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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C, 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): February 3, 1995
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FINOVA CAPITAL CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 1-7543 94-1278569
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(State or Other Jurisdiction (Commission (I.R.S. Employer
of Incorporation) File Number) Identification No.)
1850 NORTH CENTRAL AVENUE, PHOENIX, ARIZONA 85004
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: 602/207-6900
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GREYHOUND FINANCIAL CORPORATION
DIAL CORPORATE CENTER, PHOENIX, ARIZONA 85077
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(Former Name or Former Address, if Changed Since Last Report)
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Item 7. Financial Statements and Exhibits.
(c) Exhibits:
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Exhibits Title
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<S> <C>
1.1 Underwriting Agreement, dated February 3, 1995,
between the Registrant and Salomon Brothers Inc
4.1 Officers' Certificate, dated February 10, 1995, without
exhibit, pursuant to Section 2.02 of the Indenture, dated
as of September 1, 1992, between the Registrant and The Chase
Manhattan Bank, N.A., establishing the terms of the Registrant's
8% Notes due February 1, 2000 (the "Notes").
4.2 Specimen certificate evidencing the Notes.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
FINOVA Capital CORPORATION
(Registrant)
Dated: February 10, 1995 By: /s/ Bruno A. Marszowski
----------------------------------------------
Bruno A. Marszowski, Senior Vice President,
Chief Financial Officer and Controller
Principal Financial Officer/Authorized Officer
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EXHIBIT 1.1
EXECUTION COPY
$100,000,000
FINOVA CAPITAL CORPORATION
(a Delaware corporation)
8% Notes Due February 1, 2000
UNDERWRITING AGREEMENT
February 3, 1995
SALOMON BROTHERS INC
Seven World Trade Center
New York, New York 10048
Dear Sirs:
FINOVA Capital Corporation (formerly known as Greyhound Financial
Corporation), a Delaware corporation (the "Company"), confirms its agreement
with Salomon Brothers Inc (the "Underwriter") with respect to the sale by the
Company and the purchase by the Underwriter of $100,000,000 aggregate principal
amount of the Company's 8% Notes Due February 1, 2000 (the "Securities"). The
Securities are to be issued pursuant to an indenture dated as of September 1,
1992 (the "Indenture") between the Company and The Chase Manhattan Bank, N.A.,
as trustee (the "Trustee").
Prior to the purchase and public offering of the Securities by the
Underwriter, the Company and the Underwriter shall enter into an agreement
substantially in the form of Exhibit A hereto (the "Pricing Agreement"). The
Pricing Agreement may take the form of an exchange of any standard form of
written telecommunication between the Company and the Underwriter and shall
specify such applicable information as is indicated in Exhibit A hereto. The
offering of the Securities will be governed by this Agreement, as supplemented
by the Pricing Agreement. From and after the date of the execution and
delivery of the Pricing Agreement, this Agreement shall be deemed to
incorporate the Pricing Agreement.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 33-52845) for the
registration of $1,000,000,000 of its Senior Debt Securities, including the
Securities, and the offering thereof from time to time under the Securities Act
of 1933, as amended (the "1933 Act"), has filed such amendments thereto, if
any, as may have been required to the date hereof,
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and will file such additional amendments thereto and such amended prospectuses
as may hereafter be required. Such registration statement has been declared
effective by the Commission and the Indenture has been qualified under the Trust
Indenture Act of 1939, as amended (the "1939 Act"). Such registration statement
(as amended, if applicable) and the prospectus constituting a part thereof
(including in each case all documents, if any, incorporated or deemed to be
incorporated by reference therein pursuant to the 1933 Act, the Securities
Exchange Act of 1934, as amended (the "1934 Act"), or otherwise, are hereinafter
referred to as the "Registration Statement" and the "Prospectus," respectively,
except that if any revised prospectus shall be provided to the Underwriter by
the Company for use in connection with the offering of the Securities which
differs from the Prospectus on file at the Commission at the time the
Registration Statement became effective (whether or not such revised prospectus
is required to be filed by the Company pursuant to Rule 424(b) of the 1933 Act
Regulations), the term "Prospectus" shall refer to such revised prospectus from
and after the time it is first provided to the Underwriter for such use. All
references in this Agreement to financial statements and schedules and other
information which is "contained," "included" or "stated" in the Registration
Statement or the Prospectus (and all other references of like import) shall be
deemed to mean and include all such financial statements and schedules and other
information which are or are deemed to be incorporated by reference in the
Registration Statement or the Prospectus, as the case may be; and all references
in this Agreement to amendments or supplements to the Registration Statement or
the Prospectus shall be deemed to mean and include the filing of any documents
under the 1934 Act after the date of this Agreement which are or are deemed to
be incorporated by reference in the Registration Statement or the Prospectus, as
the case may be.
The Company understands that the Underwriter proposes to make a public
offering of the Securities as soon as the Underwriter deems advisable after the
Pricing Agreement has been executed and delivered.
Section 1. Representations and Warranties.
(a) The Company represents and warrants to the Underwriter as of the
date hereof, as of the date of the Pricing Agreement (such latter date being
hereinafter referred to as the "Representation Date") and as of the Closing
Time (as defined in Section 2) as follows:
(i) At the time the Registration Statement became effective and
at the Representation Date, the Registration Statement did comply and
will comply in all material respects with the requirements of the 1933
Act and the 1933 Act Regulations and the 1939 Act, and the rules and
regulations of the Commission promulgated thereunder (the "1939 Act
Regulations") and did not and will not contain an untrue statement of
a material fact or omit to state a
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material fact required to be stated therein or necessary to make the
statements therein not misleading. The Prospectus, at the
Representation Date (unless the term "Prospectus" refers to a
prospectus provided to the Underwriter by the Company for use in
connection with the offering of the Securities differing from the
Prospectus on file at the Commission at the time the Registration
Statement becomes effective, in which case at the time it is first
provided to the Underwriter for such use) and at Closing Time referred
to in Section 2 hereof, will not include an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that the
representations and warranties in this subsection (i) shall not apply
to that part of the Registration Statement which shall constitute the
Statement of Eligibility under the 1939 Act on Form T-1 of the Trustee
or apply to statements in or omissions from the Registration Statement
or Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by the Underwriter expressly for
use in the Registration Statement or Prospectus.
(ii) The documents of the Company incorporated by reference in
the Prospectus, at the time they were or hereafter are filed with the
Commission, complied with and will comply in all material respects with
the requirements of the 1934 Act and the rules and regulations
thereunder (the "1934 Act Regulations"), and, when read together and
with the other information in the Prospectus, at the time the
Registration Statement became, and any amendments thereto become,
effective, did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of
the circumstances under which they were or are made, not misleading.
(iii) The accountants who certified the financial statements
included or incorporated by reference in the Prospectus are independent
public accountants as required by the 1933 Act and the 1933 Act
Regulations.
(iv) The financial statements included or incorporated by
reference in the Prospectus present fairly the respective financial
position of the Company and its consolidated subsidiaries, Fleet
Factors Corp. and TriCon Capital Corporation as of the dates indicated
and the results of each of their respective operations for the periods
specified; and except as stated therein, said financial statements have
been prepared in conformity with generally accepted accounting
principles applied on a consistent basis; the unaudited pro forma
consolidated financial statements, together with the related notes
included or incorporated by reference in the Prospectus have been
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prepared on a basis substantially consistent with the audited financial
statements of the Company set forth therein, the assumptions on which
such unaudited pro forma consolidated financial statements have been
prepared are reasonable and are set forth in the notes thereto, and
such unaudited pro forma consolidated financial statements have been
prepared, and the pro forma adjustments set forth therein have been
applied, in accordance with the applicable accounting requirements of
the 1933 Act and the 1933 Act Regulations (including, without
limitation, Regulation S-X promulgated by the Commission), and such pro
forma adjustments have been properly applied to the historical amounts
in the compilation of such statements.
(v) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus, except as otherwise
stated therein or contemplated thereby, (A) there has been no material
adverse change in the condition, financial or otherwise, of the Company
and its subsidiaries considered as one enterprise or in the earnings,
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary
course of business, and (B) there have been no material transactions
entered into by the Company or any of its subsidiaries other than those
in the ordinary course of business.
(vi) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware with corporate power and authority to own, lease and
operate its properties and conduct its business as described in the
Registration Statement; and the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required or appropriate,
except where the failure of the Company to so qualify, in the
aggregate, will not have a material adverse effect on the consolidated
financial condition or combined operations of the Company and its
Subsidiaries or of the Company and its Restricted Subsidiaries (as
those terms are defined in the Indenture).
(vii) Each subsidiary of the Company has been duly incorporated
and is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has corporate power and
authority to own, lease and operate its properties and conduct its
business as described in the Registration Statement and is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required
or appropriate, except where the failure of the subsidiaries to so
qualify, in the aggregate, will not have a material adverse effect on
the consolidated financial condition or combined operations of the
Company and its Subsidiaries or of the Company and its Restricted
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Subsidiaries; all of the issued and outstanding capital stock of each
such subsidiary has been duly authorized and validly issued and is
fully paid and nonassessable; and all the capital stock of each such
subsidiary is owned by the Company or its affiliates, directly or
through subsidiaries, free and clear of any mortgage, pledge, lien,
encumbrance, claim or equity.
(viii) The authorized, issued and outstanding capital stock of
the Company is as set forth in the Prospectus and the shares of issued
and outstanding Common Stock set forth thereunder have been duly
authorized and validly issued and are fully paid and nonassessable and
The FINOVA Group Inc. ("FINOVA") owns directly or indirectly all of the
outstanding shares of the Common Stock, which Common Stock constitutes
all of the issued and outstanding capital stock of the Company, free
and clear of any claims, liens, encumbrances or liabilities.
(ix) Neither the Company nor any of its subsidiaries is in
violation of its charter or in default in the performance or observance
of any obligations, agreements, covenants or conditions, which alone or
in the aggregate are material, contained in any contracts, indentures,
mortgages, loan agreements, notes, leases or other instruments, which
alone or in the aggregate are material, to which it is a party or by
which it or any of them or their properties may be bound; and the
execution, delivery and performance of this Agreement, the Indenture
and the consummation of the transactions contemplated herein and
therein have been duly authorized by all necessary corporate action and
will not conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any of its subsidiaries
pursuant to any material contract, indenture, mortgage, loan agreement,
note, lease or other instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them may be bound or
to which any of the property or assets of the Company or any of its
subsidiaries is subject, nor will such action result in any violation
of the provisions of the charter or by-laws of the Company or, to the
best of its knowledge, any law, administrative regulation or
administrative or court order or decree; and no consent, approval,
authorization, order or decree of any court or governmental agency or
body is required for the consummation by the Company of the
transactions contemplated by this Agreement, except such as may be
required under the 1933 Act, the 1939 Act, the 1933 Act Regulations or
state securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriter.
(x) The Company and its subsidiaries own or possess or have
obtained, can obtain on reasonable terms or are in the process of
obtaining, all material governmental licenses,
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permits, consents, orders, approvals and other authorizations necessary
to lease or own, as the case may be, and to operate their respective
properties and to carry on their respective businesses as presently
conducted, except such as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution of the
Securities by you.
(xi) The Company and its subsidiaries own or possess adequate
trademarks, service marks and trade names necessary to conduct the
business now operated by them, and neither the Company nor any of its
subsidiaries has received any notice of infringement of or conflict
with asserted rights of others with respect to any trademarks,
servicemarks or trade names which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would reasonably
be expected to materially adversely affect the conduct of the business,
operations, financial condition or income of the Company and its
subsidiaries considered as one enterprise.
(xii) There is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now pending,
or, to the actual knowledge of the Company, threatened against or
affecting, the Company or any of its subsidiaries, which would
reasonably be expected to result in any material adverse change in the
condition, financial or otherwise, of the Company and its subsidiaries
considered as one enterprise, or in the business prospects of the
Company and its subsidiaries considered as one enterprise or might
materially and adversely affect the consummation of this Agreement; and
there are no material contracts or documents of the Company or any of
its subsidiaries which are required to be filed as exhibits to the
Registration Statement by the 1933 Act or by the 1933 Act Regulations
which have not been so filed.
(xiii) No material labor dispute with the employees of the Company
or any of its subsidiaries exists or, to the knowledge of the Company,
is imminent; and the Company is not aware of any existing or imminent
labor disturbance by the employees of any of its principal suppliers,
manufacturers or contractors which would be expected to result in any
material adverse change in the condition, financial or otherwise, or in
the earnings, affairs or business prospects of the Company and its
subsidiaries considered as one enterprise.
(xiv) The Securities have been duly authorized for issuance and
sale pursuant to this Agreement and, when issued, authenticated and
delivered pursuant to the provisions of this Agreement and the
Indenture against payment of the consideration set forth in the Pricing
Agreement, the Securities will constitute valid and legally binding
obligations of the Company enforceable in accordance
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with their terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, or other laws relating to or affecting
creditors' rights generally or by general equity principles, including
concepts of commercial reasonableness, and will be entitled to the
benefits provided by the Indenture; the Securities and the Indenture
conform in all material respects to all statements relating thereto
contained in the Registration Statement; and, after giving effect to
the sale of the Securities and the sale of any other securities
registered pursuant to the Registration Statement to be issued prior to
the delivery of the Securities, the aggregate amount of Securities
which have been issued and sold by the Company will not exceed the
amount of securities registered pursuant to the Registration Statement.
(xv) The Company and its subsidiaries have made all necessary
filings and taken all other necessary action so that, with respect to
all of the equipment and other property reflected in the consolidated
balance sheets of the Company and its consolidated subsidiaries as of
September 30, 1994, and with respect to all equipment and other
property acquired by the Company or a subsidiary since then, the
interest of the Company or of the appropriate subsidiary in such
equipment or other property is free and clear, in all material
respects, of any claims, liens, encumbrances or liabilities not also
reflected in such consolidated balance sheets and that the interest of
the Company or of the appropriate subsidiary has, in all material
respects, been perfected so as not to be subordinate to the claim of a
purchaser in due course or any other bona fide purchaser.
(xvi) The financing contracts reflected in the consolidated
balance sheets of the Company and its consolidated subsidiaries as of
September 30, 1994, and the financing contracts entered into by the
Company or a subsidiary since then are, in all material respects,
legal, valid and binding obligations of the obligors enforceable in
accordance with their respective terms, except as enforcement thereof
may be limited by bankruptcy, insolvency, or other laws relating to or
affecting creditors' rights generally or by general equity principles,
including concepts of commercial reasonableness; the obligors
thereunder are, in all material respects, in the good faith business
judgment of the Company and except to the extent reflected or stated in
the Prospectus, financially capable of performing their respective
obligations thereunder, and any defaults in the payments under all such
contracts in the aggregate, at the date hereof, are not of such amount
that, were no more payments to be received under the financing
contracts in respect of which such defaults exist, and after
considering estimated collateral values to be recovered, the
consolidated financial condition or operations of the Company and its
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consolidated subsidiaries, or of the Company and the Restricted
Subsidiaries, would be materially adversely affected thereby, excluding
impairment of related reserves.
(xvii) The Indenture has been duly and validly authorized, executed
and delivered by the Company and to the best of the Company's
knowledge, the Trustee; and the Indenture constitutes a legally valid
and binding obligation of the Company, enforceable in accordance with
its terms, except as limited by bankruptcy, insolvency or other laws
relating to or affecting creditors' rights generally or by general
equity principles, including concepts of commercial reasonableness.
(xviii) The Company is not an "investment company" nor is the
Company "controlled" by an "investment company" as such terms are
defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act").
(xix) Neither the Company nor any affiliate thereof (as defined in
Section 517.021(1), Florida Statutes) does business with the government
of Cuba or with any person or affiliate located in Cuba.
(b) Any certificate signed by any officer of the Company and
delivered to the Underwriter or to counsel for the Underwriter shall be deemed
a representation and warranty by the Company to the Underwriter as to the
matters covered thereby.
Section 2. Sale and Delivery to Underwriter; Closing.
(a) On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Company
agrees to sell to the Underwriter and the Underwriter agrees to purchase from
the Company, at the price set forth in the Pricing Agreement, $100,000,000
aggregate principal amount of the Securities.
(b) Payment of the purchase price for, and delivery of the
certificates for, the Securities shall be made at the offices of the Company,
1850 North Central Avenue, Phoenix, Arizona, 85004 or at such other place as
shall be agreed upon by the Underwriter and the Company, at 10:00 a.m., New
York City time, on February 10, 1995, or such other time not later than ten
business days after execution of the Pricing Agreement as shall be agreed upon
by the Underwriter and the Company (such time and date of payment and delivery
being herein called "Closing Time"). Payment shall be made to the Company by
wire transfer of immediately available funds against delivery to the
Underwriter of certificates for the Securities to be purchased by it.
Certificates for the Securities shall be in such denominations and registered
in such names as the Underwriter may request in writing at least two business
days before Closing Time. The certificates for the Securities will be made
available for examination and packaging by the Underwriter not later than 10:00
a.m., New York City time,
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on the last business day prior to Closing Time at the offices of the Trustee.
Section 3. Covenants of the Company. The Company covenants with the
Underwriter as follows:
(a) The Company will notify the Underwriter immediately, and
confirm the notice in writing, (i) of the effectiveness of the
Registration Statement and any amendment thereto (including any
post-effective amendment), (ii) of the receipt of any comments from the
Commission, (iii) of any request by the Commission for any amendment to
the Registration Statement or any amendment or supplement to the
Prospectus or for additional information, and (iv) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that
purpose. The Company will make every reasonable effort to prevent the
issuance of any such stop order and, if any stop order is issued, to
obtain the lifting thereof at the earliest possible moment.
(b) The Company will give the Underwriter notice of its intention
to file or prepare any amendment to the Registration Statement
(including any post-effective amendment) or any amendment or supplement
to the Prospectus (including any revised prospectus which the Company
proposes for use by the Underwriter in connection with the offering of
the Securities which differs from the prospectus on file at the
Commission at the time the Registration Statement becomes effective,
whether or not such revised prospectus is required to be filed pursuant
to Rule 424(b) of the 1933 Act Regulations, whether pursuant to the
1933 Act, the 1934 Act or otherwise), will furnish the Underwriter with
copies of any such amendment or supplement a reasonable amount of time
prior to such proposed filing or use, as the case may be, and will not
file any such amendment or supplement or use any such prospectus to
which the Underwriter or counsel for the Underwriter shall object.
(c) The Company has delivered to your counsel one signed copy and
will deliver to the Underwriter as many conformed copies of the
Registration Statement as originally filed and of each amendment
thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be
incorporated by reference therein) as the Underwriter may reasonably
request.
(d) The Company will furnish to the Underwriter, from time to
time during the period when the Prospectus is required to be delivered
under the 1933 Act or the 1934 Act, such number of copies of the
Prospectus (as amended or supplemented) as the Underwriter may
reasonably request for the purposes contemplated by the 1933 Act or the
1934 Act or
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the respective applicable rules and regulations of the Commission
thereunder.
(e) If any event shall occur as a result of which it is
necessary, in the opinion of counsel for the Underwriter, to amend or
supplement the Prospectus in order to make the Prospectus not
misleading in the light of the circumstances existing at the time it is
required to be delivered to a purchaser, the Company will forthwith
amend or supplement the Prospectus (in form and substance satisfactory
to counsel for the Underwriter) so that, as so amended or supplemented,
the Prospectus will not include an untrue statement of a material fact
or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances existing at the
time it is required to be delivered to a purchaser, not misleading, and
the Company will furnish to the Underwriter a reasonable number of
copies of such amendment or supplement.
(f) The Company will endeavor, in cooperation with the
Underwriter, to qualify the Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions of
the United States as the Underwriter may designate; provided, however,
that the Company shall not be obligated to file any general consent to
service of process or to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified. In each jurisdiction in
which the Securities have been so qualified, the Company will file such
statements and reports as may be required by the laws of such
jurisdiction to continue such qualifications in effect for a period of
not less than one year from the effective date of this Agreement. The
Company will promptly advise the Underwriter of the receipt by the
Company of any notification with respect to the suspension of the
qualification of the Securities for sale in any state or jurisdiction
or the initiating or threatening of any proceeding for such purpose.
(g) The Company will make generally available to its security
holders as soon as practicable, but not later than 60 days after the
close of the period covered thereby, an earnings statement (in form
complying with the provisions of Rule 158 of the 1933 Act Regulations)
covering a twelve month period beginning not later than the first day
of the Company's fiscal quarter next following the "effective date" (as
defined in said Rule 158) of the Registration Statement.
(h) The Company will use the net proceeds received by it from the
sale of the Securities in the manner specified in the Prospectus under
the caption "Use of Proceeds."
(i) Immediately following the execution of the Pricing Agreement,
the Company will prepare, and file or transmit for filing with the
Commission in accordance with Rule 424(b) of the 1933 Act Regulations,
copies of a supplement
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to the Prospectus containing the terms of the Securities and such other
information as the Underwriter and the Company deem appropriate.
(j) From the date of this Agreement until Closing Time, the
Company will not, without the prior written consent of the Underwriter,
directly or indirectly, sell, offer to sell, contract to sell, or
otherwise dispose of, or announce the offering of, any Securities or
securities similar to the Securities, or any securities convertible
into or exchangeable or exercisable for any Securities or any such
similar securities, except for Securities sold to the Underwriter
pursuant to this Agreement.
(k) The Company, during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, will file
all documents required to be filed with the Commission pursuant to
Section 13, 14 or 15 of the 1934 Act within the time periods required
by the 1934 Act and the 1934 Act Regulations.
Section 4. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement, including
(a) the printing and filing of the Registration Statement as originally filed
and of each amendment thereto, (b) the printing or reproducing of this
Agreement, the Pricing Agreement and the Indenture, (c) the preparation,
issuance and delivery of the certificates for the Securities to the Underwriter,
(d) the fees and disbursements of the Company's counsel and accountants, (e) the
qualification of the Securities under securities laws in accordance with the
provisions of Section 3(f) hereof, including filing fees and the reasonable fee
and disbursements of counsel for the Underwriter in connection therewith and in
connection with the preparation of the Blue Sky Survey and any Legal Investment
Survey, (f) the printing and delivery to the Underwriter of copies of the
Registration Statement as originally filed and of each amendment thereto, of
each preliminary prospectus, and of the Prospectus and any amendments or
supplements thereto, (g) the printing and delivery to the Underwriter of copies
of the Blue Sky Survey and any Legal Investment Survey, (h) any fees of any
rating agencies rating the Securities, (i) the fees and expenses of the Trustee,
including the fees and disbursements of counsel for the Trustee in connection
with the Indenture and the Securities and (j) any fees and expenses of a
depositary in connection with the holding of the Securities in book-entry form.
If this Agreement is terminated by the Underwriter in accordance with
the provisions of Section 5 or Section 9(a)(i) hereof, the Company shall
reimburse the Underwriter for its out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the Underwriter.
Section 5. Conditions of Underwriter's Obligations. The obligations
of the Underwriter hereunder are subject to the
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accuracy of the representations and warranties of the Company herein contained,
to the performance by the Company of its obligations hereunder, and to the
following further conditions:
(a) At Closing Time no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission. The
supplement to the Prospectus referred to in Section 3(i) of this
Agreement shall have been transmitted to the Commission for filing
pursuant to Rule 424(b) of the 1933 Act Regulations within the
prescribed time period, and prior to Closing Time the Company shall
have provided evidence satisfactory to the Underwriter of such timely
filing.
(b) At Closing Time the Underwriter shall have received:
(1) The opinion, dated as of Closing Time, of William J.
Hallinan, Esq., Senior Vice President -- General Counsel of the
Company, in form and substance satisfactory to counsel for the
Underwriter, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware.
(ii) The Company has corporate power and corporate
authority to own, lease and operate its properties and
conduct its business as described in the Registration
Statement.
(iii) The Company is duly qualified as a foreign
corporation to transact business and is in good standing in
each jurisdiction in which such qualification is required,
except where the failure of the Company to so qualify, in the
aggregate, will not have a material adverse effect on the
consolidated financial condition or combined operations of
the Company and its Subsidiaries or of the Company and its
Restricted Subsidiaries (as those terms are defined in the
Indenture).
(iv) Each subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its
incorporation, has corporate power and corporate authority to
own, lease and operate its properties and conduct its
business as described in the Registration Statement, and is
duly qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which such
qualification is
12
<PAGE> 13
required, except where the failure to so qualify, in the
aggregate, will not have a material adverse effect on the
consolidated financial condition or combined operations of
the Company and its Subsidiaries or of the Company and its
Restricted Subsidiaries; and all of the issued and
outstanding capital stock of each such subsidiary has been
duly authorized and validly issued and is fully paid and
nonassessable, and all of such capital stock is owned by the
Company or its affiliates, free and clear of any mortgage,
pledge, lien, encumbrance or claim.
(v) The authorized, issued and outstanding capital
stock of the Company is as set forth in the Prospectus and
the shares of issued and outstanding Common Stock set forth
therein have been duly authorized and validly issued and are
fully paid and nonassessable; FINOVA owns, directly or
indirectly, all of the outstanding shares of the Common
Stock, which Common Stock constitutes all of the issued and
outstanding capital stock of the Company, free and clear of
any claims, liens and encumbrances.
(vi) This Agreement and the Pricing Agreement have each
been duly authorized, executed and delivered by the Company.
(vii) The Indenture has been duly and validly authorized,
executed and delivered by the Company and to such counsel's
knowledge, the Trustee; the Indenture constitutes a valid and
binding agreement of the Company, enforceable in accordance
with its terms, except as enforcement thereof may be limited
by bankruptcy, insolvency, or other laws relating to or
affecting creditors' rights generally or by general equity
principles, including concepts of commercial reasonableness.
(viii) The Securities are in due and proper form, have
been duly and validly authorized by all necessary corporate
action for issuance, offer and sale by the Company to the
Underwriter as contemplated by this Agreement and, when
executed and authenticated as specified in the Indenture and
delivered against payment of the consideration therefor in
accordance with this Agreement and the Pricing Agreement,
will be valid and binding obligations of the Company,
enforceable in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
or other laws relating to or affecting creditors' rights
generally, or by general equity principles, including
concepts of commercial reasonableness,
13
<PAGE> 14
and each holder of Securities will be entitled to the
benefits of the Indenture.
(ix) The statements in the Prospectus under the captions
"Description of Notes" and "Description of Securities,"
insofar as they purport to summarize certain provisions of
documents specifically referred to therein, are accurate
summaries of the subject matter thereof.
(x) The Indenture is qualified under the 1939 Act.
(xi) The Registration Statement is effective under the
1933 Act and, to the best of such counsel's knowledge, no
stop order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act or proceedings
therefor have been initiated or threatened by the Commission.
(xii) At the time the Registration Statement became
effective and at the Representation Date, the Registration
Statement (other than the financial statements, schedules and
other financial and statistical data included therein, as to
which no opinion need be rendered) complied as to form in all
material respects with the requirements of the 1933 Act, the
1939 Act and the regulations of those Acts.
(xiii) There are no legal or governmental proceedings
pending or to the best of such counsel's knowledge,
threatened which are required to be disclosed in the
Registration Statement, other than those disclosed therein,
and all pending legal or governmental proceedings to which
the Company or any subsidiary is a party or of which any of
their property is the subject which are not described in the
Registration Statement, including ordinary routine litigation
incidental to the business, are reasonably expected to be,
alone or in the aggregate, not material.
(xiv) To the best of such counsel's knowledge, there are
no contracts, indentures, mortgages, loan agreements, notes,
leases or other instruments required to be described or
referred to, or incorporated by reference in, the
Registration Statement or to be filed as exhibits thereto
other than those described or referred to therein or filed or
incorporated by reference as exhibits thereto, the
descriptions thereof or references thereto are correct, and
no default exists by the Company in the due performance or
14
<PAGE> 15
observance of obligations, agreements, covenants or
conditions, which alone or in the aggregate are material,
contained in any contracts, indentures, loan agreements,
notes, leases or other instruments, which alone or in the
aggregate are material, so described, referred to, filed or
incorporated by reference.
(xv) No consent, approval, authorization, or order of
any court or governmental authority or agency is required in
connection with the sale of the Securities, except such as
may be required under the 1933 Act or the 1933 Act
Regulations or state securities laws; and the execution and
delivery of this Agreement and the Pricing Agreement and the
Indenture and the consummation of the transactions
contemplated herein and therein did not and will not conflict
with or constitute a breach of, or default under, or result
in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any
subsidiary pursuant to, any contract, indenture, mortgage,
loan agreement, note, lease or other instrument known to such
counsel and to which the Company or any of its subsidiaries
is a party or by which it or any of them may be bound or to
which any of the property or assets of the Company or any of
its subsidiaries is subject, or any law, administrative
regulation or administrative or court decree known to such
counsel to be applicable to the Company of any court or
governmental agency, authority or body or any arbitrator
having jurisdiction over the Company; nor will such action
result in any violation of the provisions of the charter or
by-laws of the Company.
(xvi) Each document, if any, filed pursuant to the 1934
Act (other than the financial statements, schedules and other
financial and statistical data included therein, as to which
no opinion need be rendered) and incorporated by reference in
the Prospectus, complied when filed as to form in all
material respects with the 1934 Act and the 1934 Act
Regulations thereunder.
(xvii) To the best of such counsel's knowledge, the
Company and its subsidiaries own or possess or have obtained
adequate trademarks, servicemarks and trade names necessary
to conduct the business now operated by them, and neither the
Company nor any of its subsidiaries has received any notice
of infringement of or conflict with asserted rights of others
with respect to any trademarks, service
15
<PAGE> 16
marks or trade names which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding,
would reasonably be expected to materially adversely affect
the conduct of the business, operations, financial condition
or income of the Company and its subsidiaries considered as
one enterprise.
(xviii) The Company is not an "investment company" nor is
it "controlled" by an "investment company" as such terms are
defined in the Investment Company Act.
In giving such opinion such counsel may rely as to all
matters of law other than the federal laws of the United States of
America, the laws of the State of Arizona, and the General
Corporation Law of the State of Delaware, and as to all matters of
foreign law, upon opinions of counsel satisfactory to counsel to
the Underwriter, in which case, the opinion shall state that
although such counsel has not made an independent investigation of
the laws of any jurisdiction other than the federal laws United
States of America, the General Corporation Law of the State of
Delaware or the laws of Arizona, such counsel believes the
Underwriter and he are entitled so to rely. In giving the opinions
referred to in the foregoing clause (iv), such counsel may omit
reference to a foreign subsidiary so long as (A) he shall have
delivered to the Underwriter a signed opinion of other counsel for
such foreign subsidiary, satisfactory to counsel to the
Underwriter which other opinion shall give substantially the same
opinions with respect to such foreign subsidiary as required by
the foregoing clause (iv), and (B) he states that such other
opinion is satisfactory to him and that although he has not made
an independent investigation of the foreign laws applicable to
such foreign subsidiary, he believes the Underwriter is entitled
to rely on such other opinion.
(2) The opinion, dated as of Closing Time, of Brown & Wood,
counsel for the Underwriter, with respect to the matters set forth
in (i) and (vii) through (xii), inclusive, of subsection (b)(1) of
this Section.
(3) In giving their opinions required by subsections (b)(1)
and (b)(2), respectively, of this Section, Mr. Hallinan and Brown
& Wood shall each additionally state that nothing has come to
their attention that would lead such counsel to believe that the
Registration Statement (other than the financial statements,
schedules and other financial and statistical data included or
incorporated therein, and the Form T-1, as to which no statement
need be made), at the time it became effective or at the
16
<PAGE> 17
Representation Date, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading
or that the Prospectus (other than the financial statements,
schedules and other financial and statistical data included or
incorporated therein, as to which no statement need be made), at
the Representation Date (unless the term "Prospectus" refers to a
prospectus which has been provided to the Underwriter by the
Company for use in connection with the offering of the Securities
that differs from the Prospectus on file at the Commission at the
time the Registration Statement became effective, in which case at
the time it is first provided to the Underwriter for such use) or
at Closing Time, included an untrue statement of a material fact
or omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading.
(c) At Closing Time there shall not have been, since the date
hereof or since the respective dates as of which information is given
in the Prospectus, any material adverse change in the condition,
financial or otherwise, of the Company and its subsidiaries considered
as one enterprise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business,
and the Underwriter shall have received a certificate of the Chairman,
President and Chief Executive Officer or a Senior Vice President or a
Vice President of the Company and of the chief financial or chief
accounting officer of the Company, dated as of Closing Time, to the
effect that (i) there has been no such material adverse change, (ii)
the representations and warranties in Section 1 hereof are true and
correct with the same force and effect as though expressly made at and
as of Closing Time, (iii) the Company has complied with all agreements
and satisfied all conditions on its part to be performed or satisfied
at or prior to Closing Time, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been initiated or threatened by the
Commission. As used in this Section 5(c), the term "Prospectus" means
the Prospectus in the form first used to confirm sales of the
Securities.
(d) At the time of execution of this Agreement, the Underwriter
shall have received from Deloitte & Touche a letter dated such date, in
form and substance satisfactory to the Underwriter, and substantially
in the same form as the draft letter previously delivered to and
approved by the Underwriter.
17
<PAGE> 18
(e) At Closing Time the Underwriter shall have received from
Deloitte & Touche a letter, dated as of Closing Time, to the effect
that they reaffirm the statements made in the letter furnished pursuant
to subsection (d) of this Section, except that the "specified date"
referred to in such letter shall be a date not more than five days
prior to Closing Time.
(f) All proceedings taken by the Company in connection with the
issuance and sale of the Securities as herein contemplated shall be
reasonably satisfactory in form and substance to the Underwriter and
counsel for the Underwriter.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the Underwriter by notice to the Company at any time at or prior
to Closing Time, and such termination shall be without liability of any party
to any other party except as provided in Section 4 hereof.
Section 6. Indemnification.
(a) The Company agrees to indemnify and hold harmless the Underwriter
and each person, if any, who controls the Underwriter within the meaning of
Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto) or the omission or alleged
omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, if such
settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including, subject to Section 6(c) hereof, the fees and disbursements
of counsel chosen by the
18
<PAGE> 19
Underwriter), incurred in investigating, preparing or defending against
any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by the
Underwriter expressly for use in the Registration Statement (or any amendment
thereto) or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(b) The Underwriter agrees to indemnify and hold harmless the Company,
its directors, each of its officers who signed the Registration Statement, and
each person, if any, who controls the Company within the meaning of Section 15
of the 1933 Act, against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto) or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by the Underwriter expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary prospectus
or the Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give as promptly as reasonably
practicable notice to each indemnifying party of any action commenced against it
in respect of which indemnity may be sought hereunder, but failure to so notify
an indemnifying party shall not relieve such indemnifying party from any
liability which it may have otherwise than on account of this indemnity
agreement, except to the extent of any prejudice to such indemnifying party
arising from the failure to provide such notice. An indemnifying party may
participate at its own expense in the defense of such action. In no event shall
the indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to any local counsel per jurisdiction) separate from their
own counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances.
Section 7. Contribution. To provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 hereof is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms, the Company and the
Underwriter shall
19
<PAGE> 20
contribute to the aggregate losses, liabilities, claims, damages and expenses
of the nature contemplated by said indemnity agreement incurred by the Company
and the Underwriter, as incurred, in such proportions that the Underwriter is
responsible for that portion represented by the percentage that the
underwriting discount appearing on the cover page of the Prospectus bears to
the initial public offering price appearing thereon and the Company is
responsible for the balance; provided, however, that no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. Furthermore, in no event shall the
Underwriter be required to contribute an amount in excess of the total
underwriting discounts received by the Underwriter in connection with the
transactions contemplated by this Agreement. For purposes of this Section,
each person, if any, who controls an Underwriter within the meaning of Section
15 of the 1933 Act shall have the same rights to contribution as such
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act shall have the same
rights to contribution as the Company.
Section 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement and the Pricing Agreement, or contained in certificates of officers of
the Company submitted pursuant hereto, shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of the
Underwriter or controlling person, or by or on behalf of the Company, and shall
survive delivery of the Securities to the Underwriter.
Section 9. Termination of Agreement.
(a) The Underwriter may terminate this Agreement, immediately upon
notice to the Company, at any time at or prior to Closing Time (i) if there has
been, since the date of this Agreement or since the respective dates as of
which information is given in the Prospectus, any material adverse change in
the condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
if there has occurred any outbreak or escalation of hostilities or other
calamity or crisis the effect of which on the financial markets of the United
States is such as to make it, in the reasonable judgment of the Underwriter,
impracticable to market the Securities or enforce contracts for the sale of the
Securities, or (iii) if trading in any securities of the Company has been
suspended by the Commission or a national securities exchange, or if trading
generally on either the American Stock Exchange or the New York Stock Exchange
has been suspended, or minimum or maximum prices for trading have been fixed,
or maximum ranges for prices for
20
<PAGE> 21
securities have been required, by either of said exchanges or by order of the
Commission or any other governmental authority, or if a banking moratorium has
been declared by federal or New York authorities, or (iv) if the rating
assigned by any nationally recognized statistical rating organization to any
debt securities of the Company shall have been lowered or if any such rating
agency shall have publicly announced subsequent to the date of this agreement
that it has placed any debt securities of the Company on what is commonly
termed a "watch list" for possible downgrading. As used in this Section 9(a),
the term "Prospectus" means the Prospectus in the form first used to confirm
sales of the Securities.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except as
provided in Section 4 hereof.
Section 10. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriter shall be directed to Salomon Brothers Inc, at Seven World Trade
Center, New York 10048, Attention: Robert H. Clymer, Director, facsimile:
(212) 783- 2610; and notices to the Company shall be directed to it at FINOVA
Capital Corporation, 1850 North Central Avenue, Phoenix, Arizona 85004,
Attention: Robert J. Fitzsimmons, Senior Vice President -- Treasurer,
facsimile: (602) 207-5543.
Section 11. Parties. This Agreement and the Pricing Agreement shall
each inure to the benefit of and be binding upon the Underwriter and the
Company and their respective successors. Nothing expressed or mentioned in
this Agreement or the Pricing Agreement is intended or shall be construed to
give any person, firm or corporation, other than the Underwriter and the
Company and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 hereof and their heirs
and legal representatives, any legal or equitable right, remedy or claim under
or in respect of this Agreement or the Pricing Agreement or any provision
herein or therein contained. This Agreement and the Pricing Agreement and all
conditions and provisions hereof and thereof are intended to be for the sole
and exclusive benefit of the Underwriter and the Company and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm
or corporation. No purchaser of Securities from the Underwriter shall be
deemed to be a successor by reason merely of such purchase.
Section 12. Governing Law and Time. This Agreement and the Pricing
Agreement shall be governed by and construed in accordance with the laws of the
State of New York applicable to agreements made and to be performed in said
State. Except where otherwise provided, specified times of day refer to New
York City time.
21
<PAGE> 22
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriter and the Company in accordance with its terms.
Very truly yours,
FINOVA CAPITAL CORPORATION
By: /s/ Bruno A. Marszowski
-----------------------
Bruno A. Marszowski
Senior Vice President --
Controller and Chief
Financial Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
SALOMON BROTHERS INC
By: /s/ Robert H. Clymer
--------------------
Robert H. Clymer
Director
22
<PAGE> 23
EXHIBIT A
$100,000,000
FINOVA CAPITAL CORPORATION
(a Delaware corporation)
8% Notes Due February 1, 2000
PRICING AGREEMENT
February 3, 1995
SALOMON BROTHERS INC
Seven World Trade Center
New York, New York 10048
Dear Sirs:
Reference is made to the Underwriting Agreement, dated February 3,
1995 (the "Underwriting Agreement"), relating to the purchase by Salomon
Brothers Inc (the "Underwriter") of $100,000,000 aggregate principal amount of
8% Notes Due February 1, 2000 (the "Securities") of FINOVA Capital Corporation
(the "Company").
Pursuant to Section 2 of the Underwriting Agreement, the Company
agrees with the Underwriter as follows:
1. The initial public offering price of the Securities shall be
99.50% of the principal amount thereof.
2. The purchase price of the Securities to be paid by the
Underwriter shall be 99.00% of the principal amount thereof.
A-1
<PAGE> 24
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriter and the Company in accordance with its terms.
Very truly yours,
FINOVA CAPITAL CORPORATION
By: /s/ Bruno A. Marszowski
-----------------------
Bruno A. Marszowski
Senior Vice President --
Controller and Chief
Financial Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
SALOMON BROTHERS INC
By: /s/ Robert H. Clymer
--------------------
Robert H. Clymer
Director
A-2
<PAGE> 1
EXHIBIT 4.1
OFFICERS' CERTIFICATE
We, Samuel L. Eichenfield and Robert J. Fitzsimmons, do hereby certify
that we are the duly elected Chairman of the Board, President and Chief
Executive Officer and Senior Vice President-Treasurer, respectively, of FINOVA
Capital Corporation, a Delaware corporation (formerly known as Greyhound
Financial Corporation) (the "Company"). We further certify that, pursuant to
resolutions of the Board of Directors of the Company, duly adopted by unanimous
written consent on July 31, 1992 and March 25, 1994 and resolutions of the
Pricing Committee thereof duly adopted by unanimous written consent on February
3, 1995, a series of the Company's Debt Securities, entitled "8% Notes Due
February 1, 2000", is hereby established pursuant to Section 2.02 of the
Indenture dated as of September 1, 1992 (the "Indenture") between the Company
and The Chase Manhattan Bank, N.A.; and that said series shall have the
following terms and provisions (unless otherwise defined herein, all
capitalized terms used herein shall have the same meanings assigned to them in
the Indenture);
a. the title of these securities, which shall constitute a
separate series of Securities under the Indenture, shall be the "8%
Notes Due February 1, 2000" (the "Notes");
b. the aggregate principal amount of Notes which may be
outstanding is $100,000,000 (except as otherwise provided in Section
2.06, 2.08 or 13.05 of the Indenture);
c. the principal amount of the Notes is payable on February 1,
2000;
d. interest on the Notes shall accrue at a fixed rate of interest
as more fully described in the attached form of Note. The Notes will
bear interest from February 10, 1995, and such interest will be payable
semi-annually on February 1 and August 1 of each year, commencing on
August 1, 1995 (each, an "Interest Payment Date"). The Record Dates
with respect to the Notes shall be each January 16 and July 16,
respectively, whether or not a Business Day, preceding the relevant
Interest Payment Date. Interest on the Notes will be calculated on the
basis of a 360-day year of twelve 30-day months.
e. principal of and interest on the Notes will be payable in
immediately available funds at the office of the Trustee in The City of
New York designated for such purpose.
<PAGE> 2
f. the Notes are not redeemable at the option of the Company
prior to the Stated Maturity of the principal thereof and will not be
subject to any sinking fund.
g. the entire principal amount of the Notes shall initially be
issued in global form, for which The Depository Trust Company (the
"Depositary") shall be the Depositary; the global Security representing
the Notes shall only be exchangeable for Notes in definitive form
pursuant to and in accordance with the terms of Sections 2.05 and 2.08
of the Indenture.
2
<PAGE> 3
The certificate evidencing the Notes shall be substantially in the form
of Exhibit A attached hereto.
IN WITNESS WHEREOF, each of the undersigned has hereunto set his hand
and caused to be affixed hereto the seal of the Company as of this 10th day of
February, 1995.
- ----------------------------------------
Samuel L. Eichenfield
Chairman of the Board, President
and Chief Executive Officer
[SEAL]
- ----------------------------------------
Robert J. Fitzsimmons
Senior Vice President-Treasurer
3
<PAGE> 1
EXHIBIT 4.2
FACE OF FIXED RATE GLOBAL NOTE
Unless this Certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to Issuer or
its agent for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), any transfer, pledge, or other use hereof for value or
otherwise by or to any person is wrongful inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
REGISTERED REGISTERED
No. 001 PRINCIPAL AMOUNT
$100,000,000.00
CUSIP No. 318074 AB7
FINOVA CAPITAL CORPORATION
8% NOTES DUE FEBRUARY 1, 2000
FINOVA CAPITAL CORPORATION, a corporation duly organized and existing
under the laws of the State of Delaware (formerly Greyhound Financial
Corporation) (the "Company" or the "Issuer," which term includes any successor
corporation under the Indenture hereinafter referred to), for value received,
hereby promises to pay to CEDE & CO., or its registered assigns, the principal
sum of ONE HUNDRED MILLION ($100,000,000) DOLLARS on February 1, 2000 (the
"Maturity Date") and to pay interest thereon at the rate per annum described
below until the principal hereof is paid or duly made available for payment.
This Note will bear interest from February 10, 1995, at 8% per annum, payable
semi-annually on February 1 and August 1 in each year, commencing on August 1,
1995 (each, an "Interest Payment Date"), to Holders of record on the preceding
January 16 and July 16, respectively (each, a "Record Date"). Interest will be
calculated on the basis of a 360-day year of twelve 30-day months. If any
Interest Payment Date would otherwise be a day that is not a Business Day, such
Interest Payment Date will be postponed to the next day that is a Business Day,
and such interest payment will have the same force and effect as if made on
such Maturity Date or Interest Payment Date, as the case may be, and no
interest shall accrue with respect to such payment for the period from and
after such Maturity Date or Interest Payment Date. As used herein, "Business
Day" means any day that is not a Saturday or Sunday, and that, in the City of
New York, is not a day on which banking institutions are generally authorized
or obligated by law to close. The interest payment at maturity will include
interest accrued to but excluding the Maturity Date and will be payable to the
person to whom principal is payable.
The interest so payable and punctually paid or duly provided for on
any Interest Payment Date will, as provided in the Indenture, be paid to the
Person in whose name this Note is registered at the close of business on the
Record Date for such
<PAGE> 2
Interest Payment Date; provided, however, that, if and to the extent the Company
shall default in the payment of the interest due on such Interest Payment Date,
the defaulted interest shall be paid to the Person in whose name this Note is
registered on a subsequent record date, such record date to be not less than
five days prior to the date of payment of such defaulted interest, established
by notice given by mail by or on behalf of the Company to the Holder of this
Note not less than 15 days preceding such subsequent record date.
Payment of the principal of or interest on this Note will be made at
the office or agency of the Company maintained for such purpose in the City of
New York and in such place or places as the Company may from time to time
designate by written notice to the Trustee, in such coin or currency of the
United Sates of America as at the time of payment is legal tender for payment
of public and private debts, provided that payment of interest on any Interest
Payment Date may at the option of the Company be made by check mailed
first-class to the address of the Person entitled thereto as such address shall
appear in the Security Register.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Note is one of a separate series of Securities designated under
the Indenture as "8% Notes Due February 1, 2000" (the "Notes").
Unless the certificate of authentication hereon has been executed by
the Trustee under the Indenture by the manual signature of one of its
authorized signatories, this Note shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
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<PAGE> 3
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed, manually or in facsimile, and an imprint or facsimile of its
corporate seal to be imprinted hereon.
Dated: February 10, 1995
FINOVA CAPITAL CORPORATION
[SEAL]
By:
-----------------------------------
Samuel L. Eichenfield
Chairman of the Board of Directors,
President and Chief
Executive Officer
Attest:
By:
------------------------
William J. Hallinan
Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities issued
under the Indenture described herein.
THE CHASE MANHATTAN BANK, N.A.,
as Trustee
By:
------------------------
Authorized Signatory
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<PAGE> 4
Reverse
FINOVA CAPITAL CORPORATION
8% NOTES DUE FEBRUARY 1, 2000
This Note is one of a duly authorized series of Securities of the
Company (hereinafter called the "Securities"), issued and to be issued under an
indenture, dated as of September 1, 1992 (the "Indenture"), between the Company
and The Chase Manhattan Bank, N.A., as Trustee (the "Trustee", which term
includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of a
respective rights, duties and immunities thereunder of the Company, the Trustee
and the holders of the Notes (the "Holders") and the Securities and the terms
upon which the Notes and the Securities are to be authenticated and delivered.
Except as otherwise provided in the Indenture, the Notes will be
issued in global form only registered in the name of The Depository Trust
Company (the "Depositary") or its nominee. The Notes will not be issued in
definitive form, except as otherwise provided in the Indenture, and ownership
of the Notes shall be maintained in book-entry form by the Depositary for the
accounts of participating organizations of the Depositary.
This Note will not be subject to a sinking fund and is not redeemable
at the option of the Company prior to the Maturity Date stated above. The
Indenture provides for the defeasance of the Notes in certain circumstances.
If an event of default with respect to this Note shall occur and be
continuing, the principal of this Note may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with
the consent of the Holders of not less than 66 2/3% in aggregate principal
amount of the Securities at the time outstanding which are affected thereby.
The Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities of each series at the time
outstanding, on behalf of the Holders of all Securities of such series, to
waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by Holder of this Note shall be conclusive and binding upon
such Holder and upon all future Holders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Note.
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<PAGE> 5
As set forth in, and subject to, the provisions of the Indenture, no
Holder of any Note will have the right to institute any proceeding with respect
to the Indenture or for any remedy thereunder unless: (a) such Holder shall
have previously given to the Trustee written notice of a continuing event of
default with respect to the Notes; (b) the Holders of 25% or more in principal
amount of outstanding Notes shall have made written request and offered
reasonable indemnity and security satisfactory to the Trustee to institute such
proceeding; and (c) the Trustee shall have failed to institute such proceeding
within 60 days of receiving such notice, request and offer; provided that such
limitations do not apply to a suit instituted by the Holder hereof for the
enforcement of payment of the principal of or interest on this Note on or after
the respective due dates expressed herein.
No reference herein to the Indenture and no provisions of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note
at the times, places and rate, and in the coin or currency herein or in the
Indenture prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Note may be registered on the Security
Register of the Company, upon surrender of this Note for registration of
transfer at the office or agency of the Company in the Borough of Manhattan,
The City of New York or such other place or places as the Company may designate
by written notice to the Trustee, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the Holder hereof or his attorney duly authorized
in writing, and thereupon one or more new Notes of the same series and of like
tenor, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and integral multiples thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Notes are
exchangeable for a like aggregate principal amount of Notes of different
authorized denominations, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charges payable in connection therewith.
Prior to due presentment of this Note for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note is overdue, and neither the Company, the
Trustee, the
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<PAGE> 6
Security Registrar nor any such agent shall be affected by notice to the
contrary.
All terms used in this Note which are defined in the Indenture and are
not otherwise defined herein, shall have the meanings assigned to them in the
Indenture.
The Indenture and the Notes shall be governed by and construed in
accordance with the laws of the State of New York.
6
<PAGE> 7
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
______________________________________
________________________________________________________________________________
PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE
________________________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing
________________________________________________ attorney
to transfer such Note on the books of the Company, with full power of
substitution in the premises.
Dated: ______________ ________________________________________
NOTICE: The signature to this
assignment must correspond with the name
as written upon the face of the within
Note in every particular, without
alteration or enlargement or any change
whatsoever.
7
