FINOVA CAPITAL CORPORATION
FOURTH AMENDMENT TO SIXTH AMENDMENT AND
RESTATEMENT OF CREDIT AGREEMENT DATED AS OF MAY 15, 1996
This FOURTH AMENDMENT TO SIXTH AMENDMENT AND RESTATEMENT OF CREDIT
AGREEMENT (this "Amendment") is dated as of May 15, 1996 and entered into by and
among FINOVA CAPITAL CORPORATION, a Delaware corporation (formerly, Greyhound
Financial Corporation, hereinafter the "Company"), the undersigned lenders
(collectively the "Lenders") the undersigned Agents, BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION, BANK OF MONTREAL, CHEMICAL BANK, CITIBANK, N.A.,
and FLEET BANK, N.A., individually and as agents (the "Agents") for the Lenders
hereunder, and CITIBANK, N.A., a national banking association, as administrative
agent (the "Administrative Agent") for the Lenders hereunder, and is made with
reference to that certain Sixth Amendment and Restatement dated as of May 16,
1994 of Credit Agreement dated as of May 31, 1976, by and among the Company, the
Lenders, the Agents and the Administrative Agent, as amended by a First
Amendment to Sixth Amendment and Restatement of Credit Agreement dated as of
September 30, 1994, a Second Amendment to Sixth Amendment and Restatement of
Credit Agreement dated as of May 11, 1995 and a Third Amendment to Sixth
Amendment and Restatement of Credit Agreement dated as of November 1, 1995 (as
so amended, the "Credit Agreement"). Capitalized terms used herein without
definition shall have the same meanings herein as set forth in the Credit
Agreement.
RECITALS
WHEREAS, the company has requested that the Termination Date be
extended to May 20, 2001, and that the provisions of Section 4.02(a) of the
Credit Agreement be modified;
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
Section 1. AMENDMENTS TO THE CREDIT AGREEMENT
A. Amendments to Section 1.01: Definitions. The Credit Agreement is
hereby amended by deleting therefrom the definition of "Termination Date" and
substituting therefor the following:
"Termination Date shall mean May 20, 2001; provided, however,
that, if any Lender has consented to an Extension Request in accordance
with Section 2.17, with regard to the then existing Termination Date,
the then existing Termination Date as to such Lender shall be
automatically extended for one year from the then existing Termination
Date; provided, however, that, notwithstanding any other provisions of
this Agreement to the contrary, the Termination Date shall occur upon
the earlier termination in whole of the Commitments pursuant to Section
2.11 or 6.01."
B. Amendment to Section 4.02(a). Section 4.02(a) of the Credit
Agreement is hereby amended and restated in its entirety as follows:
"(a) Permit the ratio of (i) an amount equal to (x) total
outstanding Indebtedness of the Company and its consolidate
subsidiaries less (y) the cash and cash equivalents of the Company and
its consolidated subsidiaries, except any funds held in escrow, to (ii)
Stockholders' Equity to be greater than 7.00 to 1.00 at any time;
provided that at such times, and only such times, as Long-term Debt is
rated so that Level 1 or Level 2 would apply to the determination of
the applicable Margin hereunder, the permitted maximum ratio shall be
7.25 to 1.00."
Section 2. COMPANY'S REPRESENTATIONS AND WARRANTIES
To induce the Lenders to enter into this Amendment and to amend the
Credit Agreement in the manner provided herein, the Company represents and
warrants to each Lender that the following statements are true, correct and
complete:
A. Corporate Power and Authority. The Company has all requisite
corporate power and authority to enter into this Amendment and to carry out the
transactions contemplated by, and perform its obligations under, the Credit
Agreement, as amended by this Amendment (the "Amended Agreement").
B. Authorization of Agreements. The execution and delivery of this
Amendment and the consummation of the Amended Agreement have been duly
authorized by all necessary corporate action on the part of the Company.
C. No Conflict. The execution and delivery by the Company of this
Amendment and the consummation by the Company of the Amended Agreement do not
and will not (i) violate any provision of any law or any governmental rule or
regulation applicable to the Company or its Subsidiaries, the certificate of
incorporation or bylaws of the Company or any order, judgment or decree of any
court or other agency of government binding on the Company or its Subsidiaries,
(ii) conflict with, result in a breach of or constitute (with due notice or
lapse of time or both) a default under any Contractual Obligation of the Company
or its Subsidiaries, (iii) result in or require the creation or imposition of
any Lien upon any of the properties or assets of stockholders or any approval or
consent of any Person under any contractual obligation of the Company or its
Subsidiaries (other than the parties hereto).
D. Governmental Consents. The execution and delivery by the Company of
this Amendment and the consummation by the Company of the Amended Agreement do
not and will not require any registration with, consent or approval of, or
notice to, or other action to, with or by, any federal, state or other
governmental authority or regulatory body.
E. Binding Obligation. This Amendment has been duly executed and
delivered by the Company and this Amendment and the Amended Agreement are the
legally valid and binding obligations of the Company, enforceable against the
Company in accordance
with their respective terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or limiting creditors'
rights generally or by principles of equity and commercial reasonableness.
F. Incorporation of Representations and Warranties From Credit
Agreement. The representations and warranties contained in Section 3.01 of the
Credit Agreement are true, correct and complete in all material respects to the
same extent as though made on and as of the date hereof, except as provided
above or to the extent such representations and warranties specifically relate
to an earlier date, in which case they were true, correct and complete in all
material respects on and as of such earlier date.
G. Absence of Default. No event has occurred and is continuing or will
result from the consummation of the transactions contemplated by this Amendment
that would, upon the giving of notice, the passage of time, or otherwise,
constitute an Event of Default.
Section 3. CONDITIONS TO EFFECTIVENESS
Section 1 of this Amendment shall become effective on the first date on
which all of the following conditions precedent shall have been satisfied (such
date being referred to herein as the "Amendment Effective Date"):
A. On or before the Amendment Effective Date, the Company shall deliver
to the Administrative Agent the following, each, unless otherwise noted, dated
the Amendment Effective Date:
1. Resolutions of its Board of Directors approving and
authorizing the execution, delivery, and performance of this Amendment,
certified as of the Amendment Effective Date by its corporate secretary
or an assistant secretary as being in full force and effect without
modification or amendment;
2. Signature and incumbency certificates of its officers
executing this Amendment; and
3. Executed copies of this Amendment.
B. On or before the Amendment Effective Date, all corporate and other
proceedings taken or to be taken in connection with the transactions
contemplated hereby and all documents incidental thereto not previously found
acceptable by the Agents, acting on behalf of the Lenders, and their counsel
shall be satisfactory in form and substance to the Agents and such counsel, and
the Agents and such counsel shall have received all such counterpart originals
or certified copies of such documents as the Agents may reasonably request.
Section 4. MISCELLANEOUS
A. Reference to and Effect on the Credit Agreement and the Other Loan
Documents.
(i) On and after the date this Amendment becomes effective in
accordance with its terms, each reference in the Credit Agreement to
"this Agreement," "hereunder," "hereof," "herein" or words of like
import referring to the Credit Agreement, and each reference in the
Notes to the "Credit Agreement," "thereunder," "thereof" or words of
like import referring to the Credit Agreement shall mean and be a
reference to the Amended Agreement.
(ii) Except as specifically amended by this Amendment, the
Credit Agreement and the Notes shall remain in full force and effect
and are hereby ratified and confirmed.
(iii) The execution, delivery and performance of this
Amendment shall not, except as expressly provided herein, constitute a
waiver of any provision of, or operate as a waiver of, any right, power
or remedy of the Agent or any Lender under, the Credit Agreement or the
Notes.
B. Fees and Expenses. The Company acknowledges that all costs, fees and
expenses as described in Section 8.05 of the Credit Agreement incurred by the
Administrative Agent and its counsel with respect to this Amendment and the
documents and transactions contemplated hereby shall be for the account of the
Company.
C. Headings. Section and subsection headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
D. Applicable Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.
E. Counterparts; Effectiveness. 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;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document. This Amendment shall become effective as of the date hereof
upon the execution and delivery of a counterpart hereof by the Company and the
Lenders.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
The Company:
FINOVA CAPITAL CORPORATION
By /s/ Xxxxxx X. Xxxxxxxxxxx
Senior Vice President-Treasurer
By /s/ Xxxxxx Xxxxxx
Vice President, Assistant Treasurer
The Lenders:
CITIBANK, N.A. (Individually and as an Agent and Administrative Agent)
By /s/ Xxxxxxxx Futorinick
Vice President
BANK OF AMERICAN NATIONAL TRUST AND SAVINGS ASSOCIATION
By /s/ Xxxxxx Xxxxxxxx
Managing Director
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION (as an Agent)
By /s/ Xxxxxx Xxxxxxxx
Managing Director
BANK OF MONTREAL (Individually and as an Agent)
By /s/ J. Xxxxxx Xxxxxxx
Managing Director
CHEMICAL BANK (Individually and as an Agent)
By /s/ Xxxxxx X. Xxxxxxx
Vice President
FLEET BANK, N.A. (Individually and as an Agent)
By /s/ X. X. Xxx
Vice President
BANK OF AMERICA ILLINOIS
By /s/ Xxxxxx Xxxxxxxx
Managing Director
THE CHASE MANHATTAN BANK
(National Association)
By /s/ Xxxxx X. Xxxxx
Vice President
CREDIT SUISSE
By /s/ Xxxx X. Xxxxxx
Associate
By /s/ Xxxxxxx Xxxxxxxxxx
Member of Senior Management
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, LOS ANGELES AGENCY
By /s/ Masatake Yashiro
General Manager
NATIONSBANK OF GEORGIA, N.A.
By /s/ Xxxxx Xxxx
Senior Vice Prsident
UNION BANK OF SWITZERLAND
LOS ANGELES BRANCH
By /s/ Xxxxxx X. Xxxxxxxx
Vice President
By /s/ Xxxxxx X. Xxxxxxx
Managing Director
WESTDEUTSCHE LANDESBANK
GIROZENTRALE - NEW YORK BRANCH
By /s/ Xxxxxxx X. Mill
Vice President
By /s/ Xxxxx Spichegn
Associate
CREDIT LYONNAIS - San Xxxxxxxxx Xxxxxx
By /s/ Xxxxxxx X. Xxxxxxx
Vice President & Manager
FIRST INTERSTATE BANK OF ARIZONA, N.A.
By /s/ Xxxxx Xxxxxxxx
Vice President
NATIONAL WESTMINISTER BANK PLC
By /s/ Xxxxx Xxxxxx-XxXxxxx
Vice President
ROYAL BANK OF CANADA
By /s/ Xxxx X. Xxxxxx
Senior Manager
SOCIETE GENERALE
By /s/ Xxxxxx Xxxxxxx
Vice President
BANK ONE, ARIZONA, N.A.
By /s/ Xxxxx Xxxxxx
Vice President
DESDNER BANK AG LOS ANGELES AGENCY
By /s/ Xxx X. Xxxxx
Senior Vice President
By /s/ Xxxxx Xxxxxx
Assistant Vice President
UNION BANK OF CALIFORNIA, N.A.
By /s/ Xxxxxx X. Xxxxx
Vice President
THE LONG-TERM CREDIT BANK OF JAPAN, LTD., LOS ANGELES AGENCY
By /s/ Xxxxxx Xxxxxxx XX
Deputy General Manager
THE MITSUBISHI TRUST AND BANKING CORPORATION, acting through its LOS
ANGELES AGENCY
By /s/ Hiroshi Koseh
Senior Vice President &
Chief Manager
ARAB BANKING CORPORATION (New York Branch)
By /s/ Xxxxxxx Xxxxxx
Vice President and Manager
Los Angeles Representative Office
THE BANK OF NOVA SCOTIA
By /s/ Xxxx Xxxxx
Officer
FIRST UNION NATIONAL BANK OF NORTH CAROLINA
By /s/ Xxxx X. Xxxxxxx
Senior Vice President
BANK OF AMERICA ARIZONA
By /s/ Xxxx Xxxxxx
Vice President
BANK OF HAWAII
By /s/ Xxxxxx X. Xxxxxxxx
Vice President
BANQUE NATIONALE DE PARIS
By /s/ Xxxxxxxx Xxxx
Vice President
COMERICA BANK
By /s/ Xxxx Xxxxx
Vice President
CAISSE NATIONALE de CREDIT AGRICOLE
By /s/ Xxxx Xxxxxx
Senior Vice President
Branch Manager
DG BANK DEUTSCHE
GENOSSENSCHAFTSBANK
By /s/ Xxxxx X. Xxxxxxxx
Vice President
By /s/ Xxxxxx X. Xxxxx
Vice President
KREDIETBANK N.V.
By /s/ Xxxxxx Xxxxxxxx
Vice President
By /s/ Xxx X. Xxxxx
Vice President
NBD BANK
By /s/ Xxxxx Cleifh
Authorized Agent
CANADIAN IMPERIAL BANK OF COMMERCE
By /s/ Xxxxxxx X. Xxxxxxxx
Authorized Signatory
UNITED STATES NATIONAL BANK OF OREGON
By /s/ Xxxxxxx Xxxxxxxx
Vice President
ABN AMRO BANK N.V., LOS ANGELES INTERNATIONAL BRANCH
By: ABN AMRO North America Inc., as Agent
By /s/ Xxxx X. Xxxxxxx
Vice President
By /s/ Xxxx X. Xxxxxx
Group Vice President/Director
FUJI BANK, LTD.
By /s/ X. Xxxxxxxx
Joint General Manager
THE SAKURA BANK, LTD.
By /s/ Xxxxx Xxxx
SVP and Assistant General Manager
BANQUE PARIBAS
By /s/ Xxxxx X. Luedors
Vice Prsident
By /s/ Xxxx Xxxx
Group Vice President
COMPAGNIE FINANCIERE DE
CIC ET DE L'UNION EROPEENE
By /s/ Xxxx Skiden
Vice President
By /s/ Xxxxx Xxxxxx
Assistant Vice President
DEUTSCHE BANK AG NEW YORK
AND/OR CAYMAN ISLANDS BRANCES
By /s/ Xxxxx X. Xxxxxxxxxx
Vice President
By /s/ Xxxxxx X. Xxxxxx
Assistant Vice President
COMMERZBANK AG,
LOS ANGELES BRANCH
By /s/ Christian Jagenberg
Senior Vice President and Manager
By /s/ Xxxxxx X. Xxxxxx
Vice President
THE DAI-ICHI KANGYO BANK, LTD.
LOS ANGELES AGENCY
By /s/ Xxxxxxxx Xxxxxx
Xx. Vice President & Joint General Manager
BANCA MONTE DEIPASCHI DI SIENA S.p.A.
By /s/ X.X. Xxxxxx
F.V.P. & Dep. General Manager
By /s/ Xxxxx X. Xxxxx
Vice President
THE SUMITOMO TRUST AND BANKING CO., LTD.,
LOS ANGELES AGENCY
By /s/ Xxxxxx X. Xxxxxxxx
Vice President & Manager
CHIBA BANK, LTD.
By /s/ Xxxxxxx Xxxxx
General Manager
DEN DANSKE BANK AKTIESELSKAB,
CAYMAN ISLANDS BRANCH
By /s/ Xxxxxx Xxxxxxxxxxx
Vice President
By /s/ Xxxx X. X'Xxxxx
Vice President
