SECOND AMENDMENT TO
WAREHOUSING CREDIT AGREEMENT
THIS SECOND AMENDMENT TO WAREHOUSING CREDIT AGREEMENT (this "Amendment") is
made and entered into as of April 12, 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")
(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, 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, 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further modified, amended, supplemented, restated or superseded, the "Loan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) add EGF V as a
"Borrower" under the Loan Agreement, 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, EGF V, Lenders and Agent hereby agree as follows:
SECTION 1. ADDITION OF EGF V. Each of the Borrowers, the Lenders and the
Agent agrees to add EGF V as a "Borrower" under the Loan Agreement (as amended
hereby) and under the other Loan Documents. EGF V hereby agrees that it will be
bound by (and will comply with) all of the conditions, representations and
warranties, covenants, and obligations of a "Borrower" under the Loan Agreement
(as amended hereby) and the other Loan Documents, as though EGF V were a party
thereunder and a signatory thereto.
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. DEFINITION OF COMMITMENT TERMINATION DATE. The definition of
"Commitment Termination Date" set forth 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 July 11, 2002."
2.2 DEFINITION OF EQUIPMENT GROWTH FUNDS. The definition of "Equipment
Growth Funds" set forth in Section 1.1. of the Loan Agreement is deleted in its
entirety and the following is inserted in lieu thereof:
""EQUIPMENT GROWTH FUNDS" means any and all of EGF V, EGF VI, EGF VII
and Income Fund I."
2.3 NEW DEFINITION OF EGF V. The following definition is added to the
list of definitions set forth in Section 1.1 of the Loan Agreement, inserted in
its respective alphabetical sequence:
""EGF V" means PLM EQUIPMENT GROWTH FUND V, a California limited
partnership."
2.4 DEFINITION OF LIMITED PARTNERSHIP AGREEMENTS. The definition of
"Limited Partnership Agreements" set forth in Section 1.1. of the Loan Agreement
is amended to include the following clause (c) at the end thereof:
"(c) for EGF V, the [Amended and Restated Limited Partnership
Agreement dated as of December 20, 1991]."
2.5 DEFINITION OF LOAN PARTIES. The definition of "Loan Parties" set
forth in Section 1.1. of the Loan Agreement is deleted in its entirety and the
following is inserted in lieu thereof:
"LOAN PARTIES" means EGF V, EGF VI, EGF VII, Income Fund I, Acquisub,
any Marine Subsidiary, any Owner Trustee, FSI, TEC, IMI, and PLMI, and a "Loan
Party" means any one of the Loan Parties."
2.6 DEFINITION OF RESPONSIBLE OFFICER. Clause (ii) of the definition
of "Responsible Officer" set forth in Section 1.1. of the Loan Agreement is
deleted in its entirety and the following is inserted in lieu thereof:
"(ii) Borrowers, any of the President, Chief Executive Officer,
Executive Vice President, Chief Financial Officer, Secretary or Corporate
Controller of FSI as the sole general partner of EGF V, EGF VI or EGF VII, as
the case may be, or the sole manager of Income Fund I or Acquisub, as the case
may be, in each case having authority to request Advances or perform other
duties required hereunder,"
2.7 DEFINITION OF SECURITY AGREEMENTS. The definition of "Security
Agreements" set forth in Section 1.1. of the Loan Agreement is amended to
include the following clause (v) at the end thereof:
"(v) the Security Agreement between EGF V and Agent, on behalf and for
the benefit of the Lenders, providing for the grant of a first priority
perfected security interest in the Equipment being financed by EGF V under this
Facility and certain related Collateral, subject to no other Liens other than
Permitted Liens, substantially in the form of Exhibit N (except that any
references to EGF VI therein shall be deemed to be references to EGF V for the
purpose of this clause) (the "Security Agreement (EGF V)")."
2.8 DEFINITION OF SUBORDINATION AGREEMENTS. The definition of
"Subordination Agreements" set forth in Section 1.1. of the Loan Agreement is
amended to include the following clause (v) at the end thereof:
"(v) the Subordination Agreement among the Subordinated Lenders, EGF
V, and Agent, substantially in the form of Exhibit I-1 (except that any
references to EGF VI therein shall be deemed to be references to EGF V for the
purpose of this clause) (the "Subordination Agreement (EGF V)")."
SECTION 3. OTHER AMENDMENTS TO LOAN AGREEMENT.
3.1 SECTION 3.3.7 OF THE LOAN AGREEMENT. The words, "as the sole
general partner of EGF VI and EGF VII" appearing in the first sentence of
Section 3.3.7 of the Loan Agreement are deleted and the following words are
inserted in lieu thereof:
"as the sole general partner of EGF V, EGF VI and EGF VII"
3.2 SECTION 3.7 OF THE LOAN AGREEMENT. Section 3.7 of the Loan
Agreement is amended as follows:
(a). The words "sole general partner of any of EGF VI or EGF VII"
appearing in the first sentence of Section 3.7.1 are deleted and the following
words are inserted in lieu thereof:
"sole general partner of any of EGF V, EGF VI or EGF VII";
(b). Section 3.7 is renumbered as Section 3.8; and
(c). Each subsection of Section 3.7 is renumbered as Section
3.8.1, 3.8.2 and 3.8.3 respectively.
3.3 CONDITIONS TO EACH ADVANCE TO EGF V. The following is added as a
new Section 3.7 to the Loan Agreement:
"3.7 CONDITIONS TO EACH ADVANCE TO EGF V. Unless waived in writing by
Requisite Lenders, the obligation of any Lender to make any Advance to EGF V (or
any Marine Subsidiary or Owner Trustee of EGF V) (including the initial Advance
except that the closing condition described in Section 3.7.2 shall only apply to
subsequent Advances) is subject to the satisfaction of the following further
conditions precedent:
3.7.1 SECURITY AGREEMENT (EGF V). Agent shall have received the
Security Agreement (EGF V) in form and substance satisfactory to Lenders, duly
executed and delivered by EGF V and describing the Equipment being financed or
refinanced on the date of the initial Advance to EGF V.
3.7.2 SECURITY AGREEMENT SUPPLEMENT (EGF V). Agent shall have received
a supplement to Schedule A to the Security Agreement (EGF V) in form and
substance satisfactory to Lenders, duly executed and delivered by EGF V and
describing the Equipment being financed or refinanced on the date of each
subsequent Advance to EGF V.
3.7.3 FINANCING STATEMENTS, ETC. At least five (5) Business Days
before each Loan hereunder with respect to the financing or refinancing of
Equipment by EGF V (or any Marine Subsidiary or Owner Trustee of EGF V), (i)
there shall have been filed in all applicable jurisdictions Uniform Commercial
Code financing statements naming EGF V (or if applicable, a Marine Subsidiary or
Owner Trustee of EGF V) as "debtor" and the Agent as "secured party" (or Uniform
Commercial Code financing statement amendments, as applicable) (which financing
statements or financing statement amendments shall be in form and substance
acceptable to the Agent) to perfect the security interest of the Agent in such
Equipment and all related Collateral, (ii) there shall have been executed, filed
and/or recorded in all applicable jurisdictions such other instruments or
documents as the Agent deems necessary or advisable to perfect its security
interest in such Equipment and all related Collateral, including without
limitation, additional security agreements, ship mortgages and chattel
mortgages, and (iii) Agent shall have received such Lien and judgment searches,
opinions, releases, termination statements, and other documents and instruments
as Agent shall reasonably request to confirm that upon the consummation of such
financing or refinancing Agent shall have a first priority perfected security
interest in such Equipment and all related Collateral subject to no other Liens
other than Permitted Liens."
SECTION 4. CONDITIONS PRECEDENT. The legal effectiveness of this Amendment
is subject to the satisfaction of all of the following conditions precedent:
4.1 EXECUTED AMENDMENT. Agent shall have received this Amendment duly
executed and delivered by EGF V, FSI, and each Borrower, and the same shall have
become effective.
4.2 CORPORATE DOCUMENTS. Agent shall have received, in form and
substance satisfactory to Lenders and their respective counsel, the following:
(a) A certified copy of the records of all actions taken by EGF
V, including all resolutions of EGF V, authorizing or relating to the execution,
delivery and performance of this Amendment, the Loan Agreement and the other
Loan Documents and the consummation of the transactions contemplated hereby and
thereby;
(b) A certificate of a Responsible Officer of EGF V, stating that
(A) the limited partnership agreement, certificate of limited partnership and
any other formation documents of EGF V attached to such certificate are true and
accurate, remain in full force and effect and have not been amended since the
date thereof and (B) EGF V is in good standing under the laws of the state of
its formation and each other jurisdiction where its ownership of Property and
assets or conduct of business require such qualification;
(c) Certificates of incumbency and signature with respect to the
authorized representatives of EGF V executing this Amendment and requesting
Loans;
(d) Such other documents relating to each Loan Party as Lenders
may reasonably request;
4.3 NOTES. Agent shall have received Notes, payable to each Lender, in
form and substance satisfactory to Lenders, duly executed and delivered by EGF
V;
4.4 SUBORDINATION AGREEMENT. Agent shall have received the
Subordination Agreement (EGF V), in form and substance satisfactory to Lenders,
duly executed and delivered by each Subordinated Lender and EGF V;
4.5 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 of PLMI delivered to Agent, as determined by
Agent in its sole discretion; and
4.6 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 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 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). EGF V severally, as to itself,
but not jointly as to the Borrowers and FSI, hereby warrants and represents to
Agent and each Lender that each representation and warranty of a "Borrower" made
in the Loan Documents, including without limitation, each representation and
warranty set forth in Section 4.1 of the Loan Agreement is hereby incorporated
herein by this reference as though such representation and warranty had been
fully set forth herein, is true and complete in all material respects as of the
date hereof after giving effect to this Amendment (except to the extent such
representations and warranties specifically relate to another date), and agrees
that each of said warranty and representation shall be deemed to continue until
full, complete and indefeasible payment and performance of the Obligations and
shall apply anew to each borrowing under the Loan Agreement. Each of Borrower,
EGF V, 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, EGF
V or FSI, as applicable.
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 or the
extension of credit by the Lenders to the Borrowers and EGF V 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.
WITNESS the due execution hereof by the respective duly authorized officers
of the undersigned as of the date first written above.
EGF V: PLM EQUIPMENT GROWTH FUND V
BY PLM FINANCIAL SERVICES, INC.,
ITS GENERAL PARTNER
By
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Xxxxxxx X. Xxxx
President and Chief Executive Officer
BORROWERS: PLM EQUIPMENT GROWTH FUND VI
BY PLM FINANCIAL SERVICES, INC.,
ITS GENERAL PARTNER
By
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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
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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
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Xxxxxx Xxxx
Vice President
PFF BANK & TRUST
By
-----------------------------------------------------
Printed Name: Xxxxx Xxxxx
Title: Vice President
AGENT: COMERICA BANK-CALIFORNIA,
successor by merger to Imperial Bank
By
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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 and EGF V under the Loan
Agreement, as amended pursuant to this Amendment. Without limiting the
foregoing, each of the undersigned agrees that all references to a "Borrower" or
"Borrowers" in the Guaranty shall include EGF V.
Executed as of April 12, 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
