AMENDMENT No. 5 TO NOTE AGREEMENT
(June 28, 1996)
This Amendment No. 5 to Note Agreement ("Amendment") is entered into
effective as of June 28, 1996 by PLM International, Inc. (the "Company") and
each of the other parties signing this Amendment on the signature page hereof
(the "Purchasers").
Recitals
The Company and SunAmerica Life Insurance Company (formerly named Sun
Life Insurance of America), American Life and Casualty Insurance Company,
Xxxxxxxxx Xxxxxxxx Life Insurance Company of America and Republic Western
Insurance Company have previously entered into that Note Agreement dated June
30, 1994 (the "Note Agreement"). Any capitalized term used but not defined
herein shall have the meaning ascribed to such term in the Note Agreement.
The Company desires to amend the Note Agreement in accordance with the
terms of this Amendment. The Purchasers executing this Amendment constitute the
Required Noteholders necessary to approve this Amendment.
NOW, THEREFORE, in and for the mutual convenants and agreements set
forth herein and other good and valuable consideration, the Note Agreement is
amended as follows:
1. The definition of "Funded Debt" in Section 1.3 is amended
by deleting clause (ii) therein and substituting in lieu thereof the
following:
"(ii) Non-Recourse Secured Debt,"
2. Section 1.3 is amended by adding the following definitions:
"Equipment Assets" means any item of Equipment and
any other item of tangible personal property acquired by the
Company or any Subsidiary for the purpose of lease or sale in
connection with the business of the Company or such
Subsidiary.
"Portfolio Assets" means a portfolio, group or
collection of Equipment Assets.
"Non-Recourse Secured Debt" means Debt with respect
to which (i) none of the Company or any Subsidiary has or will
have under any circumstances (except fraud in the making), any
personal or recourse liability for the repayment of such Debt
(either directly as the primary obligor indirectly as a
guarantor) and (b) the proceeds of such Debt are used to pay
the acquisition price for Equipment Assets and the repayment
thereof is secured by a Security Lien on Equipment Assets so
acquired and the proceeds of such Equipment Assets.
3. Section 6.16 is amended by deleting subsection (a) thereof
in its entirety.
4. Section 6.17 is amended by deleting subsection (g) thereof
in its entirety and replacing the same with the new subsection (g) set
forth below, by deleting the word "and" at the end of paragraph (g)
thereof, by replacing the period at the end of paragraph (h) thereof
with "; and,", and by adding new subsection (i) set forth below:
"(g) Liens securing Non-Recourse Secured Debt (which
Liens shall encumber only the Equipment Assets acquired with
such Non-Recourse Debt and the proceeds of such assets);"
"(i) Liens on the assets and stock of FSI and IMI and
securing the Debt owed by FSI and IMI (which Debt is
guaranteed by the Company and FSI) under that certain Note
Agreement dated June 28, 1996 up to $27,000,000 floating rate
senior secured notes due August 15, 2002 entered into by the
Company, FSI, IMI and SunAmerica Life Insurance Company and/or
one or more of its affiliates or designees as the Purchasers
thereunder (the "New Facility")."
5. Section 6.21 is amended by adding the word "Assets" after
the word "Equipment contained in subjection (f) thereof, by deleting
subsection (j) thereof in its entirety and replacing the same with new
subsection (j), by deleting the word "and" after subsection (m)
thereof, by replacing the period at the end of subsection (n) thereof
with a semicolon, and by adding the following as new subsections (o)
and (p):
"(j) Investments by FSI or TEC in any limited
partnership of which FSI or TEC is the general partner or in
any limited liability company of which FSI or TEC is manager;
provided that (i) without limiting the other provisions of
this Section 6, all Debt of such Person shall be Non-Recourse
to the Company and its Subsidiaries except FSI or TEC, as
applicable, and (ii) such Person shall be engaged in a
business reasonably similar to any of the businesses engaged
in by the Company and its Subsidiaries as of the date of this
Agreement;"
"(o) Investments by the Company consisting of the
acquisition of the Voting Stock or all or substantially all
the assets of Persons engaged in businesses similar to the
business of the Company; and"
"(p) Investments by the Company consisting of the
acquisition of Portfolio Assets."
6. Section 6.25(a) is generally amended to permit the
prepayment of any Approved Subordinated Debt through the use of funds
received by FSI and IMI under the New Facility and subsequently loaned
to the Company by FSI and IMI; provided, no such payment shall be made
if, as of the date of such payment, any Event of Default or Default
shall have occurred and be continuing or if, immediately after giving
effect to such payment, any Event of Default or Default would have
occurred. Section 6.21(e) is generally amended to not require the
subordination of loans made by FSI and IMI to the Company from funds
received by FSI and IMI under the New Facility.
FURTHER, IT IS AGREED (i) the Company's decision to terminate
syndication activities shall not cause a Material Adverse Effect pursuant to
Section 5.1(i) of the Agreement and (ii) the termination of the ESOP shall not
constitute an Event of Default pursuant to Section 5.1(k) of the Agreement.
EXECUTED as of the date first above written.
PLM INTERNATIONAL, INC.
By: _____________________________________
SUNAMERICA LIFE INSURANCE COMPANY
By: _____________________________________
XXXXXXXXX XXXXXXXX LIFE INSURANCE
COMPANY OF AMERICA
By: _____________________________________
REPUBLIC WESTERN INSURANCE COMPANY
By: _____________________________________
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