Exhibit 10.c
FORM OF INTERCOMPANY NOTE
-------------------------
SUBJECT TO THE PLEDGE TO THE COLLATERAL TRUSTEE AS REQUIRED BY THE INDENTURE
DATED AS OF AUGUST 22, 2001 BY AND BETWEEN THE FINOVA GROUP INC. AND THE BANK OF
NEW YORK, AS TRUSTEE AND SUBORDINATED IN RIGHT OF PAYMENT TO THE OBLIGATIONS OF
THE MAKER PURSUANT TO THE CREDIT AGREEMENT DATED AS OF AUGUST 21, 2001 BY AND
BETWEEN THE MAKER AND BERKADIA LLC.
Xx. 0 Xxx Xxxx, Xxx Xxxx
$ _____________________ August , 2001
FOR VALUE RECEIVED, the undersigned, FINOVA CAPITAL CORPORATION, a Delaware
corporation (the "Maker"), hereby unconditionally promises to pay to the order
of THE FINOVA GROUP INC., a Delaware corporation (together with its successors
and assigns, the "Holder"), at its offices at 0000 Xxxxx Xxxxxxxxxx Xxxx,
Xxxxxxxxxx, Xxxxxxx 00000-0000 or such other place as the Holder may designate
in writing, the principal sum of Three Billion Two Hundred Forty One Million Two
Hundred Ninety Three Thousand DOLLARS and No Cents ($3,241,293,000.00), together
with interest (computed on the basis of a year of 360 days comprised of twelve
thirty-day months (including the first day but excluding the last day) occurring
in the period for which such interest is payable) on the principal amount hereof
from time to time outstanding from the date hereof until such principal amount
is paid in full, at an interest rate per annum equal at all times to the lesser
of the maximum lawful rate or Seven and One Half Percent (7.5%). Any overdue
amount of principal, interest or other amounts payable hereunder shall bear
interest, payable on demand, at the same rate of interest, to the extent lawful.
Capitalized terms used herein and not defined shall have the meanings ascribed
to such terms in the Indenture (as defined).
SECTION 1. INTEREST AND PAYMENT.
1.1 Principal. Principal on this Note shall be payable on each May 15 and
November 15, commencing November 15, 2001 (each a "Principal Payment Date") in
the amount of cash or Cash Equivalents, if any, available to such principal
payments in accordance with Section 4.06 of the Indenture dated as of August 22,
2001 by and between Holder and The Bank of New York, as Trustee (the
"Indenture"). Principal and interest on this Note, to the extent not previously
paid in full in cash in accordance with Section 4.06 of the Indenture, shall be
due and payable on November 15, 2009 (the "Stated Maturity").
1.2 Interest. Interest on this Note shall be payable on each May 15 and
November 15, commencing November 15, 2001 (each an "Interest Payment Date") in
the amount of cash or Cash Equivalents, if any, available for such interest
payments in accordance with the provisions of Section 4.06 of the Indenture. To
the extent Interest is not paid on an Interest Payment Date, such amount of
unpaid Interest shall accrue interest at the rate of 7.5% per annum until paid
and shall be treated as Interest for all purposes
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under this Note. Payments of Interest shall be applied first to all accrued but
previously unpaid Interest in the order in which such Interest accrued.
After the filing of any petition in bankruptcy or the commencement of any
insolvency, reorganization or like proceedings relating to the Company, unpaid
principal and Interest on this Note shall continue to include interest accruing
at the rate provided in this Note, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding.
1.3 Optional Prepayments. The Company will have the option to prepay this
Note in whole or in part at any time or from time to time without premium or
penalty. Any accrued and unpaid interest on any principal amount prepaid
pursuant to this Section 1.3 shall be paid at the time of such prepayment.
SECTION 2. EVENTS OF DEFAULT
The following shall be deemed events of default hereunder:
(i) the failure of the Maker to pay all or any part of the unpaid
principal on this Note when and as the same becomes due and payable at the
Stated Maturity of this Note or otherwise pursuant to Section 1.1 of this
Note;
(ii) failure by the Maker to pay installments of accrued and unpaid
interest in full on this Note for two consecutive Interest Payment Dates
whether or not required to be paid pursuant to Section 1.2 of this Note,
provided that both of such installments remain unpaid after such second
consecutive Interest Payment Date;
(iii) an Event of Default occurs under the Indenture (as defined
therein) which results in the acceleration of the obligations of the Senior
Notes under the Indenture;
(iv) the Maker pursuant to or within the meaning of Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in
an involuntary case,
(C) consents to the appointment of a Custodian of it or for all
or substantially all of its property, or
(D) makes a general assignment for the benefit of its creditors;
or
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(v) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Maker in an involuntary case;
(B) appoints a Custodian of the Maker for all or substantially
all of the property of the Maker; or
(C) orders the liquidation of the Maker; and the order or decree
remains unstayed and in effect for 60 consecutive days.
Upon the occurrence and during the continuance of any such event of
default, the Holder may, by written notice to Maker, declare the entire unpaid
principal of and accrued and unpaid interest on this Note to be immediately due
and payable, whereupon the same shall forthwith be due and payable without
presentment, demand, protest or other notice, all of which are hereby waived;
provided, however, that the Holder may not declare this Note immediately due and
payable upon the occurrence of an event of default specified in clauses (i) and
(ii) above if such payments are prohibited by Section 3 hereof. Upon the
occurrence of an event of default specified in clauses (iii), (iv) or (v) above,
this Note shall become immediately due and payable without declaration, notice
or demand by the Holder hereof.
SECTION 3. SUBORDINATION
No payments may be made with respect to this Note if a "Default" or "Event
of Default" under the Berkadia Loan (as such terms are defined therein) has
occurred and is continuing.
SECTION 4. MISCELLANEOUS
Any term used in this Note and not otherwise defined herein shall have the
meaning ascribed to such term in the Indenture.
All notices, requests and demands to or upon the Maker pursuant hereto to
be effective shall be in writing (including by facsimile transmission) and
unless otherwise expressly provided herein, shall be deemed to have been duly
given or made (a) in the case of delivery by courier, when delivered, or (b) in
the case of delivery by facsimile transmission, when sent and receipt has been
confirmed, addressed as follows:
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If to Holder:
The FINOVA Group Inc.
0000 Xxxxx Xxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000-0000
Attention: President
(000) 000-0000
(000) 000-0000 (facsimile)
If to the Maker:
FINOVA Capital Corporation
0000 Xxxxx Xxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000-0000
Attention: President
(000) 000-0000
(000) 000-0000 (facsimile)
For so long as the Berkadia Loan remains outstanding, with copies to:
Berkadia LLC
0000 Xxxxxx Xxxxx
Xxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Hamburg
(000) 000-0000
(000) 000-0000 (facsimile)
The Maker, the Holder or Berkadia, by notice to the others may designate
additional or different addresses for subsequent notices or communications.
No failure to exercise and no delay in exercising, on the part of the
Holder of this Note, any right, remedy, power or privilege hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privilege herein provided are cumulative and
not exclusive of any rights, remedies, power and privileges provided by law.
Contemporaneously with the making of this Note, this Note is being pledged
to the Collateral Trustee as required by the Berkadia Credit Agreement to secure
the obligations of Holder as a guarantor under the Berkadia Loan and by the
Indenture to secure the obligations of Holder as set forth in the Indenture. The
rights of the Holder may be exercised only by the Collateral Trustee, so long as
the Collateral Trust Agreement is in effect. Maker and Holder agree that this
Note shall not be modified in any respect unless agreed to in writing by Holder
and Maker.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, Maker has executed this Note as of the date first
set forth above.
FINOVA CAPITAL CORPORATION
By:
------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Executive Vice President and
Secretary
PAY TO THE ORDER OF
______________________
The FINOVA Group Inc.
By:
--------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Executive Vice President and
Secretary
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