FIRST AMENDMENT TO
WAREHOUSING CREDIT AGREEMENT
THIS FIRST AMENDMENT TO WAREHOUSING CREDIT AGREEMENT ("Amendment") is made
and entered into as of December 21, 2001, by and among 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")
(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 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 party
hereto and defined as Lenders in the Loan Agreement (as defined below), 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, FSI, Imperial Bank, as agent for the lenders party thereto
("Lenders"), and the Lenders (as the same may from time to time be further
modified, amended, supplemented, restated or superseded, the "Loan Agreement").
B. Imperial Bank and Bank have entered into an agreement to merge whereby
Bank has acquired substantially all of the assets of Imperial Bank, Imperial
Bank has assigned substantially all its rights, including all of its rights
under the Loan Agreement, to Bank, and Bank has assumed substantially all of the
obligations of Imperial Bank, including all of Imperial Bank's obligations under
the Loan Agreement.
C. Borrowers have requested that the Lenders amend the Loan Agreement, and
the Lenders are willing to do so on the terms and conditions set forth herein
and in reliance of 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 and Agent hereby agree as follows:
Section 1. Definitions. Unless otherwise defined herein, all terms defined
in the Loan Agreement have the same meaning when used herein.
Section 2. Amendments to Section 1.1. of the Loan Agreement. Section 1.1.
of the Loan Agreement is hereby amended as follows:
2.1. The definition of "Change of Control" set forth on Section 1.1.
of the Loan Agreement is deleted in its entirety and the following is inserted
in lieu thereof:
""Change of Control" means: (i) the failure after December 21, 2001 of
Xxxx Xxxxx or Xxx Xxxxx, directly or indirectly, through one or more
intermediaries, to own, whether beneficially or as a trustee, guardian or other
fiduciary, fifty-one percent (51%) or more of (x) the stock having ordinary
voting power in the election of directors or (y) the ownership interests of
either FSI, TEC, Acquisub, IMI or an Affiliate of IMI, in its capacity as
equipment manager for any of the Equipment Growth Funds (the "Equipment
Manager"), or any Owner Trustee, or (ii) the failure after December 21, 2001 of
Xxxx Xxxxx or Xxx Xxxxx, directly or indirectly, through one or more
intermediaries, to control FSI, TEC, Acquisub, the Equipment Manager, or any
Owner Trustee. For purposes of this definition, "control" of FSI, TEC, Acquisub,
the Equipment Manager, or any Owner Trustee shall mean the possession, directly
or indirectly, of the power to direct or cause the direction of its management
or policies, whether through the ownership of voting securities, by contract or
otherwise."
2.2 The definition of "Continuing Director" set forth on Section 1.1.
of the Loan Agreement is deleted in its entirety.
2.3 The following definition is added to the list of definitions set
forth on Section 1.1. of Loan Agreement, inserted in its respective alphabetical
sequence:
"Credit Agreement" means that certain Credit Agreement, dated as of
December 21, 2001, by and among EGF VI, Comerica Bank-California, as agent, and
the banks, financial institutions and institutional lenders from time to time
party thereto, as the same may from time to time be further modified, amended,
supplemented, restated or superseded."
Section 3. Other Amendments to the Loan Agreement.
3.1 Schedule A. Schedule A of the Loan Agreement is deleted in its
entirety and Schedule A hereto is incorporated in the Loan Agreement as Schedule
A thereto.
3.2 Section 6.1. The following is inserted in Section 6.1 of the Loan
Agreement as a new section, Section 6.1.6, thereto:
"6.1.6 Liens granted by EGF VI in favor of Comerica Bank-California,
as agent on behalf of Lenders (as defined in the Credit Agreement) pursuant to
the Security Documents (as defined in the Credit Agreement)."
3.3 Section 6.3. The following is inserted in Section 6.3 of the Loan
Agreement as a new section, Section 6.3.8, thereto:
"6.3.8 Indebtedness incurred by EGF VI pursuant to the Credit
Agreement."
3.4 Section 6.9. Section 6.9 of the Loan Agreement is deleted in its
entirety and the following is inserted in lieu thereof:
"6.9 No Investment. No Borrower shall make or suffer to exist, or
permit or suffer any of its Marine Subsidiaries to make or suffer to exist, any
Investment except as permitted by Section 6.8, the sharing arrangements with
respect to Equipment which are shared with Equipment Growth Funds, and equipment
owned jointly with USPE's; provided, however, that EGF VI may make equity
investments in its USPE's in an aggregate amount not to exceed $6,000,000."
3.5 Section 8.1.11. Section 8.1.11 of the Loan Agreement is deleted in
its entirety and the following is inserted in lieu thereof:
"8.1.11 Change Of General Partner; Equipment Manager. Either (a) FSI
shall cease to be the sole general partner or sole manager of such Borrower, as
applicable, 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; or (b)
IMI or any Affiliate of IMI shall cease to be the equipment manager of such
Borrower (in the case of the Equipment Growth Funds); or"
3.6 Section 8.1.12. Section 8.1.12 of the Loan Agreement is deleted in
its entirety and the following is inserted in lieu thereof:
"8.1.12 Change of Control. There occurs any Change of Control; or"
Section 4. Comerica Bank-California, successor by merger to Imperial Bank.
Each Loan Document is hereby amended so that all references to Imperial Bank
therein shall be references to Comerica Bank-California, successor by merger to
Imperial Bank.
Section 5. 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 6. Representations And Warranties. Each Borrower 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 or as specifically described on Schedule B
attached hereto and incorporated herein by this reference) and 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.
Section 7. 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 8. 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. The
parties hereto further agree that the Loan Documents comprise the entire
agreement of the parties thereto and supersede any and all prior agreements,
negotiations, correspondence, understandings and other communications between
the parties thereto, whether written or oral respecting the extension of credit
by the Lenders to the Borrowers and/or their affiliates.
Section 9. 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. Each
such agreement shall become effective upon the execution of a counterpart hereof
or thereof by each of the parties hereto or thereto, delivery of each such
counterpart to Agent.
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 VI
BY PLM FINANCIAL SERVICES, INC.,
ITS GENERAL PARTNER
By /s/Xxxxxxx X. Xxxx
-----------------------------------------------------
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 /s/Xxxxxxx X. Xxxx
-----------------------------------------------------
Xxxxxxx X. Xxxx
President and Chief Executive Officer
PLM EQUIPMENT GROWTH & INCOME FUND VII
BY PLM FINANCIAL SERVICES, INC.,
ITS GENERAL PARTNER
By /s/Xxxxxxx X. Xxxx
-----------------------------------------------------
Xxxxxxx X. Xxxx
President and Chief Executive Officer
ACQUISUB, LLC
BY PLM FINANCIAL SERVICES, INC.
ITS MANAGER
By /s/Xxxxxxx X. Xxxx
-----------------------------------------------------
Xxxxxxx X. Xxxx
President and Chief Executive Officer
FSI: PLM FINANCIAL SERVICES, INC.
By /s/Xxxxxxx X. Xxxx
-----------------------------------------------------
Xxxxxxx X. Xxxx
President and Chief Executive Officer
AGENT: COMERICA BANK-CALIFORNIA,
successor by merger to Imperial Bank
By /s/Xxxxxx Xxxx
-----------------------------------------------------
Xxxxxx Xxxx
Vice President
LENDERS: COMERICA BANK-CALIFORNIA,
successor by merger to Imperial Bank
By /s/Xxxxxx Xxxx
-----------------------------------------------------
Xxxxxx Xxxx
Vice President
PFF BANK & TRUST
By /s/Xxxxx Xxxxx
-----------------------------------------------------
Printed Name: Xxxxx Xxxxx
Title: Vice President
SCHEDULE A
(COMMITMENTS)
Pro Rata
Lender Commitment Share
Imperial Bank $5,000,000 50%
PFF Bank & Trust $ 5,000,000 50%
SCHEDULE B
SCHEDULE OF EXCEPTIONS
TO REPRESENTATIONS AND WARRANTIES
("None")
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 the date first above written
PLM INTERNATIONAL, INC.
By:___/s/Xxxxxxx X. Bess_____________
Xxxxxxx X. Xxxx
President and Chief Executive Officer
PLM FINANCIAL SERVICES, INC.
By:__/s/Xxxxxxx X. Bess_____________
Xxxxxxx X. Xxxx
President and Chief Executive Officer
PLM TRANSPORTATION EQUIPMENT CORPORATION
By:__/s/Xxxxxxx X. Bess______________
Xxxxxxx X. Xxxx
President and Chief Executive Officer
