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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C, 20549
---------------------
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): June 5, 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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1.1 Underwriting and Pricing Agreement, each dated June 5, 1995,
between the Registrant and Morgan Stanley & Co. Incorporated.
4.1 Officers' Certificate, dated June 9, 1995, without
exhibits, 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
6.45% Notes due June 1, 2000 (the "Notes").
4.2 Specimen certificate evidencing the Notes.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
FINOVA Capital CORPORATION
(Registrant)
Dated: June 9, 1995 By: /s/ Vera Ciancola
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Vera Ciancola - Assistant Secretary
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EXHIBIT 1.1
EXECUTION COPY
$125,000,000
FINOVA CAPITAL CORPORATION
(a Delaware corporation)
6.45% Notes Due June 1, 2000
UNDERWRITING AGREEMENT
June 5, 1995
MORGAN STANLEY & CO. INCORPORATED
1221 Avenue of the Americas
New York, New York 10220
Dear Sirs:
FINOVA Capital Corporation (formerly known as Greyhound Financial
Corporation), a Delaware corporation (the "Company"), confirms its agreement
with Morgan Stanley & Co. Incorporated (the "Underwriter") with respect to the
sale by the Company and the purchase by the Underwriter of $125,000,000
aggregate principal amount of the Company's 6.45% Notes Due June 1, 2000 (the
"Securities"). The Securities are to be issued pursuant to an indenture dated
as of September 1, 1992 (the "Indenture") between the Company and The Chase
Manhattan Bank, N.A., as trustee (the "Trustee").
Prior to the purchase and public offering of the Securities by the
Underwriter, the Company and the Underwriter shall enter into an agreement
substantially in the form of Exhibit A hereto (the "Pricing Agreement"). The
Pricing Agreement may take the form of an exchange of any standard form of
written telecommunication between the Company and the Underwriter and shall
specify such applicable information as is indicated in Exhibit A hereto. The
offering of the Securities will be governed by this Agreement, as supplemented
by the Pricing Agreement. From and after the date of the execution and
delivery of the Pricing Agreement, this Agreement shall be deemed to
incorporate the Pricing Agreement.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 33-52845) for the
registration of $1,000,000,000 of its Senior Debt Securities, including the
Securities, and the offering thereof from time to time under the Securities Act
of 1933, as amended (the "1933 Act"), has filed such amendments thereto, if any,
as may have been required to the date hereof, and will file such additional
amendments thereto and such amended
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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, and the prospectus constituting a part thereof (including
in each case all documents, if any, incorporated or deemed to be incorporated by
reference therein pursuant to the 1933 Act, the Securities Exchange Act of 1934,
as amended (the "1934 Act"), or otherwise, are hereinafter referred to as the
"Registration Statement" and the "Prospectus," respectively, except that if any
revised prospectus shall be provided to the Underwriter by the Company for use
in connection with the offering of the Securities which differs from the
Prospectus on file at the Commission at the time the Registration Statement
became effective (whether or not such revised prospectus is required to be filed
by the Company pursuant to Rule 424(b) of the 1933 Act Regulations), the term
"Prospectus" shall refer to such revised prospectus from and after the time it
is first provided to the Underwriter for such use. All references in this
Agreement to financial statements and schedules and other information which is
"contained," "included" or "stated" in the Registration Statement or the
Prospectus (and all other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other information which
are or are deemed to be incorporated by reference in the Registration Statement
or the Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement or the Prospectus shall
be deemed to mean and include the filing of any documents under the 1934 Act
after the date of this Agreement which are or are deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as the case may be.
The Company understands that the Underwriter proposes to make a public
offering of the Securities as soon as the Underwriter deems advisable after the
Pricing Agreement has been executed and delivered.
Section 1. Representations and Warranties.
(a) The Company represents and warrants to the Underwriter as of the
date hereof, as of the date of the Pricing Agreement (such latter date being
hereinafter referred to as the "Representation Date") and as of the Closing
Time (as defined in Section 2) as follows:
(i) At the time the Registration Statement became effective, at
the date on which the Company filed its Annual Report on Form 10-K for the year
ended December 31, 1994 (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
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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
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
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consistent with the audited financial statements of the Company set forth
therein, the assumptions on which such unaudited pro forma consolidated
financial statements have been prepared are reasonable and are set forth in the
notes thereto, and such unaudited pro forma consolidated financial statements
have been prepared, and the pro forma adjustments set forth therein have been
applied, in accordance with the applicable accounting requirements of the 1933
Act and the 1933 Act Regulations (including, without limitation, Regulation S-X
promulgated by the Commission), and such pro forma adjustments have been
properly applied to the historical amounts in the compilation of such
statements.
(v) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus, except as otherwise stated
therein or contemplated thereby, (A) there has been no material adverse change
in the condition, financial or otherwise, of the Company and its subsidiaries
considered as one enterprise or in the earnings, affairs or business prospects
of the Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, and (B) there have been no material
transactions entered into by the Company or any of its subsidiaries other than
those in the ordinary course of business.
(vi) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware with corporate power and authority to own, lease and operate its
properties and conduct its business as described in the Registration Statement;
and the Company is duly qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which such qualification is
required or appropriate, except where the failure of the Company to so qualify,
in the aggregate, will not have a material adverse effect on the consolidated
financial condition or combined operations of the Company and its Subsidiaries
or of the Company and its Restricted Subsidiaries (as those terms are defined in
the Indenture).
(vii) Each subsidiary of the Company has been duly incorporated and
is validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and authority to own,
lease and operate its properties and conduct its business as described in the
Registration Statement and is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which such
qualification is required or appropriate, except where the failure of the
subsidiaries to so qualify, in the aggregate, will not have a material adverse
effect on the consolidated financial condition or combined operations of the
Company and its Subsidiaries or of the Company and its Restricted Subsidiaries;
all of the issued and outstanding capital
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stock of each such subsidiary has been duly authorized and validly issued and is
fully paid and nonassessable; and all the capital stock of each such subsidiary
is owned by the Company or its affiliates, directly or through subsidiaries,
free and clear of any mortgage, pledge, lien, encumbrance, claim or equity.
(viii) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Prospectus and the shares of issued and
outstanding Common Stock set forth thereunder have been duly authorized and
validly issued and are fully paid and nonassessable and The FINOVA Group Inc.
("FINOVA") owns directly or indirectly all of the outstanding shares of the
Common Stock, which Common Stock constitutes all of the issued and outstanding
capital stock of the Company, free and clear of any claims, liens, encumbrances
or liabilities.
(ix) Neither the Company nor any of its subsidiaries is in
violation of its charter or in default in the performance or observance of any
obligations, agreements, covenants or conditions, which alone or in the
aggregate are material, contained in any contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments, which alone or in the aggregate
are material, to which it is a party or by which it or any of them or their
properties may be bound; and the execution, delivery and performance of this
Agreement, the Indenture and the consummation of the transactions contemplated
herein and therein have been duly authorized by all necessary corporate action
and will not conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries pursuant to any
material contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which the Company or any of its subsidiaries is a party or by
which it or any of them may be bound or to which any of the property or assets
of the Company or any of its subsidiaries is subject, nor will such action
result in any violation of the provisions of the charter or by-laws of the
Company or, to the best of its knowledge, any law, administrative regulation or
administrative or court order or decree; and no consent, approval,
authorization, order or decree of any court or governmental agency or body is
required for the consummation by the Company of the transactions contemplated by
this Agreement, except such as may be required under the 1933 Act, the 1939 Act,
the 1933 Act Regulations or state securities or Blue Sky laws in connection with
the purchase and distribution of the Securities by the Underwriter.
(x) The Company and its subsidiaries own or possess or have
obtained, can obtain on reasonable terms or are in the process of obtaining, all
material governmental licenses, permits, consents, orders, approvals and other
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authorizations necessary to lease or own, as the case may be, and to operate
their respective properties and to carry on their respective businesses as
presently conducted, except such as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution of the Securities
by you.
(xi) The Company and its subsidiaries own or possess adequate
trademarks, service marks and trade names necessary to conduct the business now
operated by them, and neither the Company nor any of its subsidiaries has
received any notice of infringement of or conflict with asserted rights of
others with respect to any trademarks, servicemarks or trade names which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would reasonably be expected to materially adversely affect the conduct
of the business, operations, financial condition or income of the Company and
its subsidiaries considered as one enterprise.
(xii) There is no action, suit or proceeding before or by any court
or governmental agency or body, domestic or foreign, now pending, or, to the
actual knowledge of the Company, threatened against or affecting, the Company or
any of its subsidiaries, which would reasonably be expected to result in any
material adverse change in the condition, financial or otherwise, of the Company
and its subsidiaries considered as one enterprise, or in the business prospects
of the Company and its subsidiaries considered as one enterprise or might
materially and adversely affect the consummation of this Agreement; and there
are no material contracts or documents of the Company or any of its subsidiaries
which are required to be filed as exhibits to the Registration Statement by the
1933 Act or by the 1933 Act Regulations which have not been so filed.
(xiii) No material labor dispute with the employees of the Company
or any of its subsidiaries exists or, to the knowledge of the Company, is
imminent; and the Company is not aware of any existing or imminent labor
disturbance by the employees of any of its principal suppliers, manufacturers or
contractors which would be expected to result in any material adverse change in
the condition, financial or otherwise, or in the earnings, affairs or business
prospects of the Company and its subsidiaries considered as one enterprise.
(xiv) The Securities have been duly authorized for issuance and
sale pursuant to this Agreement and, when issued, authenticated and delivered
pursuant to the provisions of this Agreement and the Indenture against payment
of the consideration set forth in the Pricing Agreement, the Securities will
constitute valid and legally binding obligations of the Company enforceable in
accordance with their terms, except as enforcement thereof may be
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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 March 31, 1995, 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 March 31, 1995,
and the financing contracts entered into by the Company or a subsidiary since
then are, in all material respects, legal, valid and binding obligations of the
obligors enforceable in accordance with their respective terms, except as
enforcement thereof may be limited by bankruptcy, insolvency, or other laws
relating to or affecting creditors' rights generally or by general equity
principles, including concepts of commercial reasonableness; the obligors
thereunder are, in all material respects, in the good faith business judgment of
the Company and except to the extent reflected or stated in the Prospectus,
financially capable of performing their respective obligations thereunder, and
any defaults in the payments under all such contracts in the aggregate, at the
date hereof, are not of such amount that, were no more payments to be received
under the financing contracts in respect of which such defaults exist, and after
considering estimated collateral values to be recovered, the consolidated
financial condition or operations of the Company and its consolidated
subsidiaries, or of the Company and the
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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, $125,000,000
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 June 9, 1995, or such other time not later
than ten business days after execution of the Pricing Agreement as shall be
agreed upon by the Underwriter and the Company (such time and date of payment
and delivery being herein called "Closing Time"). Payment shall be made to the
Company by wire transfer of immediately available funds against delivery to the
Underwriter of certificates for the Securities to be purchased by it.
Certificates for the Securities shall be in such denominations and registered in
such names as the Underwriter may request in writing at least two business days
before Closing Time. The certificates for the Securities will be made available
for examination and packaging by the Underwriter not later than 10:00
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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.
(b) The Company will give the Underwriter notice of its intention to
file or prepare any amendment to the Registration Statement (including any
post-effective amendment) or any amendment or supplement to the Prospectus
(including any revised prospectus which the Company proposes for use by the
Underwriter in connection with the offering of the Securities which differs from
the prospectus on file at the Commission at the time the Registration Statement
becomes effective, whether or not such revised prospectus is required to be
filed pursuant to Rule 424(b) of the 1933 Act Regulations, whether pursuant to
the 1933 Act, the 1934 Act or otherwise), will furnish the Underwriter with
copies of any such amendment or supplement a reasonable amount of time prior to
such proposed filing or use, as the case may be, and will not file any such
amendment or supplement or use any such prospectus to which the Underwriter or
counsel for the Underwriter shall object.
(c) The Company has delivered to your counsel one signed copy and will
deliver to the Underwriter as many conformed copies of the Registration
Statement as originally filed and of each amendment thereto (including exhibits
filed therewith or incorporated by reference therein and documents incorporated
or deemed to be incorporated by reference therein) as the Underwriter may
reasonably request.
(d) The Company will furnish to the Underwriter, from time to time
during the period when the Prospectus is required to be delivered under the 1933
Act or the 1934 Act, such number of copies of the Prospectus (as amended or
supplemented) as the Underwriter may reasonably request for the purposes
contemplated by the 1933 Act or the 1934 Act or
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the respective applicable rules and regulations of the Commission thereunder.
(e) If any event shall occur as a result of which it is necessary, in
the opinion of counsel for the Underwriter, to amend or supplement the
Prospectus in order to make the Prospectus not misleading in the light of the
circumstances existing at the time it is required to be delivered to a
purchaser, the Company will forthwith amend or supplement the Prospectus (in
form and substance satisfactory to counsel for the Underwriter) so that, as so
amended or supplemented, the Prospectus will not include an untrue statement of
a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances existing at the time it is
required to be delivered to a purchaser, not misleading, and the Company will
furnish to the Underwriter a reasonable number of copies of such amendment or
supplement.
(f) The Company will endeavor, in cooperation with the Underwriter, to
qualify the Securities for offering and sale under the applicable securities
laws of such states and other jurisdictions of the United States as the
Underwriter may designate; provided, however, that the Company shall not be
obligated to file any general consent to service of process or to qualify as a
foreign corporation in any jurisdiction in which it is not so qualified. In
each jurisdiction in which the Securities have been so qualified, the Company
will file such statements and reports as may be required by the laws of such
jurisdiction to continue such qualifications in effect for a period of not less
than one year from the effective date of this Agreement. The Company will
promptly advise the Underwriter of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Securities for sale in any state or jurisdiction or the initiating or
threatening of any proceeding for such purpose.
(g) The Company will make generally available to its security holders
as soon as practicable, but not later than 60 days after the close of the period
covered thereby, an earnings statement (in form complying with the provisions of
Rule 158 of the 1933 Act Regulations) covering a twelve month period beginning
not later than the first day of the Company's fiscal quarter next following the
"effective date" (as defined in said Rule 158) of the Registration Statement.
(h) The Company will use the net proceeds received by it from the sale
of the Securities in the manner specified in the Prospectus under the caption
"Use of Proceeds."
(i) Immediately following the execution of the Pricing Agreement, the
Company will prepare, and file or transmit for filing with the Commission in
accordance with Rule 424(b) of the 1933 Act Regulations, copies of a supplement
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to the Prospectus containing the terms of the Securities and such other
information as the Underwriter and the Company deem appropriate.
(j) From the date of this Agreement until Closing Time, the Company
will not, without the prior written consent of the Underwriter, directly or
indirectly, sell, offer to sell, contract to sell, or otherwise dispose of, or
announce the offering of, any Securities or securities similar to the
Securities, or any securities convertible into or exchangeable or exercisable
for any Securities or any such similar securities, except for Securities sold
to the Underwriter pursuant to this Agreement.
(k) The Company, during the period when the Prospectus is required to
be delivered under the 1933 Act or the 1934 Act, will file all documents
required to be filed with the Commission pursuant to Section 13, 14 or 15 of
the 1934 Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
Section 4. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement, including
(a) the printing and filing of the Registration Statement as originally filed
and of each amendment thereto, (b) the printing or reproducing of this
Agreement, the Pricing Agreement and the Indenture, (c) the preparation,
issuance and delivery of the certificates for the Securities to the Underwriter,
(d) the fees and disbursements of the Company's counsel and accountants, (e) the
qualification of the Securities under securities laws in accordance with the
provisions of Section 3(f) hereof, including filing fees and the reasonable fee
and disbursements of counsel for the Underwriter in connection therewith and in
connection with the preparation of the Blue Sky Survey and any Legal Investment
Survey, (f) the printing and delivery to the Underwriter of copies of the
Registration Statement as originally filed and of each amendment thereto, of
each preliminary prospectus, and of the Prospectus and any amendments or
supplements thereto, (g) the printing and delivery to the Underwriter of copies
of the Blue Sky Survey and any Legal Investment Survey, (h) any fees of any
rating agencies rating the Securities, (i) the fees and expenses of the Trustee,
including the fees and disbursements of counsel for the Trustee in connection
with the Indenture and the Securities and (j) any fees and expenses of a
depositary in connection with the holding of the Securities in book-entry form.
If this Agreement is terminated by the Underwriter in accordance with
the provisions of Section 5 or Section 9(a)(i) hereof, the Company shall
reimburse the Underwriter for its out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the Underwriter.
Section 5. Conditions of Underwriter's Obligations. The obligations
of the Underwriter hereunder are subject to the
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accuracy of the representations and warranties of the Company herein contained,
to the performance by the Company of its obligations hereunder, and to the
following further conditions:
(a) At Closing Time no stop order suspending the
effectiveness of the Registration Statement shall have been issued
under the 1933 Act or proceedings therefor initiated or threatened by
the Commission. The supplement to the Prospectus referred to in
Section 3(i) of this Agreement shall have been transmitted to the
Commission for filing pursuant to Rule 424(b) of the 1933 Act
Regulations within the prescribed time period, and prior to Closing
Time the Company shall have provided evidence satisfactory to the
Underwriter of such timely filing.
(b) At Closing Time the Underwriter shall have received:
(1) The opinion, dated as of Closing Time, of
William J. Hallinan, Esq., Senior Vice President -- General
Counsel of the Company, in form and substance satisfactory to
counsel for the Underwriter, to the effect that:
(i) The Company has been duly
incorporated and is validly existing as a corporation
in good standing under the laws of the State of
Delaware.
(ii) The Company has corporate power and
corporate authority to own, lease and operate its
properties and conduct its business as described in
the Registration Statement.
(iii) The Company is duly qualified
as a foreign corporation to transact business and is
in good standing in each jurisdiction in which such
qualification is required, except where the failure
of the Company to so qualify, in the aggregate, will
not have a material adverse effect on the
consolidated financial condition or combined
operations of the Company and its Subsidiaries or of
the Company and its Restricted Subsidiaries (as those
terms are defined in the Indenture).
(iv) Each subsidiary of the Company has
been duly incorporated and is validly existing as a
corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power
and corporate authority to own, lease and operate its
properties and conduct its business as described in
the Registration Statement, and is duly qualified as a
foreign corporation to transact business and is in
good standing in each jurisdiction in which such
qualification is
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required, except where the failure to so qualify, in
the aggregate, will not have a material adverse
effect on the consolidated financial condition or
combined operations of the Company and its
Subsidiaries or of the Company and its Restricted
Subsidiaries; and all of the issued and outstanding
capital stock of each such subsidiary has been duly
authorized and validly issued and is fully paid and
nonassessable, and all of such capital stock is owned
by the Company or its affiliates, free and clear of
any mortgage, pledge, lien, encumbrance or claim.
(v) The authorized, issued and
outstanding capital stock of the Company is as set
forth in the Prospectus (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,
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<PAGE> 14
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.
(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.
(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
14
<PAGE> 15
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.
(xv) No consent, approval, authorization,
or order of any court or governmental authority or
agency is required in connection with the sale of the
Securities, except such as may be required under the
1933 Act or the 1933 Act Regulations or state
securities laws; and the execution and delivery of
this Agreement and the Pricing Agreement and the
Indenture and the consummation of the transactions
contemplated herein and therein did not and will not
conflict with or constitute a breach of, or default
under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or
assets of the Company or any subsidiary pursuant to,
any contract, indenture, mortgage, loan agreement,
note, lease or other instrument known to such counsel
and to which the Company or any of its subsidiaries
is a party or by which it or any of them may be bound
or to which any of the property or assets of the
Company or any of its subsidiaries is subject, or any
law, administrative regulation or administrative or
court decree known to such counsel to be applicable
to the Company of any court or governmental agency,
authority or body or any arbitrator having
jurisdiction over the Company; nor will such action
result in any violation of the provisions of the
charter or by-laws of the Company.
(xvi) Each document, if any, filed
pursuant to the 1934 Act (other than the financial
statements, schedules and other financial and
statistical data included therein, as to which no
opinion need be rendered) and incorporated by
reference in the Prospectus, complied when filed as
to form in all material respects with the 1934 Act
and the 1934 Act Regulations thereunder.
(xvii) To the best of such counsel's
knowledge, the Company and its subsidiaries own or
possess or have obtained adequate trademarks,
servicemarks and trade names necessary to conduct the
business now operated by them, and neither the
Company nor
15
<PAGE> 16
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.
(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)(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 the Registration Statement (other than
the financial statements, schedules and other financial and
16
<PAGE> 17
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 statement need be made), at the
Representation Date (unless the term "Prospectus" refers to a
prospectus which has been provided to the Underwriter by the
Company for use in connection with the offering of the
Securities that differs from the Prospectus on file at the
Commission at the time the Registration Statement became
effective, in which case at the time it is first provided to
the Underwriter for such use) or at Closing Time, included an
untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading.
(c) At Closing Time there shall not have been, since the date
hereof or since the respective dates as of which information is given in the
Prospectus, any material adverse change in the condition, financial or
otherwise, of the Company and its subsidiaries considered as one enterprise, or
in the earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, and the Underwriter shall have received a
certificate of the Chairman, President and Chief Executive Officer or a Senior
Vice President or a Vice President of the Company and of the chief financial or
chief accounting officer of the Company, dated as of Closing Time, to the
effect that (i) there has been no such material adverse change, (ii) the
representations and warranties in Section 1 hereof are true and correct with
the same force and effect as though expressly made at and as of Closing Time,
(iii) the Company has complied with all agreements and satisfied all conditions
on its part to be performed or satisfied at or prior to Closing Time, and (iv)
no stop order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been initiated or
threatened by the Commission. As used in this Section 5(c), the term
"Prospectus" means the Prospectus in the form first used to confirm sales of
the Securities.
(d) At the time of execution of this Agreement, the
Underwriter shall have received from Deloitte & Touche a letter dated such date,
in form and substance satisfactory to the Underwriter, and substantially in the
same form as
17
<PAGE> 18
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 three
days prior to Closing Time.
(f) All proceedings taken by the Company in connection
with the issuance and sale of the Securities as herein contemplated
shall be reasonably satisfactory in form and substance to the
Underwriter and counsel for the Underwriter.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the Underwriter by notice to the Company at any time at or prior
to Closing Time, and such termination shall be without liability of any party
to any other party except as provided in Section 4 hereof.
Section 6. Indemnification.
(a) The Company agrees to indemnify and hold harmless the Underwriter
and each person, if any, who controls the Underwriter within the meaning of
Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement (or any amendment thereto), or the omission
or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) or the omission or
alleged omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, if such settlement is effected with the written consent of
the Company; and
18
<PAGE> 19
(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 statement or
omission, to the extent that any such expense is not paid under (i) or
(ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by the
Underwriter expressly for use in the Registration Statement (or any amendment
thereto) or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(b) The Underwriter agrees to indemnify and hold harmless the Company,
its directors, each of its officers who signed the Registration Statement, and
each person, if any, who controls the Company within the meaning of Section 15
of the 1933 Act, against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto) or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by the Underwriter expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary prospectus
or the Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give as promptly as reasonably
practicable notice to each indemnifying party of any action commenced against
it in respect of which indemnity may be sought hereunder, but failure to so
notify an indemnifying party shall not relieve such indemnifying party from any
liability which it may have otherwise than on account of this indemnity
agreement, except to the extent of any prejudice to such indemnifying party
arising from the failure to provide such notice. An indemnifying party may
participate at its own expense in the defense of such action. In no event
shall the indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to any local counsel per jurisdiction) separate from their
own counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances.
Section 7. Contribution. To provide for just and equitable
contribution in circumstances in which the indemnity agreement
19
<PAGE> 20
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 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement and the Pricing Agreement, or contained in certificates of officers
of the Company submitted pursuant hereto, shall remain operative and in full
force and effect, regardless of any investigation made by or on behalf of the
Underwriter or controlling person, or by or on behalf of the Company, and shall
survive delivery of the Securities to the Underwriter.
Section 9. Termination of Agreement.
(a) The Underwriter may terminate this Agreement, immediately upon
notice to the Company, at any time at or prior to Closing Time (i) if there has
been, since the date of this Agreement or since the respective dates as of
which information is given in the Prospectus, any material adverse change in
the condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
if there has occurred any outbreak or escalation of hostilities or other
calamity or crisis the effect of which on the financial markets of the United
States is such as to make it, in the reasonable judgment of the Underwriter,
impracticable to market the Securities or enforce contracts for the sale of the
Securities, or (iii) if trading in any securities of the Company has been
suspended by the Commission or a national securities exchange, or if trading
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 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 Morgan Stanley & Co. Incorporated, 1221 Avenue
of the Americas, New York, New York 10020, Attention: Richard C. Schwartz,
Principal, facsimile: (212) 944-0752; 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
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.
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: /s/ Bruno A. Marszowski
--------------------------
Name: Bruno A. Marszowski
Title: Senior Vice President-
Controller
CONFIRMED AND ACCEPTED,
as of the date first above written:
MORGAN STANLEY & CO. INCORPORATED
By: /s/ Rick Schwartz
--------------------------
Name: Rick Schwartz
Title: Principal
23
<PAGE> 24
EXHIBIT A
$125,000,000
FINOVA CAPITAL CORPORATION
(a Delaware corporation)
6.45% Notes Due June 1, 2000
PRICING AGREEMENT
June 5, 1995
MORGAN STANLEY & CO. INCORPORATED
1221 Avenue of the Americas
New York, New York 10020
Dear Sirs:
Reference is made to the Underwriting Agreement, dated June 5, 1995
(the "Underwriting Agreement"), relating to the purchase by Morgan Stanley &
Co. Incorporated (the "Underwriter") of $125,000,000 aggregate principal amount
of 6.45% Notes Due June 1, 2000 (the "Securities") of FINOVA Capital
Corporation (the "Company").
Pursuant to Section 2 of the Underwriting Agreement, the Company
agrees with the Underwriter as follows:
1. The initial public offering price of the Securities shall be
99.834% of the principal amount thereof.
2. The purchase price of the Securities to be paid by the
Underwriter shall be 99.334% 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: /s/ Bruno A. Marszowski
------------------------
Name: Bruno A. Marszowski
Title: Senior Vice President-Controller
CONFIRMED AND ACCEPTED,
as of the date first above written:
MORGAN STANLEY & CO. INCORPORATED
By: /s/ Rick Schwartz
----------------------------
Name: Rick Schwartz
Title: Principal
A-2
<PAGE> 1
Exhibit 4.1
OFFICERS' CERTIFICATE
We, Bruno A. Marszowski and Meilee Smythe, do hereby certify that
we are the duly elected Senior Vice President-Controller and Vice President-
Assistant 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 on June 5, 1995, a series of the Company's Debt Securities, entitled
"6.45% Notes Due June 1, 2000", is hereby established pursuant to Section 2.02
of the Indenture dated as of September 1, 1992 (the "Indenture") between the
Company and The Chase Manhattan Bank, N.A.; and that said series shall have the
following terms and provisions (unless otherwise defined herein, all
capitalized terms used herein shall have the same meanings assigned to them in
the Indenture);
1. the title of these securities, which shall constitute
a separate series of Securities under the Indenture, shall be the
"6.45% Notes Due June 1, 2000" (the "Notes");
2. the aggregate principal amount of Notes which may be
outstanding is $125,000,000 (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 June
1, 2000;
4. interest on the Notes shall accrue at a fixed rate as
more fully described in the attached form of Note. The Notes will
bear interest from June 9, 1995, and such interest will be payable
semi-annually in arrears on June 1 and December 1 of each year,
commencing on December 1, 1995 (each, an "Interest Payment Date").
The Record Dates with respect to the Notes shall be each May 16 and
November 16, respectively, whether or not a Business Day, preceding
the relevant Interst 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 9th day of
June, 1995.
/s/ Bruno A. Marszowski
-------------------------------
Name: Bruno A. Marszowski
Title: Senior Vice President-
Controller
[SEAL]
/s/ Meilee Smythe
-------------------------------
Name: Meilee Smythe
Title: Vice President-
Assistant Treasurer
3
<PAGE> 1
Exhibit 4.2
FIXED RATE GLOBAL NOTE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
REGISTERED REGISTERED
No. 001 PRINCIPAL AMOUNT
$125,000,000.00
CUSIP No. 318074 AD3
FINOVA CAPITAL CORPORATION
6.45% NOTES DUE JUNE 1, 2000
FINOVA CAPITAL CORPORATION, a corporation duly organized and existing
under the laws of the State of Delaware (formerly Greyhound Financial
Corporation) (the "Company" or the "Issuer," which term includes any successor
corporation under the Indenture hereinafter referred to), for value received,
hereby promises to pay to CEDE & CO., or its registered assigns, the principal
sum of ONE HUNDRED TWENTY-FIVE MILLION ($125,000,000) DOLLARS on June 1, 2000
(the "Maturity Date") and to pay interest thereon at the rate per annum
described below until the principal hereof is paid or duly made available for
payment. This Note will bear interest from June 9, 1995, at 6.45% per annum,
payable semi-annually on June 1 and December 1 in each year, commencing on
December 1, 1995 (each, an "Interest Payment Date"), to Holders of record on
the preceding May 16 and November 16, respectively (each, a "Record Date").
Interest will be calculated on the basis of a 360-day year of twelve 30-day
months. If any Interest Payment Date would otherwise be a day that is not a
Business Day, such Interest Payment Date will be postponed to the next day that
is a Business Day, and such interest payment will have the same force and
effect as if made on such Maturity Date or Interest Payment Date, as the case
may be, and no interest shall accrue with respect to such payment for the
period from and after such Maturity Date or Interest Payment Date. As used
herein, "Business Day" means any day that is not a Saturday or Sunday, and
that, in the City of New York, is not a day on which banking institutions are
generally authorized or obligated by law to close. The interest payment at
maturity will include interest accrued to but excluding the Maturity Date and
will be payable to the person to whom principal is payable.
<PAGE> 2
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 "6.45% Notes Due June 1. 2000" (the "Notes").
Unless the certificate of authentication hereon has been executed by
the Trustee under the Indenture by the manual signature of one of its
authorized signatories, this Note shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
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<PAGE> 3
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed, manually or in facsimile, and an imprint or facsimile of its
corporate seal to be imprinted hereon.
Dated: June 9, 1995
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
6.45% NOTES DUE JUNE 1, 2000
This Note is one of a duly authorized series of Securities of the
Company (hereinafter called the "Securities"), issued and to be issued under an
indenture, dated as of September 1, 1992 (the "Indenture"), between the Company
and The Chase Manhattan Bank, N.A., as Trustee (the "Trustee", which term
includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of a
respective rights, duties and immunities thereunder of the Company, the Trustee
and the holders of the Notes (the "Holders") and the Securities and the terms
upon which the Notes and the Securities are to be authenticated and delivered.
Except as otherwise provided in the Indenture, the Notes will be
issued in global form only registered in the name of The Depository Trust
Company (the "Depositary") or its nominee. The Notes will not be issued in
definitive form, except as otherwise provided in the Indenture, and ownership
of the Notes shall be maintained in book-entry form by the Depositary for the
accounts of participating organizations of the Depositary.
This Note will not be subject to a sinking fund and is not redeemable
at the option of the Company prior to the Maturity Date stated above. The
Indenture provides for the defeasance of the Notes in certain circumstances.
If an event of default with respect to this Note shall occur and be
continuing, the principal of this Note may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of not less than 66 2/3% in aggregate principal amount of
the Securities at the time outstanding which are affected thereby. The
Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities of each series at the time
outstanding, on behalf of the Holders of all Securities of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by Holder of this Note shall be conclusive and binding upon such Holder
and upon all
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<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
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<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.
6
<PAGE> 7
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------
_______________________________________________________________________________
PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE
_______________________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing
________________________________________________ attorney to transfer such Note
on the books of the Company, with full power of substitution in the premises.
Dated: ______________ ____________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of the
within Note in every particular,
without alteration or enlargement or
any change whatsoever.
