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CITICORP LESCAMAN, INC. -- TRUST H EXECUTION COPY
Exhibit 10(a)
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AMENDMENT NO. 2
dated as of June 13, 1997
to
FACILITY LEASE
dated as of September 30, 1987
as amended February 26, 1988
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. 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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CITICORP LESCAMAN, INC. -- TRUST H EXECUTION COPY
AMENDMENT NO. 2, dated as of June 13, 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 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, 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, the Lessor and the Indenture Trustee intend to
execute a Supplemental Indenture No. 2 dated as of June 13, 1997 to the
Indenture, 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.
(a) Section 3(f)(i) of the Facility Lease is hereby amended by
(i) deleting the comma after the phrase "Section
4.02(5)" and inserting the word "and",
(ii) deleting the phrase "and 4.08(1)" immediately
preceding the phrase "of Revenue Procedure 75-28",
(iii) deleting the phrase "and the requirements of
Section 4.08(1) shall be applied on a prospective basis" immediately
following the phrase "minimum equity investment will be consistent
with the maintenance of that originally made by the Owner
Participant."
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CITICORP LESCAMAN, INC. -- TRUST H EXECUTION COPY
(b) Schedules 1 through 4 of the Facility Lease are hereby amended as
follows:
(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.
SECTION 3. MISCELLANEOUS.
(a) Execution. Although this Amendment No. 2 is dated as of
the date first above written for convenience, the actual dates of execution
hereof by the parties hereto are, respectively, the dates set forth under the
signatures hereto. This Amendment No. 2 shall be effective as of the date upon
which the Owner Trustee receives a payment of Supplemental Rent as provided in
the Facility Lease (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.
(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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CITICORP LESCAMAN, INC. -- TRUST H EXECUTION COPY
(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.
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: Xxxxx Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Admin. Acct. Manager Title: Vice President
Date: June 18, 1997
THE TOLEDO EDISON COMPANY
and
THE CLEVELAND ELECTRIC ILLUMINATING COMPANY
ATTEST:
[Corporate Seal] By: /s/ XXXXX X. XXXXX
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By: Name: Xxxxx X. Xxxxx
Title: Title: Treasurer of each
Date: June 18, 1997
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CITICORP LESCAMAN, INC. -- TRUST H EXECUTION COPY
CERTIFICATE OF SERVICE
The Lessee, The Toledo Edison Company, hereby certifies that
its precise address is 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxx 00000.
By: /s/ XXXXX X. XXXXX
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Name: Xxxxx X. Xxxxx
Title: Treasurer
Date: June 18, 1997
CERTIFICATE OF SERVICE
The Lessee, The Cleveland Electric Illuminating Company,
hereby certifies that its precise address is 0000 Xxx Xxxx Xxxxxxxxx,
Xxxxxxxxxxxx, Xxxx 00000.
By: /s/ XXXXX X. XXXXX
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Name: Xxxxx X. Xxxxx
Title: Treasurer
Date: June 18, 1997
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CITICORP LESCAMAN, INC. -- TRUST H EXECUTION COPY
STATE OF DELAWARE )
) ss:
COUNTY OF NEW CASTLE )
On this 16th day of June, 1997, before me, the undersigned
notary public, personally appeared Xxxxx X. Xxxxxx who acknowledged himself to
be a 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/ XXXXXXXX X. XXXXXXXX
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Notary Public
My Commission Expires: October 31, 1998
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CITICORP LESCAMAN, INC. -- TRUST H EXECUTION COPY
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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(*)1
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(1) Percentage for first Rent Payment Date reflects prepayment of Basic Rent
made on June 18, 1997.
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CITICORP LESCAMAN, INC. -- TRUST H EXECUTION COPY
SCHEDULE 2
TO AMENDMENT NO. 2
TO FACILITY LEASE
STIPULATED LOSS VALUE
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Date % of Facility Cost
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CITICORP LESCAMAN, INC. -- TRUST H EXECUTION COPY
SCHEDULE 3
TO AMENDMENT NO. 2
TO FACILITY LEASE
TERMINATION VALUE
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Date % of Facility Cost
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