AMENDMENT NO. 1
TO SECOND AMENDED AND RESTATED
WAREHOUSING CREDIT AGREEMENT
(Growth Funds)
THIS AMENDMENT NO. 2 TO AMENDED AND RESTATED WAREHOUSING CREDIT
AGREEMENT dated as of November 5, 1996 (the "Amendment"), is entered into by and
among PLM EQUIPMENT GROWTH FUND IV, a California limited partnership ("EGF IV"),
PLM EQUIPMENT GROWTH FUND V, a California limited partnership ("EGF V"), PLM
EQUIPMENT GROWTH FUND VI, a California limited partnership ("EGF VI"), PLM
EQUIPMENT GROWTH & INCOME FUND VII, a California limited partnership ("EGF
VII"), and PROFESSIONAL LEASE MANAGEMENT INCOME FUND I, L.L.C., a Delaware
limited liability company ("Income Fund I") (EGF IV, EGF V, EGF VI, EGF VII and
Income Fund I each individually being a "Borrower" and, collectively, the
"Borrowers"), and PLM FINANCIAL SERVICES, INC., a Delaware corporation and the
sole general partner, in the case of EGF IV, EGF V, EGF VI and EGF VII, and the
sole manager, in the case of Income Fund I ("FSI"), FIRST UNION NATIONAL BANK OF
NORTH CAROLINA ("FUNB"), FLEET BANK, N.A. ("Fleet") 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
in respect of pledA.Annual Borrowers, PLM Equipment Growth Fund III, a
California limited partnership ("EGF III"), Lenders and Agent have entered into
that certain Second Amended and Restated Warehousing Credit Agreement dated as
of May 31, 1996 (the "Credit Agreement"), by and among Borrowers, EGF III, FUNB
(as the sole Lender party thereto), and Agent pursuant to which Lenders have
agreed to extend and make available to Borrowers certain advances of money.
B. Borrowers desire that Lenders and Agent amend the Credit
Agreement to increase the aggregate amount of the Commitments by $15,000,000, to
extend the Commitment Termination Date, to remove EGF III as a borrower under
the revolving credit facility, to add PLM International, Inc., a Delaware
corporation ("PLMI"), as a guarantor of FSI's Obligations under the Credit
Agreement and FSI's Guaranty Obligations under its Guaranty, as more fully set
forth herein.
C. FUNB is currently the sole Lender under the Credit
Agreement. On the terms and conditions set forth below, Fleet desires to become
a Lender under the Credit Agreement and to make Loans to Borrowers with an
aggregate Commitment of $15,000,000.
D. Subject to the representations and warranties of Borrowers
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:
2. AMENDMENTS. The Credit Agreement is hereby amended
as follows:
1 Section 1.1 Defined Terms (Commitment). 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.
1.2 Section 1.1 Defined Terms (Commitment Termination Date). The
definition of "Commitment Termination Date" set forth in Section 1.1 of the
Credit Agreement is deleted and replaced with the following:
"Commitment Termination Date" means October 3, 1997.
2 Section 1.1 Defined Terms (Guaranty). The definition of
"Guaranty" set forth in Section 1.1 of the Credit Agreement is deleted and
replaced with the following:
"Guaranty" means, collectively, that certain Guaranty dated as
of June 30, 1993, executed by FSI in favor of Lenders and Agent and
that certain Guaranty dated as of November 5, 1996, executed by PLMI in
favor of Lenders and Agent.
3 Section 1.1 Defined Terms (Responsible Officer). The
definition of "Responsible Officer" set forth in Section 1.1 of the Credit
Agreement is deleted and replaced with the following:
"Responsible Officer" means for (i) FSI, any of the President,
Executive Vice President, Chief Financial Officer, Secretary or
Corporate Controller of FSI having authority to request Advances or
perform other duties required hereunder, and (ii) Borrowers, any of the
President, Executive Vice President, Chief Financial Officer, Secretary
or Corporate Controller of FSI as the sole general partner of EGF IV,
EGF V, EGF VI or EGF VII, as the case may be, or sole manager of Income
Fund I, in each case having authority to request Advances or perform
other duties required hereunder.
4 Section 1.1 Defined Terms (Requisite Lenders). The
definition of "Requisite Lenders" set forth in Section 1.1 of the Credit
Agreement is deleted and replaced with the following:
"Requisite Lenders" means any combination of Lenders whose
combined Pro Rata Share (and voting interest with respect thereto) of
all amounts outstanding under this Agreement, or, in the event there
are no amounts outstanding, the Commitments, is greater than sixty-six
and two-thirds percent (66 2/3%) of all such amounts outstanding or the
total Commitments, as the case may be; provided, however, that in the
event there are only two (2) Lenders, Requisite Lenders means both
Lenders.
5 Section 2.2.1 Revolving Facility. 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 Borrowers set forth herein, Lenders hereby agree to
make Advances (as defined below) of immediately available funds to
Borrowers, 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 TEC AcquiSub
Agreement and under the AFG Agreement or (b) for any one Borrower, its
respective Borrowing Base or (c) $35,000,000 (such lesser amount being
the "Maximum Availability"), as more fully set forth in this Section
2.1.1. The obligation of Borrowers to repay the Advances made to any
Borrower shall be several but not joint.
6 Section 2.1.1(a)(i) Facility Commitments. Section
2.1.1(a)(i) of the Credit Agreement is deleted and replaced with the following:
(i) On the Funding Date requested by any Borrower
(the "Requesting Borrower"), after such Borrower shall have satisfied
all applicable conditions precedent set forth in Section 3, each Lender
shall advance immediately available funds to Agent (each such advance
being an "Advance") evidencing such Lender's Pro Rata Share of a loan
("Loan"). Agent shall immediately advance such immediately available
funds to such Borrower at the Designated Deposit Account (or such other
deposit account at FUNB or such other financial institution as to which
such Borrower and Agent shall agree at least three (3) Business Days
prior to the requested Funding Date) on the Funding Date with respect
to such Loan. The Requesting Borrower shall pay interest accrued on the
Loan at the rates and in the manner set forth in Section 2.1.1(b).
Subject to the terms and conditions of this Agreement, the unpaid
principal amount of each Loan and all unpaid interest accrued thereon,
together with all other fees, expenses, costs and other sums chargeable
to the Requesting Borrower incurred in connection therewith shall be
due and payable no later than the Maturity Date of such Loan. Each Loan
advanced hereunder by each Lender shall be evidenced by the Requesting
Borrower's revolving promissory note substantially in the form of
Exhibit A (each a "Note").
7 Section 3.3.1 General Partner or Manager. Section 3.3.1 of
the Credit Agreement is deleted and replaced with the following:
3.3.1 General Partner Or Manager. FSI shall have
ceased to be the sole general partner of any of EGF IV, EGF V, EGF VI
or EGF VII or the sole manager of Income Fund I, whether due to the
voluntary or involuntary withdrawal, substitution, removal or transfer
of FSI from or of all or any portion of FSI's general partnership
interest or capital contribution in such Borrower.
8 Section 5 Annual Statements. Section 5.1.2 of the Credit
Agreement is deleted and replaced with the following:
Annual Statements. As ( in the case of such consolidated financial statements,
accompanied by a report thereon of an independent public accountant of
recognized national standing selected by each Borrower and PLMI and
satisfactory to Agent, which report shall contain an opinion which is
not qualified in any manner or which otherwise is satisfactory to
Requisite Lenders, in their sole discretion, and (B) in the case of
such consolidating financial statements, certified by the Chief
Financial Officer or Corporate Controller of PLMI;
9 Section 6 Borrowers' and FSI's Negative Covenants. Section 6
of the Credit Agreement is deleted and replaced with the following:
SECTION 6. BORROWERS' AND FSI'S NEGATIVE COVENANTS.
So long as any of the Commitments shall be available
and until full, complete and indefeasible payment and performance of
the Obligations, unless Requisite Lenders shall otherwise consent in
writing, each Borrower, severally, as to itself, but not jointly as to
the other Borrowers and FSI, and FSI, jointly and severally with each
Borrower as to such Borrower and to itself, covenants and agrees as
follows:
6.1 Liens; Negative Pledges; And Encumbrances. Each Borrower
shall not create, incur, assume or suffer to exist, and shall not
permit any Marine Subsidiary of such Borrower or Owner Trustee holding
record title to any Eligible Inventory for the beneficial interest of
such Borrower to create, incur, assume or suffer to exist, and FSI
shall not permit any of its Subsidiaries (including, without
limitation, TEC and TEC AcquiSub) to create, incur, assume or suffer to
exist, any Lien of any nature upon or with respect to any of their
respective Property, whether now or hereafter owned, leased or
acquired, except (collectively, the "Permitted Liens"):
6.1.1 Existing Liens disclosed on Schedule 6.1,
provided that the obligations secured thereby are not increased;
6.1.2 Liens for Charges if payment shall not at the
time be required to be made in accordance with Section 5.4;
(a) in respect of pledg( under workers' compensation laws, unemployment
insurance and other types of social security or similar legislation,
(b) in connection with surety, appeal and similar bonds incidental to
the conduct of litigation, (c) in connection with bid, performance or
similar bonds and mechanics', laborers' and materialmen's and similar
statutory Liens not then delinquent, or (d) incidental to the conduct
of the business of such Borrower, any Marine Subsidiary of such
Borrower, or any Owner Trustee or any of FSI's Subsidiaries and which
were not incurred in connection with the borrowing of money or the
obtaining of advances or credit; provided that the Liens permitted by
this Section 6.1.3 do not in the aggregate materially detract from the
value of any assets or property of or materially impair the use thereof
in the operation of the business of such Borrower, any Owner Trustee or
any of FSI's Subsidiaries; and provided further that the adverse
determination of any claim or liability, contingent or otherwise,
secured by any of such Liens would not either individually or in the
aggregate, with reasonable likelihood, have a Material Adverse Effect;
6.1.4 Permitted Rights of Others; and
6.1.5 Liens granted in favor of Agent on behalf of
Lenders under the TEC AcquiSub Agreement and the security agreement and
other loan documents delivered by TEC AcquiSub pursuant thereto.
6.2 Acquisitions. Each Borrower shall not, and shall not
permit any Marine Subsidiary of such Borrower to, and FSI shall not
permit TEC and TEC AcquiSub to, make any Acquisition or enter into any
agreement to make any Acquisition, other than with respect to the
purchase of Equipment in the ordinary course of business or the
formation or acquisition of a Marine Subsidiary.
6.3 Limitations On Indebtedness. Each Borrower shall not
create, incur, assume or suffer to exist, nor permit any Marine
Subsidiary of such Borrower or Owner Trustee holding record title to
any Eligible Inventory for the beneficial interest of such Borrower to
create, incur, assume or suffer to exist, and FSI shall not permit any
of its Subsidiaries (including, without limitation, TEC and TEC
AcquiSub) to create, incur, assume or suffer to exist, any Indebtedness
or Contingent Obligation; provided, however, that this Section 6.3
shall not be deemed to prohibit:
6.3.1 The Obligations to Lenders and Agent arising
hereunder and under the other Loan Documents;
6.3.2 Existing Indebtedness disclosed on Schedule
6.3(a) and anticipated Indebtedness disclosed on Schedule 6.3(b);
6.3.3 Indebtedness of any Subsidiary of FSI, provided
that such Indebtedness is non-recourse as to FSI, TEC and TEC AcquiSub;
6.3.4 The acquisition of goods, supplies or
merchandise on normal trade credit;
6.3.5 The endorsement of negotiable instruments
received in the ordinary course of any Borrower's business as presently
conducted;
6.3.6 Indebtedness incurred in respect of the
deferred purchase price for an item of Equipment, but only to the
extent that the incurrence of such Indebtedness is customary in the
industry with respect to the purchase of this type of equipment
(provided that such Indebtedness shall only be permitted under this
Section 6.3.6 if, taking into account the incurrence of such
Indebtedness, the Borrower incurring such Indebtedness shall not be in
violation of any of the financial covenants set forth in Section 7 if
measured as of the date of incurrence as determined by GAAP); and
6.3.7 Any Guaranty Obligations of any Borrower in the
form of performance guaranties undertaken on behalf of a Marine
Subsidiary of such Borrower in favor of the charter party in connection
with the leasing of a marine vessel on a time charter;
6.4 Use Of Proceeds. Each Borrower and FSI shall not, and
shall not permit any Marine Subsidiary of such Borrower or Owner
Trustee holding record title to any Eligible Inventory for the
beneficial interest of such Borrower or FSI to, use the proceeds of any
Loan except for the purpose set forth in Recital C, above, and shall
not, and shall not permit any such Marine Subsidiary or such Owner
Trustee to, use the proceeds to repay any loans or advances made by any
other Person.
6.5 Disposition Of Assets. Each Borrower and FSI shall not,
and shall not permit any Marine Subsidiary of such Borrower or any
Owner Trustee holding record title to any Eligible Inventory for the
beneficial interest of such Borrower or FSI to, sell, assign or
otherwise dispose of, any of its or their respective assets, except for
full, fair and reasonable consideration, or enter into any sale and
leaseback agreement covering any of its or their respective fixed or
capital assets.
6.6 Restriction On Fundamental Changes. Each Borrower and FSI
shall not, and shall not permit any Marine Subsidiary of such Borrower
to, enter into any transaction of merger, consolidation or
recapitalization, directly or indirectly, whether by operation of law
or otherwise, or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution), or convey, sell, lease, assign, transfer
or otherwise dispose of, in one transaction or a series of
transactions, all or any part of its business, Property or assets,
whether now owned or hereafter acquired, or acquire by purchase or
otherwise all or substantially all the business, Property or assets of,
or stock or other evidence of beneficial ownership of, any Person,
except sales (a) of Equipment in the ordinary course of business (for
the purposes of this Section 6.6, with respect to any Borrower and any
Marine Subsidiary of such Borrower, ordinary course of business shall
refer to the business of the Equipment Growth Funds and all Marine
Subsidiaries, collectively) and (b) any Subsidiary of FSI (other than
TEC AcquiSub) may be merged or consolidated with or into FSI or any
wholly-owned Subsidiary of FSI, or be liquidated, wound up or
dissolved, or all or substantially all of its business, property or
assets may be conveyed, sold, leased, transferred or otherwise disposed
of, in one transaction or a series of transactions, to, FSI or any
wholly-owned Subsidiary of FSI; provided that, in the case of such a
merger or consolidation, FSI or such wholly-owned Subsidiary shall be
the continuing or surviving corporation.
6.7 Transactions With Affiliates. Each Borrower shall not, and
shall not permit any Marine Subsidiary of such Borrower to, directly or
indirectly, enter into or permit to exist any transaction (including,
without limitation, the purchase, sale, lease or exchange of any
property or the rendering of any service) with any of its Affiliates on
terms that are less favorable to such Borrower or such Marine
Subsidiary than those that might be obtained at the time from Persons
who are not such Affiliates.
6.8 Maintenance Of Business. Each Borrower shall not, and FSI
shall not permit any of its existing Subsidiaries to, engage in any
business materially different than the business currently engaged in by
such Person.
6.9 No Distributions. Each Borrower shall not make, pay or set
apart any funds for the payment of distribution to its partners or
members if such distribution would cause or result in an Event of
Default or Potential Event of Default.
6.10 Events Of Default. Each Borrower and FSI shall not take
or omit to take any action, which act or omission would, with the lapse
of time, or otherwise constitute (a) a default, event of default or
Event of Default under any of the Loan Documents or (b) a default or an
event of default under any other material agreement, contract, lease,
license, mortgage, deed of trust or instrument to which either is a
party or by which either or any of their Properties or assets is bound,
which default or event of default would, with reasonable likelihood,
have a Material Adverse Effect.
6.11 ERISA. If any Borrower or FSI or any of their ERISA
Affiliates incurs any obligation to contribute to any Pension Plan,
then such Borrower or FSI, as the case may be, shall not (a) terminate,
or permit such ERISA Affiliate to terminate, any Pension Plan so as to
result in any liability that would, with reasonable likelihood, have a
Material Adverse Effect or (b) make or permit such ERISA Affiliate to
make a complete or partial withdrawal (within the meaning of Section
4201 of ERISA) from any Multiemployer Plan so as to result in any
liability that would, with reasonable likelihood, have a Material
Adverse Effect.
6.12 No Use Of Any Lender's Name. Each Borrower and FSI shall
not use or authorize others to use any Lender's name or marks in any
publication or medium, including, without limitation, any prospectus,
without such Lender's advance written authorization.
6.13 Certain Accounting Changes. Each Borrower shall not
change its fiscal year end from December 31, nor make any change in its
accounting treatment and reporting practices except as permitted by
GAAP; provided, however, that should any Borrower change its accounting
treatment or reporting practices in a way that would cause a change in
the calculation, or in the results of a calculation, of any of the
financial covenants set forth in Section 7, below, then such Borrower
shall continue to calculate such covenants as if such accounting
treatment or reporting practice had not been changed unless otherwise
agreed to by Requisite Lenders.
6.14 Amendments Of Limited Partnership Or Operating
Agreements. Each Borrower shall not, shall not cause to occur and shall
not permit any amendment, modification or supplement of or to any of
the terms or provisions of such Borrower's Limited Partnership
Agreement or, in the case of Income Fund I, its Operating Agreement,
which amendment, modification or supplement would affect, limit or
otherwise impair such Borrower's ability to pay the Obligations or
perform its obligations under this Agreement or any of the other Loan
Documents.
11 Note. The forms of Note set forth as Exhibits A-1 through
A-6 of the Credit Agreement are deleted and replaced with Exhibit A attached
hereto.
12 Borrowing Base Certificate. The Borrowing Base Certificate
set forth as Exhibit B of the Credit Agreement is deleted and replaced with
Exhibit B attached hereto.
3. LIMITATIONS ON AMENDMENTS.
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 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.
4. REPRESENTATIONS AND WARRANTIES. In order to induce Lenders
and Agent to enter into this Amendment, each 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) are true, accurate and
complete in all material respects as of the date hereof and (ii) no Default or
Event of Default, or event which constitutes a Potential Event of Default, has
occurred and is continuing;
(b) Each 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 each 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 each Borrower of
this Amendment and the performance by each Borrower of its respective
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 such Borrower;
(e) The execution and delivery by each Borrower of
this Amendment and the performance by each Borrower of its 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 such Borrower, (ii)
the articles of incorporation, bylaws, or other organizational documents of such
Borrower, (iii) any order, judgment or decree of any court or other governmental
or public body or authority, or subdivision thereof, binding on such Borrower,
or (iv) any contractual restriction binding on or affecting such Borrower;
(f) The execution and delivery by each Borrower of
this Amendment and the performance by each Borrower of its 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 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 such Borrower, except as already
has been obtained or made; and
(g) This Amendment has been duly executed and
delivered by each Borrower and is the binding Obligation of each 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.
5. REAFFIRMATION. Each Borrower hereby reaffirms its
Obligations under each Loan Document to which it is a party.
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 Borrowers, Lenders and Agent.
(b) The execution and delivery of the Acknowledgement
of Amendment and Reaffirmation of Guaranty attached to this Amendment by FSI.
(c) Receipt by Agent, in form and substance
satisfactory to Lenders, of a Guaranty of FSI's Obligations under the Credit
Agreement and FSI's Guaranty Obligations under its Guaranty dated as of the date
hereof executed by PLMI in favor of Lenders and Agent.
(d) Receipt by Agent, in form and substance
satisfactory to Lenders, of a certified copy of the records of all actions taken
by each Borrower, FSI and PLMI, including all corporate resolutions of each
Borrower, FSI and PLMI authorizing or relating to the execution, delivery and
performance of this Amendment and the Guaranty, as the case may be.
(e) Receipt by Agent, in form and substance
satisfactory to Lenders, of Notes executed by each Borrower in favor of each
Lender in the stated principal amount equal to each Lender's Pro Rata Share of
the Commitments, which Notes will replace and supersede the existing Notes dated
May 31, 1996, issued by Borrowers to Agent.
(f) Receipt by Agent, in form and substance
satisfactory to Lenders, of a supplemental fee letter (the "Supplemental Fee
Letter") and a supplemental agent's side letter (the "Supplemental Agent's Side
Letter"), each duly executed by each Borrower, AFG and TEC AcquiSub, and the
Supplemental Arrangement Fee and the Supplemental Agent's Fee described in the
Supplemental Fee Letter and the Supplemental Agent's Side Letter, respectively.
(g) Receipt by Agent of an originally executed legal
opinion of Stephen Peary, general counsel of each Borrower and Guarantor, on
behalf of each Borrower and Guarantor, in form and substance satisfactory to
Lenders, dated as of the effective date of this Amendment and addressed to
Lenders, together with copies of any officer's certificate or legal opinion of
other counsel or law firm specifically identified and expressly relied upon by
such counsel.
(h) Satisfaction, to the approval of Lenders and
Agent, of all conditions precedent to the effectiveness of Amendment No. 2 to
Amended and Restated Warehousing Credit Agreement dated as of the date hereof by
and among TEC AcquiSub, Lenders and Agent.
(i) Satisfaction, to the approval of Lenders and
Agent, of all conditions precedent to the effectiveness of Amendment No. 1 to
Warehousing Credit Agreement dated as of the date hereof by and among AFG,
Lenders and Agent.
7. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NORTH CAROLINA.
8. CLAIMS, COUNTERCLAIMS, DEFENSES, RIGHTS OF SET-OFF. EACH
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.
9. FLEET AS LENDER. Upon the execution and delivery of this
Amendment, Fleet shall be a Lender and a party to the Credit Agreement, and
shall be entitled to the rights and benefits of the Loan Documents and, to the
extent of the percentage equivalent of Fleet's Commitment under the Facility
divided by the aggregate Commitment of all Lenders under the Facility, have the
rights and obligations of a Lender thereunder.
10. 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.
BORROWERS PLM EQUIPMENT GROWTH FUND IV
BY PLM FINANCIAL SERVICES, INC.,
ITS GENERAL PARTNER
By /s/ J. Michael Allgood
---------------------------
J. Michael Allgood
Chief Financial Officer
PLM EQUIPMENT GROWTH FUND V
BY PLM FINANCIAL SERVICES, INC.,
ITS GENERAL PARTNER
By /s/ J. Michael Allgood
--------------------------
J. Michael Allgood
Chief Financial Officer
PLM EQUIPMENT GROWTH FUND VI
BY PLM FINANCIAL SERVICES, INC.,
ITS GENERAL PARTNER
By /s/ J. Michael Allgood
---------------------------
J. Michael Allgood
Chief Financial Officer
PLM EQUIPMENT GROWTH & INCOME FUND VII
BY PLM FINANCIAL SERVICES, INC.,
ITS GENERAL PARTNER
By /s/ J. Michael Allgood
---------------------------
J. Michael Allgood
Chief Financial Officer
PROFESSIONAL LEASE MANAGEMENT INCOME FUND I, L.L.C.
BY PLM FINANCIAL SERVICES, INC.,
ITS MANAGER
By /s/ J. Michael Allgood
---------------------------
J. Michael Allgood
Chief Financial Officer
FSI PLM FINANCIAL SERVICES, INC.
By /s/ J. Michael Allgood
--------------------------
J. Michael Allgood
Chief Financial Officer
LENDERS FIRST UNION NATIONAL BANK OF
NORTH CAROLINA
By /s/ Bill A. Shirley
-------------------------
Bill A. Shirley
Vice President
FLEET BANK, N.A.
By /s/ Felix Herrera
----------------------
Printed Name: Felix Herrera
Title: Vice President
AGENT FIRST UNION NATIONAL BANK OF
NORTH CAROLINA, as Agent
By /s/ Bill A. Shirley
-----------------------
Bill A. Shirley
Vice President
ACKNOWLEDGEMENT OF AMENDMENT
AND REAFFIRMATION OF GUARANTY
(Growth Funds)
11. PLM Financial Services, Inc. ("FSI") hereby acknowledges
and confirms that it has reviewed and approved the terms and conditions of this
Amendment No. 1 to Second Amended and Restated Warehousing Credit Agreement
("Amendment").
12. FSI hereby consents to this Amendment and agrees that its
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 represents and warrants that, after giving effect to
this Amendment, all representations and warranties contained in its Guaranty are
true, accurate and complete as if made the date hereof.
GUARANTOR PLM FINANCIAL SERVICES, INC.
By /s/ J. Michael Allgood
----------------------------
J. Michael Allgood
Chief Financial Officer
SCHEDULE A
COMMITMENTS
LENDER COMMITMENT PRO RATA SHARE
First Union National Bank $35,000,000 35/50 x 100%
of North Carolina
Fleet Bank, N.A. $15,000,000 15/50 x 100%
EXHIBIT A
REVOLVING PROMISSORY NOTE
[LENDER]
$____________ San Francisco, California
Date: November 5, 1996
[BORROWER], a _____________________ (the "Borrower"), FOR VALUE
RECEIVED, hereby unconditionally promises to pay to the order of [LENDER]
("[_________________]"), in lawful money of the United States of America, the
aggregate outstanding principal amount of [_________________]'s Pro Rata Share
of all Loans made to the Borrower under the Credit Agreement referred to below,
payable in the amounts, on the dates and in the manner set forth below.
This revolving promissory note (this "Note") is one of the Notes
referred to and defined in that certain Second Amended and Restated Warehousing
Credit Agreement dated as of May 31, 1996, as amended by that certain Amendment
No. 1 to Second Amended and Restated Warehousing Credit Agreement dated as of
even date herewith (as the same may from time to time be further amended,
modified, supplemented, renewed, extended or restated, the "Credit Agreement")
by and among the Borrower, PLM Equipment Growth Fund V, PLM Equipment Growth
Fund VI, PLM Equipment Growth & Income Fund VII, Professional Lease Management
Income Fund I, L.L.C., PLM Financial Services, Inc. ("FSI"), First Union
National Bank Of North Carolina, solely in its capacity as agent (solely in such
capacity, the "Agent") for [_________________] and such other financial
institutions as shall from time to time become "Lenders" pursuant to Section
11.10 of the Credit Agreement (such entities, together with their respective
successors and assigns being collectively referred to herein as the "Lenders"),
and the Lenders, and amends, restates and replaces that certain Revolving
Promissory Note dated May 31, 1996, executed and delivered by the Borrower in
favor of and to the Agent, on behalf of the Lenders. All capitalized terms used
but not defined herein shall have the same meaning as given to them in the
Credit Agreement.
14. Principal Payments. Subject to the terms and conditions of
the Credit Agreement, including, without limitation, terms relating to mandatory
prepayments of principal (Section 2.2.3), the entire principal amount
outstanding under each Loan evidenced by this Note shall be due and payable on
the Maturity Date with respect to such Loan, with any and all unpaid and not
previously due and payable principal amounts under each such Loan being due and
payable on the Commitment Termination Date.
15. Interest Rate. The Borrower further promises to pay
interest on the sum of the daily unpaid principal balance of all Loans evidenced
by this Note outstanding on each day in lawful money of the United States of
America, from the Closing Date until all such principal amounts shall have been
repaid in full, which interest shall be payable at the rates per annum and on
the dates determined pursuant to the Credit Agreement.
16. Place Of Payment. All amounts payable hereunder shall be
payable to the Agent, on behalf of [_________________], at the office of First
Union National Bank of North Carolina, One First Union Center, 301 South College
Street, Charlotte, North Carolina 28288, Attention: Elisha Sabido, or such other
place of payment as may be specified by the Agent in writing.
17. Application Of Payments; Acceleration. Payments on this
Note shall be applied in the manner set forth in the Credit Agreement. The
Credit Agreement contains provisions for acceleration of the maturity of the
Loans upon the occurrence of certain stated events and also provides for
mandatory and optional prepayments of principal prior to the stated maturity on
the terms and conditions therein specified.
Each Advance made by [_________________] to the Borrower constituting
[_________________]'s Pro Rata Share of a Loan made to the Borrower pursuant to
the Credit Agreement shall be recorded by [_________________] on its books and
records. The failure of [_________________] to record any such Advance or any
repayment or prepayment made on account of the principal balance thereof shall
not limit or otherwise affect the obligation of the Borrower under this Note and
under the Credit Agreement to pay the principal, interest and other amounts due
and payable thereunder.
18. Default. The Borrower's failure to pay timely any of the
principal amount due under this Note or any accrued interest or other amounts
due under this Note on or within five (5) calendar days after the date the same
becomes due and payable shall constitute a default under this Note. Upon the
occurrence of a default hereunder or an Event of Default under the Credit
Agreement with respect to the Borrower, all unpaid principal, accrued interest
and other amounts owing hereunder shall, at the option of the Required Lenders,
be immediately collectible by the Lenders and the Agent pursuant to the Credit
Agreement and applicable law.
19. Waivers. The Borrower waives presentment and demand for
payment, notice of dishonor, protest and notice of protest of this Note, and
shall pay all costs of collection when incurred by or on behalf of the Lenders,
including, without limitation, reasonable attorneys' fees, costs and other
expenses as provided in the Credit Agreement.
20. Governing Law. This Note shall be governed by, and
construed and enforced in accordance with, the laws of the State of North
Carolina, excluding conflict of laws principles that would cause the application
of laws of any other jurisdiction.
21. Successors And Assigns. The provisions of this Note shall
inure to the benefit of and be binding on any successor to the Borrower and
shall extend to any holder hereof.
BORROWER [BORROWER]
By: PLM FINANCIAL SERVICES, INC.,
a Delaware corporation
its general partner/manager
By
J. Michael Allgood
Chief Financial Officer
EXHIBIT B
BORROWING BASE CERTIFICATE
[Insert Borrower's Name]
__________________, 199_
First Union National Bank of North Carolina, as Agent
One First Union Center
301 South College Street
Charlotte, NC 28288
Attention: Milton Anderson
Re: Second Amended and Restated Warehousing Credit Agreement dated as of
May 31, 1996, as amended by Amendment No. 1 to Second Amended and
Restated Warehousing Agreement dated as of November 5, 1996 (as the
same may from time to time be further amended, modified, supplemented
or restated, the "Credit Agreement"), by and among PLM Equipment Growth
Fund IV, a California limited partnership, PLM Equipment Growth Fund V,
a California limited partnership, PLM Equipment Growth Fund VI, a
California limited partnership, PLM Equipment Growth & Income Fund VII,
a California limited partnership, Professional Lease Management Income
Fund I, L.L.C., a Delaware limited partnership (any one individually, a
"Borrower," and collectively "Borrowers"), PLM Financial Services,
Inc., a Delaware corporation and the sole general partner or manager of
the Borrowers ("FSI"), First Union National Bank of North Carolina
("FUNB"), Fleet Bank, N.A. and each other lender whose name is set
forth on the signature pages to the Agreement or which may hereafter
execute and deliver an instrument of assignment pursuant to Section
11.10 of the Agreement (any one individually, a "Lender," and
collectively, "Lenders") and FUNB as Agent, on behalf of Lenders
Ladies and Gentlemen:
Reference is made to the Credit Agreement. The capitalized terms used in this
Borrowing Base Certificate and not defined herein have the same meaning as given
to them in the Credit Agreement.
Pursuant to Section 5.1.3 of the Credit Agreement, the undersigned Borrower
hereby certifies as follows:
22. The information furnished in Schedule 1 attached hereto
was true, accurate and complete as of the last day of the calendar month
immediately preceding the date of this Borrowing Base Certificate; provided,
however, that if such certificate is being delivered with respect to a requested
borrowing of a Loan under the Credit Agreement, then if expressly provided, so
stated in Schedule 1, such information shall be true, accurate and complete
through the requested Funding Date. The calculation of each item is subject to
the more detailed description thereof set forth in the Credit Agreement.
23. Except as disclosed in Schedule 2 attached hereto, the
representations and warranties set forth in Section 4 of the Credit Agreement
are true, accurate and complete as of the date hereof; provided, however, that
those representations and warranties expressly referring to another date shall
be deemed to be made as of such date; and
24. The Borrower does not have knowledge of the existence, as
of the date hereof, of any Event of Default or Potential Event of Default,
except for such conditions or events listed on Schedule 2 attached hereto and
incorporated herein by this reference, specifying the nature and period of
existence thereof and what action the Borrower has taken, is taking and proposes
to take with respect thereto.
IN WITNESS WHEREOF, this Borrowing Base Certificate is executed by the
undersigned this ____ day of , 199 .
[INSERT BORROWER NAME]
By: PLM FINANCIAL SERVICES, INC.,
a Delaware corporation,
its general partner/manager
By:
Printed Name:
Title:
Received by:
FIRST UNION NATIONAL BANK
OF NORTH CAROLINA,
in its capacity as Agent
under the Credit Agreement
By:
Printed Name:
Title:
Date:
SCHEDULE 1 TO
BORROWING BASE CERTIFICATE
Dated , 199
Calculated separately for each Borrower:
$----------
1. Fifty percent (50.0%) of the unrestricted cash available for
purchase of Eligible Inventory by Borrower
25. The lesser of Line 2(a)(vi) or Line 2(b)(vi): $__________
(a) (i) The aggregate net book value of all Eligible
Inventory $__________ (including the item(s) of Eligible
Inventory being financed with this Loan if this
certificate is supplied in connection with a Loan
request) owned of record by Borrower or a Marine
Subsidiary or of record by an Owner Trustee for the
beneficial interest of Borrower or any Marine Subsidiary
.1 The aggregate net book value of all Eligible Inventory listed $__________
in Line 2(a)(i) that is off-lease or that is subject to a Lease under
which any applicable lease or rental payment is more than ninety (90)
days past due
.2 Fifteen percent (15.0%) of Line 2(a)(i) $__________
.3 The amount, if any, by which Line 2(a)(ii) exceeds Line $__________
2(a)(iii)
.4 Line 2(a)(i) minus Line 2(a)(iv) $__________
.5 Seventy percent (70.0%) of Line 2(a)(v) $__________
or
2 (i) The aggregate net fair market value of all Eligible Inventory $__________
(including the item(s) of Eligible Inventory being financed with this
Loan if this certificate is supplied in connection with a Loan request)
owned of record by Borrower or a Marine Subsidiary or of record by an
Owner Trustee for the beneficial interest of Borrower or any Marine
Subsidiary
.1 The aggregate net fair market value of all Eligible Inventory $__________
listed in Line 2(b)(i) that is off-lease or that is subject to a Lease
under which any applicable lease or rental payment is more than ninety
(90) days past due
.2 Fifteen percent (15.0%) of Line 2(b)(i) $__________
.3 The amount, if any, by which Line 2(b)(ii) exceeds Line $__________
2(b)(iii)
.4 Line 2(b)(i) minus Line 2(a)(iv) $__________
.5 Fifty percent (50.0%) of Line 2(b)(v)
3. The aggregate Consolidated Funded Debt of Borrower excluding the $__________
principal amount of any Loans outstanding to Borrower under the Credit Agreement
4. Line 1 plus Line 2 minus Line 3 $__________
NOTE: Lines 1, 2 and 3 to be computed (a) with respect to any requested Loan,
as of the requested Funding Date, and (b) 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 under this Line 1, in the event that
Borrower or a Marine Subsidiary shall own less than one hundred percent
(100.0%) of the record or beneficial interests in any item of Eligible
Inventory, 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 or such Marine Subsidiary's, as the case may
be, ratable interest in such item of Eligible Inventory)
26. Aggregate amount outstanding under TEC AcquiSub Agreement and
the AFG $__________ Agreement
27. Aggregate amount outstanding under the Credit Agreement for
all $__________ Borrowers (include any amounts to be drawn or
proposed to be drawn by any other Borrower as of the date of this
certificate and not reflected as outstanding under the Credit
Agreement)
28. $50,000,000 less Line 5 plus 6 $__________
29. Lesser of (a) Line 4 and (b) Line 7 $__________
30. Lesser of Line 8 and $35,000,000 $__________
31. Amount request to be advanced (must not be greater than Line 9) $__________
SCHEDULE 2 TO
BORROWING BASE CERTIFICATE
Dated ________________, 199_
LIST OF EXCEPTIONS
Condition(s) or event(s) constituting an Event of Default or Potential Event of
Default:
Period of existence:
Remedial action with respect to such condition or event: