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): August 7, 1998
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FINOVA CAPITAL CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 1-11011 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, P. O. BOX 2209, PHOENIX, ARIZONA 85004-2209
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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 5. Other Events.
On October 17, 1997, FINOVA Capital Corporation (the "Company") and
The FINOVA Group Inc. (the "FINOVA Group") filed with the Securities
and Exchange Commission a joint registration statement on Form S-3
(Registration Nos. 333-38171 and 333-38171-01) (the "Registration
Statement"), relating to the registration under the Securities Act of
1933, as amended, of an aggregate maximum offering price of
$2,000,000,000 of debt securities, common stock, par value $.01 per
share, preferred stock, par value $.01 per share, depositary shares
and warrants of the Company and FINOVA Group, which Registration
Statement was declared effective on January 12, 1998.
On August 7, 1998, the Company entered into a distribution agreement
(the "Distribution Agreement") with Credit Suisse First Boston
Corporation, Goldman, Sachs & Co., Lehman Brothers, Inc., Merrill
Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated,
Morgan Stanley & Co. Incorporated and Salomon Brothers Inc
(collectively, the "Agents"), pursuant to which the Company agreed to
issue and sell up to $500,000,000 aggregate principal amount of its
Medium-Term Notes, Series D (the "Securities"), which Securities are
registered under the Registration Statement, to or through the Agents.
The Distribution Agreement is attached hereto as Exhibit 1.1.
Item 7. Financial Statements and Exhibits.
(c) Exhibits:
Exhibits Title
-------- ---------------------------------------------------
1.1 Distribution Agreement, dated August 7, 1998, by
and among the Company, Credit Suisse First Boston
Corporation, Goldman, Sachs & Co., Lehman
Brothers, Inc., Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated, Morgan
Stanley & Co. Incorporated and Salomon Brothers
Inc.
4.1 Form of floating rate Medium-Term Note, Series D
4.2 Form of fixed rate Medium-Term Note, Series D
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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: August 12, 1998 By /s/ William J. Hallinan, Esq.
---------------------------------
William J. Hallinan, Esq., Senior
Vice President and General Counsel
EXHIBIT INDEX
1.1 Distribution Agreement, dated August 7, 1998, by and among the
Company, Credit Suisse First Boston Corporation, Goldman, Sachs & Co.,
Lehman Brothers, Inc., Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated, Morgan Stanley & Co. Incorporated and
Salomon Brothers Inc.
4.1 Form of floating rate Medium-Term Note, Series D
4.2 Form of fixed rate Medium-Term Note, Series D
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FINOVA CAPITAL CORPORATION
$500,000,000
Medium-Term Notes, Series D
Due Nine Months or More from Date of Issue
August 7, 1998
CREDIT SUISSE FIRST BOSTON CORPORATION
Eleven Madison Avenue
New York, New York 10010-3629
GOLDMAN, SACHS & CO.
85 Broad Street
New York, New York 10004
LEHMAN BROTHERS INC.
3 World Financial Center
New York, New York 10281-1218
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center
North Tower
New York, New York 10281-1310
MORGAN STANLEY & CO. INCORPORATED
1251 Avenue of Americas
New York, New York 10020
SALOMON BROTHERS INC
7 World Trade Center
New York, New York 10048
Dear Sirs:
FINOVA Capital Corporation (the "Company") confirms its agreement with
each of you with respect to the issue and sale by the Company of up to
$500,000,000 aggregate principal amount (or the equivalent thereof in one or
more foreign or composite currencies) of its Medium-Term Notes, Series D (the
"Securities"). The Securities are to be issued pursuant to an indenture (the
"Indenture") dated as of March 20, 1998, between the Company and The First
National Bank of Chicago, as trustee (the "Trustee").
Subject to the terms and conditions stated herein and subject to the
reservation by the Company of the right to sell Securities directly on its own
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behalf at any time and to any investor or through other agents (provided that
any other agent will execute an agreement with the Company upon substantially
the same terms and conditions as contained herein and that the Company will
notify each party hereto of its agreement with any other agents), the Company
hereby (i) appoints Credit Suisse First Boston Corporation, Goldman, Sachs &
Co., Lehman Brothers Inc., Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner &
Smith Incorporated, Morgan Stanley & Co. Incorporated and Salomon Brothers Inc
(each an "Agent", and collectively "the Agents"), collectively as agents of the
Company for the purpose of soliciting purchases of the Securities from the
Company by others and (ii) agrees that whenever the Company determines to sell
Securities directly to you, or any one of you, as principal for resale to
others, it will enter into a Terms Agreement relating to such sale in accordance
with the provisions of Section 2(b) hereof.
As of the date hereof, the Company has authorized the issuance and sale
of up to $500,000,000 (or its equivalent based on the applicable exchange rate
at the time of issuance, in such foreign currencies or units of two or more
currencies as the Company shall designate at the time of issuance) aggregate
principal amount of Securities by the Company directly or through agents
pursuant to the terms of this Agreement. It is understood, however, that the
Company may from time to time pursuant to one or more officers' certificates or
indenture supplements to the Indenture, reduce the authorized aggregate
principal amount of the Securities (but not below the aggregate principal amount
of the Securities previously issued under the Indenture) or authorize the
issuance of additional Securities and that such additional Securities may be
distributed directly by the Company or through the Agents pursuant to the terms
of this Agreement, all as though the issuance of such Securities were authorized
as of the date hereof. In the event that any such additional Securities are
authorized, the Company will enter into such amendments or supplements to this
Agreement, and deliver such officers' certificates, legal opinions, accountants'
comfort letters and other documents, as the Agents may reasonably request in
connection therewith.
The Company and The FINOVA Group Inc., a Delaware corporation
("FINOVA"), filed with the Securities and Exchange Commission (the "Commission")
a joint registration statement on Form S-3 (Registration Nos. 333-38171 and
333-38171-01) for the registration of its Senior Debt Securities (including the
Securities), among other things, and the offering thereof from time to time in
accordance with Rule 415 under the Securities Act of 1933, as amended (the "1933
Act") and 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 the Company files a registration
statement with the Commission pursuant to Rule 462(b) of the 1933 Act
Regulations (the "Rule 462(b) Registration Statement"), then, after such filing,
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all references to the "Registration Statement" shall also be deemed to include
the Rule 462(b) Registration Statement, and except that if any revised
prospectus shall be provided to you by the Company for use in connection with
the offering of the Securities which is not required to be filed by the Company
pursuant to Rule 424(b) under the 1933 Act, the term "Prospectus" shall refer to
such revised prospectus from and after the time it is first provided to you for
such use. All references in this Agreement to documents, financial statements
and schedules and other information which is "contained," "included," "stated,"
"described in" or "referred to" in the Registration Statement or the Prospectus
(and all other references of like meaning) shall be deemed to mean and include
all such documents, financial statements and schedules and other information
which is or is 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 is or is deemed to be
incorporated by reference in the Registration Statement or the Prospectus, as
the case may be. For purposes of this Agreement, all references to the
Registration Statement or the Prospectus or to any amendment or supplement
thereto shall be deemed to include any copy filed with the Commission pursuant
to its Electronic Data Gathering, Analysis and Retrieval system ("EDGAR").
SECTION 1. REPRESENTATION AND WARRANTIES.
(a) The Company represents and warrants to each of the Agents as of the
date hereof, as of the Closing Time and each Settlement Date hereinafter
referred to, and as of the times referred to in Sections 6(a) and 6(b) hereof
(in each case the "Representation Date"), as follows:
(i) REGISTRATION STATEMENT AND PROSPECTUS. The Registration
Statement and the Prospectus, at the time the Registration Statement
became effective, complied, and as of the applicable Representation
Date will comply, in all material respects with the requirements of
the 1933 Act, and the rules and regulations thereunder (the "1933 Act
Regulations") and the 1939 Act. The Registration Statement, at the
time the Registration Statement became effective did not, and at each
time thereafter at which any amendment to the Registration Statement
becomes effective or any Annual Report on Form 10-K is filed by the
Company with the Commission (the "Form 10-K Filing Date") and as of
the applicable Representation Date will not, contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading. The Prospectus, at the time the Registration
Statement became effective did not, and as of the applicable
Representation Date will not, contain 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 shall not 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 any Agent expressly for use in
the Registration Statement or Prospectus ("Agent Information") or to
that part of the Registration Statement which shall constitute the
Statement of Eligibility under the 1939 Act on Form T-1 (the "Form
T-1") of the Trustee.
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(ii) INCORPORATED DOCUMENTS. The documents 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, and at the Form 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) ACCOUNTANTS. 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) FINANCIAL STATEMENTS. The financial statements included or
incorporated by reference in the Prospectus present fairly the
respective financial position of the Company and FINOVA and their
respective consolidated subsidiaries as of the dates indicated and the
results of their 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.
(v) MATERIAL CHANGES OR MATERIAL TRANSACTIONS. 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 FINOVA and
their respective subsidiaries considered as one enterprise or in the
earnings, affairs or business prospects of the Company and FINOVA and
their respective 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, FINOVA or
any of their respective subsidiaries other than those in the ordinary
course of business.
(vi) DUE INCORPORATION AND GOOD STANDING. 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) SUBSIDIARIES. 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
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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
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 or claim, except with respect to certain special purpose
subsidiaries of the Company for liens or rights granted in connection
with the financing transactions in the ordinary course of business.
(viii) CAPITAL STOCK. 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, par value $.01 per
share, of the Company (the "Common Stock") set forth thereunder have
been duly authorized and validly issued and are fully paid and
nonassessable and 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) NO DEFAULTS; COMPLIANCE WITH LAWS; REGULATORY APPROVALS.
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 each applicable Terms Agreement, if any, 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 you.
(x) LICENSES. The Company and its subsidiaries own or possess or
have obtained, can obtain on reasonable terms or are in the process of
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obtaining, all material governmental licenses, permits, consents,
orders, approvals and other authorizations necessary to lease or own,
as the case may be, and to operate their respective properties and to
carry on their respective businesses as presently conducted, except
such as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Securities by
you.
(xi) INTANGIBLE RIGHTS. The Company and its subsidiaries own or
possess adequate trademarks, service marks and trade names necessary
to conduct the business now operated by them, and neither the Company
nor any of its subsidiaries has received any notice of infringement of
or conflict with asserted rights of others with respect to any
trademarks, service marks or trade names which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would reasonably be expected to materially adversely affect
the conduct of the business, operations, financial condition or income
of the Company and its subsidiaries considered as one enterprise.
(xii) LABOR RELATIONS. 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.
(xiii) THE INDENTURE. 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.
(xiv) THE SECURITIES. 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
therefor specified herein, 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 all Securities for which the Company has accepted offers
and the sale of any other securities registered pursuant to the
Registration Statement to be issued prior to the delivery of the
Securities relating to such acceptance, the aggregate amount of
securities which have been issued and sold by the Company pursuant to
the Registration Statement does not exceed the amount of securities
registered pursuant to the Registration Statement.
(xv) LIENS. 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 sheet of the Company and its consolidated
subsidiaries as of the date of the Company's most recent quarterly or
annual consolidated balance sheet, as applicable, and with respect to
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all equipment and other property acquired by the Company or a
subsidiary since such date 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 sheet 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) FINANCING CONTRACTS. The financing contracts reflected in
the consolidated balance sheet of the Company and its consolidated
subsidiaries as of the date of the Company's recent quarterly or
annual consolidated balance sheet, as applicable, and the financing
contracts entered into by the Company or a subsidiary since such date
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 related Representation Date, 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 subsidiaries,
would be materially adversely affected thereby, excluding impairment
of related reserves.
(xvii) 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").
(b) Any certificate signed by any officer of the Company and delivered
to any of you or to your counsel in connection with an offering of Securities
shall be deemed a representation and warranty by the Company to each of you as
to the matters covered thereby.
SECTION 2. PURCHASES AS PRINCIPAL; SOLICITATIONS AS AGENT.
(a) SOLICITATIONS AS AGENT. On the basis of the representations and
warranties herein contained, but subject to the terms and conditions herein set
forth, each of you severally agree, as agent of the Company, to use your
reasonable best efforts to solicit offers to purchase the Securities upon the
terms and conditions set forth in the Prospectus. Each of you is hereinafter
sometimes referred to, in your capacity as agent, as the "Agent" and you are
referred to collectively as the "Agents."
The Company reserves the right, in its sole discretion, to suspend
solicitation of offers for the purchase of the Securities commencing at any
time, and from time to time, for any period of time or permanently. As soon as
practicable after receipt of instructions from the Company, you will suspend
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solicitation of purchases from the Company until such time as the Company has
advised you that such solicitation may be resumed.
The Company agrees to pay to the applicable Agent a commission, in the
form of a discount from proceeds (or as otherwise agreed to by the Company and
the applicable Agent), equal to the applicable percentage of the principal
amount of each Security sold by the Company as a result of a solicitation made
by such Agent as set forth in Exhibit A hereto. The Agents may reallow up to all
of the commission payable pursuant to this Section 2(b) to dealers or purchasers
in connection with the offer and the sale of the Securities.
The aggregate principal amount, purchase price, interest rate, maturity
date, redemption provisions, if any, and other terms of the Securities shall be
agreed upon by the Company and the Agents and set forth in a pricing supplement
("Pricing Supplement") to the Prospectus to be prepared following each
acceptance by the Company of an offer for the purchase of the Securities. As an
Agent, each of you are authorized to solicit orders for the Securities only in
denominations of $1,000 or any amount in excess thereof which is an integral
multiple of $1,000 at a purchase price equal to 100% of their principal amount
except as may be provided in a Pricing Supplement to the Prospectus. You shall
communicate to the Company, orally or in writing, each reasonable offer to
purchase Securities received by you as agent. The Company shall have the sole
right to accept offers to purchase the Securities and may reject any such offer
in whole or in part. You shall have the right to reject any offer to purchase
the Securities received by you in whole or in part, and any such rejection shall
not be deemed a breach of your agreement contained herein.
(b) PURCHASES AS PRINCIPAL. Each sale of Securities to any of you as
principal shall be made in accordance with the terms of this Agreement and a
separate agreement which will provide for the sale of such Securities to, and
the purchase and reoffering thereof by, any or all of you. Each such separate
agreement (which shall contain the information, as applicable, as is specified
in Exhibit B hereto in the case of a purchase of the Company's Fixed Rate
Medium-Term Notes, or in Exhibit C hereto in the case of the Company's Floating
Rate Medium-Term Notes, and which may take the form of an exchange of any
standard form of written telecommunication or oral communication between you and
the Company) is herein referred to as a "Terms Agreement." Unless the context
otherwise requires each reference contained herein to "this Agreement" shall be
deemed to include any Terms Agreement between the Company and one or more of
you. Your commitment to purchase Securities pursuant to any Terms Agreement
shall be deemed to have been made on the basis of the representations and
warranties of the Company herein contained and shall be subject to the terms and
conditions herein set forth. Each Terms Agreement shall specify the principal
amount of Securities to be purchased by you pursuant thereto, the price to be
paid to the Company for such Securities, the initial public offering price, if
any, at which the Securities are proposed to be reoffered, and the time and
place of delivery of and payment for such Securities (the "Settlement Date"),
and such other provisions (including further terms of the Securities) as may be
mutually agreed upon. The Agents may utilize a selling or dealer group in
connection with the resale of the Securities purchased. Such Terms Agreement
shall also specify any requirements for officers' certificates, delivery of
opinions of counsel and letters from independent public accountants of the
Company pursuant to Section 5 hereof on the related Settlement Date.
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(c) PROCEDURES. Administrative procedures respecting the sale of
Securities shall be agreed upon from time to time by the Agents, the Company and
the Trustee (the "Procedures"). Each Agent and the Company agrees to perform the
respective duties and obligations specifically provided to be performed by each
of them herein and in the Procedures.
(d) DELIVERY OF CLOSING DOCUMENTS. The documents required to be
delivered by Section 5 hereof shall be delivered at the offices of the Company,
1850 North Central Avenue, Phoenix, Arizona 85002-2209 on the date hereof, or at
such other time and place as you and the Company may agree upon in writing (the
"Closing Time").
SECTION 3. COVENANTS OF THE COMPANY. The Company covenants with each of
you as follows:
(a) REVISIONS OF PROSPECTUS -- MATERIAL CHANGES. If at any time
when the Prospectus is required by the 1933 Act to be delivered in
connection with sales of the Securities any event shall occur or
condition exist as a result of which it is necessary, in the
reasonable opinion of your counsel or counsel for the Company, to
further amend or supplement the Prospectus in order that the
Prospectus will not include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein not misleading in the light of the circumstances
existing at the time it is delivered to a purchaser, or if it shall be
necessary, in the reasonable opinion of either such counsel, at any
such time to amend or supplement the Registration Statement or the
Prospectus in order to comply with the requirements of the 1933 Act or
the 1933 Act Regulations, immediate notice shall be given, and
confirmed in writing, to you to cease the solicitation of offers to
purchase the Securities in your capacity as Agents and to cease sales
of any Securities any of you may then own as principal, and the
Company will promptly prepare and file with the Commission such
amendment or supplement, whether by filing documents pursuant to the
1934 Act, the 1933 Act or otherwise, as may be necessary to correct
such untrue statement or omission or to make the Registration
Statement comply with such requirements. The Company will promptly
cause each amendment or supplement to the Prospectus to be filed with
the Commission pursuant to Rule 424.
(b) PROSPECTUS REVISIONS -- PERIODIC FINANCIAL INFORMATION. On or
prior to the date on which there shall be released to the general
public interim financial statement information related to the Company
with respect to each of the first three quarters of any fiscal year or
preliminary financial statement information with respect to any fiscal
year, the Company shall furnish such information to you, confirmed in
writing, and shall cause the Prospectus to be amended or supplemented,
whether by the filing of documents pursuant to the 1934 Act, the 1933
Act or otherwise, to include or incorporate by reference capsule
financial information with respect to the results of operations of the
Company for the period between the end of the preceding fiscal year
and the end of such quarter or for such fiscal year, as the case may
be, and corresponding information for the comparable period of the
preceding fiscal year, as well as such other information and
explanations as shall be necessary for an understanding of such
amounts or as shall be required by the 1933 Act or the Regulations;
provided, however, that if on the date of such release you shall have
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suspended solicitation of purchases of the Securities in your capacity
as Agents pursuant to a request from the Company, and shall not then
hold any Securities as principal, the Company shall not be obligated
so to amend or supplement the Prospectus until such time as the
Company shall determine that solicitation of purchases of the
Securities should be resumed or shall subsequently enter into a new
Terms Agreement with you.
(c) PROSPECTUS REVISIONS -- AUDITED FINANCIAL INFORMATION. On or
prior to the date on which there shall be released to the general
public financial information included in or derived from the audited
financial statements of the Company for the preceding fiscal year, the
Company shall cause the Registration Statement and the Prospectus to
be amended, whether by the filing of documents pursuant to the 1934
Act, the 1933 Act or otherwise, to include or incorporate by reference
such audited financial statements and the report or reports, and
consent or consents to such inclusion or incorporation by reference,
of the independent accountants with respect thereto, as well as such
other information and explanations as shall be necessary for an
understanding of such financial statements or as shall be required by
the 1933 Act or the 1933 Act Regulations; provided, however, that if
on the date of such release you shall have suspended solicitation of
purchases of the Securities in your capacity as Agents pursuant to a
request from the Company, and shall not then hold any Securities as
principal, the Company shall not be obligated so to amend or
supplement the Prospectus until such time as the Company shall
determine that solicitation of purchases of the Securities should be
resumed or shall subsequently enter into a new Terms Agreement with
you.
(d) EARNING STATEMENTS. The Company will make generally available
to its security holders as soon as practicable earnings statements (in
form complying with the provisions of Rule 158 under the 1933 Act)
covering twelve month periods beginning, in each case, not later than
the first day of the Company's fiscal quarter next following the
"effective date of the Registration Statement" (as defined in Rule
158) with respect to each sale of Securities. If such fiscal quarter
is the last fiscal quarter of the Company's fiscal year, such earnings
statement shall be made available not later than 90 days after the
close of the period covered thereby and in all other cases shall be
made available not later than 45 days after the close of the periods
covered thereby.
(e) NOTICE OF CERTAIN PROPOSED FILINGS. The Company will give you
notice of its intention to file any amendment to the Registration
Statement or any amendment or supplement to the Prospectus, whether by
the filing of documents pursuant to the 1934 Act, the 1933 Act or
otherwise, and will furnish you with copies of any such amendment or
supplement or other documents proposed to be filed a reasonable time
in advance of filing and will not unless required by law file any such
amendment to which you have promptly objected in writing.
(f) NOTICE OF CERTAIN EVENTS. The Company will notify you
immediately (i) of the effectiveness of any amendment to the
Registration Statement, (ii) of the mailing or the delivery to the
Commission for filing of any supplement to the Prospectus or any
document to be filed pursuant to the 1934 Act which will be
incorporated by reference in the Prospectus, (iii) of the receipt of
any comments from the Commission with respect to the Registration
Statement or the Prospectus, (iv) of any request by the Commission for
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any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for additional information, and (v) 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 stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest
possible moment.
(g) COPIES OF THE REGISTRATION STATEMENT AND THE PROSPECTUS. The
Company has delivered to your counsel at least one signed and will
deliver to you 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 by reference in the Prospectus) as you may
reasonably request. The Company will furnish to you as many copies of
the Prospectus (as amended or supplemented) as you shall reasonably
request so long as you are required to deliver a Prospectus in
connection with sales or solicitations of offers to purchase the
Securities.
(h) PREPARATION OF PRICING SUPPLEMENTS. The Company will prepare,
with respect to any Securities to be sold through or to the Agents
pursuant to this Agreement, a Pricing Supplement with respect to such
Securities in a form previously approved by the Agents and will file
such Pricing Supplement pursuant to Rule 424(b)(3) under the 1933 Act
not later than the close of business of the Commission on the fifth
business day after the date on which such Pricing Supplement is first
used.
(i) COPIES OF ANNUAL AND FINANCIAL REPORTS. The Company will
furnish to you, at the earliest time the Company makes the same
available to others, copies of its annual reports and other financial
reports furnished or made available to the public generally and, will
furnish to you, from time to time, such other information concerning
the Company as you may reasonably request.
(j) STATE SECURITIES LAW QUALIFICATIONS. The Company will
endeavor, in cooperation with you, to qualify the Securities for
offering and sale under the applicable securities laws of such states
and other jurisdictions of the United States as you may designate, and
will maintain such qualifications in effect for as long as may be
required for the distribution of the Securities; 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. The Company will file
such statements and reports as may be required by the laws of each
jurisdiction in which the Securities have been qualified as above
provided. The Company will promptly advise you of the receipt by the
Company of any notifications with respect to the suspension of the
qualification of the Securities for sale in any such state or
jurisdiction or the initiating or threatening of any proceeding for
such purpose.
(k) 1934 ACT FILING. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act, will file
promptly all documents required to be filed with the Commission
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act.
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(l) STAND-OFF AGREEMENT. Between the date of any Terms Agreement
and the Settlement Date with respect to such Terms Agreement, the
Company will not, without the prior consent of the Agent or Agents
party to such Terms Agreement, directly or indirectly offer or sell,
or enter into any agreement to sell, or announce the offering of any
debt securities of the Company (other than the Securities and bank
debt) with terms substantially similar to the Securities being
purchased pursuant to such Terms Agreement, except as may otherwise be
provided in any such Terms Agreement.
(m) USE OF PROCEEDS. The net proceeds from the sale of the
Securities will be used by the Company as described in the Prospectus.
(n) SECURITIES WITH MATURITIES IN EXCESS OF 30 YEARS. Prior to
any time that the Company offers or issues Securities with maturities
in excess of thirty years, the Company will deliver to the Agents an
opinion of counsel, in form and substance satisfactory to the Agents,
to the effect that such Securities will be treated as debt for United
States federal income tax purposes.
SECTION 4. PAYMENT OF EXPENSES. The Company will pay the following
expenses incident to the performance of its obligations under this Agreement,
including: (i) the preparation and filing of the Registration Statement and all
amendments thereto, (ii) the preparation, issuance and delivery of the
Securities, including any fees and expenses relating to the use of book-entry
securities, (iii) the fees and disbursements of the Company's accountants and of
the Trustee and its counsel and of any calculation agent, (iv) the printing and
delivery to you in quantities as hereinabove stated of copies of the
Registration Statement and all amendments thereto, and of the Prospectus and any
amendments or supplements thereto, (v) the printing and delivery to you of
copies of the Indenture (and all amendments or supplements thereto) and any Blue
Sky Survey and any Legal Investment Survey, (vi) any fees charged by rating
agencies for the rating of the Securities, (vii) the fees and expenses, if any,
incurred with respect to any filing with the National Association of Securities
Dealers, Inc., (viii) the cost of printing or reproducing of this Agreement and
any Terms Agreement and (ix) the fees and expenses of any Depositary and any
nominees thereof in connection with the Securities.
The Company shall also reimburse the Agents for the fees and
disbursements of one counsel for the Agents and any advertising and other
out-of-pocket expenses incurred with the approval of the Company.
SECTION 5. CONDITIONS OF OBLIGATIONS. Each of your obligations to
solicit offers to purchase the Securities as Agents of the Company and each of
your obligations to purchase Securities pursuant to any Terms Agreement will be
subject to the accuracy of the representations and warranties on the part of the
Company herein, to the accuracy of the statements of the Company's officers made
in any certificate furnished pursuant to the provisions hereof, to the
performance and observance by the Company of all covenants and agreements herein
contained on its part to be performed and observed and to the following
additional conditions precedent:
(a) (1) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
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that purpose shall have been initiated or threatened by the
Commission; and all requests for additional information on the part of
the Commission shall have been complied with to your and your
counsel's reasonable satisfaction.
(2) There shall not have come to your attention any facts that
would cause you to believe that the Prospectus, at the time it was
required to be delivered to a purchaser of the Securities, contained
an untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in light of
the circumstances existing at such time, not misleading.
(3) There shall not have occurred since the respective dates as
of which information is given in the Registration Statement, any
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.
(4) There shall not have occurred any (i) 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 your
judgment, impracticable to market the Securities or enforce contracts
for the sale of the Securities, (ii) downgrading, nor any notice given
of any intended downgrading in the rating assigned by any nationally
recognized securities rating agency to any debt securities of the
Company; or (iii) suspension of trading in any securities of the
Company by the Commission or a national securities exchange, or if
trading generally on either the American Stock Exchange or the New
York Stock Exchange has been suspended, or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices for
securities have been required, by either of said exchanges or by order
of the Commission or any other governmental authority, or if a banking
moratorium has been declared by either Federal, California or New York
authorities or if a banking moratorium shall have been declared by the
relevant authorities in the country or countries of origin of any
foreign currency or currencies in which the Securities are denominated
or payable.
(b) At the date hereof, at Closing Time and at each Settlement
Date with respect to any applicable Terms Agreement, if called for by
such Terms Agreement:
(1) OPINION OF COMPANY COUNSEL. You shall have received the
opinion, dated as of such time, of William J. Hallinan, Esq.,
Senior Vice President and General Counsel of the Company or
Richard Lieberman, Esq., Vice President - Assistant General
Counsel of the Company, in form and scope satisfactory to you and
your counsel, 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.
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(ii) The Company has corporate power and authority to
own, lease and operate its properties and conduct its
business as described in the Registration Statement.
(iii) The Company is duly qualified as a foreign
corporation to transact business and is in good standing in
each jurisdiction in which such qualification is required,
except where the failure of the Company to so qualify, in
the aggregate, will not have a material adverse effect on
the consolidated financial condition or combined operations
of the Company and its Subsidiaries or of the Company and
its Restricted Subsidiaries (as those terms are defined in
the Indenture).
(iv) Each subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its
incorporation, has corporate power and corporate authority
to own, lease and operate its properties and conduct its
business as described in the Registration Statement, and is
duly qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which such
qualification is required, except where the failure to so
qualify, in the aggregate, will not have a material adverse
effect on the consolidated financial condition or combined
operations of the Company and its Subsidiaries or of the
Company and its Restricted Subsidiaries; and all of the
issued and outstanding capital stock of each such subsidiary
has been duly authorized and validly issued and is fully
paid and nonassessable, and all of such capital stock is
owned by the Company or its affiliates, free and clear of
any mortgage, pledge, lien, encumbrance or claim, except
with respect to certain special purpose subsidiaries of the
Company for liens or rights granted in connection with
financial transactions and securitization transactions in
the ordinary course of business.
(v) The authorized, issued and outstanding capital
stock of the Company is as set forth in the Prospectus
(included by incorporation by reference) 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,
encumbrances or liabilities.
(vi) This Agreement (and, if the opinion is being given
pursuant to Section 6(c) hereof on account of the Company
having entered into a Terms Agreement, the applicable Terms
Agreement) has 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
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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 as
contemplated by this Agreement and, when executed,
authenticated as specified in the Indenture and delivered
against payment of the consideration therefor in accordance
with this Agreement (and, if the opinion is being given
pursuant to Section 6(c) hereof on account of the Company
having entered into a Terms Agreement, the applicable Terms
Agreement), will be valid and binding obligations of the
Company, enforceable in accordance with their terms, except
as enforcement thereof may be limited by bankruptcy,
insolvency, or other laws relating to or affecting
creditors' rights generally, or by general equity
principles, including concepts of commercial reasonableness,
and each holder of Securities will be entitled to the
benefits of the Indenture.
(ix) The statements, if any, in the Prospectus under
the captions "Note Terms" and "Description of Debt
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, or if an amendment to the Registration Statement
or an annual report on Form 10-K has been filed by the
Company with the Commission subsequent to the effectiveness
of the Registration Statement, then at the time the most
recent such amendment became effective or as of the Form
10-K Filing Date, as applicable, and as of the time of the
applicable Terms Agreement, the Registration Statement
(other than the financial statements, schedules and other
financial and statistical data included or incorporated by
reference therein, and the Form T-1, and the Agent
information as to which no opinion need be rendered)
complied as to form in all material respects with the
requirements of the 1933 Act, the 1939 Act and the
regulations of those Acts; and nothing has come to such
counsel's attention that would lead such counsel to believe
that (other than the financial statements, schedules and
other financial and statistical data included or
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incorporated by reference therein, the Form T-1, and Agent
Information, as to which no opinion need be rendered) the
Registration Statement, at the time it became effective, or
if an amendment to the Registration Statement or an annual
report on Form 10-K has been filed by the Company with the
Commission subsequent to the effectiveness of the
Registration Statement, then at the time the most recent
such amendment became effective or as of the Form 10-K
Filing Date, as applicable, 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, as amended or
supplemented, as of its date and Closing Time or the
Settlement Date, as the case may be, includes an untrue
statement of material fact or omits 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.
(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 in, or incorporated by reference as exhibits
to, the Registration Statement or to be filed as exhibits
thereto other than those described or referred to therein or
filed or incorporated by reference as exhibits thereto, the
descriptions thereof or references thereto are correct, and
no default exists by the Company in the due performance or
observance of obligations, agreements, covenants or
conditions, which alone or in the aggregate are material,
contained in any contracts, indentures, loan agreements,
notes, leases or other instruments.
(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, if the opinion is being
given pursuant to Section 6(c) hereof on account of the
Company having entered into a Terms Agreement, the
applicable Terms 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
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property or assets of the Company or any subsidiary pursuant
to, any material 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, or are in the process of obtaining, adequate
trademarks, service marks and trade names necessary to
conduct the business now operated by them, and neither the
Company nor any of its subsidiaries has received any notice
of infringement of or conflict with asserted rights of
others with respect to any trademarks, service marks or
trade names which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would
reasonably be expected to materially adversely affect the
conduct of the business, operations, financial condition or
income of the Company and its subsidiaries considered as one
enterprise.
(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.
and to such further effect with respect to other legal matters
relating to this Agreement, the applicable Terms Agreement and the
sale of the Securities hereunder and thereunder as your counsel may
reasonably request. In giving such opinions such counsel may rely as
to all matters of state law other than the laws of 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 your
counsel, 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 you 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 as long as (A) he
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shall have delivered to you a signed opinion of other counsel for such
foreign subsidiary, satisfactory to your counsel, 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 you are
entitled to rely on such other opinion. Any such opinion may be in the
form and contain such assumptions, qualifications and limitations as
customarily appear in legal opinions issued in the jurisdiction in
which any such opinion is rendered.
(2) OPINION OF COUNSEL TO THE AGENTS. You shall have received the
opinion of Brown & Wood LLP counsel to the Agents, covering the
matters referred to in subparagraph (1) under the subheadings (i),
(vi), (vii), (viii), (ix), (x), (xi) and (xii).
(c) OFFICERS' CERTIFICATE. At Closing Time and at each Settlement Date
with respect to any Terms Agreement, there shall not have been, since the date
of such Terms Agreement or since the respective dates as of which information is
given in the Registration Statement and 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, 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 you
shall have received a certificate of the 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
or such Settlement Date, to the effect (i) that there has been no such material
adverse change, (ii) that the other representations and warranties of the
Company contained in Section 1 hereof are true and correct with the same force
and effect as though expressly made at and as of the date of such certificate,
(iii) that the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to the date of
such certificate, and (iv) that 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. With respect to any
Officers' Certificate to be delivered on a Settlement Date, 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) COMFORT LETTER. At the date hereof, at Closing Time and at each
Settlement Date with respect to any Terms Agreement, if called for by such Terms
Agreement, you shall have received from Deloitte & Touche LLP, a letter, dated
as of the Closing Time or on such Settlement Date in form and substance
previously agreed to by the Company and the Agents.
(e) OTHER DOCUMENTS. At the date hereof, at Closing Time and at each
Settlement Date with respect to any applicable Terms Agreement, your counsel
shall have been furnished with such documents and opinions as they may
reasonably require for the purpose of enabling them to pass upon the issuance
and sale of the Securities as herein contemplated and related proceedings, or in
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order to evidence the accuracy and completeness of any of the representations
and warranties, or the fulfillment of any of the conditions, herein contained;
and all proceedings taken by the Company in connection with the issuance and
sale of the Securities as herein contemplated shall be satisfactory in form and
substance to you and your counsel.
SECTION 6. ADDITIONAL COVENANTS OF THE COMPANY. The Company covenants
and agrees with each of you that:
(a) REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES. Each
acceptance by it of an offer for the purchase of Securities, and each
sale of Securities to you pursuant to a Terms Agreement, shall be
deemed to be an affirmation that the representations and warranties of
the Company contained in this Agreement and in any certificate
theretofore delivered to you pursuant hereto are true and correct at
the time of such acceptance or sale, as the case may be, and an
undertaking that such representations and warranties will be true and
correct at the time of delivery to the purchaser or his agent, or you,
of the Securities or Security relating to such acceptance or sale, as
the case may be, as though made at and as of each such time (and it is
understood that such representations and warranties shall relate to
the Registration Statement and the Prospectus as amended and
supplemented to each such time).
(b) SUBSEQUENT DELIVERY OF CERTIFICATES. Each time that the
Registration Statement or the Prospectus shall be amended or
supplemented (other than by an amendment or supplement providing
solely for a change in the interest rates of the Securities or a
change in the principal amount of Securities remaining to be sold or
similar changes) or there is filed with the Commission any document
incorporated by reference into the Prospectus, the Company shall
furnish or cause to be furnished to you forthwith a certificate in
form satisfactory to you to the effect that the statements contained
in the certificates referred to in Section 5(c) hereof which were last
furnished to you are true and correct at the time of such amendment or
supplement or filing or sale, as the case may be, as though made at
and as of such time (except that such statements shall be deemed to
relate to the Registration Statement and the Prospectus as amended and
supplemented to such time) or, in lieu of such certificate,
certificates of the same tenor as the certificates referred to in said
Section 5(c), modified as necessary to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time
of delivery of such certificates.
(C) SUBSEQUENT DELIVERY OF LEGAL OPINIONS. Each time that the
Registration Statement or the Prospectus shall be amended or
supplemented or there is filed with the Commission any document
incorporated by reference into the Prospectus (other than by an
amendment or supplement providing solely for a change in the interest
rates of the Securities or a change in the principal amount of
Securities remaining to be sold or similar changes) the Company shall
furnish or cause to be furnished forthwith to you and your counsel a
written opinion of William J. Hallinan, Esq., Senior Vice President
and General Counsel of the Company or Richard Lieberman, Esq., Vice
President - Assistant General Counsel of the Company, or other counsel
satisfactory to you, dated the date of delivery of such opinion, in
form satisfactory to you, of the same tenor as the opinion referred to
in Section 5(b) hereof but modified, as necessary, to relate to the
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Registration Statement and the Prospectus as amended and supplemented
to the time of delivery of such opinion or, in lieu of such opinion,
counsel last furnishing such opinion to you shall furnish you with a
letter to the effect that you may rely on such last opinion to the
same extent as though it was dated the date of such letter authorizing
reliance (except that statements in such last opinion shall be deemed
to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such letter authorizing
reliance).
(d) SUBSEQUENT DELIVERY OF COMFORT LETTERS. Each time that the
Registration Statement or the Prospectus shall be amended or
supplemented to include additional financial information or there is
filed with the Commission any document incorporated by reference into
the Prospectus which contains additional financial information, the
Company shall cause the independent public accountants of the Company
forthwith to furnish you a letter, dated the date of filing of such
amendment, supplement or document with the Commission, or the date of
such sale, as the case may be, in form satisfactory to you, of the
same tenor as the letter referred to in Section 5(d) hereof but
modified to relate to the Registration Statement and Prospectus, as
amended and supplemented to the date of such letter, and with such
changes as may be necessary to reflect changes in the financial
statements and other information derived from the accounting records
of the Company; provided, however, that if the Registration Statement
or the Prospectus is amended or supplemented solely to include
financial information as of and for a fiscal quarter, the independent
public accountants of the Company may limit the scope of such letter
to the unaudited financial statements included in such amendment or
supplement unless any other information included therein of an
accounting, financial or statistical nature is of such a nature that,
in your reasonable judgment, such letter should cover such other
information.
(e) CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATIONS. The Company
agrees that any obligation of a person who has agreed to purchase
Securities to make payment for and take delivery of such Securities
shall be subject to the satisfaction, at the time of delivery to such
person, of each of the conditions set forth in Section 5(a) hereof.
SECTION 7. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless each of you and
each person, if any, who controls each of you 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 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, unless such untrue statement or omission or such alleged
untrue statement or omission was made in reliance upon and in
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<PAGE>
conformity with written information furnished to the Company by any of
you expressly for use in the Registration Statement (or any amendment
thereto) or the Prospectus (or any amendment or supplement thereto);
(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 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 (except as made in
reliance upon and in conformity with information furnished by any of
you as aforesaid) if such settlement is effected with the written
consent of the Company; and
(iii) against any and all expense whatsoever, as incurred,
(including the fees and disbursements of counsel chosen by you);
reasonably incurred in investigating, preparing or defending against
any litigation, or 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 (except as made in reliance upon and in
conformity with information furnished by any of you as aforesaid), to
the extent that any such expense is not paid under (i) or (ii) above.
(b) Each of you severally 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 the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by such Agent expressly for use in the Registration Statement (or
any amendment thereto) or the Prospectus (or any amendment or supplement
thereto).
(c) Each indemnified party shall give prompt 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 it from any liability which it may have otherwise than
on account of this indemnity agreement. 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 the fees and expenses of more than one
counsel (in addition to one 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 8. CONTRIBUTION. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 7 is for any reason held to be unenforceable with respect to the
indemnified parties although applicable in accordance with its terms, the
Company and you shall contribute to the aggregate losses, liabilities, claims,
21
<PAGE>
damages and expenses of the nature contemplated by said indemnity agreement
incurred by the Company and you, as incurred, in such proportions that you are
each responsible for that portion represented by the percentage that the total
commissions and underwriting discounts received by you individually to the date
of such liability bears to the total sales price received by the Company from
your sale of Securities to the date of such liability, 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 any of you be
required to contribute an amount in excess of the total commissions and
underwriting discounts received by you, individually, in connection with the
transactions contemplated by this Agreement. For purposes of this Section, each
person, if any, who controls each of you within the meaning of Section 15 of the
1933 Act shall have the same rights to contribution as each of you, 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 9. STATUS OF AGENT. In soliciting purchases of the Securities
from the Company as Agents, the Agents are acting individually and not jointly
and are acting solely as agents for the Company and not as principals. Each
Agent will make reasonable efforts to assist the Company in obtaining
performance by each purchaser whose offer to purchase Securities from the
Company has been solicited by such Agent and accepted by the Company, but such
Agent shall not have any liability to the Company in the event any such purchase
is not consummated for any reason.
SECTION 10. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. All representations, warranties and agreements contained in this
Agreement or any Terms 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 any of you
or any controlling person of any of you, or by or on behalf of the Company, and
shall survive each delivery of and payment for any of the Securities.
SECTION 11. TERMINATION. This Agreement may be terminated for any
reason, at any time by the Company as to any of you, or by any of you insofar as
this Agreement relates to such of you, upon the giving of 30 days' written
notice of such termination to the other parties hereto. Each of you may also
terminate any Terms Agreement to which you are a party, immediately upon notice
to the Company, at any time prior to the Settlement Date relating thereto upon
the terms and conditions contained in such Terms Agreement or in the event that
any condition specified in Section 5 shall not have been fulfilled. In the event
of any such termination, no party will have any liability to any other party
hereto, except that (i) a terminating Agent shall be entitled to any commissions
earned by it in accordance with the third paragraph of Section 2(a) hereof, (ii)
if at the time of termination (A) you shall own any of the Securities with the
intention of reselling them or (B) an offer to purchase any of the Securities
has been accepted by the Company but the time of delivery to the purchaser or
his agent of the Securities or Securities relating thereto has not occurred, the
covenants set forth in Sections 3 and 6 hereof shall remain in effect until such
Securities are so resold or delivered, as the case may be, (iii) the covenant
set forth in Section 3(d) hereof, the provisions of Section 4 hereof, the
22
<PAGE>
indemnity and contribution agreement set forth in Sections 7 and 8 hereof, and
the provisions of Sections 10 and 14 hereof shall remain in effect, and (iv) a
termination instituted by any one Agent shall only be effective with regard to
such Agent and shall not affect the rights or obligations of the parties
remaining in this Agreement or any Terms Agreement.
SECTION 12. 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 to the addresses
hereinafter set forth or such other addresses as may be specified in writing in
accordance herewith. Notices to the Agents shall be directed as follows:
If to Credit Suisse First Boston Corporation:
Credit Suisse First Boston Corporation
Eleven Madison Avenue
New York, New York 10010-3629
Attention: Short and Medium Term Finance
Telephone: (212) 325-7198
Telecopy: (212) 325-8183
If to Goldman, Sachs & Co.:
Goldman, Sachs & Co.
32 Old Ship
New York, New York 10005
Attention: Registration Department
Telephone:
Telecopy:
If to Lehman Brothers Inc.:
Lehman Brothers Inc.
3 World Financial Center
9th Floor
New York, New York 10285-0900
Attention: Medium-Term Note Department
Telephone: (212) 526-8400
Telecopy: (212) 528-7035
23
<PAGE>
If to Merrill Lynch & Co.:
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Merrill Lynch World Headquarters
North Tower, 10th Floor
World Financial Center
New York, New York 10281-1310
Attention: MTN Products Management
Telephone:
Telecopy: (212) 449-2234
If to Morgan Stanley & Co. Incorporated:
Morgan Stanley & Co. Incorporated
1585 Broadway, 2nd Floor
New York, New York 10036
Attention: Manager - Continuously Offered Products
Telephone:
Telecopy: (212) 761-0780
With a copy to:
Morgan Stanley & Co. Incorporated
1585 Broadway, 34th Floor
New York, New York 10036
Attention: Peter Cooper, Investment Banking Information Center
Telephone:
Telecopy: (212) 761-0260
If to Salomon Brothers Inc:
Salomon Brothers Inc
7 World Trade Center
New York, New York 10048
Attention: Legal
Telephone: (212) 783-5891
Telecopy: (212) 783-2274
24
<PAGE>
Notices to the Company shall be directed as follows:
FINOVA Capital Corporation
1850 North Central Avenue
Phoenix, Arizona 85002-2209
Attention: Meilee Smythe, Senior Vice President-Treasurer
Telecopy: (602) 207-6900
SECTION 13. PARTIES. This Agreement and any Terms Agreement shall inure
to the benefit of and be binding upon each of you (or such one of you who is a
party to such Terms Agreement) and the Company and their respective successors.
Nothing expressed in this Agreement or any Terms Agreement is intended or shall
be construed to give any person, firm or corporation, other than the parties
hereto and their respective successors, the controlling persons and officers and
directors referred to in Sections 7 and 8 and their heirs and legal
representatives, and any person who has agreed to purchase Securities from the
Company with respect to the conditions to any such person's obligation to make
payment for and take delivery of such securities to the extent provided in
Section 6(e), any legal or equitable right, remedy or claim under or in respect
of this Agreement or any Terms Agreement or any provision herein or therein
contained. This Agreement and any Terms Agreement and all conditions and
provisions hereof and thereof are intended to be for the sole and exclusive
benefit of the parties hereto 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 shall be deemed to be a successor by reason merely of
such purchase.
SECTION 14. GOVERNING LAW. This Agreement and the rights and
obligations of the parties created hereby shall be governed by the laws of the
State of New York.
[The remainder of this page intentionally left blank.]
25
<PAGE>
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 each of you and the Company in accordance with its terms.
Very truly yours,
FINOVA CAPITAL CORPORATION
By:
--------------------------------------
Samuel L. Eichenfield
Chairman of the Board, President and
Chief Executive Officer
26
<PAGE>
CONFIRMED AND ACCEPTED, as of the date first above written:
CREDIT SUISSE FIRST BOSTON CORPORATION
By:
-------------------------------------
........................................
GOLDMAN, SACHS & CO.
LEHMAN BROTHERS INC.
By:
-------------------------------------
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:
-------------------------------------
MORGAN STANLEY & CO. INCORPORATED
By:
-------------------------------------
SALOMON BROTHERS INC
By:
-------------------------------------
27
<PAGE>
EXHIBIT A
to
FORM OF DISTRIBUTION AGREEMENT
Commission Schedule
Maturity Ranges Percent of
- --------------- Principal Amount
----------------
From 9 months but less than 1 year........................ .125%
From 1 year but less than 18 months....................... .150
From 18 months but less than 2 years...................... .200
From 2 years but less than 3 years........................ .250
From 3 years but less than 4 years........................ .350
From 4 years but less than 5 years........................ .450
From 5 years but less than 6 years........................ .500
From 6 years but less than 7 years........................ .550
From 7 years but less than 10 years....................... .600
From 10 years but less than 15 years...................... .625
From 15 years but less than 20 years...................... .700
From 20 years but less than 30* years..................... .750
* Commission on Notes with maturities of 30 years or more shall be agreed to
by the Company and the applicable Agent at the time of such trade.
A-1
<PAGE>
EXHIBIT B
to
FORM OF DISTRIBUTION AGREEMENT
Form of
FINOVA Capital Corporation
(a Delaware corporation)
Fixed Rate
Medium-Term Notes, Series D
TERMS AGREEMENT
___________, 19__
FINOVA Capital Corporation
1850 N. Central Avenue
Phoenix, Arizona 85002-2209
Attention: Senior Vice President-Treasurer
Re: Distribution Agreement dated August 7, 1998
The undersigned agrees to purchase the following principal amount of
securities:
$_________________________.
Stated Maturity Date:
Original Issue Date:
Trade Date:
Issue Price: __%
Discount or Commission:
Settlement Date and Time:
B-1
<PAGE>
ADDITIONAL TERMS:
Interest Rate:
Interest Payment Dates:
Day Count Convention:
30/360 for the period from _____ to _____.
Actual/360 for the period from ____ to ____.
Actual/Actual for the period from ____ to ____.
IF REDEEMABLE:
Redemption Date:
IF REPAYABLE:
Optional Repayment Date(s):
Repayment Price:
CURRENCY:
Specified Currency (if other than U.S. dollars):
Minimum Denominations:
Exceptions, if any, to Section 3(l) of the Distribution Agreement:
The certificate referred to in Section 5(c) of the Distribution
Agreement, the opinions referred to in Section 5(b) of the Distribution
Agreement and the accountants' letter referred to in Section 5(d) of the
Distribution Agreement will be required.
B-2
<PAGE>
Name of Purchaser
By:
-------------------------------
Title
Accepted:
FINOVA CAPITAL CORPORATION
By:
-------------------------------
Title
B-3
<PAGE>
EXHIBIT C
to
FORM OF DISTRIBUTION AGREEMENT
Form of
FINOVA Capital Corporation
(a Delaware corporation)
Floating Rate
Medium-Term Notes, Series D
TERMS AGREEMENT
_______________, 19__
FINOVA Capital Corporation
1850 N. Central Avenue
Phoenix, Arizona 85002-2209
Attention: Senior Vice President-Treasurer
Re: Distribution Agreement dated August 7, 1998
The undersigned agrees to purchase the following principal amount of
Securities:
$___________________.
Stated Maturity Date:
Original Issue Date:
Trade Date:
Issue Price: __%
Discount or Commission:
Settlement Date and Time:
C-1
<PAGE>
ADDITIONAL TERMS:
INTEREST CALCULATION:
Regular Floating Rate Note
Floating Rate / Fixed Rate Note
Fixed Interest Rate:
Fixed Rate Commencement Date:
Inverse Floating Rate Note
Fixed Interest Rate:
INTEREST RATE BASIS:
Initial Interest Rate:
Initial Interest Reset Date:
Spread and/or Spread Multiplier, if any:
Interest Reset Dates:
Interest Payment Date(s):
Regular Record Dates:
Index Maturity:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Interest Rate Reset Period:
Interest Payment Period:
Calculation Agent:
DAY COUNT CONVENTION:
Actual/360 for the period from _____ to _____.
Actual/Actual for the period from ____ to ____.
Other
C-2
<PAGE>
IF REDEEMABLE:
Redemption Date:
IF REPAYABLE:
Optional Repayment Date(s):
Repayment Price:
CURRENCY:
Specified Currency (if other than U.S. dollars):
Minimum Denominations:
Exceptions, if any, to Section 3(l) of the Distribution Agreement:
The certificate referred to in Section 5(c) of the Distribution
Agreement, the opinions referred to in Section 5(b) of the Distribution
Agreement and the accountants' letter referred to in Section 5(d) of the
Distribution Agreement will be required.
Name of Purchaser
By:
-------------------------------
Title
Accepted:
FINOVA CAPITAL CORPORATION
By:
-------------------------------
Title
C-3
FACE OF FLOATING RATE GLOBAL MEDIUM-TERM 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 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.
FINOVA CAPITAL CORPORATION
FLOATING RATE MEDIUM-TERM NOTE, SERIES D
REGISTERED CUSIP No. _______ REGISTERED
No. FLR - PRINCIPAL AMOUNT
$_______________
ORIGINAL ISSUE DATE: INITIAL INTEREST RATE: MATURITY DATE:
INTEREST RATE BASIS: INDEX MATURITY: SPREAD:
INTEREST PAYMENT PERIOD: MAXIMUM INTEREST RATE: SPREAD MULTIPLIER:
INTEREST PAYMENT DATES: MINIMUM INTEREST RATE: INTEREST RATE RESET PERIOD:
INTEREST RESET DATES: INITIAL REDEMPTION DATE: OPTIONAL REPAYMENT DATE(S):
<PAGE>
ORIGINAL ISSUE DISCOUNT ADDENDUM ATTACHED:
[ ] Yes [ ] YES
[ ] No [ ] NO
Total Amount of OID:
Yield to Maturity:
Initial Accrual Period: DAY COUNT CONVENTION
[ ] Actual/360 for the
period from to .
INTEREST CALCULATION: [ ] Actual/Actual to the
[ ] Regular Floating Rate Note period from to .
[ ] Floating Rate/Fixed Rate Note
Fixed Rate Commencement Date:
Fixed Interest Rate: IF LIBOR:
[ ] Inverse Floating Rate Note [ ] LIBOR Reuters
Fixed Interest Rate: [ ] LIBOR Telerate
OTHER PROVISIONS: IF CMT RATE:
Designated CMT Telerate Page __
Designated CMT Telerate Page __
FINOVA CAPITAL CORPORATION, a corporation duly organized and existing
under the laws of Delaware (the "Company", which term includes any successor
corporation under the Indenture hereinafter referred to), for value received,
hereby promises to pay to CEDE & CO., or registered assigns, the principal sum
of
DOLLARS
on the Maturity Date shown above (the "Maturity Date"), except to the extent
redeemed or repaid prior to the Maturity Date, and to pay interest thereon at
the rate per annum equal to the Initial Interest Rate shown above until the
first Interest Reset Date shown above (an "Interest Reset Date") following the
Original Issue Date shown above (the "Original Issue Date") and thereafter at a
rate determined in accordance with the provisions on the reverse hereof and any
Addendum relating hereto, depending upon the Interest Rate Basis or Bases, if
any, and such other terms specified above, until the principal hereof is paid or
duly made available for payment. Reference herein to "this Note", "hereof",
"herein" and comparable terms shall include an Addendum hereto if an Addendum is
specified above.
The Company will pay interest monthly, quarterly, semiannually or
annually as shown above under Interest Payment Period on each Interest Payment
Date shown above (an "Interest Payment Date"), commencing on the first Interest
Payment Date next succeeding the Original Issue Date, and on the Maturity Date
or any Redemption Date or Optional Repayment Date (as defined below) (the date
of each such Maturity Date, Redemption Date and Optional Repayment Date and the
date on which principal or an installment of principal is due and payable by
declaration of acceleration pursuant to the Indenture being referred to
hereinafter as a "Maturity" with respect to principal payable on such date);
provided, however, that if the Original Issue Date is between a Record Date (the
fifteenth calendar day, whether or not a Business day, prior to each Interest
2
<PAGE>
Payment Date) and an Interest Payment Date, interest payments will commence on
the Interest Payment Date following the next succeeding Record Date, and
provided further, that if an Interest Payment Date would fall on a day that is
not a Business day, such Interest Payment Date shall be the next succeeding
Business day, except that if the Interest Rate Basis is LIBOR, as indicated
above, and such next succeeding Business day falls in the next calendar month,
such Interest Payment Date will be the Business day immediately preceding the
Interest Payment Date. Interest on this Note will accrue from and including the
Original Issue Date specified above, at the rates determined from time to time
as specified herein, until the principal hereof has been paid or made available
for payment. If the Maturity falls on a day which is not a Business day as
defined below, the payment due on such Maturity will be paid on the next
succeeding Business day with the same force and effect as if made on such
Maturity and no interest shall accrue with respect to such payment for the
period from and after such Maturity. 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 (or one or more
predecessor Securities) is registered at the close of business on the Record
Date for such interest; 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 5 days prior to the date of payment of such defaulted interest,
established by notice given by mail by or on behalf of the Company to the holder
of this Note not less than 15 days preceding such subsequent record date.
Payment of the principal of and 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 other 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 States of America as at the time of payment is legal tender for payment
of public and private debts, provided the payment of interest on any Interest
Payment Date may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register.
This Note is one of a separate series of Securities designated under
the Indenture as "Medium-Term Notes, Series D", unlimited in aggregate principal
amount (the "Notes").
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.
Unless the certificate of authentication hereon has been executed by
the Trustee under the Indenture by the manual signature of one of its authorized
signatories, this Note shall not be entitled to any benefit under the Indenture
or be valid or obligatory for any purpose.
3
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Instrument to be duly
executed, manually or by facsimile.
Dated:
FINOVA CAPITAL CORPORATION
By:
--------------------------------------
Samuel L. Eichenfield
Chairman of the Board of Directors,
President and Chief
Executive Officer
By:
--------------------------------------
William J. Hallinan
Secretary
CERTIFICATE OF AUTHENTICATION
This is one of the Securities
issued under the Indenture described herein.
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By:
------------------------------------
Name:
Title:
4
<PAGE>
REVERSE
FINOVA CAPITAL CORPORATION
FLOATING RATE MEDIUM-TERM NOTE, SERIES D
This Note is one of a duly authorized series of Securities of the
Company (hereinafter called the "Securities"), unlimited as to aggregate
principal amount, issued and to be issued in one or more series under an
Indenture dated as of March 20, 1998 (the "Indenture") between the Company and
The First National Bank of Chicago, 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 the
respective rights, duties and immunities thereunder of the Company, the Trustee
and the holders of the Notes 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 have a sinking fund and, unless otherwise provided
above in accordance with the provisions of the following paragraphs, is not
redeemable or repayable prior to the Maturity Date stated above. The Indenture
provides for the defeasance of the Notes in certain circumstances.
If so provided above, this Note may be redeemed by the Company on any
date on and after the Initial Redemption Date, if any, set forth above. If no
Initial Redemption Date is set forth above, this Note may not be redeemed prior
to the Maturity Date stated above. On and after the Initial Redemption Date, if
any, this Note may be redeemed at any time in whole or from time to time in part
in increments of $1,000 (provided that any remaining principal hereof shall be
at least equal to $1,000) at the option of the Company at 100% of the principal
amount to be redeemed, together with accrued interest thereon at the applicable
rate payable to the date of redemption (each such date, a "Redemption Date"), on
written notice given not more than 60 nor less than 30 days prior to the
Redemption Date. In the event of redemption of this Note in part only, a new
Note for the unredeemed portion hereof shall be issued in the name of the holder
hereof upon the surrender hereof.
This Note may be subject to repayment at the option of the holder on
any Optional Repayment Date(s), if any, indicated above. If no Optional
Repayment Date(s) are set forth above, this Note may not be so repaid at the
option of the holder hereof prior to the Maturity Date. On any Optional
Repayment Date, this Note shall be repayable in whole or in part in increments
of $1,000 (provided that any remaining principal hereof shall be at least equal
to $1,000) at the option of the holder hereof at a repayment price equal to 100%
of the principal amount to be repaid, together with interest thereon payable to
the date of repayment. For this Note to be repaid in whole or in part at the
option of the holder hereof, this Note must be received, with the form entitled
5
<PAGE>
"Option to Elect Repayment" below duly completed, by the Trustee at its
Principal Office, or such address which the Company shall from time to time
notify the holders of the Notes, not more than 60 nor less than 30 days prior to
the related Optional Repayment Date. Exercise of such repayment option by the
holder hereof shall be irrevocable.
The interest rate borne by this Note shall be determined as follows:
1. If this Note is designated as a Regular Floating Rate Note above,
then, except as described below, this Note shall bear interest at the rate
determined by reference to the applicable Interest Rate Basis shown above (i)
plus or minus the applicable Spread, if any, and/or (ii) multiplied by the
applicable Spread Multiplier, if any, specified and applied in the manner
described above. Commencing on the first Interest Reset Date, the rate at which
interest on this Note is payable shall be reset as of each Interest Reset Date
specified above; PROVIDED, HOWEVER, that the interest rate in effect for the
period from the Original Issue Date to the first Interest Reset Date will be
Initial Interest Rate.
2. If this Note is designated as a Floating Rate/Fixed Rate Note above
then, except as described below, this Note shall bear interest at the rate
determined by reference to the applicable Interest Rate Basis shown above (i)
plus or minus the applicable Spread, if any, and/or (ii) multiplied by the
applicable Spread Multiplier, if any, specified and applied in the manner
described above. Commencing on the first Interest Reset Date, the rate at which
interest on this Note is payable shall be reset as of each Interest Reset Date
specified above; PROVIDED, HOWEVER, that the interest rate in effect for the
period from the Original Issue Date to the first Interest Reset Date shall be
the Initial Interest Rate.
3. If this Note is designated as an Inverse Floating Rate Note above,
then, except as described below, this Note will bear interest equal to the Fixed
Interest Rate indicated above minus the rate determined by reference to the
applicable Interest Rate Basis shown above (1) plus or minus the applicable
Spread, if any, and/or (ii) multiplied by the applicable Spread Multiplier, if
any, specified and applied in the manner described above; PROVIDED, HOWEVER,
that the interest rate hereon will not be less than zero percent. Commencing on
the first Interest Reset Date, the rate at which interest on this Note is
payable shall be reset as of each Interest Reset Date specified above; PROVIDED,
HOWEVER, that the interest rate in effect for the period from the Original Issue
Date to the first Interest Reset Date shall be the Initial Interest Rate.
4. Notwithstanding the foregoing, if this Note is designated above as
having an Addendum attached, the Note shall bear interest in accordance with the
terms described in such Addendum.
Unless otherwise specified above, interest payable on this Note on any
Interest Payment Date shall be the amount of interest accrued from and including
the next preceding Interest Payment Date in respect of which interest has been
paid (or from and including the Original Issue Date specified above, if no
interest has been paid), to but excluding the related Interest Payment Date;
provided that the interest payments on Maturity will include interest accrued to
but excluding such Maturity. Unless otherwise specified above, accrued interest
hereon shall be an amount calculated by multiplying the face amount hereof by an
accrued interest factor. Such accrued interest factor shall be computed by
adding the interest factor calculated for each day from the date of issue or
6
<PAGE>
from the last date to which interest shall have been paid or duly provided for,
to the date for which accrued interest is being calculated. Unless otherwise
specified above, the interest factor for each such day shall be computed by
dividing the interest rate applicable to such day by 360 if the Day Count
Convention specified above is "Actual/360" for the period specified thereunder
or by the actual number of days in the year if the Day Count Convention
specified above is "Actual/Actual" for the period specified thereunder. The
interest factor for Notes for which the interest rate is calculated with
reference to two or more Interest Rate Bases will be calculated in each period
in the same manner as if only one of the applicable Interest Rate Bases applied.
The interest rate in effect on each day shall be (a) if such day is an
Interest Reset Date, the interest rate with respect to the Interest
Determination Date (as defined below) pertaining to such Interest Reset Date or
(b) if such day is not an Interest Reset Date, the interest rate with respect to
the Interest Determination Date pertaining to the next preceding Interest Reset
Date. If any Interest Reset Date would otherwise be a day that is not a Business
day, such Interest Reset Date shall be postponed to the next succeeding day that
is a Business day, except that if an Interest Rate Basis specified on the face
hereof is LIBOR and such next Business day falls in the next succeeding calendar
month, such Interest Reset Date shall be the preceding Business day.
Commencing on the first Interest Reset Date following the Original
Issue Date, the rate at which interest on this Note is payable shall be reset
daily, weekly, monthly, quarterly, semiannually or annually (as shown on the
face hereof under Interest Rate Reset Period) as of each Interest Reset Date. If
any Interest Reset Date would otherwise be a day that is not a Business day,
such Interest Reset Date shall be postponed to the next Business day, except if
the Interest Rate Basis is LIBOR, and if such next Business day is in the next
calendar month, such Interest Reset Date shall be the Business day immediately
preceding such Interest Reset Date. Each such reset rate shall be applicable on
and after the Interest Reset Date to which it relates to but not including the
next succeeding Interest Reset Date or the date of Maturity, as the case may be.
The "Interest Determination Date" with respect to any Interest Reset
Date for Notes having an Interest Rate Basis of the CMT Rate, the Commercial
Paper Rate, the Federal Funds Rate or the Prime Rate shall be the second
Business day preceding such Interest Reset Date. The Interest Determination Date
with respect to any Interest Reset Date for Notes having an Interest Rate Basis
of LIBOR shall be the second London Business day (as defined below) preceding
such Interest Reset Date. The Interest Determination Date with respect to any
Note having an Interest Rate Basis of the Eleventh District Cost of Funds Rate
shall be the last working day of the month immediately preceding each Interest
Reset Date on which the Federal Home Loan Bank of San Francisco (or "FHLB of San
Francisco") publishes the Index (as defined below). The Interest Determination
Date with respect to any Note having an Interest Rate Basis of the Treasury Rate
shall be the day of the week in which such Interest Reset Date falls on which
Treasury bills would normally be auctioned. Treasury bills are normally sold at
auction on Monday of each week, unless such day is a legal holiday, in which
case the auction is normally held on the following Tuesday, except that such
auction may be held on the preceding Friday. If, as the result of a legal
holiday, an auction is so held on the preceding Friday, such Friday shall be the
Interest Determination Date pertaining to the Interest Reset Date occurring in
the next succeeding week. If an auction falls on a day that is an Interest Reset
7
<PAGE>
Date, such Interest Reset Date shall be the next following Business day. If the
interest rate of this Note is determined with reference to two or more Interest
Rate Bases, the Interest Determination Date pertaining to this Note will be the
first Business day which is at least two Business days prior to such Interest
Reset Date on which the Interest Rate Basis shall be determinable. Each Interest
Rate Basis shall be determined and compared on such date, and the applicable
interest rate shall take effect on the related Interest Reset Date.
Unless otherwise specified above, the "Calculation Date" pertaining to
any Interest Determination Date shall be the earlier of (i) the tenth calendar
day after such Interest Determination Date, or, if any such day is not a
Business day, the next succeeding Business day or (ii) the Business day
preceding the applicable Interest Payment Date or Maturity, as the case may be.
All calculations on this Note shall be made by the Calculation Agent specified
above or such successor thereto as is duly appointed by the Company.
All percentages resulting from any calculation on the Notes will be
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 0.09876545) being rounded to 9.876558% (or .0987655)), and all
dollar amounts used in or resulting from such calculation on the Notes will be
rounded to the nearest cent (with one-half cent being rounded upward).
As used herein "Business day" means any day other than a Saturday or
Sunday or any other day on which banks in The City of New York are generally
authorized or obligated by law or executive order to close and, if the Interest
Rate Basis shown above is LIBOR, is also a London Business day. As used herein,
"London Business day" means any day on which dealings in deposits in U.S.
dollars are transacted in the London interbank market.
Subject to applicable provisions of law and except as specified herein,
the Interest Rate Basis or Bases on this Note shall be determined in accordance
with the provisions of the applicable heading below:
DETERMINATION OF CMT RATE. If the Interest Rate Basis on this Note is
the CMT Rate, the CMT Rate with respect to any Interest Determination Date shall
be the rate displayed on the Designated CMT Telerate Page under the caption " .
. . Treasury Constant Maturities . . . Federal Reserve Board Release H.15 . . .
Mondays Approximately 3:45 P.M.," under the column for the Designated CMT
Maturity Index for (i) if the Designated CMT Telerate Page is 7055, the rate on
such CMT Rate Interest Determination Date and (ii) if the Designated CMT
Telerate Page is 7052, the week, or the month, as applicable, ended immediately
preceding the week in which the related Interest Determination Date occurs. If
such rate is no longer displayed on the relevant page, or if not displayed by
3:00 P.M., New York City time, on the related Calculation Date, then the CMT
Rate for such Interest Determination Date will be such Treasury Constant
Maturity rate for the Designated CMT Maturity Index as published in the relevant
H.15(519). If such rate is no longer published, or if not published by 3:00
P.M., New York City time, on the related Calculation Date, then the CMT Rate for
such Interest Determination Date will be such Treasury Constant Maturity rate
for the Designated CMT Maturity Index (or other United States Treasury rate for
the Designated CMT Maturity Index) for the Interest Determination Date with
respect to such Interest Reset Date as may then be published by either the Board
of Governors of the Federal Reserve System or the United States Department of
8
<PAGE>
the Treasury that the Calculation Agent determines to be comparable to the rate
formerly displayed on the Designated CMT Telerate Page and published in the
relevant H.15(519). If such information is not provided by 3:00 P.M., New York
City time, on the related Calculation Date, then the CMT Rate for the Interest
Determination Date will be calculated by the Calculation Agent and will be a
yield to maturity, based on the arithmetic mean of the secondary market closing
offer side prices as of approximately 3:30 P.M. (New York City time) on the CMT
Rate Interest Determination Date reported, according to their written records,
by three leading primary United States government securities dealers (each, a
"Reference Dealer") in The City of New York selected by the Calculation Agent
(from five such Reference Dealers selected by the Calculation Agent and
eliminating the highest quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event of equality, one of the
lowest)), for the most recently issued direct noncallable fixed rate obligations
of the United States ("Treasury Note") with an original maturity of
approximately the Designated CMT Maturity Index and a remaining term to maturity
of not less than such Designated CMT Maturity Index minus one year. If the
Calculation Agent cannot obtain three such Treasury Note quotations, the CMT
Rate for such Interest Determination Date will be calculated by the Calculation
Agent and will be a yield to maturity based on the arithmetic mean of the
secondary market offer side prices as of approximately 3:30 P.M. (New York City
time) on the Interest Determination Date of three Reference Dealers in The City
of New York (from five such Reference Dealers selected by the Calculation Agent
and eliminating the highest quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event of equality, one of the
lowest)), for Treasury Notes with an original maturity of the number of years
that is the next highest to the Designated CMT Maturity Index and a remaining
term to maturity closest to the Designated CMT Maturity Index and in an amount
of at least $100 million. If three or four (and not five) of such Reference
Dealers are quoting as described above, then the CMT Rate will be based on the
arithmetic mean of the offer prices obtained and neither the highest nor lowest
of such quotes will be eliminated; provided however, that if fewer than three
Reference Dealers selected by the Calculation Agent are quoting as described
herein, the CMT Rate will be the CMT Rate in effect on such Interest
Determination Date. If two Treasury Notes with an original maturity as described
in the third preceding sentence, have remaining terms to maturity equally close
to the Designated CMT Maturity Index, the quotes for the CMT Rate Note with the
shorter remaining term to maturity will be used.
"Designated CMT Telerate Page" means the display on the Dow Jones
Markets Limited on the page designated on the face of this Note (or any other
page as may replace such page on that service for the purpose of displaying
Treasury Constant Maturities as reported in H.15(519)), for the purpose of
displaying Treasury Constant Maturities as reported in H.15(519). If no such
page is specified on the face of this Note, the Designated CMT Telerate Page
shall be 7052, for the most recent week.
"Designated CMT Maturity Index" means the original period to maturity
of the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20, or 30 years)
specified on the face of this Note with respect to which the CMT Rate will be
calculated. If no such maturity is specified on the face of this Note, the
Designated CMT Maturity Index shall be 2 years.
DETERMINATION OF COMMERCIAL PAPER RATE. If the Interest Rate Basis on
this Note is the Commercial Paper Rate, the Commercial Paper Rate with respect
to any Interest Determination Date shall be the Money Market Yield (as defined
9
<PAGE>
below) of the rate on such Interest Determination Date for commercial paper
having the Index Maturity shown on the face hereof, as published in H.15(519)
under the heading "Commercial Paper", or, if such yield is not so published by
3:00 P.M., New York City time, on the Calculation Date pertaining to such
Interest Determination Date, as published in the Composite Quotations under the
heading "Commercial Paper" (with an Index Maturity of one month or three months
being deemed to be equivalent to an Index Maturity of 30 days or 90 days,
respectively). If such rate is not published in the Composite Quotations by 3:00
P.M., New York City time, on such Calculation Date, then the Commercial Paper
Rate shall be calculated by the Calculation Agent and shall be the Money Market
Yield of the arithmetic mean of the offered rates, as of 11:00 A.M., New York
City time, on such Interest Determination Date of three leading dealers of
commercial paper in The City of New York selected by the Calculation Agent for
commercial paper having the Index Maturity shown on the face hereof placed for
an industrial issuer whose bond rating is "AA", or the equivalent, from a
nationally recognized rating agency, provided that if such dealers are not
quoting as set forth above, then the Commercial Paper Rate shall be the
Commercial Paper Rate in effect on such Interest Determination Date.
"Money Market Yield" shall be the yield calculated in accordance with
the following formula:
Money Market Yield = D X 360 X 100
--------------------
360- (D X M)
where "D" refers to the per annum rate for commercial paper, quoted on a bank
discount basis and expressed as a decimal, and "M" refers to the actual number
of days in the interest period for which interest is being calculated.
DETERMINATION OF FEDERAL FUNDS RATE. If the Interest Rate Basis on this
Note is the Federal Funds Rate, the Federal Funds Rate with respect to any
Interest Determination Date shall be the rate on such Interest Determination
Date for Federal Funds as published in H.15(519) under the heading "Federal
Funds (Effective)", or, if not so published by 3:00 P.M., New York City time, on
the Calculation Date pertaining to such Interest Determination Date, as
published in the Composite Quotations under the heading "Federal Funds/Effective
Rate". If such rate is not yet published in the Composite Quotations by 3:00
P.M., New York City time, on such Calculation Date, then the Federal Funds Rate
shall be calculated by the Calculation Agent and shall be the arithmetic mean of
the rates for the last transaction in overnight Federal Funds as of 9:00 A.M.,
New York City time, on such Interest Determination Date, arranged by three
leading brokers of Federal Funds transactions in The City of New York selected
by the Calculation Agent, provided that if such brokers are not quoting as set
forth above, then the Federal Funds Rate will be the Federal Funds Rate in
effect on such Interest Determination Date.
DETERMINATION OF ELEVENTH DISTRICT COST OF FUNDS RATE. If the Interest
Rate Basis on this Note is the Eleventh District Cost of Funds Rate, the
Eleventh District Cost of Funds Rate with respect to any Interest Determination
Date shall be the rate on such Interest Determination Date equal to the monthly
weighted average cost of funds for the calendar month preceding such Interest
10
<PAGE>
Determination Date as set forth under the caption "11th District" on Telerate
Page 7058 as of 11:00 A.M., San Francisco time, on such Interest Determination
Date. If such rate does not appear on Telerate Page 7058 on such Interest
Determination Date, the Eleventh District Cost of Funds Rate for such Interest
Determination Date shall be the monthly weighted average cost of funds paid by
member institutions of the Eleventh Federal Home Loan Bank District that was the
most recently announced (the "Index") by the FHLB of San Francisco as such cost
of funds for the calendar month preceding the date of such announcement. If the
FHLB of San Francisco fails to announce such rate for the calendar month next
preceding such Interest Determination Date, then the Eleventh District Cost of
Funds Rate for such Interest Determination Date shall be the Eleventh District
Cost of Funds Rate in effect on such Interest Determination Date. "Telerate
Paged 7058" means the display on the Dow Jones Markets Limited on such page (or
such other page as may replace such page on that service for the purpose of
displaying the Eleventh District Cost of Funds Rate) for the purpose of
displaying the monthly average cost of funds paid by similar institutions of the
Eleventh Federal Home Loan Bank District.
DETERMINATION OF LIBOR. If the Interest Rate Basis on this Note is
LIBOR, LIBOR with respect to any Interest Determination Date shall be:
(i) either: (a) if "LIBOR Reuters" is specified on the face
hereof, the arithmetic mean of the offered rates for deposits in U.S.
dollars having the Index Maturity designated on the face hereof,
commencing on the second London Business day immediately following such
Interest Determination Date, that appear on the Reuters Screen LIBO
Page as of 11:00 a.m., London time, on such Interest Determination
Date, if at least two such offered rates appear on the Reuters Screen
LIBO Page, or (b) if "LIBOR Telerate" is specified on the face hereof,
the rate for deposits in U.S. dollars having the Index Maturity
designated on the face hereof commencing on the second London Business
day immediately following such Interest Determination Date, that
appears on the Telerate Page 3750 as of 11:00 a.m., London time, on
such Interest Determination Date. "Reuters Screen LIBO Page" means the
display designated as page "LIBO" on the Reuters Monitor Money Rates
Service (or such other page as may replace the LIBO page on that
service for the purpose of displaying London interbank offered rates of
major banks). "Telerate Page 3750" means the display designated as page
"3750" on the Dow Jones Market Limited (or such other page as may
replace the 3750 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. dollar deposits).
If neither LIBOR Reuters nor LIBOR Telerate is specified in on the face
hereof, LIBOR will be determined as if LIBOR Telerate had been
specified. If fewer than two offered rates appear on the Reuters Screen
LIBO Page, or if no rate appears on the Telerate Page 3750, as
applicable, LIBOR in respect of such Interest Determination Date will
be determined pursuant to clause (ii) below.
(ii) With respect to a LIBOR Interest Determination Date on
which fewer than two offered rates appear on the Reuters Screen LIBO
Page, as specified in (i)(a) above, or on which no rate appears on
Telerate Page 3750, as specified in (i)(b) above, as applicable, then
the Calculation Agent shall request the principal London office of each
of four major banks in the London interbank market, selected by the
Calculation Agent, to provide a quotation of the rate at which such
bank offered to prime banks in the London interbank market at
11
<PAGE>
approximately 11:00 A.M. London time, on such Interest Determination
Date, deposits in U.S. dollars, commencing on the second London
Business day immediately following such Interest Determination Date,
having the Index Maturity shown on the face hereof and in a principal
amount that is representative for a single transaction in such market
at such time, and, in such case, such rate of interest hereon shall be
the arithmetic mean of (a) such quotations, if at least two quotations
are provided, or (b) if fewer than two quotations are provided, the
rates quoted at approximately 11:00 A.M. New York City time, on such
Interest Determination Date by three major banks in The City of New
York selected by the Calculation Agent for loans in U.S. dollars to
leading European banks, commencing on the second London Business day
immediately following such Interest Determination Date, having the
Index Maturity shown on the face hereof and in a principal amount that
is representative for a single transaction in such market at such time,
provided that if such three banks in The City of New York are not
quoting as set forth above, then LIBOR shall be LIBOR in effect on such
Interest Determination Date.
DETERMINATION OF PRIME RATE NOTES. If the Interest Rate Basis on this
Note is the Prime Rate, the Prime Rate with respect to any Interest
Determination Date will be determined on the second Business day prior to such
Interest Determination Date and shall be the rate on such date as such rate is
published in H.15(519) under the heading "Bank Prime Loan." If such rate is not
published prior to 3:00 P.M., New York City time, on the related Calculation
Date, then the Prime Rate shall be the arithmetic mean of the rates of interest
publicly announced by each bank that appears on the Reuters Screen USPRIME Page
as such bank's prime rate or base lending rate as in effect for that Interest
Determination Date. If fewer than four such rates but more than on such rate
appear on the Reuters Screen USPRIME Page for such Interest Determination Date,
the Prime Rate shall be the arithmetic mean of the prime rates quoted on the
basis of the actual number of days in the year divided by a 360-day year as of
the close of business on such Interest Determination Date by four major money
center banks in The City of New York selected by the Calculation Agent. If fewer
than two such rates appear on the Reuters Screen USPRIME Page, the Prime Rate
will be determined by the Calculation Agent on the basis of the rates furnished
in The City of New York by three substitute banks or trust companies organized
and doing business under the laws of the United States, or any state thereof,
having total equity capital of at least $500 million and being subject to
supervision or examination by Federal or state authority, selected by the
Calculation Agent to provide such rate or rates; provided, however, that if the
banks or trust companies selected as aforesaid are not quoting as mentioned in
this sentence, the Prime Rate for such Interest Determination Date will be the
Prime Rate in effect on such Interest Determination Date.
"Reuters Screen USPRIME Page" means the display designated as page
"USPRIME" on the Reuters Monitor Money Rates Service (or such other page as may
replace the USPRIME page on that service for the purpose of displaying prime
rates or base lending rates of major United States banks).
DETERMINATION OF TREASURY RATE. If the Interest Rate Basis on this Note
is the Treasury Rate, the Treasury Rate with respect to any Interest
Determination Date shall be the rate for the auction held on such Interest
Determination Date of direct obligations of the United States ("Treasury bills")
having the Index Maturity shown on the face hereof, as published in H.15(519)
12
<PAGE>
under the heading "Treasury bills-auction average (investment)", or, if not so
published by 3:00 P.M., New York City time, on the Calculation Date pertaining
to such Interest Determination Date, the auction average (expressed a bond
equivalent on the basis of a year of 365 or 366 days, as applicable, and applied
on a daily basis) as otherwise announced by the United States Department of the
Treasury. In the event that the results of the auction of Treasury bills having
the Index Maturity shown on the face hereof are not published or reported as
provided above by 3:00 P.M., New York City time, on such Calculation Date or if
no such auction is held on such Interest Determination Date, then the Treasury
Rate shall be calculated by the Calculation Agent and shall be a yield to
maturity (expressed as a bond equivalent on the basis of a year of 365 or 366
days, as applicable, and applied on a daily basis) of the arithmetic mean of the
secondary market bid rates, as of approximately 3:30 P.M., New York City time,
on such Interest Determination Date, of three leading primary United States
government securities dealers selected by the Calculation Agent for the issue of
Treasury bills with a remaining maturity closest to the Index Maturity shown on
the face hereof, provided that if such dealers are not quoting as set forth
above, then the Treasury Rate shall be the Treasury Rate in effect on such
Interest Determination Date.
Any provision contained herein with respect to the determination of an
Interest Rate Basis, the specification of Interest Rate Basis, calculation of
the interest rate applicable to this Note, its payment dates or any other matter
relating hereto may be modified as specified in an Addendum relating hereto if
so specified above.
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, shown on the face hereof. The interest rate on this Note
will in no event be higher than the maximum rate permitted by New York law, as
the same may be modified by United States law of general applicability.
The Calculation Agent shall calculate the interest rate on this Note in
accordance with the foregoing on or before each Calculation Date. The Trustee
will, upon the request of the holder of this Note, provide to such holder the
interest rate hereon then in effect and, if different, the interest rate which
will become effective as of the next Interest Reset Date.
If an event of default with respect to the Notes shall occur and be
continuing, the principal of the Notes 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 66K% 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 the
holder of this Note shall be conclusive and binding upon such holder and upon
13
<PAGE>
all future holders of this Note and of any Note issued upon the registration or
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 any right to institute any proceeding with respect
to the Indenture or any remedy thereunder unless: such holder shall have
previously given to the Trustee written notice of a continuing event of default
with respect to the Notes; 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 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 provision 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 premium, if any) 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 any integral multiple of $1,000 in excess thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Notes are exchangeable for a like aggregate principal amount of Notes of
different authorized denominations, as requested by the holder surrendering the
same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charges payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note is overdue, and neither the Company, the
Trustee, the Security Registrar nor any such agent shall be affected by notice
to the contrary.
14
<PAGE>
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.
15
<PAGE>
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
the alteration or enlargement
or any change whatsoever.
16
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Company to repay this Note (or portion hereof specified below) pursuant to its
terms at a price equal to the principal amount hereof together with interest to
the repayment date, to the undersigned at
- --------------------------------------------------------------------------------
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF THE UNDERSIGNED)
For this Note to be repaid, the Trustee must receive at its Principal
Office, or at such other place or places of which the Company shall from time to
time notify the Holder of this Note, not more than 60 nor less than 30 days
prior to an Optional Repayment Date, if any, shown on the face of this Note,
this Note with this "Option to Elect Repayment" form duly completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be $100,000 or an integral multiple of
$1,000 in excess thereof) which the holder elects to have repaid and specify the
denomination or denominations (which shall be $100,000 or an integral multiple
of $1,000 in excess thereof) of the Notes to be issued to the Holder for the
portion of this Note not being repaid (in the absence of any such specification,
one such Note will be issued for the portion not being repaid).
$
- ---------------------
Dated:
---------------- ----------------------------
NOTICE: The signature on
this Option to Elect
Repayment 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.
--------------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - .....Custodian......
TEN ENT - as tenants by the (Cust) (Minor)
entireties Under Uniform Gifts
JT TEN - as joint tenants with to Minors Act
right of survivorship
and not as tenants in ...................
common (State)
Additional abbreviations may also be used though not in
the above list.
--------------------
FACE OF FIXED RATE GLOBAL MEDIUM-TERM 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 the 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.
FINOVA CAPITAL CORPORATION
FIXED RATE MEDIUM-TERM NOTE, SERIES D
REGISTERED CUSIP No. ________ REGISTERED
No. FXR - PRINCIPAL AMOUNT
$_______________
ORIGINAL ISSUE DATE: INTEREST RATE: MATURITY DATE:
INTEREST PAYMENT DATES: INITIAL REDEMPTION OPTIONAL REPAYMENT
DATE: DATE(S):
DAY COUNT CONVENTION: ORIGINAL ISSUE DISCOUNT:
[ ] 30/360 for the period [ ] Yes
from to [ ] No
[ ] Actual/360 for the period Total Amount of OID:
from to Yield to Maturity:
[ ] Actual Actual for the period Initial Accrual Period:
from to
ADDENDUM ATTACHED:
[ ] Yes
[ ] No
OTHER PROVISIONS:
<PAGE>
FINOVA CAPITAL CORPORATION, a corporation duly organized and existing
under the laws of Delaware (the "Company", which term includes any successor
corporation under the Indenture hereinafter referred to), for value received,
hereby promises to pay to CEDE & CO., or registered assigns, the principal sum
of
DOLLARS
on the Maturity Date shown above (the "Maturity Date"), except to the extent
redeemed or repaid prior to the Maturity Date, and to pay interest thereon at
the rate per annum shown above until the principal hereof is paid or duly made
available for payment. The Company will pay interest on each Interest Payment
Date specified above, commencing on the first Interest Payment Date next
succeeding the Original Issue Date specified above, and on the Maturity Date or
any Redemption Date or Optional Repayment Date (as defined below) (the date of
each such Maturity Date, Redemption Date and Optional Repayment Date and the
date on which principal or an installment of principal is due and payable by
declaration of acceleration pursuant to the Indenture being referred to
hereinafter as a "Maturity" with respect to principal payable on such date);
provided, however, that if the Original Issue Date is between a Record Date (as
defined below) and the an Interest Payment Date, interest payments will commence
on the second Interest Payment Date succeeding the Original Issue Date. Except
as provided above, interest payments will be made on the Interest Payment Dates
shown above. Unless otherwise specified above, the Record Date shall be the date
15 calendar days (whether or not a Business day) prior to the applicable
Interest Payment 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 5 days prior to the date of payment of such
defaulted interest, established by notice given by mail by or on behalf of the
Company to the holder of this Note not less than 15 days preceding such
subsequent record date. Interest payable at Maturity will be payable to the
person to whom the principal is payable. Interest on this Note will accrue from
and including the most recent Interest Payment Date to which interest has been
paid or duly provided for or, if no interest has been paid, from the Original
Issue Date specified above, to, but excluding such Interest Payment Date. If the
Maturity or an Interest Payment Date falls on a day which is not a Business day
as defined below, the payment due on such Maturity or Interest Payment Date will
be paid on the next succeeding Business day with the same force and effect as if
made on such Maturity 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 or Interest Payment Date.
Payment of the principal of and 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 other 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 States of America as at the time of payment is legal tender for payment
of public and private debts, provided the payment of interest on any Interest
Payment Date may be made by check mailed first-class to the address of the
Person entitled thereto as such address shall appear in the Security Register.
2
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This Note is one of a separate series of Securities designated under
the Indenture as "Medium-Term Notes, Series D", unlimited in aggregate principal
amount (the "Notes").
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. Reference herein to "this
Note", "hereof", "herein" and comparable terms shall include an Addendum hereto
if an Addendum is specified above.
Unless the certificate of authentication hereon has been executed by
the Trustee under the Indenture by the manual signature of one of its authorized
signatories, this Note shall not be entitled to any benefit under the Indenture
or be valid or obligatory for any purpose.
3
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IN WITNESS WHEREOF, the Company has caused this Instrument to be duly
executed, manually or by facsimile.
Dated:
FINOVA CAPITAL CORPORATION
By:
--------------------------------------
Samuel L. Eichenfield
Chairman of the Board of Directors,
President and Chief
Executive Officer
By:
--------------------------------------
William J. Hallinan
Secretary
CERTIFICATE OF AUTHENTICATION
This is one of the Securities
issued under the Indenture described herein.
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By:
------------------------------------
Name:
Title:
4
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Reverse
FINOVA CAPITAL CORPORATION
FIXED RATE MEDIUM-TERM NOTE, SERIES D
This Note is one of a duly authorized series of Securities of the
Company (hereinafter called the "Securities"), unlimited as to aggregate
principal amount, issued and to be issued under an Indenture dated as of March
20, 1998 (the "Indenture"), between the Company and The First National Bank of
Chicago, 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 the statement of a respective rights, duties and
immunities thereunder of the Company, the Trustee and the holders of the Notes
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 have a sinking fund and, unless otherwise provided
above in accordance with the provisions of the following paragraphs, is not
redeemable or repayable prior to the Maturity Date stated above. The Indenture
provides for the defeasance of the Notes in certain circumstances.
If so provided above, this Note may be redeemed by the Company on any
date on and after the Initial Redemption Date, if any, set forth above. If no
Initial Redemption Date is set forth above, this Note may not be redeemed prior
to the Maturity Date stated above. On and after the Initial Redemption Date, if
any, this Note may be redeemed at any time in whole or from time to time in part
in increments of $1,000 (provided that any remaining principal hereof shall be
at least equal to $1,000) at the option of the Company at 100% of the principal
amount to be redeemed, together with accrued interest thereon at the applicable
rate payable to the date of redemption (each such date, a "Redemption Date"), on
written notice given not more than 60 nor less than 30 days prior to the
Redemption Date. In the event of redemption of this Note in part only, a new
Note for the unredeemed portion hereof shall be issued in the name of the holder
hereof upon the surrender hereof.
This Note may be subject to repayment at the option of the holder on
any Optional Repayment Date(s), if any, indicated above. If no Optional
Repayment Date(s) are set forth above, this Note may not be so repaid at the
option of the holder hereof prior to the Maturity Date. On any Optional
Repayment Date, this Note shall be repayable in whole or in part in increments
of $1,000 (provided that any remaining principal hereof shall be at least equal
to $1,000) at the option of the holder hereof at a repayment price equal to 100%
of the principal amount to be repaid, together with interest thereon payable to
the date of repayment. For this Note to be repaid in whole or in part at the
option of the holder hereof, this Note must be received, with the form entitled
"Option to Elect Repayment" below duly completed, by the Trustee at its
Principal Office, or such address which the Company shall from time to time
5
<PAGE>
notify the holders of the Notes, not more than 60 nor less than 30 days prior to
the related Optional Repayment Date. Exercise of such repayment option by the
holder hereof shall be irrevocable.
Interest payments on this Note shall include interest accrued from, and
including, the Original Issue Date indicated above, or the most recent date to
which interest has been paid or duly provided for, to, but excluding, the
related Interest Payment Date or Maturity, as the case may be. Interest payments
for this Note shall be computed and paid on the basis of a 360-day year of
twelve 30-day months if the Day Count Convention specified above is "30/360" for
the period specified thereunder, on the basis of the actual number of days in
the related month and a 360-day year if the Day Count Convention specified above
is "Actual/360" for the period specified thereunder or on the basis of the
actual number of days in the related year and month if the Day Count Convention
specified above is "Actual/Actual" for the period specified thereunder.
As used herein, "Business day" means any day other than a Saturday or
Sunday or any other day on which banks in The City of New York are generally
authorized or obligated by law or executive order to close.
Any provision contained herein with respect to the calculation of the
rate of interest applicable to this Note, its payment dates or any other matter
relating hereto may be modified as specified in an Addendum relating hereto if
so specified above.
If an event of default with respect to the Notes shall occur and be
continuing, the principal of the Notes 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 66K% in aggregate principal amount of
the Securities at the time outstanding which are affected thereby. The Indenture
also contains provisions permitting the holders of specified percentages in
principal amount of the Securities of each series at the time outstanding, on
behalf of the holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by holder
of this Note shall be conclusive and binding upon such holder and upon all
future holders of this Note and of any Note issued upon the registration of
transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Note.
As set forth in, and subject to, the provisions of the Indenture, no
holder of any Note will have any right to institute any proceeding with respect
to the Indenture or any remedy thereunder unless: such holder shall have
previously given to the Trustee written notice of a continuing event of default
with respect to the Notes; 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 the Trustee shall have failed to institute such proceeding within 60 days of
6
<PAGE>
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 provision 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 premium, if any) 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 any integral multiple of $1,000 in excess thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Notes are exchangeable for a like aggregate principal amount of Notes of
different authorized denominations, as requested by the holder surrendering the
same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charges payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note is overdue, and neither the Company, the
Trustee, the Security Registrar nor any such agent shall be affected by notice
to the contrary.
All terms used in this Note which are defined in the Indenture and are
not otherwise defined herein, shall have the meanings assigned to them in the
Indenture.
The Indenture and the Notes shall be governed by and construed in
accordance with the laws of the State of New York.
7
<PAGE>
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
the alteration or enlargement
or any change whatsoever.
8
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the Company
to repay this Note (or portion hereof specified below) pursuant to its terms at
a price equal to the principal amount hereof together with interest to the
repayment date, to the undersigned at
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF THE UNDERSIGNED)
For this Note to be repaid, the Trustee must receive at its Principal
Office, or at such other place or places of which the Company shall from time to
time notify the Holder of this Note, not more than 60 nor less than 30 days
prior to an Optional Repayment Date, if any, shown on the face of this Note,
this Note with this "Option to Elect Repayment" form duly completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be $100,000 or an integral multiple of
$1,000 in excess thereof) which the holder elects to have repaid and specify the
denomination or denominations (which shall be $100,000 or an integral multiple
of $1,000 in excess thereof) of the Notes to be issued to the holder for the
portion of this Note not being repaid (in the absence of any such specification,
one such Note will be issued for the portion not being repaid).
$
-------------------
Dated:
-------------- ------------------------------
NOTICE: The signature on this
Option to Elect Repayment
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.
--------------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - .......Custodian.......
TEN ENT - as tenants by the (Cust) (Minor)
entireties Under Uniform Gifts
JT TEN - as joint tenants with to Minors Act
right of survivorship
and not as tenants in ......................
common (State)
Additional abbreviations may also be used though not in
the above list.
--------------------
9
