AMENDMENT NO. 1
TO
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of December 29, 1997
THIS AMENDMENT NO. 1 (the "Amendment") dated as of December 29, 1997
BY AND AMONG
(1) PLM EQUIPMENT GROWTH FUND V, a California limited partnership
(hereinafter called "EGF V");
(2) TRADER VESSEL LIMITED PARTNERSHIP, a California limited partnership
(hereinafter called "Trader");
(3) TRADER VESSEL INC., a California corporation (hereinafter called
"TVI");
(4) CALIFORNIA VESSEL LIMITED PARTNERSHIP, a California limited
partnership (hereinafter called "California");
(5) CALIFORNIA VESSEL INC., a Wyoming corporation (hereinafter called
"CVI")
(6) COLUMBUS VESSEL LIMITED PARTNERSHIP, a California limited
partnership (hereinafter called "Columbus");
(7) COLUMBUS VESSEL INC., a Wyoming corporation (hereinafter called
"COVI");
(8) REDCAR INVESTMENTS LIMITED, a Hong Kong company (hereinafter called
"Redcar", and together with EGF V, Trader, TVI, California, CVI, Columbus and
COVI, as joint and several borrowers, hereinafter called the "Companies");
(9) The LENDERS party to the Loan Agreement (as defined below)
(hereinafter called the "Lenders"); and
(10) CHRISTIANIA BANK OG KREDITKASSE, New York Branch ("CBK"), as agent
and security trustee (hereinafter called "Agent" or "Security Trustee").
WITNESSETH
WHEREAS, the Companies, the Lenders, the Agent and the Security Trustee
are parties to that certain Amended and Restated Loan Agreement dated as of
September 26, 1996 (the "Loan Agreement") pursuant to which the Lenders made
available to the Companies a loan facility of Thirty Eight Million Dollars
($38,000,000);
WHEREAS, the Companies, the Lenders, the Agent and the Security Trustee
have agreed to amend the Loan Agreement on the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the premises and the covenants and
agreements contained herein, the parties hereto agree as follows (with terms
used herein and not otherwise defined having the meaning ascribed thereto in the
Loan Agreement):
ARTICLE I
AMENDMENTS TO LOAN AGREEMENT
Section 1.1 Amendment to Loan Agreement. The Loan Agreement is hereby
amended as follows:
(a) Clause (ii) of Section 4.03(a) of the Loan Agreement is hereby
amended to read in its entirety as follows:
(ii) an amount equal to 60% of the aggregate proceeds from the sale of
any Equipment during such fiscal quarter minus the amount of the next scheduled
principal payment.
(b) Section 7.03(a)(A)(II) of the Loan Agreement is hereby amended to
read in its entirety as follows:
(II) after December 31, 1997, an amount equal to (x) 60% of the
proceeds of such disposition MINUS the amount of the next scheduled principal
repayment or (y) in the event of a Default or an Event of Default would occur as
a consequence of such disposition, 100% of the proceeds, are deposited into the
Cash Collateral Account within 5 days of such disposition; and
Section 1.2. Agreement Acknowledged and Confirmed. Except as expressly
amended hereby, the Loan Agreement, the Note and the Security Documents are
hereby ratified and confirmed.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1. Representations and Warranties. The Companies jointly and
severally represent and warrant to the Lenders as follows:
(a) Due Authorization. Each of the Companies has the power, and has
taken all necessary action to authorize it, to execute and deliver this
Amendment and to perform this Amendment and the Loan Agreement as amended by
this Amendment in accordance with their respective terms. This Amendment has
been duly executed and delivered by all necessary action of each of the
Companies and this Amendment and the Loan Agreement as amended by this Amendment
are the legal, valid and binding obligations of each Company enforceable in
accordance with their respective terms under all Applicable Law, subject, as to
enforcement of remedies, to any applicable bankruptcy, insolvency or other laws
affecting the enforcement of creditors' rights generally.
(b) Compliance with Law, etc. The execution and delivery of this
Amendment and the performance of this Amendment and the Loan Agreement as
amended by this Amendment in accordance with their respective terms do not and
will not (i) violate any provision of any applicable laws, orders, rules or
regulations presently in effect or (ii) conflict with, result in a breach of or
constitute a default under the organizational documents of any Company, or any
indenture, agreement or instrument to which any Company is a party or by which
it or its properties may be bound.
(c) Governmental Regulation. None of the Companies is required to
obtain any governmental authorizations, consents, orders or approvals in
connection with the execution and delivery of this Amendment or the performance
of the transactions contemplated by each of this Amendment and the Loan
Agreement as amended by this Amendment.
(d) Validity. There are no proceedings or investigations pending or, to
the best knowledge of the Companies, threatened against any Company before any
court, regulatory body, administrative agency or other tribunal or governmental
instrumentality (i) asserting the invalidity of the Loan Agreement as amended by
this Amendment, (ii) seeking to prevent the consummation of any of the
transactions contemplated by the Loan Agreement as amended by this Amendment,
(iii) seeking any determination or ruling that, in the reasonable judgment of
the Companies, would materially and adversely affect the performance by any
Company of its obligations under this Amendment and the Loan Agreement as
amended by this Amendment and (iv) seeking any determination or ruling that
would materially and adversely affect the validity or enforceability of the Loan
Agreement as so amended.
(e) Representations; No Defaults. The representations and warranties
contained in Article 6 of the Loan Agreement are true and correct on and as of
the date hereof as if made on and as of such date, and no Default or Event of
Default has occurred and is continuing.
ARTICLE III
MISCELLANEOUS
Section 3.1 Governing Law. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.
Section 3.2. Counterparts. This Amendment may be executed in any number
of counterparts, all of which taken together shall constitute one and the same
instrument.
Section 3.3. Severability. Any provision of this Amendment that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating or affecting the validity or enforceability of such provision in
any other jurisdiction.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their duly authorized officers all as of the date and year first
above written.
PLM EQUIPMENT GROWTH FUND V
by its General Partner, PLM Financial Services, Inc.
By: /s/ J. Xxxxxxx Xxxxxxx
-----------------------------------------------
Its: Vice President and Chief Financial Officer
TRADER VESSEL LIMITED PARTNERSHIP by its General Partner, Trader Vessel, Inc.
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------------
Its: Vice President
TRADER VESSEL INC.
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------------
Its: Vice President
CALIFORNIA VESSEL LIMITED PARTNERSHIP by its General Partner, California Vessel,
Inc.
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------------
Its: Vice President
CALIFORNIA VESSEL INC.
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------------
Its: Vice President
COLUMBUS VESSEL LIMITED PARTNERSHIP by its General Partner, Columbus Vessel Inc.
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------------
Its: Vice President
COLUMBUS VESSEL INC.
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------------
Its: Vice President
REDCAR INVESTMENTS LIMITED
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------------
Its: Vice President
CHRISTIANIA BANK OG KREDITKASSE, as Lender
By: /s/ Xxxxxx Xxxxxx
-------------------------------------------------
Its: First Vice President
/s/ Xxxxxxx X. Xxxx
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Its: Senior Vice President
ING LEASE STRUCTURED FINANCE B.V., as Lender
By: /s/ J. de Vries
-------------------------------------------------
By: /s/ Xxxxx X. Xxxxxx
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Senior Vice President
CHRISTIANIA BANK OG KREDITKASSE, NEW YORK BRANCH
as Agent and Security Trustee
By: /s/ Xxxxxx Xxxxxx
-------------------------------------------------
Its: First Vice President
/s/ Xxxxxxx X. Xxxx
--------------------------------------------------
Its: Senior Vice President
