AMENDMENT NO. 2
TO WAREHOUSING CREDIT AGREEMENT
(American Finance Group, Inc.)
THIS AMENDMENT NO. 2 TO WAREHOUSING CREDIT AGREEMENT dated as of
October 3, 1997 (the "Amendment"), is entered into by and among AMERICAN FINANCE
GROUP, a Delaware corporation ("Borrower"), FIRST UNION NATIONAL BANK OF NORTH
CAROLINA ("FUNB"), FLEET BANK, N.A. ("Fleet") and each other financial
institution which may hereafter execute and deliver an instrument of assignment
pursuant to Section 11.10 of the Credit Agreement (as defined below) (any one
financial institution individually, a "Lender," and collectively, "Lenders"),
and FUNB, as agent on behalf of Lenders (not in its individual capacity, but
solely as agent, "Agent"). Capitalized terms used herein without definition
shall have the same meanings herein as given to them in the Credit Agreement.
RECITALS
A. Borrower, Lenders and Agent have entered into that Warehousing
Credit Agreement dated as of May 31, 1996, as amended by that Amendment No. 1 to
Warehousing Credit Agreement dated as of November 5, 1996 (as so amended, the
"Credit Agreement"), by and among Borrower, FUNB (as the sole Lender party
thereto), and Agent pursuant to which Lenders have agreed to extend and make
available to Borrower certain advances of money.
B. Borrower desires that Lenders and Agent amend the Credit Agreement
to extend the Commitment Termination Date from October 3, 1997 to November 3,
1997.
C. Subject to the representations and warranties of Borrower and upon
the terms and conditions set forth in this Amendment, Lenders and Agent are
willing to so amend the Credit Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing Recitals and
intending to be legally bound, the parties hereto agree as follows:
SECTION 1. AMENDMENT. The definition of "Commitment Termination Date"
set forth in Section 1.1 of the Credit Agreement is deleted and replaced with
the following:
"Commitment Termination Date" means November 3, 1997.
SECTION 2. LIMITATIONS ON AMENDMENT2.LIMITATIONS ON AMENDMENT.
(a) The amendment set forth in Section 1, above, is effective
for the purposes set forth herein and shall be limited precisely as written and
shall not be deemed to (i) be a consent to any amendment, waiver or modification
of any other term or condition of any Loan Document or (ii) otherwise prejudice
any right or remedy which Lenders or Agent may now have or may have in the
future under or in connection with any Loan Document.
(b) This Amendment shall be construed in connection with and
as part of the Loan Documents and all terms, conditions, representations,
warranties, covenants and agreements set forth in the Loan Documents, except as
herein waived or amended, are hereby ratified and confirmed and shall remain in
full force and effect.
SECTION 3. REPRESENTATIONS AND WARRANTIES3. REPRESENTATIONS AND
WARRANTIES. In order to induce Lenders and Agent to enter into this Amendment,
Borrower represents and warrants to each Lender and Agent as follows:
(a) Immediately after giving effect to this Amendment (i) the
representations and warranties contained in the Loan Documents (other than those
which expressly speak as of a different date) are true, accurate and complete in
all material respects as of the date hereof and (ii) no Default or Event of
Default, or event which constitutes a Potential Event of Default, has occurred
and is continuing;
(b) Borrower has the corporate power and authority to execute
and deliver this Amendment and to perform its Obligations under the Credit
Agreement, as amended by this Amendment, and each of the other Loan Documents to
which it is a party;
(c) The articles of incorporation, bylaws and other
organizational documents of Borrower delivered to each Lender as a condition
precedent to the effectiveness of the Credit Agreement are true, accurate and
complete and have not been amended, supplemented or restated and are and
continue to be in full force and effect;
(d) The execution and delivery by Borrower of this Amendment
and the performance by Borrower of its Obligations under the Credit Agreement,
as amended by this Amendment, and each of the other Loan Documents to which it
is a party have been duly authorized by all necessary corporate action on the
part of Borrower;
(e) The execution and delivery by Borrower of this Amendment
and the performance by Borrower of its respective Obligations under the Credit
Agreement, as amended by this Amendment, and each of the other Loan Documents to
which it is a party do not and will not contravene (i) any law or regulation
binding on or affecting Borrower, (ii) the articles of incorporation, bylaws, or
other organizational documents of Borrower, (iii) any order, judgment or decree
of any court or other governmental or public body or authority, or subdivision
thereof, binding on Borrower or (iv) any contractual restriction binding on or
affecting Borrower;
(f) The execution and delivery by Borrower of this Amendment
and the performance by Borrower of its Obligations under the Credit Agreement,
as amended by this Amendment, and each of the other Loan Documents to which it
is a party do not require any order, consent, approval, license, authorization
or validation of, or filing, recording or registration with, or exemption by any
governmental or public body or authority, or subdivision thereof, binding on
Borrower, except as already has been obtained or made; and
(g) This Amendment has been duly executed and delivered by
Borrower and is the binding Obligation of Borrower, enforceable against it in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar
laws of general application and equitable principles relating to or affecting
creditors' rights.
SECTION 4. REAFFIRMATION
4. REAFFIRMATION. Borrower hereby reaffirms its Obligations under each
Loan Document to which it is a party.
SECTION 5. EFFECTIVENESS.
5. EFFECTIVENESS. This Amendment shall become effective upon the last
to occur of:
(a) The execution and delivery of this Amendment, whether the
same or different copies, by Borrower, Lenders and Agent.
(b) Satisfaction, to the approval of Lenders and Agent, of all
conditions precedent to the effectiveness of Amendment No. 2 to Second Amended
and Restated Warehousing Credit Agreement dated as of the date hereof by and
among the Growth Funds, Lenders and Agent.
(c) Satisfaction, to the approval of Lenders and Agent, of all
conditions precedent to the effectiveness of Amendment No. 3 to Amended and
Restated Warehousing Credit Agreement dated as of the date hereof by and among
TEC AcquiSub, Lenders and Agent.
SECTION 6. GOVERNING LAW
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH
CAROLINA.
SECTION 7. CLAIMS, COUNTERCLAIMS, DEFENSES, RIGHTS OF SET-OFF. BORROWER
HEREBY REPRESENTS AND WARRANTS TO AGENT AND EACH LENDER THAT IT HAS NO KNOWLEDGE
OF ANY FACTS THAT WOULD SUPPORT A CLAIM, COUNTERCLAIM, DEFENSE OR RIGHT OF
SET-OFF.
SECTION 8. COUNTERPARTS
8. COUNTERPARTS. This Amendment may be signed in any number of
counterparts, and by different parties hereto in separate counterparts, with the
same effect as if the signatures to each such counterpart were upon a single
instrument. All counterparts shall be deemed an original of this Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the date first written above.
BORROWER AMERICAN FINANCE GROUP, INC.
By
J. Xxxxxxx Xxxxxxx
Chief Financial Officer
LENDERS FIRST UNION NATIONAL BANK OF
NORTH CAROLINA
By
Printed Name:
Title:
FLEET BANK, N.A.
By
Printed Name:
Title:
AGENT FIRST UNION NATIONAL BANK OF
NORTH CAROLINA, as Agent
By
Printed Name:
Title:
ACKNOWLEDGEMENT OF AMENDMENT
AND REAFFIRMATION OF GUARANTY
(PLMI/AFG)
SECTION 1. PLM International, Inc. ("PLMI") hereby acknowledges and
confirms that it has reviewed and approved the terms and conditions of this
Amendment No. 2 to Warehousing Credit Agreement ("Amendment").
SECTION 2. PLMI hereby consents to this Amendment and agrees that its
Guaranty of the Obligations of Borrower under the Credit Agreement shall
continue in full force and effect, shall be valid and enforceable and shall not
be impaired or otherwise affected by the execution of this Amendment or any
other document or instrument delivered in connection herewith.
SECTION 3. PLMI represents and warrants that, after giving effect to
this Amendment, all representations and warranties contained in its Guaranty are
true, accurate and complete as if made the date hereof.
GUARANTOR PLM INTERNATIONAL, INC.
By
J. Xxxxxxx Xxxxxxx
Chief Financial Officer
