AMENDMENT NO. 1
TO WAREHOUSING CREDIT AGREEMENT
(American Finance Group, Inc.)
THIS AMENDMENT NO. 1 TO WAREHOUSING CREDIT AGREEMENT dated as
of December 10, 1999 (the "Amendment"), is entered into by and among AMERICAN
FINANCE GROUP, INC., a Delaware 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 ("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 entered into that 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 April 21, 2000 and to decrease the aggregate
Commitments set forth on Schedule A to the Credit Agreement from $60,000,000 to
$50,000,000.
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. Amendments.
1.1 COMMITMENT. The definition of "Commitment" set
forth in Section 1.1 of the Credit Agreement is amended by deleting Schedule A
in its entirety and replacing such schedule with a new Schedule A in the form
attached to this Amendment as Attachment I.
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 April 21, 2000.
SECTION 2. LIMITATIONS ON AMENDMENTS.
2.1 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.
2.2 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 3. 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 certificate of incorporation of Borrower and
the bylaws 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 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 4. REAFFIRMATION. Borrower hereby reaffirms its Obligations
under each Loan Document to which it is a party.
SECTION 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 and each Lender to Agent; and
(b) The execution and delivery by PLMI to Agent of
the Acknowledgment of Amendment and Reaffirmation of Guaranty attached to this
Amendment.
SECTION 6. 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 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. 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: /s/Susan Santo
Title: Secretary
LENDERS FIRST UNION NATIONAL BANK
By: /s/Bill A. Shirley
Title: Senior Vice President
EUROPEAN AMERICAN BANK
By: /s/Robert W. Peck
Title: Vice President
IMPERIAL BANK
By: /s/Kevin Coonan
Title: Vice President
MEES PIERSON, N.V.
By: /s/B.M. Kool
Title:
AGENT FIRST UNION NATIONAL BANK , as Agent
By: /s/Bill A. Shirley
Title: Senior Vice President