AMENDMENT NO. 1
TO FOURTH AMENDED AND RESTATED
WAREHOUSING CREDIT AGREEMENT
(Growth Funds)
THIS AMENDMENT NO. 1 TO FOURTH AMENDED AND RESTATED WAREHOUSING CREDIT AGREEMENT
dated as of December 10, 1999 (the "Amendment"), is entered into 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"), and PROFESSIONAL LEASE MANAGEMENT INCOME FUND I, L.L.C., a Delaware
limited liability company ("Income Fund I") (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 V, EGF VI and EGF VII, and the sole manager, in the
case of Income Fund I ("FSI"), the banks, financial institutions and
institutional lenders from time to time party hereto and defined as Lenders
herein and FIRST UNION NATIONAL BANK 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.
RECITALS
A. Borrowers, Lenders and Agent entered into that Fourth Amended and
Restated Warehousing Credit Agreement dated as of December 15, 1998 (the "Credit
Agreement"), pursuant to which Lenders have agreed to extend and make available
to Borrowers certain advances of money.
B. Borrowers desire to amend the Credit Agreement to extend the
Commitment Termination Date to June 30, 2000.
C. 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:
Section 1. Amendments to Credit Agreement.
1.1 Commitment Termination Date. The definition of
"Commitment Termination Date" set forth in Section 1.1 of the Credit Agreement
is deleted in its entirety and is replaced with the following:
"Commitment Termination Date" means June 30, 2000.
1.2 Cash Balances. Section 7.3 of the Credit
Agreement is deleted in its entirety and is replaced with the following:
7.3 CASH BALANCES. The Equipment Growth Funds of which FSI is
the sole general partner shall maintain aggregate unrestricted cash
balances of $8,500,000.
SECTION 2. LIMITATIONS ON AMENDMENTS
(a) 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.
(b) 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 amended, are hereby ratified and confirmed and shall
remain in full force and effect.
SECTION 3. REPRESENTATIONS AND WARRANTIES. In order to induce Lenders
and Agent to enter into this Amendment, each Borrower severally as to itself,
but not jointly as to the other Borrowers and FSI, and FSI jointly and severally
with each Borrower and as to itself 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 which shall be
true as of such different date) are true, accurate and complete in all material
respects as of the date hereof and (ii) no Event of Default, or event which
constitutes a Potential Event of Default, has occurred and is continuing;
(b) each Borrower and FSI has the 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 respective LP-1s, certificates of formation
and certificates of incorporation and the respective agreements of limited
partnership, operating agreements and bylaws delivered by Borrowers and FSI to
each Lender in connection with the closing of the Credit Agreement or, if
earlier, the Third Amended and Restated Warehousing Credit Agreement dated as of
December 2, 1997 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 Borrowers and FSI
of this Amendment and the performance by Borrowers and FSI of its 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 Borrowers and FSI;
(e) The execution and delivery by each Borrower and
FSI of this Amendment and the performance by each Borrower and FSI of its
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 or
FSI, (ii) the organizational documents of such Borrower or FSI, (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 FSI or (iv) any
contractual restriction binding on or affecting such Borrower or FSI;
(f) The execution and delivery by each Borrower and
FSI of this Amendment and the performance by each Borrower and FSI of its
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 each Borrower and FSI, except as
already has been obtained or made; and
(g) This Amendment has been duly executed and
delivered by each Borrower and FSI and is the binding Obligation of each
Borrower and FSI, 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.
SECTION 4. REAFFIRMATION. Each Borrower and FSI hereby reaffirms its
Obligations under each Loan Document to which it is a party.
SECTION 5. 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 each Borrower, FSI and each Lender to
Agent;
(b) The execution and delivery by PLMI to Agent of
the Acknowledgment of Amendment and Reaffirmation of Guaranty attached to this
Amendment; and
(c) The receipt by Agent of a certificate of the
secretary of FSI for itself and as the sole general partner or manager, as
applicable of each Borrower, with incumbency signatures, attaching copies,
certified to be true and correct, of (i) the current organizational documents of
each Borrower and FSI (which certificate may instead refer to and incorporate by
reference to such documents as previously delivered to Agent under an identified
prior certificate of the secretary of Borrower) and certifying that such
organizational documents have not been further amended and remain in full force
and effect, and (ii) resolutions of the board of directors of FSI approving this
Amendment.
SECTION 6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
CALIFORNIA.
SECTION 7. CLAIMS, COUNTERCLAIMS, DEFENSES, RIGHTS OF SET-OFF. EACH
BORROWER AND FSI 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.
SECTION 8. 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.
BORROWER PLM EQUIPMENT GROWTH FUND VI
BY PLM FINANCIAL SERVICES, INC.,
ITS GENERAL PARTNER
By: /s/Xxxxxxx X Xxxxx
Title: Acting CFO, Vice President and
CORPORATE CONTROLLER
PLM EQUIPMENT GROWTH & INCOME FUND VII
BY PLM FINANCIAL SERVICES, INC.,
ITS GENERAL PARTNER
By: /s/Xxxxxxx X Xxxxx
Title: Acting CFO, Vice President and
Corporate Controller
PROFESSIONAL LEASE MANAGEMENT INCOME FUND I,
L.L.C.
BY PLM FINANCIAL SERVICES, INC.,
ITS MANAGER
By: /s/Xxxxxxx X Xxxxx
Title: Acting CFO, Vice President and Corporate
Controller
FSI PLM FINANCIAL SERVICES, INC.
By: /s/Xxxxxxx X Xxxxx
Title: Acting CFO, Vice President and Corporate
Controller
LENDERS FIRST UNION NATIONAL BANK
By: /s/Xxxx X. Xxxxxxx
Title: Senior Vice President
AGENT FIRST UNION NATIONAL BANK
By: /s/Xxxx X. Xxxxxxx
Title: Senior Vice President
