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Exhibit 1.1
$100,000,000
FINOVA CAPITAL CORPORATION
(a Delaware corporation)
6.625% Notes Due September 15, 2001
UNDERWRITING AGREEMENT
September 19, 1995
XXXXXXX, XXXXX & CO.
00 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 Xxxxxxx, Xxxxx & Co. (the "Underwriters") with respect to the sale by the
Company and the purchase by the Underwriters of $100,000,000 aggregate principal
amount of the Company's 6.625% Notes Due September 15, 2001 (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
Underwriters, the Company and the Underwriters 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 Underwriters 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 1933, as amended (the "1933 Act"), has filed such amendments
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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 Underwriters 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 Underwriters 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 Underwriters propose to make a public
offering of the Securities as soon as the Underwriters deem advisable after the
Pricing Agreement has been executed and delivered.
Section 1. Representations and Warranties.
(a) The Company represents and warrants to the Underwriters 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
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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 Underwriters 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 Underwriters 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 Underwriters 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 applied on a consistent basis; the unaudited pro forma
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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, will not have a material adverse
effect on the consolidated
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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 Underwriters.
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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 Underwriters or to counsel for the Underwriters shall be deemed a
representation and warranty by the Company to the Underwriters as to the matters
covered thereby.
Section 2. Sale and Delivery to Underwriters; 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 Underwriters and the Underwriters agree to purchase from the
Company, at the price set forth in the Pricing Agreement, $100,000,000 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 Underwriters and the Company, at 10:00
a.m., New York City time, on September 22, 1995, or such other time not later
than ten business days after execution of the Pricing Agreement as shall be
agreed upon by the Underwriters 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
Underwriters 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 Underwriters 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 Underwriters 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 Underwriters as follows:
(a) The Company will notify the Underwriters 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 Underwriters 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 Underwriters 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
Underwriters 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 Underwriters or counsel for the
Underwriters shall object.
(c) The Company has delivered to your counsel one signed copy
and will deliver to the Underwriters 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 Underwriters may reasonably
request.
(d) The Company will furnish to the Underwriters, 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 Underwriters 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 Underwriters, 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 Underwriters) 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 Underwriters a
reasonable number of copies of such amendment or supplement.
(f) The Company will endeavor, in cooperation with the
Underwriters, 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 Underwriters 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 Underwriters
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
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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 Underwriters 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
Underwriters, 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
Underwriters 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
Underwriters, (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 Underwriters 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
Underwriters 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
Underwriters 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 Underwriters in accordance with
the provisions of Section 5 or Section 9(a)(i) hereof, the Company shall
reimburse the Underwriters for their out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the Underwriters.
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Section 5. Conditions of Underwriters's Obligations. The obligations of
the Underwriters 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
Underwriters of such timely filing.
(b) At Closing Time the Underwriters 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 substance satisfactory to
counsel for the Underwriters, 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 Underwriters 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
Underwriters, 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 Underwriters, 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
Underwriters 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 Underwriters a signed
opinion of other counsel for such foreign subsidiary,
satisfactory to counsel to the Underwriters 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
Underwriters are entitled to rely on such other opinion.
(2) The opinion, dated as of Closing Time, of Xxxxx
& Xxxx, counsel for the Underwriters, 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 Brown & Wood shall each additionally state that
nothing has come to their
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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 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 Underwriters 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 Underwriters 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 Underwriters 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.
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(d) At the time of execution of this Agreement, the
Underwriters shall have received from Deloitte & Touche LLP a letter
dated such date, in form and substance satisfactory to the
Underwriters, and substantially in the same form as the draft letter
previously delivered to and approved by the Underwriters.
(e) At Closing Time the Underwriters 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 Underwriters
and counsel for the Underwriters.
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 Underwriters 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 Underwriters
and each person, if any, who controls the Underwriters 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
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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 Underwriters), 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
Underwriters 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 Underwriters agree 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 Underwriters 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
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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
Underwriters 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 Underwriters, as incurred, in such proportions
that the Underwriters are 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
Underwriters be required to contribute an amount in excess of the total
underwriting discounts received by the Underwriters in connection with the
transactions contemplated by this Agreement. For purposes of this Section, each
person, if any, who controls the Underwriters within the meaning of Section 15
of the 1933 Act shall have the same rights to contribution as such Underwriters,
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
Underwriters or a controlling person, or by or on behalf of the Company, and
shall survive delivery of the Securities to the Underwriters.
Section 9. Termination of Agreement.
(a) The Underwriters 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
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is such as to make it, in the reasonable judgment of the Underwriters,
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 Underwriters shall be directed
to Xxxxxxx, Xxxxx & Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxxxx Xxxxxxxxx, facsimile: (000) 000-0000;
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 Underwriters 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 Underwriters 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 Underwriters 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 Underwriters
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shall be deemed to be a successor by reason merely 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.
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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 Underwriters and the Company in accordance with its terms.
Very truly yours,
FINOVA CAPITAL CORPORATION
By: /s/Xxxxx X. Xxxxxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Senior Vice President
Controller and Chief
Financial Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
/s/ Xxxxxxx, Xxxxx & Co.
. . . . . . . . . . . . . . . . . .
(Xxxxxxx, Xxxxx & Co.)
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EXHIBIT A
$100,000,000
FINOVA CAPITAL CORPORATION
(a Delaware corporation)
6.625% Notes Due September 15, 2001
PRICING AGREEMENT
September 19, 1995
XXXXXXX, XXXXX & CO.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Reference is made to the Underwriting Agreement, dated September 19,
1995 (the "Underwriting Agreement"), relating to the purchase by Xxxxxxx, Xxxxx
& Co. (the "Underwriters") of $100,000,000 aggregate principal amount of 6.625%
Notes Due September 15, 1995 (the "Securities") of FINOVA Capital Corporation
(the "Company").
Pursuant to Section 2 of the Underwriting Agreement, the Company agrees
with the Underwriters as follows:
1. The initial public offering price of the Securities shall
be 99.973% of the principal amount thereof.
2. The purchase price of the Securities to be paid by the
Underwriters shall be 99.423% of the principal amount thereof.
A-1
25
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 Underwriters 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:
. . . . . . . . . . . . . . . . . .
(Xxxxxxx, Xxxxx & Co.)
A-2
