THIRD AMENDMENT TO
WAREHOUSING CREDIT AGREEMENT
THIS THIRD AMENDMENT TO WAREHOUSING CREDIT AGREEMENT (this "Amendment") is
made and entered into as of July 11, 2002, by and among 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"), PROFESSIONAL LEASE
MANAGEMENT INCOME FUND I, L.L.C., a Delaware limited liability company ("Income
Fund I"), and ACQUISUB, LLC, a Delaware limited liability company ("Acquisub")
(EGV V, EGF VI, EGF VII, Income Fund I, and Acquisub 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 V, EGF VI and EGF VII, and the sole manager, in the
case of Income Fund I and Acquisub ("FSI"), the banks, financial institutions
and institutional lenders from time to time party to the Loan Agreement (defined
below) and defined as Lenders therein ("Lenders"), and COMERICA BANK-CALIFORNIA
("Bank"), successor by merger to IMPERIAL BANK not in its individual capacity,
but solely as agent (in such capacity, the "Agent").
RECITALS
A. Borrowers requested and the Lenders agreed to extend and make loans
available to Borrowers upon the terms and conditions contained in that certain
Warehousing Credit Agreement dated as of April 13, 2001, by and among the
Borrowers (other than EGF V), FSI, Agent, and the Lenders, as amended by that
First Amendment to Warehousing Credit Agreement, dated as of December 21, 2001,
by and among the Borrowers (other than EGF V), FSI, Agent and the Lenders and
that Second Amendment to Warehousing Credit Agreement, dated as of April 12,
2002, by and among the Borrowers, FSI, Agent and the Lenders (as the same may
from time to time be further modified, amended, supplemented, restated or
superseded, the "Loan Agreement"). Initially capitalized terms not defined
herein shall have the meanings assigned to such terms in the Loan Agreement.
B. Borrowers and FSI have requested the Lenders to amend the Loan
Agreement to (i) extend the Commitment Termination Date, and (ii) amend the
Operating Cash Flow Coverage Ratio covenant, and the Lenders are willing to do
so on the terms and conditions set forth herein and in reliance on the
representations and warranties set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
covenants herein set forth and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and intending to be
legally bound, and to induce Agent and the Lenders to enter into this Amendment,
Borrowers, FSI, Lenders and Agent hereby agree as follows:
SECTION 1. AMENDMENT TO DEFINITIONS.
1.1 AMENDMENT TO DEFINITION OF "COMMITMENT TERMINATION
DATE." The definition of "Commitment Termination Date" contained in Section 1.1.
of the Loan Agreement is deleted in its entirety and the following is inserted
in lieu thereof:
"COMMITMENT TERMINATION DATE" means June 30, 2003.
1.2 AMENDMENT TO DEFINITION OF "OPERATING CASH FLOW COVERAGE
RATIO." The definition of "Operating Cash Flow Coverage Ratio" contained in
Section 1.1 of the Loan Agreement is deleted in its entirety and the following
is inserted in lieu thereof:
"OPERATING CASH FLOW COVERAGE RATIO" means, as measured separately for
each Equipment Growth Fund as at any date of determination, the ratio of (a)
Consolidated EBIDA of such Equipment Growth Fund adjusted for gains or losses on
the sale of Equipment in the ordinary course of business to the extent not
already taken into account in the determination of Consolidated EBIDA to (b) the
sum of (i) the aggregate amount of principal payments due on Consolidated Funded
Debt of such Equipment Growth Fund (excluding the Loans) during the four
consecutive fiscal quarters immediately succeeding such date plus (ii)
Consolidated Interest Expense of such Equipment Growth Fund plus (iii)
twenty-five percent (25%) of the aggregate principal amount of the Loans
outstanding for such Equipment Growth Fund on such date (excluding principal
amounts of Loans outstanding for ninety (90) days or less). Consolidated EBIDA
and Consolidated Interest Expense to be measured for the four consecutive fiscal
quarters then ended on such date.
1.3 AMENDMENT TO DEFINITION OF "CONSOLIDATED EBIDA." The
definition of "Consolidated EBIDA" contained in Section 1.1 of the Loan
Agreement is deleted in its entirety and the following is inserted in lieu
thereof:
"CONSOLIDATED EBIDA" means, for any Equipment Growth Fund, as measured
as at any date of determination for any period on a consolidated basis, the sum
of (a) the Consolidated Net Income of such Equipment Growth Fund, plus (b) all
amounts treated as expenses for depreciation and the amortization of intangibles
of any kind, plus (c) Consolidated Interest Expense, plus (d) non-liquidating
cash distributions received from USPE's, and in the cases of clauses (b) and (c)
above, each to the extent included in the determination of Consolidated Net
Income.
SECTION 2. AMENDMENTS TO FINANCIAL COVENANTS.
2.1 AMENDMENT TO MINIMUM OPERATING CASH FLOW COVERAGE
RATIO. Section 7.1 of the Loan Agreement is deleted in its entirety and the
following is inserted in lieu thereof:
Each Equipment Growth Fund shall maintain an Operating Cash Flow
Coverage Ratio of not less than 1.25:1.00.
2.2 FUNDED DEBT RATIO COVENANT. The following paragraph is
inserted immediately following Section 7.4 of the Loan Agreement:
AcquiSub covenants and agrees that, so long as the Commitments
hereunder shall be available, and until full, complete and indefeasible payment
and performance of the Obligations, including without limitation, all Loans
evidenced by the Notes, unless Requisite Lenders shall otherwise consent in
writing, AcquiSub shall cause PLMI to maintain a Funded Debt Ratio of not
greater than 1.0:1.0, all in accordance with the PLMI Letter.
SECTION 3. CONDITIONS PRECEDENT. The legal effectiveness of this
Amendment is subject to the satisfaction of all of the following conditions
precedent:
3.1 EXECUTED AMENDMENT. Agent shall have received this Amendment
duly executed and delivered by FSI and each Borrower, and the same shall have
become effective.
3.2 MATERIAL ADVERSE EFFECT. No event that has resulted or could
result in a Material Adverse Effect shall have occurred since the date of the
most recent financial statements delivered to Agent pursuant to Section 5.1 of
the Loan Agreement, as determined by Agent in its sole discretion; and
3.3 PAYMENT OF FEES. Agent shall have received reimbursement from
Borrowers of its costs and expenses incurred (including, without limitation, its
attorneys' fees and expenses) in connection with this Amendment and the
transactions contemplated hereby.
SECTION 4. LIMITED AMENDMENT. Each of the amendments set forth in this
Amendment shall be limited precisely as written and shall not be deemed (a) to
be an amendment of any other term or condition of the Loan Agreement or the
other Loan Documents, to prejudice any right or remedy which Agent or any Lender
may now have or may have in the future under or in connection with the Loan
Agreement or the other Loan Documents or (b) to be a consent to any future
amendment.
SECTION 5. REPRESENTATIONS AND WARRANTIES. Each of Borrower and FSI
represents and warrants that its respective representations and warranties made
in the Loan Documents continue to be true and complete in all material respects
as of the date hereof after giving effect to this Amendment (except to the
extent such specifically relate to another date). Each of Borrower and FSI
further represents and warrants that the execution, delivery and performance of
this Amendment are duly authorized, do not require the consent or approval of
any governmental body or regulatory authority and are not in contravention of or
in conflict with any material law or regulation or any term or provision of any
other material agreement entered into by such Borrower or FSI, as applicable.
SECTION 6. GOVERNING LAW. Except as otherwise expressly provided in any
of the Loan Documents, in all respects, including all matters of construction,
validity and performance, this Amendment shall be governed by, and construed and
enforced in accordance with, the laws of the State of California applicable to
contracts made and performed in such state, without regard to the principles
thereof regarding conflict of laws, and any applicable laws of the United States
of America.
SECTION 7. FULL FORCE AND EFFECT; ENTIRE AGREEMENT. Except to the
extent
expressly provided in this Amendment, the terms and conditions of the Loan
Agreement and the other Loan Documents shall remain in full force and effect.
This Amendment and the other Loan Documents constitute and contain the entire
agreement of the parties hereto and supersede any and all prior agreements,
negotiations, correspondence, understandings and communications between the
parties, whether written or oral, respecting the subject matter hereof or the
extension of credit by the Lenders to the Borrowers and/or their affiliates.
SECTION 8. COUNTERPARTS. This Amendment may be executed in any number
of counterparts, and by different parties hereto in separate counterparts, each
of which when so executed and delivered shall be deemed an original, but all
such counterparts together shall constitute but one and the same instrument.
WITNESS the due execution hereof by the respective duly authorized officers
of the undersigned as of the date first written above.
BORROWERS: PLM EQUIPMENT GROWTH FUND V
BY PLM FINANCIAL SERVICES, INC.,
ITS GENERAL PARTNER
By ______________________________
Xxxxxxx X. Xxxx
President and Chief Executive Officer
PLM EQUIPMENT GROWTH FUND VI
BY PLM FINANCIAL SERVICES, INC.,
ITS GENERAL PARTNER
By ______________________________
Xxxxxxx X. Xxxx
President and Chief Executive Officer
PLM EQUIPMENT GROWTH & INCOME
FUND VII
BY PLM FINANCIAL SERVICES, INC.,
ITS GENERAL PARTNER
By _______________________________
Xxxxxxx X. Xxxx
President and Chief Executive Officer
PROFESSIONAL LEASE
MANAGEMENT INCOME FUND I, L.L.C.
BY PLM FINANCIAL SERVICES, INC.,
ITS MANAGER
By ________________________________
Xxxxxxx X. Xxxx
President and Chief Executive Officer
ACQUISUB, LLC
BY PLM FINANCIAL SERVICES, INC.
ITS MANAGER
By _______________________________
Xxxxxxx X. Xxxx
President and Chief Executive Officer
FSI: PLM FINANCIAL SERVICES, INC.
By _______________________________
Xxxxxxx X. Xxxx
President and Chief Executive Officer
LENDERS: COMERICA BANK-CALIFORNIA,
successor by merger to Imperial Bank
By ________________________________
Xxxxxx Xxxx
Vice President
PFF BANK & TRUST
By ________________________________
Xxxxx Xxxxx
Vice President
AGENT: COMERICA BANK-CALIFORNIA,
successor by merger to Imperial Bank
By ________________________________
Xxxxxx Xxxx
Vice President
The undersigned Guarantors under the Multiparty Guaranty dated as of April 13,
2001 (the "Guaranty") hereby consent to the terms of the foregoing amendment and
acknowledge that the Guaranty remains fully effective in accordance with its
terms with respect to the obligations of the Borrowers under the Loan Agreement,
as amended pursuant to this Amendment.
Executed as of July 11, 2002.
PLM INTERNATIONAL, INC.
By ___________________________
Xxxxxxx X. Xxxx
President and Chief Executive Officer
PLM FINANCIAL SERVICES, INC.
By ___________________________
Xxxxxxx X. Xxxx
President and Chief Executive Officer
PLM TRANSPORTATION EQUIPMENT
CORPORATION
By ___________________________
Xxxxxxx X. Xxxx
President and Chief Executive Officer
