AMENDMENT NO. 1
TO THIRD AMENDED AND RESTATED
WAREHOUSING CREDIT AGREEMENT
(TEC AcquiSub, Inc.)
THIS AMENDMENT NO. 1 TO THIRD AMENDED AND RESTATED WAREHOUSING CREDIT AGREEMENT
dated as of December 10, 1999 (the "Amendment"), is entered into by and among
TEC ACQUISUB, INC., a California special purpose corporation ("Borrower"), the
banks, financial institutions and institutional lenders from time to time party
hereto and defined as Lenders herein and FIRST UNION NATIONAL BANK 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 entered into that Third Amended and
Restated Warehousing Credit Agreement dated as of December 15, 1998 (the "Credit
Agreement"), pursuant to which Lenders have agreed to extend and make available
to Borrower certain advances of money.
B. Borrower desires to amend the Credit Agreement to extend the
Commitment Termination Date to June 30, 2000.
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 TO CREDIT AGREEMENT.
1.1 BORROWING BASE. The definition of "Borrowing
Base" set forth in Section 1.1 of the Credit Agreement is deleted in its
entirety and is replaced with the following:
"Borrowing Base" means, as at and for any date of
determination, an amount not to exceed an amount equal to eighty
percent (80.0%) of 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 (provided, however, that there shall be
excluded from this clause (a) the aggregate Invoice Price of all items
of Eligible Inventory subject to a Lease under which any applicable
lease or rental payment is more than ninety (90) days past due),
computed (1) with respect to any requested Loan, as of the requested
Funding Date (and shall include the item(s) of Eligible Inventory to be
acquired with the proceeds of the requested Loan), and (2) with respect
to the delivery of any monthly Borrowing Base Certificate to be
furnished pursuant to Section 5.1.3, 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 clause (a), 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), computed (x) with respect to any requested Loan,
as of the requested Funding Date (and shall include the aggregate
Invoice Price of all item(s) of Eligible Inventory to be acquired with
the proceeds of the requested Loan), and (y) with respect to the
delivery of any monthly Borrowing Base Certificate to be furnished
pursuant to Section 5.1.3, as of the last day of the calendar month for
which such Borrowing Base Certificate is furnished (provided, that for
the purpose of computing the Borrowing Base, in the event that
Borrower, any Marine Subsidiary or any Owner Trustee shall own less
than one hundred percent (100.0%) of the record or beneficial interests
in any item of Equipment, with one or more of the other Equipment
Growth Funds owning of record or beneficially the remaining interests,
there shall be included only Borrower's, such Marine Subsidiary's or
such Owner Trustee's, as the case may be, ratable interest in such item
of Equipment).
1.2 COMMITMENT TERMINATION DATE. The definition of
"Commitment Termination Date" set forth in Section 1.1 of the Credit Agreement
is deleted in its entirety and is replaced with the following:
"COMMITMENT TERMINATION DATE" means June 30, 2000.
1.3 REVOLVING FACILITY. Section 2.1.1 of the Credit
Agreement is amended by inserting at the end of the first sentence of such
section after the words "as more fully set forth in this Section 2.1.1" the
words "and Section 2.1.3."
1.4 UTILIZATION OF LOANS. Section 2.1.3 of the
Credit Agreement is amended by inserting at the end of the first sentence of
such section after the "to be purchased with the proceeds of such Loan" the
following provisons:
and provided further that in no event shall the proceeds of any Loan be
used to acquire Trailers if and to the extent, together with all others
Loans then outstanding, the total amounts of the total Loan proceeds
used to acquire Trailers exceeds $12,000,000.
SECTION 2. PERFECTION OF LIENS IN COLLATERAL COMPRISING TRAILERS.
Pursuant to Section 5(a) of the Security Agreement and Section 5.8 of the Credit
Agreement, Agent, on behalf of Lenders and itself, hereby notifies Borrower that
commencing with the effective date of this Amendment it will require Borrower to
take all necessary and desirable actions, including such actions as Agent may
reasonably further direct, to perfect Agent's Lien in all Collateral comprising
Trailers hereafter purchased or acquired by Borrower or any Owner Trustee, which
Lien is to be perfected immediately upon or concurrent with Borrower or such
Owner Trustee obtaining rights in such Collateral, and shall include such
actions as are required under any vehicle registration statutes applicable to
such Collateral. Borrower acknowledges and agrees that Borrower's or any such
Owner Trustee's failure to perform, keep or observe its obligations under this
Section 2 shall be an Event of Default under Section 8.1.5 of the Credit
Agreement.
SECTION 3. LIMITATIONS ON AMENDMENTS.
(a) The amendments set forth in Sections 1 and 2,
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 amended, are hereby ratified and confirmed and shall
remain in full force and effect.
SECTION 4. 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 which shall be
true as of such different date) are true, accurate and complete in all material
respects as of the date hereof and (ii) no 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 Amended and Restated Articles of
Incorporation and the Amended and Restated Bylaws of Borrower delivered to each
Lender in connection with the closing of the Second Amended and Restated
Warehousing Credit Agreement dated as of December 2, 1997 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 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 certificate 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 5. REAFFIRMATION. Borrower hereby reaffirms its Obligations
under each Loan Document to which it is a party.
SECTION 6. 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 and each Lender to Agent;
(b) The execution and delivery by PLMI to Agent of
the Acknowledgment of Amendment and Reaffirmation of Guaranty attached to this
Amendment; and
(c) The receipt by Agent of a certificate of the
secretary of Borrower, with incumbency signatures, attaching copies, certified
to be true and correct, of (i) the current articles of incorporation and bylaws
of Borrower (which certificate may instead refer to and incorporate by reference
to such documents as previously delivered to Agent under an identified prior
certificate of the secretary of Borrower) and certifying that such
organizational documents have not been further amended and remain in full force
and effect, and (ii) resolutions of the board of directors of Borrower approving
this Amendment.
SECTION 7. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
CALIFORNIA.
SECTION 8. 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 9. 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 TEQ ACQUISUB, INC.
By: /s/Richard K Brock
Title: Acting CFO, Vice President and
Corporate Controller
LENDERS FIRST UNION NATIONAL BANK
By: /s/Bill A. Shirley
Title: Senior Vice President
AGENT FIRST UNION NATIONAL BANK , as Agent
By: /s/Bill A. Shirley
Title: Senior Vice President