AMENDMENT NO. 2
TO AMENDED AND RESTATED
WAREHOUSING CREDIT AGREEMENT
(TEC AcquiSub, Inc.)
THIS AMENDMENT NO. 2 TO AMENDED AND RESTATED WAREHOUSING CREDIT
AGREEMENT dated as of November 5, 1996 (the "Amendment"), is entered into by and
among TEC ACQUISUB, INC., a California special purpose 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.
RECITAL
A. Borrower, Lenders and Agent have entered into that certain
Amended and Restated Warehousing Credit Agreement dated as of September 27,
1995, as amended by that certain Amendment No. 1 to Amended and Restated Credit
Agreement dated as of May 31, 1996 (as 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 increase the aggregate amount of the Commitments by $15,000,000, to
extend the Commitment Termination Date, to release each of PLM Financial
Services, Inc., a Delaware corporation ("FSI"), and PLM Transportation Equipment
Corporation ("TEC") from its respective Guaranty and to replace FSI and TEC with
PLM International, Inc., a Delaware corporation ("PLMI"), as a Guarantor, as
more fully set forth herein.
C. FUNB is currently the sole Lender under the Credit
Agreement. On the terms and conditions set forth below, Fleet desires to become
a Lender under the Credit Agreement and to make Loans to Borrower with an
aggregate Commitment of $15,000,000.
D. 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:
The Credit Agreement is hereby amended as follows:
. The definition of "Commitment" set forth in Section 1.1 of the Credit
Agreement is amended by deleting Schedule A to the Credit Agreement entitled
"Commitments" referred to in such definition in its entirety and replacing such
Schedule A with the Schedule A attached to this Amendment, and the respective
Commitment of each Lender in effect from and after the effective date of this
Amendment shall be equal to the amount set forth opposite such Lender's name in
Schedule A.
. 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 October 3, 1997.
. The definition of "Guaranties" set forth in Section 1.1 of the Credit
Agreement is deleted and replaced with the following:
"Guaranty" means that certain Guaranty dated as of November 5,
1996, executed by PLMI in favor of Lenders and Agent.
. The definition of "Requisite Lenders" set forth in Section 1.1 of the
Credit Agreement is deleted and replaced with the following:
"Requisite Lenders" means any combination of Lenders whose
combined Pro Rata Share (and voting interest with respect thereto) of
all amounts outstanding under this Agreement, or, in the event there
are no amounts outstanding, the Commitments, is greater than sixty-six
and two-thirds percent (66_%) of all such amounts outstanding or the
total Commitments, as the case may be; provided, however, that in the
event there are only two (2) Lenders, Requisite Lenders means both
Lenders.
. The portion of Section 2.1.1 of the Credit Agreement preceding
subsection (a) is deleted and replaced with the following:
2.1.1 Revolving Facility. Subject to the terms and
conditions of this Agreement and in reliance upon the representations
and warranties of Borrower set forth herein, Lenders hereby agree to
make Advances (as defined below) of immediately available funds to
Borrower, on a revolving basis, from the Closing Date until the
Business Day immediately preceding the Commitment Termination Date, in
the aggregate principal amount outstanding at any time not to exceed
the lesser of (a) the total Commitments for the Facility less the
aggregate principal amount then outstanding under the Growth Fund
Agreement and under the AFG Agreement or (b) the Borrowing Base or (c)
$35,000,000 (such lesser amount being the "Maximum Availability"), as
more fully set forth in this Section 2.1.1.
6 Section 2.1.1(a)(i) Facility Commitments. Section
2.1.1(a)(i) of the Credit Agreement is deleted and replaced with the following:
(i) On the Funding Date requested by
Borrower, after Borrower shall have satisfied all applicable conditions
precedent set forth in Section 3, each Lender shall advance immediately
available funds to Agent (each such advance being an "Advance")
evidencing such Lender's Pro Rata Share of a loan ("Loan"). Agent shall
immediately advance such immediately available funds to Borrower at the
Designated Deposit Account (or such other deposit account at FUNB or
such other financial institution as to which Borrower and Agent shall
agree at least three (3) Business Days prior to the requested Funding
Date) on the Funding Date with respect to such Loan. Borrower shall pay
interest accrued on the Loan at the rates and in the manner set forth
in Section 2.1.1(b). Subject to the terms and conditions of this
Agreement, the unpaid principal amount of each Loan and all unpaid
interest accrued thereon, together with all other fees, expenses, costs
and other sums chargeable to Borrower incurred in connection therewith
shall be due and payable no later than the Commitment Termination Date.
Each Loan advanced hereunder by each Lender shall be evidenced by
Borrower's revolving promissory note, substantially in the form of
Exhibit A (each, a "Note").
. Subsection 2.1.1(a)(iii) of the Credit Agreement is deleted and
replaced with the following:
(iii) If at any time and for any reason the
aggregate principal amount of the Loan(s) then outstanding shall exceed
the Maximum Availability (the amount of such excess, if any, being an
"Overadvance"), Borrower shall immediately repay the full amount of
such Overadvance, together with all interest accrued thereon; provided,
however, that if such Overadvance occurs solely as a result of a
decrease in the amount of the Borrowing Base due solely to a decrease
in the computation of the Borrowing Base under clause (b) of the
definition of Borrowing Base, as set forth on a Borrowing Base
Certificate delivered to Agent pursuant to Section 5.1.3, then, to the
extent of such decrease, Borrower shall not be required under this
Section 2.1.1(a)(iii) to prepay such Overadvance but Lenders shall have
no obligation to make or fund any Loans or extend any credit hereunder
so long as such Overadvance condition shall remain in effect.
. Section 2.1.3 of the Credit Agreement is deleted and replaced with
the following:
2.1.3 Utilization of the Loans. The Loans made under
the Facility may be used solely for the purpose of acquiring the
specific items of Eligible Inventory approved by Agent, in its sole
discretion, and against which Lenders have made Advances; provided,
however, in no event shall the proceeds of any Loan be used to finance
more than eighty percent (80.0%) of the Invoice Price of any item of
Eligible Inventory to be purchased with the proceeds of such Loan. The
parties hereto understand and contemplate that the Loans are being
requested to finance the acquisition of items of Eligible Inventory and
that only upon the funding of such Loans and the acquisition of record
title by Borrower or a Marine Subsidiary or by an Owner Trustee for the
beneficial interest of Borrower or a Marine Subsidiary in a single or
back-to-back transaction will the ownership requirements of Eligible
Inventory be satisfied.
. Section 4.1 of the Credit Agreement is deleted and replaced with the
following:
4.1 Existence and Power. Borrower is a corporation,
duly organized, validly existing and in good standing under the laws of
the State of California and is duly qualified and licensed as a foreign
corporation and authorized to do business in each jurisdiction within
the United States where its ownership of Property and assets or conduct
of business requires such qualification. Borrower has the corporate
power and authority, rights and franchises to own its Property and
assets and to carry on its business as now conducted. Borrower has the
corporate power and authority to execute, deliver and perform the terms
of the Loan Documents (to the extent it is a party thereto) and all
other instruments and documents contemplated hereby or thereby.
10 Note. The form of Note set forth as Exhibit A of the Credit
Agreement is deleted and replaced with Exhibit A attached hereto.
. The Borrowing Base Certificate set forth as Exhibit B of the Credit
Agreement is deleted and replaced with Exhibit B attached hereto.
Lenders hereby release each of FSI and TEC from all of its respective
obligations under those certain Guaranties dated as of June 30, 1993, in favor
of Lenders and Agent.
. 4. LIMITATIONS ON AMENDMENTS
(a) The amendments set forth in Section 1, above, are
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.
. 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.
Borrower hereby reaffirms its Obligations under each Loan Document to which it
is a party.
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) Receipt by Agent, in form and substance
satisfactory to Lenders, of a Guaranty (the "PLMI Guaranty") dated as of the
date hereof executed by PLMI in favor of Lenders and Agent.
(c) Receipt by Agent, in form and substance
satisfactory to Lenders, of a certified copy of the records of all actions taken
by Borrower and PLMI, including all corporate resolutions of Borrower and PLMI
authorizing or relating to the execution, delivery and performance of this
Amendment and the PLMI Guaranty, as the case may be.
(d) Receipt by Agent, in form and substance
satisfactory to Lenders, of Notes executed by Borrower in favor of each Lender
in the stated principal amount equal to each Lender's Pro Rata Share of the
Commitments, which Notes will replace and supersede the existing Note dated May
31, 1996, issued by Borrower to Agent.
(e) Receipt by Agent, in form and substance
satisfactory to Lenders, of a supplemental fee letter (the "Supplemental Fee
Letter") and a supplemental agent's side letter (the "Supplemental Agent's Side
Letter"), each duly executed by Borrower, each of the Growth Funds and AFG, and
the Supplemental Arrangement Fee and the Supplemental Agent's Fee described in
the Supplemental Fee Letter and the Supplemental Agent's Side Letter,
respectively.
(f) Receipt by Agent of an originally executed legal
opinion of Xxxxxxx Xxxxx, general counsel of Borrower and Guarantor, on behalf
of Borrower and Guarantor, in form and substance satisfactory to Lenders, dated
as of the effective date of this Amendment and addressed to Lenders, together
with copies of any officer's certificate or legal opinion of other counsel or
law firm specifically identified and expressly relied upon by such counsel.
(g) Satisfaction, to the approval of Lenders and
Agent, of all conditions precedent to the effectiveness of Amendment No. 1 to
Second Amended and Restated Warehousing Credit Agreement dated as of the date
hereof by and among the Growth Funds, Lenders and Agent.
(h) Satisfaction, to the approval of Lenders and
Agent, of all conditions precedent to the effectiveness of Amendment No. 1 to
Warehousing Credit Agreement dated as of the date hereof by and among AFG,
Lenders and Agent.
THIS AMENDMENT SHALL BE GOVERNED BY AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH CAROLINA.
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.
Upon the execution and delivery of this Amendment, Fleet shall be a Lender and
a party to the Credit Agreement, and shall be entitled to the rights and
benefits of the Loan Documents and, to the extent of the percentage equivalent
of Fleet's Commitment under the Facility divided by the aggregate Commitment of
all Lenders under the Facility, have the rights and obligations of a Lender
thereunder.
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 TEC ACQUISUB, INC.
By:
J. Xxxxxxx Xxxxxxx
Chief Financial Officer
LENDERS FIRST UNION NATIONAL BANK OF NORTH CAROLINA
By:
Xxxx X. Xxxxxxx
Vice President
FLEET BANK, N.A.
By:
Printed Name:
Title:
AGENT FIRST UNION NATIONAL BANK OF NORTH CAROLINA,
as Agent
By:
Xxxx X. Xxxxxxx
Vice President
SCHEDULE A
COMMITMENTS
LENDER COMMITMENT PRO RATA SHARE
First Union National Bank $35,000,000 35/50 x 100%
of North Carolina
Fleet Bank, N.A. $15,000,000 15/50 x 100%
EXHIBIT A
REVOLVING PROMISSORY NOTE
[LENDER]
$____________________ San Francisco, California
Date: November 5, 1996
TEC ACQUISUB, Inc., a California corporation (the "Borrower"), FOR
VALUE RECEIVED, hereby unconditionally promises to pay to the order of [LENDER]
("[__________________]"), in lawful money of the United States of America, the
aggregate principal amount of [__________________]'s Pro Rata Share of all Loans
outstanding under the Credit Agreement referred to below, payable in the
amounts, on the dates and in the manner set forth below.
This revolving promissory note (the "Note") is one of the Notes
referred to in that certain Amended and Restated Warehousing Credit Agreement
dated as of September 27, 1995, as amended by that certain Amendment No. 1 to
Amended and Restated Warehousing Credit Agreement dated as of May 31, 1996, and
that certain Amendment No. 2 to Amended and Restated Warehousing Credit
Agreement dated as of even date herewith (as the same may from time to time
hereafter be further amended, modified, supplemented, renewed, extended or
restated, the "Credit Agreement"), by and among the Borrower, First Union
National Bank of North Carolina, solely in its capacity as agent (solely in such
capacity, the "Agent") for [__________________], and such other financial
institutions as shall from time to time become "Lenders" pursuant to Section
11.10 of the Credit Agreement (such entities, together with their respective
successors and assigns being collectively referred to herein as the "Lenders"),
and the Lenders, and amends, restates and replaces that certain Revolving
Promissory Note dated May 31, 1996, executed and delivered by the Borrower in
favor and to the Agent, on behalf of the Lenders. All capitalized terms used but
not defined herein shall have the same meaning as given to them in the Credit
Agreement.
12. Principal Payments. Subject to the terms and conditions of
the Credit Agreement, including, without limitation, terms relating to mandatory
prepayments of principal (Section 2.2.3), the entire principal amount
outstanding under each Loan shall be due and payable on the Maturity Date with
respect to such Loan, with any and all unpaid and not previously due and payable
principal amounts under the Loans being due and payable on the Commitment
Termination Date.
13. Interest Rate. The Borrower further promises to pay
interest on the sum of the daily unpaid principal balance of all Loans
outstanding on each day in lawful money of the United States of America, from
the Closing Date until all such principal amounts shall have been repaid in
full, which interest shall be payable at the rates per annum and on the dates
determined pursuant to the Credit Agreement.
14. Place of Payment. All amounts payable hereunder shall be
payable to the Agent, on behalf of [__________________], at the office of First
Union National Bank of North Carolina, One First Union Center, 000 Xxxxx Xxxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Xxxxxx Xxxxxx, or such other
place of payment as may be specified by the Agent in writing.
15. Application of Payments; Acceleration. Payments on this
Note shall be applied in the manner set forth in the Credit Agreement. The
Credit Agreement contains provisions for acceleration of the maturity of the
Loans upon the occurrence of certain stated events and also provides for
mandatory and optional prepayments of principal prior to the stated maturity on
the terms and conditions therein specified.
Each Advance made by [__________________] to the Borrower constituting
[__________________]'s Pro Rata Share of a Loan pursuant to the Credit Agreement
shall be recorded by [__________________] on its books and records. The failure
of [__________________] to record any Advance or any repayment or prepayment
made on account of the principal balance thereof shall not limit or otherwise
affect the obligations of the Borrower under this Note and under the Credit
Agreement to pay the principal, interest and other amounts due and payable
hereunder and thereunder.
16. Default. The Borrower's failure to pay timely any of the
principal amount due under this Note or any accrued interest or other amounts
due under this Note on or within five (5) calendar days after the date the same
becomes due and payable shall constitute a default under this Note. Upon the
occurrence of a default hereunder or an Event of Default under the Credit
Agreement, all unpaid principal, accrued interest and other amounts owing
hereunder shall, at the option of Required Lenders, be immediately collectible
by the Lenders and the Agent pursuant to the Credit Agreement and applicable
law.
17. Waivers. The Borrower waives presentment and demand for
payment, notice of dishonor, protest and notice of protest of this Note, and
shall pay all costs of collection when incurred by or on behalf of the Lenders,
including, without limitation, reasonable attorneys' fees, costs and other
expenses as provided in the Credit Agreement.
18. Governing Law. This Note shall be governed by, and
construed and enforced in accordance with, the laws of the State of North
Carolina, excluding conflict of laws principles that would cause the application
of laws of any other jurisdiction.
19. Successors and Assigns. The provisions of this Note shall
inure to the benefit of and be binding on any successor to the Borrower and
shall extend to any holder hereof.
BORROWER TEC ACQUISUB, INC.,
a California corporation
By
J. Xxxxxxx Xxxxxxx
Chief Financial Officer
EXHIBIT B
BORROWING BASE CERTIFICATE
(TEC AcquiSub, Inc.)
____________, 199_
Page 0
Xxxxx Xxxxx Xxxxxxxx Xxxx xx Xxxxx Xxxxxxxx, as Agent
One First Union Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx
Re: Amended and Restated Warehousing Credit Agreement dated as of
September 27, 1995, as amended by that certain Amendment No. 1 to
Amended and Restated Warehousing Credit Agreement dated as of May 31,
1996, and that certain Amendment No. 2 to Amended and Restated
Warehousing Credit Agreement dated as of November 5, 1996 (as the same
may from time to time be amended, modified, supplemented or restated,
the "Credit Agreement"), by and among TEC AcquiSub, Inc., a California
corporation ("Borrower"), First Union National Bank of North Carolina
("FUNB"), Fleet Bank, N.A. and each other lender whose name is set
forth on the signature pages to the Credit Agreement or which may
hereafter execute and deliver an instrument of assignment pursuant to
Section 11.10 of the Credit Agreement (any one individually, a
"Lender," and collectively, "Lenders") and FUNB as Agent, on behalf of
Lenders.
Ladies and Gentlemen:
Reference is made to the Credit Agreement. The capitalized terms used in this
Borrowing Base Certificate and not defined herein have the same meaning as given
to them in the Credit Agreement.
Pursuant to Section 5.1(c) of the Credit Agreement, Borrower hereby certifies as
follows:
20. The information furnished in Schedule 1 attached hereto
was true, accurate and complete as of the last day of the calendar month
immediately preceding the date of this Borrowing Base Certificate; provided,
however, that if such certificate is being delivered with respect to a requested
borrowing of a Loan under the Credit Agreement, then if expressly provided, so
stated in Schedule 1, such information shall be true, accurate and complete
through the requested Funding Date. The calculation of each item is subject to
the more detailed description thereof set forth in the Credit Agreement.
21. Except as disclosed in Schedule 2 attached hereto, the
representations and warranties set forth in Section 4 of the Credit Agreement
are true, accurate and complete as of the date hereof; provided, however, that
those representations and warranties expressly referring to another date shall
be deemed to be made as of such date;
22. Borrower does not have knowledge of the existence as of
the date hereof, of any Event of Default or Potential Event of Default, except
for such conditions or events listed on Schedule 2 attached hereto and
incorporated herein by this reference, specifying the nature and period of
existence thereof and what action Borrower has taken, is taking and proposes to
take with respect thereto; and
[Include the following if Borrowing Base Certificate is being
delivered in connection with a requested Loan.]
23. Borrower has [choose one] [available cash in an amount
sufficient to fund at least twenty percent (20.0%) of the Invoice Price of the
equipment to be financed with the requested Loan.] [has received a capital
contribution from PLM Transportation Equipment Corporation ("TEC"), the record
and beneficial owner one hundred percent (100.0%) of Borrower's Stock, in an
amount sufficient to fund at least twenty percent (20.0%) of the Invoice Price
of the equipment to be financed with the requested Loan. Attached hereto as
Attachment 1 is an originally executed certificate of the Chief Financial
Officer of TEC to the effect that the making of such capital contribution has
not caused TEC to cease to be Solvent.]
IN WITNESS WHEREOF, this Borrowing Base Certificate is executed by the
undersigned this ____ day of , 199 .
TEC ACQUISUB, INC.,
a California corporation
By:
Printed Name:
Title:
Received by:
FIRST UNION NATIONAL BANK OF NORTH CAROLINA,
in its capacity as Agent under the Credit Agreement
By:
Printed Name:
Title:
Date:
SCHEDULE 1 TO BORROWING BASE CERTIFICATE
DATED , 199
24. The aggregate Invoice Price of all Eligible Inventory then
owned of $__________ record by Borrower or any Marine Subsidiary
or of record by an Owner Trustee for the beneficial interest of
Borrower or any Marine Subsidiary, computed (a) with respect to
any requested Loan, as of the requested Funding Date (but
excluding the item(s) of equipment being financed with such
Loan), and (b) with respect to the delivery of any monthly
Borrowing Base Certificate to be furnished pursuant to Section
5.1(c), as of the last day of the calendar month for which such
Borrowing Base Certificate is furnished (provided that if any
portion of Borrower's, such Marine Subsidiary's or such Owner
Trustee's ownership interest in any such item of Eligible
Inventory is sold or assigned to one or more of the Equipment
Growth Funds such that Borrower, such Marine Subsidiary or such
Owner Trustee continues to retain less than the entire record or
beneficial ownership interest therein, then for the purpose of
computing the Borrowing Base under this Line 1, the Invoice Price
of such item of Eligible Inventory shall be deemed to be equal to
Borrower's or such Marine Subsidiary's ratable portion of the
Invoice Price of such item of Eligible Inventory; provided
further, that with respect to any Borrowing Base Certificate as
to be furnished with the requested funding of a Loan, this Line 1
shall include items of Eligible Inventory to be acquired with the
proceeds of such Loan)
25. The aggregate invoice price of Eligible Inventory included in
Line 1 $__________ which is subject to a Lease under which any
applicable lease or rental payment is more than ninety (90) days
past due
26. Line 1 minus Line 2 $__________
4. Eighty percent (80.0%) of Line 3 $__________
27. Sum of amount of unrestricted cash balances available for
purchase of transportation equipment by the Equipment Growth
Funds
EGF I $__________
EGF II $__________
EGF III $__________
EGF IV $__________
EGF V $__________
EGF VI $__________
EGF VII $__________
Income Fund I $__________
Total $__________
28. Lesser of Line 4 and Line 5 $__________
29. Lesser of (a) the total Commitments for the Facility
($50,000,000) $__________ minus the aggregate principal amount
outstanding under the Growth Fund Agreement and the AFG Agreement
and (b) Line 6
30. Current principal amount outstanding under the Credit
Agreement $__________
31. Amount available to be borrowed: Line 7 minus Line 8
$__________
32. Lesser of Line 9 and $35,000,000 $__________
33. Amount requested to be advanced (must not be greater than
Line 10) $__________
Footnote
Invoices or purchase agreements evidencing the cost of Eligible Inventory
purchased with this advance are attached.
SCHEDULE 2 TO
BORROWING BASE CERTIFICATE
DATED ________________, 199_
LIST OF EXCEPTIONS
Condition(s) or event(s) constituting an Event of Default or Potential Event of
Default:
Period of existence:
Remedial action with respect to such condition or event:
ATTACHMENT 1 TO
BORROWING BASE CERTIFICATE
DATED ________________, 199_
