EXECUTION COPY
FINOVA CAPITAL CORPORATION
SIXTH AMENDMENT DATED AS OF MAY 17, 1999 TO CREDIT AGREEMENT (SHORT
TERM FACILITY) DATED AS OF MAY 16, 1994
This SIXTH AMENDMENT TO CREDIT AGREEMENT (this "AMENDMENT") is dated as of
May 17, 1999 and entered into by and among FINOVA CAPITAL CORPORATION, a
Delaware corporation (formerly known as Greyhound Financial Corporation,
hereinafter the "COMPANY"), the undersigned lenders (collectively the
"LENDERS"), the undersigned Agents, NATIONSBANK N.A., 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
Credit Agreement (Short Term Facility) dated as of May 16, 1994, by and among
the Company, the Lenders, the Agents and the Administrative Agent, as amended by
a First Amendment to Credit Agreement dated as of September 30, 1994, a Second
Amendment to Credit Agreement dated as of May 11, 1995, a Third Amendment to
Credit Agreement dated as of November 1, 1995, a Fourth Amendment to Credit
Agreement dated as of May 15, 1996 and a Fifth Amendment to Credit Agreement
dated as of May 20, 1997 (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 parties to the Credit Agreement wish to modify the terms of
the Credit Agreement;
WHEREAS, certain Lenders declined to consent to the Company's request for
an extension of the Termination Date, and pursuant to Section 2.10(b) of the
Credit Agreement, the Company desires to exercise its rights to terminate the
respective Commitments of such non-consenting Lenders and to increase the
respective Commitments of certain existing Lenders pursuant to Section 2.10(c)
and/or add additional Lenders pursuant to Section 8.02;
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1. COMMITMENTS AND LENDERS
A. Pursuant to Section 2.10(b) of the Credit Agreement, the Company hereby
terminates the Commitment of each Lender which has not consented to the
Company's request for an extension of the Termination Date, and by execution of
this Amendment the Administrative Agent hereby acknowledges such termination.
B. Pursuant to Section 2.10(c) of the Credit Agreement, the Company hereby
increases the Commitments of certain existing Lenders, such increased
Commitments and the corresponding Lenders being identified in the amended
Schedule 2 attached hereto, and by execution of this Amendment the Lenders whose
Commitments are so increased hereby consent to such increases in their
respective Commitments.
C. Pursuant to Section 8.02 of the Credit Agreement, the Company hereby
adds certain additional lenders as Lenders under the Credit Agreement, all
Lenders (including such additional Lenders) as of the Amendment Effective Date
being identified in the amended Schedule 2 attached hereto. By its execution of
this Amendment each such additional Lender hereby becomes a party to the Credit
Agreement, as amended by this Amendment. By its execution of this Amendment the
Administrative Agent hereby acknowledges the addition of such additional
Lenders.
D. The Commitment of each Lender as of the Amendment Effective Date is set
forth in the amended Schedule 2 attached hereto.
SECTION 2. AMENDMENTS TO THE CREDIT AGREEMENT
A. Amendment to Definition of Margin. Table B to the definition of "Margin"
is hereby amended by deleting such table in its entirety, and by substituting in
lieu thereof the following:
" Table B
Eurodollar Margins
(in basis points)
Outstanding Advances as a
Percentage of Commitments (without
giving effect to any B reduction)
---------------------------------------------------------
Greater than or equal to Greater than or
Level Less than 35% 35% but less than 65% equal to 65%
----- ------------- --------------------- ------------
Level 1 22.50 35.00 47.50
Xxxxx 0 26.50 39.00 61.50
Xxxxx 0 27.50 40.00 62.50
Xxxxx 0 32.50 45.00 67.50
Xxxxx 0 55.00 67.50 90.00
Xxxxx 0 75.00 87.50 110.00"
B. AMENDMENT TO SECTION 4.02(b). Section 4.02(b) of the Credit Agreement is
hereby amended by (a) deleting therefrom the phrase "and (iii)" and substituting
in lieu thereof the phrase "and (iv)", and (b) inserting the following
immediately prior to such phrase "and (iv)":
"(iii) Indebtedness secured by any Lien existing on property of a Person
immediately prior to its being consolidated with or merged into the Company
or a Subsidiary or its becoming a Subsidiary, or any Lien existing on any
property acquired by the Company or any Subsidiary at the time such
property is so acquired (whether or not the Indebtedness secured thereby
shall have been assumed), PROVIDED that (x) no such Lien shall have been
created or assumed in contemplation of such consolidation or merger or such
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Person's becoming a Subsidiary or such acquisition of property, and (y)
each such Lien shall extend solely to the item or items of property so
acquired and, if required by the terms of the instrument originally
creating such Lien, other property which is an improvement to or is
acquired for specific use in connection with such acquired property."
C. AMENDMENT TO SECTION 4.02(e). Section 4.02(e) of the Credit Agreement is
hereby deleted in its entirety.
D. AMENDMENT TO SECTION 4.02(g). Section 4.02(g) of the Credit Agreement is
hereby deleted in its entirety.
E. AMENDMENT TO SCHEDULE 1. Schedule I attached to the Credit Agreement is
hereby amended by adding the following information to the Schedule:
Bank Domestic Lendine Office Eurodollar Lending Office
---- ----------------------- -------------------------
Barclays Bank, PLC Barclays Bank, PLC Barclays Bank, PLC
000 Xxxxxxxx 000 Xxxxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attention: Xxxxxxxx Challenger Attention: Xxxxxxxx Challenger
Telephone No.: (000) 000-0000 Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000 Facsimile No.: (000) 000-0000
F. AMENDMENT TO SCHEDULE 2. Schedule 2 attached to the Credit Agreement is
hereby amended by deleting in its entirety and substituting in lieu thereof the
Schedule 2 attached hereto.
G. AMENDMENT TO COMPLIANCE CERTIFICATE. The form of Compliance Certificate
attached to the Credit Agreement as Exhibit B is hereby amended and restated in
its entirety to read as set forth on Exhibit B to this Amendment.
SECTION 3. COMPANY'S REPRESENTATIONS ANT) 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
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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 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 1 and Section 2 of this Amendment shall become effective as of the
date hereof (such date being referred to herein as the "Amendment Effective
Date"), PROVIDED that all of the following shall have been satisfied:
A. The Company shall have delivered to the Administrative Agent the
following, each, unless otherwise noted, dated the Amendment Effective Date:
(i) 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;
(ii) Signature and incumbency certificates of its officers executing
this Amendment; and
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(iii) Executed copies of this Amendment.
B. 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
"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 fill 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, the
Majority Lenders, each Lender whose Commitment is increased pursuant to Section
1B hereof and each additional Lender added as a Lender pursuant to Section 1C
hereof.
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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 Xxxxxx
------------------------------------
Senior Vice President
Treasurer
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------
Vice President
Assistant Treasurer
The Lenders:
CITIBANK, N.A. (Individually and as
Agent and Administrative Agent)
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Vice President
BANK OF MONTREAL (Individually and as an
Agent)
By: /s/ Xxxx X. Xxxxxxxx
------------------------------------
Director
The CHASE MANHATTAN BANK (Individually
and as an Agent)
By: /s/ Xxxxx Xxxxxx
------------------------------------
Vice President
CREDIT SUISSE FIRST BOSTON
By: /s/ Xxx Xxxxx
------------------------------------
Director
By:
------------------------------------
Xxxxxx X. Xxxxxx
Vice President
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
LOS ANGELES AGENCY
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
SVP & SDGM
NATIONSBANK, N.A.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Vice President
UNION BANK OF CALIFORNIA, N.A.
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Vice President
WESTDEUTSCHE LANDESBANK GIROZENTRALE-NEW
YORK AND CAYMAN ISLANDS BRANCHES
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Vice President
By:
------------------------------------
Xxx X. Xxxxxxx
Associate
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
First Vice President & Manager
XXXXX FARGO BANK
By:
------------------------------------
Xxxx X Xxxxxx
SVP/Division Mgr.
FMB BANK
(formerly The First National Bank of
Maryland)
By: /s/ Xxxxxx X. Xxxx
------------------------------------
Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Xxxxxxx Xxxxxx
------------------------------------
AVP
DRESDNER BANK, AG, NEW YORK AND GRAND
CAYMAN BRANCHES
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Vice President
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Assistant Vice President
UNION BANK OF CALIFORNIA, N.A.
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Vice President
ARAB BANKING CORPORATION, NEW YORK
BRANCH
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Chief Representative
THE BANK OF NOVA SCOTIA
By: /s/ X. Xxx Xxxxxxxx
------------------------------------
Sr. Relationship Manager
FIRST UNION NATIONAL BANK
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Senior Vice President
BANK OF HAWAII
By: /s/ Xxxxxx Xxxxxxxxx
------------------------------------
Vice President
BANQUE NATIONALE DE PARIS
By: /s/ X. Xxxxxxx
------------------------------------
Sr. V.P. & Manager
By: /s/ X. Xxxx
------------------------------------
Vice President
COMERICA BANK
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Account Officer
CREDIT AGRICOLE INDOSUEZ
By: /s/ Xxxxxxx Xxxxxxxxx
------------------------------------
First Vice President and
Managing Director
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Vice President and Senior
Relationship Manager
DG BANK DEUTSCHE GENOSSENSCHAFTSBANK, AG
By: /s/ Xxx X. Xxxxxx
------------------------------------
Assistant Vice President
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Vice President
KBC BANK N.V.
By: /s/ Xxxxxx Xxxxxxxx
------------------------------------
First Vice President
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
First Vice President
ISTITUTO BANCARIO SAN PAOLO DI TORINO
ISTITUTO MOBILIARE ITALIANO S.P.A.
By: /s/ Xxxxx Xxxxxxx
------------------------------------
Deputy Manager
By: /s/ Xxxxxx Xxxxxxx
------------------------------------
First Vice President
UNITED STATES NATIONAL BANK OF OREGON
By: /s/ Xxxxxx X. Clgary
------------------------------------
Vice President
ABN AMRO BANK N.V.
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Vice President
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Group Vice President
PARIBAS
By: /s/ Xxxxx Xxxxx
------------------------------------
Head of Credit-NY
By: /s/ Xxxx XxXxxx
------------------------------------
Sr. Credit Officer
DEUTSCHE BANK AG NEW YORK AND/OR CAYMAN
ISLANDS BRANCHES
By: /s/ Xxxxx X. Xxxxxxxxxx
------------------------------------
Director
By: /s/ Xxxx X. XxXxxx
------------------------------------
Director
BANCA MONTE DEI PASCHI DI SIENA S.p.A.
By: /s/ X.X. Xxxxxx
------------------------------------
F.V.P. & Dep General Manager
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Vice President
DEN DANSKE BANK AKTIESELSKAB, CAYMAN
ISLANDS BRANCH
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Vice President
By: /s/ Xxxx X. X'Xxxxx
------------------------------------
Vice President
COMMERZBANK AG, LOS ANGELES BRANCH
By: /s/ Christian Jagenberg
------------------------------------
SVP and Manager
By: /s/ Xxxxxx X. Largsen
------------------------------------
Vice President
THE FUJI BANK, LTD. LOS ANGELES AGENCY
By: /s/ Masahito Fukuoka
------------------------------------
Joint Commercial Manager
