When Recorded, Return to:
Greg R. Nielsen, Esq.
Snell & Wilmer
3100 Valley Bank Center
Phoenix, Arizona 85073
CERTAIN RIGHTS OF THE LESSOR UNDER THE FACILITY LEASE AS HERETOFORE AMENDED
AND AS AMENDED BY THIS AMENDMENT NO. 2 THERETO HAVE BEEN ASSIGNED TO, AND ARE
SUBJECT TO A SECURITY INTEREST IN FAVOR OF, CHEMICAL BANK, AS INDENTURE TRUSTEE
UNDER A TRUST INDENTURE, MORTGAGE, SECURITY AGREEMENT AND ASSIGNMENT OF RENTS
DATED AS OF AUGUST 12, 1986, AS AMENDED. THIS AMENDMENT NO. 2 HAS BEEN EXECUTED
IN SEVERAL COUNTERPARTS. SEE SECTION 3 (e) OF THIS AGREEMENT NO. 2 FOR
INFORMATION CONCERNING THE RIGHTS OF HOLDERS OF VARIOUS COUNTERPARTS HEREOF AND
OF THE FACILITY LEASE.
THIS COUNTERPART IS NOT THE ORIGINAL COUNTERPART.
- --------------------------------------------------------------------------------
AMENDMENT NO. 2
Dated as of April 10, 1987
to
FACILITY LEASE
Dated as of August 12, 1986, as amended
between
THE FIRST NATIONAL BANK OF BOSTON,
not in its individual capacity,
but solely as Owner Trustee under
a Trust Agreement, dated as of
August 12, 1986, with MFS Leasing
Corp.,
Lessor
and
PUBLIC SERVICE COMPANY OF NEW MEXICO,
Lessee
- --------------------------------------------------------------------------------
Original Facility Lease recorded August 18, 1986, as Instrument No. 86-439399,
amended by Amendment No. 1 thereto recorded November 25, 1986, as Instrument No.
86-650755 all in Maricopa County, Arizona Recorder's Office.
- --------------------------------------------------------------------------------
6091.MFSU1.DEBT.71B:1
AMENDMENT NO. 2, dated as of April 10, 1987 (Amendment No. 2), to the
Facility Lease dated as of August 12, 1986, between THE FIRST NATIONAL BANK OF
BOSTON, a national banking association, not in its individual capacity, but
solely as Owner Trustee under a Trust Agreement, dated as of August 12, 1986,
with MFS Leasing Corp. (the Lessor), and PUBLIC SERVICE COMPANY OF NEW MEXICO, a
New Mexico corporation (the Lessee).
W I T N E S S E T H :
WHEREAS, the Lessee and the Lessor have heretofore entered into a
Facility Lease dated as of August 12, 1986, as heretofore amended (the Facility
Lease), providing for the lease by the Lessor to the Lessee of the Undivided
Interest and the Real Property Interest;
WHEREAS, the Lessee and the Lessor desire to amend the Facility Lease
as set forth in Section 2 hereof; and
WHEREAS, the Indenture Trustee has consented to this Amendment No. 2
pursuant to the Request, Instruction and Consent effective on April 10, 1987:
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 Appendix A to the Facility Lease.
SECTION 2. Amendment.
The definition of "Change in Tax Law" set forth in Appendix A to the
Facility Lease is hereby amended to read in its entirety as follows:
"Change in Tax Law shall mean any change in the Code or successor
legislation enacted by the Ninety-ninth Congress (other than a change in
respect of an alternative minimum tax or an add-on minimum tax having the
same effect as an alternative minimum tax), or if prior to January 15, 1997
(i) there is enacted any technical correction thereto, or (ii) there are
adopted, promulgated, issued or published any proposed, temporary to final
Regulations resulting therefrom (regardless of the effective date of such
technical corrections or Regulations, but only if such technical corrections
or Regulations would affect Net Economic Return); provided, however, that a
Change in Tax Law shall occur in the event the provision set forth in
Section 1509 (b) of H. R. 3838 as passed by the U.S. House of
Representatives on December 17, 1985 and Section 1809 (b) of H. R. 3838 as
passed by the U.S. Senate on June 24, 1986 shall fail to be enacted into law
in the form therein set forth or, if such provision is so enacted into law.
It shall not apply to the Common Facilities."
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6091.MFSU1.DEBT.71B:1
SECTION 3. Miscellaneous
(a) Effective Date of Amendment. The amendment set forth in Section 2
hereof shall be and become effective on and as of December 31, 1985.
(b) Counterpart Execution. This Amendment No. 2 may be executed in any
number of counterparts and by each of the parties hereto on separate
counterparts; all such counterparts shall together constitute but one and the
same instrument.
(c) Governing Law. This Amendment No. 2 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, except to the extent that
pursuant to the law of the State of Arizona such law is mandatorily applicable
hereto.
(d) Disclosure. Pursuant to Arizona Revised Statutes Section 33-401,
the beneficiary of the Trust Agreement is MFS Leasing Corp., a Delaware
corporation. The address of the beneficiary is Suite 3030, One Mellon Bank
Center, Pittsburgh, PA 15258, Attention: President. A copy of the Trust
Agreement is available for inspection at the offices of the Owner Trustee at 100
Federal Street, Boston, Massachusetts 02110, Attention of Corporate Trust
Division.
(e) Amendment No. 1. The single executed original of this Amendment No.
2 marked "THIS COUNTERPART IS THE ORIGINAL COUNTERPART" and containing the
receipt of the Indenture Trustee thereon shall be the "Original" of this
Amendment No. 2. To the extent that the Facility Lease constitutes chattel
paper, as such term is defined in the Uniform Commercial Code as in effect in
any applicable jurisdiction, no security interest in the Facility Lease as
amended by this Amendment No. 2 may be created or continued through the transfer
or possession of any counterpart of this Amendment No. 2 other than the
"Original".
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6091.MFSU1.DEBT.71B:1
IN WITNESS WHEREOF, each of the parties hereto has caused this
Amendment No. 2 to Facility Lease to be duly executed in Boston, Massachusetts,
or Albuquerque, New Mexico, as the case may be, by an officer thereunto duly
authorized.
THE FIRST NATIONAL BANK OF
BOSTON, not in its
individual capacity, but
solely as Owner Trustee
under a Trust Agreement,
dated as of August 12,
1986, with MFS Leasing
Corp.
By /s/ James E. Mogavero
-----------------------------------
Assistant Cashier
PUBLIC SERVICE COMPANY
OF NEW MEXICO
By
-----------------------------------
Vice President and Corporate
Controller
6091.MFSU1.DEBT.71B:1
4
IN WITNESS WHEREOF, each of the parties hereto has caused this
Amendment No. 2 to Facility Lease to be duly executed in Boston, Massachusetts,
or Albuquerque, New Mexico, as the case may be, by an officer thereunto duly
authorized.
THE FIRST NATIONAL BANK OF
BOSTON, not in its
individual capacity, but
solely as Owner Trustee
under a Trust Agreement,
dated as of August 12,
1986, with MFS Leasing
Corp.
By
----------------------------------
Assistant Cashier
PUBLIC SERVICE COMPANY
OF NEW MEXICO
By /s/ B. D. Lackey
----------------------------------
Vice President and Corporate
Controller
6091.MFSU1.DEBT.71B:1
5
State of New Mexico )
) ss:
County of Bernalillo )
The foregoing instrument was acknowledged before me this 10th day of
April, 1987, by B. D. Lackey, the Vice President and Corporate Controller of
PUBLIC SERVICE COMPANY OF NEW MEXICO, a New Mexico corporation, on behalf of the
corporation.
/s/
--------------------------------------
Notary Public
Commonwealth of Massachusetts )
) ss:
County of Suffolk )
The foregoing instrument was acknowledged before me this 10th day of
April, 1987 by James E. Mogavero, an Assistant Cashier of THE FIRST NATIONAL
BANK OF BOSTON, a national banking association, on behalf of the banking
association as trustee under that certain Trust Agreement dated as of August 12,
1986 with MFS Leasing Corp.
/s/
--------------------------------------
Notary Public
6091.MFSU1.DEBT.71B:1
6
State of New Mexico )
) ss:
County of Bernalillo )
The foregoing instrument was acknowledged before me this 10th day of
April, 1987, by B. D. Lackey, the Vice President and Corporate Controller of
PUBLIC SERVICE COMPANY OF NEW MEXICO, a New Mexico corporation, on behalf of the
corporation.
/s/
--------------------------------------
Notary Public
Commonwealth of Massachusetts )
) ss:
County of Suffolk )
The foregoing instrument was acknowledged before me this 10th day of
April, 1987 by James E. Mogavero, an Assistant Cashier of THE FIRST NATIONAL
BANK OF BOSTON, a national banking association, on behalf of the banking
association as trustee under that certain Trust Agreement dated as of August 12,
1986 with MFS Leasing Corp.
/s/ Carol Malley
--------------------------------------
Notary Public
CAROL MALLEY
Notary Public
My Commission Expires January 28, 1994
6091.MFSU1.DEBT.71B:1
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