FINOVA CAPITAL CORPORATION
FIFTH AMENDMENT TO SIXTH AMENDMENT AND
RESTATEMENT OF CREDIT AGREEMENT DATED AS OF MAY 20, 1997
This FIFTH AMENDMENT TO SIXTH AMENDMENT AND RESTATEMENT OF CREDIT
AGREEMENT (this "Amendment") is dated as of May 20, 1997 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, THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION), and CITIBANK, 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, a Third
Amendment to Sixth Amendment and Restatement of Credit Agreement dated as of
November 1, 1995, and a Fourth Amendment to Sixth Amendment and Restatement of
Credit Agreement dated as of May 15, 1996 (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, 2002, and that certain provisions 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.
(1) 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, 2002; provided,
however, that, if any Lender has consented to an Extension Request in
accordance with Section 2.17, with
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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."
(2) The Credit Agreement is hereby amended by deleting
therefrom the definition of "Eligible Assignee" and substituting therefor the
following:
"Eligible Assignee" means (a) any financial institution or
entity engaged in the business of extending revolving credit
and having consolidated assets of $500,000,000 or more;
excluding, however, any insurance companies or commercial
finance companies; and (b) any entity engaged in the business
of lending that is an affiliate of a Lender or of a Person of
which a Lender is a subsidiary, excluding, however, any
insurance companies or commercial finance companies.
(3) The definition of "Exposure" in Section 1.01 of the Credit
Agreement is hereby amended and restated in its entirety as follows:
"'Exposure' shall mean the aggregate Carrying Value
of all transactions in respect of (a) any Person which is a
customer of the Company or any Subsidiary, and (b) (if and to
the extent of the amount guaranteed by such Person) (i) any
subsidiary or other affiliate of such Person and (ii) any
other Person."
B. Amendment to Section 2.17.
Section 2.17 of the Credit Agreement is hereby
amended by deleting the phrase "twenty-seven months" in the
first sentence of such Section and inserting in lieu thereof
the phrase "fifty-one (51) months".
C. Amendment to Section 4.01(b). Section 4.01 (b) of the Credit
Agreement is hereby amended and restated in its entirety as follows:
"(b) Furnish to each Lender (i) promptly upon becoming aware
of the occurrence of any (A) Termination Event, or (B) "prohibited
transaction," as such term is defined in Section 4975 of the Code, or
Section 406 of ERISA, in connection with any Plan or any trust created
thereunder, a written notice specifying the nature thereof, what action
the Company has taken, is taking or proposes to take with respect
thereto, and, when known, any action taken or threatened by the
Internal Revenue Service, the Department of Labor, or the PBGC with
respect thereto and (ii) with reasonable promptness, copies of (A) all
notices received by the Company or any of its ERISA Affiliates of the
PBGC's intent to
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terminate any Plan or to have a trustee appointed to administer any
Plan; and (B) all notices received by the Company or any of its ERISA
Affiliates from a multiemployer plan sponsor concerning the imposition
or amount of withdrawal liability pursuant to Section 4202 of ERISA."
D. Amendment to Section 4.01 (h). Section 4.01(h) of the Credit
Agreement is hereby amended and restated in its entirety as follows:
"(h) Perform and comply, and cause the Subsidiaries to perform
and comply, with all material obligations of the Company and the
Subsidiaries under all laws applicable to the Company or the
Subsidiaries and all material indentures, agreements or other
instruments to which the Company or any of the Subsidiaries is a party
or by which the Company or any of the Subsidiaries or any of its or
their properties is bound."
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 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
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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 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
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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 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
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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:
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FINOVA CAPITAL CORPORATION
By /s/ Xxxxxx X. Xxxxxxxxxxx
Title Senior Vice President - Treasurer
By /s/ Xxxxxx Xxxxxx
Title Vice President-Deputy Treasurer
The Lenders:
------------
CITIBANK, N.A. (Individually and as an
Agent and Administrative Agent)
By /s/ Xxxxxxxx Xxxxxxxxx
Title Vice President
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION
(as an Agent)
By /s/ Xxxxxx Xxxxxxxx
Title Managing Director
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION
By /s/ Xxxxxx Xxxxxxxx
Title Managing Director
BANK OF MONTREAL (Individually and
as an Agent)
By /s/ J. Xxxxxx Xxxxxxx
Title Managing Director
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FLEET BANK , N.A.
By /s/ Xxxxxx X. Xxx
Title Vice President
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
(Individually and as an Agent)
By /s/ X. X. Xxxxxx
Title Vice President
CREDIT SUISSE
By /s/ Xxxxx
Title Director
By /s/ Xxx Xxxxx
Title Director
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, LOS ANGELES AGENCY
By /s/ Xxxxxxx X. Xxxxxxxx
Title SVP & Sr. Manager
NATIONSBANK, (SOUTH) N.A.
By /s/ Xxxxx Xxxx
Title Senior Vice President
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UNION BANK OF SWITZERLAND
New York Branch
By /s/ Xxxxxx Xxxxxxxx
Title Vice President
By /s/ Xxxxx Xxxxxxxx
Title Vice President
WESTDEUTSCHE LANDESBANK
GIROZENTRALE - NEW YORK AND
CAYMAN ISLANDS BRANCHES
By /s/ Xxxxxxx X. Xxxxxx
Title Vice President
By /s/ Xxxxxxx Xxxxxxx
Title Associate
CREDIT LYONNAIS
SAN XXXXXXXXX XXXXXX
By /s/ Xxxxxx X. Xxxxx
Title Vice President & Manager
XXXXX FARGO BANK
By /s/ Senior Vice President
NATIONAL WESTMINSTER BANK
PLC
By /s/ Xxxxx Xxxxxx
Title Vice President
ROYAL BANK OF CANADA
By /s/ Xxxxxxx X. Xxxxx
Title Senior Manager
Corporate Banking
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SOCIETE GENERALE
By /s/ X. Xxxxxx Xxxxxxx
Title Vice President
BANK ONE, ARIZONA, NA
By /s/ Vice President
DRESDNER BANK AG
NEW YORK BRANCH
And GRAND CAYMAN BRANCH
By /s/ Xxxx X. Xxxxxxx
Title Assistant Vice President
By /s/ Xxxxxxxxxxx X. Xxxxxxx
Title Assistant Treasurer
UNION BANK of CALIFORNIA, N.A.
By /s/ Xxxxxx X. Xxxxx
Title Vice President
THE LONG-TERM CREDIT BANK OF
JAPAN, LTD., LOS ANGELES AGENCY
By /s/ T. Xxxxxx Xxxxxxx XX
Title Deputy General Manager
By /s/ Xxxxx Read
Title Vice President
THE MITSUBISHI TRUST AND
BANKING CORPORATION, acting
through its LOS ANGELES AGENCY
By /s/ Yasushi Satomi
Title Senior Vice President
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ARAB BANKING CORPORATION
By /s/ Xxxxxxx Xxxxxx
Title V. P & Manager
Los Angeles Representative Office
THE BANK OF NOVA SCOTIA
By /s/ Xxxx Xxxxx
Title Officer
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA
By /s/ A. Xxxxxxx Xxxxxxx
Title Vice President
BANK OF HAWAII
By /s/ Xxxxxx X. Xxxxxxxx
Title Vice President
BANQUE NATIONALE DE PARIS
By /s/ Senior Vice President
By /s/ Xxxxxxxx Xxxx
Title Vice President
COMERICA BANK
By /s/ Xxxxxxxx X. Skerrl
Title Corporate Baning Officer
CREDIT AGRICOLE
By /s/ Senior Vice President
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DG BANK DEUTSCHE
GENOSSENSCHAFTSBANK
By /s/ Xxxxx X. Xxxxxxxx
Title Vice President
KREDIETBANK N.V.
By /s/ Xxxxxx Xxxxxxxx
Title Vice President
By /s/ Xxx X. Xxxxx
Title Vice President
NBD BANK
By /s/ Xxxxxx X Xxxxxxxx
Title First Vice President
UNITED STATES NATIONAL BANK
OF OREGON
By /s/ Fiza Noordiu
Title
ABN AMRO BANK N.V.,
LOS ANGELES INTERNATIONAL
BRANCH
By /s/ Xxxxx X. Xxxxxxx
Title Vice President/Director
By /s/ Xxxxxxx X. Xxxxxx
Title Vice President
THE SAKURA BANK, LTD.
By /s/ Orusa Sato
Title Senior Vice President
Assistant General Manager
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BANQUE PARIBAS
By /s/ Xxxxx X. Xxxxxxx
Title Vice President
By /s/ Xxxxxxx X. Xxxxxxx
Title General Manager
Western Region
COMPAGNIE FINANCIERE DE
CIC ET DE L'UNION EUROPEENNE
By /s/ Xxxx Skiden
Title Vice President
By /s/ Xxxxx Xxxxxx
Title Assistant Vice President
DEUTSCHE BANK AG NEW YORK
AND/OR CAYMAN ISLANDS
BRANCHES
By /s/ Xxxxxx X. Xxxxxxxxxx
Title Vice President
By /s/ Xxxx X. Xxxxxx
Title Associate
THE DAI-ICHI KANGYO BANK, LTD.
LOS ANGELES AGENCY
By /s/ Xxxxxxxxx Xxxxxxxxx
Title Sr. Vice President &
Joint General Manager
BANCA MONTE DEI PASCHI DI
SIENA S.p.A.
By /s/ X. X. Xxxxxx
Title S.V.P. & Dept. General Manager
By /s/ Xxxxx X. Xxxxx
Title Vice President
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THE SUMITOMO TRUST AND
BANKING CO., LTD.,
LOS ANGELES AGENCY
By /s/ Xxxxxx X. Xxxxxxxx
Title Vice President & Manager
CHIBA BANK, LTD.
By /s/ Xxxxxxx Xxxxx
Title General Manager
DEN DANSKE BANK AKTIESELSKAB,
CAYMAN ISLANDS BRANCH
By /s/ Xxxxxx Xxxxxxxxxxx
Title Vice President
By /s/ Xxxx X. X'Xxxxx
Title Vice President
CIBC Inc.
By /s/ Director, CIBC Wood Gundy
Title Securities Corp., As Agent
COMMERZBANK AG,
LOS ANGELES BRANCH
By /s/ Christian Jagenberg
Title Senior Vice President and Manager
By /s/ Xxxxxx Fl Xxxxxx
Title Vice President
THE FUJI BANK, LIMITED,
LOS ANGELES AGENCY
By /s/ Xxxxxxxx Xxxxxxx
Title Joint General Manager
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