TRUST INDENTURE
AMONG
FINOVA (CANADA) FINANCE INC.,
FINOVA CAPITAL CORPORATION
AND
CIBC MELLON TRUST COMPANY
Made as of February *, 2000
- iii -
TABLE OF CONTENTS
ARTICLE 1 INTERPRETATION..................................................... 2
1.1 Definitions.......................................................... 2
1.2 Meaning of "outstanding" for Certain Purposes........................ 6
1.3 Special Accounting Provisions........................................ 7
1.4 Interpretation not Affected by Headings.............................. 7
1.5 Number and Gender.................................................... 7
1.6 Applicable Law....................................................... 7
1.7 References........................................................... 7
1.8 Judgments............................................................ 7
1.9 Submission to Jurisdiction........................................... 8
1.10 Currency............................................................ 8
1.11 Language............................................................ 8
1.12 Day Not a Business Day.............................................. 8
ARTICLE 2 ISSUE OF DEBENTURES................................................ 8
2.1 Limit of Issue....................................................... 8
2.2 Creation and Issue of Additional Debentures.......................... 8
2.3 Issue of Registered Global Debenture................................. 11
2.4 Debentures to Rank Pari Passu........................................ 12
2.5 Computation of Interest.............................................. 12
2.6 Signing of Debentures................................................ 13
2.7 Form of Debentures................................................... 13
2.8 Certification of Debentures.......................................... 13
2.9 Interim Debentures................................................... 13
2.10 Mutilation, Loss, Theft or Destruction of Debentures................ 14
2.11 Pledge and Re-Issue of Debentures................................... 14
ARTICLE 3 REGISTRATION, TRANSFER, EXCHANGE AND OWNERSHIP OF DEBENTURES....... 15
3.1 Fully Registered Debentures.......................................... 15
3.2 Registered Global Debentures......................................... 15
3.3 DEALINGS WITH THE DEPOSITARY......................................... 18
3.4 Coupon Debentures.................................................... 19
3.5 Transferee Entitled to Registration.................................. 20
3.6 Exchange of Debentures............................................... 20
3.7 Charges for Registration, Transfer and Exchange...................... 21
3.8 Registers Open for Inspection........................................ 21
3.9 Closing of Registers................................................. 21
3.10 Ownership of Debentures and Coupons................................. 22
3.11 Home Office Payment Agreements...................................... 23
ARTICLE 4 ISSUE OF SERIES OF MEDIUM TERM NOTES............................... 24
4.1 Form and Terms of Series of Medium Term Notes........................ 24
4.2 Issue of Medium Term Notes........................................... 26
4.3 Appointment of Note Agent............................................ 27
4.4 Exchange of Registered Global Note for Medium Term Notes............. 27
ARTICLE 5 GUARANTEE OF MEDIUM TERM NOTES..................................... 27
5.1 Guarantee of Medium Term Notes....................................... 27
5.2 Execution and Delivery of Guarantee.................................. 29
ARTICLE 6 REDEMPTION AND PURCHASE OF DEBENTURES.............................. 30
6.1 Redemption or Purchase of Debentures................................. 30
6.2 Places of Payment.................................................... 30
6.3 Selection for Redemption............................................. 30
6.4 Partial Redemption................................................... 30
6.5 Notice of Redemption................................................. 31
6.6 Payment of Redemption Price.......................................... 31
6.7 Purchase of Debentures............................................... 31
6.8 Cancellation of Debentures........................................... 31
ARTICLE 7 COVENANTS.......................................................... 32
7.1 Payment of Principal, Premium and Interest........................... 32
7.2 Office for Notices, Payments and Registration of Transfer, Etc....... 33
7.3 Appointments to Fill Vacancies in Trustee's Office................... 33
7.4 Trustee's Remuneration and Expenses.................................. 33
7.5 Extension of Time..................................................... 33
7.6 Inspection of Books by Trustee....................................... 34
7.7 Performance of Covenants by Trustee.................................. 34
7.8 Annual Certificate of Corporation.................................... 34
7.9 Annual Certificate of Guarantor...................................... 34
7.10 Maintain Corporate Existence........................................ 34
7.11 Payment of Taxes and Other Claims................................... 34
7.12 Reports to Trustee.................................................. 35
7.13 Compensation of the Trustee......................................... 35
7.14 To Perform Obligations.............................................. 36
7.15 Additional Instruments.............................................. 36
7.16 Restrictive Covenants on Medium Term Notes........................... 36
ARTICLE 8 DEFAULT AND ENFORCEMENT............................................ 38
8.1 Events of Default.................................................... 38
8.2 Acceleration on Default.............................................. 39
8.3 Waiver of Default.................................................... 40
8.4 Proceedings by the Trustee........................................... 40
8.5 Suits by Debentureholders............................................ 41
8.6 Application of Monies Received by Trustee............................ 41
8.7 Distribution of Proceeds............................................. 42
8.8 Immunity of Shareholders, Officers, Directors and Employees.......... 42
8.9 Remedies Cumulative.................................................. 43
8.10 Judgment Against Corporation and Guarantor.......................... 43
8.11 Unconditional Right of Holders to Receive Principal,
Premium and Interest................................................ 43
ARTICLE 9 SATISFACTION AND DISCHARGE......................................... 43
9.1 Cancellation......................................................... 43
9.2 Non-Presentation of Debentures and Coupons........................... 43
9.3 Paying Agent to Repay Monies Held.................................... 44
9.4 Repayment of Unclaimed Monies to Corporation......................... 44
9.5 Satisfaction and Discharge........................................... 44
9.6 Defeasance........................................................... 44
ARTICLE 10 SUCCESSORS........................................................ 46
10.1 General Provisions.................................................. 46
10.2 Status of Successor................................................. 47
ARTICLE 11 MEETINGS OF DEBENTUREHOLDERS...................................... 47
11.1 Right to Convene Meeting............................................ 47
11.2 Notice.............................................................. 48
11.3 Chairman............................................................ 48
11.4 Quorum.............................................................. 48
11.5 Power to Adjourn.................................................... 48
11.6 Show of Hands....................................................... 48
11.7 Poll................................................................ 48
11.8 Voting.............................................................. 49
11.9 Regulations......................................................... 49
11.10 Corporation, Guarantor and Trustee may be Represented.............. 50
11.11 Powers Exercisable by Extraordinary Resolution..................... 50
11.12 Powers Cumulative.................................................. 51
11.13 Meaning of "Extraordinary Resolution.................................. 51
11.14 Minutes............................................................ 52
11.15 Instruments in Writing............................................. 52
11.16 Binding Effect of Resolutions...................................... 52
11.17 Serial Meetings.................................................... 53
ARTICLE 12 SUPPLEMENTAL INDENTURES........................................... 54
12.1 Execution of Supplemental Indentures................................ 54
12.2 Correction of Manifest Errors....................................... 55
ARTICLE 13 CONCERNING THE TRUSTEE............................................ 55
13.1 Trust Indenture Legislation......................................... 55
13.2 Rights and Duties of Trustee........................................ 55
13.3 Evidence, Experts and Advisors...................................... 56
13.4 Documents and Monies Held by Trustee................................ 57
13.5 Action by Trustee to Protect Interests.............................. 57
13.6 Trustee not Required to Give Security............................... 57
13.7 Protection of Trustee............................................... 57
13.8 Replacement of Trustee.............................................. 58
13.9 Appointment of Authenticating Agent................................. 59
13.10 Corporate Trustee Required......................................... 59
13.11 Conflict of Interest............................................... 59
13.12 Acceptance of Trust................................................ 59
13.13 Indemnity to the Trustee........................................... 59
ARTICLE 14 NOTICES........................................................... 59
14.1 Notice to Debentureholders.......................................... 60
14.2 Notice to the Trustee............................................... 60
14.3 Notice to the Corporation........................................... 61
14.4 Notice to the Guarantor............................................. 61
14.5 Mail Service Interruption........................................... 61
ARTICLE 15 EXECUTION......................................................... 61
15.1 Counterparts and Formal Date........................................ 61
Schedule a Form of Registered Global Debenture for Medium Term Note
Schedule B Form of Registered Debenture for Medium Term Note
Schedule C Form of Guarantee
TRUST INDENTURE
THIS INDENTURE is made as of the * day of February, 2000
AMONG:
FINOVA (CANADA) FINANCE INC., a body corporate incorporated under the
laws of the Province of Nova Scotia (the "CORPORATION")
and
FINOVA CAPITAL CORPORATION, a body corporate incorporated under the
laws of the State of Delaware (the "GUARANTOR")
and
CIBC MELLON TRUST COMPANY, a trust company incorporated under the
federal laws of Canada (the "TRUSTEE").
WHEREAS the Corporation deems it necessary for its corporate purposes to
create and issue Debentures to be created and issued in the manner hereinafter
appearing;
AND WHEREAS the Corporation, under the laws relating thereto, is duly
authorized to create and issue the Debentures to be issued as herein provided;
AND WHEREAS all things necessary have been done and performed to make the
Debentures, when certified by the Trustee and issued in accordance with the
terms of this Indenture, valid, binding and legal obligations of the Corporation
with the benefits and subject to the terms of this Indenture and to make this
Indenture a valid and binding indenture in accordance with its terms;
AND WHEREAS the Guarantor owns all of the issued and outstanding shares in
the share capital of the Corporation and has agreed to enter into this Indenture
and the Guarantee to assist the Corporation, for the mutual benefit of the
Corporation and the Guarantor, in the sale of the Medium Term Notes;
AND WHEREAS the Guarantor has duly authorized the entering into of this
Indenture and the Guarantee provided for herein;
AND WHEREAS all acts and things necessary to make the Guarantee to be
endorsed on the Medium Term Notes when executed by the Guarantor and endorsed on
Medium Term Notes executed by the Corporation and certified by or on behalf of
the Trustee as in this Indenture provided, valid, binding and legal obligations
of the Guarantor, and to constitute these presents a valid indenture and
agreement according to its terms, have been done and performed by the Guarantor,
and the execution by the Guarantor of this Indenture and the Guarantee of the
Medium Term Notes have in all respects been duly authorized by the Guarantor;
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AND WHEREAS the Corporation and the Guarantor wish to appoint CIBC Mellon
Trust Company as trustee, to perform certain of the duties hereunder;
AND WHEREAS the foregoing recitals are made as statements of fact by the
Corporation and/or the Guarantor, as the case may be, and not the Trustee;
NOW THEREFORE, in consideration of the premises and respective agreements
set forth herein, the parties hereby agree as set forth below.
ARTICLE 1 INTERPRETATION
1.1 DEFINITIONS. In this Trust Indenture, including the recitals hereto, unless
there is something in the subject matter or context inconsistent therewith, the
following expressions shall have the meanings indicated.
"ADDITIONAL DEBENTURES" means Debentures of any one or more series, other than
Medium Term Notes.
"AFFILIATE" means, in relation to any body corporate, another body corporate:
(a) which is a Subsidiary of the first;
(b) of which the first is a Subsidiary; or
(c) which is a Subsidiary of a body corporate of which the first is
also a Subsidiary.
"AUTHORIZED INVESTMENTS" means short term interest bearing or discount debt
obligations issued or guaranteed by the Government of Canada, a province thereof
or a Canadian chartered bank (which may include an affiliate or related party of
the Trustee including, without limitation, Mellon Bank Canada) provided that
each such obligation is rated at least R1 (middle) by Dominion Bond Rating
Service Limited or any equivalent rating by CBRS Inc.
"Beneficial Owner" means any person holding a beneficial interest in the
Debentures issued in book-entry only form.
"BENEFICIARY REQUEST" means a notice in writing delivered to the Corporation and
signed by the owners of beneficial interests in the Registered Global Debenture
representing the Medium Term Notes as certified by the Depositary and its
participants, which interests represent not less than 10% of the aggregate
principal amount of such Registered Global Debenture, requesting that the Medium
Term Notes represented by such Registered Global Debenture be registered in the
respective names of the owners of the beneficial interest represented by such
Registered Global Debenture.
"BOARD RESOLUTION OF THE CORPORATION" means a resolution duly adopted by the
board of directors of the Corporation and certified by an officer of the
Corporation to be in full force and effect on the date of such certification and
delivered to the Trustee.
"BOARD RESOLUTION OF THE GUARANTOR" means a resolution duly adopted by the board
of directors of the Guarantor and certified by an officer of the Guarantor to be
in full force and effect on the date of such certification and delivered to the
Trustee.
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"BUSINESS DAY", when used with respect to any place of payment or any other
particular location referred to in this Indenture or in the Debentures, means,
unless otherwise specified with respect to any Debentures pursuant to Section
2.2, each Monday to Friday, inclusive, which is not a day on which banking
institutions in that place of payment or other location are authorized or
obligated by law or executive order to close.
"CERTIFICATE OF THE CORPORATION" means a written certificate signed in the name
of the Corporation by:
(a) any two of the chairman, the deputy chairman, the chief executive
officer, the president, the chief financial officer, and a
vice-president;
(b) any one of the foregoing together with one of the treasurer, the
secretary, an assistant treasurer and an assistant secretary;
(c) any one of the foregoing together with a Director; or
(d) any two Directors.
"CERTIFICATE OF THE GUARANTOR" means a written certificate signed in the name of
the Guarantor by:
(a) any two of the chairman, the deputy chairman, the chief executive
officer, the president, the chief financial officer, and a
vice-president;
(b) any one of the foregoing together with one of the treasurer, the
secretary, an assistant treasurer and an assistant secretary;
(c) any one of the foregoing together with a director of the
Guarantor; or
(d) any two directors of the Guarantor.
"CONSOLIDATED NET TANGIBLE ASSETS" means the total of all assets reflected on an
consolidated balance sheet of the Guarantor and its consolidated Subsidiaries,
prepared in accordance with generally accepted accounting principles, at their
net book values (after deducting related depreciation, depletion, amortization
and all other valuation reserves which, in accordance with such principles,
should be set aside in connection with the business conducted), but excluding
goodwill, unamortized debt discount and all other like intangible assets, all as
determined in accordance with such principles, less the aggregate of the current
liabilities of the Guarantor and its consolidated Subsidiaries reflected on such
balance sheet, all as determined in accordance with such principles. For
purposes of this definition, "current liabilities" include all indebtedness for
money borrowed, incurred, issued and assumed or guaranteed by the Guarantor and
its consolidated Subsidiaries, and other payables and accruals, in each case
payable on demand or due within one year of the date of determination of
Consolidated Net Tangible Assets, but shall exclude any portion of long-term
debt maturing within one year of the date of such determination, all as
reflected on such consolidated balance sheet of the Guarantor and its
consolidated Subsidiaries, prepared in accordance with generally accepted
accounting principles.
"CORPORATION" means FINOVA (Canada) Finance Inc. and every successor corporation
to or of FINOVA (Canada) Finance Inc. which shall have complied with the
provisions of ARTICLE 10.
"CORPORATION'S AUDITORS" means the auditors of the Corporation at the date
hereof or any other independent firm of accountants duly appointed as auditors
of the Corporation.
"COUNSEL" means a barrister or solicitor or firm of barristers and solicitors
retained or employed by the Trustee or retained or employed by the Corporation
and acceptable to the Trustee.
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"DEBENTUREHOLDERS" or "HOLDERS" means, with respect to registered Debentures,
the several Persons for the time being entered in the registers hereinafter
mentioned as holders thereof, with respect to unregistered Debentures, the
bearers thereof for the time being and with respect to Registered Global
Debentures, the Persons for the time being entered in the registry maintained by
the Depositary for beneficial holders of Registered Global Debentures.
"DEBENTUREHOLDERS' REQUEST" means an instrument signed in one or more
counterparts by the Holder or Holders of not less than 25% in principal amount
of the Debentures outstanding for the time being, requesting the Trustee to take
some action or proceeding specified therein.
"DEBENTURES" means the debentures, notes or other evidences of indebtedness of
any one or more series of the Corporation issued and certified hereunder and for
the time being outstanding, whether in definitive or interim form, and without
limiting the generality of the foregoing:
(a) "COUPON DEBENTURES" means Debentures which are issued with
interest coupons attached;
(b) "COUPONS" means the interest coupons attached or pertaining to
coupon Debentures;
(c) "FULLY REGISTERED DEBENTURES" means Debentures without coupons
which are registered as to principal and interest as hereinafter
provided;
(d) "REGISTERED GLOBAL DEBENTURE" means a Debenture representing all
or part of any series of Debentures that is issued to and
registered in the name of the Depositary for such series, or its
nominee, pursuant to Section 2.3 or 4.1, and that bears the legend
prescribed in Section 2.3;
(e) "REGISTERED DEBENTURES" means and includes fully registered
Debentures and coupon Debentures registered as to principal only;
(f) "UNREGISTERED DEBENTURES" means Debentures which are not
registered Debentures; and
(g) "U.S. DEBENTURES" Means any series of debentures issued in the
United States of America and registered with the United States
Securities and Exchange Commission from time to time upon and
subject to the provisions and conditions contained herein.
"DEPOSITARY" means, with respect to the Debentures of any series issuable or
issued in the form of one or more Registered Global Debentures, the Person
designated as Depositary by the Corporation pursuant to Section 2.2(d) or
Section 4.1 until a successor Depositary shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Depositary" shall mean
each Person who is then a Depositary hereunder; and if at any time there is more
than one such Person, "Depositary" as used with respect to the Debentures of any
such series shall mean each Depositary with respect to the Registered Global
Debenture of each series.
"DIRECTOR" means a director of the Corporation for the time being, and reference
to action by the directors or board of directors means action by the directors
of the Corporation as a board or, whenever duly empowered, action by an
executive committee or other duly authorized committee of the board.
"EVENT OF DEFAULT" means any event specified in Section 8.1, which has continued
for the period of time, if any, therein designated.
"EXTRAORDINARY RESOLUTION" has the meaning attributed to it in Section 11.13.
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"GUARANTEE" means the guarantee of the Guarantor endorsed on a Medium Term Note.
"GUARANTOR" means FINOVA Capital Corporation and every successor corporation to
or of FINOVA Capital Corporation which shall have complied with the provisions
of ARTICLE 10.
"INSOLVENCY PROCEEDING" means any proceedings:
(a) under the BANKRUPTCY AND INSOLVENCY ACT (Canada) or the COMPANIES'
CREDITORS ARRANGEMENT ACT (Canada) or under any other laws or
statutes of any jurisdiction relating to bankruptcy, insolvency,
adjustment of debt, dissolution, liquidation, winding-up or
compromise or moratorium of debt or analogous laws; or
(b) the appointment of a receiver of property or any part thereof
which is a substantial part thereof.
"LIEN" means any lien, charge, claim, security interest, pledge, hypothecation,
right of another under any conditional sale or other title retention agreement,
or any other encumbrance affecting title to property. Without limiting the
generality of the foregoing, the sale of property used or useful in the business
of the seller with the intention of retaining the use thereof under a lease, or
any other comparable arrangement commonly referred to as a "sale and leaseback,"
shall be deemed to create a Lien on such property.
"MEDIUM TERM NOTES" shall have the meaning ascribed in Subsection 4.1(a).
"PAYING AGENT" means any Person, which may be the Corporation, authorized by the
Corporation to pay the principal of, premium, if any, and interest on any
Debentures on behalf of the Corporation.
"PARTICIPANT" means a participant in the record entry and securities transfer
system which is administered by the Depositary in accordance with the operating
rules and procedures of its depositary service for book-entry only securities in
force from time to time, or any successor system.
"PERIODIC OFFERING" means an offering of Debentures of a series from time to
time, the specific terms of which Debentures, including, without limitation, the
rate or rates of interest, if any, thereon, the stated maturity or maturities
thereof and the redemption provisions, if any, with respect thereto, are to be
determined by the Corporation upon or prior to the original issuance of such
Debentures.
"PERSON" means an individual, a corporation, a partnership, a joint venture, an
association, a joint stock company, a trust, an unincorporated organization or a
government or an agency or a political subdivision thereof; and pronouns have a
similarly extended meaning.
"RESTRICTED SUBSIDIARY" means any Subsidiary of the Guarantor which is
designated as such by a Board Resolution of the Guarantor.
"SEC" means the United States Securities and Exchange Commission.
"SUBSIDIARY" means any corporation at least a majority of the Voting Shares of
which shall at the time be owned, directly or indirectly, by the Corporation, by
the Guarantor, by one or more Subsidiaries or by the Guarantor and one or more
Subsidiaries.
"TRUST INDENTURE", "INDENTURE", "HEREIN", "HEREBY", "HEREOF" and similar
expressions mean or refer to this Indenture and include any and every Indenture,
deed or instrument supplemental or ancillary hereto; and the expressions
"ARTICLE" and "SECTION" followed by a number mean and refer to the specified
Article or Section of this Indenture.
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"TRUST INDENTURE ACT" means the United States TRUST INDENTURE ACT OF 1939 as in
force at the date as of which this Indenture was executed.
"TRUST INDENTURE LEGISLATION" means, at any time, (i) the provisions of the
COMPANIES ACT (Nova Scotia) and regulations thereunder as amended or re-enacted
from time to time, (ii) the provisions of any other applicable statute of Canada
or any province thereof and the regulations thereunder, and (iii) if applicable,
the provisions of the Trust Indenture Act, as amended, and regulations
thereunder, but only to the extent applicable under Rule 4d-9 under the Trust
Indenture Act, in each case, relating to trust indentures and to the rights,
duties, and obligations of trustees under trust indentures and of corporations
issuing debt obligations under trust indentures to the extent that such
provisions are at such time in force and applicable to this Indenture.
"TRUSTEE" means CIBC Mellon Trust Company until a successor trustee shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "Trustee" shall mean each successor trustee.
"VOTING SHARES" means shares of any class of a corporation having under all
circumstances the right to vote for the election of the directors of such
corporation, provided that, for the purpose of this definition, shares which
only carry the right to vote conditionally on the happening of an event shall
not be considered Voting Shares whether or not such event shall have happened.
"WRITTEN ORDER OF THE CORPORATION" means a written order signed in the name of
the Corporation by any one or more of its chairman, deputy chairman, chief
executive officer, president, chief financial officer, a vice-president,
secretary, treasurer, an assistant secretary or an assistant treasurer, or by
any one or more of the Directors; and "Written Request of the Corporation" has a
similar meaning.
1.2 MEANING OF "OUTSTANDING" FOR CERTAIN PURPOSES. Every Debenture certified and
delivered by the Trustee hereunder shall be deemed to be outstanding until it
shall be cancelled or delivered to the Trustee for cancellation or monies for
the payment or redemption thereof shall be set aside under Section 9.2 or under
the terms of the Debentures, as the case may be; provided, however, that:
(a) Debentures which have been partially redeemed or purchased shall
be deemed to be outstanding only to the extent of the unredeemed
or unpurchased part of the principal amount thereof;
(b) where a new Debenture has been issued in substitution for a
Debenture which has been lost, mutilated, stolen or destroyed,
only one of them shall be counted for the purpose of determining
the aggregate principal amount of Debentures outstanding; and
(c) for the purpose of any provision of this Indenture entitling
Holders of outstanding Debentures to vote, sign consents,
requisitions or other instruments or take any other action under
this Indenture, Debentures owned legally or equitably by the
Corporation, the Guarantor or any Affiliate thereof shall be
disregarded except that:
(i) for the purpose of determining whether the Trustee shall be
protected in relying on any such vote, consent,
requisition, instrument or other action, only the
Debentures which are certified in writing by a Certificate
of the Corporation, or a Certificate of the Guarantor, as
the case may be, as being so owned shall be so disregarded,
and
(ii) Debentures so owned which have been pledged in good faith
other than to the Corporation, the Guarantor or any
Affiliate thereof shall not be so disregarded if the
pledgee shall establish to the satisfaction of the Trustee
the pledgee's right to vote such Debentures in his
discretion free from the control of the Corporation, the
Guarantor or any Affiliate thereof.
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1.3 SPECIAL ACCOUNTING PROVISIONS. For the purposes of this Indenture and in
respect of the Medium Term Notes and any Additional Debentures and the
determinations required to be made under any of the covenants herein contained
which relate to the Medium Term Notes and any Additional Debentures and the
definitions set forth in Section 1.1, the following shall apply:
(a) whenever any conversion of lawful money of the United States of
America or of any other currency or currency unit into lawful
money of Canada or vice versa is required herein, such conversion
shall, unless otherwise provided herein, be at a rate of exchange
determined by the Corporation as being made in accordance with
generally accepted accounting principles;
(b) debt for any period may be determined to be not more than a stated
amount, without determining the exact amount thereof;
(c) all determinations shall be made in accordance with generally
accepted accounting principles and shall give effect to
retirements of securities to be affected substantially
concurrently with or prior to any issue of Debentures; and
(d) all references herein to generally accepted accounting principles
shall refer to generally accepted accounting principles from time
to time utilized in Canada or, in the case of accounting terms
used in connection with the Guarantor or any of its Subsidiaries
other than the Corporation, in the United States, consistently
applied by the Corporation and the Guarantor, as applicable,
except for any changes in any method of accounting or changes in
accounting policies which may be required by any regulatory
authority or may be implemented by the Corporation or the
Guarantor as a result of any changes usual to the business of the
Corporation or the Guarantor, and all financial statements and
other financial data provided pursuant to this Indenture shall be
prepared, and all accounting terms used herein shall be construed,
in accordance with such principles.
1.4 INTERPRETATION NOT AFFECTED BY HEADINGS. The division of this Indenture into
Articles and Sections, Subsections, the provision of a table of contents and the
insertion of headings are for convenience of reference only and shall not affect
the construction or interpretation hereof.
1.5 NUMBER AND GENDER. Words importing the singular number include the plural
and vice versa, words importing gender include the masculine, feminine and
neuter genders and words importing individuals shall include firms and
corporations and vice versa.
1.6 APPLICABLE LAW. This Indenture, the Debentures and the Guarantee and any
coupons shall be governed by and construed in accordance with the laws of the
Province of Alberta and the laws of Canada applicable therein and shall be
treated in all respects as contracts made and performed in the Province of
Alberta.
1.7 REFERENCES. Unless there is something in the context or subject matter
inconsistent therewith, all references herein to Articles, Sections, Subsections
and other subdivisions refer to the corresponding Articles, Sections and other
subdivisions of this Indenture.
1.8 JUDGMENTS. If a judgment or order is rendered by a court of any particular
jurisdiction for the payment of any amounts owing to the Trustee or any Holder
under this Indenture, the Debentures or the Guarantee or under a judgment or
order of a court of any other jurisdiction in respect thereof or for the payment
of damages in respect thereof and any such judgment or order is expressed in a
currency (herein called the "JUDGMENT CURRENCY") other than lawful money of
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Canada, the Corporation and, in the case of the Medium Term Notes, failing the
Corporation the Guarantor, shall indemnify and hold the Trustee and the Holders
harmless against any deficiency arising or resulting from any variation in rates
of exchange between the Judgment Currency and lawful money of Canada occurring
between (i) the date on which any amount expressed in lawful money of Canada is
converted, for the purposes of making or filing any claim resulting in any
judgment or order, into an equivalent amount in the Judgment Currency, and (ii)
the date or dates of payment of such amount (or part thereof) or of discharge of
such first-mentioned judgment or order (or part thereof) as appropriate. This
indemnity shall constitute a separate and independent obligation from the other
obligations contained in this Indenture, the Debentures and the Guarantee,
respectively, shall give rise to a separate and independent cause of action and
shall apply irrespective of any indulgence granted by any Holder or the Trustee
from time to time and shall continue in full force and effect notwithstanding
any judgment or order for a liquidated sum or sums in respect of amounts due
hereunder or under any judgment or order.
1.9 SUBMISSION TO JURISDICTION. The Trustee or (where entitled to do so under
the provisions contained herein) any Holder shall be entitled to take
proceedings against the Corporation and, if applicable, the Guarantor in the
courts of any province of Canada in respect of their obligations hereunder and
under the Debentures and Guarantee. The Guarantor hereby submits for all
purposes of, or in connection with, this Indenture, the Medium Term Notes and
Guarantee to the non-exclusive jurisdiction of the courts of the Province of
Alberta and appoints for such purposes any director or officer of the
Corporation for the time being to accept service of process in the Province of
Alberta on the Guarantor's behalf.
1.10 CURRENCY. All references to currency herein shall unless otherwise provided
be to lawful money of Canada.
1.11 LANGUAGE. This document is drawn up in English at the express wish of the
parties. C'est le volante expresse des parties que cette entente soit redigee en
anglais. In the event of any inconsistency between the English and French
versions, in any, of the Debentures and any coupons, the English version shall
govern.
1.12 DAY NOT A BUSINESS DAY. In the event that an action is required to be taken
hereunder on a day which is not a Business Day, then such action shall be
required to be taken on or before the requisite time on the first Business Day
thereafter.
ARTICLE 2
ISSUE OF DEBENTURES
2.1 LIMIT OF ISSUE. The aggregate principal amount of Debentures which may be
authorized and outstanding at any one time hereunder is unlimited. The
Debentures may be issued in several series as herein provided.
2.2 CREATION AND ISSUE OF ADDITIONAL DEBENTURES.
(a) The Additional Debentures may be issued in one or more series and
the Debentures of each such series shall rank equally and PARI
PASSU with all other unsecured and unsubordinated debt of the
Corporation. There shall be established herein, in or pursuant to
one or more resolutions of the Directors or in one or more
indentures supplemental hereto, prior to the initial issuance of
Additional Debentures of any particular series:
(i) the designation of the Debentures of the series, (which
need not include the term "Debentures") which shall
distinguish the Debentures of the series from the
Debentures of all other series;
FINOVA Trust Indenture Page 9 of 61
(ii) any limit upon the aggregate principal amount of the
Debentures of the series that may be certified and
delivered under this Indenture (except for Debentures
certified and delivered upon registration of, transfer of,
amendment of, or in exchange for, or in lieu of, other
Debentures of the series pursuant to Sections 2.9, 2.10 or
2.11 or ARTICLE 3);
(iii) the date or dates, or the method by which such date or
dates will be determined or extended, on which the
principal of the Debentures of the series is payable;
(iv) the rate or rates at which the Debentures of the series
shall bear interest, if any, the date or dates from which
such interest shall accrue, on which such interest shall be
payable and on which a record, if any, shall be taken for
the determination of holders to whom such interest shall be
payable and/or the method or methods by which such rate or
rates or date or dates shall be determined;
(v) the place or places where the principal of, premium, if
any, and interest, if any, on Debentures of the series
shall be payable or where any Debentures of the series may
be surrendered for registration of transfer or exchange
and, if different than the location specified in Section
14.3, the place or places where notices or demands to or
upon the Corporation in respect of the Debentures of the
series and this Indenture may be served;
(vi) the right, if any, of the Corporation to redeem Debentures
of the series, in whole or in part, at its option and the
period or periods within which, the price or prices at, and
any terms and conditions upon, which Debentures of the
series may be so redeemed, pursuant to any sinking fund or
otherwise;
(vii) the obligation, if any, of the Corporation to redeem,
purchase or repay Debentures of the series pursuant to any
mandatory redemption, sinking fund or analogous provisions
or at the option of a Holder thereof and the price or
prices at, the period or periods within, the date or dates
on, and any terms and conditions upon, which Debentures of
the series shall be redeemed, purchased or repaid, in whole
or in part, pursuant to such obligation;
(viii) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Debentures of
the series shall be issuable;
(ix) any trustees, depositaries, authenticating or Paying
Agents, transfer agents or registrars or any other agents
with respect to the Debentures of the series;
(x) any deletions from, modifications of or additions to the
events of default or covenants of the Corporation with
respect to the Debentures of the series, whether or not
such events of default or covenants are consistent with the
events of default or covenants contained in this Indenture;
(xi) whether and under what circumstances the Debentures of the
series will be convertible into or exchangeable for
securities of any Person;
(xii) whether such Debentures are to be issuable either
temporarily or permanently, as global securities and, if
so, whether beneficial owners of interests in any such
global security may exchange such interests for Debentures
of such series and of like tenor of any authorized form and
FINOVA Trust Indenture Page 10 of 61
denomination and the circumstances under which any such
exchanges may occur, and if Debentures of the series are to
be issuable as a global security, the identity of the
Depositary for such series;
(xiii) if other than Canadian currency, the currency or currency
unit in which the Debentures of the series are issuable and
any provisions with respect to exchange rates and an
exchange rate agent and if the Holders have an option to
receive payments in one of a number of currencies or
currency units, the method of such issuance and the method
of determining the exchange rate; and
(xiv) any other terms of the Debentures of the series (which
terms shall not be inconsistent with the provisions of this
Indenture).
(b) The Additional Debentures of any series may be of different
denominations and forms (either coupon Debentures or fully
registered Debentures or one or more Registered Global Debentures
or any combination thereof) and may contain such variations of
tenor and effect, not inconsistent with the provisions of this
Indenture, as are incidental to such differences of denomination
and form including variations in the provisions for the exchange
of Additional Debentures of different denominations or forms and
in the provisions for the registration or transfer of Additional
Debentures, and any series of Additional Debentures may consist of
Additional Debentures having different dates of issue, different
dates of maturity, different rates of interest and/or different
redemption prices, if any, and/or different sinking fund or
analogous provisions, if any, and/or partly of Debentures carrying
the benefit of a sinking fund and partly of Debentures with no
sinking fund provided therefor.
(c) Subject to the foregoing provisions and subject to any limitation
as to the maximum principal amount of Additional Debentures of any
particular series, any of the Additional Debentures may be issued
as part of any series of Debentures previously issued, in which
case they shall bear the same designation and designating letters
or numbers as have been applied to such similar prior issue and
shall be numbered consecutively upwards in respect of each
denomination of Debentures in like manner and following the
numbers of the Debentures of such prior issue.
(d) Before the issue of any Additional Debentures of any series
subsequent to the Medium Term Notes, the Corporation shall execute
and deliver to the Trustee an indenture supplemental hereto for
the purpose of establishing the terms thereof and the forms, if
any, and denominations in which they may be issued, and the
appointment of any Depositary or any Paying Agent, and the Trustee
shall execute and deliver such supplemental indenture pursuant to
ARTICLE 12.
(e) Whenever any series of Additional Debentures subsequent to the
Medium Term Notes shall have been authorized as aforesaid, such
Additional Debentures may be from time to time executed by the
Corporation and, if applicable, the Guarantor and delivered to the
Trustee and shall be certified by the Trustee and delivered by it
to or to the order of the Corporation upon receipt by and deposit
with the Trustee of the following:
(i) a Board Resolution of the Corporation approving the
creation and issue of Additional Debentures of the series
in the aggregate principal amount therein specified,
designating the series of such Additional Debentures,
authorizing their execution and delivery and approving and
authorizing the execution by the Corporation and delivery
to the Trustee of an indenture supplemental hereto
providing for the terms and provisions of the Additional
Debentures of such series;
FINOVA Trust Indenture Page 11 of 61
(ii) if applicable, a Board Resolution of the Guarantor
authorizing the execution of a guarantee of the Additional
Debentures of the series and approving and authorizing the
execution by the Guarantor and delivery to the Trustee of
an indenture supplemental hereto providing for the terms
and provisions of the guarantee of the Additional
Debentures of such series;
(iii) an indenture supplemental hereto in form satisfactory to
the Trustee providing for the terms and provisions of the
Additional Debentures of such series and the guarantee of
such Additional Debentures, if any, in each case duly
executed on behalf of the Corporation and, if applicable,
the Guarantor;
(iv) a Certificate of the Corporation stating that as of the
date of delivery of the documents in paragraphs 2.2(e)(i),
(ii), and (iii) to the Trustee, no Event of Default has
occurred which is continuing and that it has complied with
all the requirements and conditions of this Indenture and
any indenture supplemental thereto in connection with the
issue of the Additional Debentures of which certification
is requested;
(v) if applicable, a Certificate of the Guarantor stating that
as of the date of delivery of the documents in paragraphs
2.2(e)(i), (ii) and (iii) to the Trustee, the Guarantor has
complied with all the requirements and conditions of this
Indenture and any indenture supplemental thereto in
connection with the issue of the Additional Debentures of
which certification is requested;
(vi) such reports and certificates, if any, as may be required
by any provision hereof to evidence compliance with any
covenant restricting the issuance of debt;
(vii) a Written Order of the Corporation for the certification
and delivery of a specified principal amount of Additional
Debentures; and
(viii) an opinion of Counsel that all legal requirements imposed
by this Indenture, and any indenture supplemental thereto,
or by law in connection with the proposed issue of
Additional Debentures have been complied with by the
Corporation.
(f) No Additional Debentures shall be certified or delivered hereunder
if, to the knowledge of the Trustee, an Event of Default shall
have occurred and be continuing.
2.3 ISSUE OF REGISTERED GLOBAL DEBENTURE.
(a) If the Corporation shall establish that the Debentures of a series
are to be issued in whole or in part in the form of one or more
Registered Global Debentures, then the Corporation shall execute
and the Trustee shall certify and deliver one or more Registered
Global Debentures that shall:
(i) represent an aggregate amount equal to the aggregate
principal amount of the outstanding Debentures of such
series to be represented by one or more Registered Global
Debentures;
(ii) be registered in the name of the Depositary for such
Registered Global Debenture or Debentures or the nominee of
such Depositary;
(iii) be delivered by the Trustee to such Depositary or pursuant
to such Depositary's written instructions; and
FINOVA Trust Indenture Page 12 of 61
(iv) bear a legend substantially as follows, or such other or
additional legends as may be required by the relevant
Depositary from time to time:
"This Debenture is a Registered Global Debenture
within the meaning of the Indenture hereinafter
referred to and is registered in the name of a
Depositary or a nominee thereof. This Debenture may
not be transferred to, registered in the name of, or
exchanged for Debentures registered in the name of,
any Person other than the Depositary or a nominee
thereof except in the limited circumstances
described in the Indenture. Every Debenture
authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, this
Debenture shall be a Registered Global Debenture
subject to the foregoing, except in such limited
circumstances described in the Indenture."
(b) Each Depositary designated for a Registered Global Debenture must,
at the time of its designation and at all times while it serves as
such Depositary, be a clearing agency registered or designated
under the securities legislation of the jurisdiction applicable to
the issue of such Debentures, and under any other applicable
statute or regulation.
(c) Subject to subsections 3.2(d) and 3.2(e), neither the Corporation
nor the Trustee shall be under any obligation to deliver to
Participants or Beneficial Owners, nor shall the participants or
the beneficial owners have any right to require the delivery of, a
certificate or other instrument evidencing an interest in a
Registered Global Debenture.
2.4 DEBENTURES TO RANK PARI PASSU. All Debentures issued pursuant to the
provisions of this Indenture shall rank PARI PASSU without discrimination,
preference or priority whatever may be the actual date thereof or of the
certification thereof or terms of issue of the same respectively, save only as
to purchase or sinking fund, amortization fund or analogous provisions, if any,
applicable to different series.
2.5 COMPUTATION OF INTEREST.
(a) Fully registered Debentures or Registered Global Debentures
originally issued hereunder shall bear interest from their
respective dates of certification. Fully registered Debentures or
Registered Global Debentures issued hereunder upon exchange or in
substitution for previously issued Debentures shall bear interest
from the interest payment date next preceding their respective
dates of certification unless such date of certification be an
interest payment date in which event such Debentures shall bear
interest from such interest payment date. Debentures subject to a
Periodic Offering shall bear interest from their date of
certification or from the last interest payment date to which
interest shall have been paid or made available for payment on
such Debentures, whichever shall be later.
(b) Coupon Debentures shall bear interest from their respective dates.
The coupons, if any, matured at the date of delivery by the
Trustee of any coupon Debenture shall be detached therefrom and
cancelled before delivery, unless such Debenture is being issued
in exchange or in substitution for another Debenture (whether in
interim or definitive form) and such matured coupons represent
unpaid interest to which the Holder of such exchanged or
substituted Debenture is entitled.
(c) Except as otherwise specified as contemplated by Section 2.2 with
respect to any Debentures, interest on the Debentures of each
series shall be computed on the basis of a 365 or 366 day year (as
FINOVA Trust Indenture Page 13 of 61
the case may be). For the purposes of disclosure under the
Interest Act (Canada), the yearly rate of interest which is
equivalent to the rate payable with respect to any Debentures is
the rate payable with respect to such Debentures multiplied by the
actual number of days in the year for which such calculation is
made and divided by 365 or 366, as the case may be.
2.6 SIGNING OF DEBENTURES. The Debentures shall be signed by any two of the
chairman, the chief executive officer, the president, the chief financial
officer, the vice-president finance, the treasurer and the assistant treasurer
of the Corporation and the coupons, if any, shall be signed by any one of the
said officers of the Corporation. The signatures of such officers may be
mechanically reproduced and Debentures and coupons bearing such mechanical
signatures shall be binding upon the Corporation as if they had been manually
signed by such officers. Any Debenture or coupon signed as aforesaid shall be
valid and binding upon the Corporation, notwithstanding that any of the persons
whose manual or mechanical signature appears on any Debenture or coupon as one
of such officers may no longer hold office at the date of this Indenture or at
the date of such Debenture or coupon or at the date of certification and
delivery thereof.
2.7 FORM OF DEBENTURES. The Debentures of any series may be engraved,
lithographed, printed, mimeographed or typewritten, or partly in one form and
partly in another, as the Corporation may determine or as otherwise may be
provided herein.
2.8 CERTIFICATION OF DEBENTURES.
(a) No Debenture shall be issued or, if issued, shall be obligatory or
entitle the Holder to the benefit hereof until it has been
certified by the Trustee substantially in the form applicable to
such Debentures or in some other form approved by the Trustee and
such certification by the Trustee upon any Debenture shall be
conclusive evidence as against the Corporation that the Debenture
so certified has been duly issued hereunder and is a valid
obligation of the Corporation and that the Holder is entitled to
the benefit hereof.
(b) The certificate of the Trustee on Debentures or interim Debentures
issued hereunder shall not be construed as a representation or
warranty by the Trustee as to the validity of this Indenture or of
the Debentures or interim Debentures (except the due certification
thereof) and the Trustee shall in no respect be liable or
answerable for the use made of the Debentures or interim
Debentures or any of them or of the proceeds thereof. The
certificate of the Trustee signed on any definitive or interim
Debentures shall, however, be a representation and warranty by the
Trustee that said definitive or interim Debentures have been duly
certified by the Trustee pursuant to the provisions of this
Indenture.
2.9 INTERIM DEBENTURES. Pending the delivery of definitive Debentures of any
series to the Trustee, the Corporation may issue and the Trustee shall certify
in lieu thereof interim Debentures, with or without coupons, in such forms and
in such denominations and signed in such manner as the Trustee and the
Corporation may approve, entitling the Holders thereof to definitive Debentures
of the said series and any coupons relating thereto in any authorized
denominations when the same are ready for delivery; provided, however, that the
total amount of interim Debentures shall not exceed the aggregate principal
amount of Debentures of such series authorized for issue. When so issued and
certified, such interim Debentures shall, for all purposes, be deemed to be
Debentures and, pending the exchange thereof for definitive Debentures, the
Holders of the said interim Debentures shall be deemed to be Debentureholders
FINOVA Trust Indenture Page 14 of 61
and entitled to the benefit of this Indenture to the same extent and in the same
manner as though the said exchange had actually been made. Forthwith after the
Corporation shall have executed and delivered the definitive Debentures to the
Trustee, the Trustee shall at the Corporation's expense, call in for exchange
all interim Debentures that shall have been issued and forthwith after such
exchange shall cancel the same together with all unmatured coupons (if any)
pertaining thereto. No charge shall be made by the Corporation or the Trustee to
the Holders of such interim Debentures for such exchange thereof. All interest
paid upon interim Debentures without coupons shall be noted thereon by the
Paying Agent as a condition precedent to such payment unless paid by cheque to
the registered Holders thereof.
2.10 MUTILATION, LOSS, THEFT OR DESTRUCTION OF DEBENTURES.
(a) In case any of the Debentures issued and certified hereunder or
coupons pertaining thereto shall become mutilated or be lost,
destroyed or stolen, the Corporation in its discretion may issue
and thereupon the Trustee shall certify and deliver a new
Debenture or coupon of like date and tenor as the one mutilated,
lost, destroyed or stolen in exchange for and in place of and upon
cancellation of such mutilated Debenture or coupon or in lieu of
and in substitution for such lost, destroyed or stolen Debenture
or coupon and the new Debenture or coupon shall be in a form
approved by the Trustee and shall be entitled to the benefit
hereof and rank equally in accordance with its terms with all
other Debentures or coupons issued or to be issued hereunder.
(b) The applicant for the issue of a new Debenture or coupon pursuant
to this Section 2.10 shall bear the cost of the issue thereof and
in case of loss, destruction or theft shall, as a condition
precedent to the issue thereof, provide to the Corporation and to
the Trustee such evidence of ownership and of the loss,
destruction or theft of the Debenture or coupon so lost, destroyed
or stolen as shall be satisfactory to the Corporation and the
Trustee in their discretion and such applicant may also be
required to provide indemnity in amount and form satisfactory to
the Corporation and the Trustee in their discretion, and shall pay
the reasonable charges of the Corporation and the Trustee in
connection therewith.
2.11 PLEDGE AND RE-ISSUE OF DEBENTURES. Provided no Event of Default has
occurred which is continuing, all or any of the Debentures may be pledged,
hypothecated or charged from time to time by the Corporation as security for
advances or loans to, or for debt or other obligations of, the Corporation and,
when redelivered to the Corporation or its nominees on or without payment,
satisfaction, release or discharge in whole or in part of any such advances,
loans, debt or obligations, such Debentures and all or any of the Debentures
which, pursuant to any provisions of the Debentures, may be purchased in the
open market or by tender or by private contract, may be held by the Corporation
for such period or periods as it deems expedient and shall (subject to any rule
of law to the contrary or pursuant to any provision of the Debentures or of this
Indenture or pursuant to a resolution of the Directors, which provision or
resolution requires cancellation and retirement of such Debentures so acquired),
while the Corporation remains in possession thereof, be treated as unissued
Debentures and accordingly may be issued or re-issued, pledged or charged, sold
or otherwise disposed of as and when the Corporation may think fit, and all such
Debentures so issued or re-issued or pledged or charged, sold or otherwise
disposed of before but not after the respective dates of maturity thereof shall,
subject to the provisions of Section 1.2, continue to be entitled, as upon their
original issue, to the benefit of all the terms, conditions, rights, priorities
and privileges hereby attached to or conferred on Debentures issued hereunder.
ARTICLE 3
REGISTRATION, TRANSFER, EXCHANGE AND OWNERSHIP OF DEBENTURES
3.1 FULLY REGISTERED DEBENTURES.
(a) With respect to each series of Debentures issuable in whole or in
part as fully registered Debentures, unless otherwise provided in
the supplemental Indenture establishing the terms thereof, the
Corporation shall cause to be kept by the Trustee, at its
principal office in Xxxxxxx, Xxxxxxx, a register in which shall be
entered the names and addresses of the Holders of fully registered
Debentures of such series and particulars of the Debentures held
FINOVA Trust Indenture Page 15 of 61
by them respectively. Unless otherwise provided in this Indenture
or in any supplemental Indenture, the Corporation shall also, with
respect to each series of Debentures issuable as fully registered
Debentures, cause to be provided facilities for the exchange and
transfer of fully registered Debentures by and at the principal
office of the Trustee in Xxxxxxx, Xxxxxxx. The Corporation may, in
consultation with the Trustee, from time to time provide
additional facilities for such registration, exchange and transfer
at other offices of the Trustee or at other agencies, as
registrar.
(b) No transfer of a fully registered Debenture shall be valid unless:
(i) made at one of the offices or other agencies referred to in
Subsection 3.1(a) by the registered Holder or his
executors, administrators or other legal representatives or
his or their attorney duly appointed by an instrument in
writing in form and execution satisfactory to the Trustee
and upon compliance with such reasonable requirements as
the Trustee may prescribe; and
(ii) the name of the transferee has been noted on the Debenture
by the Trustee or other agent.
(c) The registered Holder of a fully registered Debenture may at any
time and from time to time have the registration of such Debenture
transferred from the register on which the registration thereof
appears to another authorized register upon compliance with such
reasonable requirements as the Trustee and/or other registrar may
prescribe and upon payment of a reasonable fee to be fixed by the
Trustee. Such change of registration shall be noted on such
Debenture by the Trustee or other registrar unless a new Debenture
shall be issued upon such change of registration.
3.2 REGISTERED GLOBAL DEBENTURES.
(a) With respect to each series of Debentures issuable in whole or in
part in the form of one or more Registered Global Debentures, the
Corporation shall cause to be kept by the Trustee at its principal
office in Toronto, Ontario or such other registrar as the
Corporation, with the approval of the Trustee, may appoint at such
place or places, if any, as may be specified in the Debentures of
such series or as the Corporation may designate with the approval
of the Trustee, registers in which shall be entered the name and
address of the Depositary or its nominee for each such Registered
Global Debenture and particulars of the Registered Global
Debenture held by it, and such registration shall be noted on the
Registered Global Debenture by the Trustee or other registrar.
With respect to any Debentures of such series that are at any time
not represented by one or more Registered Global Debentures, the
provisions of Section 3.1 or Section 3.4, whichever are
applicable, shall govern with respect to registrations === and
transfers.
(b) Notwithstanding any other provision of this ARTICLE 3, unless and
until it is wholly exchanged for fully registered Debentures or
coupon Debentures in definitive form in accordance with the terms
hereof or particular terms applicable to the series of Debentures
it represents, a Registered Global Debenture representing all or a
portion of the Debentures of a series may not be transferred
except as a whole by:
(i) the Depositary for such series to a nominee of such
Depositary;
(ii) a nominee of such Depositary to such Depositary or to
another nominee of such Depositary; or
FINOVA Trust Indenture Page 16 of 61
(iii) such Depositary or any such nominee to a successor
Depositary for such series or a nominee of such successor
Depositary,
and only if the transfer is duly recorded by the Trustee on
the register for such series and, if required, on the
Registered Global Debenture.
(c) The Corporation and the Trustee understand that transfers of
beneficial ownership in any debentures represented by a Registered
Global Debenture will be effected only (i) with respect to the
interest of Participants, through records maintained by the
Depositary or its nominee for the Registered Global Debenture, and
(ii) with respect to interest of persons other than Participants,
through records maintained by Participants. Beneficial Owners who
are not Participants but who desire to purchase, sell or otherwise
transfer ownership of or other interest in Debentures represented
by Registered Global Debentures may do so only through a
Participant.
(d) If at any time the Depositary for a Registered Global Debenture
representing all or a portion of the Debentures of a series
notifies the Corporation that it is unwilling or unable to
continue as Depositary for such Registered Global Debenture, or
ceases to be eligible to be a Depositary under Subsection 2.3(b),
then the Corporation shall appoint a successor Depositary with
respect to such Registered Global Debenture. If a successor
Depositary for such Registered Global Debenture is not appointed
by the Corporation within 90 days after the Corporation receives
such notice or becomes aware of such ineligibility, then the
Corporation's determination that the Debentures represented by
such Registered Global Debenture be held as a Registered Global
Debenture shall no longer be effective with respect to the
Debentures represented by such Registered Global Debenture, and
the Corporation will execute, and the Trustee, upon receipt of a
Written Order of the Corporation for the certification and
delivery of individual Debentures of such series, will certify and
deliver, in exchange for such Registered Global Debenture,
individual Debentures of such series, in accordance with
Subsections 3.2(f) and (g), in an aggregate principal amount equal
to the principal amount of such Registered Global Debenture.
(e) The Corporation may at any time and in its sole discretion
determine that Debentures of any series issued in the form of one
or more Registered Global Debentures shall no longer be
represented by such Registered Global Debentures, in which event
the Corporation will execute, and the Trustee, upon receipt of a
Written Order of the Corporation for the certification and
delivery of individual Debentures of such series, will certify and
deliver, in exchange for such Registered Global Debentures,
individual Debentures of such series, in accordance with
Subsections 3.2(f) and (g), in an aggregate principal amount equal
to the principal amount of such Registered Global Debentures.
(f) In any exchange provided for in any of Subsections 3.2(d) or (e),
or in the terms applicable to any particular series of Debentures,
the Corporation will execute and the Trustee will certify and
deliver individual Debentures:
(i) as fully registered Debentures in authorized denominations
if the Debentures of such series are issuable as fully
registered Debentures;
FINOVA Trust Indenture Page 17 of 61
(ii) as coupon Debentures, registrable as to principal only, in
authorized denominations with coupons attached if the
Debentures of such series are issuable as coupon Debentures
registrable as to principal only;
(iii) as coupon Debentures not registrable as to principal if the
Debentures of such series are issuable as coupon Debentures
not registrable as to principal; or
(iv) in any combination of the foregoing Debentures, if issuable
as such,
all according to instructions from the Depositary to the Trustee
in that regard, as contemplated by Subsection 3.2(g), and all in a
minimum of $1,000 principal amount and multiples thereof.
(g) Upon the exchange of a Registered Global Debenture for individual
Debentures in definitive form, pursuant to any of Subsections
3.2(d) or 3.2(e), or pursuant to the terms applicable to any
particular series of Debentures, such Registered Global Debenture
shall be cancelled by the Trustee. Individual registered
Debentures exchanged for portions of a Registered Global Debenture
shall be registered in such names and in such authorized
denominations as the Depositary for such Registered Global
Debenture, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver any such registered Debentures to the Persons in
whose names such Debentures are so registered. The Trustee shall
deliver individual coupon Debentures exchanged for a Registered
Global Debenture to the Persons, and in such authorized
denominations, as the Depositary for such Registered Global
Debenture, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. Unless
otherwise requested by the Holder, all such Debentures shall be
delivered by mailing the Debenture to the address of the Holder
provided by the Depositary.
(h) If authorized by the Corporation pursuant to Section 2.3 with If
authorized by the Corporation pursuant to Section 2.3 with respect
to a series of Debentures issued in the form of one or more
Registered Global Debentures, then the Depositary of a Registered
Global Debenture representing such series of Debentures may
surrender the Registered Global Debenture for such series of
Debentures in exchange in whole or in part for individual
Debentures of such series on such terms as are acceptable to the
Corporation and such Depositary. Thereupon, the Corporation shall
execute, and the Trustee shall certify and deliver to:
(i) each Person specified by such Depositary, one or more new
individual Debentures of the same series in any authorized
denomination as requested by such Person in an aggregate
principal amount equal to and in exchange for such Person's
beneficial interest in the Registered Global Debenture; and
(ii) such Depositary, a new Registered Global Debenture in a
denomination equal to the difference, if any, between the
principal amount of the surrendered Registered Global
Debenture and the aggregate principal amount of new
individual Debentures delivered to Persons under this
Subsection 3.2(h).
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(i) All Debentures executed for delivery upon any transfer or exchange
of a Registered Global Debenture shall be valid obligations of the
Corporation, evidencing the same debt and entitled to the same
benefits under this Indenture as the Registered Global Debenture
surrendered for such transfer or exchange. No service charge shall
be made for any registration of transfer or exchange of a
Registered Global Debenture but the Corporation may require
payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer,
registration of transfer or exchange of a Registered Global
Debenture.
(j) None of the Corporation, the Trustee or any other registrar shall
be required to:
(i) execute for delivery, register the transfer of or exchange
a Registered Global Debenture of any particular series
during a period beginning at the opening of business 15
Business Days before the day of the mailing of a notice of
redemption of all or any part of a Registered Global
Debenture selected for redemption and ending at the close
of business on the day of such mailing; or
(ii) register the transfer of or exchange any portion of a
Registered Global Debenture so selected for redemption in
whole or in part, except the unredeemed portion of any
Registered Global Debenture being redeemed in part.
3.3 Dealings with the Depositary
(a) The rights of Beneficial Owners shall be limited to those
established by applicable law and agreement between the Depositary
and the Participants and between such Participants and Beneficial
Owners, and must be exercised through a Participant in accordance
with the rules and procedures of the Depositary.
(b) The Corporation and the Trustee acknowledge that, subject to and
in accordance with the rules and procedures of the Depositary as
established from time to time, each Participant must look solely
to the Depositary through its Paying Agent service, for so long as
the Depositary is the registered holder of Registered Global
Debentures, for its share of each payment made by the Trustee to
the registered holder of the Registered Global Debentures, and
each Beneficial Owner must look solely to Participants for its
share of such payments. Provided that the Corporation has made
payments to the Trustee in respect of the Registered Global
Debentures no person, including any Participant or Beneficial
Owner, shall have any claim against the Corporation in respect of
payments due on such Registered Global Debentures and the
obligations of the Corporation shall be discharged by payment to
the Trustee in respect of each amount so paid.
(c) The Depositary shall be responsible for the creation and
maintenance of the book entries and the accounts of its
Participants with an interest in the Debentures represented by
Registered Global Debentures. The Corporation and the Trustee
understand that the Depositary will deliver to the Trustee a
certified list of Participants as at the date of issue of
Debentures represented by Registered Global Debentures showing the
name and address of each Participant (including the facsimile
number and electronic communications address, if any) together
with the aggregate principal amount of such Participants' interest
FINOVA Trust Indenture Page 19 of 61
in such Debentures and that, for so long as interests in
Debentures are represented by one or more Registered Global
Debentures, the Depositary shall, upon the reasonable request of
the Trustee from time to time, deliver to the Trustee a copy of
the then current list of Participants and such additional
information as the Trustee may reasonably request. The Corporation
and the Trustee shall be entitled to rely upon all such
information provided by the Depositary to the Corporation and the
Trustee.
(d) The Corporation understands that the Depositary acts as the agent
and depositary for the Participants and neither the Corporation
nor the Trustee assume any liability for:
(i) any aspect of the records relating to the beneficial
ownership of or beneficial interest in the Debentures held
by the Depositary or the payments relating thereto;
(ii) maintaining, supervising or reviewing any records relating
to the Debentures held by the Depositary; or
(iii) any advice or representation made by or with respect to the
Depositary and those contained herein and relating to the
rules governing the Depositary or any action to be taken by
the Depositary or at the direction of its Participants.
3.4 COUPON DEBENTURES.
(a) Coupon Debentures issued hereunder shall be negotiable and title
thereto shall pass by delivery unless registered as to principal
for the time being as hereinafter provided. Notwithstanding
registration of coupon Debentures as to principal, the coupons
when detached shall continue to be payable to bearer and title
thereto shall pass by delivery.
(b) With respect to each series of Debentures issuable in whole or in
part as coupon Debentures registerable as to principal only,
unless otherwise provided in the supplemental Indenture
establishing the terms thereof, the Corporation shall cause to be
kept by the Trustee, at its principal office in Xxxxxxx, Xxxxxxx,
a register in which Holders of coupon Debentures of such series
may register the same as to principal only and in which shall be
entered the names and addresses of the Holders of coupon
Debentures of such series registered as to principal and
particulars of the coupon Debentures so registered held by them
respectively. Unless otherwise provided in this Indenture or in
any supplemental Indenture, the Corporation shall also, with
respect to each series of Debentures issuable as coupon Debentures
registrable as to principal only, cause to be provided facilities
for the registration, exchange and transfer of coupon Debentures
registrable as to principal only by and at the principal office of
the Trustee in Xxxxxxx, Xxxxxxx. The Corporation, in consultation
with the Trustee, may from time to time provide additional
facilities for such registration, exchange and transfer at other
offices of the Trustee or at other agencies. Such registration
shall be noted on the Debentures by the Trustee or other agencies,
as registrar.
(c) After such registration of a coupon Debenture, no transfer thereof
shall be valid unless made at one of the offices or other agencies
referred to in Subsection 3.4(b) by the registered Holder or his
executors, administrators or other legal representatives or his or
their attorney duly appointed by an instrument in writing in form
and execution satisfactory to the Trustee and upon compliance with
such reasonable requirements as the Trustee may prescribe, nor
unless such transfer shall have been noted on the Debenture by the
Trustee or other agent; provided, however, that any such Debenture
may be discharged from registry by being
FINOVA Trust Indenture Page 20 of 61
transferred to bearer, after which it shall again be transferable
by delivery, but may again from time to time be registered and
discharged from registry.
(d) The registered Holder of a coupon Debenture registrable as to the
principal only may at any time and from time to time have the
registration of such Debenture transferred from the register on
which the registration thereof appears to another authorized
register upon compliance with such reasonable requirements as the
Trustee and/or other registrar may prescribe and payment of a
reasonable fee to be fixed by the Trustee or such other
registrars. Such change of registration shall be noted on such
Debenture by the Trustee or other registrar unless a new coupon
Debenture shall be issued upon such change of registration.
3.5 TRANSFEREE ENTITLED TO REGISTRATION. The transferee of a registered
Debenture, other than a Registered Global Debenture, shall, after the
appropriate form of transfer is deposited with the Trustee or other agent and
upon compliance with all other conditions in that behalf required by the
Trustee, this Indenture or by law, be entitled to be entered on the register as
the owner of such Debenture free from all equities or rights of set-off or
counterclaim between the Corporation and the transferor or any previous Holder
of such Debenture, save in respect of equities of which the Corporation or
Holder is required to take notice by statute or by order of a court of competent
jurisdiction.
3.6 EXCHANGE OF DEBENTURES.
(a) Debentures in any authorized form or denomination, other than
Registered Global Debentures, may be exchanged upon reasonable
notice for Debentures in any other authorized form or
denomination, of the same series and date of maturity, bearing the
same interest rate and of the same aggregate principal amount as
the Debentures so exchanged.
(b) Debentures of any series may be exchanged at the principal office
of the Trustee in Toronto, Ontario or at such other place or
places, if any, as may be specified in the Debentures of such
series and at such other place or places, if any, as may from time
to time be designated by the Corporation with the approval of the
Trustee. Any Debentures tendered for exchange shall be surrendered
to the Trustee together with all unmatured coupons, if any, and
all matured coupons in default, if any, pertaining thereto. The
Corporation shall execute and the Trustee shall certify all
Debentures necessary to carry out exchanges as aforesaid. All
Debentures and coupons surrendered for exchange shall be
cancelled.
(c) Debentures issued in exchange for Debentures which at the time of
such issue have been selected or called for redemption at a later
date shall be deemed to have been selected or called for
redemption in the same manner and shall have noted thereon a
statement to that effect.
(d) The transferee of a fully registered Debenture, other than a
Registered Global Debenture, shall be entitled, if such series
shall provide for the issue of coupon Debentures, on request, to
receive a coupon Debenture or Debentures on such transfer without
the prior issue to him of a fully registered Debenture.
FINOVA Trust Indenture Page 21 of 61
3.7 CHARGES FOR REGISTRATION, TRANSFER AND EXCHANGE.
(a) Unless otherwise provided in any supplemental Indenture, for each
Debenture exchanged, registered, transferred or discharged from
registration, the Trustee or other agent shall, if required by the
Corporation in writing, make a reasonable charge for its services
and for each new Debenture issued, if any; provided, however, that
no charge to a Debentureholder shall be made hereunder for any:
(i) exchange, registration, transfer or discharge from
registration of any Debenture applied for within the period
of two months from and including the date of original issue
of such Debenture;
(ii) exchange of any interim or temporary Debenture or interim
certificate that has been issued under Section 2.9;
(iii) exchange of a Registered Global Debenture as contemplated
in Section 3.2 or Subsection 4.4(a); or
(iv) exchange of any Debenture resulting from a partial
redemption under Section 6.4.
(b) Payment of any such charges and reimbursement of the Trustee or
other agent or the Corporation for any transfer taxes or
governmental or other charges required to be paid shall be made by
the party requesting such exchange, registration, transfer or
discharge from registration as a condition precedent thereto.
3.8 REGISTERS OPEN FOR INSPECTION. The registers shall, at all reasonable times
and at such reasonable costs as established by the Trustee, be open for
inspection by the Corporation, the Guarantor or any Debentureholder. The Trustee
and every registrar shall, from time to time when requested to do so by the
Corporation or by the Trustee in writing, furnish the Corporation or the
Trustee, as the case may be, with a list of names and addresses of Holders of
registered Debentures entered on the register and showing the principal amount
and serial numbers of the Debentures held by each such Holder.
3.9 CLOSING OF REGISTERS.
(a) Subject to any restriction herein provided, the Corporation, with
the approval of the Trustee, may at any time close any register,
other than the register kept at the principal office of the
Trustee in Xxxxxxx, Xxxxxxx, and transfer the registration of any
Debentures registered thereon to another register and thereafter
such Debentures shall be deemed to be registered on such other
register and notice of such transfer shall be given in the manner
provided in Section 14.1 to the Holders of the Debentures
registered in the register so closed.
(b) Neither the Corporation nor the Trustee nor any other agent shall
be required to make:
(i) exchanges or transfers of fully registered Debentures of
any series on any interest payment date for Debentures of
that series or during the 14 preceding days; or
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(ii) transfers of any registered Debentures of any series or
exchanges of Debentures of any series on the day of any
selection by the Trustee of Debentures of that series to be
redeemed or during the 14 preceding days; or
(iii) transfers of any registered Debentures of any series or
exchanges of Debentures of any series which have been
called for redemption in whole or in part unless, upon due
presentation thereof for redemption, such Debentures shall
not be redeemed.
3.10 OWNERSHIP OF DEBENTURES AND COUPONS.
(a) The Person in whose name any registered Debenture is registered
shall, for all the purposes of this Indenture, be and be deemed to
be the owner thereof, and the Trustee, the Corporation and the
Guarantor shall be protected in acting and relying on such
registration, and payment of or on account of the principal and
premium, if any, on such Debenture and, in the case of a fully
registered Debenture, interest thereon shall be made only to or
upon the order in writing of such registered Holder.
(b) The Corporation, the Trustee and any other agent may deem and
treat the bearer of any unregistered Debenture and the bearer of
any coupon, whether or not the Debenture from which it has been
detached shall be registered as to principal, as the absolute
owner of such Debenture or coupon, as the case may be, for all
purposes and neither the Corporation nor the Trustee nor any other
agent shall be affected by any notice to the contrary.
(c) Neither the Corporation nor the Trustee nor any other agent shall
be bound to take notice of or see to the execution of any trust,
whether express, implied or constructive, in respect of any
Debenture and may transfer the same on the direction of the Person
registered as the Holder thereof, whether named as trustee or
otherwise, as though that Person were the beneficial owner
thereof.
(d) The registered Holder for the time being of any registered
Debenture and the bearer of any unregistered Debenture and the
bearer of any coupon shall be entitled to the principal, premium,
if any, and/or interest evidenced by such instruments respectively
free from all equities or rights of set-off or counter-claim
between the Corporation and the original or any intermediate
Holder thereof, except in the case of any prior overpayment with
respect to a Debenture, and all Persons may act accordingly and
the receipt of any such registered Holder or bearer, as the case
may be, for any such principal, premium, if any, or interest shall
be a good discharge to the Corporation, the Trustee and any other
agent for the same and neither the Corporation, the Trustee nor
any other agent shall be bound to inquire into the title or
interest of any such registered Holder or bearer.
(e) Upon receipt of a certificate of any bank, trust company or other
depositary satisfactory to the Trustee stating that the
unregistered Debentures specified therein have been deposited by a
named Person with such bank, trust company or other depositary and
will remain so deposited until the expiry of the period specified
therein, the Corporation, the Trustee and any other agent shall
treat the Person so named as the owner, and such certificate as
sufficient evidence of the ownership by such Person during such
period, of such Debentures, for the purpose of any
Debentureholders' Request, requisition, direction, consent,
instrument, or other document to be made, signed or given by the
Holder of the Debentures so deposited. The Corporation, the
Trustee and any other agent shall treat the registered Holder of
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any Debenture as the owner thereof without actual production of
such Debenture for the purpose of any Debentureholders' Request,
requisition, direction, consent instrument or other document as
aforesaid.
(f) Where a registered Debenture is registered in more than one name,
the principal, premium, if any, and interest (in the case of fully
registered Debentures) from time to time payable in respect
thereof may be paid by cheque payable to the order of all such
Holders, failing written instructions from them to the contrary,
and the receipt of any one of such Holders therefor shall be a
valid discharge to the Trustee and any other agent and to the
Corporation, unless such cheque not be paid at par on presentation
at any one of the places where such principal, premium, if any,
and interest is, by the terms of such Debenture, made payable.
(g) In the case of the death of one or more joint registered Holders,
the principal, premium, if any, and interest on fully registered
Debentures and the principal and premium, if any, on coupon
Debentures registered as to principal only may be paid by cheque
to the survivor or survivors of such registered Holders whose
receipt therefor shall constitute a valid discharge to the Trustee
and any other agent and to the Corporation, unless such cheque not
be paid at par on presentation at any one of the places where such
principal, premium, if any, and interest is, by the terms of such
Debenture, made payable.
3.11 HOME OFFICE PAYMENT AGREEMENTS. Notwithstanding anything herein contained,
the Corporation may enter into an agreement with the registered Holder of a
registered Debenture, or with the Person for whom such registered Holder is
acting as nominee, or with the Depositary, providing for the payment to such
registered Holder or to such Person or as the Depositary may advise, of the
principal of and premium (if any) and interest on such Debenture, at a place or
places other than the place or places specified herein and in such Debenture as
the place or places for such payment. Such payments may be made by the Trustee,
or by any Paying Agent with the consent of the Trustee, to the registered Holder
thereof or to such Person for whom such registered Holder is acting as nominee
or as the Depositary may advise, without presentation or surrender of the
Debenture to the Trustee if such Debenture is being redeemed in part only and if
there shall have been filed with the Trustee a Certificate of the Corporation
stating that the Corporation has entered into an agreement with such registered
Holder or the Person for whom such registered Holder is acting as nominee or the
Depositary to the effect that:
(a) payment will be so made;
(b) upon written request from the Trustee or the Corporation, such
registered Holder or other Person or the Depositary will make
notations on such Debenture of the portions thereof so redeemed;
(c) whether or not it shall have received any request to make
notations as aforesaid, such registered Holder or other Person or
the Depositary will not dispose of such Debenture or permit its
nominee to dispose of such Debenture or of any interest therein
without, prior to the delivery thereof, surrendering the same to
the Trustee or other registrar either for notation thereon of the
portion of the principal amount thereof redeemed or in exchange
for a Debenture or Debentures of the same series in authorized
denominations, aggregating the same principal amount as the
principal amount of such Debenture so surrendered which shall
remain unpaid; and
FINOVA Trust Indenture Page 24 of 61
(d) such registered Holder, the Depositary or other Person shall
surrender such Debenture to the Trustee or other registrar upon
payment in full of the principal, premium, if any, and interest of
such Debentures.
Neither the Trustee nor any Paying Agent shall be under any duty to determine
that such notations have been made. Any payment of the principal of, and premium
(if any) and interest on, any such fully registered Debenture at such other
place or places pursuant to such agreement shall, notwithstanding any other
provision of this Indenture, be valid and binding on the Corporation, the
Trustee, the Holders of all Debentures and the Depositary.
ARTICLE 4
ISSUE OF SERIES OF MEDIUM TERM NOTES
4.1 FORM AND TERMS OF SERIES OF MEDIUM TERM NOTES.
(a) The first series of Debentures authorized to be issued hereunder
shall be designated as "MEDIUM TERM NOTES" which may be issued
from time to time upon and subject to the provisions and
conditions and in accordance with this Indenture. The aggregate
principal amount of Medium Term Notes that may be issued hereunder
is unlimited.
(b) Except as provided in Section 4.4 and Subsections 3.2(d) and
3.2(e), the Medium Term Notes shall be issuable as a Registered
Global Debenture substantially in the form as set forth in
Schedule A to this indenture with The Canadian Depositary for
Securities Limited being designated the initial Depositary
therefor and CDS & Co. being registered as the initial holder
thereof for each issue, and with the register being maintained by
the Trustee or other agent in Xxxxxxx, Xxxxxxx. Each Medium Term
Note to be issued in exchange for a Registered Global Debenture
representing Medium Term Notes pursuant to Section 4.4 or
Subsections 3.2(d) or 3.2(e), and any substitutions therefor in
whole or in part, shall only be issuable as fully registered
Debentures substantially in the form as set forth in Schedule B to
this Indenture.
(c) Each Medium Term Note shall be dated as of such date, shall mature
on such date, shall be issued and payable in such currency or
currency unit and shall bear interest at such rate or rates or
calculated in such manner as shall be determined by the
Corporation prior to the time of issue, provided however that each
Medium Term Note has a maturity date of at least one year from
date of issue. Interest at the annual rate so determined shall be
calculated and payable (both before and after default, maturity,
and judgment) on such dates in each year, commencing on such date,
as shall be determined by the Corporation prior to the time of
issue. After default, to the extent permitted by applicable law,
interest shall be payable on overdue interest at the same rate and
computed in such manner as shall be determined by the Corporation
prior to the time of issue.
(d) Unless otherwise specified in the applicable Written Order of the
Corporation, the Medium Term Notes shall be issued in multiples of
$1,000 or, in the case of another currency or currency unit, such
other denominations in such currency or currency unit and integral
multiples thereof as may be determined by the Corporation.
(e) The Medium Term Notes (endorsed by the Guarantor as required
pursuant to Section 5.2) and the certificate of the Trustee or
other agent endorsed thereon shall be substantially in the form
set out in Schedule A to this Indenture with such appropriate
insertions, omissions, substitutions and variations as
FINOVA Trust Indenture Page 25 of 61
the Corporation, the Guarantor and the Trustee may approve and
shall be numbered in such manner as the Corporation and the
Trustee or other agent may approve, such approvals of the
Corporation, the Guarantor and the Trustee to be conclusively
evidenced by its execution, endorsement and certification,
respectively, of the Medium Term Notes.
(f) Unless otherwise specified in a Written Order of the Corporation,
the Medium Term Notes shall not be redeemable prior to maturity;
provided, however, that if stated to be redeemable, for purposes
of ARTICLE 6, each issuance of Medium Term Notes pursuant to a
Written Order of the Corporation shall be deemed to be a "series".
(g) The Corporation, when no Event of Default has occurred and is
continuing under this Indenture, will have the right to purchase
Medium Term Notes (including beneficial interests in any
Registered Global Debenture representing Medium Term Notes) in the
market or by tender or by private contract at any price without
having to purchase any or all of the other Debentures outstanding,
except as required by law.
(h) If, upon an invitation for tenders made pursuant to Subsection
4.1(g), more Medium Term Notes (including beneficial interests in
any Registered Global Debenture representing Medium Term Notes)
are tendered at the same price than the Corporation is prepared to
pay, then the Medium Term Notes (including beneficial interests in
any Registered Global Debenture representing Medium Term Notes) to
be purchased by the Corporation will be selected by the Trustee on
a pro rata basis, or in such other manner as the Trustee may deem
equitable, from the Medium Term Notes (including beneficial
interests in any Registered Global Debenture representing Medium
Term Notes) tendered by each tendering Holder of Medium Term Notes
who tendered at such lowest price. For this purpose, the Trustee
may make, and from time to time amend, regulations with respect to
the manner in which Medium Term Notes (including beneficial
interests in any Registered Global Debenture representing Medium
Term Notes) may be so selected, and regulations so made shall be
valid and binding upon the Depositary and all Holders of Medium
Term Notes or of a beneficial interest in any Registered Global
Debenture representing same, notwithstanding the fact that, as a
result thereof, one or more of such Medium Term Notes becomes
subject to purchase in part only. Appropriate notations shall be
made by the Depositary with respect to any Medium Term Notes
(including beneficial interests in any Registered Global Debenture
representing Medium Term Notes) purchased hereunder.
Notwithstanding the foregoing, no Debenture shall be purchased for
an amount less than $1,000 principal amount (or the equivalent
denomination if the Debenture in question is issued in a foreign
currency or currency unit).
(i) The principal of all Medium Term Notes and the premium, if any,
and interest thereon and all sums which may at any time become
payable thereon, whether at maturity, on a declaration, on
redemption or otherwise shall be payable at any branch in Canada
of Canadian Imperial Bank of Commerce, or such other financial
institution as may be designated from time to time by the
Corporation, at the Holder's option, against surrender of the
Medium Term Notes, except that the Corporation may agree with any
registered holder of Medium Term Notes or the Depositary to make
payment as provided for in Section 3.11. If the due date for
payment of any amount of principal or interest on any Medium Term
Note is not a Business Day, then such payment will be made on the
next Business Day and the Holder of such Medium Term Note shall
not be entitled to any further interest or other payment in
respect of such delay.
4.2 ISSUE OF MEDIUM TERM NOTES. Medium Term Notes are hereby created and may
forthwith and from time to time be executed by the Corporation, endorsed by the
Guarantor and delivered to the Trustee or other agent and shall thereupon be
FINOVA Trust Indenture Page 26 of 61
certified by the Trustee or other agent and delivered by the Trustee or other
agent upon the Written Order of the Corporation, without receiving any
consideration therefor, upon receipt by the Trustee of:
(a) opinions of Counsel dated the date of such certification and
delivery to the effect that:
(i) this Indenture has been duly and validly authorized,
executed and delivered by the Corporation and the Guarantor
and is a valid and binding instrument in accordance with
its terms and is enforceable against the Corporation and
the Guarantor, and
(ii) all conditions precedent provided for in this Indenture and
by applicable law relating to the authorization, execution,
certification and delivery of the Medium Term Notes have
been complied with or satisfied in accordance with the
terms of this Indenture and by such applicable law,
provided, however, that such opinions may be expressed to be
subject to any applicable bankruptcy or insolvency laws or other
laws affecting the enforcement of creditors' rights generally and
may also indicate the discretionary nature of the remedies of
specific performance and injunctive relief;
(b) a Certificate of the Corporation dated the date of such
certification and delivery to the effect that:
(i) all conditions precedent provided for in this Indenture and
by applicable law relating to the authorization, execution,
issuance, certification and delivery of the Medium Term
Notes have been complied with or satisfied in accordance
with the terms of this Indenture and such applicable law,
and
(ii) at the time of the certification and delivery of the Medium
Term Notes by the Trustee, there is no Event of Default
under this Indenture and no event which, with the giving of
notice or the passage of time, or both, would constitute an
Event of Default under this Indenture has occurred and is
continuing; and
(c) a Certificate of the Guarantor dated the date of such
certification and delivery to the effect that the Guarantor has
complied with all the requirements of this Indenture in connection
with the issue of the Medium Term Notes.
The Written Order of the Corporation required by Section 4.2 for the
certification and delivery of Medium Term Notes shall specify in a schedule (the
"TERMS SCHEDULE") to such Written Order of the Corporation, the date, principal
amount, currency or currency units, maturity date, interest rate, if any, (or
the method of calculation thereof), interest payment dates, redemption
provisions (if any), whether the Notes are to be issued as fully registered
debentures or a Registered Global Debenture and place of delivery for each
Medium Term Note requested to be certified and delivered. Upon the certification
and delivery by the Trustee or other agent of Medium Term Notes in accordance
with such Written Order of the Corporation, the Terms Schedule to such Written
Order of the Corporation shall be deemed to be a schedule to and form part of
this Indenture and shall be binding on the parties hereto. The Trustee or other
agent shall have no duty or responsibility with respect to the use or
application of any of the Medium Term Notes so certified and delivered or of the
proceeds thereof.
4.3 APPOINTMENT OF NOTE AGENT. The Corporation hereby appoints Canadian Imperial
Bank of Commerce as its agent to provide services for the safekeeping,
authentication, issuance, delivery and transfer of the Medium Term Notes and to
act as registrar and Paying Agent for the Medium Term Notes, and the Trustee
hereby acknowledges such appointment. The Corporation agrees to provide to the
FINOVA Trust Indenture Page 27 of 61
Trustee a copy of any agreement, and any amendments to such agreement, between
the Corporation and Canadian Imperial Bank of Commerce.
4.4 EXCHANGE OF REGISTERED GLOBAL DEBENTURE FOR MEDIUM TERM NOTES. If:
(a) an Event of Default shall have occurred and be continuing and
shall not have been waived by the Trustee pursuant to Section 8.3
and the Corporation shall have received a Beneficiary Request;
(b) the Trustee shall have received a Debentureholders' Request
requesting that the Medium Term Notes represented by all
Registered Global Debentures be registered in the names of the
owners of the beneficial interest represented by such Registered
Global Debentures; or
(c) an Extraordinary Resolution shall have been proposed by the
Corporation, the Depositary or the Trustee and the Corporation
shall have received a Beneficiary Request relating thereto,
then the Corporation and the Guarantor will execute, and the Trustee or other
agent, upon receipt of a Written Order of the Corporation for the certification
and delivery of individual Debentures of:
(d) the Medium Term Notes; or
(e) all series of Debentures represented by one or more Registered
Global Debentures in the case of a Debentureholders' Request under
Subsection 4.4(b) above,
will certify and deliver, in exchange for Registered Global Debentures of such
series, individual Debentures of such series, in accordance with Subsections
3.2(f) and 3.2(g), in an aggregate principal amount equal to the principal
amount of the Registered Global Debentures representing Debentures of such
series. The provisions of Section 3.2 shall apply to such exchange.
ARTICLE 5
GUARANTEE OF MEDIUM TERM NOTES
5.1 GUARANTEE OF MEDIUM TERM NOTES.
(a) The Guarantor covenants with the Trustee on behalf of the Holders
that the Corporation will pay, and hereby unconditionally
guarantees, as provided in the Guarantee to be endorsed on each
Medium Term Note pursuant to Section 5.2, the due and punctual
payment of the principal of and premium (if any) and interest on
each Medium Term Note certified by or on behalf of the Trustee,
when and as the same shall become due and payable after any
applicable grace period set out in Section 8.1, whether at their
respective due dates, on redemption or on a declaration or
otherwise, in accordance with the terms of such Medium Term Note
and this Indenture (the "OBLIGATIONS"); provided, however, that
payment of interest on overdue instalments of interest is hereby
guaranteed only to the extent permitted by applicable law. In case
of default by the Corporation in the payment of any such
principal, premium, or interest, the Guarantor agrees duly and
punctually to pay the same without demand after the expiry of any
applicable grace period. The Guarantor hereby agrees that its
obligations under each Guarantee and this Indenture shall be
unconditional, irrespective of any invalidity, illegality,
irregularity or unenforceability of any such Medium Term Note or
this Indenture as regards the Corporation (other than by reason of
lack of genuineness), or the absence of any action to enforce the
same, the recover of any judgment against the Corporation or any
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action to enforce the same or any circumstances which might
otherwise constitute a legal or equitable discharge or defence of
a guarantor. The Guarantor hereby waives diligence, presentment,
demand of payment, filing of claims with a court in the event of
merger, amalgamation, reorganization, insolvency or bankruptcy of
the Corporation, any right to require a proceeding first against
the Corporation, protest or notice with respect to any Medium Term
Note or the indebtedness evidenced thereby and all demands
whatsoever, and covenants that its obligations under this Section
5.1 and each Guarantee will not be discharged as to any Medium
Term Note except by payment in full of the principal of and
premium (if any) and interest on such Medium Term Note.
(b) The obligation of the Guarantor under this Section 5.1 and each
Guarantee shall be a continuing obligation, shall cover all the
Obligations and shall apply to and secure any ultimate balance due
or remaining unpaid to the Holders of any Medium Term Note.
(c) In addition to the guarantee contained in each Guarantee and this
Indenture, the Guarantor hereby covenants and agrees to indemnify
and save the Holders of any Medium Term Note harmless against all
costs, losses, expenses and damages they may suffer from or as a
result of the Corporation's default in the performance of any of
the Obligations.
(d) The Guarantor shall not be or become liable hereunder or under any
Guarantee to make any payment of principal, premium (if any) or
interest in respect of which the Corporation is in default if the
default of the Corporation in respect of which the Guarantor would
otherwise be or become liable hereunder or under any guarantee has
been waived or directed to be waived pursuant to the provisions in
that behalf contained in this Indenture; but no waiver or consent
of any kind whatsoever shall release, alter or impair the
unconditional obligation of the Guarantor hereunder or under any
Guarantee after giving effect to such waiver or consent.
(e) The Guarantor shall be subrogated to all rights of the Holder of
each Medium Term Note against the Corporation in respect of any
amount paid by the Guarantor pursuant to the provisions of any
Guarantee, but the Guarantor shall not be entitled to enforce, or
to receive any payments arising out of or based upon, such right
of subrogation until the principal or and premium (if any) and
interest on all Medium Term Notes has been paid in full or duly
provided for.
(f) If any moneys become payable by the Guarantor hereunder the
Trustee shall be entitled to enforce and receive payment thereof
by the Guarantor, for the benefit of the Holders of the Medium
Term Notes, and shall be entitled to recover judgment against the
Guarantor for any portion of the same remaining unpaid; and the
Trustee shall have further remedies with respect to the Guarantor
similar to the remedies granted to it in ARTICLE 8 with respect to
the Corporation. The whole of the moneys from time to time
received by the Trustee hereunder shall be applied by the Trustee
in accordance with Section 8.6.
(g) The obligations of the Guarantor under each Guarantee shall
constitute direct unsecured and unsubordinated obligations of the
Guarantor and shall rank pari passu with all unsecured and
unsubordinated debt of the Guarantor.
(h) Payments in respect of the Medium Term Notes, if any, by the
Guarantor will be made without withholding for, or on account of,
any present or future taxes imposed by or on behalf of the United
States or any political subdivision thereof unless such taxes are
required by law or by the administration thereof to be withheld or
deducted, in which case the Guarantor will pay such additional
amounts as will result (after the withholding or deduction of such
FINOVA Trust Indenture Page 29 of 61
taxes) in the payment to the holders of the Medium Term Notes of
the amounts that would otherwise have been payable pursuant to the
Guarantee but no such additional amount will be payable with
respect to the Guarantor's Guarantee of any Medium Term Notes (a)
which is held by a person who is subject to any such taxes by
reason of such person being connected with the United States
otherwise than merely by the holding or use outside the United
States or ownership as a non-resident of the United States of the
Medium Term Note and the guarantee in respect thereof, (b) which
is held by or on behalf of a Person who is not dealing at arm's
length with the Corporation or the Guarantor or (c) which is
presented for payment more than 60 days after the date on which
such payment became due and payable or the date on which payment
thereof is duly provided for, whichever occurs later, except to
the extent that the Holder thereof would have been entitled to
receive payment of such additional amount if the Holder had
presented such Debt Security for payment on the last day of such
60-day period. Under no circumstances shall any amounts be payable
under this section by the Guarantor to any Holder of a Medium Term
Note that is not resident in Canada for the purposes of the INCOME
TAX ACT (Canada).
5.2 EXECUTION AND DELIVERY OF GUARANTEE:
(a) To evidence its guarantee to the Holders of Medium Term Notes
specified in Section 5.1, the Guarantor shall endorse upon each
Medium Term Note duly issued hereunder a Guarantee substantially
in the form set out in Schedule C with such appropriate
insertions, omissions, substitutions and variations as the
officers of the Guarantor executing the same may approve, such
approval to be conclusively evidenced by the certification of the
Medium Term Note. The form of Guarantee may include a
corresponding French text. In the event of any contradiction,
discrepancy or difference between the English language text and
the French language text of the form of Guarantee, the English
language text shall govern, except where applicable law otherwise
requires. Each Guarantee shall be executed on behalf of the
Guarantor by any two of the chairman, the chief executive officer,
the president, the chief financial officer, the vice-president
finance, the treasurer and the assistant treasurer, manually or by
facsimile signature, and shall have a facsimile of the corporate
seal of the Guarantor affixed thereto or imprinted or otherwise
reproduced thereon. If any officer of the Guarantor who has signed
any Guarantee, manually or by facsimile signature, ceases to be
such officer before the Medium Term Note on which such Guarantee
is endorsed has been certified by or on behalf of the Trustee or
issued by the Corporation, such Medium Term Note, with such
Guarantee endorsed thereon, nevertheless may be certified,
delivered and issued as though the person who signed such
Guarantee had not ceased to be such officer; and any Guarantee may
be signed and sealed on behalf of the Guarantor by such Person as,
at the actual date of the Board Resolution or at any subsequent
time, is a proper officer of the Guarantor, although at the
original issue date of the Medium Term Note any such Person was
not such officer of the Guarantor.
(b) The Guarantor agrees that the certification by the Trustee, in the
manner provided in this Indenture, of any Medium Term Note
(whether in global form or definitive form), shall be conclusive
evidence that the Guarantee endorsed upon such Medium Term Note
has been duly executed and delivered and is a valid obligation of
the Guarantor. The Guarantor agrees that the issuance by the
Corporation of a Medium Term Note and the delivery of such Medium
Term Note by the Trustee, after certification by the Trustee in
the manner provided in this Indenture, shall be deemed delivery by
the Guarantor of the Guarantee appearing upon such Medium Term
Note. The Guarantor agrees that any such certification by the
Trustee shall not be regarded as a representation or warranty of
the Trustee of the Guarantor's duties or obligations hereunder.
FINOVA Trust Indenture Page 30 of 61
ARTICLE 6
REDEMPTION AND PURCHASE OF DEBENTURES
6.1 REDEMPTION OR PURCHASE OF DEBENTURES. The provisions of Sections 6.2 to 6.8,
inclusive, shall apply to Debentures of all series that are by their terms
redeemable or purchasable, unless otherwise provided in the supplemental
Indenture establishing the terms of the Debentures of such series.
6.2 PLACES OF PAYMENT. The redemption price shall be payable upon presentation
and surrender of the Debentures to be redeemed with all unmatured coupons, if
any, pertaining thereto at any of the places where the principal of such
Debentures is expressed to be payable and at such other places, if any, as may
be specified in the notice of redemption.
6.3 SELECTION FOR REDEMPTION. If less than all of the outstanding Debentures of
any one series are to be redeemed at any one time, then the Trustee shall select
the Debentures to be redeemed by lot or on a pro rata basis or in such manner as
the Trustee shall deem equitable.
6.4 PARTIAL REDEMPTION.
(a) Any part, being equal in amount to the smallest denomination of
Debenture issued with respect to any series of Debentures, or a
multiple thereof, of a Debenture of a denomination in excess of
such smallest denomination, may be selected and called for
redemption as hereinafter provided and all references in this
Indenture to redemption of Debentures shall be deemed to include
redemption of any such part.
(b) The Holder of any Debenture of which part only is redeemed shall,
upon presentation of by such Holder of such Debenture and upon
such Holder receiving the monies payable to such Holder by reason
of such redemption, surrender such Debenture to the Paying Agent
for transmission to the Trustee and:
(i) the Trustee shall cancel such Debenture and shall, without
charge, forthwith certify and deliver to such Holder a new
Debenture or Debentures of the same series, maturity and
rate of interest of aggregate principal amount equal to the
unredeemed part of the principal amount of the Debenture so
surrendered;
(ii) at the option of such Holder in the case of a fully
registered Debenture, the Trustee shall return such
Debenture to such Holder after making notation thereon of
the part of the principal amount thereof so redeemed; or
(iii) with respect to a Registered Global Debenture, the
Depositary shall make notations on the Registered Global
Debenture of the amount thereof so redeemed.
6.5 NOTICE OF REDEMPTION. Notice of redemption of any Debentures shall be given
by the Trustee or, at the option of the Corporation, by the Corporation to the
Holders of the Debentures which are to be redeemed, not more than 90 days nor
less than 30 days prior to the date fixed for redemption, in the manner provided
in ARTICLE 14. Every such notice of redemption shall specify the aggregate
principal amount of Debentures called for redemption, the redemption date, the
redemption price and the places of payment and shall state that interest upon
the principal amount of Debentures called for redemption shall cease to be
payable from and after the redemption date. In addition, unless all of the
outstanding Debentures are to be redeemed, the notice of redemption shall
specify the designations and maturities of the Debentures which are to be
redeemed and, in case less than all of the Debentures of any one series and
maturity are to be redeemed, shall also specify:
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(a) in the case of a notice mailed to a registered Debentureholder,
the distinguishing letters and numbers of the registered
Debentures which are to be redeemed (or of such thereof as are
registered in the name of such Debentureholder);
(b) in the case of a published notice described in Section 14.1, the
distinguishing letters and numbers of the unregistered Debentures
which are to be redeemed or, if such unregistered Debentures are
selected by terminal digit or other similar system, such
particulars as may be sufficient to identify the unregistered
Debentures so selected;
(c) in the case of a Registered Global Debenture, that the redemption
will take place in such manner as may be agreed upon by the
Depositary, the Trustee and the Corporation; and
(d) in all cases, the principal amounts of such Debentures or, if any
such Debenture is to be redeemed in part only, the principal
amount of such part.
In the event that all Debentures of any series to be redeemed are represented by
a Registered Global Debenture or other fully registered Debentures, publication
shall not be required.
6.6 PAYMENT OF REDEMPTION PRICE. Upon notice being given as aforesaid, the
principal amount of the Debentures so called for redemption and the principal
amount and premium, if any, to be redeemed of the Debentures so called for
redemption in part shall be and become due and payable at the redemption price,
on the redemption date specified in such notice and with the same effect as if
the redemption date were the date of maturity specified in such Debentures. From
and after such redemption date, interest upon the principal amounts so becoming
due and payable shall cease unless payment of the redemption price shall not be
made on presentation for surrender of such Debentures and all unmatured coupons,
if any, pertaining thereto at any of the places specified in Section 6.2 on or
after the redemption date and prior to the setting aside of the redemption price
pursuant to ARTICLE 9 .
6.7 PURCHASE OF DEBENTURES. Subject to the provisions of any series of
Debentures, the Corporation shall have the right at any time and from time to
time to purchase Debentures in the market, by tender or by private contract at
any price without having to purchase any or all of the Debentures outstanding,
except as required by law; provided, however, that no Event of Default has
occurred which is continuing at such time.
6.8 CANCELLATION OF DEBENTURES. Subject to the provisions of Section 6.4 as to
Debentures redeemed in part and to the provisions of Section 2.11, all
Debentures redeemed or purchased by the Corporation under the provisions of this
ARTICLE 6, with the unmatured coupons, if any, pertaining thereto, shall be
forthwith delivered to and cancelled by the Trustee and shall not be reissued.
ARTICLE 7
COVENANTS
7.1 PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
(a) The Corporation hereby covenants and agrees that it will duly and
punctually pay or cause to be paid to every Holder of every
Debenture issued hereunder the principal thereof, premium, if any,
and interest accrued thereon (including, in case of default,
interest on all amounts overdue at the rate specified therein) on
the dates and at the places, in the currencies, and in the manner
mentioned herein and in such Debentures and in the coupons, if
any, pertaining thereto.
(b) Unless otherwise provided in the supplemental Indenture creating a
series of Debentures or in an agreement referred to in Section
3.11,
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(i) as interest becomes due on each fully registered Debenture
(except at maturity or on redemption, when interest may at
the option of the Corporation be paid upon surrender of
such Debenture for payment) the Corporation, either
directly or through the Trustee or any Paying Agent, shall,
by such means as is agreed upon by the Trustee, send or
forward by prepaid ordinary mail, transfer of funds, or by
such other means as may be agreed to by the Trustee, a
cheque for or other payment of such interest (less any tax
required to be withheld therefrom) payable to the order of
the then registered Holder of such Debenture and addressed
to such Holder at such Holder's last address appearing on
the appropriate register, unless such Holder otherwise
directs;
(ii) if payment is made by cheque, then such cheque shall be
forwarded at least three Business Days prior to each date
on which interest on such Debentures becomes due and, if
payment is made by other means (such as transfer of funds),
then such payment shall be made in a manner whereby the
Holder receives credit for such payment on the day such
interest on such Debentures becomes due; and
(iii) in the case of joint Holders, the cheque or other payment
shall be made payable to, or directed to the order of, all
such joint Holders at the address maintained on the
register in respect of such joint holding.
Notwithstanding the foregoing, if part or all of any series of
Debentures is represented by a Registered Global Debenture, then
all payments on the portion represented by the Registered Global
Debenture may be made, at the determination of the Corporation, by
electronic funds transfer or otherwise to the Depositary or its
nominee for subsequent payment to holders of interests in that
Registered Global Debenture. The mailing of such cheque or the
making of such payment by other means shall, to the extent of the
sum represented thereby plus the amount of any tax withheld, as
aforesaid, satisfy and discharge the liability for interest on
such Debenture unless, in case of payment by cheque, such cheques
are not paid at par on presentation at any one of the places where
such interest is, by the terms of such Debenture, made payable. In
the event of non-receipt of any such cheque or such other payment
of interest by the Person to whom it is sent as aforesaid, the
Corporation shall issue to such Person a replacement cheque or
other payment for a like amount upon being furnished with such
evidence of non-receipt as it shall reasonably require and upon
being indemnified to its satisfaction.
(c) None of the Corporation, the Trustee or any Paying Agent for any
Debentures issued as a Registered Global Debenture will be
responsible or liable to any Person for any aspect of the records
related to or payments made on account of beneficial interests in
any Registered Global Debenture or for maintaining, supervising or
reviewing any records relating to such beneficial interests.
(d) Notwithstanding the provisions of Subsection 7.1(b), any indenture
supplemental hereto providing for the issuance of Additional
Debentures may modify or supplement the provisions of Subsection
7.1(b) with respect to such Debentures.
7.2 OFFICE FOR NOTICES, PAYMENTS AND REGISTRATION OF TRANSFER, ETC.. The
Corporation shall maintain, in Toronto, Ontario and in such other places as the
Directors shall designate from time to time, an office or agency (which may be
an office of the Paying Agent) where:
(a) the Debentures may be presented for payment;
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(b) the Debentures may be presented for registration of transfer and
for exchange as in this Indenture provided; and
(c) notices and demands to or upon the Corporation in respect of the
Debentures or this Indenture may be served.
The Corporation shall give to the Trustee written notice of the location of any
such office or agency and of any change of location thereof. In case the
Corporation shall fail to maintain any such office or agency or shall fail to
give such notice of the location or of any change in the location thereof,
presentations and demands may be made and notices may be served at the principal
office of the Trustee in Toronto, Ontario.
7.3 APPOINTMENTS TO FILL VACANCIES IN TRUSTEE'S OFFICE. The Corporation,
whenever necessary to avoid or fill a vacancy in the office of trustee, will
appoint a trustee, so that there shall at all times be a Trustee hereunder.
7.4 TRUSTEE'S REMUNERATION AND EXPENSES. The Corporation covenants that it will
pay to the Trustee remuneration for the Trustee's services hereunder in
accordance with the fee schedule agreed to by the parties, as amended from time
to time, and will pay or reimburse the Trustee upon the Trustee's request for
all reasonable expenses, disbursements and advances incurred or made by the
Trustee in the administration or execution of the trusts hereby created
(including the reasonable compensation and the disbursements of the Trustee's
counsel and all other advisers and assistants not regularly in the Trustee's
employ), both before any default hereunder and thereafter until all duties of
the Trustee under the trusts hereof shall be finally and fully performed, except
any such expense, disbursement or advance as may arise from the Trustee's
negligence or wilful default. Following and during the continuation of an Event
of Default, all amounts so payable shall be payable out of any funds coming into
the possession of the Trustee or its successors in the trusts hereunder in
priority to any payment of the principal, premium, if any, or interest on the
Debentures. Any amount due under this Section 7.4 and unpaid 30 days after
demand for such payment shall bear interest from the expiration of such 30 days,
at the rate normally charged by the Trustee on overdue accounts.
7.5 EXTENSION OF TIME. The Corporation covenants with the Trustee that it will
not, except with the approval of the Debentureholders expressed by Extraordinary
Resolution, directly or indirectly extend or assent to the extension of time for
payment of any coupons or interest payable hereunder or be a party to or approve
any such arrangement by purchasing or funding any of said coupons or interest or
in any other manner. In case the time for payment of any such coupons or
interest shall be so extended, whether for a definite period or otherwise, such
coupons or interest shall not be entitled in case of default hereunder to the
benefit of these presents, except subject to the prior payment in full of the
principal of and premium, if any, on all Debentures then outstanding and of all
matured coupons and interest on such Debentures, the payment of which has not
been so extended, and of all other monies payable thereunder.
7.6 INSPECTION OF BOOKS BY TRUSTEE. At all reasonable times, upon the written
request of the Trustee, the Corporation will permit the Trustee, by its agents
and attorneys, to make reasonable examinations of the books of account, records,
reports and other papers of the Corporation and to take copies and extracts
therefrom.
7.7 PERFORMANCE OF COVENANTS BY TRUSTEE. If the Corporation, or the Guarantor,
if applicable, shall fail to perform any of its covenants contained in this
Trust Indenture, then the Trustee may notify the Debentureholders of such
failure on the part of the Corporation or the Guarantor or may itself perform
any of such covenants capable of being performed by it, but, subject to the
provisions of Section 8.3 and Section 13.2, shall be under no obligation to do
so or to notify the Debentureholders. All sums so expended or advanced by the
Trustee shall be repayable as provided in Section 7.4. No such performance or
advance by the Trustee shall be deemed to relieve the Corporation or the
Guarantor of any default hereunder.
FINOVA Trust Indenture Page 34 of 61
7.8 ANNUAL CERTIFICATE OF CORPORATION. Within 120 days after the end of each
fiscal year of the Corporation in which Medium Term Notes are outstanding at
such fiscal year end, the Corporation shall furnish the Trustee with a
Certificate of the Corporation stating that in the course of the performance by
the signatories of their duties as officers or directors of the Corporation they
would normally have knowledge of any default by the Corporation in the
performance of its covenants under this Indenture or of any Event of Default
under ARTICLE 8 and certifying that the Corporation has complied with all
covenants, conditions or other requirements contained in this Indenture, the
non-compliance with which would, with notification or with the lapse of time or
otherwise, constitute an Event of Default hereunder, or, if such is not the
case, setting forth with reasonable particulars the circumstances of any failure
to comply.
7.9 ANNUAL CERTIFICATE OF GUARANTOR. Within 120 days after the end of each
fiscal year of the Corporation in which Medium Term Notes are outstanding at
such fiscal year end, the Guarantor shall furnish the Trustee with a Certificate
of the Guarantor stating that in the course of the performance by the
signatories of their duties as officers or directors of the Guarantor they would
normally have knowledge of any default by the Guarantor in the performance of
its covenants under this Indenture or of any Event of Default under ARTICLE 8
and certifying that the Guarantor has complied with all covenants, conditions or
other requirements contained in this Indenture, the non-compliance with which
would, with notification or with the lapse of time or otherwise, constitute an
Event of Default hereunder, or, if such is not the case, setting forth with
reasonable particulars the circumstances of any failure to comply.
7.10 MAINTAIN CORPORATE EXISTENCE. Except as provided in ARTICLE 10 of this In
denture, the Corporation and the Guarantor will each do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and corporate power and authority.
7.11 PAYMENT OF TAXES AND OTHER CLAIMS.
(a) The Corporation will pay or discharge or cause to be paid or
discharged, as and when the same shall become due and payable, all
material taxes, assessments and governmental charges levied or
imposed upon it or upon the income, profits or property of it, and
all lawful material claims for labour, materials and supplies
which, if unpaid, might by law become alien upon the property of
it; provided, however, that they shall not be required to pay or
discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or
validity is being contested in good faith by appropriate
proceedings and for which adequate provision has been made.
(b) The Guarantor will pay or discharge or cause to be paid or
discharged, as and when the same shall become due and payable, all
material taxes, assessments and governmental charges levied or
imposed upon it or any Subsidiary or upon the income, profits or
property of it or any Subsidiary, and all lawful material claims
for labour, materials and supplies which, if unpaid, might by law
become alien upon the property of it or any Subsidiary; provided,
however, that they shall not be required to pay or discharge or
cause to be paid or discharged any such tax, assessment, charge or
claim whose amount, applicability or validity is being contested
in good faith by appropriate proceedings and for which adequate
provision has been made.
7.12 REPORTS TO TRUSTEE. The Guarantor shall:
(a) file with the Trustee, within 15 days after the Guarantor is
required to file the same with the SEC, copies of the annual
reports and of the information, documents and other reports (or
FINOVA Trust Indenture Page 35 of 61
copies of such portions of any of the foregoing as the SEC may
from time to time by rules and regulations prescribed) which the
Guarantor may be required to file with the SEC pursuant to Section
13 or Section 15(d) of the SECURITIES EXCHANGE ACT of 1934; or, if
the Guarantor is not required to file information, documents or
reports pursuant to either of said sections, then it shall file
with the Trustee and the SEC, in accordance with rules and
regulations prescribed from time to time by the SEC, such of the
supplementary and periodic information, documents and reports
which may be required pursuant to section 13 of the SECURITIES
EXCHANGE ACT of 1934 in respect of a security listed and
registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations;
(b) file with the Trustee and the SEC, in accordance with rules and
regulations prescribed from time to time by the SEC, such
additional information, documents and reports with respect to
compliance by the Guarantor with the conditions and covenants of
this Indenture as may be required from time to time by such rules
and regulations;
(c) transmit within 30 days after the filing thereof with the Trustee,
in the manner and to the extent provided in Subsection 7.12(b)
with respect to reports pursuant to Subsection 7.12(a), such
summaries of any information, documents and reports required to be
filed by the Guarantor pursuant to paragraphs (a) and (b) of this
Section as may be required by rules and regulations prescribed
from time to time by the SEC; and
(d) not require the Trustee to analyze such statements, reports,
documents or other information referred to above, or to evaluate
the performance of the Guarantor, as indicated therein, in any way
whatsoever.
7.13 COMPENSATION OF THE TRUSTEE. To the extent not paid by the Corporation
pursuant to Section 7.4, the Guarantor, covenants and agrees to pay to the
Trustee from time to time, and the Trustee shall be entitled to compensation for
all services rendered by it hereunder (which shall not be limited to any
provision of law in regard to the compensation of a trustee of any express
trust), and, except as otherwise expressly provided, the Guarantor will pay or
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any of the provisions of this Indenture (including the reasonable compensation
and expenses and disbursements of its agents, attorneys and counsel and of all
persons not regularly in its employ).
7.14 TO PERFORM OBLIGATIONS. Subject to the terms hereof, the Corporation and
the Guarantor will each do, observe and perform or cause to be done, observed
and performed all of its respective obligations and all matters and things
necessary or expedient to be done, observed or performed by virtue of any
applicable law for the purpose of creating, performing or maintaining the trusts
herein referred to and will do, observe and perform all the obligations hereby
imposed on it. The Corporation and the Guarantor will notify the Trustee in
writing upon becoming aware of an Event of Default.
7.15 ADDITIONAL INSTRUMENTS. Upon request of the Trustee from time to time, the
Corporation and the Guarantor shall execute and deliver all such additional
instruments and will do all such additional acts as may reasonably be required
or proper to carry out most effectively the purpose of this Indenture.
7.16 RESTRICTIVE COVENANTS ON MEDIUM TERM NOTES. So long as any of the Medium
Term Notes remain outstanding, the Guarantor will not, directly or indirectly,
nor will it permit any Restricted Subsidiary to, create, assume, incur or suffer
to be created, assumed or incurred or to exist any Lien upon any of the
properties of any character of the Guarantor or any Restricted Subsidiary
without making effective provision whereby the Medium Term Notes then
outstanding shall be secured equally and ratably with (or prior to) any other
obligation or indebtedness so secured, so long as such other obligation or
indebtedness remains secured. Notwithstanding the foregoing, the Guarantor or
any Restricted Subsidiary, without so securing the Medium Term Notes, may:
FINOVA Trust Indenture Page 36 of 61
(a) lease property to others in the ordinary course of the business of
the Guarantor or any Restricted Subsidiary or lease or sublease
any property if the property subject thereto is not needed by the
Guarantor or any Restricted Subsidiary in the operation of its
business;
(b) create, assume and incur such Liens or permit such Liens to be
created, assumed, incurred or to exist provided, in each case, the
Lien secures indebtedness for borrowed money, including purchase
money indebtedness, which is incurred to finance the acquisition
of the property subject to such Lien and in respect of which the
creditor has no recourse against the Guarantor or any Restricted
Subsidiary except recourse to such property or to the proceeds of
any sale or lease of such property or both;
(c) make any deposit with or give any form of security to any
governmental agency or other body created or approved by law or
governmental regulation in order to enable the Guarantor or such
Restricted Subsidiary to maintain self-insurance, or to
participate in any fund in connection with workmen's compensation,
unemployment insurance, old-age pensions, or other social
security, or to share in any privileges or other benefits
available to corporations participating in any such arrangement,
or for any other purpose at any time required by law or regulation
promulgated by any governmental agency or office as a condition to
the transaction of any business or the exercise of any privilege
or license, or deposit assets of the Guarantor or such Restricted
Subsidiary with any surety company or clerk of any court, or in
escrow, as collateral in connection with, or in lieu of, any bond
on appeal by the Guarantor or such Restricted Subsidiary from any
judgment or decree against it, or in connection with any other
proceedings in actions at law or suits in equity by or against the
Guarantor or such Restricted Subsidiary;
(d) incur or suffer to be incurred or to exist upon any of its
property or assets (i) Liens for taxes, assessment or other
governmental charges or levies which are not yet due or are
payable without penalty or of which the amount, applicability or
validity is being contested by the Guarantor or such Restricted
Subsidiary in good faith by appropriate proceedings and the
Guarantor or such Restricted Subsidiary shall have set aside on
its books reserves which it deems to be adequate with respect
thereto (segregated to the extent required by generally accepted
accounting principles), provided that foreclosure, distraint, sale
or similar proceedings have not been commenced, (ii) the Liens of
any judgment, if such judgment shall not have remained
undischarged, or unstayed on appeal or otherwise, for more than
six months, (iii) undetermined Liens or charges incident to
construction, (iv) materialmen's mechanics', workmen's,
repairmen's or other like Liens arising in the ordinary course of
business in respect of obligations which are not overdue or which
are being contested by the Guarantor or such Restricted Subsidiary
in good faith by appropriate proceedings, or deposits to obtain
the release of such Liens, or (v) any encumbrances consisting of
zoning restrictions, licenses, easements and restrictions on the
use of real property and minor defects and irregularities in the
title thereto, which do not materially impair the use of such
property by the Guarantor or such Restricted Subsidiary in the
operation of its business or the value of such property for the
purpose of such business;
(e) create other Liens incidental to the conduct of its business or
the ownership of its property and assets which were not incurred
in connection with the borrowing of money or the obtaining of
advances or credit, and which do not in the aggregate materially
detract from the value of its property or assets or materially
impair the use thereof in the operation of its business;
(f) create or suffer to be created or to exist in favour of any lender
of moneys or holder of commercial paper of the Guarantor or a
Restricted Subsidiary in the ordinary course of business a
banker's lien or right of offset in the holder of such
indebtedness or moneys of the Guarantor or a Restricted Subsidiary
FINOVA Trust Indenture Page 37 of 61
deposited with such lender or holder in the ordinary course of
business;
(g) create or suffer to be created or to exist with respect to any of
its property leasehold or purchase rights, exercisable for a fair
consideration, in favour of any Person which arise in transactions
entered into in the ordinary course of business;
(h) assume any Lien or permit any Lien to be assumed or exist if such
Lien is on property or shares in the share capital of a
corporation at the time the corporation becomes a Restricted
Subsidiary or merges into or consolidates with the Guarantor or a
Restricted Subsidiary; provided, however, that any such Lien may
not be assumed or permitted to exist if such Lien is incurred in
anticipation of such corporation becoming a Restricted Subsidiary
or in anticipation of such merger or consolidation;
(i) assume any Lien or permit any Lien to be assumed or exist if any
such Lien is on property at the time the Guarantor or a Restricted
Subsidiary acquires the property; provided, however, that any such
Lien may not extend to any other property owned by the Guarantor
or a Restricted Subsidiary at the time such Lien is assumed;
(j) assume, create or suffer to be created or to exist, such Liens in
an amount not to exceed in the aggregate U.S.$25,000,000 at any
one time outstanding, excluding Liens covered by other provisions
or clauses 7.10(a) through (i) above; and
(k) create or suffer to be created or to exist in favour of any lender
of moneys, any Lien that secures indebtedness of the Guarantor or
a Restricted Subsidiary; provided that the sum of the following
does not exceed 10% of Consolidated Net Tangible Assets: (i) such
indebtedness; plus (ii) other indebtedness of the Guarantor and
its Restricted Subsidiaries secured by Liens on property of the
Guarantor and its Restricted Subsidiaries, excluding indebtedness
secured by a Lien permitted by one of clauses 7.10(a) through (j)
above.
ARTICLE 8
DEFAULT AND ENFORCEMENT
8.1 EVENTS OF DEFAULT.
(a) Each of the following events is herein referred to as an "EVENT OF
DEFAULT":
(i) if the Corporation makes default in the due and punctual
payment of any installment of interest on any Debenture as
and when such interest installment becomes due and payable
as set forth in such Debenture, in this Indenture or any
indenture supplemental hereto expressed, and such default
continues for a period of 30 days;
(ii) if the Corporation makes default in the due and punctual
payment of the principal of or premium, if any, on any
Debenture as and when such Debenture becomes due and
payable, whether at maturity or otherwise;
(iii) if the Corporation makes default in the payment of any
purchase or sinking fund, amortization fund or analogous
fund or installment on any Debenture as and when such
payment shall become due and payable, and such default
shall have continued for a period of 30 days;
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(iv) if the Corporation or the Guarantor makes default in the
performance or observance of any other of the covenants or
agreements on its part in this Indenture, in any indenture
supplemental hereto or in the Debentures contained and,
after written notice is given to the Corporation and, where
applicable, to the Guarantor, by the Trustee specifying
such default and requiring it to be remedied and stating
that such a notice is a "NOTICE OF DEFAULT" hereunder,
which Notice of Default may be given by the Trustee, in its
discretion, and shall be given by the Trustee upon receipt
by the Corporation and the Trustee of written notice from
the Holders of not less than 25% in principal amount of
Debentures at the time outstanding (excluding Debentures of
any series not entitled to the benefits of such covenant or
agreement), the Corporation or the Guarantor, as the case
may be, shall fail to remedy such default or shall fail to
make provision deemed by the Trustee to be adequate for the
remedying of such default within a period of 90 days after
receipt of the Notice of Default;
(v) if a resolution of the Directors is passed for the
dissolution, winding up or liquidation of the Corporation,
except in the course of carrying out or pursuant to a
transaction in respect of which the conditions of ARTICLE
10 are duly observed and performed;
(vi) if the Guarantor fails to make any payments required of it
pursuant to its Guarantee;
(vii) an event of default, as defined in any mortgage, indenture
or instrument, including this Indenture, under which there
may be issued, or by which there may be secured or
evidenced, any indebtedness for money borrowed of the
Corporation or the Guarantor, whether such indebtedness now
exists or shall hereafter be created, shall happen and
shall result in such indebtedness in an amount in excess of
U.S. $15,000,000 becoming or being declared due and payable
prior to the date on which it would otherwise become due
and payable, and such acceleration shall not have been
rescinded or annulled, or such indebtedness shall not have
been discharged, within a period of 10 days after there has
been given, by registered or certified mail, to the
Corporation or the Guarantor by the Trustee or to the
Corporation, the Guarantor and the Trustee by the holders
of at least 10% in principal amount of the outstanding
Medium Term Notes a written notice specifying such event of
default and requiring the Corporation and the Guarantor to
cause such acceleration to be rescinded or annulled or to
cause such indebtedness to be discharged and stating that
such notice is a "Notice of Default" hereunder; provided,
however, that the Trustee shall not be deemed to have
knowledge of such default unless either (A) the Trustee
shall have actual knowledge of such default or (B) the
Trustee shall have received written notice thereof from the
Corporation, from the Guarantor, from the holder of any
such indebtedness or from any trustee under any such
mortgage, indenture or other instrument;
(viii) if the Corporation or any Restricted Subsidiary institutes,
or consents to the institution of, an Insolvency Proceeding
or makes an assignment for the benefit of creditors, or
admits in writing its inability to pay its debts generally
as they become due, or declares a moratorium on the payment
of creditors generally, or shall be adjudicated insolvent
or bankrupt, or takes any corporate action in furtherance
of any such purpose; and
(ix) if any Person other than the Corporation or a Restricted
Subsidiary institutes an Insolvency Proceeding in respect
of the Corporation or a Restricted Subsidiary and such
FINOVA Trust Indenture Page 39 of 61
Insolvency Proceeding is not being diligently defended in
good faith by the Corporation or the Restricted Subsidiary
or the Corporation or the Restricted Subsidiary fails to
have such Insolvency Proceeding dismissed or effectively
stayed within 60 days of the commencement thereof.
(b) The Guarantor shall provide notice to the Trustee forthwith upon
any indebtedness being declared due and payable in circumstances
that, after notice and lapse of time, would give rise to the Event
of Default referred to in paragraph 8.1(a)(vii). The Corporation
shall provide notice to the Trustee forthwith upon any
indebtedness of the Corporation being declared due and payable in
circumstances that, after notice and lapse of time, would give
rise to the Event of Default referred to in paragraph 8.1(a)(vii).
The Trustee shall provide the notice referred to in paragraph
8.1(a)(vii) forthwith after receiving any notice from the
Guarantor or the Corporation which is given under this Subsection
8.1(b).
(c) If an Event of Default shall occur and is continuing, then the
Trustee shall, within 45 days after it becomes aware of the
occurrence of such Event of Default, give notice of such Event of
Default to the Debentureholders in the manner provided in ARTICLE
14; provided, however, that, notwithstanding the foregoing, the
Trustee shall not be required to give such notice if the Trustee
in good faith shall have decided that the withholding of such
notice is in the best interests of the Debentureholders and shall
have so advised the Corporation in writing.
8.2 ACCELERATION ON DEFAULT. If an Event of Default hereunder has occurred and
is continuing, then the Trustee may in its discretion, and shall upon receipt of
a Debentureholders' Request, declare the principal of and interest on all
Debentures then outstanding and other monies payable hereunder to be due and
payable and such amounts shall forthwith become immediately due and payable to
the Trustee on demand, anything therein or herein to the contrary
notwithstanding. The Corporation shall on such demand forthwith pay to the
Trustee for the benefit of the Debentureholders the principal of, and accrued
and unpaid interest and interest on amounts in default on, such Debentures (and,
where such a declaration is based upon a voluntary dissolution, winding-up or
liquidation of the Corporation, the premium, if any, on the Debentures then
outstanding which would have been payable upon the redemption thereof by the
Corporation, other than through sinking fund operations, on the date of such
declaration) and all other monies payable thereunder together with subsequent
interest thereon at the rates borne by the Debentures from the date of such
declaration until payment is received by the Trustee, such subsequent interest
to be payable at the times and places and in the monies mentioned in and
according to the tenor of the Debentures and coupons. Such payment when made
shall be deemed to have been made in satisfaction of the Corporation's
obligations hereunder and any monies so received by the Trustee shall be applied
as herein provided.
8.3 WAIVER OF DEFAULT. In case an Event of Default has occurred otherwise than
by default in payment of any principal monies at maturity:
(a) the Holders of the Debentures then outstanding shall have power by
Extraordinary Resolution to require the Trustee to waive the Event
of Default and/or to cancel any declaration and/or demand made by
the Trustee pursuant to Section 8.2 and the Trustee shall
thereupon waive the Event of Default and/or cancel such
declaration and/or demand upon such terms and conditions as such
resolution shall prescribe; provided, however, that,
notwithstanding the foregoing, if the Event of Default has
occurred by reason of the non-observance or non-performance by the
Corporation or, if applicable, the Guarantor, of any covenant
applicable only to one or more particular series of Debentures,
then the Holders of the outstanding Debentures of that series or
those series, as the case may be, shall be entitled by
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Extraordinary Resolution (or by separate Extraordinary Resolutions
if more than one series of Debentures is so affected) to exercise
the foregoing power as if the Debentures of that series or those
series, as the case may be, were the only Debentures outstanding
hereunder and the Trustee shall so act and it shall not be
necessary to obtain a waiver from the Holders of any other series
of Debentures; and
(b) the Trustee, so long as it has not become bound to institute any
proceedings hereunder, shall have power to waive the default if,
in the Trustee's opinion, the same shall have been cured or
adequate satisfaction made therefor, and in such event to cancel
any such declaration and/or demand theretofor made by the Trustee
in the exercise of its discretion, upon such terms and conditions
as the Trustee may deem advisable,
provided that no act or omission either of the Trustee or of the
Debentureholders in the premises shall extend to or be taken in any manner
whatsoever to affect any subsequent Event of Default or the rights resulting
therefrom.
8.4 PROCEEDINGS BY THE TRUSTEE.
(a) Subject to the provisions of Section 8.3 and to the provisions of
any Extraordinary Resolution, whenever any Event of Default
hereunder has occurred:
(i) the Trustee, in the exercise of its discretion, may proceed
to enforce the rights of any or all of the Trustee and the
Debentureholders by any action, suit, remedy or proceeding
authorized or permitted by law or by equity and may file
such proofs of claim and other papers or documents as may
be necessary or advisable in order to have the claims of
the Trustee and the Debentureholders lodged in any
bankruptcy, winding-up or other judicial proceedings
relative to the Corporation; and
(ii) upon receipt of a Debentureholders' Request, the Trustee,
subject to the provisions of Section 13.2, shall exercise
or take such one or more of such remedies as the
Debentureholders' Request may direct.
(b) No such remedy for the enforcement of the rights of the Trustee or
of the Debentureholders shall be exclusive of or dependent on any
other such remedy, but any one or more of such remedies may from
time to time be exercised independently or in combination.
(c) Upon the occurrence of an Event of Default and upon the exercising
or taking by the Trustee of any such remedies, whether or not a
declaration and demand have been made pursuant to the provisions
of Section 8.2, the principal and interest of all Debentures then
outstanding and the other monies payable pursuant to the
provisions of this Indenture shall, if the Trustee so elects,
forthwith become due and payable to the Trustee as though such a
declaration and a demand therefor had actually been made.
(d) All rights of action hereunder may be enforced by the Trustee
without the possession of any of the Debentures or coupons or the
production thereof at the trial or other proceedings relative
thereto.
(e) No delay or omission of the Trustee or of the Debentureholders to
exercise any remedy referred to in Subsection 8.4(a) shall impair
any such remedy or shall be construed to be a waiver of any
default hereunder or acquiescence therein.
8.5 SUITS BY DEBENTUREHOLDERS. No Holder of any Debenture or coupon shall have
the right to institute any action or proceeding or to exercise any other remedy
authorized by this Indenture for:
FINOVA Trust Indenture Page 41 of 61
(a) the purpose of enforcing any rights on behalf of the
Debentureholders;
(b) the execution of any trust or power hereunder;
(c) the appointment of a liquidator or receiver; or
(d) a receiving order under bankruptcy legislation or to have the
Corporation wound up or to file or prove a claim in any
liquidation or bankruptcy proceedings,
unless the Trustee shall have failed to act within a reasonable time after the
Debentureholders' Request referred to in Section 8.2 has been delivered to the
Trustee, any funds and any indemnity required by it under the provisions of
Section 13.2 has been tendered to it and any Debentures required by it to be
deposited with the Trustee under the provisions of Section 13.2 have been so
deposited. In such case, but not otherwise, any Debentureholder acting on behalf
of himself and all other Debentureholders shall be entitled to take proceedings
in any court of competent jurisdiction such as the Trustee might have taken
under the provisions of Section 8.4, it being understood and intended that no
one or more Holders of Debentures or coupons shall have any right in any manner
whatsoever to affect, disturb or prejudice the rights hereby created by his or
their action or to enforce any right hereunder or under any Debenture or coupon,
except subject to the conditions and in the manner herein provided and that all
powers and trusts hereunder shall be exercised and all proceedings at law shall
be instituted and maintained by the Trustee, except only as herein provided, and
in any event for the equal benefit of all Holders of all outstanding Debentures
and coupons.
8.6 APPLICATION OF MONIES RECEIVED BY TRUSTEE. Except as otherwise herein
provided, all monies arising from any enforcement hereof shall be held by the
Trustee and applied by it, together with any other monies then or thereafter in
the hands of the Trustee available for the purpose, as follows:
(a) firstly, in payment or reimbursement to the Trustee of the
reasonable remuneration, expenses, disbursements and advances of
the Trustee earned, incurred or made in the administration or
execution of the trusts hereunder or otherwise in relation to this
Indenture;
(b) secondly, in or towards payment of accrued and unpaid interest on,
and interest on amounts in default under, the Debentures and
coupons which shall then be outstanding, and principal and
premium, if any, on the Debentures, in that order of priority
unless otherwise directed by Extraordinary Resolution and in that
case in such order of priority as between principal, premium, if
any, and interest as may be directed by such Extraordinary
Resolution; and
(c) thirdly, the surplus, if any, of such monies and any interest
accrued or earned on such monies received by the Trustee shall be
paid to the Corporation or its assigns.
8.7 DISTRIBUTION OF PROCEEDS. Payment to Holders of Debentures and coupons
pursuant to the provisions of Subsection 8.6(b) shall be made as follows:
(a) at least 15 days notice of every such payment shall be given in
the manner provided in ARTICLE 14 specifying the time when, and
the place or places where, the Debentures and coupons are to be
presented and the amount of the payment and the application
thereof as between principal, premium, if any, and interest;
(b) payment of any Debenture or coupon shall be made upon presentation
thereof at any one of the places specified in such notice and any
such Debenture or coupon thereby paid in full shall be
surrendered, otherwise a memorandum of such payment shall be
endorsed thereon; provided, however, that the Trustee may in its
discretion dispense with presentation and surrender or endorsement
in any special case upon such indemnity being given as it shall
deem sufficient; and
FINOVA Trust Indenture Page 42 of 61
(c) from and after the date of payment specified in the notice,
interest shall accrue only on the amount owing on each Debenture
and coupon after giving credit for the amount of the payment
specified in such notice unless it be duly presented on or after
the date so specified and payment of such amount not be made.
8.8 IMMUNITY OF SHAREHOLDERS, OFFICERS, DIRECTORS AND EMPLOYEES. No recourse
under or upon any obligation, covenant or agreement contained in this Indenture,
or in any Debenture or coupon issued hereunder, or under any judgment obtained
against the Corporation, or the Guarantor, if applicable, or by the enforcement
of any assessment, or by any legal or equitable proceeding by virtue of any
constitution or statute, or otherwise, shall be had against any shareholder,
officer, director or employee of the Corporation, or the Guarantor, if
applicable, or of any successor corporation to such corporations either directly
or through the Corporation or the Guarantor, or otherwise, for the payment for
or to the Trustee or any receiver or liquidator, for or to the Holder of any
Debentures or coupons issued hereunder or otherwise, of any sum that may be due
and unpaid by the Corporation or the Guarantor upon any such Debenture or
coupon. Any and all personal liability of every name and nature, whether at
common law or in equity, or by statute or by constitution or otherwise, of any
such shareholder, officer, director or employee, by reason of the non-payment of
any shares of the share capital of the Corporation or any act of omission or
commission on his part or otherwise, for the payment for or to the Trustee or
any receiver or liquidator, or for or to the Holder of any Debentures or coupons
issued hereunder or otherwise, of any sum that may remain due and unpaid on the
Debentures and coupons issued hereunder or any of them, is hereby expressly
waived and released as a condition of and as consideration for the execution of
this Indenture and the issue of such Debentures and coupons.
8.9 REMEDIES CUMULATIVE. Each and every remedy herein conferred upon or reserved
to the Trustee, or upon or to the Holders of the Debentures, shall be cumulative
and shall be in addition to every other remedy given hereunder or now existing
or hereafter to exist by law, by statute or equity.
8.10 JUDGMENT AGAINST CORPORATION AND GUARANTOR. The Corporation and the
Guarantor covenant and agree with the Trustee that, in case of any proceedings
to obtain judgment for the principal of or interest or premium on the
Debentures, judgment may be rendered against them in favour of the
Debentureholders hereunder, or in favour of the Trustee, as trustee of an
express trust for the Debentureholders, for any amount which may remain due in
respect of the Debentures and premium, if any, and interest thereon and any
other monies payable hereunder by the Corporation or the Guarantor.
8.11 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND INTEREST.
Notwithstanding any other provision of this Indenture, the Holder of any U.S.
Debenture shall have the right, which is absolute and unconditional, to receive
payment, as provided herein and in such U.S. Debenture, of the principal of (and
premium, if any), including any amount payable upon redemption, and interest on,
such U.S. Debenture on the respective due dates therefor and to institute suit
for the enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
ARTICLE 9
SATISFACTION AND DISCHARGE
9.1 CANCELLATION. All matured coupons and Debentures shall forthwith after
payment thereof be delivered to the Trustee and cancelled. All Debentures and
coupons cancelled or required to be cancelled under this or any other provision
of this Indenture may be destroyed by or under the direction of the Trustee (in
the presence of a representative of the Corporation if the Corporation shall so
FINOVA Trust Indenture Page 43 of 61
require) and the Trustee shall prepare and retain a certificate of such
destruction and deliver a duplicate thereof to the Corporation.
9.2 NON-PRESENTATION OF DEBENTURES AND COUPONS. If the Holder of any Debenture
or coupon shall fail to present the same for payment on the date on which the
principal thereof, the premium, if any, thereon and/or the interest thereon or
represented thereby becomes payable, either at maturity or on redemption,
purchase or otherwise, or shall not accept payment on account thereof and give
such receipt therefor, if any, as the Trustee may require, then:
(a) the Corporation shall be entitled to pay to the Trustee and direct
it to set aside;
(b) in respect of monies in the hands of the Trustee which may or
should be applied to the payment or redemption of the Debentures,
the Corporation shall be entitled to direct the Trustee to set
aside; or
(c) if the redemption was pursuant to notice given by the Trustee, the
Trustee may itself set aside,
the principal monies and premium, if any, and/or the interest, as the case may
be, in trust to be paid to the Holder of such Debenture or coupon upon due
presentation or surrender thereof in accordance with the provisions of this
Indenture and, thereupon, the principal monies and premium, if any, and/or the
interest payable on or represented by each Debenture and each coupon in respect
whereof such monies have been set aside shall be deemed to have been paid and
the Holder thereof shall thereafter have no right in respect thereof except that
of receiving payment of the monies so set aside by the Trustee (without interest
on such monies, such interest being the property of the Corporation) upon due
presentation and surrender thereof, subject always to the provisions of Section
9.4.
9.3 PAYING AGENT TO REPAY MONIES HELD. Upon the satisfaction and discharge of
this Indenture, all monies then held by any Paying Agent of the Debentures
(other than the Trustee) shall, upon Written Order of the Corporation, be repaid
to it or paid to the Trustee, and thereupon such Paying Agent shall be released
from all further liability with respect to such monies.
9.4 REPAYMENT OF UNCLAIMED MONIES TO CORPORATION. Subject to applicable law, any
monies set aside under the provisions of Section 9.2 in respect of any Debenture
or coupon and not claimed by and paid to the Holder thereof, as provided in
Section 9.2, within six years after the date of such setting aside, shall be
repaid to the Corporation by the Trustee on written demand, and thereupon the
Trustee shall be released from all further liability with respect to such
monies, and thereafter, subject to any other requirements of law, such Holder
shall have no rights in respect of such Debenture or coupon except to obtain
payment of such monies (without interest thereon) from the Corporation at any
time up to the sixth anniversary of the date of setting aside. All monies
remaining unclaimed on the sixth anniversary of the date of setting aside shall
become the property of the Corporation and no other Person shall have any right
thereto.
9.5 SATISFACTION AND DISCHARGE. Upon proof being given to the reasonable
satisfaction of the Trustee that:
(a) the principal of all of the Debentures, or all of the outstanding
Debentures of any series, the premium thereon, if any, interest
(including interest on amounts overdue) thereon and other monies
payable hereunder have been paid or satisfied; or
(b) all of the outstanding Debentures, or all of the outstanding
Debentures of any series when, with respect to all of the
outstanding Debentures or all of the outstanding Debentures of any
series, having matured or having been duly called for redemption,
or the Trustee having been given irrevocable written instructions
by the Corporation to give, within 90 days, notice of redemption
FINOVA Trust Indenture Page 45 of 61
of all the outstanding Debentures, or all of the outstanding
Debentures of any series, and such payment and/or redemption has
been duly and effectually provided for by payment to the Trustee
or otherwise, and
upon payment of all costs, charges and expenses properly incurred by the Trustee
in relation to these presents and the remuneration of the Trustee, or upon
provision satisfactory to the Trustee being made therefor, the Trustee shall, at
the request and at the expense of the Corporation, execute and deliver to the
Corporation such deeds or other instruments as shall be requisite to evidence
the satisfaction and discharge of this Indenture and/or any Indenture
supplemental hereto and to release the Corporation, and the Guarantor, if
applicable, from their covenants herein and therein contained with respect to
all the outstanding Debentures, or all such outstanding Debentures of any
series, as the case may be, except those relating to the indemnification of the
Trustee.
9.6 DEFEASANCE. The Corporation, and the Guarantor, if applicable, shall be
deemed to have fully satisfied their obligations under this Indenture in respect
of all of the outstanding Debentures or all of the outstanding Debentures of any
series and the Trustee, at the expense of the Corporation, shall execute and
deliver proper instruments acknowledging the full release of the Corporation and
the Guarantor from their covenants herein contained in respect of all of the
outstanding Debentures or all of the outstanding Debentures of any series when,
with respect to all of the outstanding Debentures or all of the outstanding
Debentures of any series, as the case may be, the Corporation or the Guarantor
has deposited or caused to be deposited with the Trustee as:
(a) trust funds in trust pursuant hereto, or made provision
satisfactory to the Trustee for the payment of, an amount
sufficient to pay, satisfy and discharge the entire amount of
principal and accrued and unpaid interest to the maturity date of
all the outstanding Debentures or all the outstanding Debentures
of such series;
(b) trust property in trust pursuant hereto:
(i) in the event the Debentures are payable in Canadian
currency, such amount of direct obligations of, or
obligations the principal and interest of which are
guaranteed by:
(A) the Government of Canada, or
(B) a province of Canada which are rated by both
Dominion Bond Rating Service Limited and CBRS Inc.
(or their successors or similar recognized rating
services) at least AA and A+, respectively, at the
time of the deposit thereof, or
(ii) in the event the Debentures are payable in United States
currency, such amount of direct obligations of, or
obligations the principal and interest of which are
guaranteed by, the Government of the United States of
America,
in each case as shall, together with the income to accrue thereon
without consideration of any reinvestment thereof, be sufficient
in the opinion of an independent chartered accountant (which may
include the Corporation's auditors or the Guarantor's auditors) to
pay, satisfy and discharge the entire amount of principal and
accrued and unpaid interest to the maturity date of all the
outstanding Debentures or all the outstanding Debentures of such
series and for the payment of any taxes arising with respect to
such deposited funds, obligations and/or other securities as same
shall become due from time to time; or
(c) the Corporation has delivered to the Trustee all the outstanding
Debentures or all the outstanding Debentures of such series for
cancellation;
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provided that in any case:
(d) the Corporation or the Guarantor has paid or caused to be paid all
other sums payable with respect to all the outstanding Debentures
or all the outstanding Debentures of such series; and
(e) the Corporation or the Guarantor has delivered to the Trustee a
Certificate of the Corporation or a Certificate of the Guarantor,
as the case may be, stating that all conditions precedent set
forth in this Section 9.6 relating to the payment, satisfaction
and discharge of the outstanding obligations relating to all the
outstanding Debentures or all the outstanding Debentures of such
series have been complied with by the Corporation or the
Guarantor, as applicable.
Any deposits with the Trustee referred to in this Section 9.6 shall be made
under the terms of an escrow trust agreement in form and substance satisfactory
to the Trustee and which provides for the due and punctual payment of the
principal and accrued interest of all the outstanding Debentures or all the
outstanding Debentures of such series.
Upon the satisfaction of the conditions set forth in this Section 9.6
with respect to all the outstanding Debentures or all the outstanding Debentures
of such series, the Corporation and the Guarantor shall have and be deemed to
have satisfied all of their obligations under such Debentures and any related
coupons and this Indenture insofar as such Debentures and any related coupons
are concerned, except for the following which shall survive unless otherwise
terminated or discharged hereunder:
(a) the rights of the Holders of such Debentures and any related
coupons to receive, solely from the trust fund described herein,
payments in respect of principal, premium, if any, and interest on
such Debentures and any related coupons when due;
(b) the obligations of the Corporation pursuant to the provisions of
Sections 2.10, 3.1 to 3.7 inclusive, 7.2 and 7.4;
(c) the obligations of the Corporation and the Guarantor pursuant to
Section 13.3;
(d) the rights, powers, trusts, duties and immunities of the Trustee
hereunder; and
(e) this Section 9.6.
FINOVA Trust Indenture Page 46 of 61
ARTICLE 10
SUCCESSORS
10.1 GENERAL PROVISIONS. Nothing in this Indenture shall prevent, if otherwise
permitted by law, the reorganization, consolidation, amalgamation or merger of
the Corporation or the Guarantor with any other corporation, including any
Affiliate of the Corporation or the Guarantor, or shall prevent the sale by the
Corporation or the Guarantor of all or substantially all of its assets to
another corporation, including any Affiliate of the Corporation or the
Guarantor, lawfully entitled to acquire and operate the same; provided, however,
that:
(a) no condition or event shall exist as to the Corporation or the
Guarantor or such successor or assign either at the time of or
immediately after such reorganization, consolidation,
amalgamation, merger or sale and after giving full effect thereto,
or immediately after such successor or assign shall become liable
to pay the principal, premium, if any, and interest, which
constitutes or would, with the giving of notice or lapse of time
or both, constitute a default or an Event of Default hereunder;
and
(b) every such successor or assign shall, as a part of such
reorganization, consolidation, amalgamation, merger or sale and in
consideration thereof enter into and execute such indenture or
indentures supplemental hereto in favour of the Trustee as the
Trustee may reasonably require whereby such successor or assign
covenants to:
(i) pay punctually when due the principal monies, premium, if
any, interest and other monies payable hereunder,
(ii) perform and observe punctually all the obligations of the
Corporation or the Guarantor, as the case may be, under and
in respect of all outstanding Debentures, and
(iii) observe and perform each and every covenant and agreement
of the Corporation or the Guarantor, as the case may be,
herein contained as fully and completely as if it had
itself executed this Indenture as the Corporation or the
Guarantor, as the case may be, and had expressly agreed
herein to observe and perform the same.
The Trustee shall facilitate every such reorganization, consolidation,
amalgamation, merger or sale and may give such consents and sign, execute or
join in such documents and do such acts as in its discretion may be thought
advisable in order that such reorganization, consolidation, amalgamation, merger
or sale may be carried out, and thereupon the Corporation or the Guarantor, as
applicable, may be released and discharged from liability under this Indenture
(if such release and discharge would not in the opinion of Counsel, acting
reasonably, prejudice the interests of the Debentureholders) and the Trustee may
execute any document or documents which it may be advised is or are necessary or
advisable for effecting or evidencing such release and discharge and the opinion
of Counsel as hereinafter mentioned shall be full warrant and authority to the
Trustee for so doing. As a condition precedent to any reorganization,
consolidation, amalgamation, merger or sale proposed to be carried out pursuant
to the provisions of this Section 10.1, the Corporation or the Guarantor, as the
case may be, shall furnish to the Trustee an opinion of Counsel, in form and
substance satisfactory to the Trustee, as to the legality of any such action
proposed to be taken pursuant to the provisions of this Section 10.1 and as to
the compliance of any such action with the terms of this Indenture.
10.2 STATUS OF SUCCESSOR. In case of any reorganization, consolidation,
amalgamation, merger or sale carried out pursuant to the provisions of Section
10.1, the successor or assign referred to in Section 10.1, upon executing an
indenture or indentures supplemental hereto as provided in Section 10.1, shall
succeed to and be substituted for the Corporation or the Guarantor, as the case
may be (which may then be wound up, if so desired by its shareholders and if
such winding-up would not terminate the existence of such successor), with the
same effect as if it had been named herein as the Corporation or the Guarantor,
FINOVA Trust Indenture Page 47 of 61
as the case may be, and shall possess and may exercise each and every right of
the Corporation or the Guarantor, as the case may be, hereunder.
ARTICLE 11
MEETINGS OF DEBENTUREHOLDERS
11.1 RIGHT TO CONVENE MEETING. The Trustee may at any time and from time to time
and shall, on receipt of a Written Request of the Corporation or a
Debentureholders' Request, upon receiving sufficient funds, and upon being
indemnified to its reasonable satisfaction by the Corporation or by the
Debentureholders signing such Debentureholders' Request against the costs which
may be incurred in connection with the calling and holding of such meeting,
convene a meeting of the Debentureholders. In the event of the Trustee failing,
within 30 days after receipt of such request, funds and indemnity, to give
notice convening such meeting, the Corporation or such Debentureholders, as the
case may be, may convene such meeting. Every such meeting shall be held in the
City of Toronto, Ontario, or at such other place as may be approved or
determined by the Trustee. The accidental omission to give notice of a meeting
to any Debentureholder shall not invalidate any resolution passed at any such
meeting.
11.2 NOTICE. At least 21 days notice of any meeting shall be given to the
Debentureholders in the manner provided in ARTICLE 14 and a copy thereof shall
be sent by post or personal delivery to the Trustee unless the meeting has been
convened by it and to the Corporation unless the meeting has been convened by
it. Such notice shall state the time when and the place where the meeting is to
be held and shall state briefly the general nature of the business to be
transacted thereat and it shall not be necessary for any such notice to set out
the terms of any resolution to be proposed or any of the provisions of this
ARTICLE 11.
11.3 CHAIRMAN. Some individual, who need not be a Debentureholder, nominated in
writing by the Trustee shall be chairman of the meeting of Debentureholders and
if no individual is so nominated, or if the individual so nominated is not
present within 15 minutes from the time fixed for the holding of the meeting or
is unwilling or unable to act, then the Debentureholders present in person or by
proxy shall choose some individual present to be chairman.
11.4 QUORUM. Subject to the provisions of Section 11.13:
(c) at any meeting of the Debentureholders, a quorum shall consist of
Debentureholders present in person or by proxy and representing at
least 25% in principal amount of the outstanding Debentures;
(a) if a quorum of the Debentureholders shall not be present within 30
minutes from the time fixed for holding any meeting, then the
meeting, if convened by the Debentureholders or on a
Debentureholders' Request, shall be dissolved, but if otherwise
convened, the meeting shall stand adjourned without notice to the
same day in the next week (unless such day is not a Business Day
in which case it shall stand adjourned to the next following
Business Day thereafter) at the same time and place, unless the
chairman of such meeting shall appoint some other place, day
and/or time of which not less than seven days notice shall be
given in the manner provided in ARTICLE 14; and
(d) at the adjourned meeting, the Debentureholders present in Person
or by proxy shall form a quorum and may transact the business for
which the meeting was originally convened notwithstanding that
they may not represent 25% in principal amount of the outstanding
Debentures.
11.5 POWER TO ADJOURN. The chairman of any meeting at which a quorum of the
Debentureholders is present may, with the consent of the Holders of a majority
in principal amount of the Debentures represented thereat, adjourn any such
meeting and no notice of such adjournment need be given except such notice, if
any, as the meeting may prescribe.
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11.6 SHOW OF HANDS. Every question submitted to a meeting of Debentureholders
shall, subject to the provisions of Section 11.7, be decided in the first place
by a majority of the votes given on a show of hands except that votes on
Extraordinary Resolutions shall be given in the manner hereinafter provided. At
any such meeting, unless a poll is demanded as herein provided, a declaration by
the chairman that a resolution has been carried or carried unanimously or by a
particular majority or lost or not carried by a particular majority shall be
conclusive evidence of the fact. The chairman of any meeting shall be entitled,
both on a show of hands and on a poll, to vote in respect of the Debentures, if
any, held by him.
11.7 POLL. On every Extraordinary Resolution, and on any other question
submitted to a meeting when demanded by the chairman, or by any Debentureholder
or proxies for Debentureholders holding not less than $100,000 in aggregate
principal amount of Debentures, after a vote by show of hands, a poll shall be
taken in such manner as the chairman shall direct. Questions other than
Extraordinary Resolutions shall if a poll be taken, be decided by the votes of
the Holders of more than 50% in principal amount of the Debentures represented
at the meeting and voted on the poll.
11.8 VOTING. On a show of hands, every Person who is present and entitled to
vote, whether as a Debentureholder or as proxy for one or more absent
Debentureholders or both, shall have one vote. On a poll, each Debentureholder
present in person or represented by a proxy duly appointed by instrument in
writing shall be entitled to one vote in respect of each $1,000 principal amount
of Debentures of which he shall then be the Holder. Each Holder of any
Debentures payable in a currency or currency unit other than Canadian dollars
shall have one vote for every $1,000 principal amount of Debentures computed
after conversion of the principal amount thereof at the applicable spot buying
rate of exchange for such currency or currency unit as reported by the Bank of
Canada at the close of business on the Business Day next preceding such meeting.
Any fractional amounts resulting from such computation shall be rounded to the
nearest $1,000. A proxy need not be a Debentureholder. In the case of joint
registered Debentureholders, any one of them present in person or by proxy at
the meeting may vote in the absence of the other or others; provided, however,
that in case more than one of them be present in person or by proxy they shall
vote as one in respect of the Debentures of which they are joint registered
Holders.
11.9 REGULATIONS. The Trustee, or the Corporation with the approval of the
Trustee, may from time to time make and from time to time vary such regulations
as it shall from time to time think fit:
(a) for the issue of voting certificates to any:
(i) bank, trust company or other depositary approved by the
Trustee certifying that specified unregistered Debentures
have been deposited with it by a named Holder and shall
remain on deposit until after the meeting, or
(ii) bank, trust company, insurance company, governmental
department or agency approved by the Trustee certifying
that it is the Holder of specified unregistered Debentures
and shall continue to hold the same until after the
meeting,
which voting certificates shall entitle the Holders named therein
to be present and vote at any such meeting and at any adjournment
thereof or to appoint a proxy or proxies to represent them and
vote for them at any such meeting and at any adjournment thereof,
in the same manner and with the same effect as though the Holders
so named in such voting certificates were the actual bearers of
the Debentures specified therein;
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(b) for the deposit of any voting certificates and instruments
appointing proxies at such place as the Trustee, the Corporation
or the Debentureholders convening the meeting, as the case may be,
may in the notice convening the meeting direct;
(c) for the deposit of any voting certificates and instruments
appointing proxies at some approved place or places other than the
place at which the meeting is to be held and enabling particulars
of such voting certificates and instruments appointing proxies to
be mailed or otherwise transmitted before the meeting to the
Corporation or to the Trustee at the place where the same is to be
held and for the voting of proxies so deposited as though the
instruments themselves were produced at the meeting; and
(d) with respect to proof of the holding of Debentures and of the
appointment of proxies, the appointment and duties of inspectors
of votes, the submission and examination of proxies, certificates
and other evidence of the right to vote and such other matters
concerning the conduct of the meeting as it shall think fit.
Any regulations so made shall be binding and effective and the votes given in
accordance therewith shall be valid and shall be counted. Save as such
regulations may provide, the only Persons who shall be recognized at any meeting
as the Holders of any Debentures, or as entitled to vote or be present at the
meeting in respect thereof, shall be Holders and Persons whom Holders of
registered Debentures have by instrument in writing duly appointed as their
proxies.
11.10 CORPORATION, GUARANTOR AND TRUSTEE MAY BE REPRESENTED. The Corporation,
the Guarantor and the Trustee, by their respective employees, officers,
directors and legal advisers, may attend any meeting of the Debentureholders but
shall have no vote as such.
11.11 POWERS EXERCISABLE BY EXTRAORDINARY RESOLUTION. In addition to all other
powers conferred upon them by any other provisions of this Indenture or by law,
a meeting of the Debentureholders shall have the following powers exercisable
from time to time by Extraordinary Resolution:
(a) power to sanction any scheme for the reorganization,
consolidation, amalgamation or merger of the Corporation or the
Guarantor with any other corporation, or for the sale of all or
substantially all of the assets of the Corporation or the
Guarantor; provided, however, that no such sanction shall be
necessary for a reorganization, consolidation, amalgamation,
merger or sale carried out in compliance with the provisions of
ARTICLE 10;
(b) power to require the Trustee to exercise or refrain from
exercising any of the powers conferred upon it by this Indenture
or any Debenture or to waive any default on the part of the
Corporation, either unconditionally or, upon such terms as may be
decided upon and to annul and to direct the Trustee to annul, any
declaration or demand made pursuant to the provisions of Section
8.2 in respect of such default;
(c) power to remove the Trustee from office and to appoint a new
trustee or trustees in accordance with Section 13.8;
(d) power to sanction any change whatsoever of any provision of the
Debentures or coupons or of this Indenture agreed to by the
Corporation or the Guarantor and any modification, alteration,
abrogation, compromise or arrangement of or in respect of the
rights of the Debentureholders against the Corporation, or the
Guarantor, if applicable, or against their property, whether such
rights shall arise under the provisions of this Indenture, the
Debentures or coupons or otherwise;
FINOVA Trust Indenture Page 50 of 61
(e) power to sanction the exchange of the Debentures or coupons for or
the conversion thereof into shares, bonds, debentures or other
securities of the Corporation or of any corporation formed or to
be formed;
(f) power to assent to any compromise or arrangement by the
Corporation or the Guarantor with any creditor, creditors or class
or classes of creditors or with the holders of any shares or
securities of the Corporation or the Guarantor;
(g) power to commence, carry on and settle any action against the
Trustee in respect of the performance of its duties hereunder;
(h) power to authorize the Trustee, in the event of the Corporation
making an authorized assignment or proposal, or a custodian or
trustee being appointed, under bankruptcy legislation or a
liquidator being appointed, for and on behalf of the
Debentureholders, and in addition to any claim or debt proved or
made for its own account as Trustee hereunder, to file and prove
any claim or debt against the Corporation and its property for an
amount equivalent to the aggregate amount which may be payable in
respect of the Debentures, value security and vote such claim or
debt at meetings of creditors and generally act for and on behalf
of the Debentureholders in such proceedings as such resolution may
provide;
(i) power to restrain any Holder of any Debenture or coupon
outstanding hereunder from taking or instituting any action, suit
or proceeding for the execution of any trust or power hereunder or
for the appointment of a custodian, sequestrator, liquidator,
receiver manager or receiver or trustee in bankruptcy or to have
the Corporation wound up or for any other remedy hereunder and to
direct such Holder of any Debenture or coupon to waive any default
or defaults by the Corporation on which any action, suit or
proceeding is founded;
(j) power to direct any Debentureholder bringing any action, suit or
proceeding and the Trustee to waive the default in respect of
which such action, suit or other proceeding shall have been
brought and to stay or discontinue any such action, suit or
proceeding upon payment to each such Debentureholder of such
Debentureholder's costs, provided that the action, suit or
proceeding was authorized pursuant to the provisions of Section
8.5;
(k) power to require the Trustee to make a declaration under the
provisions of Section 8.2 and/or to proceed to enforce any remedy
available hereunder, but subject always to compliance with the
provisions of Section 8.3;
(l) power to amend, alter or repeal any Extraordinary Resolution
previously passed or sanctioned by the Debentureholders;
(m) power to appoint a committee with power and authority (subject to
such limitations, if any, as may be prescribed in the
Extraordinary Resolution) to exercise on behalf of the
Debentureholders such of the powers of the Debentureholders
exercisable by Extraordinary Resolution or other resolution as
shall be included in such appointment; and
(n) power to assent to any modification of or change in or addition to
or omission from the provisions contained in this Indenture which
shall be agreed to by the Corporation and the Guarantor and to
authorize the Trustee to concur in and execute any indenture
supplemental to this Indenture embodying any such modification,
change, addition or omission or any deeds, documents or writings
authorized by such resolution.
FINOVA Trust Indenture Page 51 of 61
11.12 POWERS CUMULATIVE. It is hereby declared and agreed that any one or more
of the powers and any combination of the powers in this Indenture stated to be
exercisable by the Debentureholders by Extraordinary Resolution or otherwise may
be exercised from time to time and the exercise of any one or more of such
powers or any combination of powers from time to time shall not be deemed to
exhaust the right of the Debentureholders to exercise such power or powers or
combination of powers then, or any power or powers or combination of powers
thereafter, from time to time.
11.13 MEANING OF "EXTRAORDINARY RESOLUTION"".
(a) The expression "EXTRAORDINARY RESOLUTION" when used in this Trust
Indenture means, subject as hereinafter provided in this Section
11.13 and in Sections 11.15 and 11.17, a resolution proposed to be
passed as an Extraordinary Resolution at a meeting of
Debentureholders duly convened for the purpose and held in
accordance with the provisions of this ARTICLE 11 at which the
Holders of more than 25% in principal amount of the Debentures
then outstanding are present in person or by proxy and passed by
the favourable votes of the Holders of not less than 66 2/3% of
the principal amount of Debentures represented at the meeting and
voted on a poll upon such resolution.
(b) If at any such meeting the Holders of more than 25% in principal
amount of the Debentures outstanding are not present in person or
by proxy within 30 minutes after the time appointed for the
meeting, then the meeting, if convened by Debentureholders or on a
Debentureholders' Request, shall be dissolved, but if otherwise
convened, the meeting shall stand adjourned to such day, being not
less than 21 nor more than 60 days later, and to such place and
time as may be appointed by the chairman of the meeting. Not less
than 10 days notice shall be given of the time and place of such
adjourned meeting in the manner provided in ARTICLE 14. Such
notice shall state that, at the adjourned meeting, the
Debentureholders present in person or by proxy shall form a quorum
but it shall not be necessary to set forth the purposes for which
the meeting was originally called or any other particulars. At the
adjourned meeting the Debentureholders present in person or by
proxy shall form a quorum and may transact the business for which
the meeting was originally convened and a resolution proposed at
such adjourned meeting and passed by the requisite vote as
provided in Subsection 11.13(a) shall be an Extraordinary
Resolution within the meeting of this Indenture, notwithstanding
that the Holders of more than 25% in principal amount of the
Debentures then outstanding are not present in person or by proxy
at such adjourned meeting.
(c) Votes on an Extraordinary Resolution shall always be given on a
poll and no demand for a poll on an Extraordinary Resolution shall
be necessary.
11.14 MINUTES. Minutes of all resolutions and proceedings at every such meeting
as aforesaid shall be made and duly entered in books to be from time to time
provided for that purpose by the Trustee at the expense of the Corporation and,
any such minutes as aforesaid, if signed by the chairman of the meeting at which
such resolutions were passed or proceedings had, or by the chairman of the next
succeeding meeting of the Debentureholders, shall be prima facie evidence of the
matters therein stated and, until the contrary is proved, every such meeting, in
respect of the proceedings of which minutes shall have been made, shall be
deemed to have been duly held and convened, and all resolutions passed thereat
or proceedings taken, to have been duly passed and taken.
11.15 INSTRUMENTS IN WRITING. All actions that may be taken and all powers that
may be exercised by the Debentureholders at a meeting held as hereinbefore set
forth in this ARTICLE 11 may also be taken and exercised by the Holders of not
less than 66 2/3% in principal amount of all the outstanding Debentures by an
instrument in writing signed in one or more counterparts and the expression
"EXTRAORDINARY RESOLUTION" when used in this Trust Indenture shall include an
instrument so signed. Proof of the execution of an instrument in writing by any
Debentureholder may be made by the certificate of any notary public, or other
FINOVA Trust Indenture Page 52 of 61
officer with similar powers, that the Person signing such instrument
acknowledged to him the execution thereof, or by an affidavit of a witness to
such execution or in any other manner which the Trustee may consider adequate.
Any instrument in writing signed as herein provided shall bind all future
Holders of the same Debenture or any Debenture or Debentures issued in exchange
therefor in respect of anything done or suffered by the Corporation or the
Trustee in pursuance thereof.
11.16 BINDING EFFECT OF RESOLUTIONS. Subject to the provisions of Section 11.17,
every resolution and every Extraordinary Resolution passed in accordance with
the provisions of this ARTICLE 11 at a meeting of Debentureholders shall be
binding upon all the Debentureholders, whether present at or absent from such
meeting, and every instrument in writing signed by Debentureholders in
accordance with the provisions of Section 11.15 shall be binding upon all the
Debentureholders, whether signatories thereto or not, and each and every
Debentureholder and the Trustee (subject to the provisions for its indemnity
herein contained) shall be bound to give effect accordingly to every such
resolution, Extraordinary Resolution and instrument in writing.
11.17 SERIAL MEETINGS.
(a) If any business to be transacted at a meeting of Debentureholders,
or any action to be taken or power to be exercised by instrument
in writing under the provisions of Section 11.15, especially
affects the rights of the Holders of Debentures of one or more
series or maturities in a manner or to an extent substantially
differing from that in or to which it affects the rights of the
Holders of Debentures of any other series or maturity (as to which
an opinion of Counsel shall be binding on all Debentureholders,
the Trustee and the Corporation for all purposes hereof), then:
(i) reference to such fact, indicating each series or maturity
so especially affected, shall be made in the notice of such
meeting and the meeting shall be and is herein called a
"serial meeting"; and
(ii) the Holders of Debentures of a series or maturity so
especially affected shall not be bound by any action taken
at a serial meeting or by instrument in writing under the
provisions of Section 11.15 unless in addition to
compliance with the other provisions of this ARTICLE 11:
(A) at such serial meeting:
(1) there are present in person or by proxy
Holders of at least 25% in principal amount
of the outstanding Debentures of such series
or maturity, subject to the provisions of
this ARTICLE 11 as to adjourned meetings, and
(2) the resolution is passed by the favourable
votes of the Holders of more than 50% (or in
the case of an Extraordinary Resolution not
less than 66 2/3%) in principal amount of
Debentures of such series or maturity voted
on the resolution, or
(B) in the case of action taken or power exercised by
instrument in writing under the provisions of
Section 11.15, such instrument is signed in one or
more counterparts by the Holders of not less than 66
2/3% in principal amount of the outstanding
Debentures of such series or maturity.
FINOVA Trust Indenture Page 53 of 61
(b) If in the opinion of Counsel any business to be transacted at any
meeting, or any action to be taken or power to be exercised by
instrument in writing under the provisions of Section 11.15, does
not adversely affect the rights of the Holders of Debentures of
one or more particular series or maturities, then the provisions
of this ARTICLE 11 shall apply as if the Debentures of such series
or maturity were not outstanding and no notice of any such meeting
need be given to the Holders of Debentures of such series or
maturity. Without limiting the generality of the foregoing, a
proposal to modify or terminate any covenant or agreement which by
its terms is effective only so long as Debentures of a particular
series or maturity are outstanding shall be deemed not to
adversely affect the rights of the Holders of Debentures of any
other series or maturity.
(c) A proposal to:
(i) extend the maturity of Debentures of any particular series
or maturity or reduce the principal amount thereof or the
rate of interest or redemption premium thereon;
(ii) modify or terminate any covenant or agreement which by its
terms is effective only so long as Debentures of a
particular series or maturity are outstanding; or
(iii) reduce with respect to Holders of Debentures of a
particular series or maturity any percentage stated in
Sections 1.1, 11.4, 11.7, 11.13, or 11.15 or in this
Section 11.17,
shall be deemed to especially affect the rights of the Holders of
Debentures of such series or maturity, as the case may be, in a
manner substantially differing from that in which it affects the
rights of Holders of Debentures of any other series or maturity,
whether or not a similar extension, reduction, modification or
termination is proposed with respect to Debentures of any or all
other series and maturities.
ARTICLE 12
SUPPLEMENTAL INDENTURES
12.1 EXECUTION OF SUPPLEMENTAL INDENTURES. From time to time the Corporation,
and the Guarantor, if applicable, (when authorized by a resolution of its
respective directors) and the Trustee may, subject to the provisions of these
presents, and they shall, when so directed or required under this Indenture,
execute and deliver by their proper officers, Indentures or other instruments
supplemental hereto, which thereafter shall form part hereof, for any one or
more or all of the following purposes:
(a) creating any Additional Debentures and establishing the terms of
any Additional Debentures and the forms and denominations in which
they may be issued as provided in ARTICLE 2;
(b) deleting, modifying or adding to the covenants of the Corporation
or the Guarantor herein contained for the protection of the
Holders of the Debentures or of the Debentures of any series and
providing for events of default in addition to those specified in
ARTICLE 8;
(c) evidencing the succession of successors or assigns to the
Corporation or the Guarantor and the covenants of and obligations
assumed by such successors or assigns in accordance with the
provisions of ARTICLE 10;
(d) giving effect to any Extraordinary Resolution passed as provided
in ARTICLE 11;
FINOVA Trust Indenture Page 54 of 61
(e) adding to or altering the provisions hereof in respect of the
registration and transfer of Debentures, making provision for the
issue of Debentures in forms or denominations other than those
herein provided for and for the exchange of Debentures of
different forms and denominations and making any modifications in
the forms of the Debentures and coupons which in the opinion of
Counsel do not affect the substance thereof;
(f) making any additions to, deletions from or alterations of the
provisions of this Indenture which the Corporation may deem
necessary or advisable in order to facilitate the sale of the
Debentures and which, in the opinion of Counsel, do not adversely
affect in any substantial respect the interests of the Holders of
the Debentures, or any series or maturity thereof then
outstanding, including without limiting the generality of the
foregoing such additions, deletions and alterations (including
provision for the appointment of an additional trustee or a
co-trustee in any jurisdiction) as would be required to comply
with the provisions relating to trust indentures contained in any
corporations act, securities act, trust indenture act or similar
legislation in any jurisdiction in which Debentures may have been
sold or in which the Corporation may desire to sell the
Debentures;
(g) making any additions or alterations to, or deletions from, the
provisions of this Indenture which in the opinion of Counsel may
from time to time be necessary or advisable to conform the same to
Trust Indenture Legislation;
(h) making such provisions not inconsistent with this Indenture as may
be necessary or desirable with respect to matters or questions
arising hereunder or for the purpose of obtaining a listing or
quotation of the Debentures or any series thereof on any stock
exchange or providing additional means of transferring Debentures
or additional or other provisions relating to Debentures, or to
facilitate the sale of any Additional Debentures, provided that
such provisions are not, in the opinion of Counsel, prejudicial to
the interests of the Debentureholders; and
(i) for any other purpose not inconsistent with the terms of this
Indenture, including, without limitation, the correction or
rectification of any ambiguities, defective provisions, errors or
omissions herein, provided that in the opinion of Counsel the
rights of the Trustee and of the Debentureholders are in no way
prejudiced thereby.
12.2 CORRECTION OF MANIFEST ERRORS. The Corporation, the Guarantor and the
Trustee may, without the consent or concurrence of the Debentureholders, by
supplemental indenture or otherwise, make any changes or corrections in this
Indenture which the Trustee shall have been advised by Counsel are required for
the purpose of curing or correcting any ambiguity or defective or inconsistent
provisions or clerical omission or mistake or manifest error contained herein,
or in any deed or indenture supplemental or ancillary hereto, provided that in
the opinion of the Trustee the rights of the Trustee and of the Debentureholders
are in no way prejudiced thereby.
ARTICLE 13
CONCERNING THE TRUSTEE
13.1 TRUST INDENTURE LEGISLATION.
(a) If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with a mandatory requirement of Trust
Indenture Legislation, such mandatory requirement shall prevail.
FINOVA Trust Indenture Page 55 of 61
(b) The Corporation, the Guarantor and the Trustee agree that each
shall at all times in relation to this Indenture and any action to
be taken hereunder, observe and comply with and be entitled to the
benefits of Trust Indenture Legislation.
13.2 RIGHTS AND DUTIES OF TRUSTEE.
(a) In the exercise of the rights, duties and obligations prescribed
or conferred by the terms of this Indenture, the Trustee shall act
honestly and in good faith with a view to the best interests of
the Debentureholders and shall exercise that degree of care,
diligence and skill that a reasonably prudent trustee would
exercise in comparable circumstances.
(b) Subject only to the provisions of Subsection 13.2(a), the
obligation of the Trustee to commence or continue any act, action
or proceeding for the purpose of enforcing any rights of the
Trustee or the Debentureholders hereunder shall be conditional
upon the Debentureholders furnishing, when required by notice in
writing by the Trustee, sufficient funds to commence or continue
such act, action or proceeding and indemnity reasonably
satisfactory to the Trustee to protect and hold harmless the
Trustee against the costs, charges and expenses and liabilities to
be incurred thereby and any loss and damage it may suffer by
reason thereof. None of the provisions contained in this Indenture
shall require the Trustee to expend or risk its own funds or
otherwise incur financial liability in the performance of any of
its duties or in the exercise of any of its rights or powers
unless indemnified as aforesaid.
(c) The Trustee may, before commencing or at any time during the
continuance of any such act, action or proceeding, require the
Debentureholders at whose instance it is acting to deposit with
the Trustee the Debentures held by them, for which Debentures the
Trustee shall issue receipts.
(d) Every provision of this Indenture that by its terms relieves the
Trustee of liability or entitles it to rely upon any evidence
submitted to it, is subject to the provisions of Trust Indenture
Legislation and of this Section 13.2 and of Section 13.3.
13.3 EVIDENCE, EXPERTS AND ADVISORS.
(a) In addition to the reports, certificates, opinions and other
evidence required by this Indenture, the Corporation shall furnish
to the Trustee such additional evidence of compliance with any
provision hereof, and in such form, as may be prescribed by
applicable trust legislation or as the Trustee may reasonably
require by written notice to the Corporation.
(b) In the exercise of its rights, duties and obligations, the Trustee
may, if it is acting as set forth in Subsection 13.2(a), rely as
to the truth of the statements and the accuracy of the opinions
expressed therein, upon statutory declarations, opinions, reports,
certificates or other evidence referred to in Subsection 13.3(a)
and shall not be responsible for any loss incurred as a result of
so acting or relying, provided, however, that such evidence
complies with the provisions of this Indenture and with applicable
trust legislation and that the Trustee examines the same in order
to determine whether such evidence complies with the applicable
requirements of this Indenture and of applicable trust
legislation.
(c) Whenever applicable trust legislation requires that evidence
referred to in Subsection 13.3(a) be in the form of a statutory
declaration, the Trustee may accept such statutory declaration in
lieu of a Certificate of the Corporation required by any provision
hereof. Any such statutory declaration may be made by one or more
of those Persons authorized to sign a Certificate of the
Corporation.
FINOVA Trust Indenture Page 56 of 61
(d) Proof of the execution of an instrument in writing, including a
Debentureholders' Request, by any Debentureholder may be made by
the certificate of a notary public, or other officer with similar
powers, that the Person signing such instrument acknowledged to
him the execution thereof, or by an affidavit of a witness to such
execution or in any other manner which the Trustee may consider
adequate. If applicable trust legislation so permits or requires,
any certificate required by this Indenture may be expressed as the
opinion of the signer or signers of such certificate.
(e) The Trustee may employ or retain such counsel (including outside
counsel to the Corporation), accountants or other experts or
advisers as it may reasonably require for the purpose of
discharging its duties hereunder and shall not be responsible for
any action taken in reliance on such advice if it is acting as set
forth in Subsection 13.2(a) or for any misconduct on the part of
any of them.
13.4 DOCUMENTS AND MONIES HELD BY TRUSTEE.
(a) Any securities or other instruments that may at any time be held
by the Trustee subject to the terms hereof may be placed in the
deposit vaults of the Trustee or of any Canadian chartered bank or
deposited for safekeeping with any such bank. Pending the
application or withdrawal of any monies so held under any
provision of this Indenture, the Trustee, unless it is herein
otherwise expressly provided, may deposit the same in the name of
the Trustee in any Canadian chartered bank at the rate of interest
(if any) then current on similar deposits or, if so directed by
Written Order of the Corporation, shall:
(i) deposit such monies in the deposit department of the
Trustee or any other loan or trust company authorized to
accept deposits under the laws of Canada or a province
thereof; or
(ii) invest such monies in Authorized Investments,
subject to any statutory obligation of the Trustee. Unless an
Event of Default shall have occurred and be continuing, all
interest or other income received by the Trustee in respect of
such deposits and investments shall belong to the Corporation.
(b) Any direction by the Corporation to the Trustee as to investment
or reinvestment of funds shall be in writing and shall be provided
to the Trustee no later than 9:00 a.m. (Toronto time) on the day
on which the investment is to be made. Any such direction received
after 9:00 a.m. (Toronto time) or received on a non-Business Day,
shall be deemed to have been given prior to 9:00 a.m. (Toronto
time) the next Business Day. If a direction is not received, the
Trustee shall not have any obligation to invest the monies in
Authorized Investments and pending receipt of same shall be
entitled to hold such monies uninvested in a trust account
established by the Trustee for the Corporation.
(c) The Trustee shall not be held liable for any losses incurred in
the investment of any funds in Authorized Investments.
13.5 ACTION BY TRUSTEE TO PROTECT INTERESTS. The Trustee shall have power to
institute and to maintain such actions and proceedings as it may consider
necessary or expedient to preserve, protect or enforce its interests and the
interests of the Debentureholders.
FINOVA Trust Indenture Page 57 of 61
13.6 TRUSTEE NOT REQUIRED TO GIVE SECURITY. The Trustee shall not be required to
give any bond or security in respect of the execution of the trusts and powers
of this Indenture or otherwise in respect of the premises.
13.7 PROTECTION OF TRUSTEE. By way of supplement to the provisions of any law
for the time being relating to trustees, it is expressly declared and agreed as
follows:
(a) the Trustee shall not be liable for or by reason of any statements
of fact or recitals in this Indenture or in the Debentures (except
in the certificate of the Trustee thereon) or required to verify
the same, but all such statements or recitals are and shall be
deemed to be made by the Corporation;
(b) nothing herein contained shall impose any obligation on the
Trustee to see to or require evidence of the deposit, registration
or recording (or renewal thereof) of this Indenture or any
instrument ancillary or supplemental hereto;
(c) the Trustee shall not be bound to give notice to any Person or
Persons of the execution hereof;
(d) the Trustee shall not incur any liability or responsibility
whatever or be in any way responsible for the consequence of any
breach on the part of the Corporation or the Guarantor of any of
the covenants herein contained or of any acts of the agents or
servants of the Corporation or the Guarantor; and
(e) the Trustee, in its personal or any other capacity, may buy, lend
upon and deal in shares in the capital of the Corporation or the
Guarantor and in the Debentures and other securities of the
Corporation and generally may contract and enter into financial
transactions with the Corporation, the Guarantor or any Affiliate
of the Corporation or the Guarantor without being liable to
account for any profit made thereby.
13.8 REPLACEMENT OF TRUSTEE.
(a) The Trustee may resign its trust and be discharged from all
further duties and liabilities hereunder by giving to the
Corporation 60 days notice in writing or such shorter notice as
the Corporation may accept as sufficient. The Debentureholders by
Extraordinary Resolution shall have power at any time to remove
the Trustee and to appoint a new trustee. If at any time the
Trustee shall fail to comply with its obligations hereunder or
under Trust Indenture Legislation, fail to resign as required
herein, or becomes incapable of acting or is judged bankrupt or
insolvent, or a receiver of its property is appointed, the
Corporation may remove the Trustee on 30 days notice in writing to
the Trustee or such shorter notice as the Trustee may accept as
sufficient. In the event of the Trustee resigning or being removed
as aforesaid or being dissolved, becoming bankrupt, going into
liquidation or otherwise becoming incapable of acting hereunder,
the Corporation shall forthwith appoint a new trustee unless a new
trustee has already been appointed by the Debentureholders.
Failing such appointment by the Corporation, the retiring Trustee,
at the Corporation's expense, or any Debentureholder may apply to
the Court of Queen's Bench of Alberta on such notice as such court
may direct, for the appointment of a new trustee, but any new
trustee so appointed by the Corporation or by the court shall be
subject to removal as aforesaid by the Debentureholders. Any new
trustee appointed under any provision of this Section 13.8 shall
be a corporation authorized to carry on the business of a trust
company in the Province of Alberta and every other jurisdiction
where such authorization is necessary to enable it to act as
trustee hereunder and shall have a combined capital and surplus of
at least $10,000,000 according to its most recent financial
statements, prepared in accordance with accounting principles
generally accepted in Canada. On any new appointment, the new
FINOVA Trust Indenture Page 58 of 61
trustee shall be vested with the same powers, rights, duties and
responsibilities as if it had been originally named herein as
Trustee without any further assurance, conveyance, act or deed,
but there shall be immediately executed, at the expense of the
Corporation, all such conveyances or other instruments as may, in
the opinion of Counsel, be necessary or advisable for the purpose
of assuring the same to the new trustee.
(b) Any corporation into which the Trustee may be merged or with which
it may be consolidated or amalgamated, or any corporation
resulting from any merger, consolidation or amalgamation to which
the Trustee shall be a party, shall be the successor of the
Trustee under this Indenture without the execution of any
instrument or further act.
(c) Notwithstanding the foregoing, if at any time a material conflict
of interest exists in the Trustee's role as a fiduciary hereunder,
then the Trustee shall, within 90 days after ascertaining that
such a material conflict of interest exists, either eliminate such
material conflict of interest or resign its trust in the manner
and with the effect specified in this Section 13.8.
13.9 APPOINTMENT OF AUTHENTICATING AGENT. The Trustee may appoint an
authenticating agent or agents with respect to one or more series of the
Debentures which shall be authorized to act on behalf of, and subject to the
direction of, the Trustee to authenticate the Debentures of such series,
including Debentures issued upon original issue, exchange, registration of
transfer or partial redemption thereof or pursuant to Section 2.10; and
Debentures so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as though authenticated by
the Trustee. Wherever reference is made in this Indenture to the authentication
and delivery of the Debentures of any series by the Trustee or to the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by such authenticating
agent for such series and a certificate of authentication executed on behalf of
the Trustee by such authenticating agent. Each authenticating agent shall be
acceptable to the Corporation.
13.10 CORPORATE TRUSTEE REQUIRED. For so long as U.S. Debentures are issued and
outstanding hereunder, there shall at all times be a trustee hereunder which
shall be eligible to act as trustee under Trust Indenture Act Section 310(a)(1)
and which shall have a combined capital and surplus of at least US$50 million
and its corporate trust office in the City of Toronto or The City of New York or
such other city as may be determined by the Corporation, provided that there
shall be such a corporation or other Person in such location willing to act upon
customary and reasonable terms. If such corporation or other Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of said supervising or examining authority, then for the purposes of this
Section the combined capital and surplus of such corporation or other Person
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at anytime the trustee shall cease
to be eligible in accordance with the provisions of this Section, it shall
resign immediately.
13.11 CONFLICT OF INTEREST. The Trustee represents that, at the time of the
execution and delivery hereof, no material conflict of interest exists in the
Trustee's role as a fiduciary hereunder. If, after the time of the execution and
delivery of this Indenture, the Trustee ascertains that, notwithstanding the
foregoing, a material conflict of interest existed at such time, or that a
material conflict of interest has arisen subsequently to the appointment of the
Trustee, the Trustee shall, within 90 days after ascertaining that it has such a
material conflict of interest, either eliminate such material conflict of
interest or resign immediately.
13.12 ACCEPTANCE OF TRUST. The Trustee hereby accepts the trusts in this
Indenture declared and provided for and agrees to perform the same upon the
terms and conditions herein set forth.
FINOVA Trust Indenture Page 59 of 61
13.13 INDEMNITY TO THE TRUSTEE. Except for its act of negligence, willful
misconduct or a breach of it duties under the Trust Indenture Legislation, the
Trustee shall not be liable for any act done or step taken or omitted by it in
good faith, or for any mistake of fact or law and the Corporation and the
Guarantor agree jointly and severally to indemnify and save harmless the Trustee
from and against all claims, demands, actions, suits or other proceedings by
whomsoever made, prosecuted or brought and from all loss, costs, damages and
expenses in any manner based upon, occasioned by or attributed to any act of the
Trustee in the execution of its duties hereunder. It is understood and agreed
that this indemnification shall survive the termination of this Indenture and
the resignation or removal of the Trustee.
ARTICLE 14
NOTICES
14.1 NOTICE TO DEBENTUREHOLDERS. Unless herein otherwise expressly provided, any
notice to be given hereunder to Debentureholders shall be deemed to be validly
given:
(a) to the Holders of registered Debentures, and to the Depositary in
the case of Registered Global Debentures, if such notice is sent
by surface or air mail, registered or unregistered, postage
prepaid, delivered in Person, or by facsimile or other electronic
means of written communication, addressed to such Holders at their
respective addresses appearing on the register maintained under
Section 3.1, 3.2 or 3.4 and in the case of joint Holders of any
Debentures such notice shall be addressed to the first address
maintained on the register in respect of such joint holding;
(b) to the Holders of unregistered Debentures, if such notice is
published once in a newspaper of national circulation or otherwise
as determined by the Corporation, provided that in the case of
notice convening a meeting of Debentureholders, the Trustee may
require such additional publications of such notice as it may deem
necessary for the reasonable protection of the Debentureholders;
and
(c) with respect to any series of Debentures which are represented in
whole or in part by one or more Registered Global Debentures, if
the Corporation or the Trustee shall determine that the Depositary
has not provided any notice it receives from the Corporation
hereunder to its participants, then the Corporation shall:
(i) cause such notice to be published in a newspaper of
national circulation or otherwise as determined by the
Corporation, provided that any such publication shall not
delay any action to be taken as provided for in such notice
and any failure to publish such notice shall not invalidate
any proceedings taken with respect to such notice, or
(ii) provide such notice directly to the Holders by utilizing
the communication system set forth in National Policy No.
41 (Canada).
Notice by mail shall be deemed to have been effectively given three days after
the date of mailing and if delivered shall be deemed to have been received on
the date of the delivery thereof. Notice by facsimile or other electronic means
of communication shall be deemed to have been given on the day the facsimile or
other electronic means of communication was sent if sent before 4:30 p.m. at the
place of receipt on a Business Day, and if not, on the next Business Day. Should
there be at the time of mailing or between the time of mailing and the actual
receipt of the notice, a mail strike, slow-down or other labour dispute which
might affect the delivery of such notice through the mail, then such notice
shall only be effective if actually delivered in Person or by facsimile or other
electronic means of communication to the address aforesaid, or at the discretion
of the Corporation, published in a newspaper in the manner provided in
Subsection 14.1(b). In determining under any provision hereof the date when
notice of any meeting, redemption or other event must be given, the date of
FINOVA Trust Indenture Page 60 of 61
giving the notice shall be included and the date of the meeting, redemption or
other event shall be excluded. Any costs relating to the giving of any notice by
publication shall be borne by the Corporation. Accidental error or omission in
giving notice or accidental failure to mail notice to any Debentureholder shall
not invalidate any action or proceeding founded thereon.
14.2 NOTICE TO THE TRUSTEE. Any notice to the Trustee under the provisions of
this indenture shall be valid and effective if delivered to an officer of the
Trustee or if sent by registered mail, postage prepaid, addressed to the Trustee
at 000 Xxx Xxxxxx, X.X. Xxx 0, Xxxxxxx, Xxxxxxx, X0X 0X0, Attention: Manager,
Corporate Trust. The Trustee may from time to time notify the Corporation of a
change in address which thereafter, until changed by like notice, shall be the
address of the Trustee for all purposes of this Indenture. Notice by mail shall
be deemed to have been effectively given three days after the date of mailing
and if delivered shall be deemed to have been received on the date of delivery
thereof.
14.3 NOTICE TO THE CORPORATION. Any notice to the Corporation under the
provisions of this Indenture shall be valid and effective if delivered to the
Chief Financial Officer of the Corporation or if sent by registered mail,
postage prepaid, addressed to the Chief Financial Officer of the Corporation at
0000 Xxxxx Xxxxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxx, 00000-0000. The Corporation may
from time to time notify the Trustee of a change in address which thereafter,
until changed by like notice, shall be the address of the Corporation for all
purposes of this Indenture. Notice by mail shall be deemed to have been
effectively given three days after the date of mailing and if delivered shall be
deemed to have been received on the date of the delivery thereof.
14.4 NOTICE TO THE GUARANTOR. Any notice to the Guarantor under the provisions
of this Indenture shall be valid and effective if delivered to the Chief
Financial Officer of the Guarantor or if sent by registered mail, postage
prepaid, addressed to the Chief Financial Officer of the Guarantor at 0000 Xxxxx
Xxxxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxx, 00000-0000. The Guarantor may from time to
time notify the Trustee of a change in address which thereafter, until changed
by like notice, shall be the address of the Guarantor for all purposes of this
Indenture. Notice by mail shall be deemed to have been effectively given three
days after the date of mailing and if delivered shall be deemed to have been
received on the date of the delivery thereof.
14.5 MAIL SERVICE INTERRUPTION. If the Trustee determines that mail service is
or is threatened to be interrupted at the time when the Trustee is required or
elects to give any notice to Holders hereunder, the Trustee shall, despite the
provisions hereof, give such notice by means of publication in the GLOBE & MAIL,
national edition, or any other English language daily newspaper or newspapers of
general circulation in Canada and if there are Holders resident in the Province
of Quebec appearing on the register, in a French language daily newspaper of
general circulation in Quebec, once in each of two successive weeks, and notice
so published shall be deemed to have been given on the latest date on which the
first publication has taken place. If, by reason of any actual or threatened
interruption of mail service due to strike, lock-out or otherwise, any notice to
be given to the Trustee, the Corporation or the Guarantor would be unlikely to
reach its destination in a timely manner, such notice shall be valid and
effective only if delivered personally or by facsimile or courier in accordance
with Sections 14.2, 14.3 or 14.4, as the case may be.
ARTICLE 15
EXECUTION
15.1 COUNTERPARTS AND FORMAL DATE. This Indenture may be executed in several
counterparts, each of which when so executed shall be deemed to be an original,
and such counterparts together shall constitute one and the same instrument and
notwithstanding their date of execution shall be deemed to bear date as of
February *, 2000.
FINOVA Trust Indenture Page 61 of 61
IN WITNESS WHEREOF the parties hereto have executed these presents
under their respective corporate seals and the hands of their proper officers in
that behalf.
FINOVA (CANADA) FINANCE INC.
By:
-------------------------------------
By:
-------------------------------------
FINOVA CAPITAL CORPORATION
By:
-------------------------------------
By:
-------------------------------------
CIBC MELLON TRUST COMPANY
By:
-------------------------------------
By:
-------------------------------------
SCHEDULE "A" TO THE TRUST INDENTURE DATED AS OF FEBRUARY *, 2000 AMONG
FINOVA (CANADA) FINANCE INC., FINOVA CAPITAL CORPORATION AND CIBC MELLON
TRUST COMPANY, AS TRUSTEE.
No. _____
FORM OF REGISTERED GLOBAL DEBENTURE FOR MEDIUM TERM NOTES
This Medium Term Note is a Registered Global
Debenture within the meaning of the Indenture
hereinafter referred to and is registered in
the name of a Depositary or a nominee thereof.
This Medium Term Note may not be transferred
to, or exchanged for Medium Term Notes
registered in the name of, any Person other
than the Depositary or a nominee thereof and
no such transfer or exchange may be
registered, except in the limited
circumstances described in the Indenture.
Every Medium Term Note authenticated and
delivered upon registration of transfer of, or
in exchange for or in lieu of, this Medium
Term Note shall be a Registered Global
Debenture subject to the foregoing, except in
such limited circumstances described in the
Indenture.
FINOVA (CANADA) FINANCE INC.
(Incorporated under the laws of Nova Scotia)
MEDIUM TERM NOTE
Issue Date Redemption Provisions, if any:
Maturity Date
Interest Rate Per Annum Other Provisions, if any:
Interest Payment Dates
Initial Interest Payment Date CUSIP No.:
Principal Sum
Currency
FINOVA (CANADA) FINANCE INC. (the "CORPORATION") for value received hereby
acknowledges itself indebted and promises to pay to The Canadian
Depositary for Securities Limited under their nominee, CDS & Co., as depositary
(herein referred to as the "DEPOSITARY") hereof, on the above maturity date, or
on such earlier date as the principal amount hereof may become due and payable
in accordance with the provisions of the Indenture hereinafter mentioned or any
Pricing Supplement (as herein defined), the principal sum in the currency
specified on presentation and surrender of this Medium Term Note at any branch
in Canada of the Canadian Imperial Bank of Commerce or such other financial
institution as may be designated from time to time by the Corporation, at the
holder's option, and to calculate and pay interest, both before and after
maturity, default or judgment on the principal amount hereof at the above
interest rate per annum from the last interest payment date to which interest
shall have been paid or made available for payment on this Medium Term Note,
whichever is later, at any one of the said places, at the holder's option, in
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like money on the above-noted interest payment dates in each year, the first
such payment to be payable on the above initial interest payment date, and
should the Corporation at any time make default in the payment of any principal
or interest, to pay interest on demand on the amount in default, both before and
after maturity, default or judgment, at the same rate, in like money, at one of
the said places, at the holder's option, and on the same date. Interest hereon
shall be payable (except at maturity when interest may at the option of the
Corporation be paid on surrender hereof) by cheque mailed to the registered
holder hereof at least three business days prior to each date on which interest
becomes due as provided in the Indenture. Notwithstanding the foregoing, any
payments may be made at the option of the Corporation, by electronic funds
transfer or otherwise to the Depositary or its nominee for subsequent payment to
holders of interests herein. Subject to the provisions of the Indenture, the
mailing of such cheque or the making of such payment by other means shall, to
the extent of the sum represented thereby (plus the amount of any tax withheld),
satisfy and discharge all liability for interest on this Medium Term Note unless
such be not paid upon presentation.
This Medium Term Note is one of the series (designated as Medium Term
Notes) of Debentures of the Corporation issued or issuable in one or more series
under the provisions of a trust indenture (which trust indenture, together with
all instruments supplemental or ancillary thereto, is herein referred to as the
"INDENTURE") made as of February O, 2000 among the Corporation, FINOVA Capital
Corporation, as guarantor, (the "GUARANTOR") and CIBC Mellon Trust Company, as
trustee (the "TRUSTEE"). The Medium Term Notes, of which this is one, issued or
issuable under the Indenture are unlimited as to an aggregate principal amount.
The aggregate principal amount of Debentures of other series which may be
authorized under the Indenture is unlimited, but such Debentures may be issued
only upon the terms and subject to the conditions provided in the Indenture.
Reference is hereby made to the Indenture for a description of the terms and
conditions upon which the Medium Term Notes are issued, or may be issued, and
held and the rights of the holders of the said Medium Term Notes and of the
Corporation, the Guarantor and the Trustee and to the terms of any pricing
supplement or prospectus supplement issued with respect to any tranche of Medium
Term Notes which is a supplement to the then current prospectus of the
corporation for the issue of Medium Term Notes (the "Pricing Supplement"), all
to the same effect as if the provisions of the Indenture were herein set forth,
to all of which provisions the holder of this Medium Term Note by acceptance
hereof assents.
While the Medium Term Notes created and issuable under the Indenture
constitute a series of Debentures for purposes of the Indenture, for purposes of
ARTICLE 6 of the Indenture, each issuance of Medium Term Notes pursuant to a
Written Order of the Corporation, shall be deemed to be a separate series.
The Medium Term Notes are issuable only as fully registered Debentures or
as Registered Global Debentures in denominations of $1,000 or, in the case of
another currency or currency unit in such denominations as may be determined by
the Corporation. Upon compliance with the provisions of the Indenture and in
certain limited circumstances, a Registered Global Debenture may be exchanged
for Medium Term Notes in fully registered form in authorized denominations.
This Medium Term Note and all other Debentures certified and issued under
the Indenture rank pari passu, except for purchase or sinking fund, or
amortization fund or analogous provisions, according to their tenor without
discrimination, preference or priority. The Medium Term Notes are direct
obligations of the Corporation but are not secured by any mortgage, pledge or
other charge.
If provision is made therefor above, this Medium Term Note is redeemable
prior to maturity only in accordance with the terms of the Indenture, unless
otherwise provided in the Pricing Supplement.
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The right is reserved to the Corporation, subject to the terms and
conditions set forth in the Indenture, to purchase any of the Medium Term Notes
at any time and from time to time, in the market or by tender or by private
contract.
The principal hereof and interest hereon may also become or be declared due
and payable before the stated maturity in the events, in the manner and with the
effect provided in the Indenture.
If an Event of Default with respect to the Medium Term Notes of this series
shall occur and be continuing, the principal of all Medium Term Notes may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture contains provisions making binding upon all Holders of
Debentures outstanding thereunder resolutions passed at meetings of such Holders
held in accordance with such provisions and instruments in writing signed by the
Holders of a specified majority of Debentures outstanding.
This Medium Term Note may only be validly transferred upon compliance with
the limited conditions prescribed in the Indenture and in the manner as provided
in the Indenture, and upon compliance with such reasonable requirements as the
Trustee and other registrar may prescribe, and upon such transfer being noted
hereon.
This Medium Term Note shall not become obligatory for any purpose until
endorsed by the Guarantor and certified by the Trustee or other agent for the
time being under the Indenture.
This Medium Term Note shall be governed by and construed in accordance with
the laws of the Province of Alberta.
IN WITNESS WHEREOF FINOVA (CANADA) FINANCE INC. has caused this Medium Term
Note to be signed under its seal by its duly authorized officers as of
__________________, ________.
FINOVA (CANADA) FINANCE INC.
By:
-------------------------------------
By:
-------------------------------------
FORM OF CERTIFICATION
This Registered Global Debenture represents one of the Medium Term Notes
referred to in the Indenture within mentioned.
CANADIAN IMPERIAL BANK OF COMMERCE
By:
-------------------------------------
Authorized Officer
SCHEDULE "B" TO THE TRUST INDENTURE DATED AS OF FEBRUARY *, 2000 AMONG FINOVA
(CANADA) FINANCE INC., FINOVA CAPITAL CORPORATION and CIBC MELLON TRUST COMPANY,
AS TRUSTEE.
No. _____
FORM OF REGISTERED DEBENTURE FOR MEDIUM TERM NOTES
FINOVA (CANADA) FINANCE INC.
(Incorporated under the laws of Nova Scotia)
MEDIUM TERM NOTE
Issue Date Redemption Provisions, if any:
Maturity Date
Interest Rate Per Annum Other Provisions, if any:
Interest Payment Dates
Initial Interest Payment Date CUSIP No.:
Principal Sum
Currency
FINOVA (CANADA) FINANCE INC. (the "Corporation") for value received hereby
acknowledges itself indebted and promises to pay to
________________________________________________
_______________________________________________________________, on the above
maturity date, or on such earlier date as the principal amount hereof may become
due and payable in accordance with the provisions of the Indenture hereinafter
mentioned or any Pricing Supplement (as herein defined), the principal sum in
the currency specified on presentation and surrender of this Medium Term Note at
any branch in Canada of the Canadian Imperial Bank of Commerce or such other
financial institution as may be designated from time to time by the Corporation,
at the holder's option, and to calculate and pay interest, both before and after
maturity, default or judgment on the principal amount hereof at the above
interest rate per annum from the last interest payment date to which interest
shall have been paid or made available for payment on this Medium Term Note,
whichever is later, at any one of the said places, at the holder's option, in
like money on the above-noted interest payment dates in each year, the first
such payment to be payable on the above initial interest payment date, and
should the Corporation at any time make default in the payment of any principal
or interest, to pay interest on demand on the amount in default, both before and
after maturity, default or judgment, at the same rate, in like money, at one of
the said places, at the holder's option, and on the same date. Interest hereon
shall be payable (except at maturity when interest may at the option of the
Corporation be paid on surrender hereof) by cheque mailed to the registered
holder hereof at least three business days prior to each date on which interest
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becomes due as provided in the Indenture. Subject to the provisions of the
Indenture, the mailing of such cheque or the making of such payment by other
means shall, to the extent of the sum represented thereby (plus the amount of
any tax withheld), satisfy and discharge all liability for interest on this
Medium Term Note unless such be not paid upon presentation.
This Medium Term Note is one of the series (designated as Medium Term
Notes) of Debentures of the Corporation issued or issuable in one or more series
under the provisions of a trust indenture (which trust indenture, together with
all instruments supplemental or ancillary thereto, is herein referred to as the
"Indenture") made as of February o, 2000 among the Corporation, FINOVA Capital
Corporation, as guarantor, (the "Guarantor") and CIBC Mellon Trust Company, as
trustee (the "Trustee"). The Medium Term Notes, of which this is one, issued or
issuable under the Indenture are unlimited as to an aggregate principal amount.
The aggregate principal amount of Debentures of other series which may be
authorized under the Indenture is unlimited, but such Debentures may be issued
only upon the terms and subject to the conditions provided in the Indenture.
Reference is hereby made to the Indenture for a description of the terms and
conditions upon which the Medium Term Notes are issued, or may be issued, and
held and the rights of the holders of the said Medium Term Notes and of the
Corporation, the Guarantor and the Trustee and to the terms of any pricing
supplement or prospectus supplement issued with respect to any tranche of Medium
Term Notes which is a supplement to the then current prospectus of the
Corporation for the issue of Medium Term Notes (the "Pricing Supplement"), all
to the same effect as if the provisions of the Indenture were herein set forth,
to all of which provisions the holder of this Medium Term Note by acceptance
hereof assents.
While the Medium Term Notes created and issuable under the Indenture
constitute a series of Debentures for purposes of the Indenture, for purposes of
ARTICLE 6 of the Indenture, each issuance of Medium Term Notes pursuant to a
Written Order of the Corporation, shall be deemed to be a separate series.
The Medium Term Notes are issuable only as fully registered Debentures or
as Registered Global Debentures in denominations of $1,000 or, in the case of
another currency or currency unit in such denominations as may be determined by
the Corporation. Upon compliance with the provisions of the Indenture and in
certain limited circumstances, a Registered Global Debenture may be exchanged
for Medium Term Notes in fully registered form in authorized denominations.
This Medium Term Note and all other Debentures certified and issued under
the Indenture rank pari passu, except for purchase or sinking fund, or
amortization fund or analogous provisions, according to their tenor without
discrimination, preference or priority. The Medium Term Notes are direct
obligations of the Corporation but are not secured by any mortgage, pledge or
other charge.
If provision is made therefor above, this Medium Term Note is redeemable
prior to maturity only in accordance with the terms of the Indenture, unless
otherwise provided in the Pricing Supplement.
The right is reserved to the Corporation, subject to the terms and
conditions set forth in the Indenture, to purchase any of the Medium Term Notes
at any time and from time to time, in the market or by tender or by private
contract.
-3-
The principal hereof and interest hereon may also become or be declared due
and payable before the stated maturity in the events, in the manner and with the
effect provided in the Indenture.
If an Event of Default with respect to the Medium Term Notes of this series
shall occur and be continuing, the principal of all Medium Term Notes may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture contains provisions making binding upon all Holders of
Debentures outstanding thereunder resolutions passed at meetings of such Holders
held in accordance with such provisions and instruments in writing signed by the
Holders of a specified majority of Debentures outstanding.
This Medium Term Note may only be validly transferred upon compliance with
the limited conditions prescribed in the Indenture and in the manner as provided
in the Indenture, and upon compliance with such reasonable requirements as the
Trustee and other registrar may prescribe, and upon such transfer being noted
hereon.
This Medium Term Note shall not become obligatory for any purpose until
endorsed by the Guarantor and certified by the Trustee or other agent for the
time being under the Indenture.
This Medium Term Note shall be governed by and construed in accordance with
the laws of the Province of Alberta.
IN WITNESS WHEREOF FINOVA (CANADA) FINANCE INC. has caused this Medium Term
Note to be signed under its seal by its duly authorized officers as of
__________________, ________.
FINOVA (CANADA) FINANCE INC.
By:
-------------------------------------
By:
-------------------------------------
FORM OF CERTIFICATION
THIS FULLY REGISTERED DEBENTURE REPRESENTS ONE OF THE MEDIUM TERM NOTES
REFERRED TO IN THE INDENTURE WITHIN MENTIONED.
CANADIAN IMPERIAL BANK OF COMMERCE
BY:
-------------------------------------
AUTHORIZED OFFICER
FORM OF REGISTRATION PANEL
(NO WRITING HEREON EXCEPT BY THE TRUSTEE OR OTHER REGISTRAR)
DATE OF NAME OF PLACE OF TRUSTEE OR
REGISTRATION REGISTERED HOLDER REGISTRATION OTHER REGISTRAR
------------ ----------------- ------------ ---------------
------------ ----------------- ------------ ---------------
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-1-
SCHEDULE "C" TO THE TRUST INDENTURE DATED AS OF FEBRUARY *, 1999
AMONG FINOVA (CANADA) FINANCE INC., FINOVA CAPITAL
CORPORATION AND CIBC MELLON TRUST COMPANY, AS TRUSTEE.
FORM OF GUARANTEE OF FINOVA CAPITAL CORPORTION
FOR VALUE RECEIVED, FINOVA CAPITAL CORPORATION (the "Guarantor"), which term
includes any successor corporation to the extent permitted under the Indenture
referred to in the Note upon which this guarantee is endorsed (the "Indenture"),
a corporation duly organized and existing under the laws of the State of
Delaware, hereby unconditionally guarantees to the Holder of the Note upon which
this Guarantee is endorsed (the "Note") the due and punctual payment of the
principal of, premium (if any) and interest on the Note, when and as the same
shall become due and payable after any applicable grace period set forth in the
Indenture, whether at their respective due dates, on redemption, on a
declaration or otherwise, in accordance with the terms of the Note and of the
Indenture (the "Obligations"); provided, however, that payment of interest on
overdue installments of interest is hereby guaranteed only to the extent
permitted by applicable law. In case of default by FINOVA (Canada) Finance Inc.
(the "Corporation") (which term includes any successor corporation to the extent
permitted under the Indenture) in the payment of any such principal, premium or
interest, the Guarantor agrees duly and punctually to pay the same without
demand after the expiry of any applicable grace period set forth in the
Indenture. The Guarantor hereby agrees that its obligations hereunder and under
the Indenture shall be unconditional, irrespective of any invalidity,
illegality, irregularity or unenforceability of the Note or the Indenture as
regards the Corporation, including any waiver or amendment thereof, (other than
by reason of lack of genuineness), or the absence of any action to enforce the
same, the recovery of any judgment against the Corporation or any action to
enforce the same or any circumstance which might otherwise constitute a legal or
equitable discharge or defence of a guarantor. The Guarantor hereby waives
diligence, presentment, demand of payment, filing of claims with a court in the
event of merger, amalgamation, reorganization, insolvency or bankruptcy of the
Corporation, any right to require a proceeding first against the Corporation,
protest or notice with respect to the Note or the indebtedness evidenced thereby
and all demands whatsoever, and covenants that this Guarantee will not be
discharged except by payment in full of the principal of, premium (if any) and
interest on the Note.
The obligation of the Guarantor under this Guarantee shall be a continuing
obligation, shall cover all the Obligations, and shall apply to and secure any
ultimate balance due or remaining unpaid to the Holder of the Note.
In addition to the guarantee contained in this Guarantee and the Indenture,
the Guarantor hereby covenants and agrees to indemnify and save the Holder of
the Note harmless against all reasonable costs, losses, expenses and damages it
may suffer as a result of the Corporation's default in performance of any of the
Obligations.
The Guarantor shall not be or become liable under this Guarantee to make
any payment of principal, premium (if any) or interest in respect of which the
Corporation shall be in default if the default of the Corporation in respect of
which the Guarantor would otherwise be or become liable under this Guarantee
shall have been waived or directed to be waived pursuant to the provisions in
that behalf contained in the Indenture, but no waiver or consent of any kind
whatsoever, shall release, alter or impair the unconditional obligation of the
Guarantor hereunder after giving effect to such waiver or consent.
The Guarantor shall be subrogated to all rights of the Holder of the Note
against the Corporation in respect of any amount paid by the Guarantor pursuant
to the provisions of this Guarantee; provided, however, that the Guarantor shall
not be entitled to enforce, or to receive any payments arising out of or based
upon, such right of subrogation until the principal of, premium, if any, and
interest on all Notes issued under the Indenture shall have been paid in full or
duly provided for.
-2-
No remedy for the enforcement of the rights of the Holder of the Note to
receive payment of the principal of and/or premium and/or interest on the Note,
under the Note, the Indenture and hereunder, shall be exclusive of or dependant
on any other remedy.
This Guarantee has been given in accordance with the terms of the Indenture
and is subject to all applicable provisions thereof and the same shall be deemed
to be incorporated hereunder.
The Guarantor hereby certifies and warrants that all acts, conditions and
things required to be done and performed and to have happened prior to the
creation and issuance of this Guarantee to constitute the same a valid and
legally binding obligation of the Guarantor enforceable in accordance with its
terms have been done and performed and have happened in due and strict
compliance with all applicable laws.
This Guarantee shall be governed by and construed in accordance with the
laws of the Province of Alberta.
This Guarantee shall not be valid or become obligatory for any purpose
until the Note shall have been certified by or on behalf of the Trustee under
the Indenture.
IN WITNESS WHEREOF, FINOVA Capital Corporation has caused this Guarantee to
be signed in its corporate name by the signatures of any two of the Chief
Executive Officer, the Executive Vice-President and Chief Financial Officer, a
Senior Vice-President and the Treasurer.
This Guarantee is dated *, *.
FINOVA CAPITAL CORPORATION
By:
-------------------------------------
By:
-------------------------------------
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FINOVA (CANADA) FINANCE INC.
Reconciliation and tie between Trust Indenture Act
of 1939 and the Indenture, dated as of February o, 2000,
in accordance with Rule 4d-9 of the Trust Indenture Act of 1939
TRUST INDENTURE ACT SECTION INDENTURE SECTION
--------------------------- -----------------
ss.310 (a)(1) 13.10
(a)(2) 13.10
ss.316 (b) 8.11
----------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
