EXHIBIT (10)(h)
AGREEMENT OF AMENDMENT NO. 1
TO MASTER LEASE AGREEMENT AND
EQUIPMENT SCHEDULE NO. 1
THIS AGREEMENT OF AMENDMENT NO. 1 TO MASTER LEASE AGREEMENT AND EQUIPMENT
SCHEDULE NO. 1 ("Amendment") is made as of the 5th day of May, 2000, among
FATICO 1999 TRUST ("Lessor"), FIRST AMERICAN TITLE INSURANCE COMPANY ("Lessee"),
and GENERAL ELECTRIC CAPITAL CORPORATION, AS COLLATERAL AGENT ("Collateral
Agent").
Lessor and Lessee have heretofore entered into that certain Master Lease
Agreement dated as of December 27, 1999 (the "Agreement") and, pursuant to the
Agreement and incorporating by reference the terms and conditions thereof, that
certain Equipment Schedule No. 1 dated December 29, 1999 ("Schedule No. 1").
Capitalized terms used herein without definition shall have the meaning given
such terms in the Agreement. All right, title and interest of Lessor in, to and
under the Agreement have been assigned to the Borrower Collateral Agent, as such
term is defined in that certain Receivables Funding Agreement dated as of
December 27, 1999, by and among Lessor, Edison Asset Securitization, L.L.C. and
General Electric Capital Corporation, for the benefit of the Lender and the
Residual Support Provider, and the Lender has further assigned its right, title
and interest therein to the Collateral Agent.
The parties desire to amend the Agreement and Schedule No. 1 as hereinafter
set forth.
NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00) in hand
paid, and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. Section 13(b)(1)(B) of the Agreement is deleted and the following
substituted in lieu thereof:
(B) all equipment (as such term is defined in the UCC) in which
Lessee shall from time to time acquire an ownership interest now or
hereafter located at any Equipment Location; together with all
additions, attachments, accessions and accessories thereto whether or
not furnished by the supplier of the Equipment or the Additional
Collateral and any and all substitutions, replacements or exchanges
therefor, in each such case in which Lessee shall from time to time
acquire an ownership interest, together with Lessee's interest in all
warranties with respect thereto, manuals and other books and records
relating thereto; and
2. Within sixty (60) days after the date hereof, Collateral Agent shall
cause Uniform Commercial Code statements of amendment to be filed to amend all
Uniform Commercial Code financing statements originally filed against Lessee in
connection with the transaction contemplated
by the Agreement, reflecting the change in the description of the collateral
specified in Section 1 hereof. Such Uniform Commercial Code statements of
amendment shall be prepared and filed at Lessee's expense.
3. The definition of "LIBOR" in Exhibit No. 1 to Annex E to Schedule No.
1 is hereby amended and restated in its entirety to provide as follows:
LIBOR = For any Payment Period, the per annum rate for
----- deposits in United States dollars for a period of
30 days which appears on Telerate Page 3750 as of
11:00 a.m., London time, on the second Business Day
preceding the first day of such Payment Period.
4. The definition of "Daily Margin" in Exhibit No. 1 to Annex E to
Schedule No. 1 is hereby amended and restated in its entirety to provide as
follows:
Daily Margin = With respect to Non-Assigned Advance Outstanding,
------------ the "Daily Margin" (determined pursuant to the
pricing grid set forth below) / 360
Guarantor's Senior Unsecured
Credit Rating "Daily Margin"
------------------------------------------------
A-/A3 and higher 75
BBB+/Baa1 90
BBB/Baa2 105
BBB-/Baa3 120
BB+/Ba1 380
BB/Ba2 and below, withdrawn,
suspended or terminated 450
= With respect to Assigned Advance Outstanding, the
"Daily Margin" (determined pursuant to the pricing
grid set forth below) / 360
Guarantor's Senior Unsecured
Credit Rating "Daily Margin"
------------------------------------------------
A-/A3 and higher 77
BBB+/Baa1 92
BBB/Baa2 107
BBB-/Baa3 122
BB+/Ba1 382
BB/Ba2 and below, withdrawn,
suspended or terminated 452
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For purposes of each of the foregoing pricing
grids, the applicable credit rating shall be the
higher of the credit rating specified by Moody's
Investors Service, Inc. and/or Standard & Poor's
Ratings Group, A Division of McGraw-Hill, Inc.,
with respect to Guarantor's senior unsecured credit
at any date of determination; provided, however,
that if there is more than one level rating
difference between the two credit ratings or either
credit rating falls below BBB- or Baa3, then the
lower credit rating shall be applicable.
5. Exhibit No. 1 to Annex E to Schedule No. 1 is hereby amended and
modified by the addition of the following:
Non-Assigned
------------
Advance Outstanding = The amount by which Advance Outstanding exceeds
-------------------
Assigned Advance Outstanding.
6. Exhibit No. 1 to Annex E to Schedule No. 1 is hereby amended and
modified by the addition of the following:
Assigned Advance
----------------
Outstanding = That portion of Advance Outstanding which is funded
-----------
by The Fuji Bank, Limited ("Fuji") or KBC Bank N.V.
("KBC") pursuant to the assignment by Edison to
Fuji and KBC on May 5, 2000 (or the successors or
permitted assigns of Fuji and KBC).
7. The terms and provisions of the Agreement and Schedule No. 1 are
hereby ratified and confirmed, and such terms and provisions shall remain in
full force and effect. Except as expressly set forth herein, the Agreement and
Schedule No. 1 remain unmodified.
8. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO THE CONFLICT OF LAWS
PRINCIPLES OF SUCH STATE), INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE.
9. This Amendment may be executed in any number of separate counterparts,
each of which shall collectively and separately constitute one agreement.
10. Notwithstanding anything contained herein to the contrary, this
Amendment has been
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signed by Wilmington Trust Company, not in its individual capacity, but solely
in its capacity as Owner Trustee of the Trust, and in no event shall Wilmington
Trust Company or any beneficial owner of the Trust have any liability for the
representations, warranties, covenants, agreements or other obligations of the
Trust hereunder, as to all of which recourse shall be had solely to the assets
of the Trust. For all purposes of this Amendment and any other document,
Wilmington Trust Company and the Owner Trustee shall be entitled to the benefits
of the Trust Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement of Amendment No.
1 to Master Lease Agreement and Equipment Schedule No. 1 to be duly executed as
of the date first above set forth.
FIRST AMERICAN TITLE INSURANCE COMPANY
By: /s/ PARKER S. KENNEDY
-------------------------------------------
Name:_________________________________________
Title:________________________________________
FATICO 1999 TRUST
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Owner
Trustee
By: /s/ MONICA M. HENRY
-------------------------------------------
Name: Monica M. Henry
_________________________________________
Title: Financial Services Officer
________________________________________
GENERAL ELECTRIC CAPITAL CORPORATION, as
Collateral Agent
By: /s/ Joan B. Makara
-------------------------------------------
Name: Joan B. Makara
-----------------------------------------
Title: Authorized Signatory
----------------------------------------
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THE UNDERSIGNED JOIN HEREIN FOR THE EXPRESSLY LIMITED PURPOSE OF CONSENTING TO
THE FOREGOING AMENDMENT.
GENERAL ELECTRIC CAPITAL CORPORATION, as Residual
Support Provider
By: /s/ James A. Parke
--------------------------------------------
Name: James A. Parke
------------------------------------------
Title: Executive VP, CFO
-----------------------------------------
GENERAL ELECTRIC CAPITAL CORPORATION, as
Operating Agent and as Borrower Collateral Agent
By: /s/ Joan B. Makara
--------------------------------------------
Name: Joan B. Makara
------------------------------------------
Title: Authorized Signatory
-----------------------------------------
EDISON ASSET SECURITIZATION, L.L.C.
By: /s/ Lisa Capodici
-------------------------------------------
Name: Lisa Capodici
-----------------------------------------
Title: Assistant Secretary
----------------------------------------
KBC BANK N.V.
By: /s/ Robert Snauffer
-------------------------------------------
Name: Robert Snauffer
-----------------------------------------
Title: FIRST VICE PRESIDENT
----------------------------------------
By: /s/ Edward I. Sproull
-------------------------------------------
Name: Edward I. Sproull
-----------------------------------------
Title: FIRST VICE PRESIDENT
----------------------------------------
THE FUJI BANK, LIMITED
By: /s/ MASAHITO FUKUDA
-------------------------------------------
Name: Masahito Fukuda
-----------------------------------------
Title: Senior Vice President
----------------------------------------
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THE UNDERSIGNED JOINS HEREIN FOR THE EXPRESSLY LIMITED PURPOSE OF CONSENTING TO
THE FOREGOING AMENDMENT AND CONFIRMING THAT THAT CERTAIN CORPORATE GUARANTY
DATED AS OF DECEMBER 27, 1999, IN FAVOR OF LESSOR AND THE EDISON PROGRAM PARTIES
(AS SUCH TERM IS DEFINED IN THE AGREEMENT) REMAINS IN FULL FORCE AND EFFECT WITH
RESPECT TO THE AGREEMENT, AS AMENDED.
THE FIRST AMERICAN FINANCIAL CORPORATION
By: /s/ PARKER S. KENNEDY
------------------------------------------
Name:________________________________________
Title:_______________________________________
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