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EXHIBIT 10.A
FINOVA CAPITAL CORPORATION
SECOND AMENDMENT DATED AS OF MAY 11, 1995
TO SIXTH AMENDMENT AND RESTATEMENT OF CREDIT AGREEMENT
This SECOND AMENDMENT TO SIXTH AMENDMENT AND RESTATEMENT OF
CREDIT AGREEMENT (this "Amendment") is dated as of MAY 11, 1995 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 NATIONAL WESTMINSTER BANK USA, 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 (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 Effective Date of the Credit Agreement is May 24,
1994, and the Termination Date is, without giving effect to this Amendment, May
24, 1997;
WHEREAS, the Company has requested that the Termination Date be
extended for one year and that certain covenants be amended as set forth herein;
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, the parties hereto agree
as follows:
SECTION 1. EXTENSION OF TERMINATION DATE
The Company hereby requests that the Termination Date be
extended for one year to May 24, 1998 as contemplated by Section 2.17 of the
Credit Agreement. Each Lender executing this Amendment shall be deemed to have
elected to consent to such extension for the purposes of Section 2.17 of the
Credit Agreement.
SECTION 2. AMENDMENTS TO THE CREDIT AGREEMENT
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A. REFERENCES TO GREYHOUND FINANCIAL CORPORATION AND GFC
FINANCIAL CORPORATION. The Credit Agreement is hereby amended by deleting all
references to "Greyhound Financial Corporation" and substituting therefor
references to "FINOVA Capital Corporation" and deleting all references to "GFC
Financial Corporation" and substituting therefor references to "The FINOVA Group
Inc."
B. AMENDMENTS TO SECTION 2.11: INCREASES OF COMMITMENTS.
Section 2.11 of the Credit Agreement is hereby amended by deleting the heading
of such Section and substituting therefor a heading reading "Reduction and
Increase of the Commitments" and adding at the end thereof the following clause
(c):
"(c) At any time, if no event has occurred and is continuing which
constitutes an Event of Default or which would constitute an Event of
Default but for the requirement that notice be given or time elapse or
both, the Company may, with the consent of any Lender, increase the
Commitment of such Lender provided that such increase in the
Commitment of such Lender shall be effective upon the receipt by the
Administrative Agent of a commitment increase letter in substantially
the form of Exhibit G hereto (each a "Commitment Increase Letter"). No
Lender shall have any obligation to agree to any increase in its
Commitment and such agreement shall be at the sole discretion of each
such Lender."
C. AMENDMENT TO SECTION 4.01(G): REPORTING OF PAST DUE
ACCOUNTS. Section 4.01(g) of the Credit Agreement is hereby amended by deleting
the reference to the amount of $20,000,000 and substituting therefor reference
to the amount of $30,000,000.
D. AMENDMENT TO SECTION 4.02(A): RATIO OF INDEBTEDNESS TO
STOCKHOLDER'S EQUITY. Section 4.02(a) of the Credit Agreement is hereby amended
by deleting the phrase reading "total outstanding Indebtedness of the Company
and its consolidated subsidiaries to Stockholder's Equity" and substituting
therefor the phrase "(a) an amount equal to (x) total outstanding Indebtedness
of the Company and its consolidated subsidiaries less (y) the cash and cash
equivalents of the Company and its consolidated subsidiaries, except funds held
in escrow, to (b) Stockholder's Equity".
E. AMENDMENT TO EXHIBITS: EXHIBIT G. The Credit Agreement is
further amended by annexing as Exhibit G thereto Exhibit G as annexed hereto.
SECTION 3. 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
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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 the Company or its
Subsidiaries, or (iv) require any approval 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
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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 4. CONDITIONS TO EFFECTIVENESS
Section 2 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 "Second Amendment Effective
Date"):
A. On or before the Second Amendment Effective Date, the
Company shall deliver to the Lenders (or to the Agents with sufficient
originally executed copies, where appropriate, for each Lender and its counsel)
the following, each, unless otherwise noted, dated the Second 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 Second 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 Second 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 5. 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
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"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 LAWS 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 Majority 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
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Title Senior Vice President -
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Treasurer
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By /s/ Xxxxxx Xxxxxx
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Title Vice President -
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Assistant Treasurer
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The Lenders:
CITIBANK, N.A. (Individually
and as an Agent and
Administrative Agent)
By /s/ Xxxxxxx X. Xxxxx
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Title Vice President
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BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By /s/
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Title Managing Director
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BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION (as an
Agent)
By /s/
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Title Managing Director
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BANK OF MONTREAL (Individually
and as an Agent)
By /s/
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Title
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CHEMICAL BANK (Individually
and as an Agent)
By /s/ P.A. Xxxxxx
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Title
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NATIONAL WESTMINSTER BANK USA
(Individually and as an Agent)
By /s/ Xxxxxx X. Xxx
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Title Vice President
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BANK OF AMERICA ILLINOIS
By /s/
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Title Managing Director
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THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
By /s/
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Title Vice President
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CREDIT SUISSE
By /s/ Xxxxxxx Xxxxxxxxxx
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Title Member Senior Management
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By /s/ Xxxx X. Xxxxxx
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Title Associate
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THE INDUSTRIAL BANK OF JAPAN,
LIMITED, LOS ANGELES AGENCY
By /s/
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Title Senior Vice President
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& Senior Manager
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NATIONSBANK OF GEORGIA, N.A.
By /s/
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Title Vice President
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UNION BANK OF SWITZERLAND LOS
ANGELES BRANCH
By /s/ Xxxxxx X. XxXxxxxxx Xx.
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Title Assistant Vice President
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By /s/ Xxxxxx X. Xxxxxxxx
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Title Assistant Vice President
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WESTDEUTSCHE LANDESBANK
GIROZENTRALE - NEW YORK AND
CAYMAN ISLANDS BRANCHES
By /s/
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Title Managing Director
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By /s/ Xxxxx Xxxxxxxxx
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Title Associate
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CREDIT LYONNAIS
SAN XXXXXXXXX XXXXXX
By /s/ Xxxxxxx X. Xxxxxxx
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Title Vice President & Manager
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FIRST INTERSTATE BANK OF
ARIZONA, N.A.
By /s/
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Title Vice President
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NATIONAL WESTMINSTER BANK PLC
By /s/
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Title Vice President
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ROYAL BANK OF CANADA
By /s/ Xxx X. Xxxxxxxxxx
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Title Manager
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SOCIETE GENERALE
By /s/ X. Xxxxxx Xxxxxxx
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Title Vice President
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BANK ONE, ARIZONA, N.A.
By /s/
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Title Vice President
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DRESDNER BANK AG LOS ANGELES
AGENCY
By /s/ Xxxxxx X. Xxxxx
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Title Vice President
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By /s/ Xxxxxx X. Xxxxxx
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Title Vice President
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UNION BANK
By /s/
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Title Vice President
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THE LONG-TERM CREDIT BANK OF
JAPAN, LTD., LOS ANGELES
AGENCY
By /s/ Y. Kamisawa
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Title
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By /s/
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Title
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THE MITSUBISHI TRUST AND
BANKING CORPORATION, ACTING
THROUGH ITS LOS ANGELES AGENCY
By /s/
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Title Senior Vice President
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& Chief Manager
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ARAB BANKING CORPORATION
By /s/
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Title Vice President & Manager
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THE BANK OF NOVA SCOTIA
By /s/
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Title Officer
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FIRST FIDELITY BANK, NATIONAL
ASSOCIATION
By /s/ Xxxxxxx Xxxxxx
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Title Vice President
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BANK HAPOALIM, B.M.,
LOS ANGELES BRANCH
By /s/
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Title Vice President
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By /s/
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Title Vice President
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BANK OF AMERICA ARIZONA
By /s/
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Title Vice President
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BANK OF HAWAII
By /s/ Xxxxxx X. Xxxxxxxxx
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Title Vice President
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BANQUE NATIONALE DE PARIS
By /s/ X. Xxxxx
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Title Senior Vice President
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& Manager
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By /s/
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Title Vice President
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COMERICA BANK
By /s/
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Title Assistant Vice President
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CREDIT AGRICOLE
By /s/ Xxxxx Xxxxx
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Title Executive Vice President
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DG BANK DEUTSCHE
GENOSSENSCHAFTSBANK
By /s/ Xxxxx X. Xxxxxxxx
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Title Vice President
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By /s/ Xxxxxx X. Xxxxxx
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Title Vice President
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KREDIETBANK N.V.
By /s/
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Title Vice President
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By /s/ Xxxxxx Xxxxxxxx
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Title Vice President
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XXX XXXX, N.A.
By /s/ Xxxxxx X. Xxxxxx, Xx.
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Title Vice President
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ISTITUTO BANCARIO SAN PAOLO DI
TORINO S.P.A.
By /s/
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Title Branch Manager
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By /s/
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Title Assistant Vice President
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THE SANWA BANK, LIMITED, LOS
ANGELES BRANCH
By /s/
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Title Vice President
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UNITED STATES NATIONAL BANK
OF OREGON
By /s/ Xxxxxxx X. Xxxxxx
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Title Credit Officer
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ABN AMRO BANK N.V., LOS
ANGELES INTERNATIONAL BRANCH
By /s/ Xxxxx X. Xxxxxxx
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Title Assistant Vice President
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By /s/ Xxxx X. Xxxxxx
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Title Vice President
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BANK OF IRELAND
By /s/
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Title Assistant Treasurer
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THE BANK OF CALIFORNIA, N.A.
By /s/
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Title
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FUJI BANK, LTD.
By /s/ Xxxxxxxx Xxxxxxx
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Title Joint General Manager
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THE SAKURA BANK, LTD.
By /s/ Xxxxx Xxxx
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Title Assistant General Manager
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& Senior Vice President
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BANQUE PARIBAS
By /s/
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Title Senior Vice President
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By /s/
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Title Vice President
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COMPAGNIE FINANCIERE DE
CIC ET DE L'UNION EUROPEENNE
By /s/ Xxxxxx X. Xxxx
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Title Vice President
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By /s/ Xxxx Xxxxxxx
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Title Vice President
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THE SUMITOMO BANK, LIMITED,
LOS ANGELES BRANCH
By /s/
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Title General Manager
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DEUTSCHE BANK AG NEW YORK
AND/OR CAYMAN ISLANDS BRANCHES
By /s/ Xxxxxxxxxxx xx Xxxxxxx
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Title Assistant Vice President
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By /s/ Gayma Z. Shiorarain
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Title Vice President
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COMMERZBANK AG,
LOS ANGELES BRANCH
By /s/ Xxxxxx X. Xxxxxx
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Title Vice President
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By /s/ Christian Jagenberg
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Title Senior Vice President
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& General Manager
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THE DAI-ICHI KANGYO BANK, LTD.
LOS ANGELES AGENCY
By /s/ Xxxxxxxx Xxxxxx
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Title Senior Vice President
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& Joint General Manager
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MONTE DEI PASCHI DI SIENA
By /s/ X.X. Xxxxxx
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Title First Vice President
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& Deputy General Manager
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By /s/ Xxxxx X. Xxxxx
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Title Vice President
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THE SUMITOMO TRUST AND BANKING
CO., LTD., LOS ANGELES AGENCY
By /s/ Magayuki Imanaka
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Title Senior Manager
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LLOYDS BANK PLC
By /s/ Windsor X. Xxxxxx
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Title Vice President & Manager
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By /s/
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Title Senior Vice President
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CHIBA BANK, LTD.
By /s/ Xxxxxxx Xxxxx
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Title General Manger
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EXHIBIT G
[LETTERHEAD OF FINOVA CAPITAL CORPORATION]
INCREASE OF COMMITMENT
, 19
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Citibank, N.A., as Administrative Agent
c/o Citicorp USA, Inc.
Xxx Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Loan Administration
Ladies and Gentlemen
In accordance with Section 2.11(c) of the Sixth Amendment and
Restatement dated as of May 16, 1994 of Credit Agreement dated as of May 31,
1976, as heretofore amended (the "Credit Agreement"; terms defined therein being
used herein as therein defined), among the undersigned, the Lenders parties
thereto, Bank of America National Trust and Savings Association, Bank of
Montreal, Chemical Bank, Citibank, N.A. and National Westminster Bank USA, as
Agents, and Citibank, N.A., as Administrative Agent, the undersigned hereby
notifies you of the increase of [$ ] to [NAME OF INCREASING BANK]'s
Commitment which shall result in [NAME OF INCREASING BANK]'s net Commitment
equalling [$ ].
The undersigned hereby certifies, on behalf of the Company that
the representations and warranties contained in Section 3.01 of the Credit
Agreement are true and accurate as though made on and as of the date hereof
(except to the extent any representation and warranty is expressly made as of a
specific date, in which case such representation and warranty shall be true and
correct in all material respects as of such specific date).
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Such increase of the Commitment of [NAME OF INCREASING BANK] shall
be subject to [NAME OF INCREASING BANK]'s execution of a counterpart of this
notice on or before , 19 , and shall become effective as of
, 19 .
Very truly yours,
FINOVA CAPITAL
CORPORATION
By
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Title:
The undersigned agrees to the increase of its Commitment as
noticed above.
Date: , 19 [NAME OF INCREASING BANK]
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By
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Title:
G-2
