AMENDMENT NO. 1 TO
AMENDED AND RESTATED WAREHOUSING CREDIT AGREEMENT
(TEC AcquiSub, Inc.)
THIS AMENDMENT NO. 1 TO AMENDED AND RESTATED WAREHOUSING CREDIT
AGREEMENT dated as of May 31, 1996 (the "Amendment"), is entered into by and
among TEC ACQUISUB, INC., a California special purpose corporation ("Borrower"),
and FIRST UNION NATIONAL BANK OF NORTH CAROLINA ("FUNB") 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
Agreement, the NotA. Borrower, Lenders and Agent have entered into that certain
Amended and Restated Credit Agreement dated as of September 27, 1995 (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 as more fully set forth herein.
C. Subject to the representations and warranties of Borrower
and upon the terms and conditions set forth in this Amendment, the 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:
2. BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents and
warrants that, immediately before and immediately after giving effect to this
Amendment, no event shall have occurred and be continuing which constitutes an
Event of Default or a Potential Event of Default.
3. AMENDMENTS. The Credit Agreement is hereby amended as follows:
Section 1.1 of the Credit Agreement is amended to include the
following additional defined terms:
"AFG" means American Finance Group, Inc., a Delaware corporation and a
wholly-owned Subsidiary of PLMI.
"AFG Agreement" means the Warehousing Credit Agreement dated as of May
31, 1996, by and among AFG, Lenders and Agent, as the same from time to time may
be amended, modified, supplemented, renewed, extended or restated.
"Assignment and Acceptance" has the meaning set forth in Section
11.10.2.
. The definition of the term "Applicable Margin" set forth in Section
1.1 of the Credit Agreement is deleted and replaced with the following:
"Applicable Margin" means:
(a) with respect to Prime Rate Loans, zero percent (0.00%);
and
(b) with respect to LIBOR Loans, two percent (2.00%).
. 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 the term "Commitment Termination Date" set forth in
Section 1.1 of the Credit Agreement is deleted and replaced with the following:
"Commitment Termination Date" means May 23, 1997.
. The definition of the term "Growth Funds" set forth in Section 1.1 of
the Credit Agreement is deleted and replaced with the following:
"Growth Funds" means any and all of EGF III, EGF IV, EGF V, EGF VI, EGF
VII and Income Fund I.
. The definition of the term "Growth Fund Agreement" set forth in
Section 1.1 of the Credit Agreement is deleted and replaced with the following:
"Growth Fund Agreement" means the Second Amended and Restated
Warehousing Credit Agreement dated as of May 31, 1996, by and among each of the
Growth Funds, and Lenders, and Agent, as the same may from time to time be
amended, modified, supplemented, renewed, extended or restated.
. 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
the AFG Agreement or (b) the Borrowing Base (such lesser amount being the
"Maximum Availability"), as more fully set forth in this Section 2.1.1.
. Subparagraph (ii) of Section 2.1.1(a) of the Credit Agreement is
deleted and replaced with the following:
(ii) The obligation of Lenders to make any Loan
from time to time hereunder shall be limited to the then applicable Maximum
Availability. For the purpose of determining the amount of the Borrowing Base
available at any one time, the amount available shall be the total amount of the
Borrowing Base as set forth in the Borrowing Base Certificate delivered to Agent
pursuant to Section 3.2.1 with respect to each requested Loan. Nothing contained
in this Agreement shall under any circumstance be deemed to require any Lender
to make any Advance under the Facility which, in the aggregate principal amount,
either (1) taking into account such Lender's portion of the principal amounts
outstanding under this Agreement and the making of such Advance exceeds the
lesser of (A) such Lender's Commitment for the Facility and (B) such Lender's
Pro Rata Share of the Borrowing Base, or (2) taking into account such Lender's
portion of the principal amounts outstanding under this Agreement, under the
Growth Fund Agreement, under the AFG Agreement and the making of such Advance
exceeds such Lender's Commitment for the Facility.
. Subparagraph (d) of Section 2.2.3 of the Credit Agreement is deleted
and replaced with the following:
In the event that the Growth Fund Agreement or the AFG
Agreement shall be terminated for any reason as to any one or more of the Growth
Funds or as to AFG, as the case may be, then Borrower shall immediately prepay
any and all amounts outstanding under this Agreement and the Lenders'
Commitments shall, without notice, immediately and automatically terminate.
. Section 8.1 of the Credit Agreement is amended to include the
following subsection 8.1.16:
8.1.16 AFG Agreement. Without limiting the generality of, and
in addition to the events described in Section 8.1.1, the occurrence of any
"Event of Default" as defined under the AFG Agreement or any other loan or
security document related to the AFG Agreement.
. Sections 11.10.1 and 11.10.2 of the Credit Agreement are deleted and
replaced with the following:
(i) Agreement, the Not( have the right in accordance with this Section 11.10 to
sell and assign to any Eligible Assignee all or any portion of its interest
(provided that any such partial assignment shall not be for a principal amount
of less than Five Million Dollars ($5,000,000)) under this Agreement, the Notes
and the other Loan Documents, together with a ratable interest in the AFG
Agreement and the Growth Funds Agreement and the related Notes and other Loan
Documents (as separately described and defined in those agreements), subject to
the prior written consent of the affected Borrower, which consent shall not be
unreasonably withheld, and (ii) to grant any participation or other interest
herein or therein, except that each potential participant to which a Lender
intends to grant any rights under Sections 2.9, 2.10, 5.1 or 10.2 shall be
subject to the prior written consent of the affected Borrower, which consent
shall not be unreasonably withheld; provided, however, that no such sale,
assignment or participation grant shall result in requiring registration under
the Securities Act of 1933, as amended, or qualification under any state
securities law.
11.10.2 Subject to the limitations of this Section 11.10.2,
each Lender may sell and assign, from time to time, all or any portion of its
Pro Rata Share of the Commitments to any of its Affiliates or, with the approval
of the affected Borrower and FSI (which approval shall not be unreasonably
withheld), to any other financial institution acceptable to Agent, subject to
the assumption by such assignee of the share of the Commitments so assigned. The
assignment to such Affiliate or other financial institution shall be evidenced
by an Assignment and Assumption in the form of Exhibit I ("Assignment and
Acceptance") executed by the assignor Lender (hereinafter from time to time
referred to as the "Assignor Lender") and such Affiliate or other financial
institution (which, upon such assignment shall become a Lender hereunder
(hereinafter from time to time referred to as the "Assignee Lender")). The
Assignment and Assumption need not include any of the economic or financial
terms upon which such Assignee Lender receives the assignment from the Assignor
Lender, and such terms need not be disclosed to or approved by such Borrower or
FSI; provided only that such terms do not diminish the obligations undertaken by
such Assignee Lender in the Assignment and Assumption or increase the
obligations of Borrowers or FSI under this Agreement. Upon execution of such
Assignment and Assumption, (i) the definition of "Commitments" in Section 1
hereof and the Pro Rata Shares set forth therein shall be deemed to be amended
to reflect each Lender's share of the Commitments, giving effect to the
assignment and (ii) the Assignee Lender shall, from the effective date of the
instrument of assignment and assumption, be subject to all of the obligations,
and entitled to all of the rights, of a Lender hereunder, except as may be
expressly provided to the contrary in the Assignment and Assumption. To the
extent the obligations hereunder of the Assignor Lender are assumed by the
Assignee Lender, the Assignor Lender shall be relieved of such obligations. Upon
the assignment of any interest by any Assignor Lender pursuant to this Section
11.10.2, such Assignor Lender agrees to supplement Schedule 1.1 to show the date
of such assignment, the Assignor Lender, the Assignee Lender, the Assignee
Lender's address for notice purposes and the amount of the Commitments so
assigned.
. The Borrowing Base Certificate set forth as Exhibit B of the Credit
Agreement is deleted and replaced with Exhibit B attached hereto.
. Paragraph 3 of the Lockbox Agreement set forth in Exhibit F of the
Credit Agreement is amended to delete the name of "Xxxxx X. Xxxxxx" and replace
it with "Xxxxxxx Xxxxx" as an authorized Person.
. 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) 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 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 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 the 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 the 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, FUNB (in its capacity as the
sole Lender) and Agent.
(b) The execution and delivery of the Acknowledgement
of Amendment and Reaffirmation of Guaranty attached to this Amendment, whether
the same or different copies, by each of FSI and TEC.
(c) Receipt by Agent, in form and substance
satisfactory to FUNB (in its capacity as the sole Lender), of a certified copy
of the records of all actions taken by Borrower, TEC and FSI, including all
corporate resolutions of Borrower, TEC and FSI authorizing or relating to the
execution, delivery and performance of this Amendment.
(d) Receipt by Agent, in form and substance
satisfactory to FUNB (in its capacity as the sole Lender), of a new Note
executed by Borrower in favor of Agent on behalf of Lenders in the stated
principal amount equal to the aggregate Commitments, which Note will replace and
supersede the existing Note dated September 27, 1995 issued by Borrower to
Agent.
(e) Receipt by Agent, in form and substance
satisfactory to FUNB (in its capacity as the sole Lender), of a side letter
agreement (the "Fee Letter") dated as of the date hereof by and among Borrower,
each Growth Fund and AFG relating to the terms of an arrangement fee.
(f) Receipt by Agent, in form and substance
satisfactory to Agent, of a side letter agreement (the "Agent's Side Letter")
dated as of the date hereof by and among Borrower, each Growth Fund and AFG
relating to the terms of an Agent's fee.
(g) Receipt by Agent of the arrangement fee described
in the Fee Letter and the Agent's fee described in the Agent's Side Letter.
(h) Receipt by Agent, in form and substance
satisfactory to FUNB (in its capacity as the sole Lender), of a favorable
written legal opinion of Xxxxxxx Xxxxx, general counsel of FSI and TEC, on
behalf of itself and as the parent company to Borrower, together with copies of
any officer's certificate or legal opinion of another counsel or law firm
specifically identified and expressly relied upon by such counsel in its
opinion.
(i) Satisfaction, to the approval of FUNB (in its
capacity as the sole Lender) and Agent, of all conditions precedent to the
effectiveness of the Growth Fund Agreement.
(j) Satisfaction, to the approval of FUNB (in its
capacity as the sole Lender) and Agent, of all conditions precedent to the
effectiveness of the AFG Agreement.
. 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.
. 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: /s/ J. Xxxxxxx Xxxxxxx
---------------------------
J. Xxxxxxx Xxxxxxx
Chief Financial Officer
LENDERS FIRST UNION NATIONAL BANK OF NORTH CAROLINA
By: /s/ Xxxx X. Xxxxxxx
--------------------------
Xxxx X. Xxxxxxx
Vice President
AGENT FIRST UNION NATIONAL BANK OF NORTH CAROLINA,
as Agent
By: /s/ Xxxx X. Xxxxxxx
-------------------------
Xxxx X. Xxxxxxx
Vice President
ACKNOWLEDGEMENT OF AMENDMENT
AND REAFFIRMATION OF GUARANTY
11. PLM Financial Services, Inc. ("FSI") and PLM
Transportation Equipment Corporation ("TEC") each hereby acknowledge and confirm
that it has reviewed and approved the terms and conditions of this Amendment.
12. FSI and TEC each hereby consent to this Amendment
and agree that its respective joint and several 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.
13. FSI and TEC each severally represent and warrant
that, after giving effect to this Amendment, all representations and warranties
contained in its respective Guaranty are true, accurate and complete as if made
the date hereof.
GUARANTOR PLM FINANCIAL SERVICES, INC.
By: /s/ J. Xxxxxxx Xxxxxxx
-------------------------
J. Xxxxxxx Xxxxxxx
Chief Financial Officer
GUARANTOR PLM TRANSPORTATION EQUIPMENT CORPORATION
By: /s/ J. Xxxxxxx Xxxxxxx
-------------------------
J. Xxxxxxx Xxxxxxx
Chief Financial Officer
SCHEDULE A
COMMITMENTS
Pro
Rata
Lender Commitment Share
First Union National Bank $35,000,000 35/35 x 100%
of North Carolina
