EXHIBHT 10.54
FOURTH AMENDMENT TO CREDIT AGREEMENT
This fourth Amendment, dated as of July 3, 1997, is made by and
among CAPITAL ASSOCIATES INTERNATIONAL, INC., a Colorado Corporation (the
"Borrower") and each of the financial institutions appearing on the signature
pages hereof (herein collectively the "Lenders" and individually each called a
"Lender") and NORWEST BANK COLORADO, NATIONAL ASSOCIATION, a national banking
association, in its separate capacity as agent for the Lenders (in such
capacity, the "Agent") and NORWEST EQUIPMENT FINANCE, INC., a Minnesota
corporation, in its separate capacity as collateral agent for the Lenders (in
such capacity, the "Collateral Agent").
RECITALS
A. Norwest Bank Colorado, National Association (in its capacity as
Lender hereunder "Norwest Colorado"), Norwest Equipment Finance, Inc. (in its
capacity as Lender hereunder, "NEFI"), First National Bank of Boston ("First
Boston") and The Sumitomo Bank, Limited ("Sumitomo"), the Agent, the Collateral
Agent and the Borrower have entered into a Credit and Security Agreement dated
as of November 30, 1994, as amended by a First Amendment to Credit Agreement and
Notes dated November 30, 1995, an Assumption Certificate dated February 28,
1995, a Second Amendment to Credit Agreement and Notes dated January 31, 1996
and a Third Amendment to Credit Agreement dated as of November 27, 1996 ( as
amended, the "Credit Agreement"). Capitalized terms used in these Recitals have
the meanings given to them in the Credit Agreement unless otherwise specified.
B. Pursuant to the Credit Agreement, the Borrower executed and
delivered the following promissory notes: (i) a Working Capital Note dated
November 27, 1996 in the original principal amount of $2,500,000 payable to the
order of Norwest Colorado, (ii) a Warehousing Note dated November 27, 1996 in
the original principal amount of $2,967,591.10 payable to the order of Norwest
Colorado, (iii) a Term Note dated November 27, 1996 in the original principal
amount of $782,408.90 payable to the order of Norwest Colorado, (iv) a
Warehousing Note dated November 27, 1996 in the original principal amount of
$5,467,591.10 payable to the order of NEFI, (v) a Term Note dated November 27,
1996 in the original principal amount of $782,408.90 payable to the order of
NEFI, (vi) a Working Capital Note dated November 27, 1996 in the original
principal amount of $2,500,000 payable to the order of First Boston, (vii) a
Warehousing Note dated November 27, 1996 in the original principal amount of
$8,435,186.90 payable to the order of First Boston, (viii) a Term Note dated as
of November 27, 1996 in the original principal amount of $1,564,813.10 payable
to the order of First Boston, (ix) a Working Capital Note dated November 27,
1996 in the original principal amount of $2,500,000 payable to the order of
Sumitomo, (x) a Warehousing Note dated November 27, 1996 in the original
principal amount of $5,935,186.10 payable to the order of Sumitomo, and (xi) a
Term Note dated November 27, 1996 in the original principal amount of
$1,564,813.10 payable to the order of Sumitomo (collectively, the "Notes").
C. The Borrower has requested that the due date for accrued interest
on Libo Advances and Libo Term Loans be amended. The Lenders are willing to
accommodate the Borrower's requests, pursuant to the terms and conditions set
forth in this Fourth Amendment.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained, it is agreed as follows:
1. DEFINED TERMS. Unless otherwise defined herein, capitalized
terms used in this Fourth Amendment which are defined in the Credit Agreement
shall have the same meanings given to them in the Credit Agreement.
2. AMENDMENT OF CREDIT AGREEMENT DEFINITIONS.
(a) Section 2.11 of the Credit Agreement is amended as follows:
"Section 2.11 INTEREST DUE DATES. Accrued interest on each Floating
Rate Term Loan shall be payable in arrears on the last day of each
month and at maturity. Accrued interest on each LIBO Term Loan shall
be payable on the last day of the Interest Period relating to such
LIBO Term Loan; PROVIDED, HOWEVER, that if any such Interest Period is
longer than three (3) months, interest shall be payable monthly in
arrears on the last day of each three (3) month period after the
commencement of such Interest Period and on the last day of such
Interest Period."
(b) Section 4.11 of the Credit Agreement is amended as follows:
"Section 4.11 INTEREST DUE DATES. Accrued interest on each
Floating Rate Warehousing Advance shall be payable in arrears on the
last day of each month and at maturity. Accrued interest on each LIBO
Advance shall be payable on the last day of the Interest Period
relating to such LIBO Advance; PROVIDED, HOWEVER, that if any such
Interest Period is longer than three (3) months, interest shall be
payable monthly in arrears on the last day of each three (3) month
period after the commencement of such Interest Period and on the last
day of such Interest Period."
3. NO OTHER CHANGES. Except as explicitly amended by this
Amendment, all terms and conditions of the Credit Agreement and the other Loan
Documents shall remain in full force and effect. Notwithstanding anything to the
contrary contained herein or in any other instrument executed by the Borrower,
the Guarantors, any Lender, the Agent or the Collateral Agent, the agreements,
covenants and provisions contained herein shall constitute the only evidence of
the Lenders' agreement with respect to modification of any of the Loan
-2-
Documents. The Borrower acknowledges and agrees that no express or implied
consent to any additional or further amendments or modifications of any
of the Loan Documents shall be inferred or implied by the execution and
delivery of this Amendment. Further, execution of this Amendment shall not
constitute a waiver (either express or implied) of any requirement set forth in
the Credit Agreement for the express written approval of the Lenders or Required
Lenders, as the case may be, for any other or future modifications or amendments
of the Loan Documents, and no such further approval (either express or implied)
has been given with respect thereto as of the date of this Amendment.
4. CONDITIONS PRECEDENT. This Fourth Amendment shall be effective
when the Agent has received:
(a) an original of this Fourth Amendment, duly executed on behalf
of the Borrower, each Lender, the Agent and the Collateral Agent;
(b) the Acknowledgment and Agreement of Guarantors set forth at the
end of this Fourth Amendment, duly executed by each Guarantor; and
(c) such other matters as the Agent may reasonably require.
5. REPRESENTATIONS AND WARRANTIES. The Borrower hereby represents
and warrants to the Lenders as follows:
(a) The Borrower has all requisite power and authority to execute
this Amendment and to perform all of its obligations hereunder,
and this Amendment has been duly executed and delivered by the Borrower
and constitutes the legal, valid and binding obligation of the
Borrower, enforceable in accordance with its terms, except to the
extent the enforcement thereof may be limited by any applicable
bankruptcy, insolvency or similar laws now or hereafter in effect
affecting creditors' rights generally.
(b) The execution, delivery and performance by the Borrower of this
Amendment have been duly authorized by all necessary corporate action
and do not (i) require any authorization, consent or approval by any
governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, (ii) violate any provision of
any law, rule or regulation or of any order, writ, injunction or decree
presently in effect, having applicability to the Borrower, or the
articles of incorporation or by-laws of the Borrower, or (iii) result
in a breach of or constitute a default under any indenture or loan or
credit agreement or any other agreement, lease or instrument to which
the Borrower is a party or by which it or its properties may be bound
or affected.
-3-
(c) All of the representations and warranties contained in the
Credit Agreement are correct on and as of the date hereof as though
made on and as of such date, except to the extent that such
representations and warranties relate solely to an earlier date.
6. REFERENCES. All references in the Credit Agreement to "this
Agreement" shall be deemed to refer to the Credit Agreement as amended by this
Fourth Amendment and any and all references in the Security Documents or any
other Loan Documents to the Credit Agreement shall be deemed to refer to the
Credit Agreement as amended by this Fourth Amendment.
7. NO WAIVER. The execution of this Amendment and acceptance of
any documents related hereto shall not be deemed to be a waiver of any Default
or Event of Default under the Credit Agreement or breach, default or event of
default under any Security Document or other document held by the Lender,
whether or not known to the Lender and whether or not existing on the date of
this Amendment.
8. RELEASE. The Borrower, and each Guarantor by signing the
Acknowledgment and Agreement of Guarantor set forth below, hereby absolutely and
unconditionally release and forever discharge each Lender, the Agent and the
Collateral Agent and any and all participants, parent corporations, subsidiary
corporations, affiliated corporations, insurers, indemnitors, successors and
assigns thereof, together with all of the present and former directors,
officers, agents and employees of any of the foregoing, from any and all claims,
demands or causes of action of any kind, nature or description, whether arising
in law or equity or upon contract or tort or under any state or federal law or
otherwise, which the Borrower or such Guarantor has had, now has or has made
claim to have against any such person for or by reason of any act, omission,
matter, cause or thing whatsoever arising from the beginning of time to and
including the date of this Amendment, whether such claims, demands and causes of
action are matured or unmatured or known or unknown.
9. COSTS AND EXPENSES. The Borrower hereby reaffirms its
agreement under the Credit Agreement to pay or reimburse the Agent on demand for
all costs and expenses incurred by the Agent in connection with the Credit
Agreement, the Security Documents and all other documents contemplated thereby,
including without limitation all reasonable fees and disbursements of legal
counsel. Without limiting the generality of the foregoing, the Borrower
specifically agrees to pay all fees and disbursements of counsel to the Agent
for the services performed by such counsel in connection with the preparation of
this Fourth Amendment and the documents and instruments incidental hereto. The
Borrower hereby agrees that the Agent may, at any time or from time to time in
its sole discretion and without further authorization by the Borrower, make a
loan to the Borrower under the Credit Agreement, or apply the proceeds of any
loan, for the purpose of paying any such fees, disbursements, costs and
expenses.
-4-
10. MISCELLANEOUS. This Amendment and the Acknowledgment and
Agreement of Guarantors may be executed in any number of counterparts, each of
which when so executed and delivered shall be deemed an original and all of
which counterparts, taken together, shall constitute one and the same
instrument.
[SIGNATURE PAGES FOLLOW]
-5-
IN WITNESS WHEREOF, the parties hereto have caused this Fourth
Amendment to Credit Agreement to be duly executed as of the date first written
above.
CAPITAL ASSOCIATES
INTERNATIONAL, INC.
By /s/Xxxxxxx X. XxXxxxx
---------------------------------
Xxxxxxx X. XxXxxxx
Its Senior Vice President
NORWEST BANK COLORADO,
NATIONAL ASSOCIATION,
as Agent and a Lender
By /s/Xxxxxx X. Xxxxx
---------------------------------
Xxxxxx X. Xxxxx
Its Vice President
NORWEST EQUIPMENT FINANCE, INC.
as Collateral Agent and a Lender
By /s/Xxxx X. XxxXxxxx
--------------------------------
Xxxx X. XxxXxxxx
Its Vice President
THE SUMITOMO BANK, LIMITED,
as a Lender
By /s/Xxxxxx X. Xxxxxxx
---------------------------------
Xxxxxx X. Xxxxxxx
Its Vice President
FIRST NATIONAL BANK OF BOSTON,
as a Lender
By /s/Xxxxxxx X. Xxxxxxx
---------------------------------
Xxxxxxx X. Xxxxxxx
Its Vice President
ACKNOWLEDGMENT AND AGREEMENT OF GUARANTORS
Each of the undersigned, a guarantor of the indebtedness of
Capital Associates International, Inc. (the "Borrower") to the Lenders described
in the foregoing Fourth Amendment (the "Lenders") pursuant to their separate
Guaranties dated as of November 30, 1994 for each of the undersigned other than
CAI Equipment Leasing V Corp., whose Guaranty is dated as of November 27, 1996
(each a "Guaranty"), hereby acknowledges receipt of the foregoing Fourth
Amendment; (ii) consents to the terms (including without limitation the release
set forth in paragraph 8 of the Fourth Amendment) and execution thereof; (iii)
reaffirms its obligations to the Lenders pursuant to the terms of its Guaranty;
and (iv) acknowledges that the Lenders may amend, restate, extend, renew or
otherwise modify the Credit Agreement and any indebtedness or agreement of the
Borrower, or enter into any agreement or extend additional or other credit
accommodations, without notifying or obtaining the consent of the undersigned
and without impairing the liability of the undersigned under its Guaranty for
all of the Borrower's present and future indebtedness to the Lenders.
CAPITAL ASSOCIATES, INC.
By /s/Xxxxxxx X. XxXxxxx
---------------------------------
Xxxxxxx X. XxXxxxx
Its Senior Vice President
CAI EQUIPMENT LEASING I CORP.
By /s/Xxxxxxx X. XxXxxxx
---------------------------------
Xxxxxxx X. XxXxxxx
Its Senior Vice President
CAI EQUIPMENT LEASING III CORP.
By /s/Xxxxxxx X. XxXxxxx
---------------------------------
Xxxxxxx X. XxXxxxx
Its Senior Vice President
CAI EQUIPMENT LEASING IV CORP.
By /s/Xxxxxxx X. XxXxxxx
---------------------------------
Xxxxxxx X. XxXxxxx
Its Senior Vice President
CAI PARTNERS MANAGEMENT
COMPANY
By /s/Xxxxxxx X. XxXxxxx
---------------------------------
Xxxxxxx X. XxXxxxx
Its Senior Vice President
CAPITAL EQUIPMENT CORPORATION
By /s/Xxxxxxx X. XxXxxxx
---------------------------------
Xxxxxxx X. XxXxxxx
Its Senior Vice President
CAI LEASE SECURITIZATION I CORP.
By /s/Xxxxxxx X. XxXxxxx
---------------------------------
Xxxxxxx X. XxXxxxx
Its Senior Vice President
CAI EQUIPMENT LEASING V CORP.
By /s/Xxxxxxx X. XxXxxxx
---------------------------------
Xxxxxxx X. XxXxxxx
Its Senior Vice President
