FIRST AMENDMENT TO
EQUIPMENT LEASE AGREEMENT
Dated as of October 15, 1995
By and Between
PNC LEASING CORP
as the Lessor
and
FIRST BRANDS CORPORATION
as the Lessee
FIRST AMENDMENT TO
EQUIPMENT LEASE AGREEMENT
THIS FIRST AMENDMENT TO EQUIPMENT LEASE AGREEMENT is made as
of the 15th day of October, 1995 (the "First Amendment") to that certain
Equipment Lease Agreement dated as of October 15, 1993 (the Equipment Lease
Agreement together with all exhibits and schedules thereto, the "Original
Agreement") (the Original Agreement, as amended by this First Amendment,
together with all extensions, substitutions, replacements, restatements and
other amendments or modifications thereof or thereto, the "Agreement") by and
between PNC LEASING CORP, a corporation organized and existing under the laws of
the Commonwealth of Pennsylvania (the "Lessor") and FIRST BRANDS CORPORATION, a
corporation organized and existing under the laws of the State of Delaware
("FBC").
WITNESSETH:
WHEREAS, the Lessor and FBC desire to amend the Original
Agreement as set forth herein.
NOW, THEREFORE, in consideration of the terms and conditions
contained herein, and other good and valuable consideration, the parties hereto,
intending to be legally bound, hereby agree as follows:
ARTICLE I
AMENDMENTS TO ORIGINAL AGREEMENT
FIRST: Subsection 1.4(a) of the Original Agreement is hereby
amended and restated in its entirety to read as follows:
1.4 Rent.
(a) Base Rent. FBC hereby agrees to pay in arrears, on each Payment
Date during the Base Term, Base Rent to Lessor for the Items. "Base
Rent" shall mean, as to any Payment Date during the Base Term, the sum
of (i) the product of (A) Lessor's Cost for each Item then subject to
this Agreement, and (B) the percentage listed in Column 1 of Schedule
1.4(a) hereto with respect to such Payment Date, and (ii) the product
of (A) Lessor's Cost for each Item then subject to this Agreement, (B)
the percentage listed in Column 2 of Schedule 1.4(a) hereto with
respect to such Payment Date, and (C) the fraction, the numerator of
which is the
Base Term Percentage Rental Factor plus the LIBO Rate, and the
denominator of which is 4. "Base Term Percentage Rental Factor" shall
mean with respect to any payment of Base Rent a percentage determined
as follows:
-------------------------------------------------------------------
S&P RATING THEN BASE TERM PERCENTAGE
IN EFFECT RENTAL FACTOR
-------------------------------------------------------------------
BB+ or less .80%
-------------------------------------------------------------------
BBB- .75%
-------------------------------------------------------------------
BBB .65%
-------------------------------------------------------------------
BBB+ .60%
-------------------------------------------------------------------
A- or higher .55%
-------------------------------------------------------------------
For the purposes of this Subsection 1.4(a), the term "S&P Rating" shall
mean an actual or implied senior debt rating obtained by FBC from
Standard & Poor's, a division of ▇▇▇▇▇▇-▇▇▇▇, Inc. ("S&P"). In the
event that, for any reason, an S&P rating is unavailable or cannot be
determined for FBC, then, in Lessor's determination and discretion,
either (i) the equivalent actual or implied senior debt rating obtained
by FBC from ▇▇▇▇▇'▇ Investor Service ("Moody's"), or a similar
nationally-recognized rating service, shall be substituted for the "S&P
Rating" to be used in determining the Base Term Percentage Rental
Factor, or (ii) if no such equivalent rating is available or can be
determined, then the Base Term Percentage Rental Factor shall be equal
to the latest Base Term Percentage Rental Factor then in effect.
FBC shall pay any Taxes which arise in connection with any Rent payment
to the extent it would have an indemnity obligation under Section 2.2
for such Taxes and subject to any contest rights FBC has under Sections
2.2 and 2.6 hereof.
SECOND: Section 4.6 of the Original Agreement is hereby
amended and restated in its entirety to read as follows:
4.6 Option to Renew.
(a) Option and Exercise; Term. Upon the scheduled expiration of any Term
hereunder, so long as no Event of Default has occurred and is
continuing, FBC shall have the option (each, a "Renewal Option") to
extend for a period of one (1) year the term of this Agreement with
respect to all (but not less than all) of the then remaining Items
(each such period, an "Extended Term"); provided, however, that no
more than three (3) Extended Terms may be elected by FBC hereunder.
Each
-2-
Extended Term shall commence on October 16 of the year of such
election and continue until October 15 of the following year. In the
event FBC desires to extend the term of this Agreement, FBC shall
provide written notice (the "Extension Notice") to Lessor not less
than 90 days prior to the expiration of the Base Term or Extended Term
then in effect; provided, in the event Lessor or the Participants
existing on the Closing Date and remaining at such time (in their
reasonable opinion) determine that FBC's financial condition has
changed in a materially adverse manner from the date of this
Agreement, Lessor or such Participants may, by written notice within
15 days after its receipt of the Extension Notice, prevent FBC's
exercise of the Renewal Option; provided, FBC may, during the 30 day
period commencing upon its receipt of such notice preventing its
exercise of the Renewal Option, exercise one of the options set forth
in Section 4.1.
(b) Extended Term Rent. If FBC elects to exercise its option to extend the
term of this Agreement pursuant to Section 4.6(a) above, FBC agrees to
pay in arrears, on each Payment Date during the Extended Term,
Extended Term Rent to Lessor for each Item. "Extended Term Rent" shall
mean, as to any Payment Date during the Extended Term, the sum of (i)
the product of (A) Lessor's Cost for each Item then subject to this
Agreement, and (B) the percentage listed in Column 1 of the Extension
Schedule hereto with respect to such Payment Date, and (ii) the
product of (A) Lessor's Cost for each Item then subject to this
Agreement, (B) the percentage listed in Column 2 of the Extension
Schedule hereto with respect to such payment Date, and (C) the
fraction, the numerator of which is the Base Term Percentage Rental
Factor plus the LIBO Rate, and the denominator of which is 4. "Base
Term Percentage Rental Factor" shall have the meaning ascribed to such
term in Subsection 1.4(a) above.
(c) Other Provisions. All other provisions of this Agreement shall be and
remain in effect during the Extended Term.
THIRD: Schedule 1.4a of the Original Agreement is hereby
amended and restated in its entirety to read as shown on Schedule 1.4a attached
hereto and made a part hereof.
FOURTH: Schedule 11.1(o) of the Original Agreement is hereby
amended and restated in its entirety to read as shown on Schedule 11.1(o)
attached hereto and made a part hereof.
-3-
ARTICLE II
CONDITIONS PRECEDENT
This First Amendment shall become operative as of the date
hereof when each of the following conditions precedent are satisfied in the
judgment of the Lessor or have been waived in writing by the Lessor:
(a) First Amendment. Receipt by the Lessor of duly executed
counterparts of this First Amendment from FBC.
(b) Closing Certificate. Receipt by the Lessor of a
certificate signed by an authorized officer of FBC dated as of even date
herewith certifying (i) that the representations and warranties set forth in the
Original Agreement are true and correct in all material respects on and as of
the date of this First Amendment as though made on and as of such date, except
to the extent that such representations and warranties relate solely to an
earlier date (in which case, such representations and warranties shall have been
true and correct on and as of such earlier date) and (ii) as to such other
matters as Lessor may reasonably request.
(c) Corporate Documents of FBC. Receipt by the Lessor of (i)
an incumbency certificate of FBC dated as of the First Amendment closing date
and (ii) duly certified copies of the articles of incorporation and bylaws of
FBC.
(d) Proceedings Satisfactory. Receipt by the Lessor of
evidence that all proceedings taken in connection with this First Amendment and
the consummation of the transactions contemplated hereby and all documents and
papers relating hereto have been completed or duly executed, and receipt by the
Lessor of such documents and papers, all in form and substance reasonably
satisfactory to the Lessor and Lessor's special counsel, as the Lessor or its
special counsel may reasonably request in connection therewith.
ARTICLE III
MISCELLANEOUS
FIRST: Except as expressly amended by this First Amendment,
the Original Agreement and each and every representation, warranty, covenant,
term and condition contained therein is specifically ratified and confirmed.
SECOND: FBC hereby specifically waives any prior notice
requirement, whether pursuant to Subsection 5.3(c)(iii) of the Agreement or
otherwise, applicable to the reassignment of the participation interest of IBJS
Commercial Corporation to Lessor.
-4-
THIRD: The intended characterization and treatment of the
transactions contemplated by Section 8.1 of the Original Agreement are hereby
confirmed and shall be unaffected by the execution of this First Amendment.
FOURTH: FBC and Lessor agree and acknowledge that each of the
Operative Documents are each hereby ratified and confirmed in all respects and
shall be and remain in full force and effect, and binding upon them. From and
after the date hereof, all references in the Agreement or any Operative Document
to the Agreement, shall be deemed to be references to the Original Agreement as
amended by this First Amendment.
FIFTH: Except for proper nouns and as otherwise defined or
amended herein, capitalized terms used herein which are not defined herein, but
which are defined in the Original Agreement, shall have the meaning given them
in the Original Agreement.
SIXTH: This First Amendment shall be binding upon and inure to
the benefit of FBC, the Lessor and their respective successors and assigns.
SEVENTH: Nothing in this First Amendment shall be deemed or
construed to be a waiver, release or limitation upon the Lessor's exercise of
any of its rights and remedies under the Original Agreement or any Operative
Document, whether arising as a consequence of any Events of Default which may
now exist, hereafter arise or otherwise, and all such rights and remedies are
hereby expressly reserved.
EIGHTH: This First Amendment may be executed in as many
different counterparts as shall be convenient and by the different parties
hereto on separate counterparts, each of which when executed by FBC and the
Lessor shall be regarded as an original. All such counterparts shall constitute
but one and the same instrument. Delivery of an executed signature page hereto
by telecopier shall be effective as delivery of a manually- executed original.
NINTH: This First Amendment shall be a contract made under and
governed by the laws of the State of New York without regard to the principles
thereof regarding conflict of laws.
TENTH: FBC shall pay any costs and expenses of Lessor incurred
in connection with this amendment and any other documents or agreements executed
in connection therewith, including attorney's fees and costs.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-5-
This First Amendment to Equipment Lease Agreement is executed as of the day and
year first above written.
FIRST BRANDS CORPORATION
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Treasurer
PNC LEASING CORP
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
Agreed and consented:
UNION TRUST COMPANY
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
-6-
SCHEDULE 1.4(a)
-----------------------------------------------------------------------------------------------------------------------------
COLUMN 1 COLUMN 2 COLUMN 3
MONTHLY UNAMORTIZED TERMINATION
PAYMENT DATE AMORTIZATION BALANCE PERCENTAGE
-----------------------------------------------------------------------------------------------------------------------------
01/15/94 2.37044674 100.00000000 97.62955326
-----------------------------------------------------------------------------------------------------------------------------
04/15/94 2.40229962 97.62955326 95.22725364
-----------------------------------------------------------------------------------------------------------------------------
07/15/94 2.43458052 95.22725364 92.79267313
-----------------------------------------------------------------------------------------------------------------------------
10/15/94 2.48349661 92.79267313 90.30917631
-----------------------------------------------------------------------------------------------------------------------------
01/15/94 2.51420439 90.30917631 87.79497192
-----------------------------------------------------------------------------------------------------------------------------
04/15/95 2.54529166 87.79497192 85.24968027
-----------------------------------------------------------------------------------------------------------------------------
07/15/95 2.57678330 85.24968027 82.67291696
-----------------------------------------------------------------------------------------------------------------------------
10/15/95 2.60862410 82.67291696 80.06429287
-----------------------------------------------------------------------------------------------------------------------------
01/15/96 2.64087882 80.06429287 77.42341406
-----------------------------------------------------------------------------------------------------------------------------
04/15/96 2.67353237 77.42341406 74.74988169
-----------------------------------------------------------------------------------------------------------------------------
07/15/96 2.70658967 74.74988169 72.04329202
-----------------------------------------------------------------------------------------------------------------------------
10/15/96 2.74005571 72.04329202 69.30323631
-----------------------------------------------------------------------------------------------------------------------------
01/15/97 2.77393555 69.30323631 66.52930076
-----------------------------------------------------------------------------------------------------------------------------
04/15/97 2.80823430 66.52930076 63.72106646
-----------------------------------------------------------------------------------------------------------------------------
07/15/97 2.84295714 63.72106646 60.87810932
-----------------------------------------------------------------------------------------------------------------------------
10/15/97 2.87810932 60.87810932 58.00000000
-----------------------------------------------------------------------------------------------------------------------------
01/15/98 2.64458291 58.00000000 55.35641709
-----------------------------------------------------------------------------------------------------------------------------
04/15/98 2.67797078 55.35541709 52.67744833
-----------------------------------------------------------------------------------------------------------------------------
07/15/98 2.71178015 52.67744833 49.965666156
-----------------------------------------------------------------------------------------------------------------------------
10/15/98 2.74601637 49.965666156 47.21964981
-----------------------------------------------------------------------------------------------------------------------------
01/15/99 2.78068483 47.21964981 44.43896498
-----------------------------------------------------------------------------------------------------------------------------
04/15/99 2.81579097 44.43896498 41.62317401
-----------------------------------------------------------------------------------------------------------------------------
07/15/99 2.85134033 41.62317401 38.77183368
-----------------------------------------------------------------------------------------------------------------------------
10/15/99 2.88733851 38.77183368 35.88449517
-----------------------------------------------------------------------------------------------------------------------------
01/15/00 2.92379115 35.88449517 32.96070402
-----------------------------------------------------------------------------------------------------------------------------
04/15/00 2.96070402 32.96070402 30.00000000
-----------------------------------------------------------------------------------------------------------------------------
07/15/00 2.99808290 30.00000000 27.00191710
-----------------------------------------------------------------------------------------------------------------------------
10/15/00 3.35933700 27.0019171 23.96598340
-----------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
EXTENDED TERM ENDING: ADJUSTMENT PERCENTAGE: PURCHASE PRICE PERCENTAGE
--------------------------------------------------------------------------------------------------------------------------
October 15, 1998 40.969 47.220
--------------------------------------------------------------------------------------------------------------------------
October 15, 1999 30.795 35.885
--------------------------------------------------------------------------------------------------------------------------
October 15, 2000 20.099 23.970
--------------------------------------------------------------------------------------------------------------------------
-8-
SCHEDULE 11.1(o)
PARTICIPANTS
First Fidelity Bank, formerly Union Trust Company
