AMENDMENT NO. 2
TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDMENT NO. 2 (the "Amendment") dated as of August 2, 2000
BY AND AMONG
(1) PLM EQUIPMENT GROWTH FUND V, a California limited partnership
(hereinafter called "EGF V");
(2) TRADER VESSEL LIMITED PARTNERSHIP, a California limited partnership
(hereinafter called "Trader");
(3) TRADER VESSEL INC., a California corporation (hereinafter called
"TVI");
(4) CALIFORNIA VESSEL LIMITED PARTNERSHIP, a California limited
partnership (hereinafter called "California");
(5) CALIFORNIA VESSEL INC., a Wyoming corporation (hereinafter called
"CVI");
(6) COLUMBUS VESSEL LIMITED PARTNERSHIP, a California limited partnership
(hereinafter called "Columbus");
(7) COLUMBUS VESSEL INC., a Wyoming corporation (hereinafter called
"COVI");
(8) REDCAR INVESTMENTS LIMITED, a Hong Kong company (hereinafter called
"Redcar", and together with EGF V, Trader, TVI, California, CVI,
Columbus and COVI, as joint and several borrowers, hereinafter called
the "Companies");
(9) The LENDERS party to the Loan Agreement (as defined below)
(hereinafter called the "Lenders"); and
(10) CHRISTIANIA BANK OG KREDITKASSE, New York Branch ("CBK"), as agent and
security trustee (hereinafter called "Agent" or "Security Trustee").
W I T N E S S E T H:
WHEREAS, the Companies, the Lenders, the Agent and the Security
Trustee are parties to that certain Amended and Restated Loan Agreement dated as
of September 26, 1996, as amended by an Amendment No. 1 dated as of December 29,
1997 (the "Loan Agreement") pursuant to which the Lenders made available to the
Companies a loan facility of Thirty Eight Million Dollars ($38,000,000);
WHEREAS, the Companies, the Lenders, the Agent and the Security
Trustee have agreed to amend the Loan Agreement on the terms and conditions set
forth herein so as to postpone the Repayment Date that would otherwise occur on
August 12, 2000 until September 30, 2000 and similarly to postpone each
Repayment Date occurring thereafter but without extending the final maturity of
the Loan beyond December 12, 2001.
NOW, THEREFORE, in consideration of the premises and the covenants and
agreements contained herein, the parties hereto agree as follows (with terms
used herein and not otherwise defined having the meaning ascribed thereto in the
Loan Agreement):
ARTICLE I
AMENDMENTS TO LOAN AGREEMENT
Section 1.1. Amendment to Loan Agreement. The Loan Agreement is hereby
amended as follows:
(a) Notwithstanding Clause 4.01 of the Loan Agreement, the Companies
hereby agree to jointly and severally repay the remaining outstanding
principal amount of the Loan in six consecutive installments
commencing on September 30, 2000 on the following dates and in the
following amounts; provided, however, that in no event shall the Loan
be repaid later than December 12, 2001:
Date Amount
September 30, 2000 $1,885,722.84
December 31, 2000 $1,885,722.84
March 31, 2001 $1,885,722.84
June 30, 2001 $1,885,722.84
September 30, 2001 $1,885,722.84
December 12, 2001 $1,885,722.84
(b) Notwithstanding the provisions of Clause 3 of the Loan Agreement, it
is understood and agreed that due to the changes being made pursuant
to this Amendment to Clause 4.01 of the Loan Agreement and the
amortization schedule set forth therein:
(i) the Interest Period commencing on August 12, 2000 shall be
deemed to end on September 30, 2000.
(ii) the Companies shall jointly and severally pay accrued
interest on the outstanding amount of the Loan on August 12,
2000, September 30, 2000 and December 12, 2001 whether or
not any such day is the last day of an Interest Period or a
Repayment Date;
(iii) each payment made pursuant to Clause (ii) above shall be
made together with any amounts due pursuant to Clause 14 of
the Loan Agreement; and
Section 1.2. Agreement Acknowledged and Confirmed. Except as expressly
amended hereby, the Loan Agreement, the Note and the Security Documents are
hereby ratified and confirmed.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1. Representations and Warranties. The Companies jointly and
severally represent and warrant to the Lenders as follows:
(a) Due Authorization. Each of the Companies has the power, and
has taken all necessary action to authorize it, to execute and deliver this
Amendment and to perform this Amendment and the Loan Agreement as amended by
this Amendment in accordance with their respective terms. This Amendment has
been duly executed and delivered by all necessary action of each of the
Companies and this Amendment and the Loan Agreement as amended by this Amendment
are the legal, valid and binding obligations of each Company enforceable in
accordance with their respective terms under all Applicable Law, subject, as to
enforcement of remedies, to any applicable bankruptcy, insolvency or other laws
affecting the enforcement of creditors' rights generally.
(b) Compliance with Law, etc. The execution and delivery of this
Amendment and the performance of this Amendment and the Loan Agreement as
amended by this Amendment in accordance with their respective terms do not and
will not (i) violate any provision of any applicable laws, orders, rules or
regulations presently in effect or (ii) conflict with, result in a breach of or
constitute a default under the organizational documents of any Company, or any
indenture, agreement or instrument to which any Company is a party or by which
it or its properties may be bound.
(c) Governmental Regulation. None of the Companies is required to
obtain any governmental authorizations, consents, orders or approvals in
connection with the execution and delivery of this Amendment or the performance
of the transactions contemplated by each of this Amendment and the Loan
Agreement as amended by this Amendment.
(d) Validity. There are no proceedings or investigations pending
or, to the best knowledge of the Companies, threatened against any Company
before any court, regulatory body, administrative agency or other tribunal or
governmental instrumentality (i) asserting the invalidity of the Loan Agreement
as amended by this Amendment, (ii) seeking to prevent the consummation of any of
the transactions contemplated by the Loan Agreement as amended by this
Amendment, (iii) seeking any determination or ruling that, in the reasonable
judgment of the Companies, would materially and adversely affect the performance
by any Company of its obligations under this Amendment and the Loan Agreement as
amended by this Amendment and (iv) seeking any determination or ruling that
would materially and adversely affect the validity or enforceability of the Loan
Agreement as so amended.
(e) Representations; No Defaults. The representations and
warranties contained in Article 6 of the Loan Agreement are true and correct on
and as of the date hereof as if made on and as of such date, and no Default or
Event of Default has occurred and is continuing.
ARTICLE III
MISCELLANEOUS
Section 3.1. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.
Section 3.2. Counterparts. This Amendment may be executed in any
number of counterparts, all of which taken together shall constitute one and the
same instrument.
Section 3.3. Severability. Any provision of this Amendment that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating or affecting the validity or enforceability of such provision in
any other jurisdiction.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their duly authorized officers all as of the date and year first
above written.
PLM EQUIPMENT GROWTH FUND V
by its General Partner, PLM
Financial Services, Inc.
By: /s/Susan Santo
Its: Vice President
TRADER VESSEL LIMITED
PARTNERSHIP
by its General Partner, Trader
Vessel Inc.
By: /s/Susan Santo
Its: Vice President
TRADER VESSEL INC.
By: /s/Susan Santo
Its: Vice President
CALIFORNIA VESSEL LIMITED
PARTNERSHIP
by its General Partner,
California Vessel Inc.
By: /s/Susan Santo
Its: Vice President
CALIFORNIA VESSEL INC.
By: /s/Susan Santo
Its: Vice President
COLUMBUS VESSEL LIMITED
PARTNERSHIP
by its General Partner,
Columbus Vesse
By: /s/Susan Santo
Its: Vice President
COLUMBUS VESSEL INC.
By: /s/Susan Santo
Its: Vice President
REDCAR INVESTMENTS LIMITED
By: /s/Susan Santo
Its: Vice President
CHRISTIANIA BANK OG KREDITKASSE,
as Lender
By: /s/Martin Lunder
Its: Senior Vice President
By: /s/Hans Chr. Kjelsrud
Its: Senior Vice President
ING LEASE STRUCTURED FINANCE B.V.,
as Lender
By: /s/Caroline Magee
Its: Vice President
CHRISTIANIA BANK OG KREDITKASSE,
NEW YORK BRANCH as Agent and
Security Trustee
By: /s/Martin Lunder
Its: Senior Vice President
By: /s/Hans Chr. Kjelsrud
Its: Senior Vice President
