b) and
Section 10(c), the Owner Participant agrees to cooperate
with the Lessee in order to accomplish the refundings
requested by the Lessee.
(4) In setting the terms of the Additional Bonds
issued in connection with a refunding (including the
Refunding Bonds), the Lessee, in its sole discretion, may
determine the number of tranches of debt, the interest rates
applicable thereto (reflective of actual market conditions)
and the final maturities thereof (which shall be no later
than July 2, 2017) and, based on such determination, the
Owner Participant shall determine the principal amount, the
sinking fund or amortization schedules and the average life
applicable to all tranches of such Additional Bonds
(provided that unless the Lessee shall have consented
thereto the aggregate average life of all such Additional
Bonds, together with the other Bonds which shall remain
Outstanding, shall not vary from the aggregate average life
reflected in the sinking fund schedule for the Initial
Series Bonds by more than 18 months), so as to minimize the
net present value of the Basic Rent payments by the Lessee
over the Basic Lease Term, discounted on a semi-annual basis
at an annual interest rate of 11 percent, while preserving
Net Economic Return.
(c) Reoptimization. Upon the occurrence of a Tax Law
Change of the type referred to in subclause (C) of Section
3(e)(v) of the Facility Lease or any Tax Rate Change (and in
addition to the reoptimization of any of the sinking fund or
amortization schedules for the Bonds in connection with a
refunding pursuant to Section 2(b)), subject to the
satisfaction of the conditions set forth in Section 10(c)
and this Section 2, the Owner Trustee, at the written
request of the Lessee (with copies to be given to the Owner
Participant and the Indenture Trustee), in the case of a Tax
Law Change of the type referred to in this subsection (c),
or at the written request of the Owner Participant (with
copies to be given to the Lessee and the Indenture Trustee),
in the case of a Tax Rate Change, given within two years
after the date of such Tax Law Change or Tax Rate Change, as
the case may be, shall reoptimize or cause the
reoptimization of the sinking fund or amortization schedules
for the Bonds of any series to the extent not inconsistent
with the provisions, if any, of the Indenture and such Bonds
and in accordance with, and in the manner contemplated by,
Section 3 of the Facility Lease. Upon the receipt from the
Owner Participant of the reoptimized sinking fund or
amortization schedule for such Bonds and the other
information referred to in Article Six of the Indenture,
together with verification thereof if requested by the
Lessee pursuant to Section 3(f)(ii) of the Facility Lease,
the Owner Trustee shall deliver to the Indenture Trustee an
Owner Trustee Request pursuant to said Article Six. The
Owner Trustee, the Indenture Trustee, the Collateral Trust
Trustee and Funding Corporation may rely on any reoptimized
sinking fund or amortization schedules and other information
furnished by the Owner Participant.
(d) Cooperation. Subject to the applicable conditions
to their obligations herein provided, each of the Lessee,
the Owner Trustee, the Owner Participant and Funding
Corporation agrees that it will cooperate in connection with
any refunding or reoptimization contemplated herein and
enter into such additional agreements and such supplements
or amendments to or consents under the Transaction Documents
as may reasonably be requested to effectuate the
transactions contemplated in connection with any such
refunding or reoptimization."
(d) The following is added to the end of Section 6(b):
"(6) No-Petition Agreement. Following the issuance of
any Additional Bonds to or upon the order of Funding
Corporation and prior to the 181st day following the payment
in full of such Bonds and the discharge of the Collateral
Trust Indenture in accordance with its terms, the Owner
Participant agrees that it will not file a petition, or join
in the filing of a petition, seeking reorganization,
arrangement, adjustment or composition of, or in respect of,
Funding Corporation under the Bankruptcy Code or any other
applicable Federal or state law or the law of the District
of Columbia."
(e) Section 7(b) is amended as follows:
(1) The introductory text of Section 7(b) is deleted and
the following inserted in lieu thereof:
"(b) Agreements of FNBC and the Owner Trustee. FNBC
agrees, in its individual capacity as set forth in clauses
(1), (3), (4) (as to FNBC) and (6), (7) and (8) (as to
FNBC), and the Owner Trustee agrees as set forth in clauses
(2) and (4) (as to the Owner Trustee) and (5), (6), (7) and
(8) (as to the Owner Trustee) below, that:"
(2) The following is added to the end of Section 7(b):
"(8) No-Petition Agreement. Following the issuance of
any Additional Bonds to or upon the order of Funding
Corporation and prior to the 181st day following the payment
in full of such Bonds and the discharge of the Collateral
Trust Indenture, in accordance with its terms, each of FNBC
and the Owner Trustee agrees that it will not file a
petition, or join in the filing of a petition, seeking
reorganization, arrangement, adjustment or composition of,
or in respect of, Funding Corporation under the Bankruptcy
Code or any other applicable Federal or state law or the law
of the District of Columbia."
(f) The following is added to the end of Section 8(b):
"(3) No-Petition Agreement. Following the issuance of
any Additional Bonds to or upon the order of Funding
Corporation and prior to the 181st day following the payment
in full of such Bonds and the discharge of the Collateral
Trust Indenture in accordance with its terms, each of the
Corporate Indenture Trustee and the Individual Indenture
Trustee agrees that it will not file a petition, or join in
the filing of a petition, seeking reorganization,
arrangement, adjustment or composition of, or in respect of,
Funding Corporation under the Bankruptcy Code or any other
applicable Federal or state law or the law of the District
of Columbia."
(g) The following is added immediately following Section 8:
"SECTION 8A. Representations, Warranties and Agreements of
Funding Corporation.
(a) Representations and Warranties. Funding Corporation
represents and warrants that:
(1) Due Organization. Funding Corporation is a
corporation duly organized and validly existing in good
standing under the laws of the State of Delaware and has the
corporate power and authority to carry on its business as
presently conducted, own its properties, and enter into and
perform its obligations under this Participation Agreement
and each other Transaction Document to which it is, or is to
become on or before the Refunding Date, a party. Funding
Corporation has not failed to qualify to do business or be
in good standing in any jurisdiction where failure to so
qualify or be in good standing would materially and
adversely affect its ability to perform any of its
obligations under this Participation Agreement or any
Transaction Document to which it is, or is to become on or
before the Refunding Date, a party.
(2) Due Authorization; Enforceability. The execution,
delivery and performance by Funding Corporation of this
Participation Agreement and each other Transaction Document
to which it is, or is to become on or before the Refunding
Date, a party have been duly authorized by all necessary
corporate action on the part of Funding Corporation and do
not require the consent or approval of the stockholders of
Funding Corporation. Each of this Participation Agreement
and each other Transaction Document to which it is, or is to
become on or before the Refunding Date, a party has been
duly executed and delivered by Funding Corporation and
constitutes a legal, valid and binding agreement of Funding
Corporation enforceable against it in accordance with its
terms.
(3) No Violation. Neither the execution, delivery or
performance by Funding Corporation of this Participation
Agreement or the other Transaction Documents to which it is
a party, nor the consummation by Funding Corporation of the
transactions contemplated hereby and thereby, nor compliance
by Funding Corporation with the provisions hereof and
thereof, conflicts or will conflict with, or results or will
result in the breach of any provision of, the Certificate of
Incorporation or By-Laws of Funding Corporation or any
indenture, mortgage or agreement to which Funding
Corporation is a party or by which it or its property is
bound, or contravenes any Federal, Delaware or New York law
applicable to it or requires any Governmental Action with
respect to Funding Corporation under any Federal, Delaware
or New York law applicable to it. Funding Corporation is
not an "investment company", or a company "controlled" by an
"investment company", within the meaning of the Investment
Company Act.
(4) No Other Business. Except as contemplated by this
Participation Agreement and the other Transaction Documents,
Funding Corporation has not engaged in any business or
activity of any type or kind whatsoever.
(5) Investment Representations. Funding Corporation
will acquire each Bond to be acquired by it hereunder and
under the Indenture solely for purposes of pledging such
Bond to the Collateral Trust Trustee to secure Collateral
Bonds issued from time to time under the Collateral Trust
Indenture. Funding Corporation understands that no Bond to
be acquired by it hereunder or under the Indenture will have
been registered under the Securities Act and that each such
Bond will bear the legend set forth in Section 2.08 of the
Indenture.
(6) ERISA. Funding Corporation will not acquire any
Bond with the "plan assets" (within the meaning of
regulations of the United States Department of Labor) of any
"employee benefit plan" within the meaning of Section 3(3)
of ERISA or any "plan" within the meaning of Section
4975(e)(1) of the Code.
(b) Agreements. Funding Corporation agrees that:
(1) Transfers of Bonds. Any transfer or assignment of
any Bond acquired by it or of all or any part of Funding
Corporation's interest hereunder or under any other
Transaction Document shall be effected in compliance with
the registration requirements of the Securities Act, or
pursuant to an exemption therefrom, and on the express
condition that the transferee, assignee or participant shall
agree to be bound by the terms and provisions hereof and
thereof. Funding Corporation will not sell, exchange or
transfer any Bond to any other Person (other than to the
Collateral Trust Trustee) unless such transferee delivers to
the Lessee, the Owner Participant, the Owner Trustee and the
Indenture Trustee a representation and warranty (and an
opinion of counsel satisfactory to each such Person) to the
effect that neither the transfer of such Bond to, nor the
ownership of such Bond by, such transferee will cause such
transferee, or any such Person, to be engaged in a
"prohibited transaction", as defined in Section 406 of ERISA
or Section 4975 of the Code, which is not at such time
subject to an exemption contained in ERISA or in the rules,
regulations, releases or bulletins adopted thereunder.
(2) Redemption of Collateral Bonds. Except as
provided in the Transaction Documents, Funding Corporation
will not refinance or optionally redeem any Collateral Bond
issued in connection with any Bond without the consent of
the Lessor and Lessee.
(3) Quiet Enjoyment. Funding Corporation acknowledges
Section 6(a) of the Facility Lease.
(4) No Other Business. During such time as any Bond
acquired by it is Outstanding and held by the Collateral
Trust Trustee as security for its obligations, Funding
Corporation will not (i) engage in any business or activity
other than in connection with the Transaction Documents, or
(ii) amend or engage in any activity or take any action not
permitted by Article THIRD, FOURTH or SIXTH of its
Certificate of Incorporation, as in effect on the date of
execution and delivery hereof, without, in each case, the
consent of the Lessee, the Owner Participant, the Owner
Trustee and the Indenture Trustee.
(c) Agreements with the Indenture Trustee. Funding
Corporation hereby (i) acknowledges and agrees that, in
connection with this Participation Agreement, the Indenture
Trustee shall have the benefits and protections of Article
Eight of the Indenture and (ii) agrees that, to the extent
it becomes a Holder, in the event of a conflict between the
provisions of this Participation Agreement and the
Indenture, the Indenture Trustee shall, as between the
Indenture Trustee and Funding Corporation, be fully
protected in relying on the express terms of the Indenture.
(h) The following is added immediately following Section
8A:
"SECTION 8B. Representations and Warranties of Collateral
Trust Trustee.
Collateral Trust Trustee represents and warrants that:
(1) Due Organization. Collateral Trust Trustee is
duly organized and validly existing in good standing under
the laws of the state of New York and has the power and
authority and legal right to enter into and perform its
obligations under the Collateral Trust Indenture, this
Participation Agreement, the Refunding Agreement and each
other Transaction Document to which it is, or is to become
on or before the Refunding Date, a party.
(2) Due Authorization. The execution, delivery and
performance by Collateral Trust Trustee of the Collateral
Trust Indenture, this Participation Agreement, the Refunding
Agreement and each other Transaction Document to which
Collateral Trust Trustee is, or is to become on or before
the Refunding Date, a party have been, or on or before the
Refunding Date will have been, duly authorized by all
necessary corporate action of Collateral Trust Trustee and
each has been, or on or before the Refunding Date will have
been, duly executed and delivered by Collateral Trust
Trustee and do not and will not require the consent or
approval of any stockholder or any trustee or holder of any
of its indebtedness or other obligations, except such as
have been, or on or before the Refunding Date will have
been, duly obtained, given or accomplished.
(3) Execution; Authentication of Bonds. (i) Each of
the Collateral Trust Indenture, this Participation
Agreement, the Refunding Agreement and each other
Transaction Document to which Collateral Trust Trustee is,
or is to become on or before the Refunding Date, a party has
been, or on or before the Refunding Date will have been,
duly executed and delivered by Collateral Trust Trustee and
constitutes, or upon execution and delivery thereof will
constitute, the legal, valid and binding agreement of
Collateral Trust Trustee, enforceable against Collateral
Trust Trustee in accordance with its terms; and (ii) each
officer of Collateral Trust Trustee who shall authenticate
any Refunding Collateral Bond to be issued pursuant to the
Collateral Trust Indenture shall be, at the time of such
authentication, an Authorized Officer.
(4) No Violation. None of the execution and delivery
by Collateral Trust Trustee of the Collateral Trust
Indenture, this Participation Agreement, the Refunding
Agreement or any other Transaction Document, the
authentication by the Collateral Trust Trustee of any
Refunding Collateral Bond, the consummation by Collateral
Trust Trustee of the transactions contemplated hereby or
thereby, and the compliance by Collateral Trust Trustee with
the provisions hereof or thereof, contravenes or will
contravene any Applicable Law governing Collateral Trust
Trustee's banking or trust powers, or contravenes or results
in a breach of, or constitutes a default under, Collateral
Trust Trustee's Articles of Incorporation or By-laws or
similar organizational documents, or requires any
Governmental Action under any Federal law or law of its
state of organization, except such as has been, or on or
before the Refunding Date will have been, duly obtained,
given or accomplished."
(i) Section 9 is amended as follows:
(1) 9(a)(5) is amended by deleting clause (ii) of the first
paragraph thereof and inserting the following in lieu thereof:
"(ii) as, on or before any Refunding Date or Reoptimization
Date, in the case of Governmental Actions required in
connection with the issuance of Bonds and Collateral Bonds
on any such date, will have been duly obtained, given or
accomplished, with true copies thereof delivered to the
Owner Participant and the Indenture Trustee;"
(2) Section 9(b)(1) is amended by adding the words "and the
Collateral Trust Trustee" after the words "the Owner Trustee" in
the first parenthetical thereof.
(3) Section 9(b)(2) is amended by adding the words "the
Collateral Trust Trustee" immediately after the words "Owner
Participant" after each place where the words "Owner Participant"
appear.
(4) Section 9(b)(3) is amended by (A) deleting subparagraph
(iv) and inserting the following in lieu thereof:
"(iv) Bonds and Collateral Bonds. The Lessee will
not, nor will it permit any of its Affiliates to, acquire
any of the Bonds or Collateral Bonds without the written
consent of the Owner Participant; provided, however, that
the Lessee may purchase Bonds or Collateral Bonds without
such consent so long as (A) the amount of Bonds or
Collateral Bonds held at any time by the Lessee (and any
Affiliates) does not exceed 25% in aggregate principal
amount of the Bonds or Collateral Bonds, as the case may be,
outstanding, (B) no such Bonds or Collateral Bonds are so
acquired prior to 18 months following the date of the
initial authentication and delivery of the Collateral Bonds,
and (C) the Lessee shall have notified the Indenture Trustee
or Collateral Trust Trustee, as the case may be, that it
holds such Bonds or Collateral Bonds and, in determining
whether or not the Holders of the requisite principal amount
of the Bonds or Collateral Bonds outstanding under the
Indenture or Collateral Trust Indenture, or the outstanding
Bonds or Collateral Bonds of any series, have given any
request, demand, authorization, direction, notice, consent
or waiver under the Indenture or Collateral Trust Indenture
or whether or not a quorum is present at a meeting of
holders, all such Bonds and Collateral Bonds shall be
disregarded and deemed not outstanding."
and (B) adding the following to the end thereof:
"(xviii) No-Petition Agreement. Following the issuance of
any Additional Bonds to or upon the order of Funding
Corporation and prior to the 181st day following the payment
in full of such Bonds and the discharge of the Collateral
Trust Indenture in accordance with its terms, the Lessee
agrees that it will not file a petition, or join in the
filing of a petition, seeking reorganization, arrangement,
adjustment or composition of, or in respect of, Funding
Corporation under the Bankruptcy Code or any other
applicable Federal or state law or the law of the District
of Columbia."
(j) Section 10(c) is amended as follows:
(1) The introductory text of Section 10(c) is deleted and
the following inserted in lieu thereof:
"(c) Conditions to Refunding or Reoptimization. In
addition to the limitations set forth in Section 2(b) or
2(c), as the case may be, the obligation of the Owner
Participant and, if Funding Corporation is being utilized in
connection therewith, Funding Corporation to participate in
a refunding or reoptimization of any Outstanding Bonds shall
be subject to the fulfillment on or before the applicable
Refunding Date or Reoptimization Date of the following
conditions precedent (but in the case of a reoptimization,
only the conditions specified in clauses (3), (5), (6) and
(8) below) (each instrument, document, certificate, opinion
or other writing to be in form and substance satisfactory to
the Owner Participant and, if applicable, Funding
Corporation):"
(2) Paragraph (2) of Section 10(c) is deleted and the
following inserted in lieu thereof:
"(2) Bonds and Collateral Bond Transactions. (A) If
Funding Corporation is being utilized in connection with
such refunding, Funding Corporation shall have received
proceeds from the sale of Refunding Collateral Bonds in an
amount sufficient to make the Refunding Loan; (B) the
Indenture Trustee shall have received (x) the proceeds from
the sale of Refunding Bonds or, if Funding Corporation is
being utilized in connection with such refunding, the
proceeds of the Refunding Loan, in either case in an amount
sufficient to provide for payment in full of the principal
of, premium, if any, and interest on the Refunded Bonds,
together with any other amounts then due and owing pursuant
to the Indenture and (y) from the Lessee (as a special
payment of Basic Rent, if the Refunding Date shall be a date
other than January 2 or July 2 of any year), an amount equal
to the accrued interest on the Refunded Bonds from, and
including, the later of the date thereof or the date to
which interest thereon shall have been paid to, but
excluding, the applicable Refunding Date; (C) the Owner
Trustee shall have received the Bonds to be executed by it
in accordance with Section 2(b) of this Participation
Agreement together with instructions from the Owner
Participant to execute and deliver the same, and the Owner
Trustee shall have executed, and the Indenture Trustee shall
have authenticated and delivered, the Refunding Bonds; and
(D) if Funding Corporation is being utilized in connection
with such refunding, the Collateral Trust Trustee, as
pledgee of such Refunding Bonds issued to or upon the order
of Funding Corporation, shall have accepted the applicable
supplemental indenture to the Collateral Trust Indenture
subjecting such Refunding Bonds to the lien thereof."
(3) Paragraph (4) of Section 10(c) is deleted and the
following inserted in lieu thereof:
"(4) Registration Statement. If the Additional Bonds
or Refunding Collateral Bonds will be sold in a public
offering, the Owner Participant and the Owner Trustee shall
have received an Officers' Certificate of the Lessee, dated
the applicable Refunding Date, to the effect that, on the
date it becomes effective and on the Refunding Date, the
Registration Statement relating to such Additional Bonds or
Collateral Bonds did not and does not contain any untrue
statement of a material fact or omit to state a material
fact necessary to make the statements contained therein, in
light of the circumstances under which they were made, not
misleading."
(4) Paragraph (5) of Section 10(c) is deleted and the
following inserted in lieu thereof:
"(5) Opinions of Counsel. If Funding Corporation is
being utilized in connection with such refunding, the Owner
Participant, the Owner Trustee and the Indenture Trustee
shall have received a favorable opinion of Xxxx & Priest
LLP, as counsel for Funding Corporation, dated the Refunding
Date or Reoptimization Date, as the case may be, and
addressed to the Owner Participant, Owner Trustee, and the
Indenture Trustee, addressing such matters relating to the
transactions in connection with the Refunding Bonds to be
issued on such date, or, in the case of a reoptimization,
the adjustments to the sinking fund or amortization
schedules of Outstanding Bonds to take place on such date,
as the Owner Participant, the Owner Trustee or the Indenture
Trustee may reasonably request. The Owner Participant, the
Owner Trustee and the Indenture Trustee shall have received
favorable opinions of the Owner Participant's Special
Counsel, Owner Trustee's Counsel, Owner Participant's
Special Louisiana Counsel, Lessee's Counsel and Lessee's
Special Counsel, each dated the applicable Refunding Date or
Reoptimization Date, and addressing such matters relating to
the transactions in connection with the Refunding Bonds to
be issued on such date, or, in the case of a reoptimization,
the adjustments to the sinking fund or amortization
schedules of Outstanding Bonds to take place on such date,
as the Owner Participant, the Owner Trustee or the Indenture
Trustee may reasonably request. The Owner Participant shall
have also received an opinion of Owner Participant's Special
Tax Counsel, dated the applicable Refunding Date or
Reoptimization Date, and addressed to the Owner Participant,
that the issuance of the Refunding Bonds to be issued and
the consummation of the other transactions to be consummated
on such date shall not result in any adverse tax
consequences to the Owner Participant. Notwithstanding the
foregoing provisions of this Section 10(c)(5), on any
Reoptimization Date which is not a Refunding Date, the
opinions of Owner Trustee's Counsel and Owner Participant's
Special Louisiana Counsel" shall not be required.
(5) Paragraph (6) of Section 10(c) is amended by inserting
the words "or Collateral Bond" immediately after the word "Bond".
(6) Paragraphs (7) and (8) of Section 10(c) are deleted and
the following inserted in lieu thereof:
"(7) Receipt of Documents. The Owner Participant and
the Owner Trustee shall have received copies of, and shall
be entitled to rely upon, all documents, certificates,
agreements and opinions furnished by or on behalf of the
Lessee and, if applicable, Funding Corporation pursuant to
the Underwriting Agreement. If Funding Corporation is being
utilized in connection with such refunding, Funding
Corporation and the Collateral Trust Trustee shall have
received copies of all documents previously delivered to the
Indenture Trustee pursuant to Section 10(a).
(8) Representations and Warranties. In the case of
Funding Corporation, the representations and warranties of
the Owner Participant, FNBC and the Owner Trustee, and the
Lessee set forth in subclauses (1) through (4) and (9) of
Section 6(a), subclauses (1) through (10) of Section 7(a),
and subclauses (1) through (5), (10), (11), (12), (15), (16)
and (19) of Section 9(a), respectively, shall be true and
correct on and as of the applicable Refunding Date with the
same effect as though made on and as of such applicable
Refunding Date (with all references to the Closing Date in
such representations and warranties being deemed to refer to
the applicable Refunding Date); in the case of the Owner
Participant, the representations and warranties of FNBC and
the Owner Trustee, Funding Corporation, if applicable, and
the Lessee set forth in Sections 7(a), 8A(a) and subclauses
(1) through (6), (15), (16) and (19) of Section 9(a),
respectively, shall be true and correct on and as of the
applicable Refunding Date with the same force and effect as
though made on and as of such Refunding Date (with all
references to the Closing Date being deemed to refer to the
applicable Refunding Date); the Owner Participant and, if
Funding Corporation is being utilized in connection with
such refunding, Funding Corporation shall have received
appropriate certificates, dated the Refunding Date, to such
effect (and, with respect to paragraph (3) above, from the
Lessee); and the Owner Participant, FNBC and the Owner
Trustee, the Indenture Trustee, the Lessee and, if
applicable, Funding Corporation shall provide such
additional representations and warranties as of the
applicable Refunding Date as the Owner Participant or
Funding Corporation shall reasonably request.
(9) Satisfaction of Underwriting Agreement Conditions.
The conditions to the obligations of Funding Corporation or
the Owner Trustee, as the case may be, under the related
Underwriting Agreement shall have been met or waived by
Funding Corporation or the Owner Trustee, as the case may
be."
(k) Section 12 is amended as follows:
(1) The first paragraph of Section 12(a) is amended by
(A) deleting clause (i) and inserting the following in lieu
thereof:
"(i) Xxxx 0, the Undivided Interest, the Unit 3
Site, the Waterford Plant or the Waterford Plant Site
or any part of any thereof, the Operating Agreement,
the issuance or payment of the Bonds or the Collateral
Bonds, this Participation Agreement or any other
Transaction Document or Underwriting Agreement
(including, without limitation, the performance,
nonperformance or enforcement of any of the obligations
and terms hereunder or thereunder),"
; (B) deleting subclause (E) from the parenthetical
immediately preceding the proviso and inserting the
following in lieu thereof:
"(E) any claim of any Indemnitee incurred in the
administration of this Participation Agreement or any
other Transaction Document and not paid as Transaction
Expenses or Refunding Expenses or included in Facility
Cost and, if not included in Transaction Expenses or
Refunding Expenses, the reasonable fees and
disbursements of counsel and other professionals
incurred in connection therewith."
; (C) deleting clause (3) in the proviso and inserting the
following in lieu thereof:
"(3) for any Transaction Expense to be paid by the
Owner Trustee pursuant to Section 13(a) or Refunding
Expenses to be paid by the Owner Trustee pursuant to
the Refunding Agreement,"
; and (D) deleting clause (5) in the proviso and inserting
the following in lieu thereof:
"(5) in the case of the Indenture Trustee, the
Collateral Trust Trustee or Funding Corporation, for
any Claim based upon an untrue statement or alleged
untrue statement or omission or alleged omission in the
Registration Statement or any document or agreement in
connection with the sale of Additional Bonds or
Collateral Bonds which is based upon information
furnished to the Lessee or its agents by such party
expressly for use therein,"
(2) The second paragraph of Section 12(a) is amended by
deleting the second sentence and inserting the following in lieu
thereof:
"Nothing contained in this Participation Agreement
shall be construed as constituting a guaranty by the
Lessee of the principal of or premium, if any, or
interest on the Bonds or the Collateral Bonds or of the
residual value or useful life of the Undivided
Interest."
(3) Section 12(b)(1) is amended by deleting clauses (iv)
through (vii) in the second paragraph thereof and inserting the
following in lieu thereof:
"(iv) the Transaction Documents or the issuance,
refunding or refinancing of the Bonds or the Collateral
Bonds pursuant to the Indenture or the Collateral Trust
Indenture, or any other document executed and delivered
in connection with the consummation or confirmation of
the transactions contemplated by the Transaction
Documents or any Indemnitee's interest in any of the
foregoing, or the execution, issuance, delivery,
acquisition or subsequent transfer of any of the
foregoing (other than with respect to a reoptimization
of the Bonds at the request of the Owner Participant
pursuant to Section 2(c)), (v) the Indenture Estate or
the property, or the income or other proceeds received
with respect to the property, held by the Indenture
Trustee under the Indenture, (vi) Franchise Taxes
imposed on the Owner Participant or the Lessor to the
extent provided in Section 12(b)(3), (vii) any Taxes
imposed on Funding Corporation, or (viii) otherwise
with respect to or in connection with the transactions
contemplated by the Transaction Documents."
(4) Section 12(b)(2) is amended by (a) adding the words "or
Refunding Expenses" immediately after the words "Transaction
Expenses" in clause (xi) thereof, and (b) by substituting "," for
the word "or" between "Lessor" and "Indenture Trustee" and by
adding "or the Collateral Trust Trustee" after "Indenture
Trustee" in clause (vi) thereof.
(5) The following is added to the end of Section 12:
"(e) Funding Corporation. Section 12(b)(2)
and (5) shall not apply to any Tax imposed on Funding
Corporation or the trust estate under the Collateral
Trust Indenture."
(l) Paragraph (c) of Section 13 is deleted and the
following inserted in lieu thereof:
"(c) Post-Closing Expenses. The Lessee will pay (in
addition to any amounts payable by it pursuant to Section
13(b)), as Supplemental Rent, (i) the ongoing fees,
expenses, disbursements, administrative costs and other
costs (including legal, accounting, pricing and other
professional fees and expenses) of or incurred by the Owner
Trustee, the Indenture Trustee, the Collateral Trust Trustee
and the Owner Participant, including in connection with the
issue, sale and purchase of Bonds and Collateral Bonds after
the Closing Date, and (ii) all reasonable fees, expenses,
disbursements and costs (including legal and other
professional fees and expenses) incurred by the Owner
Participant, the Owner Trustee, the Indenture Trustee and
the Collateral Trust Trustee in connection with (a) any
Default, Event of Default, Indenture Default or Indenture
Event of Default, (b) the entering into or giving or
withholding of any amendment, modification, supplement,
waiver, consent or other action with respect to any
Transaction Document or Financing Document, (c) any Event of
Loss, Deemed Loss Event, Financial Event or Inchoate
Financial Event, (d) any transfer of all or any part of the
right, title and interest of the Indenture Trustee in, to
and under the Transaction Documents (except to the extent
arising from any transfer by the Owner Participant of its
right, title and interest in, to and under any of the
Transaction Documents or the Trust Estate pursuant to
Section 14), (f) any Special Transfer, (g) any refunding or
reoptimization pursuant to Section 2(b) or 2(c) (except to
the extent (i) constituting Transaction Expenses, (ii) that
the fees, expenses, disbursements and costs of the Owner
Participant in connection with any refunding or
reoptimization shall exceed $50,000, or (iii) arising from
any reoptimization in connection with a Tax Rate Change),
(h) any removal or replacement of the Owner Trustee and (i)
any amendment to a Decommissioning Trust Agreement."
(m) Section 19 is amended and restated as follows:
"SECTION 19. Notices, etc.
All communications, notices and consents provided for
herein shall be in writing, including telex, telecopy or
other wire transmission containing a request for assurance
of receipt in a manner typical with respect to
communications of that type, or mailed by registered or
certified mail, and shall be addressed (i) if to the Owner
Participant, at the address for notices set forth on
Schedule 1; (ii) if to FNBC or the Owner Trustee, at 000
Xxxxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxx, 00000, Attention:
Corporate Trust Department; (iii) if to IT or the Indenture
Trustee, at _______________; (iv) if to Funding Corporation,
c/o National Corporate Research, Ltd., 00 Xxxx Xxxxxxxxxx
Xxxxxx, Xxxxx, Xxxxxxxx 00000; (v) if to the Collateral
Trust Trustee, _______________________; and (vi) if to the
Lessee, at 000 Xxxxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxx 00000,
Attention: Treasurer, or at such other address as any party
(or its successors or permitted assigns hereunder) hereto
may from time to time designate by notice duly given in
accordance with the provisions of this Section to the other
parties hereto. All such communications, notices and
consents given in the manner provided above shall be
effective (x) if sent by telex, telecopy or other wire
transmission, on the date of transmission thereof, or (y) if
sent by mail, three Business Days after being mailed."
(n) Schedule 5 to the Participation Agreement is amended to
include the additional Pricing Assumptions set forth in Schedule
1 hereto.
(o) Appendix A to the Participation Agreement is hereby
amended as set forth in Schedule A-1 to Appendix A attached
hereto.
ARTICLE TWO
MISCELLANEOUS
Section 2.01. Execution.
This PA Amendment No. 1 may be executed in separate
counterparts, each of which when so executed and delivered shall
be an original, but all such counterparts shall together
constitute but one and the same instrument.
Section 2.02. Governing Law.
This PA Amendment No. 1 has been negotiated and
delivered in the State of New York and shall be governed by, and
be construed in accordance with, the laws of the State of New
York.
Section 2.03. Concerning the Owner Trustee.
FNBC is entering into this PA Amendment No. 1 solely as
Owner Trustee under the Trust Agreement and not in its individual
capacity. Anything herein to the contrary notwithstanding, all
and each of the agreements and obligations herein made or
undertaken on the part of the Owner Trustee are made or
undertaken not as personal agreements of FNBC, but are made and
undertaken solely for the purpose of binding only the Trust
Estate and nothing contained in this Participation Agreement
shall entitle any person to any claim against FNBC in its
individual capacity or any of its assets.
IN WITNESS WHEREOF, the parties hereto have caused this
PA Amendment No. 1 to be duly executed by their respective
officers thereunto duly authorized.
ESSL 2, INC., as Owner Participant
By
Name:
Title:
W3A FUNDING CORPORATION
By
Name:
Title:
FIRST NATIONAL BANK OF COMMERCE, not in
its individual capacity, but solely
as Owner Trustee under the Trust
Agreement
By
Name:
Title:
BANKERS TRUST COMPANY, as Corporate
Indenture Trustee and Collateral
Trust Trustee
By
Name:
Title:
XXXXXXX XXXX, not in his individual
capacity but solely as Individual
Indenture Trustee
LOUISIANA POWER & LIGHT COMPANY, as Lessee
By
Name:
Title:
Schedule 1
Pricing Assumptions
Basic Rent, Casualty Values and Special Casualty Values, as set
forth in the Facility Lease, as amended by Lease Supplement No.
1, dated as of _________ __, 1996, for dates occurring after the
Refunding Date set forth below, have been computed on the basis
of the following additional Pricing Assumptions which hereby
supplement and amend Schedule 5 to the Participation Agreement:
1. Refunding Date: ___________________ __, 199_
2. Interest Rate and
Amortization of
199_ Bonds: See Supplemental Indenture No. 2, dated as
of _____________, 199_
3. Refunding Expenses: $____________ paid by the Owner Trustee
on the Refunding Date from funds
provided by the Owner Participant
(amortized on a straight-line basis
during the period commencing on the
Refunding Date and ending on the last
day of the Basic Lease Term).
4. Accrued Interest: $____________ paid by the Owner Trustee
on the Refunding Date as interest from
_________ _, 199_ to the Refunding Date
on the Initial Series Bonds which are
redeemed on the Refunding Date.
5. Premium: $____________ paid by the Owner Trustee
on the Refunding Date in respect of the
premium on the Initial Series Bonds
redeemed on the Refunding Date.
6. ____ Bonds: $_____________ issued by the Owner Trustee in
accordance with the Refunding Agreement,
Supplemental Indenture No. 2, dated as
of ________ _, 199_, and other
Transaction Documents and not in excess
of 105% of the outstanding principal
amount of the Initial Series Bonds as of
the Refunding Date.
7. Additional Equity
Investment: $____________ funded by the Owner Trustee
or the Owner Participant, as the case may
be, on the Refunding Date.
8. Supplemental Rent: $_____________ paid by the Lessee on the
Refunding Date.
9. Owner Participant's
Marginal State
Tax Rate(s): 9.5281%; 9%, beginning in fiscal year 1991.
10. Owner Participant's
Marginal Federal
Tax Rate(s): 34%; 35%, beginning in fiscal year 1991.
11. Tax Payment
Method(s): 90/10;
93/7, beginning in fiscal year 1992;
97/3, beginning in fiscal year 1993;
100/0, beginning in fiscal year 1994.
SCHEDULE A-1
TO
APPENDIX A
(Definitions)
Appendix A ("Definitions") to the Participation Agreement
and the other Transaction Documents (as defined therein) is
hereby amended as follows:
(a) The following definitions are deleted from Appendix A:
"Authenticating Agent", "Authorized Agent", "Bond Registrar",
"Initial Interest Payment Date", "Paying Agent", "Place of
Payment", "Predecessor Bonds", "Regular Record Date" and "Special
Record Date".
(b) The following definitions are added to Appendix A:
(1) "Collateral Bonds" shall mean all bonds, notes and
other evidences of indebtedness from time to time issued and
outstanding under the Collateral Trust Indenture.
(2) "Collateral Trust Indenture" shall mean (x) in
respect of the refunding of the Initial Series Bonds, the
Collateral Trust Indenture, dated as of __________ __, 199_,
among the Lessee, Funding Corporation and the Collateral Trust
Trustee, and (y) in respect of any refunding from time to time of
Additional Bonds pursuant to Section 2(b) of the Participation
Agreement, the related collateral trust indenture, in form and
substance satisfactory to the Owner Participant, among the
Lessee, Funding Corporation and the Collateral Trust Trustee.
(3) "Collateral Trust Trustee" shall mean (x) in
respect of the Collateral Trust Indenture entered into in
connection with the refunding of the Initial Series Bonds, ____
and its successors or assigns, and (y) in respect of any
Collateral Trust Indenture utilized in connection with the
refunding of Additional Bonds pursuant to Section 2(b) of the
Participation Agreement, the bank or trust company acting as
trustee thereunder and its successors or assigns.
(4) "Funding Corporation" shall mean (x) in respect of
the refunding of the Initial Series Bonds, W3A Funding
Corporation, a Delaware corporation, and (y) in respect of any
refunding of Additional Bonds pursuant to Section 2(b) of the
Participation Agreement, any special-purpose entity that issues
Collateral Bonds to provide funds to refund such Additional
Bonds.
(5) "Refunding Agreement" shall mean the Refunding
Agreement No. __, dated as of __________, among the Owner
Participant, the Owner Trustee, Funding Corporation, the
Indenture Trustee, the Collateral Trust Trustee and the Lessee.
(6) "Refunding Collateral Bonds" shall mean any one or
more series of Collateral Bonds issued and sold by Funding
Corporation, a portion of the proceeds of which will be applied
to the refunding of the Initial Series Bonds or any Additional
Bonds.
(7) "Refunding Expenses" shall have the meaning set
forth in the Refunding Agreement.
(8) "Refunding Loan" shall have the meaning set forth
in Section 2(b) of the Participation Agreement.
(c) The following definitions in Appendix A are revised as
set forth below:
(1) The definition of "Indemnitees" is amended and
restated as follows:
"Indemnitees" shall mean FNBC, the Owner
Trustee, the Corporate Indenture Trustee, the
Individual Indenture Trustee and the Collateral Trust
Trustee, each in their individual and fiduciary
capacities, the Owner Participant, Funding Corporation,
the Trust, the Trust Estate, the Indenture Estate, the
indenture estate under the Collateral Trust Indenture,
any Affiliate of any of the foregoing and the
respective successors, assigns, agents, shareholders,
officers, directors or employees of any of the
foregoing.
(2) The definition of "Net Economic Return" is hereby
amended and restated to be as follows:
"Net Economic Return" shall mean:
(i) the net after-tax economic yield
expected by the Owner Participant as of the date of the
initial authentication and delivery of the 199_ Bonds
(as defined in the Indenture) with respect to the
Undivided Interest, calculated using the Assumptions
and the computations of Basic Rent, Casualty Values and
Special Casualty Values derived therefrom (the
"Schedules and Assumptions") as such yield shall be
adjusted pursuant to and in accordance with Section 3
of the Facility Lease and as agreed between the Lessee
and the Owner Participant; and
(ii) the sum of after-tax cash flow over the
Basic Lease Term at least equal to that expected by the
Owner Participant as of the date of the initial
authentication and delivery of the 199_ Bonds
calculated using the Schedules and Assumptions (the
"Original After-Tax Cash Flow"); and
(iii) the same general pattern of after-tax
Earnings originally expected by the Owner Participant
as of the date of the initial authentication and
delivery of the 199_ Bonds calculated using the
Schedules and Assumptions.
Notwithstanding the above, nothing in this definition
shall be construed to obligate the Lessee to restore any
portion of a reduction in Earnings where such portion of the
reduction is due to events other than changes in Basic Rent
provided for in the Transaction Documents, including, by
example, changes in Financial Accounting Standards Board
Statement No. 13 occurring after the date of the initial
authentication and delivery of the ______ Bonds.
For the purposes of this definition, the Assumptions
shall be deemed to include the assumptions that (i) the
Owner Participant is fully taxable during the entire Basic
Lease Term (provided, however, that nothing in this
definition or the Participation Agreement shall be construed
to be a representation by the Owner Participant as to the
actual residual value assumed by the Owner Participant for
purposes of calculating its earnings according to Financial
Accounting Standards Board Statement No. 13 accounting or
for any other purpose) and (ii) none of the equity
investment is comprised of borrowed funds.
(3) The definition of "Officers' Certificate" is
amended and restated as follows:
"Officers' Certificate" shall mean a
certificate signed by the President or any Vice
President and by the Treasurer, any Assistant
Treasurer, the Secretary or any Assistant Secretary of
the Person with respect to which such term is used.
(4) The definition of "Registration Statement" is
amended and restated as follows:
"Registration Statement" shall mean a registration
statement, including all exhibits and all documents incorporated
in such registration statement by reference, filed with the SEC
under the Securities Act with respect to (x) in the case of the
transactions contemplated to occur on the Closing Date, the
offer, issue and sale of the Initial Series Bonds, and (y) in the
case of the transactions contemplated to occur on any Refunding
Date, the offer, issue and sale of any Refunding Collateral Bonds
or Additional Bonds.
(5) The definition of "Responsible Officer" is amended
by adding the following after the words "shall mean" in the first
line thereof:
(i) when used with respect to the Trustee,
any officer within the Corporate Trust Office including
any Vice President, Assistant Vice President,
Secretary, Assistant Secretary, Managing Director or
any other officer of the Trustee customarily performing
functions similar to those performed by any of the
above designated officers and also, with respect to a
particular matter, any other officer to whom such
matter is referred because of such officer's knowledge
and familiarity with the particular subject, and (ii)
and by adding word "other" after the words "agreement or
obligation of any" in the second line thereof.
(6) The definition of "Transaction Documents" is
amended by adding the words" and the Collateral Trust Indenture,
the Refunding Agreement and the Collateral Bonds" after the word
"Bonds".
(7) The definition of "Underwriting Agreement" is
amended and restated as follows:
"Underwriting Agreement" shall mean (x) with respect to
the Initial Series Bonds, Underwriting Agreement No. [See
Additional Information], dated September 21, 1989, among the
Owner Trustee, the Lessee, and the underwriter or underwriters
for the Initial Series Bonds, and (y) with respect to any
Refunding Collateral Bonds or Additional Bonds, the underwriting
agreement among the Lessee, Funding Corporation or the Owner
Trustee (as the case may be), and the underwriter or underwriters
for such Collateral Bonds or Additional Bonds relating to the
purchase, sale and delivery thereof.
