<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 11, 1995
REGISTRATION NO. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
FINOVA CAPITAL CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE
(STATE OR OTHER JURISDICTION OF
INCORPORATION OR ORGANIZATION)
94-1278569
(I.R.S. EMPLOYER
IDENTIFICATION NO.)
1850 N. CENTRAL AVENUE, P.O. BOX 2209, PHOENIX, ARIZONA 85002-2209
(602) 207-4900
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
SAMUEL L. EICHENFIELD
CHAIRMAN, PRESIDENT AND CHIEF EXECUTIVE OFFICER
FINOVA CAPITAL CORPORATION
1850 N. CENTRAL AVENUE, P.O. BOX 2209, PHOENIX, ARIZONA 85002-2209
(602) 207-4900
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
------------------------
COPIES TO:
RICHARD LIEBERMAN DAVID J. JOHNSON, JR.
ASSISTANT GENERAL COUNSEL BROWN & WOOD
FINOVA CAPITAL CORPORATION 10900 WILSHIRE BOULEVARD
1850 N. CENTRAL AVENUE, P.O. BOX 2209 LOS ANGELES, CALIFORNIA 90024
PHOENIX, ARIZONA 85002-2209
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act Registration number of the earlier effective
registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
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CALCULATION OF REGISTRATION FEE
<TABLE>
<S> <C> <C> <C> <C>
==================================================================================================
TITLE OF EACH CLASS AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
OF SECURITIES TO TO BE OFFERING PRICE AGGREGATE REGISTRATION
BE REGISTERED REGISTERED PER UNIT* OFFERING PRICE* FEE
- ---------------------------------------------------------------------------------------------------
Senior Debt Securities........... $1,500,000,000 100% $1,500,000,000 $517,241.38
- ---------------------------------------------------------------------------------------------------
* Estimated solely for the purpose of determining the registration fee.
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</TABLE>
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE> 2
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS
OF ANY SUCH STATE.
PRELIMINARY PROSPECTUS
SUBJECT TO COMPLETION, DATED OCTOBER 10, 1995
PROSPECTUS
FINOVA
FINOVA CAPITAL CORPORATION
SENIOR DEBT SECURITIES
FINOVA Capital Corporation (formerly Greyhound Financial Corporation,
herein "FINOVA" or the "Company") may offer from time to time up to $1.5 billion
aggregate principal amount of its senior debt securities ("Securities") on terms
to be determined at the time of sale. The Securities may be issued in one or
more series with the same or various maturities at or above par or with an
original issue discount and may be issued in fully registered form or in the
form of one or more global securities (each a "Global Security"). The specific
designation, the aggregate principal amount, the maturity, the purchase price,
the rate (which may be fixed or variable) and time of payment of any interest,
any sinking fund, any terms of redemption at the option of the Company or the
holder, and other specific terms of the Securities in respect of which this
Prospectus is being delivered ("Offered Securities") are set forth in an
accompanying prospectus supplement ("Prospectus Supplement"), together with the
terms of offering of the Offered Securities.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
------------------------
The Offered Securities may be offered through underwriters, agents or
dealers. If underwriters are used, it is expected that the managing underwriters
will include CS First Boston Corporation, Goldman, Sachs & Co., Lehman Brothers,
Lehman Brothers Inc., Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated and Morgan Stanley & Co. Incorporated. If an underwriter, agent or
dealer is involved in the offering of any Offered Securities, the underwriter's
discount, agent's commission or dealer's purchase price will be set forth in, or
may be calculated from, the Prospectus Supplement, and the net proceeds to the
Company from such offering will be the public offering price of the Offered
Securities less such discount in the case of an underwriter, the purchase price
of the Offered Securities less such commission in the case of an agent or the
purchase price of the Offered Securities in the case of a dealer, and less, in
each case, the other expenses of the Company associated with the issuance and
distribution of the Offered Securities. See "Plan of Distribution."
The date of this Prospectus is , 1995.
<PAGE> 3
IN CONNECTION WITH AN OFFERING, THE UNDERWRITERS FOR SUCH OFFERING MAY
OVER-ALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE
OF THE OFFERED SECURITIES AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN
THE OPEN MARKET. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY
TIME.
------------------------
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and in accordance
therewith files reports and other information with the Securities and Exchange
Commission (the "Commission"). Such reports and other information can be
inspected and copied at Room 1024 at the public reference facilities maintained
by the Commission, 450 Fifth Street, N.W., Washington, D.C. 20549, as well as
the Regional Offices of the Commission at Citicorp Center, Suite 1400, 500 West
Madison Street, Chicago, Illinois 60661-2511 and 7 World Trade Center, New York,
New York 10048 or via the Internet at http://www.sec.gov., and copies can be
obtained by mail from the Public Reference Section of the Commission at 450
Fifth Street, N.W., Washington, D.C. 20549 at the prescribed rates. Reports and
other information concerning the Company can also be inspected at the office of
the New York Stock Exchange, 20 Broad Street, New York, New York 10005.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
Incorporated herein by reference are the Company's Annual Report on Form
10-K for the fiscal year ended December 31, 1994, Quarterly Reports on Form 10-Q
for the quarterly periods ended March 31, 1995 and June 30, 1995 and Current
Reports on Form 8-K dated April 19, 1995, June 9, 1995, July 19, 1995 and
September 23, 1995 filed pursuant to Section 13 of the Exchange Act with the
Commission.
All documents subsequently filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act prior to the termination of the offering
of the Securities shall be deemed to be incorporated by reference in this
Prospectus and to be a part hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be incorporated
by reference herein shall be deemed to be modified or superseded for purposes of
this Prospectus to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus.
The Company will provide without charge upon written or oral request by any
person to whom this Prospectus is delivered a copy of any or all of the
documents described above which have been incorporated by reference in this
Prospectus, other than exhibits to such documents. Such request should be
directed to Robert J. Fitzsimmons, Senior Vice President-Treasurer, FINOVA
Capital Corporation, 1850 N. Central Avenue, P.O. Box 2209, Phoenix, Arizona
85002-2209, telephone number (602) 207-4900.
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FINOVA CAPITAL CORPORATION
The following discussion relates to FINOVA Capital Corporation ("FINOVA" or
the "Company"), a Delaware corporation, formerly known as Greyhound Financial
Corporation, and its subsidiaries. The Company is the primary subsidiary of The
FINOVA Group Inc. ("FINOVA Group"), a Delaware corporation, formerly GFC
Financial Corporation, the common stock of which is listed on the New York Stock
Exchange. Recognizing the substantial increase in the Company's and FINOVA
Group's size and scope of operations, and the use of several names in their
operations, the Company and FINOVA Group effected their name changes on February
1, 1995.
FINOVA Group is the successor to the former financial services businesses
of The Dial Corp ("Dial"). On March 18, 1992, Dial consummated the spin-off of
FINOVA Group, including the Company, to its stockholders. The Company was
incorporated under the laws of the State of Delaware in 1965 and is the
successor to a California corporation which commenced operations in 1954. The
principal executive offices of the Company are located at 1850 North Central
Avenue, P.O. Box 2209, Phoenix, Arizona 85002-2209, and its telephone number is
(602) 207-4900.
The Company engages in the business of providing collateralized financing
and leasing products in focused market niches primarily in the United States.
The Company extends revolving credit facilities, term loans and equipment and
real estate financing to "middle-market" businesses with financing needs falling
generally between $500,000 to $35 million. The Company also offers sales
financing programs to manufactures, distributors, vendors and franchisors which
facilitates the sale of their products to customers. The Company currently
operates in 14 specific industry or market niches in which its expertise in
evaluating the creditworthiness of prospective customers and its ability to
provide value-added services enables the Company to differentiate itself from
its competitors and to command loan pricing which provides a satisfactory spread
over the Company's borrowing costs.
The Company seeks to maintain a high quality portfolio and to minimize
nonearning assets and write-offs by using clearly defined underwriting criteria,
stringent portfolio management techniques and by diversifying its lending
activities geographically and among a range of industries, customers and loan
products. Because of the diversity of the Company's portfolio, the Company
believes it is better able to manage competitive changes in its markets and to
withstand the impact of deteriorating economic conditions on a regional or
national basis, although there can be no assurance that competitive changes or
economic conditions will not result in an adverse impact on the Company's
results of operations or financial condition.
The Company generates interest and other income through charges assessed on
outstanding loans, loan servicing, leasing and other fees. The Company's primary
expenses are the costs of funding its loan and lease business (including
interest paid on debt), provisions for possible credit losses, marketing
expenses, salaries and employee benefits, servicing and other operating expenses
and income taxes.
RATIO OF INCOME TO FIXED CHARGES
The following table sets forth the Company's ratios of income to fixed
charges ("ratio") for each of the past five years.
<TABLE>
<CAPTION>
SIX MONTHS ENDED YEAR ENDED DECEMBER 31,
- ---------------- ----------------------------------------
JUNE 30, 1995 1994 1993 1992 1991 1990
- ---------------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
1.43 1.55 1.50 1.37 -- 1.23
</TABLE>
Variations in interest rates generally do not have a substantial impact on
the ratio because the fixed-rate and floating-rate assets are generally matched
with liabilities of similar rate and term.
Income available for fixed charges, for purposes of the computation of the
ratio of income to fixed charges, consists of the sum of income before income
taxes (adjusted for the effect of reduced tax rates on income from leveraged
leases) and fixed charges. Fixed charges include interest and related debt
expense and a portion of rental expense determined to be representative of
interest.
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For the year ended December 31, 1991, earnings were inadequate to cover
fixed charges by $37,014,000. This inadequacy was due to certain restructuring
and other charges of $65,000,000 and transaction costs of $13,000,000 recorded
in the fourth quarter of 1991 in connection with the transfer by The Dial Corp
to FINOVA Group of its financial services and insurance businesses, including
the Company.
USE OF PROCEEDS
Unless otherwise indicated in a Prospectus Supplement with respect to the
proceeds from the sale of the particular Offered Securities to which such
Prospectus Supplement relates, the net proceeds to be received by the Company
from the sale of the Securities will be added to the Company's general funds and
are intended to be used for general corporate purposes, which may include
without limitation, the reduction of short-term debt or the refinancing of
long-term debt.
DESCRIPTION OF SECURITIES
The Securities will be issued under an Indenture, dated as of October 1,
1995, as supplemented and amended from time to time (hereinafter called the
"Indenture"), between the Company and First Interstate Bank of Arizona, N.A., as
Trustee (the "Trustee"). A copy of the Indenture is filed as an exhibit to the
Registration Statement. The following statements do not purport to be complete
and are subject to the detailed provisions of the Indenture, to which reference
is hereby made, including the definition of certain terms used herein without
definition.
GENERAL
The Securities offered by this Prospectus will be limited to $1,500,000,000
aggregate principal amount. The Indenture does not limit the aggregate principal
amount of Securities which may be offered thereunder and provides that
Securities may be issued in one or more series, in each case as authorized from
time to time by the Company. The Securities will be unsecured general
obligations of the Company and will not be subordinated to any other general
indebtedness of the Company. Reference is made to the Prospectus Supplement
together with any pricing supplement thereto relating to the Offered Securities
for the following terms thereof:
(1) the title of the Offered Securities;
(2) any limit upon the aggregate principal amount of the Offered
Securities;
(3) the date or dates on which the principal of the Offered Securities
shall be payable;
(4) the rate or rates (which may be fixed or variable) at which the
Offered Securities shall bear interest, or the method by which such rate or
rates shall be determined;
(5) the date or dates from which such interest shall accrue, or the
method by which such date or dates shall be determined, the dates on which
such interest shall be payable and any record dates therefor;
(6) the place or places where the principal of, premium, if any, and
interest on the Offered Securities shall be payable;
(7) the period or periods within which, the price or prices at which
and the terms and conditions upon which the Offered Securities may be
redeemed, in whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem, purchase or
repay the Offered Securities pursuant to any sinking fund or analogous
provision or at the option of a holder thereof and the period or periods
within which, the price or prices at which and the terms and conditions
upon which the Offered Securities shall be redeemed, purchased or repaid
pursuant to such obligation;
(9) if other than the principal amount thereof, the percentage of the
principal amount of the Offered Securities payable upon declaration of
acceleration of the maturity of the Offered Securities;
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(10) whether the Offered Securities are to be issued in whole or in
part in global form ("Global Securities") and, if so, the identity of the
Depositary for such Global Securities, and the terms and conditions, if
any, upon which interests in such Global Securities may be exchanged, in
whole or in part, for the individual Securities represented thereby;
(11) any deletions from, modifications of, or additions to the events
of default or covenants of the Company with respect to any of the Offered
Securities; and
(12) any other terms of the Offered Securities none of which shall be
inconsistent with the provisions of the Indenture (Section 2.02).
The Company may authorize the issuance and provide for the terms of a
series of Securities pursuant to a resolution of its Board of Directors or any
duly authorized committee thereof or pursuant to a supplemental indenture.
The Securities may be issued in registered form. Securities of a series may
be issued in whole or in part in the form of one or more Global Securities, as
described below under "Global Securities." Unless the Prospectus Supplement
relating thereto specifies otherwise, Securities will be issued only in
denominations of $1,000 or any integral multiple thereof (Section 2.01). One or
more Global Securities will be issued in a denomination or denominations equal
to the aggregate principal amount of Outstanding Securities of the series to be
represented by such Global Security or Securities (Section 3.01).
Securities (other than a Global Security) may be presented for exchange and
registration of transfer (with the form of transfer endorsed thereon duly
executed) at the office of the Company designated for such purpose or at the
office of any transfer agent or at the office of any Security Registrar, without
service charge and upon payment of any taxes and other governmental charges as
described in the Indenture. Securities may initially be presented for
registration of transfer or exchange at the Company's principal business office,
1850 N. Central Avenue, P.O. Box 2209, Phoenix, Arizona 85002-2209 and at the
office of the Trustee in The City of New York. Securities (other than a Global
Security) in the several denominations will be interchangeable without service
charge, but the Company may require payment to cover taxes or other governmental
charges. The Trustee initially will act as authenticating agent under the
Indenture (Sections 1.02, 2.05 and 5.02).
PAYMENT AND PAYING AGENTS
Payment of principal of and premium, if any, on Securities (other than a
Global Security) will be made against surrender of such Securities at the office
of the Trustee in The City of New York. Payment of any installment of interest
on Securities will be made to the person in whose name such Security is
registered at the close of business on the record date for such interest. Unless
otherwise indicated in the Prospectus Supplement, payments of such interest will
be made at the office of the Trustee in The City of New York, or, at the option
of the Company, by check mailed by first class mail to registered holders of a
Security at such holder's registered address or by wire transfer to an eligible
account maintained by such registered holder (Sections 2.01 and 5.02).
All moneys paid by the Company to a paying agent for the payment of
principal of or premium, if any, or interest on any Security that remain
unclaimed at the end of three years after such principal, premium or interest
shall have become due and payable will be repaid to the Company and the holder
of such Security entitled to receive such payment will thereafter look only to
the Company for payment therefor (Section 11.03).
GLOBAL SECURITIES
The Securities of a series may be issued in whole or in part in global
form. A Security in global form will be deposited with, or on behalf of, a
Depositary, which will be identified in an applicable Prospectus Supplement. A
Global Security may be issued in either registered or bearer form and in either
temporary or permanent form. A Security in global form may not be transferred
except as a whole by the Depositary for such Global Security to a nominee of
such Depositary or by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by such Depositary or any such nominee to a
successor of such Depositary or a nominee of such successor (Section 2.05).
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If a Depositary for Securities of a series is at any time unwilling or
unable to continue as Depositary and a successor depositary is not appointed by
the Company within ninety days, the Company will issue Securities of such series
in definitive form in exchange for the Global Security or Securities
representing Securities of such series. In addition, the Company may at any time
and in its sole discretion determine not to have any Securities of a series
represented by one or more Global Securities and, in such event, will issue
Securities of such series in definitive form in exchange for the Global Security
or Securities representing Securities. Further, if the Company so specifies with
respect to the Securities of a series, each Person specified by the Depositary
of the Global Security representing Securities of such series may, on terms
acceptable to the Company and the Depositary for such Global Security, receive
Securities of such series in definitive form. In any such instance, each Person
so specified by the Depositary of the Global Security will be entitled to
physical delivery in definitive form of Securities of the series represented by
such Global Security equal in principal amount to such Person's beneficial
interest in the Global Security (Section 2.05).
If any Securities of a series are issuable in global form, the applicable
Prospectus Supplement will describe the additional circumstances, if any, under
which beneficial owners of interests in any such Global Security may exchange
such interests for definitive Securities of such series and of like tenor and
principal amount in any authorized form and denomination, the manner of payment
of principal of, premium and interest, if any, on any such Global Security and
the material terms of the depositary arrangement with respect to any such Global
Security.
CERTAIN DEFINITIONS
The following terms are defined substantially as follows in Section 1.02 of
the Indenture and are used herein as so defined. For the purposes of the
following terms, all items shall be determined in accordance with generally
accepted accounting principles, unless otherwise indicated.
"Consolidated Net Tangible Assets" means the total of all assets reflected
on the most recent quarterly or annual consolidated balance sheet of the Company
and its consolidated Subsidiaries, at their net book values (after deducting
related depreciation, depletion, amortization and all other valuation reserves
which, in accordance with generally accepted accounting principles, should be
set aside in connection with the business conducted), but excluding goodwill,
unamortized debt discount and all other like intangible assets, less the
aggregate of the current liabilities of the Company and its consolidated
Subsidiaries reflected on such balance sheet. For purposes of this definition,
"current liabilities" include all indebtedness for money borrowed, incurred,
issued, assumed or guaranteed by the Company and its consolidated Subsidiaries,
and other payables and accruals, in each case payable on demand or due within
one year of the date of determination of Consolidated Net Tangible Assets, but
shall exclude any portion of long-term debt maturing within one year of the date
of such determination, all as reflected on such consolidated balance sheet of
the Company and its consolidated Subsidiaries.
"Consolidated Stockholder's Equity" as of any date, means the total of the
amounts reflected on the most recent quarterly or annual consolidated balance
sheet of the Company and its consolidated Subsidiaries as stockholder's equity
(or stockholders' equity, if then applicable) prepared in accordance with
generally accepted accounting principles, as (i) the par or stated value of all
outstanding capital stock, plus (ii) additional paid-in capital or capital
surplus relating to such capital stock, plus (iii) any retained earnings or
earned surplus, (A) minus any accumulated deficit, and (B) plus or minus, as
applicable, any cumulative translation adjustments, all as reflected on such
balance sheet and as determined in accordance with such principles.
"Lien" means any lien, charge, security interest, right of another under
any conditional sale or other title retention agreement or any other encumbrance
affecting title to property, including any lease under a sale and leaseback
arrangement.
"Subsidiary" means any corporation a majority of the Voting Stock of which
is owned, directly or indirectly, by the Company or by one or more Subsidiaries
or by the Company and one or more Subsidiaries. "Restricted Subsidiary" is any
Subsidiary a majority of the Voting Stock of which is owned, directly, by the
Company or by one or more Restricted Subsidiaries or by the Company and one or
more Restricted
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Subsidiaries and which is designated as such by resolution of the Board of
Directors of the Company. "Unrestricted Subsidiary" means any Subsidiary other
than a Restricted Subsidiary.
"Voting Stock" means stock of any class or classes (however designated)
having ordinary voting power for the election of a majority of the members of
the board of directors (or any governing body) of such corporation, other than
stock having such power only by reason of the happening of a contingency.
LIMITATION ON LIENS
The Indenture provides that the Company will not, and will not permit any
Restricted Subsidiary to, create, assume, incur or suffer to be created, assumed
or incurred or to exist any Lien upon any of the properties of any character of
the Company or any Restricted Subsidiary without making effective provision for
securing the Securities equally and ratably with any other obligation or
indebtedness so secured, other than: (i) leases of property in the ordinary
course of business or in the event that such property is not needed in the
operation of the business; (ii) Liens securing indebtedness incurred to finance
the acquisition of the property subject to the Lien, and in respect of which the
creditor has no recourse against the Company or any Restricted Subsidiary except
recourse to such property, or to the proceeds of any sale or lease of such
property or both; (iii) deposits with or security given to a governmental agency
as a condition to the transaction of business or the exercise of a privilege, or
made to enable the Company or a Restricted Subsidiary to maintain self-insurance
or participate in any fund in connection with worker's compensation,
unemployment insurance, old age pensions, or other social security, or as
collateral in connection with any bond on appeal by the Company or any
Restricted Subsidiary from any judgment or in connection with any other judicial
proceedings by or against the Company or any Restricted Subsidiary; (iv) Liens
for taxes or assessments which are not yet due or are payable without penalty or
are being contested in good faith and against which reserves deemed adequate by
the Company or a Restricted Subsidiary have been established, provided that
foreclosure or similar proceedings have not been commenced; (v) Liens of any
judgment, if such judgment shall not have remained undischarged, or unstayed on
appeal or otherwise, for more than six months; (vi) undetermined Liens or
charges incident to construction, mechanics' and other like Liens arising in the
ordinary course of business in respect of obligations which are not overdue or
which are being contested by the Company or any Restricted Subsidiary in good
faith, or deposits to obtain the release of such Liens; (vii) immaterial
encumbrances consisting of zoning restrictions, licenses, easements and
restrictions on the use of real property and minor defects and irregularities in
the title thereto; (viii) other immaterial (in the aggregate) Liens incidental
to the conduct of the Company's or any Restricted Subsidiary's business or the
ownership of its property other than for indebtedness; (ix) banker's liens and
rights of offset in the holders of indebtedness such as commercial paper in the
ordinary course of business; (x) leasehold or purchase rights, exercisable for a
fair consideration, in favor of any Person which arise in transactions entered
into in the ordinary course of business; (xi) Liens on property or shares of
stock of a corporation at the time the corporation becomes a Restricted
Subsidiary or merges into or consolidates with the Company or a Restricted
Subsidiary provided any such Lien is not incurred in anticipation of such
corporation becoming a Restricted Subsidiary or the related merger or
consolidation; (xii) Liens on property at the time the Company or a Restricted
Subsidiary acquires the property; (xiii) Liens in an amount not to exceed in the
aggregate an amount equal to 3% of Consolidated Stockholder's Equity, excluding
Liens covered by clauses (i) through (xii) above; and (xiv) Liens securing the
indebtedness of the Company or a Restricted Subsidiary and the sum of the
following does not exceed 10% of Consolidated Net Tangible Assets: (a) such
indebtedness plus (b) other indebtedness of the Company and its Restricted
Subsidiaries secured by Liens on property of the Company and its Restricted
Subsidiaries, excluding indebtedness secured by a Lien existing as of the date
specified in the Indenture and excluding indebtedness secured by a Lien
permitted by one of clauses (i) through (xiii) above. (Section 5.04).
CONSOLIDATION, MERGER, AND SALE OF ASSETS
The Indenture provides that the Company will not consolidate with, sell or
lease all or substantially all its assets to, or merge with or into any other
corporation, or purchase all or substantially all the assets of another
corporation, unless (i) the Company shall be the continuing corporation, or the
successor, transferee or lessee
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<PAGE> 9
corporation is organized under the laws of the United States of America or any
state thereof and assumes the Company's obligations under the Securities and the
Indenture and (ii) immediately after giving effect to such transaction, no
default will have occurred and be continuing. A purchase by a Subsidiary of all
or substantially all of the assets of another corporation shall not be deemed to
be a purchase of such assets by the Company (Section 5.06). Notwithstanding the
foregoing, if, upon any such consolidation or merger of the Company with or into
any other corporation, or upon any conveyance of the property of the Company as
an entirety or substantially as an entirety to any other corporation, any
properties of any character owned by the Company immediately prior thereto would
thereupon become subject to any Lien, simultaneously with such consolidation,
merger or conveyance, effective provision will be made to secure the Securities
outstanding equally and ratably with the debt secured by such Lien (Section
14.01).
MODIFICATION OF THE INDENTURE
The Indenture contains provisions permitting the Company and the Trustee,
without the consent of the holders of the Securities, to, among other things,
establish the form and terms of any series of the Securities issuable thereunder
by one or more supplemental indentures, and, with the consent of the holders of
not less than 66 2/3% in the aggregate principal amount of the Securities then
outstanding which are affected thereby, to modify and alter the terms of the
Indenture or any supplemental indenture or the rights of the holders of the
Securities of any series to be affected, except that no such modification or
alteration may be made which will (i) extend the fixed maturity of any
Securities, or reduce the rate or extend the time of payment of interest
thereon, or reduce the amount of the principal thereof, or reduce any premium
payable upon the redemption thereof, or make the principal thereof or interest
or premium thereon payable in any coin or currency other than that provided in
the Securities, or impair the right to institute suit for the enforcement of any
such payment on or after the maturity thereof, without the consent of the holder
of each Indenture Security so affected, or (ii) reduce the percentage of
Securities of any series, the holders of which are required to consent to any
such supplemental indenture, without the consent of the holders of all the
Securities then outstanding, or (iii) modify, without the written consent of the
Trustee, the rights, duties or immunities of the Trustee (Sections 13.01 and
13.02).
DEFAULTS
The Indenture provides that events of default with respect to any series of
Securities will be (i) default for 30 days in payment of interest upon any
Indenture Security of such series; (ii) default in payment of principal (other
than on sinking fund redemption) or premium, if any, on any Indenture Security
of such series; (iii) default for 30 days in payment of any sinking fund
instalment when due by the terms of the Securities of such series; (iv) default,
for 90 days after written notice to the Company by the Trustee or the holders of
at least 25% in aggregate principal amount of the Securities of such series then
outstanding, in performance of any other covenant in the Indenture (other than a
covenant included in the Indenture solely for the benefit of a series of
Securities other than such series); (v) default under another instrument or in
respect of another series of Securities resulting in acceleration of maturity of
indebtedness of the Company in an amount exceeding $15,000,000 if such
acceleration is not rescinded or annulled, or such indebtedness shall not have
been discharged, within 10 days after written notice by the Trustee or the
holders of at least 10% in principal amount of the Securities of such series;
(vi) certain events in bankruptcy or insolvency; and (vii) the incurrence of any
other event of default with respect to Securities of such series (Section 6.01).
If an event of default with respect to Securities of any series should occur and
be continuing, either the Trustee or the holders of 25% of the principal amount
of outstanding Securities of such series may declare each Indenture Security of
that series due and payable (Section 6.02). The Company will be required to file
annually with the Trustee a statement of an officer as to the fulfillment by the
Company of its obligations under the Indenture during the preceding year
(Section 5.07).
Holders of a majority in principal amount of the outstanding Securities of
any series will be entitled to control certain actions of the Trustee under the
Indenture and to waive past defaults with respect to such series (Sections 6.02
and 6.06). Subject to the provisions of the Indenture relating to the duties of
the Trustee, the Trustee will not be under any obligation to exercise any of the
rights or powers vested in it by the
8
<PAGE> 10
Indenture at the request, order or direction of any of the holders of
Securities, unless one or more of such holders of Securities shall have offered
to the Trustee reasonable indemnity (Section 10.01).
If an event of default occurs and is continuing with respect to a series of
Securities, any sums held or received by the Trustee under the Indenture may be
applied to reimburse the Trustee for its reasonable compensation and expenses
incurred prior to any payments to holders of Securities of such series (Section
6.05).
The right of any holder of Securities of any series to institute action for
any remedy is subject to certain conditions precedent, including a request to
the Trustee by the holders of not less than 25% in principal amount of the
Securities of that series outstanding to take action, and an offer to the
Trustee of reasonable indemnity against liabilities incurred by it in so doing
(Section 6.07).
DEFEASANCE
The Indenture provides that if, any time after the date of the Indenture,
the Company shall deposit with the Trustee, in trust for the benefit of the
holders thereof, (i) funds sufficient to pay, or (ii) such amount of direct
obligations of the United States of America as will or will together with the
income thereon without consideration of any reinvestment thereof be sufficient
to pay, all sums due for principal of, premium, if any, and interest on the
Securities of a particular series, as they shall become due from time to time,
and certain other conditions are met, the Trustee shall cancel and satisfy the
Indenture with respect to such series to the extent provided therein. Such
defeasance is conditioned upon the Company's delivery of an opinion of counsel
that the holders of the Securities of such series will have no federal income
tax consequences as a result of such deposit (Section 11.02).
CONCERNING THE TRUSTEE
The Trustee is one of the banks participating in certain revolving credit
agreements with the Company. In addition, the Trustee performs banking and
financial services for the Company in the ordinary course of business.
PLAN OF DISTRIBUTION
The Company may offer the Securities directly or through underwriters,
dealers or agents.
If underwriters are used in the offering of Offered Securities, the names
of the managing underwriter or underwriters (expected to be or include CS First
Boston Corporation, Goldman, Sachs & Co., Lehman Brothers, Lehman Brothers Inc.,
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated and
Morgan Stanley & Co. Incorporated) and any other underwriters, and the terms of
the transaction, including compensation of the underwriters and dealers, if any,
will be set forth in the Prospectus Supplement relating to such offering. Firms
not so named will have no direct or indirect participation in the underwriting
of such Offered Securities, although such a firm may participate in the
distribution of such Offered Securities under circumstances entitling it to a
dealer's allowance or agent's commission. It is anticipated that any
underwriting agreement pertaining to any Offered Securities will (1) entitle the
underwriters to indemnification by the Company against certain civil liabilities
under the Securities Act of 1933, as amended ("Securities Act"), (2) provide
that the obligations of the underwriters will be subject to certain conditions
precedent, and (3) provide that the underwriters generally will be obligated to
purchase all such Offered Securities if any are purchased.
The Company also may sell Offered Securities to a dealer, as principal. In
such event, the dealer may then resell such Offered Securities to the public at
varying prices to be determined by such dealer at the time of resale. The name
of the dealer and the terms of the transaction will be set forth in the
Prospectus Supplement relating thereto.
Offered Securities also may be offered through agents designated by the
Company from time to time. Any such agent will be named and the terms of any
such agency will be set forth, in the Prospectus
9
<PAGE> 11
Supplement or Pricing Supplement relating thereto. Unless otherwise indicated in
such Prospectus Supplement or Pricing Supplement, any such agent will act on a
best efforts basis for the period of its appointment.
Dealers and agents named in a Prospectus Supplement may be deemed to be
underwriters (within the meaning of the Securities Act) of the Offered
Securities described therein and, under agreements which may be entered into
with the Company, may be entitled to indemnification by the Company against
certain civil liabilities under the Securities Act. Underwriters, dealers and
agents may engage in transactions with, or perform services for, the Company in
the ordinary course of business.
If so indicated in a Prospectus Supplement, the Company will authorize
underwriters or other agents of the Company to solicit offers by certain
institutions to purchase the Offered Securities from the Company pursuant to
contracts providing for payment and delivery at a future date. Institutions with
which such contracts may be made include commercial and savings banks, insurance
companies, pension funds, investment companies, educational and charitable
institutions and others, but in all cases such institutions must be approved by
the Company. The obligations of any purchaser under any such contract will not
be subject to any conditions except that (1) the purchase of the Offered
Securities shall not at the time of delivery be prohibited under the laws of the
jurisdiction to which such purchaser is subject and (2) if the Offered
Securities are also being sold to underwriters, the Company shall have sold to
such underwriters the Offered Securities not subject to delayed delivery.
The anticipated date of delivery of Offered Securities will be set forth in
the Prospectus Supplement relating to the Offering of such Securities.
LEGAL MATTERS
The legality of the Securities being offered hereby will be passed upon for
the Company by William J. Hallinan, Esq., Senior Vice President -- General
Counsel of the Company. Brown & Wood will act as counsel for any underwriters or
agents.
EXPERTS
The consolidated financial statements of the Company incorporated in this
Prospectus by reference from the Company's Annual Report on Form 10-K for the
year ended December 31, 1994, have been audited by Deloitte & Touche LLP,
independent auditors, as stated in their report, which is incorporated herein by
reference, and have been so incorporated in reliance upon the report of such
firm given upon their authority as experts in accounting and auditing.
10
<PAGE> 12
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee...................... $ 517,241
Printing................................................................. 60,000
Accounting services...................................................... 200,000
Fees and expenses of Trustee............................................. 25,000
Rating agency fees....................................................... 750,000
Legal fees and expenses.................................................. 50,000
Expenses of qualification under blue sky laws............................ 25,000
Miscellaneous............................................................ 22,759
----------
Total.......................................................... $1,650,000
=========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Certain directors and officers of the Registrant are, in specified
circumstances, indemnified under the Amended and Restated Certificate of
Incorporation of FINOVA Capital Corporation and the General Corporation Law of
the State of Delaware against liability which they may incur in their capacities
as such.
The Certificate of Incorporation of FINOVA Capital Corporation provides
that such a person shall be indemnified to the fullest extent authorized by the
General Corporation Law of the State of Delaware. The General Corporation Law of
the State of Delaware provides generally that indemnification of such a person
may be made if he or she acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful. With respect to
suits by or in the right of the corporation, such person may be indemnified for
the costs and expenses of defending and settling such suits if he or she acted
in good faith in a manner he or she reasonably believed to be in or not opposed
to the best interests of the Corporation except that, if held liable to the
corporation, such person may not be so indemnified (unless and only to the
extent a court of competent jurisdiction shall determine that such
indemnification is appropriate.
In addition, under an insurance policy, the directors and officers of the
Registrant are indemnified, with various exclusions, against liability for
wrongful acts in such capacities, including negligence or breach of duty. The
principal exclusions from coverage are fines and penalties, liability based on
violation of pollution control laws, libel or slander, liability for illegal
personal profit or remuneration, ERISA violations and liability for deliberate
dishonesty.
ITEM 16. LIST OF EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NO. TITLE
- ------- ----------------------------------------------------------------------------------
<C> <C> <S>
1. -- Form of Senior Debt Securities Underwriting Agreement.
4.1 -- Form of Indenture between the Company and First Interstate Bank of Arizona, N.A.,
as Trustee, dated as of October 1, 1995.
4.2 -- Form of Fixed Rate Note.
4.3 -- Form of Floating Rate Note.
5. -- Opinion and consent of William J. Hallinan, Esq., Senior Vice President -- General
Counsel of the Company.
12. -- Computation of Ratio of Earnings to Fixed Charges (incorporated by reference to
Exhibit 12 to the Registrant's Annual Report on Form 10-K for the year ended
December 31, 1994 and Exhibit 12 to the Registrant's Quarterly Report on Form 10-Q
for the six months ended June 30, 1995).
23.1 -- Consent of Deloitte & Touche LLP.
</TABLE>
II-1
<PAGE> 13
<TABLE>
<CAPTION>
EXHIBIT
NO. TITLE
- ------- ----------------------------------------------------------------------------------
<S> <C>
23.2 -- Consent of William J. Hallinan, Esq. (included in Exhibit 5).
24. -- Power of Attorney (included in Part II of this Registration Statement on page
II-4).
25. -- Form T-1 Statement of Eligibility of First Interstate Bank of Arizona, N.A., as
Trustee under the Trust Indenture Act of 1939.*
</TABLE>
- ---------------
* To be filed under separate cover.
ITEM 17. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement: (i) to
include any prospectus required by Section 10(a)(3) of the Securities Act
of 1933; (ii) to reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
Registration Statement; provided however, that any increase or decrease in
volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from
the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price represent
no more than a 20% change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
Registration Statement; (iii) to include any material information with
respect to the plan of distribution not previously disclosed in the
Registration Statement or any material change to such information in the
Registration Statement; provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed by the Registrant pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 that are incorporated by reference in
the Registration Statement;
(2) that, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof; and
(3) to remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this Registration Statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4), or 497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration
II-2
<PAGE> 14
statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
(d) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Company pursuant to the foregoing provisions, or otherwise, the Company has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Company of expenses incurred or
paid by a director, officer or controlling person of the Company in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
II-3
<PAGE> 15
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT,
FINOVA CAPITAL CORPORATION, CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE
THAT IT MEETS ALL OF THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED
THIS REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED,
THEREUNTO DULY AUTHORIZED, IN THE CITY OF PHOENIX, STATE OF ARIZONA, ON THE 10TH
DAY OF OCTOBER, 1995.
FINOVA CAPITAL CORPORATION
By: /s/ SAMUEL L. EICHENFIELD
______________________________
Samuel L. Eichenfield
Chairman of the Board, President
and Chief Executive Officer
------------------------
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Samuel L. Eichenfield, Robert J. Fitzsimmons and
William J. Hallinan, and each of them severally, his true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement, and to file the same, with all exhibits thereto,
and other documents in connection herewith, with the Securities and Exchange
Commission and with any state or foreign securities regulatory agency, granting
unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite or necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or either of them, or their or his substitutes or
substitute, may lawfully do or cause to be done by virtue hereof.
------------------------
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED
BY THE FOLLOWING PERSONS IN THE CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------ ------------------------------ -----------------
<S> <C> <C>
/s/ SAMUEL L. EICHENFIELD Director, Chairman of the October 10, 1995
_________________________________________ Board, President and
(Samuel L. Eichenfield) Chief Executive Officer
(Principal Executive Officer)
/s/ ROBERT J. FITZSIMMONS Director, Senior Vice October 10, 1995
_________________________________________ President-Treasurer
(Robert J. Fitzsimmons)
/s/ BRUNO A. MARSZOWSKI Senior Vice President-Con- October 10, 1995
_________________________________________ troller (Principal Financial
(Bruno A. Marszowski) and Accounting Officer)
/s/ W. CARROLL BUMPERS Director October 10, 1995
_________________________________________
(W. Carroll Bumpers)
/s/ GREGORY C. SMALIS Director, Group Vice Presi- October 10, 1995
_________________________________________ dent -- Portfolio Management
(Gregory C. Smalis)
</TABLE>
II-4
<PAGE> 16
EXHIBIT INDEX
<TABLE>
<CAPTION>
PAGE NO. IN
SEQUENTIALLY
NUMBERED
EXHIBIT REGISTRATION
NO. TITLE STATEMENT
- ------- ------------------------------------------------------------------- ------------
<C> <C> <S> <C>
1. -- Form of Senior Debt Securities Underwriting Agreement.
4.1 -- Form of Indenture between the Company and First Interstate Bank of
Arizona, N.A., as Trustee, dated as of October 1, 1995.
4.2 -- Form of Fixed Rate Note.
4.3 -- Form of Floating Rate Note.
5. -- Opinion and consent of William J. Hallinan, Esq., Senior Vice
President -- General Counsel of the Company.
12. -- Computation of Ratio of Earnings to Fixed Charges (incorporated by
reference to Exhibit 12 to the Registrant's Annual Report on Form
10-K for the year ended December 31, 1994 and Exhibit 12 to the
Registrant's Quarterly Report on Form 10-Q for the six months ended
June 30, 1995).
23.1 -- Consent of Deloitte & Touche LLP.
23.2 -- Consent of William J. Hallinan, Esq. (included in Exhibit 5).
24. -- Power of Attorney (included in Part II of this Registration
Statement on page II-4).
25. -- Form T-1 Statement of Eligibility of First Interstate Bank of
Arizona, N.A., as Trustee under the Trust Indenture Act of 1939.*
</TABLE>
- ---------------
* To be filed under separate cover.
II-5
<PAGE> 1
EXHIBIT 1
$
FINOVA CAPITAL CORPORATION
(a Delaware corporation)
[Floating Rate] [__%] Notes Due __, __
UNDERWRITING AGREEMENT
__, 199__
[Name of Underwriter]
[Address of Underwriter]
Dear Sirs:
FINOVA Capital Corporation (formerly known as Greyhound Financial
Corporation), a Delaware corporation (the "Company"), confirms its agreement
with __________________________________ (the "Underwriter") with respect to the
sale by the Company and the purchase by the Underwriter of $__ aggregate
principal amount of the Company's [Floating Rate] [__%] Notes Due __, __ (the
"Securities"). The Securities are to be issued pursuant to an indenture dated as
of October 1, 1995 (the "Indenture") between the Company and First Interstate
Bank of Arizona, 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-__) for the
registration of $1,500,000,000 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, and will file such additional
amendments thereto and such amended prospectuses as may hereafter be required.
Such registration
<PAGE> 2
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, 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, and
the information, if any, deemed to be a part thereof pursuant to Rule 434 of the
rules and regulations of the Commission under the 1933 Act) 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 rules and
regulations promulgated under the 1933 Act (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. If the Company elects to
rely on Rule 434 under the 1933 Act Regulations, all references to the
Prospectus shall be deemed to include, without limitation, the form of
prospectus and the abbreviated term sheet, taken together, provided to the
Underwriter by the Company in reliance on Rule 434 under the 1933 Act
Regulations (the "Rule 434 Prospectus"). If the Company files a registration
statement to register a portion of the Securities and relies on Rule 462(b)
under the 1933 Act Regulations for such registration statement to become
effective upon filing with the Commission (the "Rule 462 Registration
Statement"), then any reference to "Registration Statement" herein shall be
deemed to be to both the registration statement referred to above (No. 33-__)
and the Rule 462 Registration Statement, as each such registration statement may
be amended pursuant to the 1933 Act.
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.
2
<PAGE> 3
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, at the
most recent date on which the Company filed an Annual Report on Form
10-K for a fiscal year ended prior to the date of this Agreement (the
"10-K Filing Date") 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
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 became 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 to the Registration
Statement become, effective, and at the 10-K Filing Date, 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
3
<PAGE> 4
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 as of the dates indicated
and the results of 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 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
4
<PAGE> 5
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
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
5
<PAGE> 6
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, 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, service
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.
(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.
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<PAGE> 7
(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 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
__, 199__, 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 __,
199__, and the financing contracts entered into by the Company or a
subsidiary since then are, in all material respects, legal, valid and
binding
7
<PAGE> 8
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 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, $__ aggregate principal amount
of the Securities.
8
<PAGE> 9
(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, P.O. Box 2209, Phoenix, Arizona, 85002-2209 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 __, 199__, 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 one business day 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,
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. If the
Company elects to rely on Rule 434 under the 1933 Act Regulations, the
Company will prepare an "abbreviated term sheet" that complies with the
requirements of Rule 434 under the 1933 Act Regulations. If the Company
elects not to rely on Rule 434, the Company will provide the
Underwriter with copies of the form of Prospectus, in such number as
the Underwriter may reasonably request, and file or transmit for filing
with the Commission such Prospectus in accordance with Rule 424(b) of
the 1933 Act Regulations by the close of business in New York on the
business day immediately succeeding the date hereof. If the Company
elects to rely on Rule 434, the Company will provide the Underwriter
with copies of the form of Rule 434 Prospectus, in such number as the
Underwriter may reasonably request, and file or transmit for filing
with the Commission the form of Prospectus complying with Rule
434(c)(2) of the 1933 Act Regulations in accordance with Rule 424(b) of
the 1933 Act Regulations by
9
<PAGE> 10
the close of business in New York on the business day immediately
succeeding the date hereof.
(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, or any abbreviated term sheet
prepared in reliance on Rule 434 of the 1933 Act Regulations), 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 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
10
<PAGE> 11
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 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
11
<PAGE> 12
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, including any abbreviated term sheet delivered by the
Company pursuant to Rule 434 of the 1933 Act Regulations, (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 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.
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<PAGE> 13
(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 scope 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 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
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<PAGE> 14
the Prospectus (included by incorporation) 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,
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.
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<PAGE> 15
(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, at the 10-K Filing Date and at the Representation
Date, the Registration Statement (other than the financial
statements, schedules and other financial and statistical data
included or incorporated by reference therein, the Form T-1,
and information relating to the Underwriter, 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, and the Rule 434 Prospectus
appeared on its face to be responsive as to form to the
requirements of Rule 434 of the 1933 Act Regulations in all
material respects.
(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 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.
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<PAGE> 16
(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, 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, service 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.
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<PAGE> 17
(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 10-K Filing Date (with respect to Mr. Hallinan) or at the
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
17
<PAGE> 18
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 LLP 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.
(e) At Closing Time the Underwriter shall have received from Deloitte &
Touche LLP 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 three days prior to Closing Time.
18
<PAGE> 19
(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, including the information deemed to be part of
the Registration Statement pursuant to Rule 434 of the 1933 Act Regulations,
if applicable), or any 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 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
19
<PAGE> 20
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), 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
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
20
<PAGE> 21
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 the
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 a
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 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
21
<PAGE> 22
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 _________________________________, Attention: _______________,
facsimile: (___) ________; and notices to the Company shall be directed to it at
FINOVA Capital Corporation, 1850 North Central Avenue, P.O. Box 2209, Phoenix,
Arizona 85002-2209, 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.
22
<PAGE> 23
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: _______________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
[NAME OF UNDERWRITER]
By: _____________________________
Name:
Title:
23
<PAGE> 24
EXHIBIT A
$
FINOVA CAPITAL CORPORATION
(a Delaware corporation)
[Floating Rate] [__%] Notes Due __, __
PRICING AGREEMENT
__, 199__
[Name of Underwriter]
[Address of Underwriter]
Dear Sirs:
Reference is made to the Underwriting Agreement, dated __, 199__ (the
"Underwriting Agreement"), relating to the purchase by
_______________________________ (the "Underwriter") of $__ aggregate principal
amount of [Floating Rate] [__%] Notes Due __, __ (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 __% of
the principal amount thereof.
2. The purchase price of the Securities to be paid by the Underwriter
shall be __% of the principal amount thereof.
A-1
<PAGE> 25
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: ________________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
[NAME OF UNDERWRITER]
By: _____________________________
Name:
Title
A-2
<PAGE> 1
Exhibit 4.1
================================================================================
FINOVA CAPITAL CORPORATION
AND
FIRST INTERSTATE BANK OF ARIZONA, N.A.
TRUSTEE
-----------------------
Indenture
Dated as of October 1, 1995
-----------------------
Providing for the Issuance of
Senior Debt Securities
================================================================================
<PAGE> 2
THIS CROSS REFERENCE SHEET, SHOWING THE LOCATION IN THE INDENTURE OF THE
PROVISIONS INSERTED PURSUANT TO SECTION 310-318(a), INCLUSIVE, OF THE TRUST
INDENTURE ACT OF 1939, IS NOT TO BE CONSIDERED A PART OF THE INDENTURE.
TRUST INDENTURE ACT CROSS REFERENCE SHEET
<TABLE>
<CAPTION>
Sections of Trust Sections of
Indenture Act Indenture
- ----------------- --------------
<S> <C>
310(a)(1)....................................... 10.06
310(a)(2)....................................... 10.06
310(a)(3)....................................... Not applicable
310(a)(4)....................................... Not applicable
310(b).......................................... 10.07
311............................................. 10.03
312............................................. 9.02
313............................................. 9.03
314(a).......................................... 9.04
314(b).......................................... Not applicable
314(c).......................................... 14.03
314(d).......................................... Not applicable
314(e).......................................... 14.03
315(a).......................................... 10.01
315(b).......................................... 10.11
315(c).......................................... 10.01
315(d).......................................... 10.01
315(e).......................................... 6.08
316(a).......................................... 6.06 and 7.03
316(b).......................................... 6.07
317(a).......................................... 6.03 and 6.04
317(b).......................................... 5.03
318(a).......................................... 14.05
</TABLE>
<PAGE> 3
TABLE OF CONTENTS*
--------------
<TABLE>
<CAPTION>
PAGE
<S> <C>
PARTIES ................................................ 1
RECITALS:
Authority of the Company to borrow money and
issue obligations ................................. 1
Corporate action taken to authorize issue
of Securities ..................................... 1
Corporate action taken to authorize execution
of Indenture ...................................... 1
ARTICLE ONE
DEFINITIONS
SECTION 1.01 Terms, unless otherwise defined, to have
meanings assigned in Trust Indenture
Act of 1939 ............................ 2
SECTION 1.02 Definitions:
Act .................................... 2
Authenticating Agent ................... 2
Board Resolution ....................... 2
Business Day ........................... 2
Commission ............................. 2
Company ................................ 3
Depositary ............................. 3
Event of default ....................... 4
Indenture .............................. 4
Interest Payment Date .................. 4
Lien ................................... 4
Mandatory Sinking Fund Payment ......... 4
Maturity ............................... 4
Officers' Certificate .................. 4
Opinion of Counsel ..................... 5
Optional Sinking Fund Payment .......... 5
Outstanding ............................ 5
Person ................................. 6
Principal Office of the Trustee ........ 6
Record Date ............................ 6
Redemption Date ........................ 6
Redemption Price ....................... 7
Responsible Officers ................... 7
Restricted Subsidiary .................. 7
</TABLE>
- ---------------
* The Table of Contents is not part of the Indenture.
(i)
<PAGE> 4
<TABLE>
<S> <C>
Security ....................................................... 7
Security Co-Registrar .......................................... 7
Security Register; Security Registrar .......................... 7
Securityholder; holder of Securities;........................... 7
holder; registered holder ..................................... 8
Stated Maturity ................................................ 8
Subsidiary ..................................................... 8
Trustee ........................................................ 8
Trust Indenture Act ............................................ 8
Unrestricted Subsidiary ........................................ 8
Voting Stock ................................................... 8
ARTICLE TWO
FORM, EXECUTION, DELIVERY, TRANSFER AND
AND EXCHANGE OF SECURITIES
SECTION 2.01. Forms generally ................................................ 9
Record dates ................................................... 9
Place of payment, denominations and
numbering of Securities ....................................... 10
SECTION 2.02. Terms of series ................................................ 10
SECTION 2.03. Certificate of authentication necessary
to make Securities valid ...................................... 11
SECTION 2.04. Form of certificate of authentication .......................... 11
SECTION 2.05. The Company to maintain register at
office or agency in New York .................................. 13
Registration and registration of
transfer of Securities ........................................ 13
Exchange of Securities ......................................... 14
Payment in connection with registration
of transfer or exchange of Securities ......................... 16
Persons who may be treated as owners
of Securities ................................................. 16
SECTION 2.06. Replacing Securities mutilated,
destroyed, lost or stolen ..................................... 16
SECTION 2.07. Rights to interest accrued and unpaid,
and to accrue, on Securities delivered
in exchange or substitution for other
Securities .................................................... 17
SECTION 2.08. Temporary Securities .......................................... 17
ARTICLE THREE
ISSUE OF SECURITIES
SECTION 3.01. Authentication, Delivery and Dating ........................... 18
ARTICLE FOUR
REDEMPTION OF SECURITIES; SINKING FUND
</TABLE>
(ii)
<PAGE> 5
<TABLE>
<S> <C>
SECTION 4.01. Applicability of right of redemption ........................... 21
SECTION 4.02. Notice of redemption ........................................... 21
Interest to cease after redemption date ........................ 21
Selection of Securities on partial
redemption .................................................... 22
SECTION 4.03. Securities of any series to be canceled
and discharged on specific conditions ......................... 22
SECTION 4.04. Applicability of sinking fund .................................. 22
SECTION 4.05. Mandatory sinking fund obligation .............................. 23
SECTION 4.06. Optional redemption at sinking fund
redemption price .............................................. 23
SECTION 4.07. Application of sinking fund payments ........................... 24
ARTICLE FIVE
PARTICULAR COVENANTS OF THE COMPANY
SECTION 5.01. To pay principal, premium, if any,
and interest .................................................. 25
SECTION 5.02. To maintain office or agency in
New York ...................................................... 25
SECTION 5.03. The Company, or paying agent, to hold in
trust moneys for payment of principal,
premium, if any, and interest ................................. 26
SECTION 5.04. Restrictions upon liens upon property
of the Company and Restricted
Subsidiaries .................................................. 27
SECTION 5.05. Maintenance of corporate existence ............................. 30
SECTION 5.06. Restrictions on consolidation, merger,
sale, etc. .................................................... 30
SECTION 5.07. Annual statement concerning compliance
with covenants ................................................ 30
SECTION 5.08. Compliance with covenants and conditions
may be waived by holders of Securities ........................ 31
ARTICLE SIX
REMEDIES OF TRUSTEE AND SECURITYHOLDERS
SECTION 6.01. Events of default .............................................. 31
SECTION 6.02. Acceleration of maturity of principal
on default ................................................... 33
Waiver of acceleration of maturity ............................. 33
SECTION 6.03. The Company, failing for 30 days to pay
any installment of interest or sinking
fund payment or failing to pay principal
when due, will pay to Trustee at its
request whole amount due ...................................... 34
Upon failure to pay, Trustee may recover
judgment for ratable benefit of
Securityholders ............................................... 34
SECTION 6.04. Trustee appointed attorney-in-fact for
Securityholders to file claims ................................ 35
</TABLE>
(iii)
<PAGE> 6
<TABLE>
<S> <C>
SECTION 6.05. Application of moneys collected by
Trustee ....................................................... 36
SECTION 6.06. Securityholders may direct proceedings
and waive defaults ............................................ 37
SECTION 6.07. Limitations on rights of Securityholders
to institute proceedings ...................................... 37
SECTION 6.08. Assessment of costs and attorneys' fees
in legal proceedings .......................................... 38
SECTION 6.09. Remedies cumulative .......................................... 38
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.01. Evidence of action by Securityholders .......................... 39
SECTION 7.02. Proof of execution of instruments and
of holding of Securities ...................................... 39
SECTION 7.03. Securities owned by the Company or other
obligor on the Securities to be
disregarded in certain cases .................................. 40
SECTION 7.04. Revocation by Securityholders of
consents to action ............................................ 40
ARTICLE EIGHT
SECURITYHOLDERS' MEETINGS
SECTION 8.01. Purposes of meetings ........................................... 41
SECTION 8.02. Call of meetings by Trustee .................................... 41
SECTION 8.03. Call of meetings by Company or
Securityholders ............................................... 42
SECTION 8.04. Qualifications for voting ...................................... 42
SECTION 8.05. Regulation of meetings ......................................... 42
SECTION 8.06. Voting ......................................................... 43
SECTION 8.07. No delay of rights by meeting .................................. 43
ARTICLE NINE
REPORTS BY THE COMPANY AND THE TRUSTEE
AND SECURITYHOLDERS' LISTS
SECTION 9.01. Company to Furnish Trustee Names
and Addresses of Holders ...................................... 44
SECTION 9.02. Preservation of Information;
Communications to Holders ...................................... 44
SECTION 9.03. Reports by Trustee ............................................. 44
SECTION 9.04. Reports by Company ............................................. 45
</TABLE>
(iv)
<PAGE> 7
<TABLE>
<S> <C>
ARTICLE TEN
CONCERNING THE TRUSTEE
SECTION 10.01. Certain Rights of Trustee ...................................... 46
SECTION 10.02. Not Responsible for Recitals or
Issuance of Securities ........................................ 47
SECTION 10.03. May Hold Securities ............................................ 47
SECTION 10.04. Money Held in Trust ............................................ 47
SECTION 10.05. Compensation and Reimbursement ................................. 48
SECTION 10.06. Corporate Trustee Required;
Eligibility ................................................... 48
SECTION 10.07. Resignation and Removal;........................................
Appointment of Successor ...................................... 49
SECTION 10.08. Acceptance of Appointment
by Successor .................................................. 51
SECTION 10.09. Merger, Conversion, Consolidation or
Succession to Business ........................................ 52
SECTION 10.10. Appointment of Authenticating Agent ............................ 52
SECTION 10.11. Notice of Defaults ............................................. 54
ARTICLE ELEVEN
DEFEASANCE
SECTION 11.01. Discharge of Indenture upon payment of
Securities .................................................... 54
SECTION 11.02. Discharge of Securities of any series
upon deposit of moneys ........................................ 55
SECTION 11.03. Interest on moneys deposited ................................... 56
Moneys unclaimed for three years to be
returned to the Company ....................................... 56
Moneys deposited with Trustee to pay
principal, premium, if any, or interest
to be held in trust ........................................... 56
ARTICLE TWELVE
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS, DIRECTORS AND EMPLOYEES
SECTION 12.01. Liability solely corporate ..................................... 56
ARTICLE THIRTEEN
SUPPLEMENTAL INDENTURES
SECTION 13.01. Without consent of Securityholders, the
Company and Trustee may enter into
supplemental indentures for specified
purposes ...................................................... 57
SECTION 13.02. Modification of Indenture by supplemental
</TABLE>
(v)
<PAGE> 8
<TABLE>
<S> <C>
indenture with consent of
Securityholders ............................................... 59
SECTION 13.03. Upon request of the Company, Trustee to
join in execution of supplemental
indenture ..................................................... 60
SECTION 13.04. Effect of supplemental indenture ............................... 60
SECTION 13.05. Matters provided for in supplemental
indenture may be noted on Securities,
or new Securities appropriately modified
may be issued in exchange for
outstanding Securities ........................................ 60
SECTION 13.06. Supplemental indentures to conform to
Trust Indenture Act of 1939 ................................... 61
ARTICLE FOURTEEN
MISCELLANEOUS PROVISIONS
SECTION 14.01. Consolidation, merger, sale or lease ........................... 61
SECTION 14.02. Rights under Indenture confined to
parties and holders of Securities ............................. 62
SECTION 14.03. Evidence of compliance with conditions
precedent ..................................................... 62
As evidence of compliance, Officers'
Certificate and Opinion of Counsel to
be furnished to Trustee ....................................... 62
Contents of certificates and opinions .......................... 62
Trustee may examine books and records of
the Company ................................................... 63
SECTION 14.04. Cancellation of Securities ..................................... 63
SECTION 14.05. Provisions required by Trust Indenture
Act of 1939 to control ........................................ 63
SECTION 14.06. Action of authorized committee deemed to
be action of Board of Directors ............................... 64
SECTION 14.07. Notices ........................................................ 64
SECTION 14.08. Act of Holders ................................................. 64
SECTION 14.09. Payments due on Non-Business days .............................. 66
SECTION 14.10. Execution in counterparts ...................................... 66
SECTION 14.11. Indenture deemed a New York contract ........................... 66
TESTIMONIUM .................................................................... 67
SIGNATURES AND SEALS ........................................................... 67
ACKNOWLEDGEMENTS ............................................................... 67
</TABLE>
(vi)
<PAGE> 9
INDENTURE, dated as of October 1, 1995, between FINOVA CAPITAL
CORPORATION, a corporation organized and existing under the laws of the State of
Delaware (hereinafter called the "Company"), party of the first part, and FIRST
INTERSTATE BANK OF ARIZONA, N.A., a national banking association, as trustee
(hereinafter called the "Trustee"), party of the second part.
RECITALS
The Company is authorized and empowered to borrow money for its corporate
purposes and to issue its bonds, debentures, notes and other obligations for
money so borrowed.
The Company has duly authorized the issue, in one or more series as in
this Indenture provided, from time to time of its debt securities (hereinafter
called the "Securities") and, to provide the general terms and conditions upon
which the Securities are to be authenticated, issued and delivered, the Company
has duly authorized the execution and delivery of this Indenture.
The Trustee has power to enter into this Indenture and to accept and
execute the trusts herein created.
The Company represents that all acts and things necessary to make the
Securities, when executed by the Company and authenticated and delivered by the
Trustee as in this Indenture provided and issued, the valid, binding and legal
obligations of the Company, will, at the time of such execution, authentication
and delivery, have been done and performed; that all acts and things necessary
to constitute these presents a valid indenture and agreement according to its
terms have been done and performed; that the execution of this Indenture has in
all respects been duly authorized and the issue hereunder of the Securities
will, at the time of the issue thereof, have in all respects been duly
authorized; and that the Company, in the exercise of each and every legal right
and power in it vested, executes this Indenture and proposes to make, execute,
issue and deliver the Securities.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That, in consideration of the premises and of the acceptance and purchase
of the Securities by the holders thereof, the Company covenants and agrees with
the Trustee, for the equal benefit of all the holders from time to time of the
Securities, without preference, priority or distinction of any thereof over any
other thereof by reason of priority in time of issuance or negotiation, or
otherwise, as follows:
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<PAGE> 10
ARTICLE ONE
DEFINITIONS
SECTION 1.01. Unless otherwise defined in this Indenture or the context
otherwise requires, all terms used herein shall have the meanings assigned to
them in the Trust Indenture Act of 1939.
SECTION 1.02. Unless the context otherwise requires, the terms defined in
this Section 1.02 shall for all purposes of this Indenture have the meanings
hereinafter set forth, the following definitions to be equally applicable to
both the singular and the plural forms of any of the terms herein defined:
Act:
The term "Act", when used with respect to any holders, has the
meaning specified in Section 14.08.
Authenticating Agent:
The term "Authenticating Agent" means the Trustee and/or the
authenticating agent, if any, appointed by the Trustee and acting pursuant
to Section 10.10.
Board Resolution:
The term "Board Resolution" means a copy of a resolution or
resolutions certified by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board of Directors or any
committee of the Board of Directors (or committee of officers or other
representatives of the Company, to the extent that any such committee or
committees have been authorized by the Board of Directors to establish or
approve the matters contemplated by Section 2.02 hereof) and to be in full
force and effect on the date of such certification, and delivered to the
Trustee.
Business day:
The term "Business day" shall mean a day which in The City of New
York is not a day on which banking institutions are authorized or
obligated by law or executive order to close.
Commission:
The term "Commission" means the Securities and Exchange Commission,
as from time to time constituted, created under the Securities Exchange
Act of 1934 or, if at any time after the execution of this Indenture such
Commission is not existing and performing the duties now assigned to it
under the Trust Indenture Act, then the body performing such duties at
such time.
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<PAGE> 11
Company:
The term "Company" shall mean FINOVA Capital Corporation and,
subject to the provisions of Section 14.01, shall also include its
successors and assigns.
Consolidated Net Tangible Assets:
The term "Consolidated Net Tangible Assets" means the total of all
assets reflected on the most recent quarterly or annual consolidated
balance sheet of the Company and its consolidated Subsidiaries, prepared
in accordance with generally accepted accounting principles, at their net
book values (after deducting related depreciation, depletion,
amortization and all other valuation reserves which, in accordance with
such principles, should be set aside in connection with the business
conducted), but excluding goodwill, unamortized debt discount and all
other like intangible assets, all as determined in accordance
with such principles, less the aggregate of the current liabilities of
the Company and its consolidated Subsidiaries reflected on such balance
sheet, all as determined in accordance with such principles.
For purposes of this definition, "current liabilities" include
all indebtedness for money borrowed, incurred, issued, assumed or
guaranteed by the Company and its consolidated Subsidiaries, and other
payables and accruals, in each case payable on demand or due within one
year of the date of determination of Consolidated Net Tangible Assets, but
shall exclude any portion of long-term debt maturing within one year of
the date of such determination, all as reflected on such consolidated
balance sheet of the Company and its consolidated Subsidiaries, prepared
in accordance with generally accepted accounting principles.
Consolidated Stockholder's Equity:
The term "Consolidated Stockholder's Equity" means the total of the
amounts reflected on the most recent quarterly or annual
consolidated balance sheet of the Company and its consolidated
Subsidiaries as stockholder's equity (or stockholders' equity, if then
applicable) prepared in accordance with generally accepted accounting
principles, as (i) the par or stated value of all outstanding capital
stock, plus (ii) additional paid-in capital or capital surplus relating
to such capital stock, plus (iii) any retained earnings or earned
surplus, (A) minus any accumulated deficit, and (B) plus or minus, as
applicable, any cumulative translation adjustments, all as reflected on
such balance sheet and as determined in accordance with such principles.
Depositary:
With respect to the Securities of any series issuable or issued in
whole or in part in global form, the Person designated as Depositary by
the Company pursuant to Section 2.02 until a successor Depositary shall
have become
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<PAGE> 12
such pursuant to the applicable provisions of this Indenture, and
thereafter "Depositary" shall mean or include each Person who is then a
Depositary hereunder, and if at any time there is more than one such
Person, "Depositary" as used with respect to the Securities of any such
series shall mean the "Depositary" with respect to the Securities of that
series.
Event of default:
The term "event of default" shall have the meaning specified in
Section 6.01.
Indenture:
The term "Indenture" or "this Indenture" shall mean this instrument
and all indentures supplemental hereto.
Interest Payment Date:
The term "Interest Payment Date" when used with respect to any
Security shall mean the Stated Maturity of an instalment of interest on
such Security.
Lien:
The term "Lien" means any lien, charge, claim, security interest,
pledge, hypothecation, right of another under any conditional sale or
other title retention agreement, or any other encumbrance affecting title
to property. Without limiting the generality of the foregoing, the sale of
property used or useful in the business of the seller with the intention
of retaining the use thereof under a lease, or any other comparable
arrangement commonly referred to as a "sale and leaseback", shall be
deemed to create a Lien on such property.
Mandatory Sinking Fund Payment:
The term "Mandatory Sinking Fund Payment" shall have the meaning
specified in Section 4.04.
Maturity:
The term "Maturity", with respect to any Security, shall mean the
date on which the principal of such Security shall become due and payable
as therein and herein provided, whether by declaration, call for
redemption or otherwise.
Officers' Certificate:
The term "Officers' Certificate", when used with respect to the
Company, shall mean a certificate signed by the Chairman of the Board of
Directors, the President or any Vice President and by the Treasurer, any
Assistant
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<PAGE> 13
Treasurer, the Controller, any Assistant Controller, the Secretary or any
Assistant Secretary of the Company.
Opinion of Counsel:
The term "Opinion of Counsel" shall mean an opinion in writing
signed by legal counsel, who may be counsel for the Company.
Optional Sinking Fund Payment:
The term "Optional Sinking Fund Payment" shall have the meaning
specified in Section 4.04.
Outstanding:
The term "outstanding", when used as of any particular time with
reference to Securities, shall mean, as of the date of determination and
subject to Section 7.03, all Securities theretofore authenticated and
delivered by the Trustee under this Indenture, except
(a) Securities or portions thereof for which (i) funds, or as
provided in Section 11.02 hereof, direct obligations of the United
States of America, sufficient to pay the principal thereof, premium,
if any, thereon and all unpaid interest thereon to Maturity or to
the date fixed for the redemption thereof shall have been deposited
in trust for such purpose as provided herein with the Trustee or
with any paying agent (other than the Company) or shall have been
set aside and segregated in trust by the Company (if the Company
shall act as its own paying agent), and (ii) in case of redemption,
notice of redemption thereof shall have been duly given or provision
satisfactory to the Trustee for the giving of such notice shall have
been made;
(b) Securities which shall have been cancelled or surrendered
to the Trustee for cancellation; and
(c) Securities in lieu of or in substitution for which other
Securities shall have been authenticated and delivered pursuant to
Section 2.05 or 2.06;
provided, however, that in determining whether the holders of the
requisite principal amount of Outstanding Securities have given any
request, demand, authorization, direction, notice, consent or waiver
hereunder, Securities owned by the Company or any other obligor upon the
Securities or any affiliate of the Company or of such other obligor shall
be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver,
only Securities which
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<PAGE> 14
the Trustee knows to be so owned shall be so disregarded. Securities so
owned which have been pledged in good faith may be regarded as Outstanding
if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the
pledgee is not the Company or any other obligor upon the Securities or any
affiliate of the Company or of such other obligor.
Person:
The term "person" shall mean an individual, a corporation, a
partnership, a joint venture, an association, a joint stock company, a
trust, an unincorporated organization or a government or an agency or
political subdivision thereof.
Principal Office of the Trustee:
The term "Principal Office of the Trustee", or other similar term,
shall mean the principal corporate trust office of the Trustee at which
its principal trust business is administered. As of the date hereof, the
Principal Office of the Trustee is located at __________________________
___________________________________ (telephone: (___) ________ and
telecopier: (___) _________).
Record Date:
The term "Record Date" shall mean, with respect to any interest
payable on any Security on any Interest Payment Date, the close of
business on the date specified in such Security or, in the case of
defaulted interest, the close of business on any subsequent record date
established as provided in Section 2.01 (in each case whether or not such
day is a business day).
Redemption Date:
The term "Redemption Date" when used with respect to any Security to
be redeemed, in whole or in part, shall mean the date fixed for such
redemption by or pursuant to this Indenture and the terms of such
Security.
Redemption Price:
The term "Redemption Price" when used with respect to any Security
to be redeemed shall mean the price (exclusive of accrued interest) at
which it is to be redeemed pursuant to this Indenture and the terms of
such Security.
Responsible Officers:
"Responsible Officers" of the Trustee hereunder shall mean and
include the chairman and any vice chairman of the board of directors, the
president, the chairman and any vice
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<PAGE> 15
chairman of the executive committee of the board of directors, or any
officer in the corporate trust department of the Trustee customarily
performing functions similar to those performed by the persons who at the
time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of his knowledge of, and familiarity with, a
particular subject.
Restricted Subsidiary:
The term "Restricted Subsidiary" means any Subsidiary which is
designated as such by Board Resolution and at least a majority of the
shares of Voting Stock of which shall at the time be owned, directly, by
the Company or by one or more Restricted Subsidiaries or by the Company
and one or more Restricted Subsidiaries.
Security:
The term "Security" shall mean one of the Securities duly
authenticated by the Trustee and delivered pursuant to the provisions of
this Indenture.
Security Co-Registrar:
The term "Security Co-Registrar" has the meaning specified in
Section 2.05.
Security Register; Security Registrar:
The terms "Security Register" and "Security Registrar" have the
respective meanings specified in Section 2.05.
Securityholder; holder of Securities; holder; registered holder:
The term "Securityholder" or "holder of Securities" or "holder" or
"registered holder", with respect to a Security, shall mean the person in
whose name such Security or Securities shall be registered in the register
kept for that purpose hereunder.
Stated Maturity:
The term "Stated Maturity" when used with respect to any Security or
any instalment of interest thereon shall mean the date specified in such
Security as the fixed date on which the principal (or any portion thereof)
of or premium, if any, on such Security or such instalment of interest is
due and payable.
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Subsidiary:
The term "Subsidiary" shall mean any corporation at least a majority
of the Voting Stock of which shall at the time be owned, directly or
indirectly, by the Company, or one or more Subsidiaries, or by the Company
and one or more Subsidiaries.
Trustee:
The term "Trustee" shall mean the trustee hereunder for the time
being, whether original or successor, and if at any time there is more
than one such trustee, "Trustee" as used with respect to the Securities of
any series shall mean the trustee with respect to Securities of that
series.
Trust Indenture Act of 1939 or Trust Indenture Act:
The term "Trust Indenture Act of 1939" or "Trust Indenture Act"
shall mean such Act as amended from time to time except as provided in
Section 13.06 or otherwise required by law.
Unrestricted Subsidiary:
The term "Unrestricted Subsidiary" shall mean any Subsidiary other
than a Restricted Subsidiary.
Voting Stock:
The term "Voting Stock" means stock of any class or classes (however
designated) having ordinary voting power for the election of a majority of
the members of the board of directors (or any governing body) of such
corporation, other than stock having such power only by reason of the
happening of a contingency.
Certain other terms, relating principally to provisions included in this
Indenture in compliance with the Trust Indenture Act of 1939, are defined in
Article Ten.
ARTICLE TWO
FORM, EXECUTION, DELIVERY, TRANSFER AND
EXCHANGE OF SECURITIES
SECTION 2.01. The Securities of each series shall be issuable in
registered form and shall be in substantially such form as shall be established
by or pursuant to a Board Resolution or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture, and may
have such letters, numbers or other marks of identification or designation and
such legends or endorsements
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<PAGE> 17
printed, lithographed or engraved thereon as the officers of the Company
executing the same may approve (execution thereof to be conclusive evidence of
such approval) and as are not inconsistent with the provisions of this
Indenture, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any stock
exchange on which the Securities may be listed, or to conform to usage. The
Securities shall be issued, except as otherwise provided with respect to any
series of Securities pursuant to Section 2.02, in the denomination of $1,000 and
any larger denomination which is an integral multiple of $1,000 approved by the
Company, such approval to be evidenced by the execution thereof.
If Securities of a series are issuable in whole or in part in global form,
any such Security may provide that it shall represent the aggregate amount of
Outstanding Securities from time to time endorsed thereon and may also provide
that the aggregate amount of Outstanding Securities represented thereby may from
time to time be reduced to reflect exchanges or increased to reflect the
issuance of additional Securities. Any endorsement of a Security in global form
to reflect the amount, or any increase or decrease in the amount, of Outstanding
Securities represented thereby shall be made in such manner and by such Person
or Persons, as shall be specified therein or in the Company order of
authentication delivered to the Trustee pursuant to Section 2.04.
The person in whose name any Security is registered at the close of
business on any Record Date with respect to any Interest Payment Date shall be
entitled to receive the interest payable on such Interest Payment Date
notwithstanding the cancellation of such Security upon any transfer or exchange
thereof subsequent to such Record Date and prior to such 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 persons in whose names the outstanding Securities
are registered on a subsequent record date, such record date to be not less than
5 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 holders of Securities
not less than 15 days preceding such subsequent record date.
The principal of and interest and premium, if any, on the Securities shall
be payable at each office or agency of the Company designated pursuant to
Section 5.02 for such purpose; provided, however, that interest may at the
option of the Company be paid by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register
(including the records of any Security Co-Registrar). Such payments will be made
in such coin or currency of the United States of America as at the time of
payment shall be legal tender for the payment of public and private debts.
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SECTION 2.02. The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established by or pursuant to a Board Resolution, and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series:
(a) the title of the Securities of the series (which shall
distinguish the Securities of the series from the Securities of all other
series, except to the extent that additional Securities of an existing
series are being issued);
(b) any limit upon the aggregate principal amount of the Securities
of the series which may be outstanding under this Indenture (except as
otherwise provided in Section 2.06, 2.08, 4.02 or 13.05);
(c) the date or dates on which the principal of the Securities of
the series is payable;
(d) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method by which such rate or rates shall be
determined, the date or dates from which such interest shall accrue, or
the method by which such date or dates shall be determined, the interest
payment dates on which such interest shall be payable and the record dates
for the determination of holders to whom interest is payable;
(e) the place or places where the principal of, premium, if any, and
interest on Securities of the series shall be payable;
(f) the price or prices at which, the period or periods within which
and the terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company, if the
Company is to have that option;
(g) the obligation, if any, of the Company to redeem, purchase or
repay Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a holder thereof and the price or prices at
which the period or periods within which and the terms and conditions upon
which Securities of the series shall be redeemed, purchased or repaid, in
whole or in part, pursuant to such obligation;
(h) if other than denominations of $1,000 or any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
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(i) if other than the principal amount thereof, the portion of the
principal amount of the Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 6.02;
(j) the issuance of the Securities of such series in whole or in
part in global form and, if so, the identity of the Depositary for such
Securities in global form, and the terms and conditions, if any, upon
which interests in such Securities in global form may be exchanged, in
whole or in part, for the individual Securities represented thereby;
(k) any deletions from, modifications of or additions to the events
of default or covenants of the Company with respect to any of such
Securities, whether or not such events of default or covenants are
consistent with the events of default or covenants set forth herein; and
(l) any other terms of the Securities of the series (which terms
shall not be inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical except
as to denomination and except as may otherwise be provided by or pursuant to
such Board Resolution, and set forth in such Officers' Certificate, or in any
such indenture supplemental hereto. If any of the terms of a series of
Securities are established by action taken pursuant to a Board Resolution, a
copy of such Board Resolution shall be delivered to the Trustee at or prior to
the delivery of the Officers' Certificate setting forth the terms of such
series. All Securities of any one series need not be issued at the same time
and, unless otherwise so provided by the Company, a series may be reopened for
issuances of additional Securities of such series or to establish additional
terms of such series of Securities.
SECTION 2.03. The Securities shall be signed in the name and on behalf of
the Company by the manual or facsimile signature of its Chairman of the Board of
Directors, its President or one of its Vice Presidents, and by its Secretary, or
one of its Assistant Secretaries. The Securities shall then be delivered to the
Trustee or the Authenticating Agent for authentication by it, and thereupon, as
provided herein, the Trustee or the Authenticating Agent shall authenticate and
deliver such Securities. In case any officer of the Company who shall have
signed any of the Securities shall cease to be such officer of the Company
before the Securities so signed shall have been actually authenticated and
delivered by the Trustee or the Authenticating Agent, such Securities may
nevertheless be issued, authenticated and delivered as though the person who
signed such Securities had not ceased to be such officer of the Company; and
also any of the Securities may be signed on behalf of the Company by any person
who at the time of the execution of such Securities shall be the
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<PAGE> 20
proper officer of the Company, even though at the date of the execution of this
Indenture such person may not have been such officer of the Company.
SECTION 2.04. Only such of the Securities as shall bear thereon a
certificate substantially in the form of the Trustee's certificate of
authentication hereinafter recited, executed by the Trustee or the
Authenticating Agent, shall be valid or become obligatory for any purpose or
entitle the holder thereof to any right or benefit under this Indenture, and the
certificate of authentication by the Trustee or the Authenticating Agent upon
any such Security executed on behalf of the Company as aforesaid shall be
conclusive evidence, and the only evidence, that the Security so authenticated
has been duly authenticated and delivered hereunder and that the holder thereof
is entitled to the benefits of this Indenture.
The Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
This is one of the Securities issued under the Indenture described herein.
FIRST INTERSTATE BANK OF ARIZONA, N.A.
as Trustee
By
-----------------------------------
Authorized Signatory
or (if an Authenticating Agent is appointed pursuant to Section 10.10)
FIRST INTERSTATE BANK OF ARIZONA, N.A.
as Trustee
By (Name of Agent)
as Authenticating Agent
By
----------------------------
Authorized Signatory
SECTION 2.05. The Company shall cause to be kept a register (herein
sometimes referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. Unless and until
otherwise determined by the Company, by Board Resolution, the Security Register
initially shall be kept at the Principal Office of the Trustee. The Trustee is
hereby appointed "Security
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Registrar" for the purpose of registering Securities and transfers of Securities
as herein provided. The Company may appoint one or more "Security Co-Registrars"
for such purpose. The Security Registrar and any Security Co-Registrars are
herein sometimes referred to, and are appointed as, the "Security Registrar".
Upon surrender for registration of transfer of any Security of any series
at any office or agency of the Company designated pursuant to Section 5.02 for
such purpose or at the office of any Security Co-Registrar, the Company shall
execute and the Trustee or the Authenticating Agent shall authenticate and
deliver a Security or Securities of such series for a like aggregate principal
amount, in such authorized denomination or denominations and registered in such
name or names as may be requested. The transfer of any security shall not be
valid as against the Company or the Trustee unless registered at such offices or
agency by the registered holder, or by his attorney duly authorized in writing.
Securities of any series in their several authorized denominations are
exchangeable for a Security or Securities of such series in authorized
denominations and of a like aggregate principal amount. Securities to be
exchanged as aforesaid shall be surrendered for that purpose by the registered
holder thereof at such offices or agency, and the Company shall execute and the
Trustee or the Authenticating Agent shall authenticate and deliver in exchange
therefor the Security or Securities in such authorized denomination or
denominations as the Securityholder making the exchange shall have requested and
shall be entitled to receive. The Company shall not be required to make any
exchange or effect registration of transfer of (i) any Security which shall have
been designated for redemption in whole or in part except, in the case of any
Security to be redeemed in part, the portion thereof not so to be redeemed, or
(ii) any Security for a period of 15 days next preceding any selection of
Securities for redemption.
Notwithstanding any other provision of this Section, unless and until it
is exchanged in whole or in part for the individual Securities represented
thereby, in definitive form, a Security in global form representing all or a
portion of the Securities of a series may not be transferred except as a whole
by the Depositary for such series to a nominee of such Depositary or by a
nominee of such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary or any such nominee to a successor Depositary
for such series or a nominee of such successor Depositary.
All Securities presented or surrendered for registration of transfer,
exchange or payment shall (if so required by the Company or the Trustee or any
Security Registrar or Security Co-Registrar or any Authenticating Agent) be duly
endorsed by, or accompanied by a written instrument or instruments of transfer
(in form satisfactory to the Company and the Security Registrar
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or any Security Co-Registrar) duly executed by, the registered holder or by his
attorney duly authorized in writing.
If at any time the Depositary for the Securities of a series represented
by one or more Securities in global form notifies the Company that it is
unwilling or unable to continue as Depositary for the Securities of such series
or if at any time the Depositary for the Securities of such series shall no
longer be eligible under Section 2.01, the Company shall appoint a successor
Depositary with respect to the Securities of such series. If a successor
Depositary for the Securities of such series is not appointed by the Company
within 90 days after the Company receives such notice or becomes aware of such
ineligibility, the Company's election pursuant to Section 2.02 that such
Securities be represented by one or more Securities in global form shall no
longer be effective with respect to the Securities of such series and the
Company will execute, and the Trustee, upon receipt of a Company order for the
authentication and delivery of definitive Securities of such series, will
authenticate and deliver, Securities of such series in definitive form, in
authorized denominations, in an aggregate principal amount and like terms and
tenor equal to the principal amount of the Security or Securities in global form
representing such series in exchange for such Security or Securities in global
form.
The Company may at any time and in its sole discretion determine that
individual Securities of any series issued in global form shall no longer be
represented by such Security or Securities in global form. In such event the
Company will execute, and the Trustee, upon receipt of a Company order for the
authentication and delivery of definitive Securities of such series and of the
same terms and tenor, will authenticate and deliver Securities of such series in
definitive form, in authorized denominations, and in aggregate principal amount
equal to the principal amount of the Security or Securities in global form
representing such series in exchange for such Security or Securities in global
form.
If specified by the Company pursuant to Section 2.02 with respect to a
series of Securities issued in global form, the Depositary for such series of
Securities may surrender a Security in global form for such series of Securities
in exchange in whole or in part for Securities of such series in definitive form
and of like terms and tenor on such terms as are acceptable to the Company and
such Depositary. Thereupon, the Company shall execute, and the Trustee upon
receipt of a Company order for the authentication and delivery of definitive
Securities of such series, shall authenticate and deliver, without service
charge to the Holders:
(a) to each Person specified by such Depositary a new definitive
Security or Securities of the same series and of the same tenor, in
authorized denominations, in aggregate
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<PAGE> 23
principal amount equal to and in exchange for such Person's beneficial
interest in the Security in global form; and
(b) to such Depositary a new Security in global form in a
denomination equal to the difference, if any, between the principal amount
of the surrendered Security in global form and the aggregate principal
amount of the definitive Securities delivered to holders pursuant to
clause (a) above.
Upon the exchange of a Security in global form for Securities in
definitive form, such Security in global form shall be cancelled by the Trustee
or an agent of the Company or the Trustee. Securities issued in definitive form
in exchange for a Security in global form pursuant to this Section 2.05 shall be
registered in such names and in such authorized denominations as the Depositary
for such Security in global form, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee or an agent of
the Company or the Trustee in writing. The Trustee or such agent shall deliver
such Securities to or as directed by the Persons in whose names such Securities
are so registered or to the Depositary.
Whenever any securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the holder making the exchange is entitled to receive.
No service charge shall be made for any registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
applicable tax or other governmental charge payable in connection therewith.
The Company and the Trustee, and the agents of either, may deem and treat
the person in whose name any Security is registered as the absolute owner of
such Security (whether or not such Security shall be overdue and notwithstanding
any notation of ownership or other writing thereon) for all purposes whatsoever
(subject to the provisions set forth herein relating to Record Dates and record
dates for the payment of any defaulted interest), and the Company and the
Trustee, and the agents of either, shall not be affected by any notice to the
contrary.
None of the Company, the Trustee, any Authenticating Agent, any Paying
Agent or the Security Registrar will have any responsibility or liability for
any aspect of the records relating to or payments made on account of beneficial
ownership interests of a Security in global form or for maintaining, supervising
or reviewing any records relating to such beneficial ownership interest and each
of them may act or refrain from acting without liability on any information
relating to such records provided by the Depositary.
SECTION 2.06. In case any temporary or definitive Security of a particular
series shall become mutilated or be destroyed,
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lost or stolen, then upon the conditions hereinafter set forth the Company in
its discretion may execute, and thereupon the Trustee or the Authenticating
Agent shall authenticate and deliver, a new Security of the same series of like
tenor and principal amount and bearing a different number, in exchange and
substitution for and upon cancellation of the mutilated Security or in lieu of
and substitution for the Security so destroyed, lost or stolen; provided,
however, that if any such mutilated, destroyed, lost or stolen Security shall
have become payable upon the maturity thereof, the Company may, instead of
issuing a substitute Security, pay such Security without requiring the surrender
thereof. The applicant for any substitute Security or for payment of any such
mutilated, destroyed, lost or stolen Security shall furnish to the Company and
to the Trustee evidence satisfactory to them, in their discretion, of the
ownership of and the destruction, loss or theft of such Security and shall
furnish to the Company and to the Trustee indemnity satisfactory to them, in
their discretion, and, if required, shall reimburse the Company and the Trustee
for all expenses (including counsel fees and any tax or other governmental
charge that may be imposed in relation thereto) in connection with the
preparation, issue and authentication of such substitute Security or the payment
of such mutilated, destroyed, lost or stolen Security, and shall comply with
such other reasonable regulations as the Company and the Trustee, or either of
them, may prescribe. Any such new Security delivered pursuant to this Section
2.06 shall constitute an additional contractual obligation on the part of the
Company, whether or not the allegedly destroyed, lost or stolen Security shall
be at any time enforceable by anyone, and shall be equally and proportionately
entitled to the benefit of this Indenture with all other Securities of the same
series issued hereunder. All Securities shall be held and owned upon the express
condition that, to the extent permitted by law, the foregoing provisions are
exclusive with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities and shall preclude any and all other rights or
remedies.
SECTION 2.07. Subject to the provisions set forth herein relating to
Record Dates and record dates for the payment of any defaulted interest, each
Security delivered pursuant to any provision of this Indenture in exchange or
substitution for, or upon registration of transfer of, any other Security shall
carry all the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Security.
SECTION 2.08. Pending the preparation of definitive Securities of any
series the Company may execute and the Trustee or the Authenticating Agent shall
authenticate and deliver temporary Securities of such series (printed or
lithographed). Temporary Securities shall be issuable in any authorized
denomination, and substantially in the form of the definitive Securities but
with such omissions, insertions and variations as may be appropriate for
temporary Securities, all as may be determined by the Company. In the case of
Securities of any series, such temporary Securities may be in global form,
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representing all of the Outstanding Securities of such series and tenor. Every
such temporary Security of a particular series shall be authenticated by the
Trustee or the Authenticating Agent upon the same conditions and in
substantially the same manner, and with the same effect, as the definitive
Securities of such series. Without unreasonable delay, and except in the case of
temporary Securities in global form which shall be exchanged in accordance with
the provisions thereof, the Company will execute and deliver to the Trustee
definitive Securities of such series and thereupon any or all temporary
Securities of such series may be surrendered in exchange for definitive
Securities of the same series, at the principal corporate trust office of the
Trustee or any office or agency of the Company designated pursuant to Section
5.02 for such purpose or at the office of any Security Co-Registrar, and the
Trustee or the Authenticating Agent shall authenticate and deliver in exchange
for such temporary Securities an equal aggregate principal amount of definitive
Securities of the same series. Such exchange shall be made by the Company at its
own expense and without any charge therefor except that the Company may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto. Until so exchanged, the temporary Securities
of a particular series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series authenticated
and delivered hereunder.
ARTICLE THREE
ISSUE OF SECURITIES
SECTION 3.01. At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series
executed by the Company to the Trustee or the Authenticating Agent for
authentication. The Trustee or the Authenticating Agent shall thereupon
authenticate and deliver such Securities to or upon the written order of the
Company, signed by its Chairman of the Board of Directors, its President or a
Vice President, without any further action by the Company. In authenticating
such Securities, and accepting the additional responsibilities under this
Indenture in relation to such Securities, the Trustee shall be entitled to
receive, and (subject to Section 315 of the Trust Indenture Act) shall be fully
protected in relying upon:
(a) a Board Resolution relating thereto and, if applicable, an
appropriate record of any action taken pursuant to such resolution,
certified by the Secretary or an Assistant Secretary of the Company;
(b) an executed supplemental indenture, if any;
(c) an Officers' Certificate; and
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(d) an Opinion of Counsel prepared in accordance with Section 14.03,
which shall state
(1) that the form and terms of such Securities have been
established by or pursuant to one or more Board Resolutions, by a
supplemental indenture as permitted by Section 13.01(g), or by both
such resolution or resolutions and such supplemental indenture, in
conformity with the provisions of this Indenture;
(2) that the supplemental indenture, if any, when executed and
delivered by the Company and the Trustee, will constitute a valid
and legally binding obligation of the Company;
(3) that such Securities, when authenticated and delivered by
the Trustee or the Authenticating Agent and issued by the Company in
the manner and subject to any conditions specified in such Opinion
of Counsel, will constitute valid and legally binding obligations of
the Company, enforceable in accordance with their terms, and will be
entitled to the benefits of this Indenture;
(4) that the Company has the corporate power to issue such
Securities, and has duly taken all necessary corporate action with
respect to such issuance;
(5) that the issuance of such Securities will not contravene
the charter or by-laws of the Company or result in any violation of
any of the terms or provisions of any law or regulation or of any
indenture, mortgage or other agreement by which the Company is bound
and under which long-term debt of the Company as reflected in its
latest financial statements on file with the Securities and Exchange
Commission is outstanding; and
(6) that all requirements of this Indenture applicable to the
Company in respect of the execution and delivery by the Company of
such Securities and of such supplemental indenture, if any, have
been complied with and that, assuming (a) all requisite corporate
authorization on the part of the Trustee, (b) continued compliance
by the Trustee with the terms of the Indenture specifically
applicable to the Trustee, and (c) due authentication and delivery
of such Securities by the Trustee or the Authenticating Agent, the
execution and delivery of such supplemental indenture, if any, will
not violate the terms of this Indenture, and that, other than
compliance with federal and state securities laws, no authorization,
approval or consent by any regulatory or statutory or other public
authority is required in connection with the execution
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and delivery of such supplemental indenture or for the creation,
issuance, authentication and delivery of the Securities pursuant to
this Indenture.
If the Company shall establish pursuant to Section 2.02 that Securities of
a series may be issued in whole or in part in global form, then the Company
shall execute and the Trustee shall, in accordance with this Section and the
Company order of authentication with respect to such series, authenticate and
deliver one or more Securities in global form that (i) shall represent and shall
be denominated in an aggregate amount equal to the aggregate principal amount of
the Outstanding Securities of such series and tenor to be represented by one or
more Securities in global form, (ii) shall be registered, in the name of the
Depositary for such Security or Securities in global form or the nominee of such
Depositary, (iii) shall be delivered to such Depositary or pursuant to such
Depositary's instruction, and (iv) shall bear a legend substantially to the
following effect: "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 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." Each Depositary designated pursuant
to Section 2.02 for a Security in global form must, at the time of its
designation and at all times while it serves as Depositary, be a clearing agency
registered under the Securities Exchange Act of 1934 and any other applicable
statute or regulation.
The Trustee shall have the right to decline to authenticate and deliver
any Securities under this Section if the issue of such Securities pursuant to
this Indenture will affect the Trustee's own rights, duties or immunities under
the Securities and this Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee.
Each Security shall be dated the date of its authentication.
ARTICLE FOUR
REDEMPTION OF SECURITIES; SINKING FUND
SECTION 4.01. Redemption of Securities (other than pursuant to a sinking
fund or analogous provision) permitted by the terms of any series of Securities
shall be made in accordance with such terms and Sections 4.02 and 4.03;
provided, however, that if any such terms of a series of Securities shall
conflict with any provision of this Article, the terms of such series shall
govern.
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SECTION 4.02. The election of the Company to redeem any Securities of any
series shall be evidenced by or pursuant to a Board Resolution. If the Company
shall elect to redeem the Securities of any series in whole or in part as
aforesaid, it shall fix a date for redemption and give notice of its election so
to redeem by mailing or causing to be mailed written notice, postage prepaid, at
least 30 days prior to the redemption date, to all holders of Securities to be
redeemed as a whole or in part, addressed to them at their respective addresses
as the same shall then appear on the Security Register of the Company. Any
notice which shall be mailed in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the holder shall receive such
notice. Failure to mail such notice, or any defect in the notice mailed, to the
holder of any Security designated for redemption as a whole or in part shall not
affect the validity of the proceedings for the redemption of any other Security.
Each notice of redemption shall state such election on the part of the
Company, the Redemption Date and place of payment of the Securities to be
redeemed and the Redemption Price and that the Securities designated in such
notice for redemption are required to be presented on or after such Redemption
Date and at such place for payment and that interest to the Redemption Date on
the Securities and portions of Securities called for redemption will be paid as
specified in said notice and shall cease to accrue thereon on such date. If less
than all the outstanding Securities of a series are to be redeemed, the notice
shall also designate the Securities or portions of Securities that are to be
redeemed. If any Security is to be redeemed in part only, the notice shall also
state that upon presentation of such Security on or after the redemption date at
said place, such Security will be canceled and a new Security or Securities of
the same series, in an aggregate principal amount equal to the unredeemed
portion of such Security will be issued and delivered without charge to the
holder.
Notice having been so given, the Securities and portions of Securities to
be redeemed shall on the Redemption Date specified in such notice become due and
payable at the applicable Redemption Price, together with interest accrued
thereon to the Redemption Date, and from and after the Redemption Date so
specified (unless the Company shall default in the payment of the Redemption
Price of such Securities or any such accrued interest) interest on such
Securities and portions of Securities shall cease to accrue, and upon
presentation of such Securities at said place of payment and redemption in
accordance with said notice, such Securities and portions of Securities shall be
paid by the Company at the applicable Redemption Price, together with interest
accrued to the Redemption Date (except that, if the Redemption Date shall be an
Interest Payment Date, the interest payable on such date shall be paid to the
registered holders of such Securities at the close of business on the applicable
Record Date, subject to the provisions of Section 2.01).
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If the Company shall at any time elect to redeem less than all the
Securities of a series then outstanding, it shall at least 45 days prior to the
Redemption Date (unless a shorter notice shall be satisfactory to the Trustee)
notify the Trustee of the principal amount of Securities to be redeemed, and
thereupon the Trustee shall select, in such manner as the Trustee shall deem
appropriate and fair, the Securities (or portions thereof) of such series to be
redeemed. No Security of a denomination of $1,000 shall be redeemed in part and
Securities may be redeemed in part only in integral multiples of $1,000. The
Trustee shall promptly notify the Company in writing of the Securities and
portions of Securities so selected.
SECTION 4.03. If Securities of any Series at the time outstanding are to
be redeemed under circumstances to which Section 11.02 is applicable, the
Company shall deliver to the Trustee (1) proof satisfactory to the Trustee that
notice of redemption thereof on a specified redemption date has been given as
hereinbefore provided, or (2) proof satisfactory to the Trustee that
arrangements have been made insuring to the satisfaction of the Trustee that
such notice will be so given, or (3) a written instrument in form and substance
satisfactory to the Trustee executed by the Company, and expressed to be
irrevocable, authorizing the Trustee to give such notice for and on behalf of
the Company.
SECTION 4.04. Redemption of Securities permitted or required pursuant to a
sinking fund for the retirement of Securities of a series by the terms of such
series of Securities shall be made in accordance with such terms of such series
of Securities and this Article; provided, however, that if any such terms of a
series of Securities shall conflict with any provision of this Article, the
terms of such series shall govern.
The minimum amount of any sinking fund payment provided for by the terms
of Securities of any series is herein referred to as a "Mandatory Sinking Fund
Payment", and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "Optional Sinking
Fund Payment". If provided for by the terms of Securities of any series, the
cash amount of any Mandatory Sinking Fund Payment may be subject to reduction as
provided in Section 4.05.
SECTION 4.05. The Company may, at its option, satisfy any Mandatory
Sinking Fund Payment obligation, in whole or in part, with respect to a
particular series of Securities by (1) delivering to the Trustee outstanding
Securities of such series in transferable form theretofore purchased or
otherwise acquired by the Company or redeemed at the election of the Company
pursuant to Section 4.01 or (2) receiving credit for Securities of such series
(not previously so credited) acquired by the Company and theretofore delivered
to the Trustee. The Trustee shall credit such Mandatory Sinking Fund Payment
obligation with an amount equal to the redemption price specified in such
Securities for redemption through operation of the sinking fund
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and the amount of such Mandatory Sinking Fund Payment shall be reduced
accordingly. If the Company shall elect so to satisfy any Mandatory Sinking Fund
Payment obligation, it shall deliver to the Trustee not less than 45 days prior
to the relevant sinking fund payment date a written notice signed on behalf of
the Company by its Chairman of the Board of Directors, its President, one of its
Vice Presidents, its Treasurer or one of its Assistant Treasurers, which shall
designate the Securities (and portions thereof, if any) to be so delivered or
credited and which shall be accompanied by such Securities (to the extent not
theretofore delivered) in transferable form. In case of the failure of the
Company, at or before the time so required, to give such notice and deliver such
Securities, the Mandatory Sinking Fund Payment obligation shall be paid entirely
in funds.
SECTION 4.06. In addition to the sinking fund requirements of Section
4.05, to the extent, if any, provided for by the terms of a particular series of
Securities, the Company may, at its option, make an Optional Sinking Fund
Payment with respect to such Securities. Unless otherwise provided by such
terms, (a) to the extent that the right of the Company to make such Optional
Sinking Fund Payment shall not be exercised in any year, it shall not be
cumulative or carried forward to any subsequent year, and (b) such optional
payment shall operate to reduce the amount of any Mandatory Sinking Fund Payment
obligation as to Securities of the same series. If the Company intends to
exercise its right to make such optional payment in any year it shall deliver to
the Trustee not less than 45 days prior to the relevant sinking fund payment
date a certificate signed by its Chairman of the Board of Directors, its
President, one of its Vice Presidents, its Treasurer or one of its Assistant
Treasurers stating that the Company will exercise such optional right, and
specifying the amount which the Company will pay on or before the next
succeeding sinking fund payment date. Such certificate shall also state that no
event of default has occurred and is continuing.
SECTION 4.07. If the sinking fund payment or payments made in funds
pursuant to either Section 4.05 or 4.06 with respect to a particular series of
Securities plus any unused balance of any preceding sinking fund payments made
in funds with respect to such series shall exceed $50,000 (or a lesser sum if
the Company shall so request), it shall be applied by the Trustee on the sinking
fund payment date next following the date of such payment, unless the date of
such payment shall be a sinking fund payment date, in which case such payment
shall be applied on such sinking fund payment date, to the redemption of
Securities of such series at the redemption price specified pursuant to Section
4.04. The Trustee shall select in the manner provided in Section 4.02, for
redemption on such sinking fund payment date, a sufficient principal amount of
Securities of such sinking fund payment date, a sufficient principal amount of
Securities of such series to absorb said funds, as nearly as may be, and shall,
at the expense and in the name of the Company, thereupon cause notice of
redemption of the Securities to be given in
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substantially the manner provided in Section 4.02 for the redemption of
Securities in part at the option of the Company, except that the notice of
redemption shall also state that the Securities are being redeemed for the
sinking fund. Any sinking fund moneys not so applied by the Trustee to the
redemption of Securities of such series shall be added to the next sinking fund
payment received in funds by the Trustee and, together with such payment, shall
be applied in accordance with the provisions of this Section 4.07. Any and all
sinking fund moneys held by the Trustee on the last sinking fund payment date
with respect to Securities of such series, and not held for the payment or
redemption of particular Securities of such series, shall be applied by the
Trustee to the payment of the principal of the Securities of such series at
maturity.
On or prior to each sinking fund payment date, the Company shall pay to
the Trustee a sum equal to all interest accrued to the date fixed for redemption
on Securities to be redeemed on such sinking fund payment date pursuant to this
Section 4.07.
The Trustee shall not redeem any Securities of a series with sinking fund
moneys or mail any notice of redemption of Securities of such series by
operation of the sinking fund during the continuance of a default in payment of
interest on any Securities of such series or of any event of default (other than
an event of default occurring as a consequence of this paragraph) of which the
Trustee has actual knowledge, except that if the notice of redemption of any
Securities of such series shall theretofore have been mailed in accordance with
the provisions hereof, the Trustee shall redeem such Securities if funds
sufficient for that purpose shall be deposited with the Trustee in accordance
with the terms of this Article Four. Except as aforesaid, any moneys in the
sinking fund at the time any such default or event of default shall occur and
any moneys thereafter paid into the sinking fund shall, during the continuance
of such default or event of default, be held as security for the payment of all
the Securities of such series; provided, however, that in case such default or
event of default shall have been cured or waived as provided herein, such moneys
shall thereafter be applied on the next sinking fund payment date on which such
moneys are required to be applied pursuant to the provisions of this Section
4.07.
ARTICLE FIVE
PARTICULAR COVENANTS OF THE COMPANY
The Company hereby covenants and agrees as follows:
SECTION 5.01. The Company will duly and punctually pay the principal of
and premium, if any, on each of the Securities, and the interest which shall
have accrued thereon, at the date and place and in the manner provided in the
Securities and in this Indenture.
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SECTION 5.02. The Company will maintain in the city in the United States
in which the Company has its principal business office and in The City of New
York, and may maintain elsewhere, an office or agency where Securities may be
presented or surrendered for payment, where Securities may be surrendered for
transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities and this Indenture may be served. The Company will
give prompt written notice to the Trustee of the location, and any change in the
location, of any such office or agency. If at any time the Company shall fail to
maintain such required office or agency, or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Principal Office of the Trustee. The Company hereby
initially appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
The Company may also from time to time designate one or more other offices
or agencies where the Securities may be presented or surrendered for any or all
of such purposes and may from time to time rescind such designations; provided,
however, that no such designation shall in any manner result in the creation of
a Security Register or Security Co-Registrar in addition to the Security
Register required to be kept pursuant to Section 2.05 and any Security
Co-Registrar appointed pursuant to Section 2.05. The Company will give prompt
written notice to the Trustee of any such designation and any change in the
location of any such other office or agency.
SECTION 5.03. If the Company shall at any time act as its own paying agent
with respect to any series of Securities, then, on or before the date on which
the principal of and premium, if any, or interest on any of the Securities of
that series by their terms or as a result of the calling thereof for redemption
shall become payable, the Company will set apart and segregate and hold in trust
for the benefit of the holders of such Securities a sum sufficient to pay such
principal and premium, if any, or interest which shall have so become payable
and will notify the Trustee of its failure to act in that regard and of any
failure by the Company or any other obligor upon the Securities of that series
to make any such payment. If the Company shall appoint, and at the time have, a
paying agent for the payment of the principal of and premium, if any, or
interest on any series of Securities, then, on or before the date on which the
principal of and premium, if any, or interest on any of the Securities of that
series shall become payable as aforesaid, whether by their terms or as a result
of the calling thereof for redemption, the Company will pay to such paying agent
a sum sufficient to pay such principal and premium, if any, or interest, to be
held in trust for the benefit of the holders of such Securities. If such paying
agent shall be other than the Trustee, the Company will cause such paying agent
to execute and deliver to the Trustee an instrument in which such paying agent
shall agree with the Trustee, subject to the provisions of this Section 5.03 and
of Section 11.03, (1) that such paying agent shall hold all sums
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held by such paying agent for the payment of the principal of and premium, if
any, or interest on the Securities of that series in trust for the benefit of
the holders of such Securities; (2) that such paying agent shall give to the
Trustee notice of any default by the Company or any other obligor upon the
Securities of that series in the making of any payment of the principal of and
premium, if any, or interest on the Securities of that series when the same
shall have become due and payable; and (3) that such paying agent shall, at any
time during the continuance of any such default, upon the written request of the
Trustee, deliver to the Trustee all sums so held in trust by it.
Anything in this Section 5.03 to the contrary notwithstanding, the Company
may at any time, for the purpose of obtaining a release or satisfaction of this
Indenture or for any other reason, pay or cause to be paid to the Trustee all
sums held in trust by it or by any paying agent other than the Trustee as
required by this Section 5.03, such sums to be held by the Trustee upon the same
trusts as those upon which such sums were held by the Company or such paying
agent.
Any money deposited with the Trustee or any paying agent, or then held by
the Company, in trust for the payment of the principal of, premium, if any, or
interest on any Security and remaining unclaimed for three years after such
principal, premium, if any, or interest has become due and payable shall be paid
to the Company on Company request, or (if then held by the Company) shall be
discharged from such trust; and the holder of such Security shall thereafter, as
an unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such paying agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such paying agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in the Borough of
Manhattan, The City of New York, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
SECTION 5.04. The Company will not at any time directly or indirectly, and
will not permit any Restricted Subsidiary to, create, assume, incur or suffer to
be created, assumed or incurred or to exist any Lien upon any of the properties
of any character of the Company or any Restricted Subsidiary without making
effective provision whereby the Securities then Outstanding shall be secured
equally and ratably with (or prior to) any other obligation or indebtedness so
secured, so long as such other obligation or indebtedness remains secured;
except, however, that, notwithstanding the foregoing, the Company or any
Restricted Subsidiary, without so securing the Securities, may
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(1) lease property to others in the ordinary course of the business
of the Company or any Restricted Subsidiary or lease or sublease any
property if the property subject thereto is not needed by the Company or
any Restricted Subsidiary in the operation of its business;
(2) create, assume and incur such Liens or permit such Liens to be
created, assumed, incurred or to exist provided, in each case, the Lien
secures indebtedness for borrowed money, including purchase money
indebtedness, which is incurred to finance the acquisition of the property
subject to such Lien and in respect of which the creditor has no recourse
against the Company or any Restricted Subsidiary except recourse to such
property or to the proceeds of any sale or lease of such property or both;
(3) make any deposit with or give any form of security to any
governmental agency or other body created or approved by law or
governmental regulation in order to enable the Company or such Restricted
Subsidiary to maintain self-insurance, or to participate in any fund in
connection with workmen's compensation, unemployment insurance, old-age
pensions, or other social security, or to share in any privileges or other
benefits available to corporations participating in any such arrangement,
or for any other purpose at any time required by law or regulation
promulgated by any governmental agency or office as a condition to the
transaction of any business or the exercise of any privilege or license,
or deposit assets of the Company or such Restricted Subsidiary with any
surety company or clerk of any court, or in escrow, as collateral in
connection with, or in lieu of, any bond on appeal by the Company or such
Restricted Subsidiary from any judgment or decree against it, or in
connection with any other proceedings in actions at law or suits in equity
by or against the Company or such Restricted Subsidiary;
(4) incur or suffer to be incurred or to exist upon any of its
property or assets (a) Liens for taxes, assessments or other governmental
charges or levies which are not yet due or are payable without penalty or
of which the amount, applicability or validity is being contested by the
Company or such Restricted Subsidiary in good faith by appropriate
proceedings and the Company or such Restricted Subsidiary shall have set
aside on its books reserves which it deems to be adequate with respect
thereto (segregated to the extent required by generally accepted
accounting principles), provided that foreclosure, distraint, sale or
similar proceedings have not been commenced, (b) the Liens of any
judgment, if such judgment shall not have remained undischarged, or
unstayed on appeal or otherwise, for more than six months, (c)
undetermined Liens or charges incident to construction, (d) materialmen's,
mechanics', workmen's, repairmen's or other like Liens arising in the
ordinary course of business in respect of obligations which are not
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overdue or which are being contested by the Company or such Restricted
Subsidiary in good faith by appropriate proceedings, or deposits to obtain
the release of such Liens, or (e) any encumbrances consisting of zoning
restrictions, licenses, easements and restrictions on the use of real
property and minor defects and irregularities in the title thereto, which
do not materially impair the use of such property by the Company or such
Restricted Subsidiary in the operation of its business or the value of
such property for the purpose of such business;
(5) create other Liens incidental to the conduct of its business or
the ownership of its property and assets which were not incurred in
connection with the borrowing of money or the obtaining of advances or
credit, and which do not in the aggregate materially detract from the
value of its property or assets or materially impair the use thereof in
the operation of its business;
(6) create or suffer to be created or to exist in favor of any
lender of moneys or holder of commercial paper of the Company or a
Restricted Subsidiary in the ordinary course of business a banker's lien
or right of offset in the holder of such indebtedness or moneys of the
Company or a Restricted Subsidiary deposited with such lender or holder in
the ordinary course of business;
(7) create or suffer to be created or to exist with respect to any
of its property leasehold or purchase rights, exercisable for a fair
consideration, in favor of any Person which arise in transactions entered
into in the ordinary course of business;
(8) assume any Lien or permit any Lien to be assumed or exist if
any such Lien is on property or shares of stock of a corporation at the
time the corporation becomes a Restricted Subsidiary or merges into or
consolidates with the Company or a Restricted Subsidiary; provided,
however, that any such Lien may not be assumed or permitted to exist if
such Lien is incurred in anticipation of such corporation becoming a
Restricted Subsidiary or in anticipation of such merger or consolidation;
(9) assume any Lien or permit any Lien to be assumed or exist if
any such Lien is on property at the time the Company or a Restricted
Subsidiary acquires the property; provided, however, that any such Lien
may not extend to any other property owned by the Company or a Restricted
Subsidiary at the time such Lien is assumed;
(10) assume, create or suffer to be created or to exist, such Liens
in an amount not to exceed in the aggregate an amount equal to 3% of
Consolidated Stockholder's Equity, excluding
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Liens covered by other provisions of clauses (1) through (9) above; and
(11) create or suffer to be created or to exist in favor of any
lender of moneys, any Lien that secures indebtedness of the Company or a
Restricted Subsidiary; provided that the sum of the following does not
exceed 10% of Consolidated Net Tangible Assets: (a) such indebtedness;
plus (b) other indebtedness of the Company and its Restricted Subsidiaries
secured by Liens on property of the Company and its Restricted
Subsidiaries, excluding indebtedness secured by a Lien existing as of
December 31, 1991 and excluding indebtedness secured by a Lien permitted
by one of clauses (1) through (10) above.
SECTION 5.05. Subject to Section 5.06, the Company will do or cause to be
done all things necessary to preserve and keep in full force and effect its
corporate existence and that of each Subsidiary and the rights and franchises of
the Company and its Subsidiaries; provided, however, that the Company shall not
be required to preserve the corporate existence of any Subsidiary or any such
right or franchise if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and the other Subsidiaries taken as a whole and that the loss
thereof is not on balance materially disadvantageous to the holders.
SECTION 5.06. The Company will not consolidate with any other corporation
or accept a merger of any other corporation into the Company or permit the
Company to be merged into any other corporation, or sell or lease all or
substantially all its assets to another corporation, or purchase all or
substantially all the assets of another corporation, unless (i) either the
Company shall be the continuing corporation, or the successor, transferee or
lessee corporation (if other than the Company) shall be organized under the laws
of the United States or any state thereof or the District of Columbia and shall
expressly assume, by indenture supplemental hereto, executed and delivered by
such corporation prior to or simultaneously with such consolidation, merger,
sale or lease, the due and punctual payment of the principal of and interest and
premium, if any, on all the Securities, according to their tenor, and the due
and punctual performance and observance of all the covenants and conditions of
this Indenture to be performed or observed by the Company, and (ii) immediately
after such consolidation, merger, sale, lease or purchase the Company or the
successor, transferee or lessee corporation (if other than the Company) would
not be in default in the performance of any covenant or condition of this
Indenture. A purchase by a Subsidiary of all or substantially all of the assets
of another corporation shall not be deemed to be a purchase of such assets by
the Company.
SECTION 5.07. The Company will deliver to the Trustee, within 120 days
after the end of each fiscal year, a written statement signed by the Chairman of
the Board of Directors, the
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President, the Principal Financial Officer or Principal Accounting Officer or
the Treasurer or Controller of the Company, stating that
(a) a review of the activities of the Company during such year with
regard to its compliance with this Indenture has been made under his
supervision, and
(b) to the best of his knowledge, based on such review, the Company
has fulfilled all its obligations under this Indenture throughout such
year, or, if there has been a default in the fulfillment of any such
obligation, specifying each such default known to him and the nature and
status thereof.
SECTION 5.08. Anything in this Indenture to the contrary notwithstanding,
the Company or any Restricted Subsidiary may fail or omit in any particular
instance to comply with a covenant or condition set forth in Section 5.04 or
5.06 with respect to any series of Securities if the Company shall have obtained
and filed with the Trustee, prior to the time of such failure or omission,
evidence (as provided in Article Seven) of the consent of the holders of at
least 66 2/3% in aggregate principal amount of the Securities of such series at
the time outstanding, either waiving such compliance in such instance or
generally waiving compliance with such covenant or condition, but no such waiver
shall extend to or affect any obligation not waived by the terms of such waiver
or impair any right consequent thereon.
ARTICLE SIX
REMEDIES OF TRUSTEE AND SECURITYHOLDERS
SECTION 6.01. Except where otherwise indicated by the context or where the
term is otherwise defined for a specific purpose, the term "event of default" as
used in this Indenture with respect to Securities of any series shall mean one
of the following described events unless it is either inapplicable to a
particular series or it is specifically deleted or modified in the supplemental
indenture, if any, under which such series of Securities is issued:
(a) the failure of the Company to pay any instalment of interest on
any Security of such series, when and as the same shall become payable,
which failure shall have continued unremedied for a period of 30 days;
(b) the failure of the Company to pay the principal of (and premium,
if any, on) any Security of such series, when and as the same shall become
payable, whether at maturity as therein expressed, by call for redemption
(otherwise than pursuant to a sinking fund), by declaration as authorized
by this Indenture or otherwise;
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(c) the failure of the Company to pay a sinking fund instalment, if
any, when and as the same shall become payable by the terms of a Security
of such series, which failure shall have continued unremedied for a period
of 30 days;
(d) the failure of the Company, subject to the provisions of Section
5.08, to observe and perform any other of the covenants or agreements on
the part of the Company contained in this Indenture (other than a covenant
or agreement which has been expressly included in this Indenture solely
for the benefit of a series of Securities other than that series), which
failure shall not have been remedied to the satisfaction of the Trustee,
or without provision deemed by the Trustee to be adequate for the
remedying thereof having been made, for a period of 90 days after written
notice shall have been given to the Company by the Trustee or shall have
been given to the Company and the Trustee by holders of 25% or more in
aggregate principal amount of the Securities of such series then
outstanding, specifying such failure and requiring the Company to remedy
the same;
(e) an event of default, as defined in any mortgage, indenture or
instrument, including this Indenture, under which there may be issued, or
by which there may be secured or evidenced, any indebtedness for money
borrowed of the Company, whether such indebtedness now exists or shall
hereafter be created, shall happen and shall result in such indebtedness
in an amount in excess of $15,000,000 becoming or being declared due and
payable prior to the date on which it would otherwise become due and
payable, and such acceleration shall not have been rescinded or annulled,
or such indebtedness shall not have been discharged, within a period of 10
days after there has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the holders of
at least 10% in principal amount of the Outstanding Securities of such
series a written notice specifying such event of default and requiring the
Company to cause such acceleration to be rescinded or annulled or to cause
such indebtedness to be discharged;
(f) the entry by a court having jurisdiction in the premises of a
decree or order for relief in respect of the Company in an involuntary
case under the Federal bankruptcy laws, as now or hereafter constituted,
or any other applicable Federal or State bankruptcy, insolvency or other
similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee or sequestrator (or similar
official) of the Company or for substantially all of its property, or
ordering the winding-up or liquidation of its affairs, which decree or
order shall have remained unstayed and in effect for a period of 90
consecutive days;
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(g) the commencement by the Company of a voluntary case under the
Federal bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal or State bankruptcy, insolvency or other similar law
now or hereafter in effect, or the consent by the Company to the entry of
an order for relief in an involuntary case under any such law, or the
consent by the Company to the appointment of or taking possession by a
receiver, liquidator, assignee, trustee, custodian or sequestrator (or
similar official) of the Company or for substantially all of its property,
or the making by it of an assignment for the benefit of its creditors; or
(h) the occurrence of any other event of default with respect to
Securities of such series as provided in an Officers' Certificate
delivered pursuant to Section 2.02 or a supplemental indenture applicable
to such series of Securities pursuant to Section 13.01(b).
SECTION 6.02. If any one or more of the above-described events of default
shall happen with respect to Securities of any series at the time outstanding,
then, and in each and every such case, during the continuance of any such event
of default, the Trustee or the holders of 25% or more in principal amount of the
Securities of such series then outstanding may, and upon the written request of
the holders of a majority in principal amount of such Securities then
outstanding the Trustee shall, declare the principal of all the Securities of
such series then outstanding, if not then due and payable, to be due and
payable, and upon any such declaration the same shall become and be immediately
due and payable, anything in this Indenture or in the Securities of such series
contained to the contrary notwithstanding. This provision, however, is subject
to the condition that, if at any time after the principal of all the Securities
of such series shall have been so declared to be due and payable, all arrears of
interest if any, upon all the Securities of such series (with interest, to the
extent that interest thereon shall be legally enforceable, on any overdue
instalment of interest at the rate borne by the Securities of such series) and
the reasonable charges and expenses of the Trustee, its agents and attorneys,
and all other sums payable under this Indenture (except the principal of the
Securities of such series which would not be due and payable were it not for
such declaration), shall be paid by the Company, and every other default and
event of default under this Indenture shall have been made good to the
reasonable satisfaction of the Trustee or of the holders of a majority in
principal amount of the Securities of such series then outstanding, or provision
deemed by the Trustee or by such holders to be adequate therefor shall have been
made, then and in every such case the holders of a majority in principal amount
of the Securities of such series then outstanding may, on behalf of the holders
of all the Securities of such series, waive the event of default by reason of
which the principal of the Securities of such series shall have been so declared
to be due and payable and may rescind and annul such
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declaration and its consequences; but no such waiver, rescission or annulment
shall extend to or affect any subsequent default or event of default or impair
any right consequent thereon. Any declaration by the Trustee pursuant to this
Section 6.02 shall be by written notice to the Company, and any declaration or
waiver by the holders of Securities of any series pursuant to this Section 6.02
shall be by written notice to the Company and the Trustee.
The Company and the Trustee may, to the extent provided in Section 13.01,
enter into one or more indentures supplemental hereto with respect to any series
of the Securities which may provide for additional or different events of
default with respect to such series of Securities.
SECTION 6.03. If the Company shall fail for a period of 30 days to pay any
instalment of interest on the Securities of any series of shall fail to pay the
principal of and premium, if any, on any of the Securities of such series when
and as the same shall become due and payable, whether at maturity, or by call
for redemption (otherwise than pursuant to the sinking fund), by declaration as
authorized by this Indenture, or otherwise, or shall fail for a period of 30
days to make any sinking fund payment as to a series of Securities, then, upon
demand by the Trustee, the Company will pay to the Trustee for the benefit of
the holders of Securities of such series then outstanding the whole amount which
then shall have become due and payable on all the Securities of such series,
with interest on the overdue principal and premium, if any, and (so far as the
same may be legally enforceable) on the overdue installments of interest at the
rate borne by the Securities of such series, and reasonable compensation to the
Trustee, its agents and attorneys, and any other reasonable expenses and
liabilities incurred by the Trustee under this Indenture without negligence or
bad faith.
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceeding at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Company or any other obligor upon the
Securities of such series, and collect the moneys adjudged or decreed to be
payable out of the property of the Company or any other obligor upon the
Securities of such series, and collect the moneys adjudged or decreed to be
payable out of the property of the Company or any other obligor upon the
Securities of such securities, wherever situated, in the manner provided by law.
Every recovery of judgment in any such action or other proceeding, subject to
the payment of the expenses, disbursements and compensation of the Trustee, its
agents and attorneys, shall be for the ratable benefit of the holders of such
series of Securities which shall be the subject of such action or proceeding.
All rights of action upon or under any of the Securities or this Indenture may
be enforced by the Trustee
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without the possession of any of the Securities and without the production of
any thereof at any trial or any proceeding relative thereto.
SECTION 6.04. The Trustee is hereby appointed, and each and every holder
of the Securities, by receiving and holding the same, shall be conclusively
deemed to have appointed the Trustee, the true and lawful attorney-in-fact of
such holder, with authority to make or file (whether or not the Company shall be
in default in respect of the payment of the principal of, or interest on, any of
the Securities), in its own name and as trustee of an express trust or otherwise
as it shall deem advisable, in any receivership, insolvency, liquidation,
bankruptcy, reorganization or other judicial proceeding relative to the Company
or any other obligor upon the Securities or to their respective creditors or
property, any and all claims, proofs of claim, proofs of debt, petitions,
consents, other papers and documents and amendments of any thereof, as may be
necessary or advisable in order to have the claims of the Trustee and of the
holders of the Securities allowed in any such proceeding and to collect and
receive any moneys or other property payable or deliverable on any such claim,
and to execute and deliver any and all other papers and documents and to do and
perform any and all other acts and things, as it may deem necessary or advisable
in order to enforce in any such proceeding any of the claims of the Trustee and
of any of such holders in respect of any of the Securities; and any receiver,
assignee, trustee, custodian or debtor in any such proceeding is hereby
authorized, and each and every holder of the Securities, by receiving and
holding the same, shall be conclusively deemed to have authorized any such
receiver, assignee, trustee, custodian or debtor, to make any such payment or
delivery only to or on the order of the Trustee, and to pay to the Trustee any
amount due if for compensation and expenses, including counsel fees, incurred by
it to the date of such payment or delivery; provided, however, that nothing
herein contained shall be deemed to authorize or empower the Trustee to consent
to or accept or adopt, on behalf of any holder of Securities, any plan of
reorganization or readjustment of the Company affecting the Securities or the
rights of any holder thereof, or to authorize or empower the Trustee to vote in
respect of the claim of any holder of any Securities in any such proceeding.
SECTION 6.05. Any moneys collected by the Trustee with respect to a series
of Securities under this Article Six shall be applied in the order following, at
the date or dates fixed by the Trustee for the distribution of such moneys, upon
presentation of the several Securities, and stamping thereon the payment, if
only partially paid, and upon surrender thereof if fully paid:
First: To the payment of all costs and expenses in connection with
the collection of such moneys and all amounts due to the Trustee under
Section 10.05.
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Second: In case the principal of the outstanding Securities of such
series shall not have become due and be unpaid, to the payment of interest
on the Securities of such series, in the order of the maturity of the
installments of such interest, with interest (to the extent that such
interest has been collected by the Trustee) upon the overdue installments
of interest at the rate borne by such Securities, such payments to be made
ratably to the persons entitled thereto.
Third: In case the principal of the outstanding Securities of such
series shall have become due, by declaration or otherwise, to the payment
of the whole amount then owing and unpaid upon the Securities of such
series for principal and premium, if any, and interest, with interest on
the overdue principal and premium, if any, and (to extent that such
interest has been collected by the Trustee) upon overdue installments of
interest at the rate borne by the Securities of such series, and in case
such moneys shall be insufficient to pay in full the whole amounts so due
and unpaid upon the Securities of such series, then to the payment of such
principal and premium, if any, and interest without preference or priority
of principal and premium, if any, over interest, or of interest over
principal and premium, if any, or of any instalment of interest over any
other instalment of interest, or of any Security of such series over any
other Security of such series, ratably to the aggregate of such principal
and premium, if any, and accrued and unpaid interest.
Any surplus then remaining shall be paid to the Company or to such other
persons as shall be entitled to receive it.
SECTION 6.06. The holders of a majority in principal amount of the
Securities of any series at the time outstanding may direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee
hereunder, or of exercising any trust or power hereby conferred upon the Trustee
with respect to the Securities of such series, provided, however, that, subject
to the provisions of Section 10.02, the Trustee shall have the right to decline
to follow any such direction if the Trustee being advised by counsel determines
that the action so directed may not lawfully be taken. Prior to any declaration
accelerating the maturity of the Securities of any series, the holders of a
majority in aggregate principal amount of such series of Securities at the time
outstanding may on behalf of the holders of all of the Securities of such series
waive any past default or event of default hereunder and its consequences except
a default in the payment of interest or any premium on or the principal of the
Securities of such series. Upon any such waiver the Company, the Trustee and the
holders of the Securities of such series shall be restored to their former
positions and rights hereunder, respectively; but no such waiver shall extend to
any subsequent or other default or event of default or impair any right
consequent thereon. Whenever any default or event of
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default hereunder shall have been waived as permitted by this Section 6.06,
said default or event of default shall for all purposes of the Securities of
such series and this Indenture be deemed to have been cured and to be not
continuing.
SECTION 6.07. No holder of any Security of any series shall have any right
to institute any action, suit or proceeding at law or in equity for the
execution of any trust hereunder or for the appointment of a receiver or for any
other remedy hereunder, in each case with respect to an event of default with
respect to such series of Securities, unless such holder previously shall have
given to the Trustee written notice of the happening of one or more of the
events of default herein specified with respect to such series of Securities,
and unless also the holders of 25% in principal amount of the Securities of such
series then outstanding shall have requested the Trustee in writing to take
action in respect of the matter complained of, and unless also there shall been
offered to the Trustee security and indemnity satisfactory to it against the
costs, expenses and liabilities to be incurred therein or thereby, and the
Trustee, for 60 days after receipt of such notification, request and offer of
indemnity, shall have neglected or refused to institute any such action, suit or
proceeding; and such notification, request and offer of indemnity are hereby
declared in every such case to be conditions precedent to any such action, suit
or proceeding by any holder of any Security of such series; it being understood
and intended that no one or more of the holders of Securities of such series
shall have any right in any manner whatsoever by his or their action to enforce
any right hereunder, except in the manner herein provided, and that every
action, suit or proceeding at law or in equity shall be instituted, had and
maintained in the manner herein provided and for the equal benefit of all
holders of the outstanding Securities of such series; provided, however, that
nothing in this Indenture or in the Securities of such series contained shall
affect or impair the obligation of the Company, which is absolute and
unconditional, to pay the principal of, premium, if any, and interest on the
Securities of such series to the respective holders of such Securities at the
respective due dates in such Securities stated, or affect or impair the right,
which is also absolute and unconditional, of such holders to institute suit is
enforce the payment thereof; provided, further, that in the event property or
assets are conveyed, transferred, assigned, mortgaged or pledged to the Trustee
as security for one or more series of Securities, no holder of Securities shall
be entitled to take any action or institute any suit to enforce the payment of
his Securities, whether for principal, interest or premium, if any, to the
extent that the taking of such action or the institution or prosecution of any
such suit or the entry of judgment therein would under applicable law result in
a surrender, impairment, waiver or loss of the lien of this Indenture, if any,
upon the trust estate so created by such conveyance, transfer, assignment,
mortgage or pledge, or any part thereof, as security for Securities held by any
other holder.
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SECTION 6.08. All parties to this Indenture and the holders of the
Securities agree that the court may in its discretion require, in any action,
suit or proceeding for the enforcement of any right or remedy under this
Indenture, or in any action, suit or proceeding against the Trustee for any
action taken or omitted by it as Trustee, the filing by any party litigant in
such action, suit or proceeding of an undertaking to pay the costs of such
action, suit or proceeding, and that such court may in its discretion assess
reasonable costs, including reasonably attorney's fees, against any party
litigant in such action, suit or proceeding, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; provided,
however, that the provisions of this Section 6.08 shall not apply to any action,
suit or proceeding instituted by the Trustee, to any action, suit or proceeding
instituted by any one or more holders of Securities holding in the aggregate
more than 10% in principal amount of the Securities of any series outstanding,
or to any action, suit or proceeding instituted by any holder of Securities of
any series for the enforcement of the payment of the principal of or premium, if
any, or the interest on, any of the Securities of such series, on or after the
respective due dates expressed in such Securities.
SECTION 6.09. No remedy herein conferred upon or reserved to the Trustee
or to the holders of Securities of any series is intended to be exclusive of any
other remedy or remedies, and each and every remedy shall be cumulative and
shall be in addition to every other remedy given hereunder or now or hereafter
existing at law or in equity or by statute. No delay or omission of the Trustee
or of any holder of the Securities of any series to exercise any right or power
accruing upon any default or event of default shall impair any such right or
power or shall be construed to be a waiver of any such default or event of
default or an acquiescence therein, and every power and remedy given by this
Article Six to the Trustee and to the holders of Securities of any series,
respectively, may be exercised from time to time and as often as may be deemed
expedient by the Trustee or by the holders of Securities of such series, as the
case may be. In case the Trustee or any holder of Securities of any series shall
have proceeded to enforce any right under this Indenture and the proceedings for
the enforcement thereof shall have been discontinued or abandoned because of
waiver or for any other reason or shall have been adjudicated adversely to the
Trustee or to such holder of Securities, then and in every such case the
Company, the Trustee and the holders of the Securities of such series shall
severally and respectively be restored to their former positions and rights
hereunder and thereafter all rights, remedies and powers of the Trustee and the
holders of the Securities of such series shall continue as though no such
proceedings had been taken, except as to any matters so waived or adjudicated.
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ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.01. Whenever in this Indenture it is provided that the holders
of a specified percentage or a majority in aggregate principal amount of the
Securities or of any series of Securities may take any action (including the
making of any demand or request, the giving of any notice, consent or waiver or
the taking of any other action), the fact that at the time of taking any such
action the holders of such specified percentage or majority have joined therein
may be evidenced (a) by any instrument or any number of instruments of similar
tenor executed by Securityholders in person or by agent or proxy appointed in
writing, or (b) by the record of the holders of Securities voting in favor
thereof at any meeting of Securityholders duly called and held in accordance
with the provisions of Article Eight, or (c) by a combination of such instrument
or instruments and any such record of such a meeting of Securityholders.
SECTION 7.02. Proof of the execution of any instrument by a Securityholder
or his agent or proxy and proof of the holding by any person of any of the
Securities shall be sufficient if made in the following manner:
The fact and date of the execution by any person of any such instrument
may be proved (a) by the certificate of any notary public or other officer in
any jurisdiction who, by the laws thereof, has power to take acknowledgements or
proof of deeds to be recorded within such jurisdiction, that the person who
signed such instrument did acknowledge before such notary public or other
officer the execution thereof, or (b) by the affidavit of a witness of such
execution sworn to before any such notary or other officer. Where such execution
is by a person acting in other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority.
The ownership of Securities shall be proved by the Security Register of
such Securities or by a certificate of the Security Registrar thereof.
The Trustee may accept such other proof or may require such additional
proof of any matter referred to in this Section 7.02 as it shall deem
appropriate or necessary.
SECTION 7.03. In determining whether the holders of the requisite
principal amount of the Securities have concurred in any direction, request,
waiver or consent under this Indenture, Securities which are owned by the
Company or by any other obligor on the Securities or by any person directly or
indirectly controlling, or controlled by, or under direct or indirect common
control with, the Company or any such other obligor shall be disregarded, except
that for the purpose of determining whether the Trustee shall be protected in
relying on any such direction, request, waiver or consent, only Securities which
the Trustee
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knows are so owned shall be disregarded. Securities so owned which have been
pledged in good faith may be regarded as outstanding for the purposes of this
Section 7.03 if the pledgee shall establish to the satisfaction of the Trustee
the pledgee's right to vote such Securities and that the pledgee is not a person
directly or indirectly controlling, or controlled by, or under direct or
indirect common control with, the Company or any such other obligor. In case of
a dispute as to such right, any decision by the Trustee taken upon the advice of
counsel shall be full protection to the Trustee.
SECTION 7.04. At any time prior to (but not after) the evidencing to the
Trustee, as provided in Section 7.01, of the taking of any action by the holders
of the percentage in aggregate principal amount of the Securities or of any
series of Securities specified in this Indenture in connection with such action,
any holder of a Security which is shown by the evidence to be included in the
Securities the holders of which have consented to such action may, by filing
written notice with the Trustee at its principal office and upon proof of
holding as provided in Section 7.02, revoke such action so far as concerns such
Security. Except as aforesaid, any such action taken by the holder of any
Security shall be conclusive and binding upon such holder and upon all future
holders and owners of such Security, irrespective of whether or not any notation
in regard thereto is made upon such Security or any Security issued in exchange
or substitution therefor.
ARTICLE EIGHT
SECURITYHOLDERS' MEETINGS
SECTION 8.01. A meeting of Securityholders may be called at any time and
from time to time pursuant to the provisions of this Article Eight for any of
the following purposes:
(a) to give any notice to the Company or to the Trustee, or to give
any directions to the Trustee, or to consent to the waiving of any default
hereunder and its consequences, or to take any other action authorized to
be taken by Securityholders pursuant to any of the provisions of Article
Six;
(b) to remove the Trustee and nominate a successor trustee pursuant
to the provisions of Article Ten;
(c) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 13.02; or
(d) to take any other action authorized to be taken by or on behalf
of the holders of any specified aggregate principal amount of the
Securities of any one or more or all
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series, as the case may be, under any other provision of this Indenture or
under applicable law.
SECTION 8.02. The Trustee may at any time call a meeting of
Securityholders of all series, that may be affected by the action proposed to be
taken, to take any action specified in Section 8.01, to be held at such time and
at such place as the Trustee shall determine. Notice of every meeting of the
Securityholders of a series, setting forth the time and the place of such
meeting and in general terms the action proposed to be taken at such meeting,
shall be mailed to holders of Securities of such series at their addresses as
they shall appear on the Security Register (including the records of any
Security Co-Registrar). Such notice shall be mailed not less than 20 nor more
than 90 days prior to the date fixed for the meeting.
SECTION 8.03. In case at any time the Company, pursuant to a resolution of
its Board of Directors, or the holders of at least 10% in aggregate principal
amount of the Securities of a series then outstanding that may be affected by
the action proposed to be taken, shall have requested the Trustee to call a
meeting of Securityholder of such series, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and the
Trustee shall not have mailed the notice of such meeting within 20 days after
receipt of such request, then the Company or such Securityholders may determine
the time and the place for such meeting and may call such meeting to take any
action authorized in Section 8.01, by mailing notice thereof as provided in
Section 8.02.
SECTION 8.04. To be entitled to vote at any meeting of Securityholders a
person shall (a) be a holder of one or more Securities of a series affected by
the action proposed to be taken at the meeting or (b) be a person appointed by
an instrument in writing as proxy by a holder of one or more such Securities.
The only persons who shall be entitled to be present or to speak at any meeting
of Securityholders shall be the persons entitled to vote at such meeting and
their counsel and any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
SECTION 8.05. Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Securityholders, in regard to proof of the holding of Securities and
of the appointment of proxies, and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates and
other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Securityholders as provided in Section 8.03, in which case the
Company or the Securityholders
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calling the meeting, as the case may be, shall in like manner appoint a
temporary chairman. A permanent chairman and a permanent secretary of the
meeting shall be elected by majority vote of the meeting.
Subject to the provisions of Section 7.03, at any meeting of
Securityholders of a series each Securityholder of such series or such
Securityholder's proxy shall be entitled to one vote for each $1,000 principal
amount of Securities of such series outstanding held or represented by him;
provided, however, that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not outstanding and ruled by the chairman
of the meeting to be not outstanding. The chairman of the meeting shall have no
right to vote other than by virtue of Securities of such series held by him or
instruments in writing as aforesaid duly designating him as the person to vote
on behalf of other Securityholders of such series. At any meeting of the
Securityholders duly called pursuant to the provisions of Section 8.02 or 8.03
the presence of persons holding or representing Securities in an aggregate
principal amount sufficient to take action upon the business for the transaction
of which such meeting was called shall be necessary to constitute a quorum, and
any such meeting may be adjourned from time to time by a majority of those
present, whether or not constituting a quorum, and the meeting may be held as so
adjourned without further notice.
SECTION 8.06. The vote upon any resolution submitted to any meeting of
Securityholders of a series shall be by written ballots on which shall be
subscribed the signatures of the holders of Securities of such series or of
their representatives by proxy and the principal amounts of the Securities of
such series held or represented by them. The permanent chairman of the meeting
shall appoint two inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in duplicate of all
votes cast at the meeting. A record in duplicate of the proceedings of each
meeting of Securityholders shall be prepared by the secretary of the meeting and
there shall be attached to said record the original reports of the inspectors of
votes on any vote by ballot taken thereat and affidavits by one or more persons
having knowledge of the facts setting forth a copy of the notice of the meeting
and showing that said notice was mailed as provided in Section 8.02. The record
shall show the principal amounts of the Securities voting in favor of or against
any resolution. The record shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one of the duplicates shall
be delivered to the Company and the other to the Trustee to be preserved by the
Trustee.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
SECTION 8.07. Nothing contained in this Article Eight shall be deemed or
construed to authorize or permit, by reason of any
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call of a meeting of Securityholders of any series or any rights expressly or
impliedly conferred hereunder to make such call, any hindrance or delay in the
exercise of any right or rights conferred upon or reserved to the Trustee or to
the Securityholders of such series under any of the provisions of this Indenture
or of the Securities of such series.
ARTICLE NINE
REPORTS BY THE COMPANY AND THE TRUSTEE
AND SECURITYHOLDERS' LISTS
SECTION 9.01. In accordance with Section 312(a) of the Trust Indenture
Act, the Company shall furnish or cause to be furnished to the Trustee:
(a) semi-annually with respect to Securities of each series on
January 15 and July 15 of each year or upon such other dates as are set
forth in or pursuant to the Board Resolution or indenture supplemental
hereto authorizing such series, a list, in each case, in such form as the
Trustee may reasonably require, of the names and addresses of holders as
of the applicable date; and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days prior
to the time such list is furnished;
provided, however, that so long as the Trustee is the Security Registrar no
such list shall be required to be furnished.
SECTION 9.02. The Trustee shall comply with the obligations imposed upon
it pursuant to Section 312 of the Trust Indenture Act.
Every holder of Securities, by receiving and holding the same, agrees with
the Company and the Trustee that neither the Company, the Trustee, any Paying
Agent or any Security Registrar shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the holders
of Securities in accordance with Section 312 of the Trust Indenture Act,
regardless of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any material pursuant
to a request made under Section 312(b) of the Trust Indenture Act.
SECTION 9.03. (a) Within 60 days after May 15 of each year commencing with
the first May 15 following the first issuance of Securities, if required by
Section 313(a) of the Trust Indenture Act, the Trustee shall transmit, pursuant
to Section 313(c) of the Trust Indenture Act, a brief report dated as of such
May 15 with respect to any of the events specified in said Section
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313(a) which may have occurred since the later of the immediately preceding May
15 and the date of this Indenture.
(b) The Trustee shall transmit the reports required by Section 313(b) of
the Trust Indenture Act and Section 10.11 hereof at the times specified therein.
(c) Reports pursuant to this Section shall be transmitted in the manner
and to the Persons required by Sections 313(c) and 313(d) of the Trust Indenture
Act.
SECTION 9.04. The Company, pursuant to Section 314(a) of the Trust
Indenture Act, shall:
(a) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies of
such portions of any of the foregoing as the Commission may from time to
time by rules and regulations prescribe) which the Company may be required
to file with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Company is not required to
file information, documents or reports pursuant to either of said
Sections, then it shall file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information, documents
and reports which may be required pursuant to Section 13 of the Securities
Exchange Act of 1934 in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in
such rules and regulations;
(b) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance
by the Company with the conditions and covenants of this Indenture as may
be required from time to time by such rules and regulations; and
(c) transmit to the holders within 30 days after the filing thereof
with the Trustee, in the manner and to the extent provided in Section
313(c) of the Trust Indenture Act, such summaries of any information,
documents and reports required to be filed by the Company pursuant to
paragraphs (1) and (2) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
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ARTICLE TEN
CONCERNING THE TRUSTEE
SECTION 10.01. Subject to Sections 315(a) through 315(d) of the Trust
Indenture Act:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon or other paper or document reasonably
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by an Officers' Certificate and any resolution
of the Board of Directors or any committee thereof (or committee of
officers or other representatives of the Company, to the extent any such
committee or committees have been so authorized by the Board of Directors)
may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence shall be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by or pursuant to this Indenture at the
request or direction of any of the holders of Securities of any series
pursuant to this Indenture, unless such holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request
or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, coupon or other paper or document, but the Trustee, in
its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to
examine,
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during business hours and upon reasonable notice, the books, records and
premises of the Company, personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
SECTION 10.02. The recitals contained herein and in the Securities, except
those referring or relating to the Trustee or any of its agents, and except for
the Trustee's certificate of authentication, shall be taken as the statements of
the Company and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities, except that
the Trustee represents that it is duly authorized to execute and deliver this
Indenture, authenticate the Securities and perform its obligations hereunder and
that the statements made by it in a Statement of Eligibility and Qualification
on Forms T-1 supplied to the Company are and will be true and accurate, subject
to the qualifications set forth therein. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application by the
Company of the Securities or the proceeds thereof.
SECTION 10.03. The Trustee, any Authenticating Agent, any Security
Registrar or any other Person that may be an agent of the Trustee or the
Company, in its individual or any other capacity, may become the owner or
pledgee of Securities or Coupons and, subject to Sections 310(b) and 311 of the
Trust Indenture Act, may otherwise deal with the Company with the same rights it
would have if it were not Trustee, Authenticating Agent, Security Registrar or
such other Person.
SECTION 10.04. Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law and, subject to
Section 11.02 hereof, may be invested in direct obligations of the United States
of America in such amounts and with such maturities that will ensure that the
principal of such obligations, together with the income thereon (without
consideration of any reinvestment thereof), will be sufficient to pay all sums
due for principal of, premium, if any, and interest on the Securities, as they
become due from time to time. The Trustee shall be under no liability for
interest on any money received by it or for losses on any investments made by it
pursuant to this Section 10.04 except as otherwise agreed with the Company.
SECTION 10.05. The Company agrees:
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(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by the Trustee hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation
of a trustee of an express trust);
(2) to reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to the Trustee's negligence or bad faith; and
(3) to indemnify the Trustee and its agents for, and to hold them
harmless against, any loss, liability or expense incurred without
negligence or bad faith on their part (excluding, for so long as no event
of default hereunder has occurred and is continuing, any settlement that
has not been approved by the Company in writing prior to any such
settlement) arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses of defending themselves against any claim or liability in
connection with the exercise or performance of any of their powers or
duties hereunder, except to the extent that any such loss, liability or
expense was due to the Trustee's negligence or bad faith.
The obligations of the Company under this Section to compensate and
indemnify the Trustee and each predecessor Trustee for expenses, disbursements
and advances shall constitute additional indebtedness hereunder and shall
survive the satisfaction and discharge of this Indenture.
SECTION 10.06. (a) There shall at all times be a Trustee hereunder that is
a corporation permitted by the Trust Indenture Act to act as trustee under an
indenture qualified under the Trust Indenture Act and that has a combined
capital and surplus (computed in accordance with Section 310(a)(2) of the Trust
Indenture Act) of at least $25,000,000. If at any time the Trustee shall cease
to be eligible in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect hereinafter specified in
this Article.
(b) The following indentures shall be considered specifically described
herein for purposes of clause (i) of the proviso contained in Section 310(b)(l)
of the Trust Indenture Act: Indenture dated as of August 1, 1984 between the
Company and the Trustee (with respect to the Company's Medium-Term Notes, Series
1), Indenture dated as of August 1, 1984 between the Company and the Trustee
(with respect to the Company's Medium-Term Notes, Series 2) and Indenture dated
as of June 1, 1985 between the Company and the Trustee.
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SECTION 10.07. (a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee pursuant
to Section 10.08.
(b) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 10.08 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to such
series.
(c) The Trustee may be removed at any time with respect to the Securities
of any series by Act of the holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the obligations imposed
upon it under Section 310(b) of the Trust Indenture Act with respect to
Securities of any series after written request therefor by the Company or
any holder of a Security of such series who has been a bona fide holder of
a Security of such series for at least six months; or
(2) the Trustee shall cease to be eligible under Section 10.06 and
shall fail to resign after written request therefor by the Company or any
such holder; or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any such case, (i) the Company, by or pursuant to a Board Resolution,
may remove the Trustee with respect to all Securities or the Securities of such
series, or (ii) subject to Section 315(e) of the Trust Indenture Act, any holder
of a Security who has been a bona fide holder of a Security of such series for
at least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee with
respect to all Securities of such series and the appointment of a successor
Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with respect
to the Securities of one or more series which shall occur only with the express
prior written consent of the Company, the Company, by or pursuant to a Board
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Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 10.08. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
10.08, become the successor Trustee with respect to the Securities of such
series and to that extent supersede the successor Trustee appointed by the
Company. If no successor Trustee with respect to the Securities of any series
shall have been so appointed by the Company or the holders of Securities and
accepted appointment in the manner required by Section 10.08, any holder of a
Security who has been a bona fide holder of a Security of such series for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series by mailing
written notice of such event by first-class mail, postage prepaid, to the
holders of Securities of such series as their names and addresses appear in the
Security Register. Each notice shall include the name of the successor Trustee
with respect to the Securities of such series and the address of its Corporate
Trust Office.
SECTION 10.08. (a) Upon the appointment hereunder of any successor Trustee
with respect to all Securities, such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties hereunder of the retiring Trustee; but, on the
request of the Company or such successor Trustee, such retiring Trustee, upon
payment of its charges, shall execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the retiring Trustee
and, subject to Section 5.03, shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder, subject nevertheless to its claim, if any, provided for in Section
10.05.
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(b) Upon the appointment hereunder of any successor Trustee with respect
to the Securities of one or more (but not all) series, the Company, the retiring
Trustee and such successor Trustee shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, such successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust, that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee and that no Trustee shall be responsible
for any notice given to, or received by, or any act or failure to act on the
part of any other Trustee hereunder, and, upon the execution and delivery of
such supplemental indenture, the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein, such retiring Trustee
shall have no further responsibility for the exercise of rights and powers or
for the performance of the duties and obligations vested in the Trustee under
this Indenture with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates other than as hereinafter
expressly set forth, and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates; but, on
request of the Company or such successor Trustee, such retiring Trustee, upon
payment of its charges with respect to the Securities of that or those series to
which the appointment of such successor relates and subject to Section 5.03
shall duly assign, transfer and deliver to such successor Trustee, to the extent
contemplated by such supplemental indenture, the property and money held by such
retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any Person appointed hereunder as a successor Trustee,
the Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
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trusts referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No Person shall accept its appointment hereunder as a successor
Trustee unless at the time of such acceptance such successor Person shall be
qualified and eligible under this Article.
SECTION 10.09. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, without the execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any Securities shall have been
authenticated but not delivered by the Trustee then in office, any successor by
merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 10.10. The Trustee may appoint one or more Authenticating Agents
acceptable to the Company with respect to one or more series of Securities which
shall be authorized to act on behalf of the Trustee to authenticate Securities
of that or those series issued upon original issue, exchange, registration of
transfer, partial redemption or pursuant to Section 2.06, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the authentication
and delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and, except
as provided in or pursuant to this Indenture, shall at all times be a
corporation that would be permitted by the Trust Indenture Act to act as trustee
under an indenture qualified under the Trust Indenture Act, is authorized under
applicable law and by its charter to act as an Authenticating Agent and has a
combined capital and surplus (computed in accordance with Section 310(a)(2) of
the Trust Indenture Act) of at least $5,000,000. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Corporation resulting
from any merger, conversion or
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consolidation to which such Authenticating Agent shall be a party, or any
corporation succeeding to the corporate agency or corporate trust business of an
Authenticating Agent, shall be the successor of such Authenticating Agent
hereunder, provided such Corporation shall be otherwise eligible under this
Section, without the execution or filing of any paper or any further act on the
part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall (i) mail written notice
of such appointment by first-class mail, postage prepaid, to all holders of
Securities of the series with respect to which such Authenticating Agent shall
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent, upon acceptance of its appointment hereunder,
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The provisions of Sections 2.05, 10.02 and 10.03 shall be applicable to
each Authenticating Agent.
If all of the Securities of any series may not be originally issued at one
time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment where the
Company wishes to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested in writing (which writing need not be
accompanied by or contained in an Officers' Certificate by the Company), shall
appoint in accordance with this Section an Authenticating Agent having an office
in a Place of Payment designated by the Company with respect to such series of
Securities.
SECTION 10.11. The Trustee shall, within ninety days after the occurrence
of a default with respect to the Securities of any series, mail to all holders
of Securities of that series entitled to receive reports pursuant to Section
9.03, notice of all defaults with respect to that series known to the Trustee,
unless such defaults shall have been cured before the giving of such notice;
provided, however, that, except in the case of default in the payment of the
principal of, premium, if any, or interest on any of the Securities of such
series or in the making of any sinking fund payment with respect to such series,
the Trustee shall be protected in withholding such notice if and so long as the
board of directors or trustees, the executive committee, or a
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trust committee of directors or trustees or Responsible Officers of the Trustee
in good faith determines that the withholding of such notice is in the interests
of the Holders of Securities of such series. For the purpose of this Section,
the term "default" means any event which is, or after notice or lapse of time or
both would become, an event of default hereunder.
ARTICLE ELEVEN
DEFEASANCE
SECTION 11.01. If and when the principal of, and the premium, if any, and
the interest on, all the Securities outstanding hereunder and all other sums due
hereunder shall have been well and truly paid at the times and in the manner
therein and herein expressed, this Indenture shall cease and determine, and, at
the written request of the Company, accompanied by the Officers' Certificate and
Opinion of Counsel required by Section 14.03, and upon proof being given to the
reasonable satisfaction of the Trustee that all the Securities have been paid or
satisfied and upon payment of the costs, charges and expenses incurred or to be
incurred by the Trustee in relation thereto or in carrying out the provisions of
this Indenture, the Trustee shall cancel this Indenture and execute and deliver
to the company such instruments as shall be requisite to evidence the
satisfaction hereof.
SECTION 11.02. If, at any time after the date hereof, the Company shall
deposit with the Trustee, in trust for the benefit of the holders thereof, (i)
funds sufficient to pay, or (ii) such amount of direct obligations of the United
States of America as will or will together with the income thereon without
consideration of any reinvestment thereof be sufficient to pay, all sums due for
principal of, premium, if any, and interest on the Securities of a particular
series, as they shall become due from time to time, and shall pay all costs,
charges and expenses incurred or to be incurred by the Trustee in relation
thereto or in carrying out the provisions of this Indenture in relation thereto,
this Indenture shall cease to be of further effect with respect to Securities of
such series (except as to (i) rights of registration of transfer, substitution
and exchange of Securities of such series, (ii) rights of holders to receive
payments of principal of, premium, if any, and interest on the Securities of
such series as they shall become due from time to time and other rights, duties
and obligations of Securityholders as beneficiaries hereof with respect to the
amounts so deposited with the Trustee, and (iii) the rights, obligations and
immunities of the Trustee hereunder (for which purposes the Securities of such
series shall be deemed outstanding)), and the Trustee, on the written request of
the Company, accompanied by the Officers' Certificate and Opinion of Counsel
required by Section 14.03, and an Opinion of Counsel to the effect that holders
of the Securities of such series will not recognize income, gain or loss for
Federal income tax purposes as a result
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of the Company's action under this Section 11.02 and will be subject to Federal
income tax in the same amount, in the same manner and at the same times as would
have been the case if such action had not been taken, shall execute and deliver
to the Company such instruments as shall be requisite to evidence the
satisfaction thereof with respect to Securities of such series. The Trustee
shall apply the moneys so deposited solely to the payment to the holders of the
Securities of such series of all sums due thereon for principal, premium, if
any, and interest, and the Trustee shall have no claim for itself, for fees,
expenses or otherwise, to such moneys so deposited.
SECTION 11.03. Neither the Trustee nor any other paying agent shall be
required to pay interest on any moneys deposited pursuant to the provisions of
this Indenture, except such as it shall agree with the Company to pay thereon.
Any moneys so deposited for the payment of the principal of, premium, if any, of
interest on the Securities of any series and remaining unclaimed for three years
after the date of the maturity of the Securities of such series or the date
fixed for the redemption of all the Securities of such series at the time
outstanding, as the case may be, shall be repaid by the Trustee or such other
paying agent to the Company upon its written request and thereafter, anything in
this Indenture to the contrary notwithstanding, any rights of the holders of
Securities of such series in respect of which such moneys shall have been
deposited shall be enforceable only against the Company, and all liability of
the Trustee or such other paying agent with respect to such moneys shall
thereafter cease.
Subject to the provisions of the foregoing paragraph, any moneys which at
any time shall be deposited by the Company or on its behalf with the Trustee or
any other paying agent for the purpose of paying the principal of, premium, if
any, and interest on any of the Securities shall be and are hereby assigned,
transferred and set over to the Trustee or such other paying agent in trust for
the respective holders of the Securities for the purpose for which such moneys
shall have been deposited; but such moneys need not be segregated from other
funds except to the extent required by law.
ARTICLE TWELVE
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS, DIRECTORS AND EMPLOYEES
SECTION 12.01. No recourse shall be had for the paying of the principal
of, or the premium, if any, or interest on, any Security or for any claim based
thereon or otherwise in respect thereof or of the indebtedness represented
thereby, or upon any obligation, covenant or agreement of this Indenture,
against any incorporator, stockholder, officer, director or employee, as such,
past, present or future, of the Company or of any successor corporation, either
directly or through the Company or any
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successor corporation, whether by virtue of any constitutional provision,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise; it being expressly agreed and understood that this Indenture and the
Securities are solely corporate obligations, and that no personal liability
whatsoever shall attach to, or be incurred by, any incorporator, stockholder,
officer, director or employee, as such, past, present or future, of the Company
or of any successor corporation, either directly or through the Company or any
successor corporation, because of the incurring of the indebtedness hereby
authorized or under or by reason of any of the obligations, covenants, promises
or agreements contained in this Indenture or in any of the Securities or to be
implied herefrom or therefrom, and that all liability, if any, of that character
against every such incorporator, stockholder, officer, director and employee is,
by the acceptance of the Securities and as a condition of, and as part of the
consideration for, the execution of this Indenture and the issue of the
Securities expressly waived and released.
ARTICLE THIRTEEN
SUPPLEMENTAL INDENTURES
SECTION 13.01. The Company (when authorized by resolution of its Board of
Directors) and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto, in form satisfactory to the Trustee,
for any one or more of the following purposes:
(a) to add to the covenants and agreements of the Company, to be
observed thereafter and during the period, if any, in such supplemental
indenture or indentures expressed, to surrender any right or power
hereunder conferred upon the Company, and to add events of default, in
each case for the protection or benefit of the holders of all or any
series of the Securities (and if such covenants, agreements, surrender of
rights or powers and events of default are to be for the benefit of fewer
than all series of Securities, stating that such covenants, agreements,
surrender of rights or powers and events of default are expressly being
included for the benefit of such series as shall be identified therein);
(b) to change or eliminate any provisions of the Indenture with
respect to all or any series of the Securities not then outstanding (and,
if such change is applicable to fewer than all such series of the
Securities, specifying the series to which such change is applicable), and
to specify the rights and remedies of the Trustee and the holders of such
Securities in connection therewith;
(c) to evidence the succession of another corporation to the
Company, the Trustee, or successive successions, and the assumption by a
successor, transferee or lessee
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corporation of the covenants and obligations of the Company or Trustee, as
the case may be, contained in the Securities of one or more series or in
this Indenture;
(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any indenture supplemental hereto which may be
defective or inconsistent with any other provision contained herein or in
any supplemental indenture, or to make any other provision in regard to
matters or questions arising under this Indenture which the Board of
Directors of the Company may deem necessary or desirable and which shall
not adversely affect the interests of the holders of the Securities;
(e) to convey, transfer, assign, mortgage or pledge to the Trustee
as security for the Securities any property or assets which the Company
may be required to convey, transfer, assign, mortgage or pledge in
accordance with the provisions of Section 5.04;
(f) to prohibit the authentication and delivery of additional series
of Securities;
(g) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal
and with or without interest coupons;
(h) to establish the form and terms of the Securities of any series
as permitted in Sections 2.01 and 2.02, or to authorize the issuance of
additional Securities of a series previously authorized or to add to the
conditions, limitations or restrictions on the authorized amount, terms or
purposes of issue, authentication or delivery of the Securities of any
series, as herein set forth, or other conditions, limitations or
restrictions thereafter to be observed; and
(i) to modify, alter, amend or supplement this Indenture in any
other respect which is not materially adverse to the holders, so long as
such change does not require the consent of the holders pursuant to any
other provision of this Indenture and is not inconsistent with any other
provisions of this Indenture and which, in the judgment of the Trustee, is
not to the prejudice of the Trustee and maintains adequate protection to
the Trustee when the same becomes operative.
Subject to the provisions of Section 13.03, the Trustee is authorized to
join with the Company in the execution of any such supplemental indenture, to
make the further agreements and stipulations which may be therein contained and
to accept the conveyance, transfer, assignment, mortgage or pledge of any
property or assets thereunder.
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Any supplemental indenture authorized by the provisions of this Section
13.01 may be executed by the Company and the Trustee without the consent of the
holders of any of the Securities at the time outstanding, notwithstanding any of
the provisions of Section 13.02.
SECTION 13.02. With the consent (evidenced as provided in Article Seven)
of the holders of not less than 66 2/3% in aggregate principal amount of the
Securities at the time outstanding which are affected by such indenture
supplemental hereto, the Company, when authorized by a resolution of its Board
of Directors, and the Trustee may from time to time and at any time enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the holders of the
Securities of any series to be affected; provided, however, that no such
supplemental indenture shall (i) extend the fixed maturity of any Securities, or
reduce the rate or extend the time of payment of interest thereon, or reduce the
amount of the principal thereof, or reduce any premium payable upon the
redemption thereof, or make the principal thereof or interest or premium thereon
payable in any coin or currency other than that provided in the Securities, or
impair the right to institute suit for the enforcement of any such payment on or
after the maturity thereof as provided in Section 6.07, without the consent of
the holder of each Security so affected, or (ii) reduce the aforesaid percentage
of Securities of any series, the holders of which are required to consent to any
such supplemental indenture, without the consent of the holders of all the
Securities then outstanding, or (iii) modify, without the written consent of the
Trustee, the rights, duties or immunities of the Trustee.
A supplemental indenture which changes or eliminates any provision of this
Indenture which has expressly been included solely for the benefit of one or
more particular series of Securities, or which modifies the rights of the
holders of Securities of such series with respect to such provision, shall be
deemed not to affect the rights under this Indenture of the holders of
Securities of any other series.
It shall not be necessary for the consent of the Securityholders under
this Section 13.02 to approve the particular form of any proposed supplemental
Indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section 13.02, the
Company shall mail a notice, setting forth in general terms the substance of
such supplemental indenture, to the holders of Securities affected by such
supplemental indenture at their addresses as the same shall then appear in the
register of the Company. Any failure of the Company to mail such notice,
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<PAGE> 64
or any defect therein, shall not, however, in any way impair or affect the
validity of any such supplemental indenture.
SECTION 13.03. Upon the request of the Company, accompanied by the
Officers' Certificate and Opinion of Counsel required by Section 14.03 and by
(a) a supplemental indenture duly executed on behalf of the Company,
(b) a copy of a resolution of the Board of Directors of the Company,
certified by the Secretary or an Assistant Secretary of the Company,
authorizing the execution of said supplemental indenture,
(c) an Opinion of Counsel, stating that said supplemental indenture
complies with, and that the execution thereof is authorized or permitted
by, the provisions of this Indenture, and
(d) if said supplemental indenture shall be executed pursuant to
Section 13.02, evidence (as provided in Article Seven) of the consent
thereto of the Securityholders required to consent thereto as in Section
13.02 provided,
the Trustee shall join with the Company in the execution of said supplemental
indenture unless said supplemental indenture affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion but shall not be obligated to, enter into said
supplemental indenture.
SECTION 13.04. Upon the execution of any supplemental indenture pursuant
to the provisions of this Article Thirteen, this Indenture shall be and be
deemed to be modified and amended in accordance therewith and, except as herein
otherwise expressly provided, the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the Trustee, the
Company and the holders of all of the Securities or of the Securities of any
series affected, as the case may be, shall thereafter be determined, exercised
and enforced hereunder subject in all respects to such modifications and
amendments, and all the terms and conditions of any such supplemental indenture
shall be and be deemed to be part of the terms and conditions of this Indenture
for any and all purposes.
SECTION 13.05. Securities authenticated and delivered after the execution
of any supplemental indenture pursuant to the provisions of this Article
Thirteen may bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company or the Trustee shall
so determine, new Securities so modified as to conform, in the opinion of the
Trustee and the Board of Directors of the Company, to any modification of this
Indenture contained in any such supplemental indenture may be prepared by the
Company,
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<PAGE> 65
authenticated by the Trustee and delivered in exchange for the securities then
outstanding in equal aggregate principal amounts, and such exchange shall be
made without cost to the holders of the Securities.
SECTION 13.06. Every supplemental indenture executed pursuant to the
provisions of this Article Thirteen shall conform to the requirements of the
Trust Indenture Act of 1939 as then in effect.
ARTICLE FOURTEEN
MISCELLANEOUS PROVISIONS
SECTION 14.01. Subject to the provisions of Section 5.06, nothing
contained in this Indenture or in the Securities shall be deemed to prevent the
consolidation or merger of the Company with or into any other corporation, or
the merger into the Company of any other corporation, or the sale or lease by
the Company of its property and assets as, or substantially as, an entirety, or
otherwise.
Upon any consolidation or merger, or any sale other than for cash or lease
of all or substantially all of the assets of the Company in accordance with the
provisions of Section 5.06, the corporation formed by such consolidation or into
which the Company shall have been merged or to which such sale or lease shall
have been made shall succeed to and be substituted for the Company with the same
effect as if it had been named herein as a party hereto, and thereafter from
time to time such corporation may exercise each and every right and power of the
Company under this Indenture, in the name of the Company or in its own name; and
any act or proceeding by any provision of this Indenture required or permitted
to be done by the Board of Directors or any officer of the Company may be done
with like force and effect by the like board or officer of any corporation that
shall at the time be the successor of the Company hereunder. In the event of any
such sale or conveyance, but not any such lease, the Company (or any successor
corporation which shall theretofore have become such in the manner described in
Section 5.06) shall be discharged from all obligations and covenants under this
Indenture and the Securities and may thereupon be dissolved and liquidated.
Anything in this Section 14.01 to the contrary notwithstanding, no such
consolidation or merger shall be entered into, and no such conveyance or
transfer shall be made, by the Company with or to another corporation or Person
which has outstanding any obligations secured by a Lien if as a result thereof,
any of the properties of any character owned by the Company immediately prior
thereto would be subject to such Lien, unless simultaneously therewith or prior
thereto effective provision shall be made to secure all of the Securities
equally and ratably with (or prior to) such other secured obligations.
57
<PAGE> 66
SECTION 14.02. Nothing in this Indenture expressed and nothing that may be
implied from any of the provisions hereof is intended, or shall be construed, to
confer upon, or to give to, any person or corporation other than the parties
hereto and their successors and the holders of the Securities any right, remedy
or claim under or by reason of this Indenture or any covenant, condition,
stipulation, promise or agreement hereof, and all covenants, conditions,
stipulations, promises and agreements in this Indenture contained shall be for
the sole and exclusive benefit of the parties hereto and their successors and of
the holders of the Securities.
SECTION 14.03. As evidence of compliance with the conditions precedent
provided for in this Indenture (including any covenants compliance with which
constitutes a condition precedent) which relate to the authentication and
delivery of the Securities, to the satisfaction and discharge of this Indenture
or to any other action to be taken by the Trustee at the request or upon the
application of the Company, the Company will furnish to the Trustee an Officers'
Certificate, stating that such conditions precedent have been complied with and
an Opinion of Counsel stating that in the opinion of such Counsel such
conditions precedent have been complied with. Such Opinion of counsel may be in
the form and contain such assumptions, qualifications and limitations as
customarily appear in legal opinions issued in the jurisdiction in which any
such opinion of counsel is rendered.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include (1) a statement that the
person making such certificate or opinion has read such condition or covenant;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based; (3) a statement that, in the opinion of such
person, such examination or investigation as is necessary to enable the
expression of an informed opinion as to whether or not such condition or
covenant has been complied with has been made; and (4) a statement as to whether
or not, in the opinion of such person, such condition or covenant has been
complied with.
Notwithstanding any provision of this Indenture authorizing the Trustee
conclusively to rely upon any certificates or opinions, the Trustee, before
granting any application by the Company or taking or refraining from taking any
other action in reliance thereon, may require any further evidence or make any
further investigation as to the facts or matters stated therein which it may, in
good faith, deem reasonable in the circumstances, and in connection therewith
the Trustee may examine or cause to be examined the pertinent books, records and
premises of the Company or of any Subsidiary; and the Trustee shall, in any such
case, require such further evidence or make such further investigation as may be
requested by the holders of a majority in principal amount of the Securities
then
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outstanding, provided that, if payment to the Trustee of the costs, expenses and
liabilities likely to be incurred by it in making such investigation is not
reasonably assured to the Trustee by the security afforded to it by the terms of
this Indenture, the Trustee before making such investigation may require
reasonable indemnity against such costs, expenses and liabilities. Any further
evidence which may be requested by the Trustee pursuant to any of the provisions
of this paragraph shall be furnished by the Company at its own expense; and any
cost, expenses and liabilities incurred by the Trustee pursuant to any of the
provisions of this paragraph shall be paid by the Company, or, if paid by the
Trustee, shall be repaid by the Company, upon demand, with interest at the
highest rate borne by the Securities, and, until such repayment, shall be
secured by a lien on any moneys held by the Trustee hereunder prior to any
rights therein of the holders of Securities.
SECTION 14.04. All Securities paid, redeemed, exchanged, surrendered for
registration of transfer or retired pursuant to the sinking fund or otherwise
shall, if surrendered to the Company or to any paying agent, be delivered to the
Trustee for cancellation and shall be cancelled by it or, if surrendered to the
Trustee, shall be cancelled by it, and, except as otherwise provided in Sections
2.04, 2.05, 2.07, 4.02, 4.07 and 13.05, no Securities shall be issued under the
Indenture in lieu thereof The Trustee shall make appropriate notations in its
records in respect of all such Securities and shall destroy such Securities and
deliver a certificate of such destruction to the Company. If the Company shall
acquire any of the Securities, however, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such Securities
unless and until the same are surrendered to the Trustee for cancellation.
SECTION 14.05. If any provision of this Indenture limits, qualifies or
conflicts with any duties under any required provision of the Trust Indenture
Act imposed hereon by Section 318(c) thereof, such required provision shall
control.
SECTION 14.06. Whenever action is required by this Indenture by the Board
of Directors of the Company and there is at the time constituted a committee of
the Board of Directors duly authorized to take such action, such action by said
committee shall be deemed to be the action of the Board of Directors and shall
be sufficient for all purposes of this Indenture where action by the Board of
Directors is specified.
SECTION 14.07. Any notice or demand authorized by this Indenture to be
given to the Company shall be sufficiently given for all purposes, if it shall
be given or made in writing, by hand, telecopier (with confirmation of receipt)
or certified or registered mail (confirmation of receipt requested) to the
Company addressed to it at P.O. Box 2209, 1850 N. Central Avenue, Phoenix,
Arizona 85002-2209 (telephone: (602) 207-4900; telecopier: (602) 207-5543) to
the attention of its General Counsel or at such other address as may have been
furnished in writing to the Trustee by the Company.
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Any notice, direction, request or demand to or upon the Trustee shall be
sufficiently given, for all purposes, if it shall be given or made in writing,
by hand, telecopier (with confirmation of receipt) or certified or registered
mail (confirmation of receipt requested) to First Interstate Bank of Arizona,
N.A., _________________ ___________________________________________ (telephone:
(___) ________; telecopier: (___) ________) to the attention of its Corporate
Trust Office, or at such other address as may have been furnished in writing to
the Company by the Trustee. Any notice required or permitted to be given to
Securityholders shall be sufficiently given if given by first class mail,
postage prepaid, to such holders, at their addresses as the same shall appear on
the Security Register. A failure to give notice with respect to any particular
holder or any defect therein shall not affect the sufficiency of notice given to
any other holder. Notice may be waived in writing by the person entitled to
receive such notice either before or after such event and such waiver shall be
the equivalent of receipt of such notice.
Section 14.08. (a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by or pursuant to this Indenture to be
given or taken by holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such holders in person or
by an agent duly appointed in writing. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
or record or both are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments and any such record
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the holders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing appointing any such
agent, or of the holding by any Person of a Security, shall be sufficient for
any purpose of this Indenture and (subject to Section 315 of the Trust Indenture
Act) conclusive in favor of the Trustee and the Company and any agent of the
Trustee or the Company, if made in the manner provided in this Section.
Without limiting the generality of this Section, unless otherwise provided
in or pursuant to this Indenture, a holder, including a Depositary that is a
holder of a global Security, may make, give or take, by a proxy, or proxies,
duly appointed in writing, any request, demand, authorization, direction,
notice, consent, waiver or other action provided in or pursuant to this
Indenture to be made, given or taken by holders, and a Depositary that is a
holder of a global Security may provide for the beneficial owners of interests
in any such global Security to direct such Depositary in taking such action
through such Depositary's standing instructions and customary practices. The
Depositary shall report only one result of its solicitation of proxies to the
Trustee.
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(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any reasonable manner which the Trustee
deems sufficient and in accordance with such reasonable rules as the Trustee may
determine; and the Trustee may in any instance require further proof with
respect to any of the matters referred to in this Section.
(c) The ownership, principal amount and serial numbers of Securities held
by any Person, and the date of the commencement and the date of the termination
of holding the same, shall be proved by the Security Register.
(d) If the Company shall solicit from the holders of any Securities any
request, demand, authorization, direction, notice, consent, waiver or other Act,
the Company shall, by Board Resolution, fix in advance a record date for the
determination of holders of Securities entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act. Such request,
demand, authorization, direction, notice, consent, waiver or other Act may be
given before or after such record date, but only the holders of Securities of
record at the close of business on such record date shall be deemed to be
holders for the purpose of determining whether holders of the requisite
proportion of Outstanding Securities have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent, waiver or other
Act, and for that purpose the Outstanding Securities shall be computed as of
such record date; provided that no such authorization, agreement or consent by
the holders of Securities shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture not later than six months
after the record date.
(e) Any request, demand, authorization, direction, notice, consent, waiver
or other action by the holder of any Security shall bind every future holder of
the same Security and the holder of every Security issued upon the registration
of transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done or suffered to be done by the Trustee, any Security Registrar or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
SECTION 14.09. In any case where the date of maturity of interest on or
principal of the Securities or the date fixed for redemption of any Securities
shall not be a business day, then payment of interest, principal and premium, if
any, may be made on the next succeeding business day with the same force and
effect as if made on the date of maturity and no interest shall accrue for the
period after such date.
SECTION 14.10. This Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same instrument.
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SECTION 14.11. This Indenture and each Security shall be deemed to be a
contract made under the law of the State of New York, and for all purposes shall
be construed in accordance with the law of said State.
62
<PAGE> 71
IN WITNESS WHEREOF, FINOVA CAPITAL CORPORATION has caused this Indenture
to be executed in its corporate name by one of its officers thereunto duly
authorized and to be attested by its Secretary or one of its Assistant
Secretaries, and First Interstate Bank of Arizona, N.A., has caused this
Indenture to be executed in its corporate name by one of its authorized officers
thereunto duly authorized, all as of October 1, 1995.
FINOVA CAPITAL CORPORATION
By:
---------------------------
Attest:
- -------------------------
Secretary
FIRST INTERSTATE BANK OF ARIZONA, N.A.
as Trustee
By:
---------------------------
Attest:
- -------------------------
63
<PAGE> 1
EXHIBIT 4.2
FORM 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. ___ PRINCIPAL AMOUNT
$______________
CUSIP No. __________
FINOVA CAPITAL CORPORATION
____% NOTES DUE ______, ____
FINOVA CAPITAL CORPORATION, a corporation duly organized and existing
under the laws of the State of Delaware (formerly Greyhound Financial
Corporation) (the "Company" or the "Issuer," which term includes any successor
corporation under the Indenture hereinafter referred to), for value received,
hereby promises to pay to CEDE & CO., or its registered assigns, the principal
sum of ________________________________ ($___________) DOLLARS on ______, ____
(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 ______, 199_, at ____% per annum,
payable semi-annually on ______ 1 and ________ 1 in each year, commencing on
______ 1, 199_ (each, an "Interest Payment Date"), to Holders of record on the
preceding _____ __ and _______ __, 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
<PAGE> 2
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 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 "_____% Notes Due _______, ____" (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.
2
<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:
FINOVA CAPITAL CORPORATION
[SEAL]
By: ____________________________________
Name:
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
3
<PAGE> 4
REVERSE OF FIXED RATE NOTE
FINOVA CAPITAL CORPORATION
____% NOTES DUE ______, ____
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
4
<PAGE> 5
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.
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
5
<PAGE> 6
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 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.
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.
note
6
<PAGE> 1
EXHIBIT 4.3
FORM OF
FLOATING 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. ___ PRINCIPAL AMOUNT
$---------------
CUSIP No. __________
FINOVA CAPITAL CORPORATION
FLOATING RATE NOTES DUE _______, ____
FINOVA CAPITAL CORPORATION, a corporation duly organized and existing
under the laws of the State of Delaware (formerly Greyhound Financial
Corporation) (the "Company" or the "Issuer," which term includes any successor
corporation under the Indenture hereinafter referred to), for value received,
hereby promises to pay to CEDE & CO., or its registered assigns, the principal
sum of __-________________________ ($___________) DOLLARS on _______, ____ (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 _______, 199_, payable quarterly in arrears on
_______, ______, _______ and ________ of each year, commencing on _______, 199_
(each, an "Interest Payment Date"). 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.
Interest on this Note will be computed on the basis of the actual number of days
in the applicable Interest Period divided by 360. As used herein, "Interest
Period" means the period from and including __________, 199_ to, but excluding,
______, 199_, and thereafter each successive period from, and including an
Interest Payment Date to, but excluding, the next Interest Payment Date. The
interest payment at maturity will
<PAGE> 2
include interest accrued to but excluding the Maturity Date and will be payable
to the person to whom principal is payable.
The rate of interest for each Interest Period shall be:
[Insert Appropriate payment Terms]
The "Calculation Agent" shall be The Chase Manhattan Bank, N.A. The
Calculation Agent will notify the Company of each determination of the interest
rate applicable to this Note promptly after such determination is made. The
Trustee under the Indenture will, upon the request of the Holder of the Note,
provide the interest rate then in effect and, if different, the interest rate
which will become effective as of the Interest Reset Date as a result of a
determination made with respect to the most recent Interest Determination Date.
As used herein "London Business Day" shall mean a day on which dealings in
deposits in U.S. dollars are transacted in the London interbank market; the
"Interest Determination Date" pertaining to the beginning of an Interest Period
will be the second London Business Day preceding the related Interest Reset
Date; and the "Interest Reset Date" with respect to any Interest Period shall
mean the first day of such Interest Period.
The record date shall be the date 15 calendar days (whether or not a
Business Day) prior to the applicable Interest Payment Date (each, a "Record
Date").
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 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.
2
<PAGE> 3
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 "Floating Rate Notes Due _________, ____" (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.
3
<PAGE> 4
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: _______, 199_
FINOVA CAPITAL CORPORATION
[SEAL]
By: ____________________________________
Samuel L. Eichenfield
Chairman of the Board,
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
4
<PAGE> 5
Reverse
FINOVA CAPITAL CORPORATION
FLOATING RATE NOTES DUE _______, ____
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
5
<PAGE> 6
hereof, whether or not notation of such consent or waiver is made upon this
Note.
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.
6
<PAGE> 7
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 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.
7
<PAGE> 8
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.
8
<PAGE> 1
EXHIBIT 5
October 10, 1995
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
In my capacity as General Counsel of FINOVA Capital Corporation, a
Delaware corporation (the "Company"), I have formed the following opinion in
connection with the registration of the Company's Senior Debt Securities (the
"Securities") on Form S-3. Unless otherwise defined herein, the definition of
the terms used in this opinion shall be the same as those in the registration
statement to which this opinion has been attached as an exhibit (the
"Registration Statement").
I have examined such corporate records and other documents and have
made such examinations of law as I have deemed relevant. Based on the above,
and subject to the qualifications below, it is my opinion that upon:
(a) the due execution and delivery of the Indenture and
any supplement or supplements to the Indenture by the Trustee and the
Company;
(b) the taking of appropriate further action by the
Company;
(c) the effectiveness of the Registration Statement
pursuant to the Securities Act of 1933, as amended, the Trust
Indenture Act of 1939, and any required filing of the Prospectus
pursuant to Rule 424(b) within the period required by that rule;
(d) the due execution and delivery of the Securities on
behalf of the Company;
(e) the due authentication of the Securities by the
Trustee; and
(f) the sale and delivery of the Securities at the price
or prices and in accordance with the terms set forth in the
Registration Statement, as it may be amended from time to time;
<PAGE> 2
the Securities will be duly and validly authorized and when issued will be
legal, valid and binding obligations of the Company in accordance with their
terms, except as such binding nature may be limited by bankruptcy, insolvency,
reorganization, arrangement, moratorium and other similar laws affecting the
rights of creditors generally and by general principles of equity and
commercial reasonableness.
The foregoing opinion relates only to matters of the laws of the State
of Arizona and the General Corporation Law of the State of Delaware, in either
case without reference to conflict of laws, and to the Federal laws of the
United States. I do not express any opinions on laws of any other jurisdiction
or otherwise than as expressly set forth above.
I hereby consent to the use of the foregoing opinion as an exhibit to
the Registration Statement and to the use of my name and title in such
Registration Statement and related Prospectus, under the heading "Legal
Matters".
Very truly yours,
/s/William J. Hallinan
General Counsel
2
<PAGE> 1
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of FINOVA Capital Corporation on Form S-3 of our report dated March 8, 1995,
appearing in the Annual Report on Form 10-K of FINOVA Capital Corporation for
the year ended December 31, 1994 and to the reference to us under the heading
"Experts" in the Prospectus, which is part of this Registration Statement.
Deloitte & Touche LLP
October 6, 1995
