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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C, 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): February 27, 1995
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FINOVA CAPITAL CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 1-7543 94-1278569
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(State or Other Jurisdiction (Commission (I.R.S. Employer
of Incorporation) File Number) Identification No.)
1850 NORTH CENTRAL AVENUE, PHOENIX, ARIZONA 85002
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: 602/207-6900
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Item 7. Financial Statements and Exhibits.
(c) Exhibits:
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Exhibits Title
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<S> <C>
1.1 Underwriting and Pricing Agreement, dated February 27, 1995,
between the Registrant and Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated.
4.1 Officers' Certificate, dated March 6, 1995, without
exhibit, pursuant to Section 2.02 of the Indenture, dated
as of September 1, 1992, between the Registrant and The Chase
Manhattan Bank, N.A., establishing the terms of the Registrant's
Floating Rate Notes due March 6, 1998 (the "Notes").
4.2 Specimen certificate evidencing the Notes.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
FINOVA Capital CORPORATION
(Registrant)
Dated: March 6, 1995 By: /s/ Bruno A. Marszowski
----------------------------------------------
Bruno A. Marszowski, Senior Vice President,
Chief Financial Officer and Controller
Principal Financial Officer/Authorized Officer
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EXHIBIT 1.1
EXECUTION COPY
$150,000,000
FINOVA CAPITAL CORPORATION
(a Delaware corporation)
Floating Rate Notes Due March 6, 1998
UNDERWRITING AGREEMENT
February 27, 1995
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center
North Tower
New York, New York 10281-1307
Dear Sirs:
FINOVA Capital Corporation (formerly known as Greyhound Financial
Corporation), a Delaware corporation (the "Company"), confirms its agreement
with Merrill Lynch, Pierce, Fenner & Smith Incorporated (the "Underwriter") with
respect to the sale by the Company and the purchase by the Underwriter of
$150,000,000 aggregate principal amount of the Company's Floating Rate Notes Due
March 6, 1998 (the "Securities"). The Securities are to be issued pursuant to an
indenture dated as of September 1, 1992 (the "Indenture") between the Company
and The Chase Manhattan Bank, N.A., as trustee (the "Trustee").
Prior to the purchase and public offering of the Securities by the
Underwriter, the Company and the Underwriter shall enter into an agreement
substantially in the form of Exhibit A hereto (the "Pricing Agreement"). The
Pricing Agreement may take the form of an exchange of any standard form of
written telecommunication between the Company and the Underwriter and shall
specify such applicable information as is indicated in Exhibit A hereto. The
offering of the Securities will be governed by this Agreement, as supplemented
by the Pricing Agreement. From and after the date of the execution and delivery
of the Pricing Agreement, this Agreement shall be deemed to incorporate the
Pricing Agreement.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 33-52845) for the
registration of $1,000,000,000 of its Senior Debt Securities, including the
Securities, and the offering thereof from time to time under the Securities Act
of
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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 statement has been declared effective by the Commission and
the Indenture has been qualified under the Trust Indenture Act of 1939, as
amended (the "1939 Act"). Such registration statement (as amended, if
applicable) and the prospectus constituting a part thereof (including in each
case all documents, if any, incorporated or deemed to be incorporated by
reference therein pursuant to the 1933 Act, the Securities Exchange Act of 1934,
as amended (the "1934 Act"), or otherwise, are hereinafter referred to as the
"Registration Statement" and the "Prospectus," respectively, except that if any
revised prospectus shall be provided to the Underwriter by the Company for use
in connection with the offering of the Securities which differs from the
Prospectus on file at the Commission at the time the Registration Statement
became effective (whether or not such revised prospectus is required to be filed
by the Company pursuant to Rule 424(b) of the 1933 Act Regulations), the term
"Prospectus" shall refer to such revised prospectus from and after the time it
is first provided to the Underwriter for such use. All references in this
Agreement to financial statements and schedules and other information which is
"contained," "included" or "stated" in the Registration Statement or the
Prospectus (and all other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other information which
are or are deemed to be incorporated by reference in the Registration Statement
or the Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement or the Prospectus shall
be deemed to mean and include the filing of any documents under the 1934 Act
after the date of this Agreement which are or are deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as the case may be.
The Company understands that the Underwriter proposes to make a public
offering of the Securities as soon as the Underwriter deems advisable after the
Pricing Agreement has been executed and delivered.
Section I. 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:
a. At the time the Registration Statement became effective and at the
Representation Date, the Registration Statement did comply and will comply
in all material respects with the requirements of the 1933 Act and the 1933
Act Regulations and the 1939 Act, and the rules and regulations of the
Commission promulgated thereunder (the
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"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 becomes effective, in which case at the time it is first provided
to the Underwriter for such use) and at Closing Time referred to in Section
2 hereof, will not include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; provided, however, that the representations and warranties in
this subsection (i) shall not apply to that part of the Registration
Statement which shall constitute the Statement of Eligibility under the
1939 Act on Form T-1 of the Trustee or apply to statements in or omissions
from the Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by the
Underwriter expressly for use in the Registration Statement or Prospectus.
b. The documents of the Company incorporated by reference in the
Prospectus, at the time they were or hereafter are filed with the
Commission, complied with and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations thereunder (the
"1934 Act Regulations"), and, when read together and with the other
information in the Prospectus, at the time the Registration Statement
became, and any amendments thereto become, effective, did not and will not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were or are
made, not misleading.
c. 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.
d. The financial statements included or incorporated by reference in
the Prospectus present fairly the respective financial position of the
Company and its consolidated subsidiaries, Fleet Factors Corp. and TriCon
Capital Corporation as of the dates indicated and the results of each of
their respective operations for the periods specified; and except as stated
therein, said financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis; the
unaudited pro forma consolidated financial
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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.
e. 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.
f. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware with
corporate power and authority to own, lease and operate its properties and
conduct its business as described in the Registration Statement; and the
Company is duly qualified as a foreign corporation to transact business and
is in good standing in each jurisdiction in which such qualification is
required or appropriate, except where the failure of the Company to so
qualify, in the aggregate, will not have a material adverse effect on the
consolidated financial condition or combined operations of the Company and
its Subsidiaries or of the Company and its Restricted Subsidiaries (as
those terms are defined in the Indenture).
g. 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
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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.
h. 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.
i. Neither the Company nor any of its subsidiaries is in violation of
its charter or in default in the performance or observance of any
obligations, agreements, covenants or conditions, which alone or in the
aggregate are material, contained in any contracts, indentures, mortgages,
loan agreements, notes, leases or other instruments, which alone or in the
aggregate are material, to which it is a party or by which it or any of
them or their properties may be bound; and the execution, delivery and
performance of this Agreement, the Indenture and the consummation of the
transactions contemplated herein and therein have been duly authorized by
all necessary corporate action and will not conflict with or constitute a
breach of, or default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company or
any of its subsidiaries pursuant to any material contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which the
Company or any of its subsidiaries is a party or by which it or any of them
may be bound or to which any of the property or assets of the Company or
any of its subsidiaries is subject, nor will such action result in any
violation of the provisions of the charter or by-laws of the Company or, to
the best of its knowledge, any law, administrative regulation or
administrative or court order or decree; and no consent, approval,
authorization, order or decree of any court or governmental agency or body
is required for the consummation by the Company of the transactions
contemplated by this Agreement, except such as may be required under the
1933 Act, the 1939 Act, the 1933 Act Regulations or state securities or
Blue Sky laws in connection with the purchase and distribution of the
Securities by the Underwriter.
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j. 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.
k. The Company and its subsidiaries own or possess adequate
trademarks, service marks and trade names necessary to conduct the business
now operated by them, and neither the Company nor any of its subsidiaries
has received any notice of infringement of or conflict with asserted rights
of others with respect to any trademarks, servicemarks or trade names
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would reasonably be expected to materially
adversely affect the conduct of the business, operations, financial
condition or income of the Company and its subsidiaries considered as one
enterprise.
l. 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.
m. 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.
n. 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
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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.
o. The Company and its subsidiaries have made all necessary filings
and taken all other necessary action so that, with respect to all of the
equipment and other property reflected in the consolidated balance sheets
of the Company and its consolidated subsidiaries as of September 30, 1994,
and with respect to all equipment and other property acquired by the
Company or a subsidiary since then, the interest of the Company or of the
appropriate subsidiary in such equipment or other property is free and
clear, in all material respects, of any claims, liens, encumbrances or
liabilities not also reflected in such consolidated balance sheets and that
the interest of the Company or of the appropriate subsidiary has, in all
material respects, been perfected so as not to be subordinate to the claim
of a purchaser in due course or any other bona fide purchaser.
p. The financing contracts reflected in the consolidated balance
sheets of the Company and its consolidated subsidiaries as of September 30,
1994, and the financing contracts entered into by the Company or a
subsidiary since then are, in all material respects, legal, valid and
binding obligations of the obligors enforceable in accordance with their
respective terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, or other laws relating to or affecting creditors'
rights generally or by general equity principles, including concepts of
commercial reasonableness; the obligors thereunder are, in all material
respects, in the good faith business judgment of the Company and except to
the extent reflected or stated in the Prospectus, financially capable of
performing their respective obligations thereunder, and any defaults in the
payments under all such contracts in the aggregate, at the date hereof, are
not of such amount that, were no more payments to be received under the
financing contracts in respect of
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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.
q. 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.
r. 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 II. 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, $150,000,000 aggregate principal
amount of the Securities.
B. Payment of the purchase price for, and delivery of the certificates
for, the Securities shall be made at the offices of the Company, 1850 North
Central Avenue, 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 March 6, 1995, or such other time not later than ten
business days after execution of the Pricing Agreement as shall be agreed upon
by the Underwriter and the Company (such time and date of payment and delivery
being herein called "Closing Time"). Payment shall be made to the Company by
wire transfer of immediately available funds against delivery to the Underwriter
of certificates for the Securities to be purchased by it. Certificates for the
Securities shall be in such denominations and registered in such names as the
Underwriter may
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request in writing at least two business days before Closing Time. The
certificates for the Securities will be made available for examination and
packaging by the Underwriter not later than 10:00 a.m., New York City time, on
the last business day prior to Closing Time at the offices of the Trustee.
Section III. Covenants of the Company. The Company covenants with the
Underwriter as follows:
A. The Company will notify the Underwriter immediately, and confirm
the notice in writing, (i) of the effectiveness of the Registration
Statement and any amendment thereto (including any post-effective
amendment), (ii) of the receipt of any comments from the Commission, (iii)
of any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for
additional information, and (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or
the initiation of any proceedings for that purpose. The Company will make
every reasonable effort to prevent the issuance of any such stop order and,
if any stop order is issued, to obtain the lifting thereof at the earliest
possible moment.
B. The Company will give the Underwriter notice of its intention to
file or prepare any amendment to the Registration Statement (including any
post-effective amendment) or any amendment or supplement to the Prospectus
(including any revised prospectus which the Company proposes for use by the
Underwriter in connection with the offering of the Securities which differs
from the prospectus on file at the Commission at the time the Registration
Statement becomes effective, whether or not such revised prospectus is
required to be filed pursuant to Rule 424(b) of the 1933 Act Regulations,
whether pursuant to the 1933 Act, the 1934 Act or otherwise), will furnish
the Underwriter with copies of any such amendment or supplement a
reasonable amount of time prior to such proposed filing or use, as the case
may be, and will not file any such amendment or supplement or use any such
prospectus to which the Underwriter or counsel for the Underwriter shall
object.
C. The Company has delivered to your counsel one signed copy and will
deliver to the Underwriter as many conformed copies of the Registration
Statement as originally filed and of each amendment thereto (including
exhibits filed therewith or incorporated by reference therein and documents
incorporated or deemed to be incorporated by reference therein) as the
Underwriter may reasonably request.
D. The Company will furnish to the Underwriter, from time to time
during the period when the Prospectus is required to be delivered under the
1933 Act or the 1934 Act, such number of copies of the Prospectus (as
amended or
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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 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
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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 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 IV. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement, including
(a) the printing and filing of the Registration Statement as originally filed
and of each amendment thereto, (b) the printing or reproducing of this
Agreement, the Pricing Agreement and the Indenture, (c) the preparation,
issuance and delivery of the certificates for the Securities to the Underwriter,
(d) the fees and disbursements of the Company's counsel and accountants, (e) the
qualification of the Securities under securities laws in accordance with the
provisions of Section 3(f) hereof, including filing fees and the reasonable fee
and disbursements of counsel for the Underwriter in connection therewith and in
connection with the preparation of the Blue Sky Survey and any Legal Investment
Survey, (f) the printing and delivery to the Underwriter of copies of the
Registration Statement as originally filed and of each amendment thereto, of
each preliminary prospectus, and of the Prospectus and any amendments or
supplements thereto, (g) the printing and delivery to the Underwriter of copies
of the Blue Sky Survey and any Legal Investment Survey, (h) any fees of any
rating agencies rating the Securities, (i) the fees and expenses of the Trustee,
including the fees and disbursements of counsel for the Trustee in connection
with the Indenture and the Securities and (j) any fees and expenses of a
depositary in connection with the holding of the Securities in book-entry form.
If this Agreement is terminated by the Underwriter in accordance with the
provisions of Section 5 or Section 9(a)(i) hereof, the Company shall reimburse
the Underwriter for its out-of-pocket expenses, including the reasonable fees
and disbursements of counsel for the Underwriter.
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Section V. 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.
B. At Closing Time the Underwriter shall have received:
1. The opinion, dated as of Closing Time, of William J. Hallinan,
Esq., Senior Vice President--General Counsel of the Company, in form
and substance satisfactory to counsel for the Underwriter, to the
effect that:
a. The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware.
b. 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.
c. 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).
d. 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
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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.
e. The authorized, issued and outstanding capital stock of the
Company is as set forth in 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.
f. This Agreement and the Pricing Agreement have each been
duly authorized, executed and delivered by the Company.
g. The Indenture has been duly and validly authorized,
executed and del ivered 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.
h. 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,
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<PAGE> 14
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.
i. 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.
j. The Indenture is qualified under the 1939 Act.
k. 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.
l. At the time the Registration Statement became effective and
at the Representation Date, the Registration Statement (other than
the financial statements, schedules and other financial and
statistical data included 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.
m. 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.
n. 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
14
<PAGE> 15
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.
o. 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.
p. 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.
q. To the best of such counsel's knowledge, the Company and
its subsidiaries own or possess or have obtained adequate
trademarks, servicemarks
15
<PAGE> 16
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.
r. 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)(l) of this Section.
3. In giving their opinions required by subsections (b)(l) 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
16
<PAGE> 17
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 Representation
Date, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectus
(other than the financial statements, schedules and other financial and
statistical data included or incorporated therein, as to which no
statement need be made), at the Representation Date (unless the term
"Prospectus" refers to a prospectus which has been provided to the
Underwriter by the Company for use in connection with the offering of
the Securities that differs from the Prospectus on file at the
Commission at the time the Registration Statement became effective, in
which case at the time it is first provided to the Underwriter for such
use) or at Closing Time, included an untrue statement of a material
fact or omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
C. At Closing Time there shall not have been, since the date hereof or
since the respective dates as of which information is given in the
Prospectus, any material adverse change in the condition, financial or
otherwise, of the Company and its subsidiaries considered as one
enterprise, or in the earnings, business affairs or business prospects of
the Company and its subsidiaries considered as one enterprise, whether or
not arising in the ordinary course of business, and the Underwriter shall
have received a certificate of the Chairman, President and Chief Executive
Officer or a Senior Vice President or a Vice President of the Company and
of the chief financial or chief accounting officer of the Company, dated as
of Closing Time, to the effect that (i) there has been no such material
adverse change, (ii) the representations and warranties in Section 1 hereof
are true and correct with the same force and effect as though expressly
made at and as of Closing Time, (iii) the Company has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to Closing Time, and (iv) no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been initiated or threatened by the
Commission. As used in this Section 5(c), the term "Prospectus" means the
Prospectus in the form first used to confirm sales of the Securities.
D. At the time of execution of this Agreement, the Underwriter shall
have received from Deloitte & Touche a letter dated such date, in form and
substance satisfactory
17
<PAGE> 18
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 a letter, dated as of Closing Time, to the effect that they reaffirm
the statements made in the letter furnished pursuant to subsection (d) of
this Section, except that the "specified date" referred to in such letter
shall be a date not more than five days prior to Closing Time.
F. All proceedings taken by the Company in connection with the
issuance and sale of the Securities as herein contemplated shall be
reasonably satisfactory in form and substance to the Underwriter and
counsel for the Underwriter.
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by the
Underwriter by notice to the Company at any time at or prior to Closing Time,
and such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof.
Section VI. 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:
a. against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact contained in any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) or
the omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
b. 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
18
<PAGE> 19
c. 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 statement or omission, to the extent that any such expense
is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by the
Underwriter expressly for use in the Registration Statement (or any amendment
thereto) or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
B. The Underwriter agrees to indemnify and hold harmless the Company, its
directors, each of its officers who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act, against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto) or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by the Underwriter expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary prospectus
or the Prospectus (or any amendment or supplement thereto).
C. Each indemnified party shall give as promptly as reasonably practicable
notice to each indemnifying party of any action commenced against it in respect
of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
which it may have otherwise than on account of this indemnity agreement, except
to the extent of any prejudice to such indemnifying party arising from the
failure to provide such notice. An indemnifying party may participate at its own
expense in the defense of such action. In no event shall the indemnifying
parties be liable for fees and expenses of more than one counsel (in addition to
any local counsel per jurisdiction) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances.
Section VII. Contribution. To provide for just and equitable contribution
in circumstances in which the indemnity
19
<PAGE> 20
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 underwriting discount appearing
on the cover page of the Prospectus bears to the initial public offering price
appearing thereon and the Company is responsible for the balance; provided,
however, that no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. Furthermore,
in no event shall the Underwriter be required to contribute an amount in excess
of the total underwriting discounts received by the Underwriter in connection
with the transactions contemplated by this Agreement. For purposes of this
Section, each person, if any, who controls an Underwriter within the meaning of
Section 15 of the 1933 Act shall have the same rights to contribution as such
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act shall have the same
rights to contribution as the Company.
Section VIII. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement and the Pricing Agreement, or contained in certificates of officers of
the Company submitted pursuant hereto, shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of the
Underwriter or controlling person, or by or on behalf of the Company, and shall
survive delivery of the Securities to the Underwriter.
Section IX. 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
20
<PAGE> 21
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 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 X. 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 Merrill Lynch, Pierce, Fenner & Smith
Incorporated, World Financial Center, North Tower, New York 10281, Attention:
Grant Kvalheim, Managing Director, facsimile: (212) 449-2760; 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 XI. 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 XII. Governing Law and Time. This Agreement and the Pricing
Agreement shall be governed by and construed in
21
<PAGE> 22
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.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement between
the Underwriter and the Company in accordance with its terms.
Very truly yours,
FINOVA CAPITAL CORPORATION
By: /s/ Samuel L. Eichenfield
-------------------------
Samuel L. Eichenfield
Chairman of the Board,
President and Chief
Executive Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By: /s/ Grant Kvalheim
------------------
Grant Kvalheim
Managing Director
22
<PAGE> 23
EXHIBIT A
$150,000,000
FINOVA CAPITAL CORPORATION
(a Delaware corporation)
Floating Rate Notes Due March 6, 1998
PRICING AGREEMENT
February 27, 1995
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center
North Tower
New York, New York 10281-1307
Dear Sirs:
Reference is made to the Underwriting Agreement, dated February 3, 1995
(the "Underwriting Agreement"), relating to the purchase by Merrill Lynch,
Pierce, Fenner & Smith Incorporated (the "Underwriter") of $150,000,000
aggregate principal amount of Floating Rate Notes Due March 6, 1998 (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
100% of the principal amount thereof.
2. The purchase price of the Securities to be paid by the
Underwriter shall be 99.6% of the principal amount thereof.
A-1
<PAGE> 24
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Underwriter and the Company in accordance with its terms.
Very truly yours,
FINOVA CAPITAL CORPORATION
By: /s/ Samuel L. Eichenfield
---------------------------------
Samuel L. Eichenfield
Chairman of the Board,
President and Chief
Executive Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By: /s/ Grant Kvalheim
---------------------------------
Grant Kvalheim
Managing Director
A-2
<PAGE> 1
EXHIBIT 4.1
OFFICERS' CERTIFICATE
We, Samuel L. Eichenfield and Robert J. Fitzsimmons, do hereby certify that
we are the duly elected Chairman of the Board, President and Chief Executive
Officer and Senior Vice President-Treasurer, respectively, of FINOVA Capital
Corporation, a Delaware corporation (formerly known as Greyhound Financial
Corporation) (the "Company"). We further certify that, pursuant to resolutions
of the Board of Directors of the Company, duly adopted by unanimous written
consent on July 31, 1992 and March 25, 1994 and resolutions of the Pricing
Committee thereof duly adopted by unanimous written consent on February 27,
1995, a series of the Company's Debt Securities, entitled "Floating Rate Notes
Due March 6, 1998", is hereby established pursuant to Section 2.02 of the
Indenture dated as of September 1, 1992 (the "Indenture") between the Company
and The Chase Manhattan Bank, N.A.; and that said series shall have the
following terms and provisions (unless otherwise defined herein, all capitalized
terms used herein shall have the same meanings assigned to them in the
Indenture);
1. the title of these securities, which shall constitute a separate
series of Securities under the Indenture, shall be the "Floating Rate Notes
Due March 6, 1998" (the "Notes");
2. the aggregate principal amount of Notes which may be outstanding is
$150,000,000 (except as otherwise provided in Section 2.06, 2.08 or 13.05
of the Indenture);
3. the principal amount of the Notes is payable on March 6, 1998;
4. interest on the Notes shall accrue at a floating rate of interest
of .25% above LIBOR as more fully described in the attached form of Note.
The Notes will bear interest from March 6, 1995, and such interest will be
payable quarterly in arrears on March 6, June 6, September 6, and December
6 of each year, commencing on June 6, 1995 (each, an "Interest Payment
Date"). If any Interest Payment Date is not a Business Day, such Interest
Payment Date will be postponed to the next day that is a Business Day.
Interest on the Notes will be calculated on the basis of the actual number
of days in the applicable interest period divided by 360.
5. principal of and interest on the Notes will be payable in
immediately available funds at the office of the Trustee in The City of New
York designated for such purpose.
<PAGE> 2
6. the Notes are not redeemable at the option of the Company prior to
the Stated Maturity of the principal thereof and will not be subject to any
sinking fund.
7. the entire principal amount of the Notes shall initially be issued
in global form, for which The Depository Trust Company (the "Depositary")
shall be the Depositary; the global Security representing the Notes shall
only be exchangeable for Notes in definitive form pursuant to and in
accordance with the terms of Sections 2.05 and 2.08 of the Indenture.
2
<PAGE> 3
The certificate evidencing the Notes shall be substantially in the form of
Exhibit A attached hereto.
IN WITNESS WHEREOF, each of the undersigned has hereunto set his hand and
caused to be affixed hereto the seal of the Company as of this 6th day of March,
1995.
/s/ Samuel L. Eichenfield
----------------------------------
Samuel L. Eichenfield
Chairman of the Board, President
and Chief Executive Officer
[SEAL]
/s/ Robert J. Fitzsimmons
----------------------------------
Robert J. Fitzsimmons
Senior Vice President-Treasurer
<PAGE> 1
EXHIBIT 4.2
FACE 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. 001 PRINCIPAL AMOUNT
$150,000,000.00
CUSIP No. 318074 AC5
FINOVA CAPITAL CORPORATION
FLOATING RATE NOTES DUE MARCH 6, 1998
FINOVA CAPITAL CORPORATION, a corporation duly organized and existing under
the laws of the State of Delaware (formerly Greyhound Financial Corporation)
(the "Company" or the "Issuer," which term includes any successor corporation
under the Indenture hereinafter referred to), for value received, hereby
promises to pay to CEDE & CO., or its registered assigns, the principal sum of
ONE HUNDRED FIFTY MILLION ($150,000,000) DOLLARS on March 6, 1998 (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 March 6, 1995, payable quarterly in arrears on March 6, June
6, September 6 and December 6 of each year, commencing on June 6, 1995 (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 March 6, 1995 to, but excluding, June 6, 1995, and thereafter each
successive period from, and including an Interest Payment Date to, but
excluding, the next
<PAGE> 2
Interest Payment Date. The interest payment at maturity will include interest
accrued to but excluding the Maturity Date and will be payable to the person to
whom principal is payable.
The rate of interest for each Interest Period shall be .25% per annum above
the London interbank offered rates ("LIBOR") for three-month U.S. dollar
deposits determined two London Business Days prior to the commencement of each
Interest Period determined by the Calculation Agent in accordance with the
following provisions:
(i) On each Interest Determination Date, LIBOR will be the rate for
three-month deposits in U.S. dollars commencing on the second London
Business Day immediately following such Interest Determination Date, that
appears on Telerate Page 3750 as of 11:00 a.m., London time, on such
Interest Determination Date. "Telerate Page 3750" means the display on the
Dow Jones Telerate Service on such page (or such other page as may replace
such page on that service or such other service or services as may be
nominated by the British Bankers' Association for the purpose of displaying
London interbank offered rates for U.S. dollars). If no rate appears on
Telerate Page 3750, LIBOR in respect of such Interest Determination Date
will be determined as if the parties had specified the rate described in
(ii) below.
(ii) With respect to an Interest Determination Date on which no rate
appears on Telerate Page 3750, LIBOR will be determined on the basis of the
rates at which three-month deposits in U.S. dollars, commencing on the
second London Business Day immediately following such Interest
Determination Date, in a principal amount that is representative for a
single transaction in such market at such time, are offered at
approximately 11:00 a.m., London time, on such Interest Determination Date
by four major banks in the London interbank market selected by the
Calculation Agent to prime banks in the London interbank market. The
Calculation Agent will request the principal London office of each of such
banks to provide a quotation of its rate. If at least two such quotations
are provided, LIBOR in respect of such Interest Determination Date will be
the arithmetic mean (rounded if necessary to the nearest one
hundred-thousandth of a percentage point, with five one-millionths of a
percentage point rounded upward (e.g. 9.876545% (or .09876545) being
rounded to 9.87655% (or .0987655)) of such quotations. If fewer than two
quotations are provided, LIBOR in respect of such Interest Determination
Date will be the arithmetic mean (rounded as aforesaid) of the rates quoted
by three major banks in The City of New York (selected by the Calculation
Agent) at approximately 11:00 a.m., New York City time, on such Interest
Determination Date for loans in U.S. dollars to leading European banks,
commencing on the second London Business Day immediately following such
Interest
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<PAGE> 3
Determination Date and in a principal amount that is representative for a
single transaction in such market at such time; provided, however, that if
the banks selected as aforesaid by the Calculation Agent are not quoting as
set forth above, LIBOR will by LIBOR in effect on such Interest
Determination Date.
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.
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<PAGE> 4
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 March 6, 1998" (the "Notes").
Unless the certificate of authentication hereon has been executed by the
Trustee under the Indenture by the manual signature of one of its authorized
signatories, this Note shall not be entitled to any benefit under the Indenture
or be valid or obligatory for any purpose.
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<PAGE> 5
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: March 6, 1995
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
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<PAGE> 6
Reverse
FINOVA CAPITAL CORPORATION
FLOATING RATE NOTES DUE MARCH 6, 1998
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
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<PAGE> 7
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.
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<PAGE> 8
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.
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<PAGE> 9
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.
9
