EXHIBIT 10.70
THIRD AMENDMENT TO LOAN AND SECURITY AGREEMENT
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This Third Amendment to Loan and Security Agreement ("Amendment") entered
into as of November 25, 1998, by and among CAPITAL ASSOCIATES, INC. and CAPITAL
ASSOCIATES INTERNATIONAL, INC. (each a Borrower and collectively "Borrowers"),
FIRST UNION NATIONAL BANK, SUCCESSOR BY MERGER TO CORESTATES BANK, N.A., a
national banking corporation, in its capacity as agent ("Agent") and as lender
and Issuing Bank and each of the lenders listed on the signature pages hereof
and Schedule A attached to the Loan Agreement, in their capacity as lenders
(singly, each is a "Lender" and collectively, all are "Lenders").
BACKGROUND
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A. On or about November 26, 1997, Borrowers, Agent and Lenders entered into
a certain Loan and Security Agreement, as amended by that certain First
Amendment to Loan and Security Agreement dated as of April 7, 1998 and that
certain Second Amendment to Loan and Security Agreement dated as of May 29, 1998
(collectively, the "Loan Agreement"), pursuant to which Lenders agreed to make
advances to Borrowers up to a maximum aggregate amount of $60,000,000, evidenced
by Borrowers' delivery of certain Notes to Lenders.
B. The Current Term is set to expire on November 25, 1998. Borrowers have
requested that the Current Term be extended through December 24, 1998, and Agent
and Lenders have agreed to do so subject to the terms hereof.
C. All capitalized terms not otherwise defined herein shall have the
meanings ascribed to them in the Loan Agreement.
NOW, THEREFORE, with the foregoing background incorporated by reference,
the parties hereto, intending to be legally bound, hereby agree as follows:
1. EXTENSION OF TERM: The Current Term of the Credit Facility is hereby
extended from November 25, 1998 through December 24, 1998, after which date no
further Loans will be made unless the Current Term is further extended, in the
Lenders' sole discretion.
2. BORROWER'S RATIFICATION: Borrowers agree that they have no defense or
set-offs against the Agent or Lenders, their respective officers, directors,
employees, agents or attorneys with respect to the Revolving Credit Notes, the
Loan Agreement or related instruments, agreements or documents, all of which,
except as expressly modified herein, remain in full force and effect. Borrowers
hereby ratify and confirm their Obligations under the Revolving Credit Notes,
the Loan Agreement and related instruments, agreements and documents and agree
that the execution and delivery of this Amendment does not in any way diminish
or invalidate any of their Obligations thereunder.
3. REAFFIRMATION OF SURETIES: Each Surety, parties to a certain Surety
Agreement dated as of November 26, 1997 in favor of Agent for the benefit of the
Lenders, by execution hereof in their capacity as Sureties, hereby consent to
the amendments set forth in this Amendment, and acknowledge that the Surety
Agreement remains in full force and effect and that each remain, jointly and
severally liable for Obligations of Borrowers to Lenders.
4. REPRESENTATIONS AND WARRANTIES:
a. Borrowers represent and warrant that as of the date hereof no Event
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of Default or Unmatured Event of Default has occurred or is existing under the
Loan Documents.
b. The execution and delivery by each Borrower of this Amendment and
performance by it of the transactions herein contemplated (i) are and will be
within its powers, (ii) have been authorized by all necessary corporate action,
and (iii) are not and will not be in contravention of any order of any court or
other agency of government, of law or any other indenture, agreement or
undertaking to which such Borrower is a party or by which the Property of such
Borrower is bound, or be in conflict with, result in a breach of or constitute
(with due notice and/or lapse of time) a default under any such indenture,
agreement or undertaking or result in the imposition of any lien, charge or
encumbrance of any nature on any of the properties of such Borrower.
c. This Amendment and each other agreement, instrument or document
executed and/or delivered in connection herewith, shall be valid, binding and
enforceable in accordance with its respective terms.
5. Miscellaneous:
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a. This Amendment shall be governed by, construed and enforced in
accordance with the laws of the Commonwealth of Pennsylvania.
b. Except as expressly provided herein, all terms and conditions of the
Loan Documents remain in full force and effect, unless such terms or conditions
are no longer applicable by their terms. To the extent the provisions of this
Amendment are expressly inconsistent with the provisions of the Loan Documents,
the provisions of this Amendment shall control.
c. This Amendment may be executed in any number of counterparts, each
of which when so executed shall be deemed to be an original, and such
counterparts together shall constitute one and the same respective agreement.
d. Signatures by facsimiles shall bind the parties hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered as of the day and year first above written.
BORROWERS:
CAPITAL ASSOCIATES, INC.
By: /s/Xxxxxxx X. XxXxxxx
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Title: Senior Vice President
CAPITAL ASSOCIATES INTERNATIONAL, INC.
By: /s/Xxxxxxx X. XxXxxxx
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Title: Senior Vice President
AGENT:
FIRST UNION NATIONAL BANK, Successor by
Merger to CoreStates Bank, N.A.
By: /s/Xxxxxx X. Xxxxxx
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Title: Commercial Officer
LENDERS:
FIRST UNION NATIONAL BANK, Successor by
Merger to CoreStates Bank, N.A., as Lender
and Issuing Bank
By: /s/Xxxxxx X. Xxxxxx
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Title: Commercial Officer
NORWEST BANK COLORADO, N.A.
By: /s/Xxxxx X. Xxxx
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Title: Vice President
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BANKBOSTON, N.A.
By: /s/Xxxxxxx X. Xxxxxxx
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Title: Vice President
EUROPEAN AMERICAN BANK
By: /s/Xxxxxxxxxxx X. Xxxxx
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Title: Vice President
U.S. BANK NATIONAL ASSOCIATION, f/k/a
COLORADO NATIONAL BANK
By: /s/Xxxxx X. Xxxxxxxx
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Title: Vice President
SURETIES:
CAI EQUIPMENT LEASING II CORP.
By: /s/Xxxxxxx X. XxXxxxx
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Title: President
CAI EQUIPMENT LEASING III CORP.
By: /s/Xxxxxxx X. XxXxxxx
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Title: Senior Vice President
CAI EQUIPMENT LEASING IV CORP.
By: /s/Xxxxxxx X. XxXxxxx
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Title: Senior Vice President
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CAI EQUIPMENT LEASING V CORP.
By: /s/Xxxxxxx X. XxXxxxx
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Title: Senior Vice President
CAI PARTNERS MANAGEMENT COMPANY
By: /s/Xxxxxxx X. XxXxxxx
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Title: Senior Vice President
CAPITAL EQUIPMENT CORPORATION
By: /s/Xxxxxxx X. XxXxxxx
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Title: Senior Vice President
CAI EQUIPMENT LEASING VI CORP.
By: /s/Xxxxxxx X. XxXxxxx
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Title: Senior Vice President
CAI LEASE SECURITIZATION I CORP.
By: /s/Xxxxxxx X. XxXxxxx
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Title: Senior Vice President
CAI LEASING CANADA, LTD.
By: /s/Xxxxxxx X. XxXxxxx
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Title: President
CAPITAL ASSOCIATES INTERNATIONAL DE
MEXICO S. DE X.X. DE C.V.
By: /s/Xxxxxxx X. XxXxxxx
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Title: Senior Vice President
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WHITEWOOD EQUIPMENT CORPORATION,
f/k/a WHITEWOOD CREDIT CORPORATION
By: /s/Xxxxxxx X. XxXxxxx
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Title: President
CAI SECURITIES CORPORATION
By: /s/Xxxxxxx X. XxXxxxx
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Title: Senior Vice President
CAPITAL ASSOCIATES TECHNOLOGY GROUP,
INC.
By: /s/Xxxxxxx X. XxXxxxx
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Title: Senior Vice President
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