EXHIBIT 10.60
FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT
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This First Amendment to Loan and Security Agreement ("Amendment")
entered into as of April 7, 1998, by and among CAPITAL ASSOCIATES, INC. and
CAPITAL ASSOCIATES INTERNATIONAL, INC. (each a Borrower and collectively
"Borrowers"), CORESTATES BANK, N.A., a national banking corporation, in its
capacity as agent ("Agent") and as lender and each of the lenders listed on the
signature pages hereof and the First Amended 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 ("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. Borrowers have requested that Lenders and Agent amend the Loan
Agreement pursuant to the terms hereof 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. AMENDMENT TO LOAN AGREEMENT:
a. Section 1.1 of the Loan Agreement is hereby amended by
deleting the definition of "Senior Management Team" in its entirety and
replacing it with the following:
SENIOR MANAGEMENT TEAM - ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and
▇▇▇▇ ▇▇▇▇▇▇▇▇.
b. Section 7.11 of the Loan Agreement is hereby deleted in its
entirety and replaced with the following:
7.11 CHANGE OF MANAGEMENT: Borrower shall not at any time
permit two current members of Borrowers' Senior Management Team
to cease to be involved in the day to day operations of the
Borrowers.
2. Each Surety, parties to a certain Surety Agreement dated as of
November 27, 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.
3. a. Borrowers represent and warrant that as of the date hereof
no Event 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
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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.
4. This Amendment shall be governed by, construed and enforced in
accordance with the laws of the Commonwealth of Pennsylvania.
5. 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.
6. 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.
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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/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Senior Vice President
Attest: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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(Corporate Seal)
Fed. Tax ID No. ▇▇-▇▇▇▇▇▇▇
CAPITAL ASSOCIATES INTERNATIONAL, INC.
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Title: Senior Vice President
Attest: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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(Corporate Seal)
Fed. Tax ID No. ▇▇-▇▇▇▇▇▇▇
AGENT:
CORESTATES BANK, N.A.
By: /s/▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Vice President
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LENDERS:
CORESTATES BANK, N.A., as Lender and
Issuing Bank
By: /s/▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Vice President
NORWEST BANK COLORADO, N.A.
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇
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Title: Vice President
BANKBOSTON, N.A.
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Vice President
EUROPEAN AMERICAN BANK
By: /s/▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Vice President
U.S. BANK NATIONAL ASSOCIATION,
D/B/A COLORADO NATIONAL BANK
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Vice President
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SURETIES:
CAI EQUIPMENT LEASING II CORP.
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Senior Vice President
Attest: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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(Corporate Seal)
Fed. Tax ID No.: ▇▇-▇▇▇▇▇▇▇
CAI EQUIPMENT LEASING III CORP.
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Senior Vice President
Attest: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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(Corporate Seal)
Fed. Tax ID No.: ▇▇-▇▇▇▇▇▇▇
CAI EQUIPMENT LEASING IV CORP.
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Senior Vice President
Attest: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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(Corporate Seal)
Fed. Tax ID No.: ▇▇-▇▇▇▇▇▇▇
CAI EQUIPMENT LEASING V CORP.
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Senior Vice President
Attest: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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(Corporate Seal)
Fed. Tax ID No.: ▇▇-▇▇▇▇▇▇▇
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CAI PARTNERS MANAGEMENT COMPANY
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Senior Vice President
Attest: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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(Corporate Seal)
Fed. Tax ID No.: ▇▇-▇▇▇▇▇▇▇
CAPITAL EQUIPMENT CORPORATION
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Senior Vice President
Attest: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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(Corporate Seal)
Fed. Tax ID No.: ▇▇-▇▇▇▇▇▇▇
CAI EQUIPMENT LEASING VI CORP.
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Senior Vice President
Attest: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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(Corporate Seal)
Fed. Tax ID No.: ▇▇-▇▇▇▇▇▇▇
CAI LEASE SECURITIZATION I CORP.
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: President
Attest: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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(Corporate Seal)
Fed. Tax ID No.: ▇▇-▇▇▇▇▇▇▇
CAI LEASING CANADA, LTD.
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: President
Attest: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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(Corporate Seal)
Fed. Tax ID No.: ▇▇-▇▇▇▇▇▇▇
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CAPITAL ASSOCIATES INTERNATIONAL
de MEXICO S. de ▇.▇. de C.V.
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Senior Vice President
Attest: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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(Corporate Seal)
Fed. Tax ID No.: N/A
WHITEWOOD EQUIPMENT CORPORATION f/k/a
WHITEWOOD CREDIT CORPORATION
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: President
Attest: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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(Corporate Seal)
Fed. Tax ID No.: ▇▇-▇▇▇▇▇▇▇
CAI SECURITIES CORPORATION
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Senior Vice President
Attest: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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(Corporate Seal)
Fed. Tax ID No.: ▇▇-▇▇▇▇▇▇▇
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