EXHIBIT 1.1
$-----
FINOVA CAPITAL CORPORATION
(a Delaware corporation)
[Floating Rate] [__%] Notes Due _____, __
UNDERWRITING AGREEMENT
_____, 199__
[Name of Underwriter]
[Address of Underwriter]
Dear Ladies and Gentlemen:
FINOVA Capital Corporation, a Delaware corporation (the "Company"),
confirms its agreement with __________________________________ (the
"Underwriter") with respect to the sale by the Company and the purchase by the
Underwriter of $_____ aggregate principal amount of the Company's [Floating
Rate] [__%] Notes Due _____, __ (the "Securities"). The Securities are to be
issued pursuant to an indenture dated as of October __, 1997 (the "Indenture")
between the Company and The First National Bank of Chicago, as trustee (the
"Trustee").
Prior to the purchase and public offering of the Securities by the
Underwriter, the Company and the Underwriter shall enter into an agreement
substantially in the form of Exhibit A hereto (the "Pricing Agreement"). The
Pricing Agreement may take the form of an exchange of any standard form of
written telecommunication between the Company and the Underwriter and shall
specify such applicable information as is indicated in Exhibit A hereto. The
offering of the Securities will be governed by this Agreement, as supplemented
by the Pricing Agreement. From and after the date of the execution and delivery
of the Pricing Agreement, this Agreement shall be deemed to incorporate the
Pricing Agreement.
The Company has filed with the Securities and Exchange Commission (the
"Commission") an omnibus shelf registration statement on Form S-3 (No.
333-_____) for the registration of $2,000,000,000 of its debt and other
securities, including the Securities, and the offering thereof from time to time
under the Securities Act of 1933, as amended (the "1933 Act"), has filed such
amendments thereto, if any, as may have been required to the date hereof, and
will file such additional amendments thereto and such amended prospectuses as
may hereafter be required. Such registration statement has been declared
effective by the Commission and the Indenture has been qualified under the Trust
Indenture Act of 1939, as amended (the "1939 Act"). Such registration statement,
as amended, and the prospectus constituting a part thereof (including in each
case all documents, if any, incorporated or deemed to be incorporated by
reference therein pursuant to the 1933 Act, the Securities Exchange Act of 1934,
as amended (the "1934 Act"), or otherwise, and the information, if any, deemed
to be a part thereof pursuant to Rule 434 of the rules and regulations of the
Commission under the 1933 Act) are hereinafter referred to as the "Registration
Statement" and the "Prospectus," respectively, except that if any revised
prospectus shall be provided to the Underwriter by the Company for use in
connection with the offering of the Securities
which differs from the Prospectus on file at the Commission at the time the
Registration Statement became effective (whether or not such revised prospectus
is required to be filed by the Company pursuant to Rule 424(b) of the rules and
regulations promulgated under the 1933 Act (the "1933 Act Regulations")), the
term "Prospectus" shall refer to such revised prospectus from and after the time
it is first provided to the Underwriter for such use. If the Company elects to
rely on Rule 434 under the 1933 Act Regulations, all references to the
Prospectus shall be deemed to include, without limitation, the form of
prospectus and the abbreviated term sheet, taken together, provided to the
Underwriter by the Company in reliance on Rule 434 under the 1933 Act
Regulations (the "Rule 434 Prospectus"). If the Company files a registration
statement to register a portion of the Securities and relies on Rule 462(b)
under the 1933 Act Regulations for such registration statement to become
effective upon filing with the Commission (the "Rule 462 Registration
Statement"), then any reference to "Registration Statement" herein shall be
deemed to include both the registration statement referred to above (No.
333-_____) and the Rule 462 Registration Statement, as each such registration
statement may be amended pursuant to the 1933 Act.
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement or the Prospectus (and all other references of like
import) shall be deemed to mean and include all such financial statements and
schedules and other information which are or are deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as the case may be;
and all references in this Agreement to amendments or supplements to the
Registration Statement or the Prospectus shall be deemed to mean and include the
filing of any documents under the 1934 Act after the date of this Agreement
which are or are deemed to be incorporated by reference in the Registration
Statement or the Prospectus, as the case may be.
The Company understands that the Underwriter proposes to make a public
offering of the Securities as soon as the Underwriter deems advisable after the
Pricing Agreement has been executed and delivered.
Section 1. Representations and Warranties.
(a) The Company represents and warrants to the Underwriter as of the
date hereof, as of the date of the Pricing Agreement (such latter date being
hereinafter referred to as the "Representation Date") and as of the Closing Time
(as defined in Section 2) as follows:
(i) At the time the Registration Statement became effective,
at the most recent date on which the Company filed an Annual Report on Form 10-K
for a fiscal year ended prior to the date of this Agreement (the "10-K Filing
Date") and at the Representation Date, the Registration Statement did comply and
will comply in all material respects with the requirements of the 1933 Act and
the 1933 Act Regulations and the 1939 Act, and the rules and regulations of the
Commission promulgated thereunder (the "1939 Act Regulations") and did not and
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading. The Prospectus, at the Representation Date (unless the
term "Prospectus" refers to a prospectus provided to the Underwriter by the
Company for use in connection with the offering of the Securities differing from
the Prospectus on file at the Commission at the time the Registration Statement
became effective, in which case at the time it is first provided to the
Underwriter for such use) and at Closing Time referred to in Section 2 hereof,
will not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided, however,
that the representations and warranties in this subsection (i) shall not apply
to that part of the Registration Statement which shall constitute the Statement
of Eligibility under the 1939 Act on Form T-1 of the Trustee or apply to
statements in or omissions from the Registration Statement or Prospectus made in
reliance upon and in conformity with information furnished to the Company in
writing by the Underwriter expressly for use in the Registration Statement or
Prospectus.
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(ii) The documents of the Company incorporated by reference in
the Prospectus, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations thereunder (the "1934
Act Regulations"), and, when read together and with the other information in the
Prospectus, at the time the Registration Statement became, and any amendments to
the Registration Statement become, effective, and at the 10-K Filing Date, did
not and will not contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were or
are made, not misleading.
(iii) The accountants who certified the financial statements
included or incorporated by reference in the Prospectus are independent public
accountants as required by the 1933 Act and the 1933 Act Regulations.
(iv) The financial statements included or incorporated by
reference in the Prospectus present fairly the respective financial position of
the Company and its consolidated subsidiaries as of the dates indicated and the
results of operations for the periods specified; and except as stated therein,
said financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis; the unaudited pro
forma consolidated financial statements, together with the related notes,
included or incorporated by reference in the Prospectus have been prepared on a
basis substantially consistent with the audited financial statements of the
Company set forth therein, the assumptions on which such unaudited pro forma
consolidated financial statements have been prepared are reasonable and are set
forth in the notes thereto, and such unaudited pro forma consolidated financial
statements have been prepared, and the pro forma adjustments set forth therein
have been applied, in accordance with the applicable accounting requirements of
the 1933 Act and the 1933 Act Regulations (including, without limitation,
Regulation S-X promulgated by the Commission), and such pro forma adjustments
have been properly applied to the historical amounts in the compilation of such
statements.
(v) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as otherwise
stated therein or contemplated thereby, (A) there has been no material adverse
change in the condition, financial or otherwise, of the Company and its
subsidiaries considered as one enterprise or in the earnings, affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, and (B)
there have been no material transactions entered into by the Company or any of
its subsidiaries other than those in the ordinary course of business.
(vi) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware with corporate power and authority to own, lease and operate its
properties and conduct its business as described in the Registration Statement;
and the Company is duly qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which such qualification is
required or appropriate, except where the failure of the Company to so qualify,
in the aggregate, will not have a material adverse effect on the consolidated
financial condition or combined operations of the Company and its Subsidiaries
or of the Company and its Restricted Subsidiaries (as those terms are defined in
the Indenture).
(vii) Each subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has the requisite corporate power
and authority to own, lease and operate its properties and conduct its business
as described in the Registration Statement and is duly qualified as a foreign
corporation to transact business and is in good standing in each jurisdiction in
which such qualification is required or appropriate, except where the failure of
the subsidiaries to so qualify, in the aggregate, will not have a material
adverse effect on the consolidated financial condition or combined operations of
the Company and its Subsidiaries or of the Company and its Restricted
Subsidiaries; all of the issued and outstanding capital stock of each such
subsidiary has been duly authorized and validly issued and is fully paid and
nonassessable; and all the capital stock of each such subsidiary is owned by the
Company or its
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affiliates, directly or through subsidiaries, free and clear of any mortgage,
pledge, lien, encumbrance, claim or equity.
(viii) The authorized, issued and outstanding capital stock of
the Company is as set forth in the Prospectus and the shares of issued and
outstanding Common Stock set forth thereunder have been duly authorized and
validly issued and are fully paid and nonassessable and The FINOVA Group Inc.
("FINOVA") owns directly or indirectly all of the outstanding shares of the
Common Stock, which Common Stock constitutes all of the issued and outstanding
capital stock of the Company, free and clear of any claims, liens, encumbrances
or liabilities.
(ix) Neither the Company nor any of its subsidiaries is in
violation of its charter or in default in the performance or observance of any
obligations, agreements, covenants or conditions, which alone or in the
aggregate are material, contained in any contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments, which alone or in the aggregate
are material, to which it is a party or by which it or any of them or their
properties may be bound; and the execution, delivery and performance of this
Agreement, the Indenture and the consummation of the transactions contemplated
herein and therein have been duly authorized by all necessary corporate action
and will not conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries pursuant to any
material contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which the Company or any of its subsidiaries is a party or by
which it or any of them may be bound or to which any of the property or assets
of the Company or any of its subsidiaries is subject, nor will such action
result in any violation of the provisions of the charter or bylaws of the
Company or, to the best of its knowledge, any law, administrative regulation or
administrative or court order or decree; and no consent, approval,
authorization, order or decree of any court or governmental agency or body is
required for the consummation by the Company of the transactions contemplated by
this Agreement, except such as may be required under the 1933 Act, the 1939 Act,
the 1933 Act Regulations or state securities or Blue Sky laws in connection with
the purchase and distribution of the Securities by the Underwriter.
(x) The Company and its subsidiaries own or possess or have
obtained, can obtain on reasonable terms or are in the process of obtaining, all
material governmental licenses, permits, consents, orders, approvals and other
authorizations necessary to lease or own, as the case may be, and to operate
their respective properties and to carry on their respective businesses as
presently conducted, except such as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution of the Securities
by the Underwriter.
(xi) The Company and its subsidiaries own or possess adequate
trademarks, service marks and trade names necessary to conduct the business now
operated by them, and neither the Company nor any of its subsidiaries has
received any notice of infringement of or conflict with asserted rights of
others with respect to any trademarks, service marks or trade names which,
singly or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would reasonably be expected to materially adversely affect the conduct
of the business, operations, financial condition or income of the Company and
its subsidiaries considered as one enterprise.
(xii) There is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now pending, or, to
the actual knowledge of the Company, threatened against or affecting, the
Company or any of its subsidiaries, which would reasonably be expected to result
in any material adverse change in the condition, financial or otherwise, of the
Company and its subsidiaries considered as one enterprise, or in the business
prospects of the Company and its subsidiaries considered as one enterprise or
might materially and adversely affect the consummation of this Agreement; and
there are no material contracts or documents of the Company or any of its
subsidiaries which are required to be filed as exhibits to the Registration
Statement by the 1933 Act or by the 1933 Act Regulations which have not been so
filed.
(xiii) No material labor dispute with the employees of the
Company or any of its subsidiaries exists or, to the knowledge of the Company,
is imminent; and the Company is not aware of
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any existing or imminent labor disturbance by the employees of any of its
principal suppliers, manufacturers or contractors which would be expected to
result in any material adverse change in the condition, financial or otherwise,
or in the earnings, affairs or business prospects of the Company and its
subsidiaries considered as one enterprise.
(xiv) The Securities have been duly authorized for issuance
and sale pursuant to this Agreement and, when issued, authenticated and
delivered pursuant to the provisions of this Agreement and the Indenture against
payment of the consideration set forth in the Pricing Agreement, the Securities
will constitute valid and legally binding obligations of the Company enforceable
in accordance with their terms, except as enforcement thereof may be limited by
bankruptcy, insolvency or other laws relating to or affecting creditors' rights
generally or by general equity principles, including concepts of commercial
reasonableness, and will be entitled to the benefits provided by the Indenture;
the Securities and the Indenture conform in all material respects to all
statements relating thereto contained in the Registration Statement; and, after
giving effect to the sale of the Securities and the sale of any other securities
registered pursuant to the Registration Statement to be issued prior to the
delivery of the Securities, the aggregate amount of Securities which have been
issued and sold by the Company will not exceed the amount of securities
registered pursuant to the Registration Statement.
(xv) The Company and its subsidiaries have made all necessary
filings and taken all other necessary action so that, with respect to all of the
equipment and other property reflected in the consolidated balance sheets of the
Company and its consolidated subsidiaries as of _____, 199__, and with respect
to all equipment and other property acquired by the Company or a subsidiary
since then, the interest of the Company or of the appropriate subsidiary in such
equipment or other property is free and clear, in all material respects, of any
claims, liens, encumbrances or liabilities not also reflected in such
consolidated balance sheets and that the interest of the Company or of the
appropriate subsidiary has, in all material respects, been perfected so as not
to be subordinate to the claim of a purchaser in due course or any other bona
fide purchaser.
(xvi) The financing contracts reflected in the consolidated
balance sheets of the Company and its consolidated subsidiaries as of _____,
199__, and the financing contracts entered into by the Company or a subsidiary
since then are, in all material respects, legal, valid and binding obligations
of the obligors enforceable in accordance with their respective terms, except as
enforcement thereof may be limited by bankruptcy, insolvency or other laws
relating to or affecting creditors' rights generally or by general equity
principles, including concepts of commercial reasonableness; the obligors
thereunder are, in all material respects, in the good faith business judgment of
the Company and except to the extent reflected or stated in the Prospectus,
financially capable of performing their respective obligations thereunder, and
any defaults in the payments under all such contracts in the aggregate, at the
date hereof, are not of such amount that, were no more payments to be received
under the financing contracts in respect of which such defaults exist, and after
considering estimated collateral values to be recovered, the consolidated
financial condition or operations of the Company and its consolidated
subsidiaries, or of the Company and its Restricted Subsidiaries, would be
materially adversely affected thereby, excluding impairment of related reserves.
(xvii) The Indenture has been duly and validly authorized,
executed and delivered by the Company and, to the best of the Company's
knowledge, the Trustee; and the Indenture constitutes a legally valid and
binding obligation of the Company, enforceable in accordance with its terms,
except as limited by bankruptcy, insolvency or other laws relating to or
affecting creditors' rights generally or by general equity principles, including
concepts of commercial reasonableness.
(xviii) The Company is not an "investment company" nor is the
Company "controlled" by an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act").
(xix) Neither the Company nor any affiliate thereof (as
defined in Section 517.021(1), Florida Statutes) does business with the
government of Cuba or with any person or affiliate located in Cuba.
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(b) Any certificate signed by any officer of the Company and delivered
to the Underwriter or to counsel for the Underwriter shall be deemed a
representation and warranty by the Company to the Underwriter as to the matters
covered thereby.
Section 2. Sale and Delivery to Underwriter; Closing.
(a) On the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, the Company agrees to
sell to the Underwriter and the Underwriter agrees to purchase from the Company,
at the price set forth in the Pricing Agreement, $_____ aggregate principal
amount of the Securities.
(b) Payment of the purchase price for, and delivery of the certificates
for, the Securities shall be made at the offices of the Company, 0000 Xxxxx
Xxxxxxx Xxxxxx, X.X. Box 2209, Phoenix, Arizona, 85002-2209 or at such other
place as shall be agreed upon by the Underwriter and the Company, at 10:00 a.m.,
New York City time, on _____, 199__, or such other time not later than ten
business days after execution of the Pricing Agreement as shall be agreed upon
by the Underwriter and the Company (such time and date of payment and delivery
being herein called the "Closing Time"). Payment shall be made to the Company by
wire transfer of immediately available funds against delivery to the Underwriter
of certificates for the Securities to be purchased by it. Certificates for the
Securities shall be in such denominations and registered in such names as the
Underwriter may request in writing at least one business day before the Closing
Time. The certificates for the Securities will be made available for examination
and packaging by the Underwriter not later than 10:00 a.m., New York City time,
on the last business day prior to the Closing Time at the offices of the
Trustee.
Section 3. Covenants of the Company. The Company covenants with the
Underwriter as follows:
(a) The Company will notify the Underwriter immediately, and confirm
the notice in writing, (i) of the effectiveness of the Registration Statement
and any amendment thereto (including any post-effective amendment), (ii) of the
receipt of any comments from the Commission, (iii) of any request by the
Commission for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for additional information and (iv) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that purpose.
The Company will make every reasonable effort to prevent the issuance of any
such stop order and, if any stop order is issued, to obtain the lifting thereof
at the earliest possible moment. If the Company elects to rely on Rule 434 under
the 1933 Act Regulations, the Company will prepare an "abbreviated term sheet"
that complies with the requirements of Rule 434 under the 1933 Act Regulations.
If the Company elects not to rely on Rule 434, the Company will provide the
Underwriter with copies of the form of Prospectus, in such number as the
Underwriter may reasonably request, and file or transmit for filing with the
Commission such Prospectus in accordance with Rule 424(b) of the 1933 Act
Regulations by the close of business in New York on the business day immediately
succeeding the date hereof. If the Company elects to rely on Rule 434, the
Company will provide the Underwriter with copies of the form of Rule 434
Prospectus, in such number as the Underwriter may reasonably request, and file
or transmit for filing with the Commission the form of Prospectus complying with
Rule 434(c)(2) of the 1933 Act Regulations in accordance with Rule 424(b) of the
1933 Act Regulations by the close of business in New York on the business day
immediately succeeding the date hereof.
(b) The Company will give the Underwriter notice of its intention to
file or prepare any amendment to the Registration Statement (including any
post-effective amendment) or any amendment or supplement to the Prospectus
(including any revised prospectus which the Company proposes for use by the
Underwriter in connection with the offering of the Securities which differs from
the prospectus on file at the Commission at the time the Registration Statement
becomes effective, whether or not such revised prospectus is required to be
filed pursuant to Rule 424(b) of the 1933 Act Regulations, whether pursuant to
the 1933 Act, the 1934 Act or otherwise, or any abbreviated term sheet prepared
in reliance on Rule 434 of the 1933 Act Regulations), will furnish the
Underwriter with copies of any such amendment or supplement a reasonable amount
of time prior to such proposed filing or use, as the case
6
may be, and will not file any such amendment or supplement or use any such
prospectus to which the Underwriter or counsel for the Underwriter shall object.
(c) The Company has delivered to counsel for the Underwriter one signed
copy and will deliver to the Underwriter as many conformed copies of the
Registration Statement, as originally filed, and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein and
documents incorporated or deemed to be incorporated by reference therein) as the
Underwriter may reasonably request.
(d) The Company will furnish to the Underwriter, from time to time
during the period when the Prospectus is required to be delivered under the 1933
Act or the 1934 Act, such number of copies of the Prospectus (as amended or
supplemented) as the Underwriter may reasonably request for the purposes
contemplated by the 1933 Act or the 1934 Act or the respective applicable rules
and regulations of the Commission thereunder.
(e) If any event shall occur as a result of which it is necessary, in
the opinion of counsel for the Underwriter, to amend or supplement the
Prospectus in order to make the Prospectus not misleading in light of the
circumstances existing at the time it is required to be delivered to a
purchaser, the Company will forthwith amend or supplement the Prospectus (in
form and substance satisfactory to counsel for the Underwriter) so that, as so
amended or supplemented, the Prospectus will not include an untrue statement of
a material fact or omit to state a material fact necessary in order to make the
statements therein, in light of the circumstances existing at the time it is
required to be delivered to a purchaser, not misleading, and the Company will
furnish to the Underwriter a reasonable number of copies of such amendment or
supplement.
(f) The Company will endeavor, in cooperation with the Underwriter, to
qualify the Securities for offering and sale under the applicable securities
laws of such states and other jurisdictions of the United States as the
Underwriter may designate; provided, however, that the Company shall not be
obligated to file any general consent to service of process or to qualify as a
foreign corporation in any jurisdiction in which it is not so qualified. In each
jurisdiction in which the Securities have been so qualified, the Company will
file such statements and reports as may be required by the laws of such
jurisdiction to continue such qualifications in effect for a period of not less
than one year from the effective date of this Agreement. The Company will
promptly advise the Underwriter of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Securities for sale in any state or jurisdiction or the initiating or
threatening of any proceeding for such purpose.
(g) The Company will make generally available to its security holders
as soon as practicable, but not later than 60 days after the close of the period
covered thereby, an earnings statement (in form complying with the provisions of
Rule 158 of the 1933 Act Regulations) covering a twelve-month period beginning
not later than the first day of the Company's fiscal quarter next following the
"effective date" (as defined in said Rule 158) of the Registration Statement.
(h) The Company will use the net proceeds received by it from the sale
of the Securities in the manner specified in the Prospectus under the caption
"Use of Proceeds."
(i) Immediately following the execution of the Pricing Agreement, the
Company will prepare, and file or transmit for filing with the Commission in
accordance with Rule 424(b) of the 1933 Act Regulations, copies of a supplement
to the Prospectus containing the terms of the Securities and such other
information as the Underwriter and the Company deem appropriate.
(j) From the date of this Agreement until the Closing Time, the Company
will not, without the prior written consent of the Underwriter, directly or
indirectly, sell, offer to sell, contract to sell or otherwise dispose of, or
announce the offering of, any Securities or securities similar to the
Securities, or any securities convertible into or exchangeable or exercisable
for any Securities or any such similar securities, except for Securities sold to
the Underwriter pursuant to this Agreement.
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(k) The Company, during the period when the Prospectus is required to
be delivered under the 1933 Act or the 1934 Act, will file all documents
required to be filed with the Commission pursuant to Section 13, 14 or 15 of the
1934 Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
Section 4. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement, including
(a) the printing and filing of the Registration Statement as originally filed
and of each amendment thereto, (b) the printing or reproducing of this
Agreement, the Pricing Agreement and the Indenture, (c) the preparation,
issuance and delivery of the certificates for the Securities to the Underwriter,
(d) the fees and disbursements of the Company's counsel and accountants, (e) the
qualification of the Securities under securities laws in accordance with the
provisions of Section 3(f) hereof, including filing fees and the reasonable fees
and disbursements of counsel for the Underwriter in connection therewith and in
connection with the preparation of the Blue Sky Survey and any Legal Investment
Survey, (f) the printing and delivery to the Underwriter of copies of the
Registration Statement as originally filed and of each amendment thereto, of
each preliminary prospectus and of the Prospectus and any amendments or
supplements thereto, including any abbreviated term sheet delivered by the
Company pursuant to Rule 434 of the 1933 Act Regulations, (g) the printing and
delivery to the Underwriter of copies of the Blue Sky Survey and any Legal
Investment Survey, (h) any fees of any rating agency or agencies rating the
Securities, (i) the fees and expenses of the Trustee, including the fees and
disbursements of counsel for the Trustee in connection with the Indenture and
the Securities and (j) any fees and expenses of a depositary in connection with
the holding of the Securities in book-entry form.
If this Agreement is terminated by the Underwriter in accordance with
the provisions of Section 5 or Section 9(a)(i) hereof, the Company shall
reimburse the Underwriter for its out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the Underwriter.
Section 5. Conditions of Underwriter's Obligations. The obligations of
the Underwriter hereunder are subject to the accuracy of the representations and
warranties of the Company herein contained, to the performance by the Company of
its obligations hereunder, and to the following further conditions:
(a) At the Closing Time no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission. The supplement
to the Prospectus referred to in Section 3(i) of this Agreement shall have been
transmitted to the Commission for filing pursuant to Rule 424(b) of the 1933 Act
Regulations within the prescribed time period, and prior to the Closing Time the
Company shall have provided evidence satisfactory to the Underwriter of such
timely filing.
(b) At the Closing Time the Underwriter shall have received:
(i) The opinion, dated as of the Closing Time, of Xxxxxxx X.
Xxxxxxxx, Esq., Senior Vice President-General Counsel or Xxxxxxx Xxxxxxxxx,
Esq., Assistant General Counsel of the Company, in form and scope satisfactory
to counsel for the Underwriter, to the effect that:
(A) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the State
of Delaware.
(B) The Company has corporate power and corporate
authority to own, lease and operate its properties and conduct its business as
described in the Registration Statement.
(C) The Company is duly qualified as a foreign
corporation to transact business and is in good standing in each jurisdiction in
which such qualification is required, except where the failure of the Company to
so qualify, in the aggregate, will not have a material adverse effect on the
consolidated financial condition or combined operations of the Company
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and its Subsidiaries or of the Company and its Restricted Subsidiaries (as those
terms are defined in the Indenture).
(D) Each subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has the requisite corporate power
and authority to own, lease and operate its properties and conduct its business
as described in the Registration Statement, and is duly qualified as a foreign
corporation to transact business and is in good standing in each jurisdiction in
which such qualification is required, except where the failure to so qualify, in
the aggregate, will not have a material adverse effect on the consolidated
financial condition or combined operations of the Company and its Subsidiaries
or of the Company and its Restricted Subsidiaries; and all of the issued and
outstanding capital stock of each such subsidiary has been duly authorized and
validly issued and is fully paid and nonassessable, and all of such capital
stock is owned by the Company or its affiliates, free and clear of any mortgage,
pledge, lien, encumbrance or claim.
(E) The authorized, issued and outstanding capital
stock of the Company is as set forth in the Prospectus (included by
incorporation) and the shares of issued and outstanding Common Stock set forth
therein have been duly authorized and validly issued and are fully paid and
nonassessable; FINOVA owns, directly or indirectly, all of the outstanding
shares of the Common Stock, which Common Stock constitutes all of the issued and
outstanding capital stock of the Company, free and clear of any claims, liens
and encumbrances.
(F) This Agreement and the Pricing Agreement have
each been duly authorized, executed and delivered by the Company.
(G) The Indenture has been duly and validly
authorized, executed and delivered by the Company and, to such counsel's
knowledge, the Trustee; the Indenture constitutes a valid and binding agreement
of the Company, enforceable in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency or other laws relating to or
affecting creditors' rights generally or by general equity principles, including
concepts of commercial reasonableness.
(H) The Securities are in due and proper form, have
been duly and validly authorized by all necessary corporate action for issuance,
offer and sale by the Company to the Underwriter as contemplated by this
Agreement and, when executed and authenticated as specified in the Indenture and
delivered against payment of the consideration therefor in accordance with this
Agreement and the Pricing Agreement, will be valid and binding obligations of
the Company, enforceable in accordance with their terms, except as enforcement
thereof may be limited by bankruptcy, insolvency or other laws relating to or
affecting creditors' rights generally or by general equity principles, including
concepts of commercial reasonableness, and each holder of Securities will be
entitled to the benefits of the Indenture.
(I) The statements in the Prospectus under the
captions "Description of Notes" and "Description of Debt Securities," insofar as
they purport to summarize certain provisions of documents specifically referred
to therein, are accurate summaries of the subject matter thereof.
(J) The Indenture is qualified under the 1939 Act.
(K) The Registration Statement is effective under the
1933 Act and, to the best of such counsel's knowledge, no stop order suspending
the effectiveness of the Registration Statement has been issued under the 1933
Act or proceedings therefor have been initiated or threatened by the Commission.
9
(L) At the time the Registration Statement became
effective, at the 10-K Filing Date and at the Representation Date, the
Registration Statement (other than the financial statements, schedules and other
financial and statistical data included or incorporated by reference therein,
the Form T-1 and information relating to the Underwriter, as to which no opinion
need be rendered) complied as to form in all material respects with the
requirements of the 1933 Act, the 1939 Act and the regulations of those Acts,
and the Rule 434 Prospectus appeared on its face to be responsive as to form to
the requirements of Rule 434 of the 1933 Act Regulations in all material
respects.
(M) There are no legal or governmental proceedings
pending or to the best of such counsel's knowledge, threatened which are
required to be disclosed in the Registration Statement, other than those
disclosed therein, and all pending legal or governmental proceedings to which
the Company or any subsidiary is a party or of which any of their property is
the subject which are not described in the Registration Statement, including
ordinary routine litigation incidental to the business, are reasonably expected
to be, alone or in the aggregate, not material.
(N) To the best of such counsel's knowledge, there
are no contracts, indentures, mortgages, loan agreements, notes, leases or other
instruments required to be described or referred to, or incorporated by
reference in, the Registration Statement or to be filed as exhibits thereto
other than those described or referred to therein or filed or incorporated by
reference as exhibits thereto, the descriptions thereof or references thereto
are correct, and no default exists by the Company in the due performance or
observance of obligations, agreements, covenants or conditions, which alone or
in the aggregate are material, contained in any contracts, indentures, loan
agreements, notes, leases or other instruments, which alone or in the aggregate
are material, so described, referred to, filed or incorporated by reference.
(O) No consent, approval, authorization or order of
any court or governmental authority or agency is required in connection with the
sale of the Securities, except such as may be required under the 1933 Act or the
1933 Act Regulations or state securities laws; and the execution and delivery of
this Agreement and the Pricing Agreement and the Indenture and the consummation
of the transactions contemplated herein and therein did not and will not
conflict with or constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any subsidiary pursuant to, any contract, indenture,
mortgage, loan agreement, note, lease or other instrument known to such counsel
and to which the Company or any of its subsidiaries is a party or by which it or
any of them may be bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, or any law, administrative
regulation or administrative or court decree known to such counsel to be
applicable to the Company of any court or governmental agency, authority or body
or any arbitrator having jurisdiction over the Company; nor will such action
result in any violation of the provisions of the charter or bylaws of the
Company.
(P) Each document, if any, filed pursuant to the 1934
Act (other than the financial statements, schedules and other financial and
statistical data included therein, as to which no opinion need be rendered) and
incorporated by reference in the Prospectus, complied when filed as to form in
all material respects with the 1934 Act and the 1934 Act Regulations thereunder.
(Q) To the best of such counsel's knowledge, the
Company and its subsidiaries own or possess or have obtained adequate
trademarks, service marks and trade names necessary to conduct the business now
operated by them, and neither the Company nor any of its subsidiaries has
received any notice of infringement of or conflict with asserted rights of
others with respect to any trademarks, service marks or trade names which,
singly or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would reasonably be expected to materially adversely affect the conduct
of the business, operations, financial condition or income of the Company and
its subsidiaries considered as one enterprise.
10
(R) The Company is not an "investment company" nor is
it "controlled" by an "investment company" as such terms are defined in the
Investment Company Act.
In giving such opinion such counsel may rely as to all matters
of law other than the federal laws of the United States of America, the laws of
the State of Arizona and the General Corporation Law of the State of Delaware,
and as to all matters of foreign law, upon opinions of counsel satisfactory to
counsel to the Underwriter, in which case, the opinion shall state that although
such counsel has not made an independent investigation of the laws of any
jurisdiction other than the federal laws of the United States of America, the
General Corporation Law of the State of Delaware or the laws of Arizona, such
counsel believes the Underwriter and he are entitled so to rely. In giving the
opinions referred to in the foregoing clause (D), such counsel may omit
reference to a foreign subsidiary so long as (1) he shall have delivered to the
Underwriter a signed opinion of other counsel for such foreign subsidiary,
satisfactory to counsel to the Underwriter which other opinion shall give
substantially the same opinions with respect to such foreign subsidiary as
required by the foregoing clause (D), and (2) he states that such other opinion
is satisfactory to him and that although he has not made an independent
investigation of the foreign laws applicable to such foreign subsidiary, he
believes the Underwriter is entitled to rely on such other opinion.
(ii) The opinion, dated as of the Closing Time, of Xxxxx &
Wood LLP, counsel for the Underwriter, with respect to the matters set forth in
(A) and (G) through (L), inclusive, of subsection (b)(1) of this Section.
(iii) In giving their opinions required by subsections (b)(i)
and (b)(ii), respectively, of this Section, Messrs. Xxxxxxxx or Xxxxxxxxx and
Brown & Wood LLP shall each additionally state that nothing has come to their
attention that would lead such counsel to believe that the Registration
Statement (other than the financial statements, schedules and other financial
and statistical data included or incorporated therein, and the Form T-1, as to
which no statement need be made), at the time it became effective or at the 10-K
Filing Date (with respect to Messrs. Xxxxxxxx or Xxxxxxxxx) or at the
Representation Date, contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus (other than the
financial statements, schedules and other financial and statistical data
included or incorporated therein, as to which no statement need be made), at the
Representation Date (unless the term "Prospectus" refers to a prospectus which
has been provided to the Underwriter by the Company for use in connection with
the offering of the Securities that differs from the Prospectus on file at the
Commission at the time the Registration Statement became effective, in which
case at the time it is first provided to the Underwriter for such use) or at the
Closing Time, included an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(c) At the Closing Time there shall not have been, since the date
hereof or since the respective dates as of which information is given in the
Prospectus, any material adverse change in the condition, financial or
otherwise, of the Company and its subsidiaries considered as one enterprise, or
in the earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, and the Underwriter shall have received a
certificate of the Chairman, President and Chief Executive Officer or a Senior
Vice President or a Vice President of the Company and of the chief financial or
chief accounting officer of the Company, dated as of the Closing Time, to the
effect that (i) there has been no such material adverse change, (ii) the
representations and warranties in Section 1 hereof are true and correct with the
same force and effect as though expressly made at and as of the Closing Time,
(iii) the Company has complied with all agreements and satisfied all conditions
on its part to be performed or satisfied at or prior to the Closing Time and
(iv) no stop order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been initiated or
threatened by the Commission. As used in this Section 5(c), the term
"Prospectus" means the Prospectus in the form first used to confirm sales of the
Securities.
11
(d) At the time of execution of this Agreement, the Underwriter shall
have received from Deloitte & Touche LLP a letter dated such date, in form and
substance satisfactory to the Underwriter, and substantially in the same form as
the draft letter previously delivered to and approved by the Underwriter.
(e) At the Closing Time the Underwriter shall have received from
Deloitte & Touche LLP a letter, dated as of the Closing Time, to the effect that
they reaffirm the statements made in the letter furnished pursuant to subsection
(d) of this Section, except that the "specified date" referred to in such letter
shall be a date not more than three days prior to the Closing Time.
(f) All proceedings taken by the Company in connection with the
issuance and sale of the Securities as herein contemplated shall be reasonably
satisfactory in form and substance to the Underwriter and counsel for the
Underwriter.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Underwriter by notice to the Company at any time at or prior to the
Closing Time, and such termination shall be without liability of any party to
any other party except as provided in Section 4 hereof.
Section 6. Indemnification.
(a) The Company agrees to indemnify and hold harmless the Underwriter
and each person, if any, who controls the Underwriter within the meaning of
Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement (or
any amendment thereto, including the information deemed to be part of the
Registration Statement pursuant to Rule 434 of the 1933 Act Regulations, if
applicable), or any omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue statement of
a material fact contained in any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto) or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such alleged untrue
statement or omission, if such settlement is effected with the written consent
of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including, subject to Section 6(c) hereof, the fees and disbursements of
counsel chosen by the Underwriter), incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid under (i)
or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by the
Underwriter expressly for use in the Registration Statement (or any amendment
thereto), any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
12
(b) The Underwriter agrees to indemnify and hold harmless the Company,
its directors, each of its officers who signed the Registration Statement, and
each person, if any, who controls the Company within the meaning of Section 15
of the 1933 Act, against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto) or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by the Underwriter expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary prospectus
or the Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give as promptly as reasonably
practicable notice to each indemnifying party of any action commenced against it
in respect of which indemnity may be sought hereunder, but failure to so notify
an indemnifying party shall not relieve such indemnifying party from any
liability which it may have otherwise than on account of this indemnity
agreement, except to the extent of any prejudice to such indemnifying party
arising from the failure to provide such notice. An indemnifying party may
participate at its own expense in the defense of such action. In no event shall
the indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to any local counsel per jurisdiction) separate from their
own counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances.
Section 7. Contribution. To provide for just and equitable contribution
in circumstances in which the indemnity agreement provided for in Section 6
hereof is for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, the Company and the
Underwriter shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by said indemnity agreement
incurred by the Company and the Underwriter, as incurred, in such proportions
that the Underwriter is responsible for that portion represented by the
percentage that the underwriting discount appearing on the cover page of the
Prospectus bears to the initial public offering price appearing thereon and the
Company is responsible for the balance; provided, however, that no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. Furthermore, in no event shall the
Underwriter be required to contribute an amount in excess of the total
underwriting discounts received by the Underwriter in connection with the
transactions contemplated by this Agreement. For purposes of this Section, each
person, if any, who controls the Underwriter within the meaning of Section 15 of
the 1933 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as the Company.
Section 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement and the Pricing Agreement, or contained in certificates of officers of
the Company submitted pursuant hereto, shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of the
Underwriter or a controlling person, or by or on behalf of the Company, and
shall survive delivery of the Securities to the Underwriter.
Section 9. Termination of Agreement.
(a) The Underwriter may terminate this Agreement, immediately upon
notice to the Company, at any time at or prior to the Closing Time (i) if there
has been, since the date of this Agreement or since the respective dates as of
which information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
if there has occurred any outbreak or escalation of hostilities or other
calamity or crisis the effect of which on the financial markets of the United
States is such as to make it, in the reasonable
13
judgment of the Underwriter, impracticable to market the Securities or enforce
contracts for the sale of the Securities, or (iii) if trading in any securities
of the Company has been suspended by the Commission or a national securities
exchange, or if trading generally on either the American Stock Exchange or the
New York Stock Exchange has been suspended, or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices for securities have been
required, by either of said exchanges or by order of the Commission or any other
governmental authority, or if a banking moratorium has been declared by federal
or New York authorities, or (iv) if the rating assigned by any nationally
recognized statistical rating organization to any debt securities of the Company
shall have been lowered or if any such rating agency shall have publicly
announced subsequent to the date of this agreement that it has placed any debt
securities of the Company on what is commonly termed a "watch list" for possible
downgrading. As used in this Section 9(a), the term "Prospectus" means the
Prospectus in the form first used to confirm sales of the Securities.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except as
provided in Section 4 hereof.
Section 10. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriter shall be directed to
_________________________________, Attention: _______________, facsimile: (___)
________; and notices to the Company shall be directed to FINOVA Capital
Corporation, 0000 Xxxxx Xxxxxxx Xxxxxx, X.X. Box 2209, Phoenix, Arizona
85002-2209, Attention: Xxxxxx X. Xxxxxxxxxxx, Senior Vice President-Treasurer,
facsimile: (000) 000-0000.
Section 11. Parties. This Agreement and the Pricing Agreement shall
each inure to the benefit of and be binding upon the Underwriter and the Company
and their respective successors. Nothing expressed or mentioned in this
Agreement or the Pricing Agreement is intended or shall be construed to give any
person, firm or corporation, other than the Underwriter and the Company and
their respective successors and the controlling persons and officers and
directors referred to in Sections 6 and 7 hereof and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or the Pricing Agreement or any provision herein or
therein contained. This Agreement and the Pricing Agreement and all conditions
and provisions hereof and thereof are intended to be for the sole and exclusive
benefit of the Underwriter and the Company and their respective successors and
said controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation. No
purchaser of Securities from the Underwriter shall be deemed to be a successor
merely by reason of such purchase.
Section 12. Governing Law and Time. This Agreement and the Pricing
Agreement shall be governed by and construed in accordance with the laws of the
State of New York applicable to agreements made and to be performed in said
State. Except where otherwise provided, specified times of day refer to New York
City time.
14
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Underwriter and the Company in accordance with its terms.
Very truly yours,
FINOVA CAPITAL CORPORATION
By: _________________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
[NAME OF UNDERWRITER]
By: _________________________
Name:
Title:
EXHIBIT A
$-----
FINOVA CAPITAL CORPORATION
(a Delaware corporation)
[Floating Rate] [__%] Notes Due _____, __
PRICING AGREEMENT
_____, 199__
[Name of Underwriter]
[Address of Underwriter]
Dear Ladies and Gentlemen:
Reference is made to the Underwriting Agreement, dated _____, 199__
(the "Underwriting Agreement"), relating to the purchase by
_______________________________ (the "Underwriter") of $_____ aggregate
principal amount of [Floating Rate] [__%] Notes Due __, __ (the "Securities") of
FINOVA Capital Corporation (the "Company").
Pursuant to Section 2 of the Underwriting Agreement, the Company agrees
with the Underwriter as follows:
1. The initial public offering price of the Securities shall be __% of
the principal amount thereof.
2. The purchase price of the Securities to be paid by the Underwriter
shall be __% of the principal amount thereof.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Underwriter and the Company in accordance with its terms.
Very truly yours,
FINOVA CAPITAL CORPORATION
By: _________________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
[NAME OF UNDERWRITER]
By: _________________________
Name:
Title:
