RECITALS
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EXHIBIT 10.C
FINOVA CAPITAL CORPORATION
SECOND AMENDMENT DATED AS OF MAY 11, 1995
TO CREDIT AGREEMENT (SHORT TERM FACILITY)
This SECOND AMENDMENT TO CREDIT AGREEMENT (SHORT TERM
FACILITY) (this "Amendment") is dated as of May 11, 1995 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, 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 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 (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
23, 1995;
WHEREAS, the Company has requested that the Termination Date
be extended for 364 days to May 21, 1996, 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:
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SECTION 1. EXTENSION OF TERMINATION DATE
The Company hereby requests that the Termination Date be
extended for 364 days as contemplated by Section 2.15 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 2.15(b) of the Credit Agreement.
SECTION 2. AMENDMENTS TO THE CREDIT AGREEMENT
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 2.10: INCREASES OF COMMITMENTS.
Section 2.10 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
any funds held in escrow, to (b) Stockholder's Equity".
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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 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.
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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 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.
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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 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 Agents 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/
-------------------------
Title Managing Director
----------------------
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION (as an
Agent)
By /s/
-------------------------
Title Managing Director
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BANK OF MONTREAL (Individually
and as an Agent)
By /s/
-------------------------
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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XXXXX XXXX XX XXXXXX
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
------------------------
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
------------------------
By /s/ Xxxxxx X. Xxxxxx
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Title Vice President
------------------------
KREDIETBANK N.V.
By /s/
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Title Vice President
------------------------
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
------------------------
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
--------------------------
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
--------------------------
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
------------------------
By /s/ Christian Jagenberg
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Title Senior Vice President
------------------------
& General Manager
------------------------
THE DAI-ICHI KANGYO BANK, LTD.
LOS ANGELES AGENCY
By /s/ Xxxxxxxx Xxxxxx
----------------------------
Title Senior Vice President
-------------------------
& 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
--------------------------
& Deputy General Manager
--------------------------
By /s/ Xxxxx X. Xxxxx
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Title Vice President
--------------------------
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
-------------------------
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 2.10(c) of the Credit Agreement, dated
as of May 16, 1994, 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).
G-1
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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
