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Exhibit 1.1
$147,450,000
FINOVA CAPITAL CORPORATION
(a Delaware corporation)
6 3/8% Notes due October 15, 2000
UNDERWRITING AGREEMENT
October 5, 1995
XXXXXX BROTHERS INC.
0 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
FINOVA Capital Corporation (formerly known as Greyhound Financial
Corporation), a Delaware corporation (the "Company"), confirms its agreement
with Xxxxxx Brothers Inc. (the "Underwriter") with respect to the sale by the
Company and the purchase by the Underwriter of $147,450,000 aggregate principal
amount of the Company's 6 3/8% Notes due October 15, 2000 (the "Securities").
The Securities are to be issued pursuant to an indenture dated as of September
1, 1992 (the "Indenture") between the Company and The Chase Manhattan Bank,
N.A., as trustee (the "Trustee").
Prior to the purchase and public offering of the Securities by the
Underwriter, the Company and the Underwriter shall enter into an agreement
substantially in the form of Exhibit A hereto (the "Pricing Agreement"). The
Pricing Agreement may take the form of an exchange of any standard form of
written telecommunication between the Company and the Underwriter and shall
specify such applicable information as is indicated in Exhibit A hereto. The
offering of the Securities will be governed by this Agreement, as supplemented
by the Pricing Agreement. From and after the date of the execution and delivery
of the Pricing Agreement, this Agreement shall be deemed to incorporate the
Pricing Agreement.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 33-52845) for the
registration of $1,000,000,000 of its Senior Debt Securities, including the
Securities, and the offering thereof from time to time under the Securities Act
of
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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, are hereinafter referred to as the "Registration Statement" and
the "Prospectus," respectively, except that if any revised prospectus shall be
provided to the Underwriter by the Company for use in connection with the
offering of the Securities which differs from the Prospectus on file at the
Commission at the time the Registration Statement became effective (whether or
not such revised prospectus is required to be filed by the Company pursuant to
Rule 424(b) of the 1933 Act Regulations), the term "Prospectus" shall refer to
such revised prospectus from and after the time it is first provided to the
Underwriter for such use. All references in this Agreement to financial
statements and schedules and other information which is "contained," "included"
or "stated" in the Registration Statement or the Prospectus (and all other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which are or are deemed
to be incorporated by reference in the Registration Statement or the Prospectus,
as the case may be; and all references in this Agreement to amendments or
supplements to the Registration Statement or the Prospectus shall be deemed to
mean and include the filing of any documents under the 1934 Act after the date
of this Agreement which are or are deemed to be incorporated by reference in the
Registration Statement or the Prospectus, as the case may be.
The Company understands that the Underwriter proposes to make a public
offering of the Securities as soon as the Underwriter deems advisable after the
Pricing Agreement has been executed and delivered.
Section 1. Representations and Warranties.
(a) The Company represents and warrants to the Underwriter as of the
date hereof, as of the date of the Pricing Agreement (such latter date being
hereinafter referred to as the "Representation Date") and as of the Closing Time
(as defined in Section 2) as follows:
(i) At the time the Registration Statement became effective, at
the 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
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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.
(ii) The documents of the Company incorporated by reference in the
Prospectus, at the time they were or hereafter are filed with the
Commission, complied with and will comply in all material respects with
the requirements of the 1934 Act and the rules and regulations thereunder
(the "1934 Act Regulations"), and, when read together and with the other
information in the Prospectus, at the time the Registration Statement
became, and any amendments to the Registration Statement become,
effective, and at the 10-K Filing Date, did not and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were or are made, not
misleading.
(iii) The accountants who certified the financial statements
included or incorporated by reference in the Prospectus are independent
public accountants as required by the 1933 Act and the 1933 Act
Regulations.
(iv) The financial statements included or incorporated by
reference in the Prospectus present fairly the respective financial
position of the Company and its consolidated subsidiaries as of the dates
indicated and the results of operations for the periods specified; and
except as stated therein, said financial statements have been prepared in
conformity with generally accepted accounting principles
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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 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,
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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
affiliates, directly or through subsidiaries, free and clear of any
mortgage, pledge, lien, encumbrance, claim or equity.
(viii) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Prospectus and the shares of issued and
outstanding Common Stock set forth thereunder have been duly authorized
and validly issued and are fully paid and nonassessable and The FINOVA
Group Inc. ("FINOVA") owns directly or indirectly all of the outstanding
shares of the Common Stock, which Common Stock constitutes all of the
issued and outstanding capital stock of the Company, free and clear of any
claims, liens, encumbrances or liabilities.
(ix) Neither the Company nor any of its subsidiaries is in
violation of its charter or in default in the performance or observance of
any obligations, agreements, covenants or conditions, which alone or in
the aggregate are material, contained in any contracts, indentures,
mortgages, loan agreements, notes, leases or other instruments, which
alone or in the aggregate are material, to which it is a party or by which
it or any of them or their properties may be bound; and the execution,
delivery and performance of this Agreement, the Indenture and the
consummation of the transactions contemplated herein and therein have been
duly authorized by all necessary corporate action and will not conflict
with or constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries pursuant to
any material contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which the Company or any of its subsidiaries is a
party or by which it or any of them may be bound or to which any of the
property or assets of the Company or any of its subsidiaries is subject,
nor will such action result in any violation of the provisions of the
charter or by-laws of the Company or, to the best of its knowledge, any
law, administrative regulation or administrative or court order or decree;
and no consent, approval, authorization, order or decree of any court or
governmental agency or body is required for the consummation by the
Company of the transactions contemplated by this Agreement, except such as
may be required under the 1933 Act, the 1939 Act, the 1933 Act Regulations
or state securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriter.
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(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 you.
(xi) The Company and its subsidiaries own or possess adequate
trademarks, service marks and trade names necessary to conduct the
business now operated by them, and neither the Company nor any of its
subsidiaries has received any notice of infringement of or conflict with
asserted rights of others with respect to any trademarks, 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 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
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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 June 30,
1995, and with respect to all equipment and other property acquired by the
Company or a subsidiary since then, the interest of the Company or of the
appropriate subsidiary in such equipment or other property is free and
clear, in all material respects, of any claims, liens, encumbrances or
liabilities not also reflected in such consolidated balance sheets and
that the interest of the Company or of the appropriate subsidiary has, in
all material respects, been perfected so as not to be subordinate to the
claim of a purchaser in due course or any other bona fide purchaser.
(xvi) The financing contracts reflected in the consolidated balance
sheets of the Company and its consolidated subsidiaries as of June 30,
1995, and the financing contracts entered into by the Company or a
subsidiary since then are, in all material respects, legal, valid and
binding obligations of the obligors enforceable in accordance with their
respective terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, or other laws relating to or affecting creditors'
rights generally or by general equity principles, including concepts of
commercial reasonableness; the obligors thereunder are, in all material
respects, in the good faith business judgment of the Company and except to
the extent reflected or stated in the Prospectus, financially capable of
performing their respective obligations thereunder, and any defaults in
the payments under all such contracts in the aggregate, at the date
hereof, are not of such amount that, were no more payments to be received
under the financing contracts in respect of which such defaults exist, and
after considering estimated
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collateral values to be recovered, the consolidated financial condition or
operations of the Company and its consolidated subsidiaries, or of the
Company and the Restricted Subsidiaries, would be materially adversely
affected thereby, excluding impairment of related reserves.
(xvii) The Indenture has been duly and validly authorized, executed
and delivered by the Company and to the best of the Company's knowledge,
the Trustee; and the Indenture constitutes a legally valid and binding
obligation of the Company, enforceable in accordance with its terms,
except as limited by bankruptcy, insolvency or other laws relating to or
affecting creditors' rights generally or by general equity principles,
including concepts of commercial reasonableness.
(xviii) The Company is not an "investment company" nor is the Company
"controlled" by an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act").
(xix) Neither the Company nor any affiliate thereof (as defined in
Section 517.021(1), Florida Statutes) does business with the government of
Cuba or with any person or affiliate located in Cuba.
(b) Any certificate signed by any officer of the Company and delivered
to the Underwriter or to counsel for the Underwriter shall be deemed a
representation and warranty by the Company to the Underwriter as to the matters
covered thereby.
Section 2. Sale and Delivery to Underwriter; Closing.
(a) On the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, the Company agrees to
sell to the Underwriter and the Underwriter agrees to purchase from the Company,
at the price set forth in the Pricing Agreement, $147,450,000 aggregate
principal amount of the Securities.
(b) Payment of the purchase price for, and delivery of the certificates
for, the Securities shall be made at the offices of the Company, 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 October 11, 1995, or such other time not later than ten
business days after execution of the Pricing Agreement as shall be agreed upon
by the Underwriter and the Company (such time and date of payment and delivery
being herein called "Closing Time"). Payment shall be made to the Company by
wire transfer of immediately available funds against delivery to the Underwriter
of certificates for the Securities to be purchased by it. Certificates for the
Securities shall be in such denominations and registered in such names as the
Underwriter may request in writing at least two business days before Closing
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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 Closing Time at the offices of the
Trustee.
Section 3. Covenants of the Company. The Company covenants with the
Underwriter as follows:
(a) The Company will notify the Underwriter immediately, and
confirm the notice in writing, (i) of the effectiveness of the
Registration Statement and any amendment thereto (including any
post-effective amendment), (ii) of the receipt of any comments from the
Commission, (iii) of any request by the Commission for any amendment to
the Registration Statement or any amendment or supplement to the
Prospectus or for additional information, and (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that
purpose. The Company will make every reasonable effort to prevent the
issuance of any such stop order and, if any stop order is issued, to
obtain the lifting thereof at the earliest possible moment.
(b) The Company will give the Underwriter notice of its intention
to file or prepare any amendment to the Registration Statement (including
any post-effective amendment) or any amendment or supplement to the
Prospectus (including any revised prospectus which the Company proposes
for use by the Underwriter in connection with the offering of the
Securities which differs from the prospectus on file at the Commission at
the time the Registration Statement becomes effective, whether or not such
revised prospectus is required to be filed pursuant to Rule 424(b) of the
1933 Act Regulations, whether pursuant to the 1933 Act, the 1934 Act or
otherwise), will furnish the Underwriter with copies of any such amendment
or supplement a reasonable amount of time prior to such proposed filing or
use, as the case may be, and will not file any such amendment or
supplement or use any such prospectus to which the Underwriter or counsel
for the Underwriter shall object.
(c) The Company has delivered to your counsel one signed copy and
will deliver to the Underwriter as many conformed copies of the
Registration Statement as originally filed and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein
and documents incorporated or deemed to be incorporated by reference
therein) as the Underwriter may reasonably request.
(d) The Company will furnish to the Underwriter, from time to
time during the period when the Prospectus is required to be delivered
under the 1933 Act or the 1934 Act, such number of copies of the
Prospectus (as amended or supplemented) as the Underwriter may reasonably
request for
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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 the light of the circumstances existing at the time it is required to
be delivered to a purchaser, the Company will forthwith amend or
supplement the Prospectus (in form and substance satisfactory to counsel
for the Underwriter) so that, as so amended or supplemented, the
Prospectus will not include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances existing at the time it is
required to be delivered to a purchaser, not misleading, and the Company
will furnish to the Underwriter a reasonable number of copies of such
amendment or supplement.
(f) The Company will endeavor, in cooperation with the
Underwriter, to qualify the Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions of the
United States as the Underwriter may designate; provided, however, that
the Company shall not be obligated to file any general consent to service
of process or to qualify as a foreign corporation in any jurisdiction in
which it is not so qualified. In each jurisdiction in which the
Securities have been so qualified, the Company will file such statements
and reports as may be required by the laws of such jurisdiction to
continue such qualifications in effect for a period of not less than one
year from the effective date of this Agreement. The Company will promptly
advise the Underwriter of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Securities for
sale in any state or jurisdiction or the initiating or threatening of any
proceeding for such purpose.
(g) The Company will make generally available to its security
holders as soon as practicable, but not later than 60 days after the close
of the period covered thereby, an earnings statement (in form complying
with the provisions of Rule 158 of the 1933 Act Regulations) covering a
twelve month period beginning not later than the first day of the
Company's fiscal quarter next following the "effective date" (as defined
in said Rule 158) of the Registration Statement.
(h) The Company will use the net proceeds received by it from the
sale of the Securities in the manner specified in the Prospectus under the
caption "Use of Proceeds."
(i) Immediately following the execution of the Pricing Agreement,
the Company will prepare, and file or transmit for filing with the
Commission in accordance with Rule
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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 Closing Time, the
Company will not, without the prior written consent of the Underwriter,
directly or indirectly, sell, offer to sell, contract to sell, or
otherwise dispose of, or announce the offering of, any Securities or
securities similar to the Securities, or any securities convertible into
or exchangeable or exercisable for any Securities or any such similar
securities, except for Securities sold to the Underwriter pursuant to this
Agreement.
(k) The Company, during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, will file all
documents required to be filed with the Commission pursuant to Section 13,
14 or 15 of the 1934 Act within the time periods required by the 1934 Act
and the 1934 Act Regulations.
Section 4. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement, including
(a) the printing and filing of the Registration Statement as originally filed
and of each amendment thereto, (b) the printing or reproducing of this
Agreement, the Pricing Agreement and the Indenture, (c) the preparation,
issuance and delivery of the certificates for the Securities to the Underwriter,
(d) the fees and disbursements of the Company's counsel and accountants, (e) the
qualification of the Securities under securities laws in accordance with the
provisions of Section 3(f) hereof, including filing fees and the reasonable fee
and disbursements of counsel for the Underwriter in connection therewith and in
connection with the preparation of the Blue Sky Survey and any Legal Investment
Survey, (f) the printing and delivery to the Underwriter of copies of the
Registration Statement as originally filed and of each amendment thereto, of
each preliminary prospectus, and of the Prospectus and any amendments or
supplements thereto, (g) the printing and delivery to the Underwriter of copies
of the Blue Sky Survey and any Legal Investment Survey, (h) any fees of any
rating agencies rating the Securities, (i) the fees and expenses of the Trustee,
including the fees and disbursements of counsel for the Trustee in connection
with the Indenture and the Securities and (j) any fees and expenses of a
depositary in connection with the holding of the Securities in book-entry form.
If this Agreement is terminated by the Underwriter in accordance with the
provisions of Section 5 or Section 9(a)(i) hereof, the Company shall reimburse
the Underwriter for its out-of-pocket expenses, including the reasonable fees
and disbursements of counsel for the Underwriter.
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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 Closing Time no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission. The
supplement to the Prospectus referred to in Section 3(i) of this Agreement
shall have been transmitted to the Commission for filing pursuant to Rule
424(b) of the 1933 Act Regulations within the prescribed time period, and
prior to Closing Time the Company shall have provided evidence
satisfactory to the Underwriter of such timely filing.
(b) At Closing Time the Underwriter shall have received:
(1) The opinion, dated as of Closing Time, of Xxxxxxx X.
Xxxxxxxx, Esq., Senior Vice President --General Counsel of the
Company, in form and scope satisfactory to counsel for the
Underwriter, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware.
(ii) The Company has corporate power and corporate
authority to own, lease and operate its properties and
conduct its business as described in the Registration
Statement.
(iii) The Company is duly qualified as a foreign
corporation to transact business and is in good standing in
each jurisdiction in which such qualification is required,
except where the failure of the Company to so qualify, in the
aggregate, will not have a material adverse effect on the
consolidated financial condition or combined operations of
the Company and its Subsidiaries or of the Company and its
Restricted Subsidiaries (as those terms are defined in the
Indenture).
(iv) Each subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its
incorporation, has corporate power and corporate authority to
own, lease and operate its properties and conduct its
business as described in the Registration Statement, and is
duly qualified as a foreign corporation to
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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.
(v) The authorized, issued and outstanding capital
stock of the Company is as set forth in the Prospectus
(included by incorporation) and the shares of issued and
outstanding Common Stock set forth therein have been duly
authorized and validly issued and are fully paid and
nonassessable; FINOVA owns, directly or indirectly, all of
the outstanding shares of the Common Stock, which Common
Stock constitutes all of the issued and outstanding capital
stock of the Company, free and clear of any claims, liens and
encumbrances.
(vi) This Agreement and the Pricing Agreement have
each been duly authorized, executed and delivered by the
Company.
(vii) The Indenture has been duly and validly
authorized, executed and delivered by the Company and to such
counsel's knowledge, the Trustee; the Indenture constitutes a
valid and binding agreement of the Company, enforceable in
accordance with its terms, except as enforcement thereof may
be limited by bankruptcy, insolvency, or other laws relating
to or affecting creditors' rights generally or by general
equity principles, including concepts of commercial
reasonableness.
(viii) The Securities are in due and proper form,
have been duly and validly authorized by all necessary
corporate action for issuance, offer and sale by the Company
to the Underwriter as contemplated by this Agreement and,
when executed and authenticated as specified in the Indenture
and delivered against payment of the consideration therefor
in accordance with this Agreement and the Pricing Agreement,
will be valid and binding obligations of the Company,
enforceable in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
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or other laws relating to or affecting creditors' rights
generally, or by general equity principles, including
concepts of commercial reasonableness, and each holder of
Securities will be entitled to the benefits of the Indenture.
(ix) The statements in the Prospectus under the
captions "Description of Notes" and "Description of
Securities," insofar as they purport to summarize certain
provisions of documents specifically referred to therein, are
accurate summaries of the subject matter thereof.
(x) The Indenture is qualified under the 1939 Act.
(xi) The Registration Statement is effective under
the 1933 Act and, to the best of such counsel's knowledge, no
stop order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act or proceedings
therefor have been initiated or threatened by the Commission.
(xii) At the time the Registration Statement became
effective, at the 10-K Filing Date and at the Representation
Date, the Registration Statement (other than the financial
statements, schedules and other financial and statistical
data included or incorporated by reference therein, the Form
T-1, and information relating to the Underwriter, as to which
no opinion need be rendered) complied as to form in all
material respects with the requirements of the 1933 Act, the
1939 Act and the regulations of those Acts.
(xiii) There are no legal or governmental proceedings
pending or to the best of such counsel's knowledge,
threatened which are required to be disclosed in the
Registration Statement, other than those disclosed therein,
and all pending legal or governmental proceedings to which
the Company or any subsidiary is a party or of which any of
their property is the subject which are not described in the
Registration Statement, including ordinary routine litigation
incidental to the business, are reasonably expected to be,
alone or in the aggregate, not material.
(xiv) To the best of such counsel's knowledge, there
are no contracts, indentures, mortgages, loan agreements,
notes, leases or other instruments required to be described
or referred to, or incorporated by reference in, the
Registration Statement or to be filed as exhibits
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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.
(xv) No consent, approval, authorization, or order
of any court or governmental authority or agency is required
in connection with the sale of the Securities, except such as
may be required under the 1933 Act or the 1933 Act
Regulations or state securities laws; and the execution and
delivery of this Agreement and the Pricing Agreement and the
Indenture and the consummation of the transactions
contemplated herein and therein did not and will not conflict
with or constitute a breach of, or default under, or result
in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any
subsidiary pursuant to, any contract, indenture, mortgage,
loan agreement, note, lease or other instrument known to such
counsel and to which the Company or any of its subsidiaries
is a party or by which it or any of them may be bound or to
which any of the property or assets of the Company or any of
its subsidiaries is subject, or any law, administrative
regulation or administrative or court decree known to such
counsel to be applicable to the Company of any court or
governmental agency, authority or body or any arbitrator
having jurisdiction over the Company; nor will such action
result in any violation of the provisions of the charter or
by-laws of the Company.
(xvi) Each document, if any, filed pursuant to the
1934 Act (other than the financial statements, schedules and
other financial and statistical data included therein, as to
which no opinion need be rendered) and incorporated by
reference in the Prospectus, complied when filed as to form
in all material respects with the 1934 Act and the 1934 Act
Regulations thereunder.
(xvii) To the best of such counsel's knowledge, the
Company and its subsidiaries own or possess or have obtained
adequate trademarks, service marks
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and trade names necessary to conduct the business now
operated by them, and neither the Company nor any of its
subsidiaries has received any notice of infringement of or
conflict with asserted rights of others with respect to any
trademarks, service marks or trade names which, singly or in
the aggregate, if the subject of an unfavorable decision,
ruling or finding, would reasonably be expected to materially
adversely affect the conduct of the business, operations,
financial condition or income of the Company and its
subsidiaries considered as one enterprise.
(xviii) The Company is not an "investment company" nor
is it "controlled" by an "investment company" as such terms
are defined in the Investment Company Act.
In giving such opinion such counsel may rely as to all
matters of law other than the federal laws of the United States of
America, the laws of the State of Arizona, and the General
Corporation Law of the State of Delaware, and as to all matters of
foreign law, upon opinions of counsel satisfactory to counsel to the
Underwriter, in which case, the opinion shall state that although
such counsel has not made an independent investigation of the laws
of any jurisdiction other than the federal laws United States of
America, the General Corporation Law of the State of Delaware or the
laws of Arizona, such counsel believes the Underwriter and he are
entitled so to rely. In giving the opinions referred to in the
foregoing clause (iv), such counsel may omit reference to a foreign
subsidiary so long as (A) he shall have delivered to the Underwriter
a signed opinion of other counsel for such foreign subsidiary,
satisfactory to counsel to the Underwriter which other opinion shall
give substantially the same opinions with respect to such foreign
subsidiary as required by the foregoing clause (iv), and (B) he
states that such other opinion is satisfactory to him and that
although he has not made an independent investigation of the foreign
laws applicable to such foreign subsidiary, he believes the
Underwriter is entitled to rely on such other opinion.
(2) The opinion, dated as of Closing Time, of Xxxxx &
Xxxx, counsel for the Underwriter, with respect to the matters set
forth in (i) and (vii) through (xii), inclusive, of subsection
(b)(l) of this Section.
(3) In giving their opinions required by subsections
(b)(l) and (b)(2), respectively, of this Section, Xx. Xxxxxxxx and
Xxxxx & Wood shall each additionally state that nothing has come to
their attention that would lead such counsel to believe that
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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 Xx. Xxxxxxxx) or at the Representation Date,
contained an untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make
the statements therein not misleading or that the Prospectus (other
than the financial statements, schedules and other financial and
statistical data included or incorporated therein, as to which no
statement need be made), at the Representation Date (unless the term
"Prospectus" refers to a prospectus which has been provided to the
Underwriter by the Company for use in connection with the offering
of the Securities that differs from the Prospectus on file at the
Commission at the time the Registration Statement became effective,
in which case at the time it is first provided to the Underwriter
for such use) or at Closing Time, included an untrue statement of a
material fact or omitted to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(c) At Closing Time there shall not have been, since the date
hereof or since the respective dates as of which information is given in
the Prospectus, any material adverse change in the condition, financial or
otherwise, of the Company and its subsidiaries considered as one
enterprise, or in the earnings, business affairs or business prospects of
the Company and its subsidiaries considered as one enterprise, whether or
not arising in the ordinary course of business, and the Underwriter shall
have received a certificate of the Chairman, President and Chief Executive
Officer or a Senior Vice President or a Vice President of the Company and
of the chief financial or chief accounting officer of the Company, dated
as of Closing Time, to the effect that (i) there has been no such material
adverse change, (ii) the representations and warranties in Section 1
hereof are true and correct with the same force and effect as though
expressly made at and as of Closing Time, (iii) the Company has complied
with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to Closing Time, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been initiated or threatened by
the Commission. As used in this Section 5(c), the term "Prospectus" means
the Prospectus in the form first used to confirm sales of the Securities.
(d) At the time of execution of this Agreement, the Underwriter
shall have received from Deloitte & Touche LLP a
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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 Closing Time the Underwriter shall have received from
Deloitte & Touche LLP a letter, dated as of Closing Time, to the effect
that they reaffirm the statements made in the letter furnished pursuant to
subsection (d) of this Section, except that the "specified date" referred
to in such letter shall be a date not more than three days prior to
Closing Time.
(f) All proceedings taken by the Company in connection with the
issuance and sale of the Securities as herein contemplated shall be
reasonably satisfactory in form and substance to the Underwriter and
counsel for the Underwriter.
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by the
Underwriter by notice to the Company at any time at or prior to Closing Time,
and such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof.
Section 6. Indemnification.
(a) The Company agrees to indemnify and hold harmless the Underwriter
and each person, if any, who controls the Underwriter within the meaning of
Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, if such
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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) or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(b) The Underwriter agrees to indemnify and hold harmless the Company,
its directors, each of its officers who signed the Registration Statement, and
each person, if any, who controls the Company within the meaning of Section 15
of the 1933 Act, against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto) or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by the Underwriter expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary prospectus
or the Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give as promptly as reasonably
practicable notice to each indemnifying party of any action commenced against it
in respect of which indemnity may be sought hereunder, but failure to so notify
an indemnifying party shall not relieve such indemnifying party from any
liability which it may have otherwise than on account of this indemnity
agreement, except to the extent of any prejudice to such indemnifying party
arising from the failure to provide such notice. An indemnifying party may
participate at its own expense in the defense of such action. In no event shall
the indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to any local counsel per jurisdiction) separate from their
own counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances.
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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 Closing Time (i) if there has
been, since the date of this Agreement or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
if there has occurred any outbreak or escalation of hostilities or other
calamity or crisis the effect of which on the financial markets of the United
States is such as to make it, in the reasonable judgment of the Underwriter,
impracticable to market the Securities or enforce contracts for the sale of the
Securities, or (iii) if trading in
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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 Xxxxxx Brothers Inc., 0 Xxxxx Xxxxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx Xxxxxxxx, facsimile: (212)
528-8233; and notices to the Company shall be directed to it at 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
by reason merely of such purchase.
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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.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Underwriter and the Company in accordance with its terms.
Very truly yours,
FINOVA CAPITAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Senior Vice President-
Treasurer
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXX BROTHERS INC.
By: /s/Xxxxxx Xxxxxxxx
--------------------------
Name: Xxxxxx Xxxxxxxx
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$147,450,000
FINOVA CAPITAL CORPORATION
(a Delaware corporation)
6 3/8% Notes due October 15, 2000
PRICING AGREEMENT
October 5, 1995
XXXXXX BROTHERS INC.
0 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Reference is made to the Underwriting Agreement, dated October 5, 1995
(the "Underwriting Agreement"), relating to the purchase by Xxxxxx Brothers Inc.
(the "Underwriter") of $147,450,000 aggregate principal amount of 6 3/8% Notes
due October 15, 2000 (the "Securities") of FINOVA Capital Corporation (the
"Company").
Pursuant to Section 2 of the Underwriting Agreement, the Company agrees
with the Underwriter as follows:
1. The initial public offering price of the Securities shall be 99.614%
of the principal amount thereof.
2. The purchase price of the Securities to be paid by the Underwriter
shall be 99.064% of the principal amount thereof.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Underwriter and the Company in accordance with its terms.
Very truly yours,
FINOVA CAPITAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Senior Vice President-
Treasurer
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXX BROTHERS INC.
By: /s/Xxxxxx Xxxxxxxx
----------------------
Name: Xxxxxx Xxxxxxxx
2
