AMENDMENT NO. 9 TO NOTE AGREEMENT
This Amendment No. 9 to Note Agreement (the "Amendment") is made as of
November 15, 1995 by and between PLM International, Inc. ("Company") and
Principal Mutual Life Insurance Company ("Purchaser"), and amends that certain
Note Agreement dated as of January 15, 1989, as amended by Amendment No. 1 to
Note Agreement dated as of May ___, 1989, by Amendment No. 2 to Note Agreement
dated as of June 1, 1989, by Amendment No. 3 to Note Agreement dated as of
August 6, 1990, by Amendment 4 to Note Agreement dated as of June 21, 1991, by
Amendment No. 5 to Note Agreement dated as of December 16, 1991, by Amendment
No. 6 to Note Agreement dated October 30, 1992, by Amendment No. 7 to Note
Agreement dated July 22, 1994 and by Amendment No. 8 to Note Agreement dated
December 12, 1994, by and between the Company and the Purchaser (as so amended,
the "Note Agreement").
RECITALS
A. The Company and the Purchaser have entered into the Note Agreement
and the Company has issued and delivered to Purchaser the Notes (as defined in
the Note Agreement).
B. The Company wishes to prepay approximately $11,500,000 in
outstanding principal pursuant to Section 2.2 of the Note Agreement. Purchaser
is desirous for the Company to prepay such amount and is therefore willing to
agree to certain changes in the covenants of the Company provided in the Note
Agreement.
C. The Company and Purchaser now desire to amend the Note Agreement and
the Notes.
D. As of the date hereof, the Purchaser is the holder of 100% in
aggregate principal amount of the Notes.
E. Subject to the terms and conditions hereinafter set forth, the
Company and Purchaser are willing to amend the Note Agreement and the Notes.
NOW THEREFORE, the Company and Purchaser hereby agree as follows:
1. Section 5.8(b). Section 5.8(b) is hereby amended to read in its
entirety as follows:
"(b) Directly or indirectly, or through any Subsidiary,
purchase, redeem or retire any shares of capital stock of any
class or any warrants, rights or options to purchase or
acquire any shares of its capital stock (except purchases,
redemptions or retirement of (i) up to $8,500,000 in the
aggregate of common shares of the Company."
2. Section 5.10(e). Section 5.10(e) is hereby amended to read in its
entirety as follows:
"(e) As used in this Sec. 5.10, a sale, lease or other
disposition of assets shall be deemed to be "substantial part"
of assets only if the book value of such assets when added to
the book value of all other assets sold, leased or otherwise
disposed of by the Company, its Restricted Subsidiaries and
Special Subsidiaries (other than (i) in the ordinary course of
business and (ii) the disposition of Eligible Securitization
Assets by a Securitization Subsidiary) during the twelve month
period ending with the date of such sale, lease or other
disposition, exceeds 10% of the Consolidated Net Tangible
Assets of the Company and its Restricted Subsidiaries
determined as of the end of the immediately preceding fiscal
year (the amount of such excess being herein referred to as
"Excess Proceeds"). For the purpose of making any
determination of "substantial part" (i) sales of assets from
which the Excess Proceeds are deposited with a financial
institution and held in an account which is (x) segregated
from all other accounts and funds of the Company and (y)
identified as holding such proceeds and used within 120 days
after the sale to purchase other fixed or capital assets
useful and intended to be used in the business of the Company,
a Restricted Subsidiary or Special Subsidiary shall be
excluded, and (ii) sales of assets shall also be excluded if
the Company applies the Excess Proceeds to the payment or
prepayment of Funded Debt; provided however that the use of
proceeds under clause (y) above to purchase such fixed or
capital assets to be used in the business of a Special
Subsidiary shall be subject to Sec. 5.18(j) hereof."
3. Section 8.1. Section 8.1 is amended by replacing or adding the
following definitions in the appropriate alphabetical order:
"Borrowing Base" shall mean as of the date of any
determination thereof, the sum of (i) Adjusted Net Worth as at
the end of the Company's fiscal quarter then most recently
ended and (ii) the unpaid principal amount of all Subordinated
Debt outstanding as at such date of determination, minus the
Consolidated Tangible Net Worth of any Restricted Subsidiary
which has incurred obligations for borrowed money in
connection with the acquisition of Eligible Securitization
Assets.
"Eligible Securitization Asset" shall mean (i) any lease or
installment purchase contract entered into or owned by the
Company which shall have been selected for disposition in
accordance with the Company's past practices and substantially
in accordance with standard industry practice; (ii) the
Company's interest in any equipment or other assets which are
the subject of the lease or installment purchase contract
described in the foregoing clause (i); (iii) all monies due or
to become due with respect to any of the foregoing clauses (i)
or (ii); (iv) all rights and interest in the insurance
policies with respect to any of the foregoing; and (v) cash in
an amount up to the aggregate reserve requirements, if any,
which the Company is obligated to fund under the documents
governing an asset securitization for a Securitization
Subsidiary.
"Fixed Charges" for any period shall mean on a consolidated
basis the sum of (i) all Rentals on Capitalized Leases to the
extent of the imputed interest component payable during such
period by the Company and its Restricted Subsidiaries, (ii)
all Interest Charges on all Indebtedness (other than (a)
imputed interest on Capitalized Leases and (b) Interest
Charges on any obligations for borrowed money incurred in
connection with the acquisition of Eligible Securitization
Assets) of the Company and its Restricted Subsidiaries and
(iii) all Rentals on leases other than Capitalized Leases.
"Funded Debt" of any Person shall mean without duplication (i)
all Indebtedness for Borrowed Money of such Person having a
final maturity of more than one year from the date of origin
thereof (or which is renewable or extendible at the option of
the obligor for a period or periods more than one year from
the date of origin), including (a) all payments in respect
thereof that are required to be made, within one year from the
date of any determination of Funded Debt and (b) obligations
for borrowed money incurred in connection with the acquisition
of Eligible Securitization Assets), (ii) all Capitalized
Rentals of such Person, and (iii) all Guaranties of such
Person of Funded Debt of others.
"Securitization Subsidiary" shall mean any Subsidiary of which
all of the issued and outstanding shares of stock shall be
owned by the Company and/or one or more of its Wholly-owned
Restricted Subsidiaries and which engages exclusively in
financing Eligible Securitization Assets and activities
related to such financing activities.
4. Effectiveness. This Amendment and each of its terms shall be
effective upon the prepayment of at least $11,500,000 of principal outstanding
on the Notes pursuant to Section 2.2 of the Note Agreement.
5. Express Amendment. Except as specifically provided herein, the Note
Agreement shall continue in full force and effect. No provision of this
Amendment shall be construed to limit any obligation of the Company under the
Note Agreement or any right of the Purchaser under the Note Agreement.
6. Counterparts. This Amendment may be signed in any number of
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 Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the date first written above.
COMPANY: PURCHASER:
PLM INTERNATIONAL, INC. PRINCIPAL MUTUAL LIFE
INSURANCE COMPANY
By: /s/ J. Michael Allgood By: /s/ John Heiny
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Its: Vice President & CFO Its: Counsel
By: /s/ Donald Brattebo
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Its: Second Vice President