<PAGE>
<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 28, 1998
REGISTRATION NO. 333-48415
________________________________________________________________________________
U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
AT&T CAPITAL CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
------------------------
DELAWARE 22-3211453
(STATE OR OTHER JURISDICTION OF (IRS EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
44 WHIPPANY ROAD
MORRISTOWN, NEW JERSEY 07962
(973) 397-3000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
SCOTT J. MOORE
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
44 WHIPPANY ROAD
MORRISTOWN, NEW JERSEY 07962
(973) 397-3000
(AGENT FOR SERVICE)
------------------------
COPIES TO:
<TABLE>
<S> <C> <C>
M. DAVID GALAINENA JAMES D. JOHNSON DAVID J. TOSWELL
WINSTON & STRAWN SIDLEY & AUSTIN BLAKE, CASSELS & GRAYDON
35 WEST WACKER DRIVE 875 THIRD AVENUE BOX 25, COMMERCE COURT WEST
CHICAGO, ILLINOIS 60601 NEW YORK, NEW YORK 10022 TORONTO, ONTARIO, M5L 1A9
(312) 558-5600 (212) 906-2000 (416) 863-2400
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: From time to
time after the effective date of this Registration Statement as determined by
market conditions.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box: [x]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering: [ ]_________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering: [ ]_________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: [ ]
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
________________________________________________________________________________
<PAGE>
<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 28, 1998
REGISTRATION STATEMENT NO. 333-48415
________________________________________________________________________________
U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 1
TO
FORM F-9
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
------------------------
NEWCOURT CREDIT GROUP INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
------------------------
NOT APPLICABLE
(TRANSLATION OF REGISTRANT'S NAME INTO ENGLISH (IF APPLICABLE))
<TABLE>
<S> <C> <C>
ONTARIO NOT APPLICABLE NOT APPLICABLE
(PROVINCE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER IDENTIFICATION NUMBER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER (IF APPLICABLE)
(IF APPLICABLE)
</TABLE>
BCE PLACE, 181 BAY STREET
SUITE 3500, TORONTO, ONTARIO, M5J 2T3, CANADA (416) 594-2400
(ADDRESS AND TELEPHONE NUMBER OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
ATTENTION: SCOTT J. MOORE
SENIOR VICE PRESIDENT, GENERAL COUNSEL & SECRETARY
AT&T CAPITAL CORPORATION
44 WHIPPANY ROAD
MORRISTOWN, NEW JERSEY 07963
(973) 397-3000
(NAME, ADDRESS (INCLUDING ZIP CODE) AND TELEPHONE NUMBER (INCLUDING AREA CODE)
OF AGENT FOR SERVICE IN THE UNITED STATES)
------------------------
COPIES TO:
<TABLE>
<S> <C> <C>
M. DAVID GALAINENA JAMES D. JOHNSON DAVID J. TOSWELL
WINSTON & STRAWN SIDLEY & AUSTIN BLAKE, CASSELS & GRAYDON
35 WEST WACKER DRIVE 875 THIRD AVENUE BOX 25, COMMERCE COURT WEST
CHICAGO, ILLINOIS 60601 NEW YORK, NEW YORK 10022 TORONTO, ONTARIO, M5L 1A9
(312) 558-5600 (212) 906-2000 (416) 863-2400
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF THE SECURITIES TO THE
PUBLIC: From time to time after the effective date of this Registration
Statement as determined by market conditions.
PROVINCE OF ONTARIO, CANADA
(PRINCIPAL JURISDICTION REGULATING THIS OFFERING)
It is proposed that this filing shall become effective (check appropriate
box below):
<TABLE>
<S> <C> <C>
A. [ ] upon filing with the Commission, pursuant to Rule 467(a) (if in connection with an offering being made
contemporaneously in the United States and Canada).
B. [ ] as some future date (check appropriate box below).
1. [ ] pursuant to Rule 467(b) on ( ) at ( ) (designate a time not sooner than seven calendar
days after filing).
2. [ ] pursuant to Rule 467(b) on ( ) at ( ) (designate a time seven calendar days or sooner
after filing) because the securities regulatory authority in the review jurisdiction has issued a
receipt or notification of clearance on ( ).
3. [x] pursuant to Rule 467(b) as soon as practicable after notification of the Commission by the
Registrant or the Canadian securities regulatory authority of the review jurisdiction that a
receipt or notification of clearance has been issued with respect hereto.
4. [ ] after the filing of the next amendment to this Form (if preliminary material is being filed).
</TABLE>
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to the home jurisdiction's shelf
prospectus offering procedures, check the following box. [ ]
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE AS PROVIDED IN RULE 467 UNDER THE SECURITIES
ACT OF 1933 OR ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SECTION 8(a)
OF THE ACT, MAY DETERMINE.
________________________________________________________________________________
<PAGE>
<PAGE>
SUBJECT TO COMPLETION DATED APRIL 28, 1998
PRICING SUPPLEMENT
(TO PROSPECTUS SUPPLEMENT AND PROSPECTUS DATED MAY , 1998)
$750,000,000
[LOGO]
GUARANTEED AS TO PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, AND INTEREST BY
[LOGO]
% Notes due
ISSUE PRICE: %
% Notes due
ISSUE PRICE: %
Interest payable May 15 and November 15
Interest on the % Medium-Term Notes, Series F due (the ' Notes')
and on the % Medium-Term Notes, Series F due (the ' Notes')
(collectively, the 'Notes') of AT&T Capital Corporation (the 'Company') offered
hereby is payable semiannually on May 15 and November 15 of each year,
commencing November 15, 1998. The Notes are not redeemable and will not be
subject to any sinking fund. The Notes will be represented by one or more global
securities registered in the name of a nominee of The Depository Trust Company
as Depositary (the 'Depositary'). Beneficial interests in the Notes will be
shown on and transfers thereof will be effected only through records maintained
by the Depositary and its participants (including Euroclear and Cedel). Except
as described herein, Notes will not be issued in definitive form. The Notes will
trade in the Same-Day Funds Settlement System of the Depositary until maturity,
and secondary market trading activity for the Notes will therefore settle in
same-day funds. See 'Description of Notes' in this Pricing Supplement and
'Description of Medium-Term Notes, Series F' in the accompanying Prospectus
Supplement and 'Description of the Guarantee' in the accompanying Prospectus.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PRICING SUPPLEMENT OR THE PROSPECTUS
SUPPLEMENT OR THE PROSPECTUS TO WHICH IT RELATES. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------
PRICE TO UNDERWRITING PROCEEDS TO
PUBLIC(1) DISCOUNT(2) THE COMPANY(1)(3)
<S> <C> <C> <C>
Per Note % % %
Total $ $ $
Per Note % % %
Total $ $ $
</TABLE>
(1) Plus accrued interest, if any, from .
(2) The Company and Newcourt have agreed to indemnify the Underwriters against
certain liabilities under the Securities Act of 1933. See 'Underwriting'.
(3) Before deducting expenses payable by the Company estimated at $ .
The Notes are offered, subject to prior sale, when, as and if accepted by the
Underwriters and subject to approval of certain legal matters by Winston &
Strawn, counsel for the Underwriters. It is expected that delivery of the Notes
will be made on or about May , 1998 through the facilities of the Depositary
against payment therefor in same-day funds.
J.P. MORGAN & CO.
CHASE SECURITIES INC.
CREDIT SUISSE FIRST BOSTON
GOLDMAN, SACHS & CO.
LEHMAN BROTHERS
SALOMON SMITH BARNEY
May , 1998
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SUPPLEMENT AND THE ACCOMPANYING PROSPECTUS SHALL NOT
CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY NOR SHALL
THERE BE ANY SALE OF THESE SECURITIES IN ANY STATE IN WHICH SUCH OFFER,
SOLICITATION, OR SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION
UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE>
<PAGE>
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICES OF THE NOTES OFFERED
HEREBY AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET.
SUCH TRANSACTIONS MAY BE EFFECTED IN THE OVER-THE-COUNTER MARKET OR OTHERWISE.
SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
No person has been authorized to give any information or to make any
representations other than those contained or incorporated by reference in this
Pricing Supplement, the Prospectus Supplement or the Prospectus in connection
with the offer made by this Pricing Supplement, the Prospectus Supplement and
the Prospectus and, if given or made, such information or representations must
not be relied upon as having been authorized by the Company, Newcourt or the
Underwriters. This Pricing Supplement, the Prospectus Supplement and the
Prospectus do not constitute an offer to sell or the solicitation of an offer to
buy such securities in any circumstances in which such offer or solicitation is
unlawful. Neither the delivery of this Pricing Supplement, the Prospectus
Supplement or the Prospectus nor any sale made hereunder and thereunder shall,
under any circumstances, create any implication that there has been no change in
the affairs of the Company or Newcourt since the date thereof or hereof or that
the information contained therein or herein is correct as of any time subsequent
to their respective dates.
DESCRIPTION OF NOTES
The Notes will be issued as a part of a series of debt securities
designated as Medium-Term Notes, Series F (the 'Medium-Term Notes') and issued
under an Indenture, dated as of April 1, 1998 (the 'Indenture'), by and among
the Company, Newcourt Credit Group Inc. ('Newcourt') and The Chase Manhattan
Bank, as trustee (the 'Trustee'). The Medium-Term Notes are currently limited to
$5,000,000,000 aggregate principal amount. The following summary of certain
provisions of the Notes, of the Medium-Term Notes and of the Indenture does not
purport to be complete and is qualified in its entirety by reference to the
Indenture, a copy of which has been filed an as exhibit to the Registration
Statement of which this Pricing Supplement and the accompanying Prospectus
Supplement and Prospectus are a part. Capitalized terms used but not defined
herein generally are defined in the accompanying Prospectus Supplement or
Prospectus. Capitalized terms used but not defined herein or in the accompanying
Prospectus Supplement or Prospectus have the meanings given to them in the
Indenture. The term 'Securities,' as used under this caption, refers to all
Securities issuable from time to time under the Indenture and includes the
Notes. The term 'Medium-Term Notes' includes the Notes.
GENERAL
All Securities, including the Notes, issued and to be issued under the
Indenture will be unsecured obligations of the Company, and will rank pari passu
with all other unsecured indebtedness of the Company from time to time
outstanding. The Indenture does not limit the aggregate principal amount of
Securities which may be issued thereunder, and Securities may be issued
thereunder from time to time as a single series or in two or more separate
series up to the aggregate principal amount from time to time authorized by the
Company for each series. The Company may, from time to time, without the consent
of the holders of the Notes, provide for the issuance of additional Medium-Term
Notes or other Securities under the Indenture in addition to the $5,000,000,000
aggregate principal amount of Securities authorized as of the date of this
Pricing Supplement.
Newcourt will provide an irrevocable unconditional guarantee of payment of
principal, premium, if any, and interest on the Notes. Such guarantee will be an
unsecured obligation of Newcourt and will rank pari passu with all other
unsecured and unsubordinated indebtedness of Newcourt.
The Notes will mature on and the Notes will
mature on , and will bear interest from the date of issuance
payable semiannually in arrears on May 15 and November 15 (each an 'Interest
Payment Date') beginning November 15, 1998. If any Interest Payment Date would
otherwise be a day that is not a Business Day, such Interest Payment Date
2
<PAGE>
<PAGE>
will be postponed to the next succeeding Business Day. Payments of principal of
premium, if any, and interest on the Notes will be made by the Company through
the Trustee to the Depositary. See 'Description of Medium-Term Notes, Series F'
in the accompanying Prospectus Supplement and 'Description of the Guarantee' in
the accompanying Prospectus. The Notes will pay interest at the rates set forth
on the cover of this Pricing Supplement. Reference is hereby made to
'Description of Medium-Term Notes, Series F' in the accompanying Prospectus
Supplement and 'Description of the Guarantee' in the accompanying Prospectus.
UNDERWRITING
Subject to the terms and conditions set forth in the Underwriting
Agreement, dated the date hereof (the 'Underwriting Agreement'), among the
Company, Newcourt and the underwriters named below (the 'Underwriters'), the
Company has agreed to sell to each of the Underwriters, and each of the
Underwriters has severally agreed to purchase from the Company, the principal
amount of the Notes set forth opposite its name below:
<TABLE>
<CAPTION>
PRINCIPAL
UNDERWRITER AMOUNT
- -------------------------------------------------------------------------------------------------- ------------
<S> <C>
J.P. Morgan Securities Inc. ...................................................................... $
Chase Securities Inc..............................................................................
Credit Suisse First Boston Corporation............................................................
Goldman, Sachs & Co...............................................................................
Lehman Brothers Inc...............................................................................
Salomon Brothers Inc..............................................................................
------------
Total........................................................................................ $750,000,000
------------
------------
</TABLE>
The Underwriting Agreement provides that the obligations of the
Underwriters are subject to certain conditions precedent and that the
Underwriters will be obligated to take and pay for all the Notes if any are
taken.
The Underwriters have advised the Company that they propose initially to
offer the Notes directly to the public at the public offering price set forth on
the cover page of this Pricing Supplement and to certain dealers at such price
less a concession not in excess of % of the principal amount of the Notes.
The Underwriters may allow, and such dealers may reallow, a discount not in
excess of % of the principal amount of the Notes to certain other dealers.
After the initial public offering, the public offering price and such
concessions may be changed.
The Company does not intend to apply for listing of the Notes on a national
securities exchange, but has been advised by the Underwriters that they intend
to make a market in the Notes. The Underwriters are not obligated, however, to
make a market in the Notes and may discontinue market making at any time without
notice. No assurance can be given as to the liquidity of any trading market for
the Notes.
The Company and Newcourt have agreed to indemnify the Underwriters against
certain liabilities, including liabilities under the Securities Act of 1933, as
amended.
In the ordinary course of their respective businesses, affiliates of the
Underwriters have engaged and may in the future engage in commercial and
investment banking transactions with the Company and the Guarantor.
3
<PAGE>
<PAGE>
SUBJECT TO COMPLETION DATED APRIL 28, 1998
PRELIMINARY PROSPECTUS SUPPLEMENT
(To Prospectus Dated May , 1998)
U.S. $5,000,000,000
[LOGO]
MEDIUM-TERM NOTES, SERIES F
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
GUARANTEED AS TO PAYMENT OF PRINCIPAL, PREMIUM, IF ANY,
AND INTEREST BY
[LOGO]
---------------------------
AT&T Capital Corporation (the 'Company'), an indirect wholly-owned
subsidiary of Newcourt Credit Group Inc. ('Newcourt'), may offer from time to
time its medium-term notes, which are issuable in one or more series. The
Medium-Term Notes, Series F (the 'Notes') offered by this Prospectus Supplement
are offered in the United States with an aggregate offering price not exceeding
U.S. $5,000,000,000 or the equivalent thereof in other currencies or currency
units, as such amount shall be reduced by the aggregate offering price of any
other debt securities and the aggregate purchase price of any warrants issued by
the Company, whether inside or outside of the United States (the 'Other
Securities'), pursuant to the Registration Statement of which the accompanying
Prospectus is a part (see 'Plan of Distribution'). The Notes may be denominated
in U.S. dollars or other currencies or currency units as may be designated by
the Company (the 'Specified Currency'). See 'Important Currency Exchange
Information'. The Notes will be offered in varying maturities nine months or
more from their dates of issue and may be subject to redemption at the option of
the Company or repayment at the option of the Holder, in each case, in whole or
in part prior to the maturity date thereof, as set forth in the applicable
pricing supplement to this Prospectus Supplement (a 'Pricing Supplement'). The
Notes will be unconditionally guaranteed as to payment of principal, premium, if
any, and interest by Newcourt. See 'The Company -- Relationship with Newcourt'.
THE NOTES ARE NOT GUARANTEED OR SUPPORTED IN ANY WAY BY AT&T CORP.
('AT&T').
The interest rate on each Note will be either a fixed rate (a 'Fixed Rate
Note'), which may be zero in the case of certain Notes issued at a price
representing a substantial discount from the principal amount payable upon
maturity, or a floating rate (a 'Floating Rate Note') determined by reference to
one or more of the Commercial Paper Rate, the Federal Funds Rate, the CD Rate,
LIBOR, the Treasury Rate, the Prime Rate, the CMT Rate or any other Base Rate
(each as defined below) or interest rate formula set forth in the applicable
Pricing Supplement, as adjusted by the Spread and/or Spread Multiplier (each as
defined below), if any, applicable to such Note. A Fixed Rate Note may pay a
level amount in respect of both interest and principal amortized over the life
of the Note (an 'Amortizing Note'). A Note may be issued as an indexed note (an
'Indexed Note'), the principal amount payable at maturity of which, or premium
or interest on which, will be determined by reference to the level of a
designated stock index or a designated currency or commodity or other prices or
indices or will otherwise be determined by application of a formula. See
'Description of Medium-Term Notes, Series F -- Indexed Notes'.
The Specified Currency, interest rate or interest rate formula, reset
provisions, issue price, maturity, interest payment dates, redemption,
repayment, and amortization provisions and certain other terms with respect to
each Note will be established at the time of issuance and set forth in the
applicable Pricing Supplement. Except as otherwise indicated herein or in the
applicable Pricing Supplement, interest on each Fixed Rate Note (other than an
Amortizing Note) is payable each May 15 and November 15 and at maturity.
Interest on each Floating Rate Note is payable on the dates set forth therein
and in the applicable Pricing Supplement.
---------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS SUPPLEMENT, ANY PRICING
SUPPLEMENT OR THE PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
<TABLE>
<CAPTION>
Price to Agent's Discount and Proceeds to
Public(1)(2) Commission(2)(3) the Company(2)(3)(4)
<S> <C> <C> <C>
Per Note......................................... 100.000% % %
Total............................................ U.S.$5,000,000,000 U.S.$ U.S.$
</TABLE>
(1) Unless otherwise indicated in a Pricing Supplement, the Notes will be
issued at 100% of their principal amount.
(2) Or, in the case of Notes not denominated in U.S. dollars, the equivalent
thereof in the Specified Currency.
(3) The Company will pay a commission to certain investment banking firms
(collectively, the 'Agents'), in the form of a discount of the principal
amount of any Note sold through the Agents, depending upon the maturity of
the Note, except that the commission payable by the Company to the Agents
with respect to Notes with maturities of greater than thirty years will be
negotiated at the time the Company issues such Notes. An Agent, acting as
principal, or a group of underwriters for whom one or more Agents are
acting as representatives, may also purchase Notes at a discount, to be
agreed upon at the time of sale, for resale to one or more investors, or
one or more broker-dealers (acting as principal for purposes of resale) at
varying prices related to prevailing market prices at the time of resale,
as determined by such Agent, or, if so agreed, at a fixed public offering
price. See 'Plan of Distribution'.
(4) Before deducting expenses payable by the Company estimated at U.S.
$ , including reimbursement of the Agents' expenses.
---------------------------
The Notes are being offered on a continual basis by the Company through the
Agents, who have agreed to use their reasonable best efforts to solicit
purchases of the Notes. The Company also may arrange for the Notes to be sold
through other agents, dealers or underwriters or may sell the Notes directly to
investors on its own behalf in those jurisdictions where it is authorized to do
so. The Notes will not be listed on any securities exchange, and there can be no
assurance that the Notes will be sold or that there will be a secondary market
for the Notes. The Company reserves the right to withdraw, cancel or modify the
offer made hereby without notice. The Company, or the Agents which solicit any
offer, may reject such offer in whole or in part. See 'Plan of Distribution'.
---------------------------
The date of this Prospectus Supplement is May , 1998.
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SUPPLEMENT AND THE ACCOMPANYING PROSPECTUS SHALL NOT
CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY NOR SHALL
THERE BE ANY SALE OF THESE SECURITIES IN ANY STATE IN WHICH SUCH OFFER,
SOLICITATION, OR SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION
UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE>
<PAGE>
IN CONNECTION WITH THIS OFFERING, THE AGENTS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE NOTES OFFERED
HEREBY AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET.
SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME. FOR A
DESCRIPTION OF THESE ACTIVITIES, SEE 'PLAN OF DISTRIBUTION'.
IMPORTANT CURRENCY EXCHANGE INFORMATION
Purchasers are required to pay for the Notes in the Specified Currency, and
payments of principal of, premium, if any, and any interest on, such Notes will
be made in the Specified Currency, unless otherwise provided in the applicable
Pricing Supplement. Currently, there are limited facilities in the United States
for the conversion of U.S. dollars into foreign currencies or currency units,
and vice versa, and few banks offer non-U.S. dollar denominated checking or
savings account facilities in the United States. However, if requested by a
prospective purchaser of Notes denominated in a Specified Currency other than
U.S. dollars, the Agent soliciting the offer to purchase will arrange for the
conversion of U.S. dollars into such Specified Currency to enable the purchaser
to pay for such Notes. Such request must be made on or before the third Business
Day (as defined below) preceding the date of delivery of the Notes, or by such
other date as determined by such Agent. Each such conversion will be made by the
relevant Agent on such terms and subject to such conditions, limitations and
charges as such Agent may from time to time establish in accordance with its
regular foreign exchange practice. All costs of exchange will be borne by
purchasers of the Notes.
References herein to 'U.S. dollars' or 'U.S. $' or '$' are to the currency
of the United States of America.
DESCRIPTION OF MEDIUM-TERM NOTES, SERIES F
The information herein concerning the Notes should be read in conjunction
with the statements under 'Description of the Debt Securities' in the Prospectus
dated May , 1998. The following description of the Notes will apply unless
otherwise specified in the applicable Pricing Supplement.
GENERAL
The Notes are to be issued under Registration Statement No. 333-48415 (the
'Registration Statement'), pursuant to which the Company has registered debt
securities, warrants to purchase debt securities, currency warrants, index
warrants and interest rate warrants having an aggregate purchase price of
$5,000,000,000 (or the equivalent thereof in other currencies or currency
units). The Medium-Term Notes, Series F, constitute a single series and are to
be issued under an Indenture dated as of April 1, 1998, as amended (the
'Indenture'), between the Company and The Chase Manhattan Bank, as trustee (the
'Trustee'). Under this Prospectus Supplement, Notes may be issued with an
aggregate offering price of up to U.S. $5,000,000,000 (or the equivalent thereof
in other currencies or currency units), as such amount may be reduced by any
Other Securities issued by the Company pursuant to the Registration Statement
(see 'Plan of Distribution').
The Notes will be offered on a continuous basis. The Notes will mature on
any day nine months or more from the date of issue, as selected by the purchaser
and agreed to by the Company and specified in the applicable Pricing Supplement.
'Business Day' means any day, other than a Saturday or Sunday, that is neither a
legal holiday nor a day on which banking institutions are authorized or required
by law or regulation (including any executive order) to close in The City of New
York and (i) with respect to Notes denominated in a Specified Currency other
than U.S. dollars or Euros (as defined below), in the Principal Financial Center
(as defined below) of the country of the Specified Currency or (ii) with respect
to Notes denominated in Euros, in Brussels, Belgium or (iii) with respect to
LIBOR Notes (as defined below), that is also a London Banking Day. 'London
Banking Day' means any day on which dealings in deposits in the Index Currency
(as defined below) are transacted in the London interbank market. 'Principal
Financial Center' means the principal financial center of such country, which is
generally the capital city of the country of the Specified Currency, except that
with respect to U.S.
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dollars and Deutsche marks, the Principal Financial Center shall be The City of
New York and Frankfurt, respectively.
A Note may be issued as a zero coupon Note or at a price which is at a
substantial discount from its principal amount (a 'Discount Note'), in which
event such Note will provide that upon redemption or repayment prior to maturity
or acceleration of maturity thereof an amount less than the principal amount
thereof shall become due and payable. If a bankruptcy proceeding is commenced in
respect of the Company, the claim of the holders of Discount Notes may be
limited under section 502(b) of Title 11 of the United States Code to the
initial public offering price of such Notes, plus that portion of the original
issue discount that is amortized from the date of issue to the commencement of
the bankruptcy proceeding plus accrued interest. Accordingly, the holders of
Discount Notes under such circumstances may receive a lesser amount than they
would be entitled to under the express terms of such Notes.
Notwithstanding anything in the Prospectus Supplement to the contrary,
unless otherwise specified in the applicable Pricing Supplement, if a Note is a
Discount Note, the amount payable on such Note in the event of redemption or
repayment prior to its maturity shall be the Amortized Face Amount of such Note
as of the date of redemption or the date of repayment, as the case may be. The
'Amortized Face Amount' of a Discount Note shall be the amount equal to (i) the
issue price set forth in the applicable Pricing Supplement plus (ii) the portion
of the difference between the issue price and the principal amount of such Note
that has accrued at the yield to maturity set forth in the Pricing Supplement
(computed in accordance with generally accepted United States bond yield
computation principles) to such date of redemption or repayment, but in no event
shall the Amortized Face Amount of a Discount Note exceed its principal amount.
The Pricing Supplement relating to each Note will describe the following
terms: (1) the Specified Currency (and, if such Specified Currency is other than
U.S. dollars, certain other terms relating to such Note); (2) whether such Note
is a Fixed Rate Note, an Amortizing Note, or a Floating Rate Note; (3) whether
such Note is an Original Issue Discount Note; (4) whether such Note is an
Indexed Note and, if so, the special terms thereof; (5) if other than 100%, the
price (generally expressed as a percentage of the aggregate principal amount
thereof) at which such Note will be issued; (6) the date on which such Note will
be issued; (7) the date on which such Note will mature; (8) if such Note is a
Fixed Rate Note, the rate per annum at which such Note will bear interest; (9)
if such Note is a Floating Rate Note, the Base Rate, the Initial Interest Rate,
the Interest Reset Dates, the Interest Payment Dates, the Index Maturity, the
Maximum and Minimum Interest Rates, if any, and the Spread or Spread Multiplier,
if any (all as defined below), and any other terms relating to the method of
calculating interest on such Note; (10) if such Note is an Amortizing Note,
whether payments of principal thereof and interest thereon will be made
quarterly or semiannually, and the repayment information in respect thereof;
(11) the terms of redemption at the option of the Company, repayment at the
option of the holder, or amortization provisions, if any; and (12) any other
terms of such Note not inconsistent with the provisions of the Indenture.
Notes will be issued in fully registered form only. Each Note to be issued
will initially be represented by either a global security (a 'Book-Entry Note')
registered in the name of a nominee of The Depository Trust Company, as
depositary (the 'Depositary'), or a certificate issued in definitive form (a
'Certificated Note'). Except as set forth under 'Book-Entry System' below,
Book-Entry Notes will not be issuable as Certificated Notes. Unless otherwise
specified in the applicable Pricing Supplement, Notes denominated in U.S.
dollars will be issued in denominations that are integral multiples of U.S.
$1,000 and Notes denominated in a Specified Currency other than U.S. dollars
will be issued in denominations of the Specified Currency approximately
equivalent to U.S. $1,000 based upon the noon buying rate in New York City for
cable transfers of such Specified Currency, as determined by the Federal Reserve
Bank of New York (or in the case of Euros, based upon the rate of exchange
determined by the Commission of the European Communities (or any successor
thereto) as published in the Official Journal of the European Communities, or
any successor publication), on the Business Day immediately preceding the trade
date for such Notes, rounded to the nearest integral multiple of 1,000 units of
such Specified Currency, or any amount in excess thereof which is an integral
multiple of 1,000 units of such Specified Currency.
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The Company has initially designated The Chase Manhattan Bank, acting
through its principal corporate trust office in New York, New York, as the
registrar and transfer agent for the Notes (the 'Registrar', which term includes
any additional or successor Registrar appointed by the Company), as the paying
agent for the Notes (the 'Paying Agent', which term includes any additional or
successor Paying Agent appointed by the Company), and as the authenticating
agent for the Notes (the 'Authenticating Agent', which term includes any
additional or successor Authenticating Agent appointed by the Company).
The Notes will constitute unsecured and unsubordinated indebtedness of the
Company and will rank on a parity with the Company's other unsecured and
unsubordinated indebtedness. Unless otherwise specified in the applicable
Pricing Supplement, the Notes are not subject to redemption at the option of the
Company or repayment at the option of the holder prior to maturity. The Notes
will not be subject to any sinking fund, except to the extent otherwise provided
in the applicable Pricing Supplement.
In the case of Notes denominated in, and with respect to which principal,
premium, if any, and interest is payable in, U.S. dollars, principal, premium,
if any, and interest will be payable, and the Notes will be transferable, at the
office of the Paying Agent, The Chase Manhattan Bank, 450 West 33rd Street, New
York, New York, or at such other place or places as may be designated pursuant
to the Indenture, provided that the Company, at its option, may pay interest
other than interest due at maturity by check mailed to registered holders
(which, in the case of Book-Entry Notes represented by a global security, will
be a nominee of the Depositary). Unless otherwise specified in the applicable
Pricing Supplement, interest on Notes (other than interest due at maturity)
payable in a Specified Currency other than U.S. dollars will be paid by mailing
a check or draft in the Specified Currency drawn on an account at a bank outside
of the United States. If any Notes are denominated in a Specified Currency other
than U.S. dollars or if the principal of, premium, if any, or interest on any
Notes is payable in a Specified Currency other than U.S. dollars, the applicable
Pricing Supplement will provide additional information pertaining to the terms
of such Notes and other matters of interest to the holders thereof. At the
maturity of any Note, the principal thereof, together with accrued interest
thereon, will be payable in immediately available funds upon surrender thereof
at the office of the Trustee at the above address or at such other place or
places as may be designated pursuant to the Indenture.
Interest rates and interest rate formulas are subject to change by the
Company, but no change will affect any Note theretofore issued or as to which an
offer to purchase has been accepted by the Company. Interest rates offered by
the Company with respect to the Notes may differ depending upon, among other
things, the aggregate principal amount of the Notes purchased in any single
transaction.
PAYMENT CURRENCY
If the principal of, premium, if any, or interest on, any Note is payable
in a Specified Currency other than U.S. dollars and such Specified Currency is
not available to the Company for making payments thereof due to the imposition
of exchange controls or other circumstances beyond the control of the Company,
the Company will be entitled to satisfy its obligations to holders of the Notes
by making such payments in U.S. dollars on the basis of the noon buying rate in
New York City for cable transfers of such Specified Currency as determined by
the Federal Reserve Bank of New York (the 'Market Exchange Rate') on the date of
such payment, or if such rate of exchange is not then available, on the basis of
the Market Exchange Rate as of the most recent Record Date (as defined below).
Any payment made under such circumstances in U.S. dollars where the required
payment is in a Specified Currency other than U.S. dollars will not constitute
an Event of Default under the Indenture.
Under the treaty establishing the European Economic and Monetary Union (the
'EMU'), it is provided that at or before January 1, 1999, and subject to the
fulfilment of certain conditions, a single currency (the 'Euro'), will become a
currency in its own right. The Euro may replace all or some of the currencies of
the 15 member states of the EMU (Austria, Belgium, Denmark, Finland, France,
Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain,
Sweden and the United Kingdom). If, pursuant to such treaty, all or some of the
currencies of the member states of the EMU are replaced by the Euro as a
currency in its own right, or by an alternative single European currency,
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the payment of principal, premium, if any, or interest on, the Notes denominated
in such currencies shall, unless otherwise specified in the applicable Pricing
Supplement, be effected in Euro or such alternative European currency in
conformity with legally applicable measures taken pursuant to, or by virtue of,
such treaty, and such currency so replaced shall not be deemed to be unavailable
to the Company for purposes of the immediately preceding paragraph.
PAYMENT OF PRINCIPAL AND INTEREST
Each Floating Rate Note will bear interest from the date of issue at the
rate per annum stated or the interest rate formula set forth therein and in the
applicable Pricing Supplement, until the principal thereof is paid or made
available for payment. Each Fixed Rate Note will bear interest from the date of
issue at the rate or rates per annum stated (calculated on the basis of a year
of twelve thirty-day months) therein and in the applicable Pricing Supplement,
until the principal thereof is paid or made available for payment. Interest, if
any, will be payable on each Interest Payment Date. Interest will be payable to
the person in whose name a Note is registered at the close of business on the
Record Date with respect to the Interest Payment Date (which, in the case of
Book-Entry Notes represented by a global security, will be a nominee of the
Depositary); provided, however, that interest payable at maturity (whether or
not the maturity date is an Interest Payment Date) will be payable to the person
to whom principal shall be payable. Interest on any Note (or, in the case of an
Amortizing Note, principal and interest) originally issued between a Record Date
and an Interest Payment Date will first be payable on the Interest Payment Date
following the next succeeding Record Date to the registered holder on such next
succeeding Record Date of such Note. Unless otherwise specified in the
applicable Pricing Supplement, the 'Record Date' with respect to any Interest
Payment Date shall be the date fifteen calendar days prior to such Interest
Payment Date, whether or not such date shall be a Business Day.
Unless otherwise specified in the applicable Pricing Supplement, interest
on Fixed Rate Notes (other than an Amortizing Note) will be payable on May 15
and November 15 of each year (except as provided above with respect to Notes
issued between a Record Date and an Interest Payment Date) and at maturity.
Unless otherwise specified in the applicable Pricing Supplement, payments of
principal and interest on each Amortizing Note will be made semi-annually each
May 15 and November 15, and at maturity. See also ' -- Amortizing Notes' below.
Except as provided below, unless otherwise specified in the applicable Pricing
Supplement, interest on Floating Rate Notes will be payable: (i) in the case of
Notes with a daily, weekly or monthly Interest Reset Date, on the third
Wednesday of each month or on the third Wednesday of February, May, August and
November, as specified in the applicable Pricing Supplement; (ii) in the case of
Notes with a quarterly Interest Reset Date, on the third Wednesday of February,
May, August and November; (iii) in the case of Notes with a semiannual Interest
Reset Date, on the third Wednesday of the two months specified in the applicable
Pricing Supplement; (iv) in the case of Notes with an annual Interest Reset
Date, on the third Wednesday of the month specified in the applicable Pricing
Supplement and (v) in each case, at maturity.
Each date on which interest is payable on a Note is referred to herein as
an 'Interest Payment Date'. Unless otherwise specified in the applicable Pricing
Supplement, interest payments on Notes shall be the amount of interest accrued
from, and including, the date of issue or the last date to which interest has
been paid to, but excluding, the next succeeding Interest Payment Date or
maturity date, as the case may be. If any Interest Payment Date or the maturity
date of a Fixed Rate Note would otherwise be a day that is not a Business Day,
the required payment of principal, premium, if any, and/or interest will be made
on the next succeeding Business Day as if made on the date such payment was due,
and no interest will accrue on such payment for the period from and after such
Interest Payment Date or the maturity date, as the case may be, to the date of
such payment on the next succeeding Business Day. If any Interest Payment Date
for any Floating Rate Note (other than the maturity date) would otherwise be a
day that is not a Business Day such Interest Payment Date will be postponed to
the next succeeding day that is a Business Day, except that in the case of a
LIBOR Note, if such Business Day falls in the next succeeding calendar month,
such Interest Payment Date will be the immediately preceding Business Day. If
the maturity date of a Floating Rate Note falls on a day that is not a Business
Day, the required payment of principal, premium, if any, and/or interest will be
made
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on the next succeeding Business Day as if made on the date such payment was due,
and no interest shall accrue on such payment for the period from and after the
maturity date to the date of such payment on the next succeeding Business Day.
Unless otherwise specified in the applicable Pricing Supplement, the
interest rate on each Floating Rate Note will be calculated by reference to a
specified interest rate (the 'Base Rate') (i) plus or minus the Spread, if any,
and/or (ii) multiplied by the Spread Multiplier, if any. The 'Spread' is the
number of basis points (one one-hundredth of a percentage point) specified in
the applicable Pricing Supplement as being applicable to the interest rate for
such Floating Rate Note, and the 'Spread Multiplier' is the percentage specified
in the applicable Pricing Supplement as being applicable to the interest rate
for such Floating Rate Note. The applicable Pricing Supplement will designate
one or more of the following Base Rates as applicable to each Floating Rate
Note: (a) the Commercial Paper Rate (a 'Commercial Paper Rate Note'), (b) the
Federal Funds Rate (a 'Federal Funds Rate Note'), (c) the Certificate of Deposit
Rate (a 'CD Rate Note'), (d) LIBOR (a 'LIBOR Note'), (e) the Treasury Rate (a
'Treasury Rate Note'), (f) the Prime Rate (a 'Prime Rate Note'), (g) the
Constant Maturity Treasury Rate (a 'CMT Rate Note') or (h) such other Base Rate
or interest rate formula as is set forth in such Pricing Supplement and in such
Floating Rate Note. The 'Index Maturity' for any Floating Rate Note is the
period of maturity of the instrument or obligation from which the Base Rate is
calculated and will be specified in the applicable Pricing Supplement.
As specified in the applicable Pricing Supplement, a Floating Rate Note may
also have either or both of the following: (i) a maximum limitation, or ceiling,
on the rate of interest that may accrue during any interest period (a 'Maximum
Interest Rate'); and (ii) a minimum limitation, or floor, on the rate of
interest that may accrue during any interest period (a 'Minimum Interest Rate').
In addition to any Maximum Interest Rate which may be applicable to any Floating
Rate Note, the interest rate on a Floating Rate Note will in no event be higher
than the maximum rate permitted by New York law, as the same may be modified by
United States law of general application.
The rate of interest on each Floating Rate Note will be reset daily,
weekly, monthly, quarterly, semi-annually or annually (such period being the
'Interest Reset Period' for such Note and the first date of each Interest Reset
Period, on which such interest rate becomes effective, being an 'Interest Reset
Date'), as specified in the applicable Pricing Supplement. Unless otherwise
specified in the Pricing Supplement, the Interest Reset Date will be, in the
case of Floating Rate Notes which reset daily, each Business Day; in the case of
Floating Rate Notes (other than Treasury Rate Notes) which reset weekly, the
Wednesday of each week; in the case of Treasury Rate Notes which reset weekly,
the Tuesday of each week (except as provided below); in the case of Floating
Rate Notes which reset monthly, the third Wednesday of each month; in the case
of Floating Rate Notes which reset quarterly, the third Wednesday of February,
May, August and November; in the case of Floating Rate Notes which reset
semiannually, the third Wednesday of two months of each year, as specified in
the applicable Pricing Supplement; and in the case of Floating Rate Notes which
reset annually, the third Wednesday of one month of each year, as specified in
the applicable Pricing Supplement; provided, however, that the interest rate in
effect from the date of issue to the first Interest Reset Date with respect to a
Floating Rate Note will be the Initial Interest Rate (as set forth in the
applicable Pricing Supplement). If any Interest Reset Date for any Floating Rate
Note is not a Business Day, such Interest Reset Date shall be postponed to the
next succeeding Business Day, except that in the case of a LIBOR Note, if such
Business Day is in the next succeeding calendar month, such Interest Reset Date
shall be the immediately preceding Business Day. Each adjusted rate shall be
applicable on and after the Interest Reset Date to which it relates, to, but not
including, the next succeeding Interest Rate Date or the maturity date or the
date of redemption, as the case may be.
Unless otherwise specified in the applicable Pricing Supplement, Fixed Rate
Notes will bear interest from the date of issue and will be calculated on the
basis of a year of twelve thirty-day months. With respect to a Floating Rate
Note, accrued interest shall be calculated by multiplying the principal amount
of such Floating Rate Note (or, in the case of an Indexed Note, unless otherwise
specified in the applicable Pricing Supplement, the Face Amount (as defined
below under 'Indexed Notes') of such Indexed Note) by an accrued interest
factor. Such accrued interest factor will be computed by adding
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the interest factors calculated for each day in the Interest Reset Period or
from the last date from which accrued interest is being calculated.
Unless otherwise specified in the applicable Pricing Supplement, the
interest factor for each such day is computed by dividing the interest rate
applicable to such day by 360, in the cases of Commercial Paper Rate Notes,
Federal Funds Rate Notes, CD Rate Notes, LIBOR Notes and Prime Rate Notes, or by
the actual number of days in the year, in the case of Treasury Rate Notes and
CMT Rate Notes. The interest rate applicable to any day that is an Interest
Reset Date is the applicable rate as reset on such date. The interest rate
applicable to any other day is the interest rate for the immediately preceding
Interest Reset Date (or, if none, the Initial Interest Rate, as described
below).
Unless otherwise provided in the applicable Pricing Supplement, The Chase
Manhattan Bank will be the calculation agent (the 'Calculation Agent') with
respect to any issue of Floating Rate Notes. Upon the request of the holder of
any Floating Rate Note, the Calculation Agent will provide the interest rate
then in effect and, if determined, the interest rate which will become effective
on the next Interest Reset Date with respect to such Floating Rate Note.
All percentages resulting from any calculation of the rate of interest on a
Floating Rate Note will be rounded, if necessary, to the nearest
one-hundred-thousandth of a percentage point (.0000001), with five
one-millionths of a percentage point rounded upward, and all dollar amounts used
in or resulting from such calculation on Floating Rate Notes will be rounded to
the nearest cent (with one-half cent rounded upward).
The interest rate in effect with respect to a Floating Rate Note from the
Issue Date to the first Interest Reset Date (the 'Initial Interest Rate') will
be specified in the applicable Pricing Supplement. The interest rate for each
subsequent Interest Reset Date will be determined by the Calculation Agent as
follows. Unless otherwise specified in the applicable Pricing Supplement, the
'Calculation Date' pertaining to any Commercial Paper Interest Determination
Date, Federal Funds Interest Determination Date, CD Interest Determination Date,
Treasury Rate Determination Date, Prime Rate Interest Determination Date and CMT
Rate Interest Determination Date (each as hereinafter defined) will be the
earlier of (i) the tenth calendar day after such date, or, if such tenth day is
not a Business Day, the next succeeding Business Day and (ii) the Business Day
preceding the applicable Interest Payment Date or date of maturity, as the case
may be.
COMMERCIAL PAPER RATE NOTES
Commercial Paper Rate Notes will bear interest at the interest rate
(calculated with reference to the Commercial Paper Rate and the Spread and/or
Spread Multiplier, if any) specified in the Commercial Paper Rate Notes and in
the applicable Pricing Supplement.
Unless otherwise specified in the applicable Pricing Supplement, the
'Commercial Paper Rate' for each Interest Reset Date will be determined on the
Calculation Date by the Calculation Agent as of the second Business Day prior to
such Interest Reset Date (a 'Commercial Paper Interest Determination Date') and
shall be the Money Market Yield (as defined below) on such Commercial Paper
Interest Determination Date of the rate for commercial paper having the Index
Maturity specified in the applicable Pricing Supplement, as such rate shall be
published by the Board of Governors of the Federal Reserve System in
'Statistical Release H.15(519), Selected Interest Rates', or any successor
publication ('H.15(519)'), under the heading 'Commercial Paper -- Financial'. In
the event that such rate is not published prior to 9:00 A.M., New York City
time, on the Calculation Date, then the Commercial Paper Rate shall be the Money
Market Yield on such Commercial Paper Interest Determination Date of the rate
for commercial paper of the specified Index Maturity as published by the Federal
Reserve Bank of New York in its daily statistical release 'Composite 3:30 P.M.
Quotations for U.S. Government Securities' ('Composite Quotations') under the
heading 'Commercial Paper'. If by 3:00 P.M., New York City time, on such
Calculation Date such rate is not yet published in either H.15(519) or Composite
Quotations, then the Commercial Paper Rate shall be the Money Market Yield of
the arithmetic mean (each as rounded to the nearest one-hundred-thousandth of a
percentage point) of the offered rates as of 11:00 A.M., New York City time, on
such Commercial Paper Interest Determination Date of three leading dealers of
commercial paper in The City of New York selected by
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the Calculation Agent for commercial paper of the specified Index Maturity,
placed for an industrial issuer whose bond rating is 'Aa', or the equivalent,
from a nationally recognized rating agency; provided, however, that if the
dealers selected as aforesaid by the Calculation Agent are not quoting offered
rates as mentioned in this sentence, the rate of interest determined as of such
Commercial Paper Interest Determination Date will be the rate of interest in
effect on such Commercial Paper Interest Determination Date.
'Money Market Yield' shall be a yield (expressed as a percentage rounded to
the nearest one hundred-thousandth of a percentage point) calculated in
accordance with the following formula:
Money Market Yield = D X 360 X 100
_____________
360 - (D X M)
where 'D' refers to the applicable per annum rate for commercial paper quoted on
a bank discount basis and expressed as a decimal, and 'M' refers to the actual
number of days in the period for which interest is being calculated.
FEDERAL FUNDS RATE NOTES
Federal Funds Rate Notes will bear interest at the interest rate
(calculated with reference to the Federal Funds Rate and the Spread and/or
Spread Multiplier, if any) specified in the Federal Funds Rate Notes and in the
applicable Pricing Supplement.
Unless otherwise specified in the applicable Pricing Supplement, the
'Federal Funds Rate' for each Interest Reset Date will be determined on the
Calculation Date by the Calculation Agent as of the second Business Day prior to
such Interest Reset Date (a 'Federal Funds Interest Determination Date') and
shall be the effective rate for Federal Funds on such Federal Funds Interest
Determination Date as published in H.15(519) under the heading 'Federal Funds
(Effective)' or, if not so published by 9:00 A.M., New York City time, on the
Calculation Date pertaining to such Federal Funds Interest Determination Date,
the Federal Funds Rate will be the interest rate on such Federal Funds Interest
Determination Date as published in Composite Quotations under the heading
'Federal Funds/Effective Rate'. If such rate is not yet published by 3:00 P.M.,
New York City time, on the Calculation Date pertaining to such Federal Funds
Interest Determination Date, the Federal Funds Rate for such Federal Funds
Interest Determination Date will be calculated by the Calculation Agent and will
be the arithmetic mean of the rates for the last transaction in overnight United
States dollar federal funds arranged by three leading brokers of federal funds
transactions in The City of New York (which may include an Agent or its
affiliates) selected by the Calculation Agent prior to 9:00 A.M., New York City
time, on such Federal Funds Interest Determination Date; provided, however, that
if the brokers so selected by the Calculation Agent are not quoting as mentioned
in this sentence, the rate of interest determined as of such Federal Funds
Interest Determination Date will be the rate of interest in effect on such
Federal Funds Interest Determination Date.
CD RATE NOTES
CD Rate Notes will bear interest at the interest rates (calculated with
reference to the CD Rate and the Spread and/or Spread Multiplier, if any)
specified in the CD Rate Notes and in the applicable Pricing Supplement.
Unless otherwise specified in the applicable Pricing Supplement, the 'CD
Rate' for each Interest Reset Date will be determined on the Calculation Date by
the Calculation Agent as of the second Business Day prior to the Interest Reset
Date (a 'CD Interest Determination Date') and shall be the rate for negotiable
certificates of deposit having the Index Maturity designated in the applicable
Pricing Supplement on such CD Interest Determination Date, as such rate is
published in H.15(519) under the heading 'CDs (Secondary Market)'. If such rate
is not so published by 9:00 A.M., New York City time, on the Calculation Date
pertaining to such CD Interest Determination Date, the CD Rate will be the rate
on such CD Interest Determination Date for negotiable certificates of deposit of
the Index Maturity specified in the applicable Pricing Supplement as published
in Composite Quotations under the heading 'Certificates of Deposit'. If by 3:00
P.M., New York City time, on such Calculation Date such rate is not yet
published in Composite Quotations, the CD Rate for such CD Interest
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Determination Date will be calculated by the Calculation Agent and will be the
arithmetic mean of the secondary market offered rates as of 10:00 A.M., New York
City time, on such CD Interest Determination Date of three leading nonbank
dealers in negotiable U.S. dollar certificates of deposit in The City of New
York selected by the Calculation Agent for negotiable certificates of deposit of
major United States money center banks (in the market for negotiable
certificates of deposit) with a remaining maturity closest to the Index Maturity
specified in the applicable Pricing Supplement in the denomination of
$5,000,000. However, if such dealers are not so quoting such rates, the rate of
interest determined as of such CD Interest Determination Date will be the rate
of interest in effect on such CD Interest Determination Date.
LIBOR NOTES
LIBOR Notes will bear interest at the interest rate (calculated with
reference to LIBOR and the Spread and/or Spread Multiplier, if any) specified in
the LIBOR Notes and in the applicable Pricing Supplement.
Unless otherwise specified in the applicable Pricing Supplement, 'LIBOR'
for each Interest Reset Date will be determined by the Calculation Agent as
follows:
(i) With respect to the second London Banking Day prior to such
Interest Reset Date (a 'LIBOR Determination Date'), LIBOR will be either:
(a) if 'LIBOR Reuters' is specified as the reporting service in the
applicable Pricing Supplement, the arithmetic mean of the offered rates
(unless the specified Designated LIBOR Page (as defined below) by its terms
provides only for a single rate, in which case such single rate shall be
used) for deposits in the Index Currency (as defined below) having the
Index Maturity designated in the applicable Pricing Supplement, commencing
on such Interest Reset Date, that appear on the Designated LIBOR Page as of
11:00 A.M., London time, on that LIBOR Determination Date, if at least two
such offered rates appear (unless, as aforesaid, only a single rate is
required) on such Designated LIBOR Page, or (b) if 'LIBOR Telerate' is
specified as the reporting service in the applicable Pricing Supplement,
the rate for deposits in the Index Currency having the Index Maturity
designated in the applicable Pricing Supplement, commencing on such
Interest Reset Date, that appears on the Designated LIBOR Page as of 11:00
A.M., London time, on that LIBOR Determination Date. If fewer than two
offered rates appear, or no rate appears, as applicable, LIBOR in respect
of the related LIBOR Determination Date will be determined as if the
parties had specified the rate described in clause (ii) below.
(ii) With respect to a LIBOR Determination Date on which fewer than
two offered rates appear (unless, as aforesaid, only a single rate is
required), or no rate appears, as the case may be, on the applicable
Designated LIBOR Page as specified in clause (i) above, the Calculation
Agent will request the principal London offices of each of four major
reference banks in the London interbank market, as selected by the
Calculation Agent, to provide the Calculation Agent with its offered
quotation for deposits in the Index Currency for the period of the Index
Maturity designated in the applicable Pricing Supplement, commencing on
such Interest Reset Date, to prime banks in the London interbank market at
approximately 11:00 A.M., London time, on such LIBOR Determination Date and
in a principal amount of not less than $1,000,000 (or the equivalent in the
Index Currency, if the Index Currency is not the U.S. dollar) that is
representative for a single transaction in such Index Currency in such
market at such time. If at least two such quotations are provided, LIBOR
determined on such LIBOR Determination Date will be the arithmetic mean of
such quotations. If fewer than two quotations are provided, LIBOR
determined on such LIBOR Determination Date will be the arithmetic mean of
the rates quoted at approximately 11:00 A.M. (or such other time specified
in the applicable Pricing Supplement), in the applicable Principal
Financial Center for the country of the Index Currency on such LIBOR
Determination Date, by three major banks in such Principal Financial Center
selected by the Calculation Agent for loans in the Index Currency to
leading European banks, having the Index Maturity designated in the
applicable Pricing Supplement and in a principal amount of not less than
$1,000,000 (or the equivalent in the Index Currency, if the Index Currency
is not the U.S. dollar) that is representative for a single transaction in
such Index Currency in such market at such time;
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provided, however, that if the banks so selected by the Calculation Agent
are not quoting as mentioned in this sentence, the rate of interest
determined on such LIBOR Determination Date will be the rate of interest
otherwise in effect on such LIBOR Determination Date.
'Index Currency' means the currency (including composite currencies)
specified in the applicable Pricing Supplement as the currency for which LIBOR
shall be calculated. If no such currency is specified in the applicable Pricing
Supplement, the Index Currency shall be U.S. dollars.
'Designated LIBOR Page' means either (a) if 'LIBOR Reuters' is designated
in the applicable Pricing Supplement, the display designated as page 'LIBO' with
respect to the applicable Index Currency on the Reuters Monitor Money Rates
Service (or such other page as may replace page 'LIBO' on such service for the
purpose of displaying the London interbank rates of major banks for the
applicable Index Currency), or (b) if 'LIBOR Telerate' is designated in the
applicable Pricing Supplement, the display designated as page '3750' with
respect to the applicable Index Currency on the Dow Jones Telerate Service (or
such other page as may replace page '3750' on such service or such other service
as may be nominated by the British Bankers' Association for the purpose of
displaying the London interbank rates of major banks for the applicable Index
Currency). If neither LIBOR Reuters nor LIBOR Telerate is specified in the
applicable Pricing Supplement, LIBOR for the applicable Index Currency will be
determined as if LIBOR Telerate (and, if the U.S. dollar is the Index Currency,
Page 3750) had been specified.
TREASURY RATE NOTES
Treasury Rate Notes will bear interest at the interest rate (calculated
with reference to the Treasury Rate and the Spread and/or Spread Multiplier, if
any) specified in the Treasury Rate Notes and in the applicable Pricing
Supplement.
Unless otherwise specified in the applicable Pricing Supplement, the
'Treasury Rate' for each Interest Reset Date will be determined on the
Calculation Date by the Calculation Agent as of the Treasury Rate Determination
Date (as defined below) pertaining to such Interest Reset Date and shall be the
rate for the auction held on such Treasury Rate Determination Date of direct
obligations of the United States ('Treasury bills') having the Index Maturity
designated in the applicable Pricing Supplement, as published in H.15(519) under
the heading 'U.S. Government Securities-Treasury bills-auction average
(investment)', or, if not so published by 9:00 A.M., New York City time, on the
Calculation Date pertaining to such Treasury Rate Determination Date, the
auction average rate (expressed as a bond equivalent, on the basis of a year of
365 or 366 days, as applicable, and applied on a daily basis) as otherwise
announced by the United States Department of the Treasury. In the event that the
results of the auction of Treasury bills having the Index Maturity designated in
the applicable Pricing Supplement are not published or reported as provided
above by 3:00 P.M., New York City time, on such Calculation Date or if no such
auction is held on such Treasury Rate Determination Date, then the Treasury Rate
shall be calculated by the Calculation Agent and shall be a yield to maturity
(expressed as a bond equivalent, on the basis of a year of 365 or 366 days, as
applicable, and applied on a daily basis) of the arithmetic mean of the
secondary market bid rates, as of approximately 3:30 P.M., New York City time,
on such Treasury Rate Determination Date, of three leading primary United States
government securities dealers selected by the Calculation Agent for the issue of
Treasury bills with a remaining maturity closest to the Index Maturity
designated in the applicable Pricing Supplement; provided, however, that if the
dealers selected as aforesaid by the Calculation Agent are not quoting bid rates
as mentioned in this sentence, the rate of interest for such Interest Reset Date
will be the rate of interest in effect on such Interest Reset Date.
The 'Treasury Rate Determination Date' pertaining to an Interest Reset Date
will be the day of the week in which such Interest Reset Date falls on which
Treasury bills would normally be auctioned. Treasury bills are normally sold at
auction on Monday of each week, unless that day is a legal holiday, in which
case the auction is normally held on the following Tuesday, except that such
auction may be held on the preceding Friday. If, as the result of a legal
holiday, an auction is so held on the preceding Friday, such Friday will be the
Treasury Rate Determination Date pertaining to the Interest Reset Date occurring
in the next succeeding week. If an auction date shall fall on any day that would
otherwise be
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an Interest Reset Date for a Treasury Rate Note, then such Interest Reset Date
shall instead be the Business Day immediately following such auction date.
PRIME RATE NOTES
Prime Rate Notes will bear interest at the interest rate (calculated with
reference to the Prime Rate and the Spread and/or Spread Multiplier, if any)
specified in the Prime Rate Notes and in the applicable Pricing Supplement.
Unless otherwise specified in the applicable Pricing Supplement, the 'Prime
Rate' for each Interest Reset Date will be determined on the Calculation Date by
the Calculation Agent as of the second Business Day prior to such Interest Reset
Date (a 'Prime Rate Interest Determination Date') and shall be the rate on such
date as published in H.15(519) under the heading 'Bank Prime Loan'. If such rate
is not published by 9:00 A.M., New York City time, on the Calculation Date
pertaining to such Prime Rate Interest Determination Date, the Prime Rate will
be determined by the Calculation Agent and will be the arithmetic mean of the
rates of interest publicly announced by each bank named on the 'Reuters Screen
USPRIME1' (as defined below) as such bank's prime rate or base lending rate as
in effect for such Prime Rate Interest Determination Date. 'Reuters Screen
USPRIME1' means the display designated as page 'USPRIME1' on the Reuters Monitor
Money Rates Service (such term to include such other page as may replace the
page USPRIME1 on that Service for the purpose of displaying prime rates or base
lending rates of major United States banks). If fewer than four such rates
appear on the Reuters Screen USPRIME1 for such Prime Rate Interest Determination
Date, the Prime Rate will be determined by the Calculation Agent and will be the
arithmetic mean of the prime rates quoted on the basis of the actual number of
days elapsed divided by 360 as of the close of business on such Prime Rate
Interest Determination Date by at least two major money center banks in The City
of New York selected by the Calculation Agent from a list of at least three such
banks approved by the Company. If fewer than two such rates are quoted as
aforesaid the Prime Rate will be calculated by the Calculation Agent and will be
determined as the arithmetic mean of the prime rates furnished in The City of
New York by an appropriate number (in the judgment of the Calculation Agent) of
substitute banks or trust companies organized and doing business under the laws
of the United States, or any State thereof, in each case having total equity
capital of at least U.S.$500,000,000 and being subject to supervision or
examination by federal or state authority, selected by the Calculation Agent
from a list approved by the Company to provide such rate or rates; provided that
if the banks or trust companies selected as aforesaid by the Calculation Agent
from a list approved by the Company are not quoting as mentioned in this
sentence, the rate of interest determined as of such Prime Rate Interest
Determination Date will be the rate of interest in effect on such Prime Rate
Interest Determination Date.
CMT RATE NOTES
CMT Rate Notes will bear interest at the rates (calculated with reference
to the Constant Maturity Treasury Rate and the Spread and/or Spread Multiplier,
if any) specified in such CMT Rate Notes and in the applicable Pricing
Supplement.
Unless otherwise specified in the applicable Pricing Supplement, the 'CMT
Rate' for each Interest Reset Date will be determined on the Calculation Date by
the Calculation Agent as of the related CMT Rate Interest Determination Date (as
hereinafter defined) and shall be the rate displayed on the Designated CMT
Telerate Page (as hereinafter defined) under the caption '. . . Treasury
Constant Maturities . . . Federal Reserve Board Release H.15 . . . Mondays
Approximately 3:45 P.M.,' under the column for the Designated CMT Maturity Index
(as hereinafter defined) for (i) if the Designated CMT Telerate Page is 7055,
such CMT Rate Interest Determination Date and (ii) if the Designated CMT
Telerate Page is 7052, the week, or the month, as set forth in the Pricing
Supplement, ended immediately preceding the week in which the related CMT Rate
Interest Determination Date occurs. If such rate is no longer displayed on the
relevant page, or if not displayed by 3:00 P.M., New York City time, on the
related Calculation Date, then the CMT Rate for such CMT Rate Interest
Determination Date will be such Treasury Constant Maturity rate for the
Designated CMT Maturity Index as published in H.15(519) for such date. If such
rate is no longer published, or if not published by 3:00
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P.M., New York City time, on the related Calculation Date, then the CMT Rate for
such CMT Rate Interest Determination Date will be such Treasury Constant
Maturity rate for the Designated CMT Maturity Index (or other United States
Treasury rate for the Designated CMT Maturity Index) for such CMT Rate Interest
Determination Date as may then be published by either the Board of Governors of
the Federal Reserve System or the United States Department of the Treasury that
the Calculation Agent determines to be comparable to the rate formerly displayed
on the Designated CMT Telerate Page and published in H.15(519). If such
information is not provided by 3:00 P.M., New York City time, on the related
Calculation Date, then the CMT Rate for the CMT Rate Interest Determination Date
will be calculated by the Calculation Agent and will be a yield to maturity,
based on the arithmetic mean of the secondary market offer side prices as of
approximately 3:30 P.M. (New York City time) on the CMT Rate Interest
Determination Date reported, according to their written records, by three
leading primary United States government securities dealers (each, a 'Reference
Dealer') in The City of New York selected by the Calculation Agent (from five
such Reference Dealers selected by the Calculation Agent and eliminating the
highest quotation (or, in the event of equality, one of the highest) and the
lowest quotation (or, in the event of equality, one of the lowest)), for the
most recently issued direct noncallable fixed rate obligations of the United
States ('Treasury Notes') with an original maturity of approximately the
Designated CMT Maturity Index and a remaining term to maturity of not less than
such Designated CMT Maturity Index minus one year. If the Calculation Agent
cannot obtain three such Treasury Note quotations, the CMT Rate for such CMT
Rate Interest Determination Date will be calculated by the Calculation Agent and
will be a yield to maturity based on the arithmetic mean of the secondary market
offer side prices as of approximately 3:30 P.M. (New York City time) on the CMT
Rate Interest Determination Date of three Reference Dealers in The City of New
York (from five such Reference Dealers selected by the Calculation Agent and
eliminating the highest quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event of equality, one of the
lowest)), for Treasury Notes with an original maturity of the number of years
that is the next highest to the Designated CMT Maturity Index and a remaining
term to maturity closest to the Designated CMT Maturity Index and in an amount
of at least $100 million. If three or four (and not five) of such Reference
Dealers are quoting as described above, then the CMT Rate will be based on the
arithmetic mean of the offer prices obtained and neither the highest nor lowest
of such quotes will be eliminated; provided however, that if fewer than three
Reference Dealers selected by the Calculation Agent are quoting as described
herein, the rate of interest determined as of such CMT Rate Interest
Determination Date will be the rate of interest in effect on such CMT Rate
Interest Determination Date. If two Treasury Notes with an original maturity as
described in the second preceding sentence have remaining terms to maturity
equally close to the Designated CMT Maturity Index, the quotes for the CMT Rate
Note with the shorter remaining term to maturity will be used.
'Designated CMT Telerate Page' means the display on the Dow Jones Telerate
Service on the page designated in the applicable Pricing Supplement (or any
other page as may replace such page on that service for the purpose of
displaying Treasury Constant Maturities as reported in H.15(519)), for the
purpose of displaying Treasury Constant Maturities as reported in H.15(519). If
no such page is specified in the applicable Pricing Supplement, the Designated
CMT Telerate Page shall be 7052, for the most recent week.
'Designated CMT Maturity Index' means the original period to maturity of
the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20, or 30 years)
specified in the applicable Pricing Supplement with respect to which the CMT
Rate will be calculated. If no such maturity is specified in the applicable
Pricing Supplement, the Designated CMT Maturity Index shall be 2 years.
The 'CMT Rate Interest Determination Date' pertaining to an Interest Reset
Date for CMT Rate Notes will be the second Business Day prior to such Interest
Reset Date.
AMORTIZING NOTES
The Company may from time to time offer Notes for which payments of
principal and interest are made in installments over the life of the Note
('Amortizing Notes'). Interest on each Amortizing Note will be computed as set
forth in the applicable Pricing Supplement or in the Book-Entry Note
representing such Amortizing Note. Unless otherwise provided in such Pricing
Supplement or in such
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Book-Entry Note, payments with respect to Amortizing Notes will be applied first
to interest due and payable thereon and then to the reduction of the unpaid
principal amount thereof. A table setting forth repayment information with
respect to each Amortizing Note will be provided to the original purchaser of
such Note and will be available upon request to the subsequent Holders thereof.
INDEXED NOTES
The Company may from time to time offer Indexed Notes the principal amount
payable at maturity (the 'Indexed Principal Amount') of which, or premium or
interest on which, is determined by reference to a measure (the 'Index') which
will be related to (i) the rate of exchange between the Specified Currency for
such Note and the other currency or composite currency (the 'Indexed Currency')
specified in the applicable Pricing Supplement (such Indexed Notes, 'Currency
Indexed Notes'); (ii) the difference in the price of a specified commodity (the
'Indexed Commodity') on specified dates; (iii) the difference in the level of a
specified stock index (the 'Stock Index'), which may be based on U.S. or foreign
stocks, on specified dates; or (iv) such other objective price or economic
measures as are described in the applicable Pricing Supplement. The manner of
determining the Indexed Principal Amount of, and interest and premium, if any,
on an Indexed Note, and historical and other information concerning the Indexed
Currency, Indexed Commodity, Stock Index or other price or economic measures
used in such determination, will be set forth in the applicable Pricing
Supplement, together with information concerning tax consequences to the holders
of such Indexed Notes.
If the determination of the Indexed Principal Amount of, and interest and
premium, if any, on an Indexed Note is based on an Index calculated or announced
by a third party and such third party either suspends the calculation or
announcement of such Index or changes the basis upon which such Index is
calculated (other than changes consistent with policies in effect at the time
such Indexed Note was issued and permitted changes described in the applicable
Pricing Supplement), then such Index shall be calculated for purposes of such
Indexed Note by an independent calculation agent named in the applicable Pricing
Supplement on the same basis, and subject to the same conditions and controls,
as applied to the original third party. If for any reason such Index cannot be
calculated on the same basis and subject to the same conditions and controls as
applied to the original third party, then the Indexed Principal Amount of such
Indexed Note shall be calculated in the manner set forth in the applicable
Pricing Supplement. Any determination of such independent calculation agent
shall in the absence of manifest error be binding on all parties.
Unless otherwise specified in the applicable Pricing Supplement, interest
on an Indexed Note will be payable by the Company based on the amount designated
in the applicable Pricing Supplement as the 'Face Amount' of such Indexed Note.
The applicable Pricing Supplement will describe whether the principal amount of
the related Indexed Note that would be payable upon redemption or repayment
prior to maturity will be the Face Amount of such Indexed Note, the Indexed
Principal Amount of such Indexed Note at the time of redemption or repayment, or
another amount described in such Pricing Supplement.
REDEMPTION AND REPURCHASE
Unless otherwise specified in the Pricing Supplement relating to a Note,
such Note cannot be redeemed prior to maturity. If any Note will be redeemable
at the option of the Company, the applicable Pricing Supplement will indicate
the date or dates for redemption prior to such maturity and the price or prices
payable upon such redemption, together with accrued interest to the date of
redemption. The Company may redeem any of the Notes that are redeemable and
remain outstanding either in whole or from time to time in part, upon not less
than 30 nor more than 60 days' notice. If less than all Notes with like tenor
and terms are to be redeemed, the Notes to be redeemed shall be selected by the
Trustee by such method as the Trustee shall deem fair and appropriate. Unless
otherwise indicated in the Pricing Supplement relating to each Note, the Notes
will not be subject to any sinking fund.
The Company may at any time purchase Notes at any price in the open market
or otherwise. Notes so purchased by the Company may, at its discretion, be held,
resold or surrendered to the Trustee for cancellation.
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REPAYMENT AT OPTION OF THE HOLDER
Unless otherwise specified in the Pricing Supplement relating to a Note,
the holder of such Note will not have the right to require the Company to repay
such Note prior to maturity. If any Note will be repayable at the option of the
holder the applicable Pricing Supplement will indicate the date or dates for
repayment prior to maturity, and the price or prices, together with accrued
interest to the date of repayment, payable upon such repayment.
In order for any repayment option applicable to a Note to be exercised, the
Trustee must receive at least 30 days but no more than 45 days prior to the
repayment date (i) the Note with the form entitled 'Option to Elect Repayment'
on the reverse of the Note duly completed or (ii) a telegram, telex, facsimile
transmission or a letter from a member of a national securities exchange or the
National Association of Securities Dealers, Inc. or a commercial bank or trust
company in the United States setting forth the name of the holder of the Note,
the principal amount of the Note, the principal amount of the Note to be repaid,
the certificate number or a description of the tenor and terms of the Note, and
containing a statement that the option to elect repayment is being exercised
thereby and a guarantee that the Note to be repaid with the form entitled
'Option to Elect Repayment' on the reverse of the Note duly completed will be
received by the Trustee not later than three Business Days after the date of
such telegram, telex, facsimile transmission or letter and such Note and form
duly completed are received by the Trustee by such third Business Day. A
repayment option may be exercised by the holder of a Note for less than the
entire principal amount of the Note, provided that the principal amount of the
Note remaining outstanding after repayment is an authorized denomination.
BOOK-ENTRY SYSTEM
Upon issuance, all Book-Entry Notes having the same Issue Date, maturity
date, redemption or repayment provisions, interest payment dates and, in the
case of Fixed Rate Notes, interest rate and amortization schedule or, in the
case of Floating Rate Notes, Base Rate, Initial Interest Rate, Interest Payment
Dates, Index Maturity, Interest Reset Dates, Spread or Spread Multiplier, if
any, Minimum Interest Rate, if any, and Maximum Interest Rate, if any, will be
represented by a single global security (a 'Global Security'). Each Global
Security representing Book-Entry Notes will be deposited with, or on behalf of,
the Depositary and registered in the name of a nominee of the Depositary. Except
under circumstances described below, Book-Entry Notes will not be exchangeable
for Certificated Notes and will not otherwise be issuable in definitive form.
The Depositary has advised the Company that it is a limited-purpose trust
company organized under the New York Banking Law, a 'banking organization'
within the meaning of the New York Banking Law, a member of the Federal Reserve
System, a 'clearing corporation' within the meaning of the New York Uniform
Commercial Code, and a 'clearing agency' registered pursuant to the provisions
of Section 17A of the Securities Exchange Act of 1934, as amended. The
Depositary holds securities that its participants ('Participants') deposit with
the Depositary. The Depositary also facilitates the settlement among
Participants of securities transactions, such as transfers and pledges, in
deposited securities through electronic computerized book-entry changes in
Participants' accounts, thereby eliminating the need for physical movement of
securities. Direct Participants ('Direct Participants') include securities
brokers and dealers, banks, trust companies, clearing corporations, and certain
other organizations. The Depositary is owned by a number of its Direct
Participants and by the New York Stock Exchange, Inc., the American Stock
Exchange, Inc., and the National Association of Security Dealers (the 'NASD').
Access to the Depositary's system is also available to others such as securities
brokers and dealers, banks and trust companies that clear through or maintain a
custodial relationship with a Direct Participant, either directly or indirectly.
The rules applicable to the Depositary and its Participants are on file with the
Securities and Exchange Commission.
Upon the issuance of a Global Security, the Depositary will credit on its
book-entry registration and transfer system its Participants' accounts with
their respective principal amounts of the Notes represented by such Global
Security. Such accounts shall be designated by the Agent with respect to such
Notes or by the Company if such Notes are offered and sold directly by the
Company. Ownership of beneficial interests in a Global Security will be limited
to Participants or persons that hold interests through Participants. Ownership
of beneficial interests in such Global Security will be shown on, and
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the transfer of that ownership will be effected only through, records maintained
by the Depositary or its nominee (with respect to interests of Participants) and
on the records of Participants (with respect to interests of persons other than
Participants). The laws of some states may require that certain purchasers of
securities take physical delivery of such securities in definitive form. Such
limits and laws may impair the ability of a purchaser of an interest in a
Book-Entry Note to transfer such interest.
So long as the Depositary or its nominee is the registered owner of such
Global Security, the Depositary or such nominee, as the case may be, will be
considered the sole owner or holder of the Notes represented by such Global
Security for all purposes under the Indenture. Except as provided below or as
the Company may otherwise agree in its sole discretion, owners of beneficial
interests in a Global Security will not be entitled to have Notes represented by
such Global Security registered in their names, will not receive or be entitled
to receive physical delivery of Notes in definitive form and will not be
considered the owners or holders thereof under the Indenture.
Principal, premium, if any, and interest payments on Notes registered in
the name of the Depositary or its nominee will be made to the Depositary or its
nominee, as the case may be, as the registered owner of the Global Security
representing such Notes. None of the Company, the Trustee, any paying agent or
the registrar for such Notes will have any responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial
interests in such Global Security for such Notes or for maintaining, supervising
or reviewing any records relating to such beneficial interests.
The Company expects that the Depositary for the Notes or its nominee, upon
receipt of any payment of principal, premium or interest, will credit
immediately Participants' accounts with payments in amounts proportionate to
their respective beneficial interests in the principal amount of the Global
Security for such Notes as shown on the records of the Depositary or its
nominee. The Company also expects that payments by Participants to owners of
beneficial interest in such Global Security held through such Participants will
be governed by standing instructions and customary practices, as is now the case
with securities held for the accounts of customers in bearer form or registered
in 'street name' (i.e., the name of a securities broker or dealer), and will be
the responsibility of such Participants.
If the Depositary is at any time unwilling or unable to continue as
depositary and a successor depositary is not appointed by the Company within 90
days, the Company will issue Notes in definitive form in exchange for the entire
Global Security representing such Notes. In addition, the Company may at any
time and in its sole discretion determine not to have the Notes represented by
Global Securities and, in such event, will issue Notes in definitive form in
exchange for the Global Securities representing such Notes. In any such
instance, an owner of a beneficial interest in a Global Security will be
entitled to physical delivery in definitive form of Notes represented by such
Global Security equal in principal amount to such beneficial interest and to
have such Notes registered in its name. Notes so issued in definitive form will
be issued as registered Notes in denominations that are integral multiples of
$1,000 (or of 1,000 units of the applicable Specified Currency, as the case may
be), unless otherwise specified by the Company.
DESCRIPTION OF GUARANTEE
Newcourt will unconditionally guarantee the due and punctual payment of the
principal, premium, if any, and interest on the Notes when and as the same shall
become due and payable, whether at maturity, upon redemption, or otherwise. The
Guarantee will rank equally with all other unsecured and unsubordinated
obligations of Newcourt. The right of Newcourt and, hence, the right of
creditors of Newcourt (including the holders of the Notes, as beneficiaries of
the Guarantee) to participate in any distribution of the assets of any
subsidiary of Newcourt, whether upon liquidation, reorganization, or otherwise,
is subject to prior claims of creditors of each such subsidiary, except to the
extent that claims of Newcourt itself as a creditor of a subsidiary may be
allowed.
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FOREIGN CURRENCY AND INDEXED NOTE RISKS
FOREIGN CURRENCY RISKS
GENERAL. An investment in Notes that are denominated in a Specified
Currency other than United States dollars entails significant risks that are not
associated with a similar investment in a security denominated in United States
dollars. Such risks include, without limitation, the possibility of significant
changes in rates of exchange between the United States dollar and the various
foreign currencies and the possibility of the imposition or modification of
foreign exchange controls by either the United States or foreign governments.
Such risks generally depend on economic and political events over which the
Company has no control. In recent years, rates of exchange between United States
dollars and certain foreign currencies have been highly volatile and such
volatility may be expected to continue in the future. Fluctuations in any
particular exchange rate that have occurred in the past are not necessarily
indicative, however, of fluctuations in such rate that may occur during the term
of any Note. Depreciation of the currency specified in a Note against the United
States dollar would result in a decrease in the effective yield of such Note
below its coupon rate, and under certain circumstances could result in a loss to
the investor on a United States dollar basis.
THIS PROSPECTUS SUPPLEMENT AND THE ATTACHED PROSPECTUS DO NOT DESCRIBE ALL
THE RISKS OF AN INVESTMENT IN NOTES DENOMINATED IN A FOREIGN CURRENCY OR A
CURRENCY UNIT AND THE COMPANY DISCLAIMS ANY RESPONSIBILITY TO ADVISE PROSPECTIVE
PURCHASERS OF SUCH RISKS AS THEY EXIST AT THE DATE OF THIS PROSPECTUS SUPPLEMENT
OR AS SUCH RISKS MAY CHANGE FROM TIME TO TIME. PROSPECTIVE INVESTORS SHOULD
CONSULT THEIR OWN FINANCIAL AND LEGAL ADVISORS AS TO THE RISKS ENTAILED BY AN
INVESTMENT IN NOTES DENOMINATED IN SPECIFIED CURRENCIES OTHER THAN UNITED STATES
DOLLARS. SUCH NOTES ARE NOT AN APPROPRIATE INVESTMENT FOR INVESTORS WHO ARE
UNSOPHISTICATED WITH RESPECT TO FOREIGN CURRENCY TRANSACTIONS.
Notes denominated in foreign currencies other than Euros will generally not
be sold in, or to residents of, the country of the Specified Currency in which
such Notes are denominated.
The information set forth in this Prospectus Supplement is directed to
prospective purchasers who are United States residents, and the Company
disclaims any responsibility to advise prospective purchasers who are residents
of countries other than the United States with respect to any matters that may
affect the purchase, holding or receipt of payments of principal of and premium
and interest, if any, on the Notes. Such persons should consult their own
counsel or financial advisers with regard to such matters.
GOVERNING LAW AND JUDGMENTS. The Notes will be governed by and construed
in accordance with the laws of the State of New York. In the event an action
based on Notes denominated in a Specified Currency other than United States
dollars were commenced in a New York court, such court would render or enter a
judgment or decree in the Specified Currency. Such judgment would then be
converted into United States dollars at the rate of exchange prevailing on the
date of entry of the judgment or decree. The Indenture provides that the rate of
exchange to be used in determining any such judgment shall be the rate at which,
in accordance with normal banking procedures, the Trustee could purchase such
Specified Currency in The City of New York on the day on which final judgment is
entered, unless such day is not a New York Banking Day (as defined in the
Indenture) in which case on the New York Banking Day preceding the day on which
final judgment is entered.
EXCHANGE CONTROLS AND AVAILABILITY OF SPECIFIED CURRENCY. Governments have
imposed from time to time, and may in the future impose, exchange controls which
could affect exchange rates as well as the availability of a Specified Currency
at the time of payment of principal of, premium, if any, or interest on a Note.
In the case of any Note issued in a Specified Currency that is not currently
subject to exchange controls, there can be no assurance that the absence of
exchange controls will continue to exist. Even if there are no actual exchange
controls, it is possible that the Specified Currency for any particular Note
would not be available at such Note's maturity. In that event, the Company would
make required payments in United States dollars on the basis of the Market
Exchange Rate on the date of
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such payment, or if such rate of exchange is not then available, on the basis of
the Market Exchange Rate as of the most recent Record Date. See 'Description of
Medium-Term Notes, Series F -- Payment Currency'.
Information concerning exchange rates for the Specified Currency, if other
than United States dollars, in which principal of, premium, if any, and interest
on the Notes is payable, as against the United States dollar at selected times
during the last five years, as well as any exchange controls affecting such
currencies, will be set forth in the applicable Pricing Supplement.
INDEXED NOTE RISKS
An investment in Notes indexed, as to principal or interest or both, to one
or more values of currencies (including exchange rates between currencies),
commodities or interest rate indices entails significant risks that are not
associated with similar investments in a conventional debt security. If the
interest rate of such a Note is so indexed, it may result in an interest rate
that is less than that payable on a conventional debt security issued at the
same time, including the possibility that no interest will be paid, and, if the
principal amount of such a Note is so indexed, the principal amount payable at
maturity may be less than the original purchase price of such Note if allowed
pursuant to the terms of such Note, including the possibility that no principal
will be paid. The secondary market for such Notes will be affected by a number
of factors, independent of the creditworthiness of the Company and the value of
the applicable currency, commodity or interest rate index, including the
volatility of the applicable currency, commodity or interest rate index, the
time remaining to the maturity of such Notes, the amount outstanding of such
Notes and market interest rates. The value of the applicable currency, commodity
or interest rate index depends on a number of interrelated factors, including
economic, financial and political events, over which the Company has no control.
Additionally, if the formula used to determine the principal amount or interest
payable with respect to such Notes contains a multiple or leverage factor, the
effect of any change in the applicable currency, commodity or interest rate
index may be increased. The historical experience of the relevant currencies,
commodities or interest rate indices should not be taken as an indication of
future performance of such currencies, commodities or interest rate indices
during the term of any Note. ACCORDINGLY, PROSPECTIVE INVESTORS SHOULD CONSULT
THEIR OWN FINANCIAL AND LEGAL ADVISORS AS TO THE RISKS ENTAILED BY AN INVESTMENT
IN INDEXED NOTES AND THE SUITABILITY OF SUCH NOTES IN LIGHT OF THEIR PARTICULAR
CIRCUMSTANCES.
MATERIAL FEDERAL INCOME TAX CONSEQUENCES
The following summary of the material United States federal income tax
consequences of the purchase, ownership and disposition of Notes constitutes the
opinion of Sidley & Austin, special tax counsel to the Company. This summary is
based on the Internal Revenue Code of 1986, as amended to the date hereof (the
'Code'), administrative pronouncements, judicial decisions and existing and
proposed Treasury Regulations, including final Treasury Regulations concerning
the treatment of debt instruments issued with original issue discount (the 'OID
Regulations'), changes to any of which subsequent to the date of this Prospectus
Supplement may affect the tax consequences described herein. These statements
address only the tax consequences to persons holding Notes as capital assets and
do not address the tax consequences of holding Notes to dealers in securities or
currencies, persons holding Notes as a part of a 'hedging transaction' within
the meaning of Treasury Regulations, or as a hedge against, or that are hedged
against, currency risks, certain financial institutions, insurance companies, or
United States Holders (as defined below) whose 'functional currency', as defined
in section 985 of the Code, is not the U.S. dollar. Any special rules applicable
to Floating Rate Notes, to the extent not discussed in this summary, will be set
forth in an applicable Pricing Supplement, if appropriate. This summary does not
discuss Original Issue Discount Notes which qualify as 'applicable high-yield
discount obligations' under section 163(i) of the Code. Holders of such
obligations may be subject to special rules which will be set forth in an
applicable Pricing Supplement, if appropriate. Persons considering the purchase
of Notes should consult their own tax advisors concerning the application of
United States federal income tax laws, as well as the laws of any state, local
or foreign jurisdictions, to their particular situations.
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UNITED STATES HOLDERS
As used herein, a 'United States Holder' means a beneficial owner of a Note
who or which is, for United States federal income tax purposes, either (i) a
citizen or resident of the United States, (ii) a corporation or partnership
created or organized in or under the laws of the United States or of any
political subdivision thereof or (iii) an estate the income of which is subject
to United States federal income taxation regardless of its source or (iv) any
trust if a court within the United States is able to exercise primary
jurisdiction over the administration of the trust and one or more United States
fiduciaries have the authority to control all substantial decisions of the
trust. The term also includes certain holders who are former citizens of the
United States whose income and gain from the Notes are subject to United States
taxation. The term 'non-United States Holder' means a holder that is not a
United States Holder.
PAYMENTS OF INTEREST. Interest on a Note (whether paid in a foreign
currency or in United States dollars) will generally be taxable to a United
States Holder as ordinary interest income at the time it accrues or is received
in accordance with the United States Holder's method of accounting for United
States federal income tax purposes. Special rules governing the treatment of
interest received or accrued with respect to certain Floating Rate Notes,
Foreign Currency Notes (as defined below) and Contingent Notes are described
under 'Original Issue Discount Notes', 'Foreign Currency Notes' and 'Contingent
Payment Notes', respectively, below.
SALE, EXCHANGE OR RETIREMENT OF THE NOTES. Upon the sale, exchange or
retirement of a Note, a United States Holder will recognize taxable gain or loss
equal to the difference between the amount realized on the sale, exchange or
retirement (not including any amount attributable to accrued but unpaid
interest) and such Holder's adjusted tax basis in the Note. A United States
Holder's adjusted tax basis in a Note will equal the cost of the Note to such
Holder, increased by any amounts of market discount and original issue discount
(each as defined below), if any, previously includible in taxable income by such
Holder with respect to such Note and reduced by any amortized bond premium and
any principal payments received by such Holder and, in the case of an Original
Issue Discount Note, by the amounts of any other payments that do not constitute
qualified stated interest (as defined below).
Any gain or loss recognized upon the sale, exchange or retirement of a Note
will generally be capital gain or loss, except that any such gain will be
treated as ordinary income to the extent that such gain represents accrued
market discount not previously included in the United States Holder's income or,
in the case of a short-term Original Issue Discount Note (as defined below), to
the extent of the ratable share of any original issue discount and except to the
extent of any exchange gain or loss with respect to Foreign Currency Notes (see
'Foreign Currency Notes' below). In addition, under Treasury Regulations
relating to contingent payment debt instruments discussed below under
'Contingent Payment Notes', gain recognized upon the sale, exchange or
retirement of certain Notes that provide for contingent payments is interest
income and any loss is an ordinary loss to the extent the United States Holder's
total interest inclusions exceed the total net negative adjustments with respect
to the Notes.
Under current law, the excess of net long-term capital gains over net
short-term capital losses is taxed at a lower rate than ordinary income for
certain non-corporate taxpayers. The distinction between capital gain or loss
and ordinary income or loss is also relevant for purposes of, among other
things, the limitations on the deductibility of capital losses.
MARKET DISCOUNT AND PREMIUM. If a United States Holder acquires a Note
having a maturity date of more than one year from the date of its issuance and
has a tax basis in the Note that is, in the case of a Note other than an
Original Issue Discount Note, less than its 'stated redemption price at
maturity' (as defined below), or, in the case of an Original Issue Discount
Note, less than its 'revised issue price', the amount of the difference will be
treated as 'market discount' for United States federal income tax purposes,
unless such difference is less than a specified de minimis amount. Under the
market discount rules of the Code, a United States Holder is required to treat
any principal payment (or, in the case of an Original Issue Discount Note, any
payment that does not constitute a payment of qualified stated interest) on, or
any gain on the sale, exchange, retirement or other disposition of, a Note as
ordinary income to the extent of the market discount that has not previously
been included in income and is treated as having accrued on such Note at the
time of such payment or disposition. If such Note is
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disposed of in certain otherwise nontaxable transactions, accrued market
discount will be includible as ordinary income to the United States Holder as if
such Holder had sold the Note at its then fair market value. A United States
Holder may not be allowed to deduct immediately a portion of the interest
expense on any indebtedness incurred or continued to purchase or to carry such
Note.
Any market discount will be considered to accrue on a straight-line basis
during the period from the date of acquisition to the maturity date of the Note,
unless the United States Holder makes an irrevocable election to compute the
accrual on a constant yield basis. A United States Holder may elect to include
market discount in income currently as it accrues (on either a straight-line or
a constant yield basis), in which case the interest deferral rule set forth in
the last sentence of the preceding paragraph will not apply. Such an election
will apply to all bonds acquired by the United States Holder on or after the
first day of the first taxable year to which such election applies, and may not
be revoked without the consent of the Internal Revenue Service.
In lieu of the foregoing rules, different rules apply in the case of Notes
that provide for contingent payments where a United States Holder's tax basis in
such a Note is less than the Note's adjusted issue price (determined under
special rules set out in Treasury Regulations relating to contingent payment
debt instruments). Accordingly, prospective purchases of Notes that provide for
contingent payments should consult with their tax advisors with respect to the
application of such rules to such Notes.
If a United States Holder acquires a Note for an amount that is greater
than its stated redemption price at maturity, the United States Holder will be
considered to have purchased such Note at a premium and may elect to amortize
such premium, using a constant yield method, over the remaining term of the
Note. If such Note is callable prior to its maturity date, the amortizable bond
premium is determined with reference to the amount payable on the call date, if
it results in a smaller amortizable bond premium deduction. A United States
Holder that elects to amortize bond premium must reduce its tax basis in the
Note by the amount of the premium amortized in any year. An election to amortize
bond premium applies to all taxable debt obligations then owned and thereafter
acquired by the United States Holder and may be revoked only with the consent of
the Internal Revenue Service. Bond premium on a Note held by a United States
Holder that does not make such an election will decrease the gain or increase
the loss otherwise recognized on disposition of a Note.
On December 31, 1997, the Internal Revenue Service published final
regulations on the amortization of bond premium. The final regulations describe
the constant yield method under which such premium is amortized and provide that
the resulting offset to interest income can be taken into account only as a
United States Holder takes the corresponding interest income into account under
such Holder's regular accounting method. In the case of instruments that may be
redeemed at the option of the Company or repaid at the option of the United
States Holder prior to maturity, such regulations provide that the premium is
calculated by assuming that the Company will exercise or not exercise its
redemption rights in the manner that maximizes the United States Holder's yield
and the United States Holder will exercise or not exercise its repayment option
in a manner that maximizes the United States Holder's yield. Such regulations
are generally effective for debt instruments acquired on or after March 2, 1998.
In lieu of the foregoing rules, different rules apply in the case of Notes
that provide for contingent payments where a United States Holder's tax basis in
such Note is greater than the Note's adjusted issue price (determined under
special rules set out in the Treasury Regulations relating to contingent payment
debt instruments). Accordingly, prospective purchasers of Notes that provide for
contingent payments should consult with their tax advisors with respect to the
applications of such rules to such Notes.
A United States Holder that purchases an Original Issue Discount Note for
an amount that is greater than its adjusted issue price but less than or equal
to its stated redemption price at maturity will be considered to have purchased
such Note at an 'acquisition premium'. Rules applicable to such a Holder are set
forth under 'Original Issue Discount Notes' below.
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ORIGINAL ISSUE DISCOUNT NOTES
The following discussion is a summary of the principal United States
federal income tax consequences to United States Holders of the ownership of
Notes issued at an original issue discount for United States federal income tax
purposes ('Original Issue Discount Notes'). The principal United States federal
income tax consequences to non-United States Holders of the ownership of
Original Issue Discount Notes are described under 'Non-United States Holders'
below. Additional rules applicable to Original Issue Discount Notes that are
denominated in a currency other than the U.S. dollar are described under
'Foreign Currency Notes' below.
Under the Code and the OID Regulations, a Note whose 'issue price' is less
than its 'stated redemption price at maturity' will generally be considered to
have been issued at an original issue discount for United States federal income
tax purposes. United States Holders of Original Issue Discount Notes that mature
more than one year from the date of issuance generally will be required to
include original issue discount in gross income for United States federal income
tax purposes as it accrues, in accordance with a constant yield method based on
a compounding of interest, in advance of receipt of the cash payments
attributable to such income. However, if the difference between a Note's stated
redemption price at maturity and its issue price is less than 1/4 of 1 percent
of the stated redemption price at maturity multiplied by the number of complete
years to maturity (or, in the case of a Note providing for payments prior to
maturity other than payments of 'qualified stated interest', the weighted
average maturity), the Note will not be considered to have original issue
discount. United States Holders of Notes with a de minimis amount of original
issue discount will be required to include such original issue discount in
income, as capital gain, on a pro rata basis as principal payments are made on
the Notes. Notwithstanding the foregoing, United States Holders may elect to
include in gross income all interest that accrues on the Notes, including any
stated interest, acquisition discount, original issue discount, market discount,
de minimis original issue discount, de minimis market discount and unstated
interest (as adjusted by amortizable premium and acquisition premium), by using
the constant yield method described below with respect to original issue
discount.
The 'issue price' of a Note will equal the initial offering price to the
public (not including bond houses, brokers or similar persons or organizations
acting in the capacity of underwriters or wholesalers) at which price a
substantial amount of the Notes is sold. A Note's 'stated redemption price at
maturity' is, generally, the principal amount payable at maturity plus any
additional amounts payable under the debt instrument that do not constitute
'qualified stated interest'. 'Qualified stated interest' is defined to include
stated interest that is unconditionally payable in cash or property (other than
debt instruments of the issuer) at least annually during the entire term of the
Note at a single fixed rate. Interest is payable at a single fixed rate only if
the rate takes into account the length of the interval between payments.
If a Floating Rate Note constitutes a 'variable rate debt instrument',
qualified stated interest also includes stated interest that is payable in cash
or property (other than debt instruments of the issuer) at least annually during
the entire term of the Note at a single 'qualified floating rate' or a single
'objective rate' (each as defined below). In order to qualify as a 'variable
rate debt instrument', a Floating Rate Note must not provide for any stated
interest other than stated interest, compounded or paid annually, at (i) one or
more qualified floating rates, (ii) a single fixed rate and one or more
qualified floating rates, (iii) a single objective rate or (iv) a single fixed
rate and a single objective rate that is a 'qualified inverse floating rate' (as
defined below). In each case, a qualified floating rate or objective rate in
effect at any time during the term of the Note must be set at a 'current value'
of that rate, which means the value of the rate on any day during the 15-month
period beginning three months before, and ending one year after, the first day
on which the value is in effect. In addition, the issue price of a variable rate
debt instrument must not exceed the total noncontingent principal payments by
more than a specified amount.
Subject to certain exceptions, a variable rate of interest is a 'qualified
floating rate' if variations in the value of the rate can reasonably be expected
to measure contemporaneous fluctuations in the cost of newly borrowed funds in
the currency in which the Note is denominated. A variable rate will be
considered a qualified floating rate if the variable rate equals (i) the product
of an otherwise qualified floating rate and a fixed multiple (i.e., a Spread
Multiplier) that is greater than .65 but not more than
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1.35 or (ii) an otherwise qualified floating rate (or the product described in
clause (i) of this sentence) plus or minus a fixed rate (i.e., a Spread). If the
variable rate equals the product of an otherwise qualified floating rate and a
single fixed multiplier greater than 1.35, however, such rate will generally
constitute an objective rate, described more fully below. A variable rate will
not be considered a qualified floating rate if the variable rate is subject to a
maximum interest rate (a 'cap'), minimum interest rate (a 'floor') or 'governor'
(i.e., a restriction on the amount of increase or decrease in the stated
interest rate) or similar restriction that is reasonably expected as of the
issue date to cause the yield on the Note to be significantly more or less than
the expected yield determined without the restriction (other than a cap, floor
or governor that is fixed throughout the term of the Note).
An 'objective rate' is defined as a rate (other than a qualified floating
rate) that is determined using a single fixed formula and that is based on
objective financial or economic information that is not within the control of
the issuer (or related party) or that is unique to the circumstances of the
issuer (or related party). A variable rate of interest on a Note will not be
considered an objective rate if it is reasonably expected that the average value
of the rate during the first half of the Note's term will be either
significantly less than or significantly greater than the average value of the
rate during the final half of the Note's term. A rate is a 'qualified inverse
floating rate' only if (i) the rate is equal to a fixed rate minus a qualified
floating rate and (ii) variations in the rate can reasonably be expected
inversely to reflect contemporaneous variations in the cost of newly-borrowed
funds.
Under these rules, interest paid on Commercial Paper Rate Notes, Federal
Funds Rate Notes, CD Rate Notes, LIBOR Notes, Treasury Rate Notes, Prime Rate
Notes, CMT Rate Notes, other than certain Notes subject to caps, floors or
governors described above, will generally be treated as 'qualified stated
interest'.
If interest on a Note is stated at a fixed rate for an initial period of
one year or less followed by a variable rate that is either a qualified floating
rate or an objective rate for a subsequent period, and the value of the variable
rate on the issue date is intended to approximate the fixed rate, the fixed rate
and the variable rate together constitute a single qualified floating rate or
objective rate.
If a Note provides for (i) more than one qualified floating rate, (ii) a
single fixed rate and one or more qualified floating rates or (iii) in certain
cases a single fixed rate and a single objective rate, then all or a portion of
the Note's stated interest may be treated as qualified stated interest. However,
in certain instances a portion of that Note's stated interest will not be so
treated, but instead will be included in the Note's stated redemption price at
maturity. As a result, such Notes may be treated as being issued with original
issue discount. The Company does not currently expect to issue Notes with the
terms described in the first sentence of this paragraph. In the event such Notes
are issued, the tax consequences to purchasers thereof will be discussed in the
applicable Pricing Supplement.
United States Holders of Original Issue Discount Notes will be required to
include any payments of qualified stated interest in income at the time they are
accrued or received, in accordance with the Holder's method of accounting for
federal income tax purposes. The amount of original issue discount includible in
income during a taxable year by a United States Holder of an Original Issue
Discount Note that matures more than one year from its date of issuance will
equal the sum of the daily portions of the original issue discount with respect
to the Original Issue Discount Note for each day during the taxable year on
which such Holder held the Original Issue Discount Note. The daily portion of
the original issue discount on any Original Issue Discount Note is determined by
allocating to each day in any 'accrual period' a ratable portion of the original
issue discount allocable to such accrual period. A United States Holder of a
Note may use accrual periods that are of any length and that vary in length over
the term of the debt instrument provided that each accrual period is no longer
than one year and that each scheduled payment of principal or interest occurs
either on the final day of an accrual period or on the first day of an accrual
period. The Company will specify the accrual period it intends to use with
respect to Original Issue Discount Notes in the applicable Pricing Supplement.
The original issue discount allocable to any accrual period is equal to the
excess (if any) of (a) the product of the Original Issue Discount Note's
'adjusted issue price' at the beginning of such accrual period and its yield to
maturity (determined on the basis of compounding at the close of each accrual
period and adjusted for the length of the accrual period) over (b) the sum of
all qualified stated interest, if any, payable on such Original Issue Discount
Note during such accrual period or allocable to such accrual period. The
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'adjusted issue price' of an Original Issue Discount Note at the beginning of
the first accrual period is its issue price, and the 'adjusted issue price' at
the beginning of a subsequent accrual period is the issue price increased by the
amount of original issue discount includible in the gross income of any holder
(without reduction for any amortized acquisition premium) with respect to the
Original Issue Discount Note for all prior accrual periods, and decreased by the
amount of any payment previously made on such Note other than a payment of
qualified stated interest. Under these rules, United States Holders of Original
Issue Discount Notes generally will be required to include in income
increasingly greater amounts of original issue discount in successive accrual
periods.
A subsequent purchaser of an Original Issue Discount Note that purchases
the Note at a cost lower than the remaining stated redemption price at maturity
but greater than its adjusted issue price (i.e., at an 'acquisition premium')
will also be required to include in gross income the sum of the daily portions
of original issue discount on that Original Issue Discount Note. In computing
the daily portions of original issue discount with respect to an Original Issue
Discount Note for such a purchaser, however, the daily portion for any day is
reduced by the amount that would be the daily portion for such day (computed in
accordance with the rules set forth above) multiplied by a fraction, the
numerator of which is the amount, if any, by which the price paid by the United
States Holder for that Note exceeds the adjusted issue price and the denominator
of which is the sum of the daily portions for that Note for all days beginning
on the date after the purchase date and ending on the stated maturity date.
In the case of an Original Issue Discount Note that matures one year or
less from the date of its issuance (a 'short-term Original Issue Discount
Note'), United States Holders that report income for United States federal
income tax purposes on the accrual method and certain other United States
Holders, including banks and dealers in securities, are required to include
original issue discount on such short-term Original Issue Discount Notes on a
straight-line basis, unless an election is made to accrue the original issue
discount according to a constant yield method based on daily compounding. Any
other United States Holder of a short-term Original Issue Discount Note is not
required to accrue original issue discount for United States federal income tax
purposes, unless it elects to do so. In the case of a United States Holder that
is not required, and does not elect, to include original issue discount in
income currently, any gain realized on the sale, exchange or retirement of the
short-term Original Issue Discount Note will be ordinary income to the extent of
the original issue discount accrued on a straight-line basis (or, if elected,
according to a constant yield method based on daily compounding) through the
date of sale, exchange or retirement. In addition, such non-electing United
States Holders that are not subject to the current inclusion requirement
described in the first sentence of this paragraph will be required to defer
deductions for any interest paid on indebtedness incurred or continued to
purchase or carry short-term Original Issue Discount Notes in an amount not
exceeding the deferred interest income, until such deferred interest income is
realized.
The OID Regulations contain certain language (the 'aggregation rules')
stating in general that, with some exceptions, if more than one type of Note is
issued in connection with the same transaction or related transactions, such
Notes may be treated together as a single debt instrument with a single issue
price, maturity date, yield to maturity and stated redemption price at maturity
for purposes of calculating and accruing any original issue discount. Unless
otherwise provided in the applicable Pricing Supplement, the Company does not
expect to treat different types of Notes as being subject to the aggregation
rules for purposes of computing original issue discount.
NOTES SUBJECT TO CONTINGENCIES INCLUDING OPTIONAL REDEMPTION
If a Note provides for an alternative payment schedule or schedules
applicable upon the occurrence of a contingency or contingencies (other than a
remote or incidental contingency), whether such contingency relates to payments
of interest or of principal, if the timing and amount of the payments that
comprise each payment schedule are known as of the issue date and if one of such
schedules is significantly more likely than not to occur, the yield and maturity
of the Note are determined by assuming that the payments will be made according
to that payment schedule. If there is no single payment schedule that is
significantly more likely than not to occur (other than because of a mandatory
sinking fund), the Note will be subject to the general rules that govern
contingent payment debt instruments described below under 'Contingent Payment
Notes'.
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Notwithstanding the general rules for determining yield and maturity in the
case of a Note subject to contingencies, if the Company or the United States
Holder has an unconditional option or options that, if exercised, would require
payments to be made on the Note under an alternative payment schedule or
schedules, then (i) in the case of an option or options of the Company, the
Company will be deemed to exercise or not exercise an option or combination of
options in the manner that minimizes the yield on the Note and (ii) in the case
of an option or options of the United States Holder, the United States Holder
will be deemed to exercise or not exercise an option or combination of options
in the manner that maximizes the yield on the Note. If both the Company and the
United States Holder have options described in the preceding sentence, those
rules apply to such options in the order in which they may be exercised. For
purposes of those calculations, the yield on the Note is determined by using any
date on which the Note may be redeemed or repurchased as the maturity date and
the amount payable on such date in accordance with the terms of the Note as the
principal amount payable at maturity.
If a contingency (including the exercise of an option) actually occurs or
does not occur contrary to an assumption made according to the above rules (a
'change in circumstances') then, except to the extent that a portion of the Note
is repaid as a result of the change in circumstances and solely for the purposes
of determining the amount and accrual of original issue discount, the yield and
maturity of the Note are redetermined by treating the Note as having been
retired and reissued on the date of the change in circumstances for an amount
equal to the Note's adjusted issue price on that date.
FOREIGN CURRENCY NOTES
The following discussion summarizes the principal United States federal
income tax consequences to a United States Holder of the ownership and
disposition of Notes, payments under which are denominated in or determined by
reference to the value of one or more currency units other than the U.S. dollar
(a 'Foreign Currency Note').
The following summary is based upon the final Treasury Regulations issued
under section 988 of the Code (the 'Section 988 Regulations') and upon Treasury
Regulations proposed on March 17, 1992 (the 'Proposed Amendment to the Section
988 Regulations').
INTEREST INCLUDIBLE IN INCOME UPON RECEIPT. An interest payment on a
Foreign Currency Note that is not required to be included in income by the
United States Holder prior to receipt of such payment will be includible in
income by the United States Holder based on the U.S. dollar value of the foreign
currency payment determined on the date such payment is received, regardless of
whether the payment is in fact converted to U.S. dollars at that time. Such U.S.
dollar value will be the United States Holder's tax basis in the foreign
currency received.
INTEREST INCLUDIBLE IN INCOME PRIOR TO RECEIPT. In the case of interest
income on a Foreign Currency Note that is required to be included in income by
the United States Holder prior to receipt of payment, a United States Holder
will be required to include in income the U.S. dollar value of the amount of
interest income that has accrued and is otherwise required to be taken into
account with respect to a Foreign Currency Note during an accrual period. Unless
the United States Holder makes the election discussed in the next paragraph, the
U.S. dollar value of such accrued income will be determined by translating such
income at the average rate of exchange for the accrual period or, with respect
to an accrual period that spans two taxable years, at the average rate for the
partial period within the taxable year. The average rate of exchange for the
accrual period (or partial period) is the simple average of the exchange rates
for each business day of such period (or other method if such method is
reasonably derived and consistently applied). Such United States Holder will
recognize, as ordinary gain or loss, foreign currency exchange gain or loss with
respect to accrued interest income on the date such income is actually received,
reflecting fluctuations in currency exchange rates between the last day of the
relevant accrual period and the date of payment. The amount of gain or loss
recognized will equal the difference between the U.S. dollar value of the
foreign currency payment received in respect of such accrual period determined
based on the exchange rate on the date such payment is received and the U.S.
dollar value of interest income that has accrued during such accrual period (as
determined above).
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Under the so-called 'spot rate convention election', a United States Holder
may, in lieu of applying the rules described in the preceding paragraph, elect
to translate accrued interest income into U.S. dollars at the exchange rate in
effect on the last day of the relevant accrual period for the original issue
discount, market discount or accrued interest, or in the case of an accrual
period that spans two taxable years, at the exchange rate in effect on the last
day of the taxable year. Additionally, if a payment of such income is actually
received within five business days of the last day of the accrual period or
taxable year, an electing United States Holder may instead translate such income
into U.S. dollars at the exchange rate in effect on the day of actual receipt.
Any such election will apply to all debt instruments held by the United States
Holder at the beginning of the first taxable year to which the election applies
or thereafter acquired by the United States Holder, and will be irrevocable
without the consent of the Internal Revenue Service.
PURCHASE, SALE, EXCHANGE OR RETIREMENT. A United States Holder's tax basis
in a Foreign Currency Note, and the amount of any subsequent adjustment to such
Holder's tax basis, will be the U.S. dollar value of the foreign currency amount
paid for such Foreign Currency Note, or of the foreign currency amount of the
adjustment, determined on the date of such purchase or adjustment or, in the
case of an adjustment resulting from accrual of original issue discount or
market discount, at the rate at which such original issue discount or market
discount is translated into U.S. dollars under the rules described above. A
United States Holder that converts U.S. dollars to a foreign currency and
immediately uses that currency to purchase a Foreign Currency Note denominated
in the same currency normally will not recognize gain or loss in connection with
such conversion and purchase. However, a United States Holder that purchases a
Foreign Currency Note with previously owned foreign currency will recognize
ordinary income or loss in an amount equal to the difference, if any, between
such United States Holder's tax basis in the foreign currency and the U.S.
dollar market value of the Foreign Currency Note on the date of purchase.
For purposes of determining the amount of any gain or loss recognized by a
United States Holder on the sale, exchange or retirement of a Foreign Currency
Note, the amount realized upon such sale, exchange or retirement generally will
be the U.S. dollar value of the foreign currency received, determined on the
date of disposition in the case of an accrual basis United States Holder and on
the date payment is received in the case of a cash basis United States Holder.
The portion of any gain or loss realized upon the sale, exchange or
retirement of a Foreign Currency Note that is attributable to fluctuations in
currency exchange rates will be ordinary income or loss. Such portion will equal
the difference between (i) the U.S. dollar value of the foreign currency
principal amount of such Foreign Currency Note determined on the date such Note
is disposed of and (ii) the U.S. dollar value of the foreign currency principal
amount of such Note determined at the exchange rate on the date such United
States Holder acquired such Note. Any portion of the proceeds of such sale,
exchange or retirement attributable to accrued interest will result in exchange
gain or loss under the rules set forth above pertaining to payments of interest
income. The foreign currency principal amount of a Foreign Currency Note
generally equals, in the case of the original purchaser, the issue price in
foreign currency of such Note, and in the case of a subsequent purchaser, the
holder's purchase price in foreign currency. Such foreign currency gain or loss
will be recognized only to the extent of the total gain or loss realized by a
United States Holder on the sale, exchange or retirement of the Foreign Currency
Note. Any gain or loss recognized by such a United States Holder in excess of
such foreign currency gain or loss will be capital gain or loss (except to the
extent of any accrued market discount or, in the case of a short-term Original
Issue Discount Note, any accrued original issue discount).
A United States Holder will have a tax basis in any foreign currency
received on the sale, exchange or retirement of a Note equal to the U.S. dollar
value of such foreign currency. Any gain or loss realized by a United States
Holder on a sale or other disposition of foreign currency (including its
exchange for U.S. dollars or its use to purchase Foreign Currency Notes) will be
ordinary income or loss.
OTHER MATTERS. Any gain or loss that is treated as ordinary income or
loss, as described above, generally will not be treated as interest income or
expense except to the extent provided in the Section 988 Regulations or by
administrative pronouncements of the Internal Revenue Service.
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Market discount, acquisition premium and amortizable bond premium of a
Foreign Currency Note are determined in the relevant foreign currency. The
amount of such market discount or acquisition premium that is included in (or
reduces) income currently is determined for any accrual period in the relevant
foreign currency and then translated into U.S. dollars on the basis of the
average exchange rate in effect during such accrual period or with reference to
the spot rate convention election as described above. Exchange gain or loss
realized with respect to such accrued market discount or acquisition premium is
determined and recognized in accordance with the rules relating to accrued
interest described above. The amount of accrued market discount (other than the
market discount that is included in income currently) taken into account upon
the receipt of any partial principal payment or upon the sale, exchange,
retirement or other disposition of a Foreign Currency Note is the U.S. dollar
value of such accrued market discount, determined on the date of receipt of such
partial principal payment or upon the sale, exchange, retirement or other
disposition, and no portion thereof is treated as exchange gain or loss.
Exchange gain or loss with respect to amortizable bond premium is determined by
treating the portion of premium amortized with respect to any period as a return
of principal. With respect to a United States Holder of a Foreign Currency Note
that does not elect to amortize premium under section 171 of the Code, the
amount of premium, if any, is treated as a capital loss when such Note matures.
CONTINGENT PAYMENT NOTES
If a Note (i) provides for contingent payments of either interest or
principal, (ii) does not qualify as a variable rate debt instrument, (iii) is
not a Note subject to section 988 of the Code, (iv) is not eligible to have its
yield and maturity determined in the manner described above under 'Original
Issue Discount Notes' and 'Notes Subject to Contingencies Including Optional
Redemption' and (v) has a maturity at issue or more than one year (a 'Contingent
Note'), the Contingent Note will generally be subject to special rules, set
forth in Treasury Regulations, governing contingent payment debt instruments.
The general tax treatment of Contingent Notes is as follows. First, the
Company is required to determine, as of the issue date, the comparable yield for
the Contingent Note. The comparable yield is generally the yield at which the
Company would issue a fixed rate debt instrument with terms and conditions
similar to those of the Contingent Note (including the level or subordination,
term, timing of payments and general market conditions, but not taking into
consideration the riskiness of the contingencies or the liquidity of the
Contingent Note), but not less than the applicable federal rate announced
monthly by the Internal Revenue Service (the 'AFR'). In certain cases where
Contingent Notes are marketed or sold in substantial part to tax-exempt
investors or other investors for whom the prescribed inclusion of interest is
not expected to have a substantial effect on their United States tax liability,
the comparable yield for the Contingent Note, without proper evidence to the
contrary, is presumed to be the AFR.
Second, solely for tax purposes, the Company constructs a projected
schedule of payments determined under the OID Regulations for the Contingent
Note (the 'Schedule'). The Schedule is determined as of the issue date and
generally remains in place throughout the term of the Contingent Note. If a
right to a contingent payment is based on market information, the amount of the
projected payment is the forward price of the contingent payment. If a
contingent payment is not based on market information, the amount of the
projected payment is the expected value of the contingent payment as of the
issue date. The Schedule must produce the comparable yield determined as set
forth above. Otherwise, the Schedule must be adjusted under the rules set forth
in the OID Regulations.
Third, under the usual rules applicable to original issue discount and
based on the Schedule, the interest income on the Contingent Note for each
accrual period is determined by multiplying the comparable yield of the
Contingent Note (adjusted for the length of the accrual period) by the
Contingent Note's adjusted issue price at the beginning of the accrual period
(determined under rules set forth in the OID Regulations). The amount so
determined is then allocated on a ratable basis to each day in the accrual
period that the United States Holder held the Contingent Note.
Fourth, appropriate adjustments are made to the interest income determined
under the foregoing rules to account for any differences between the Schedule
and actual contingent payments. Under the
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rules set forth in the OID Regulations, differences between the actual amounts
of any contingent payments made in a calendar year and the projected amounts of
such payments are generally aggregated and taken into account, in the case of a
positive difference, as additional interest income, or, in the case of a
negative difference, first as a reduction in interest income for such year and
thereafter, subject to certain limitations, as ordinary loss.
The Company is required to provide each United States Holder of a
Contingent Note with the Schedule described above. If the Company does not
create a Schedule or the Schedule is unreasonable, a United States Holder must
set its own projected payment schedule and explicitly disclose the use of such
schedule and the reason therefor. Unless otherwise prescribed by the Internal
Revenue Service, the United States Holder must make such disclosure on a
statement attached to the United States Holder's timely filed federal income tax
return for the taxable year in which the Contingent Note was acquired.
In general, any gain realized by a United States Holder on the sale,
exchange, redemption, or retirement of a Contingent Note is interest income. In
general, any loss on a Contingent Note accounted for under the method described
above is ordinary loss to the extent it does not exceed such Holder's prior
interest inclusions on the Contingent Note (net of negative adjustments).
Special rules apply in determining the tax basis of a Contingent Note and the
amount realized on the retirement of a Contingent Note.
In the case of certain Contingent Notes, it is possible, depending on the
terms of the Contingent Note, that such Note might not be treated as a debt
instrument for federal income tax purposes but rather as a cash settlement
option, a forward contract or in some other fashion. If such Notes are offered,
the applicable Pricing Supplement will discuss the likely federal income tax
treatment.
NON-UNITED STATES HOLDERS
On October 14, 1997, final Treasury Regulations were issued which affect
the United States taxation of non-United States Holders. The final regulations
are effective for payments after December 31, 1998, regardless of the issue date
of the Note with respect to which such payments are made, subject to certain
transition rules. The discussion under this heading and under ' -- Backup
Withholding and Information Reporting,' below, is not intended to be a complete
discussion of the provisions of such regulations, and prospective purchasers of
Notes are urged to consult their tax advisors with respect to the effect of such
regulations.
Under United States federal income tax law now in effect, and subject to
the discussion of backup withholding in the following section, payments of
principal and interest (including original issue discount) and premium by the
Company or any paying agent to any non-United States Holder of a Note will not
be subject to United States federal withholding tax, provided, in the case of
interest, that (i) such Holder does not actually or constructively own 10% or
more of the total combined voting power of all classes of stock of the Company
entitled to vote, (ii) such Holder is not for United States federal income tax
purposes a controlled foreign corporation related to the Company through stock
ownership, (iii) such Holder is not a bank receiving interest described in
section 881(c)(3)(A) of the Code, and (iv) either (A) the beneficial owner of
the Note certifies, under penalties of perjury, to the Company or paying agent,
as the case may be, that such Holder is a non-United States Holder and provides
such Holder's name and address, and U.S. taxpayer identification number, if any,
or (B) a securities clearing organization, bank or other financial institution
that holds customers' securities in the ordinary course of its trade or business
(a 'financial institution') and holds the Note, certifies, under penalties of
perjury, to the Company or paying agent, as the case may be, that such
certificate has been received from the beneficial owner by it or by a financial
institution between it and the beneficial owner and furnishes the payor with a
copy thereof. A certificate described in this paragraph is effective only with
respect to payments of interest (including original issue discount) made to the
certifying non-United States Holder after the issuance of the certificate in the
calendar year of its issuance and the two immediately succeeding calendar years.
The final regulations provide optional documentation procedures designed to
simplify compliance by withholding agents. Such regulations would not affect
documentation rules described in the
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preceding paragraph, but would add 'intermediary certification' options for
certain qualifying withholding agents. Under one such option, a withholding
agent would be allowed to rely on Internal Revenue Service Form W-8 furnished by
a financial institution or other intermediary on behalf of one or more
beneficial owners (or other intermediaries) without having to obtain the
beneficial owner certificate described in the preceding paragraph, provided that
the financial institution or intermediary has entered into a withholding
agreement with the Internal Revenue Service and thus is a 'qualified
intermediary.' Under another option, an authorized foreign agent of a U.S.
withholding agent would be permitted to act on behalf of the U.S. withholding
agent, provided certain conditions are met.
For purposes of establishing entitlement to the withholding exemption
described above, the final regulations treat as the beneficial owners of
payments on a Note those persons that, under United States tax principles, are
the taxpayers with respect to such payments. Thus, for example, the partners of
a foreign partnership, rather than the partnership itself, would be required to
provide the required certifications to qualify for such withholding exemption.
For purposes of determining entitlement to the benefits of an income tax treaty,
however, the tax principles in effect under the laws of the relevant foreign
jurisdiction would control in identifying the beneficial owners of payments on
the Notes, and therefore the persons entitled to claim treaty benefits and
required to provide the relevant certifications.
Notwithstanding the foregoing, interest described in section 871(h)(4) of
the Code will be subject to United States federal withholding tax at a 30% rate
(or such lower rate provided by an applicable treaty). In general, interest
described in section 871(h)(4) of the Code includes (subject to certain
exceptions) any interest the amount of which is determined by reference to
receipts, sales or other cash flow of the Company or related person, any income
or profits of the Company or a related person, any change in the value of any
property of the Company or related person or any dividend, partnership
distributions or similar payment made by the Company or related person. Interest
described in section 871(h)(4) of the Code may include other types of contingent
interest identified by the Internal Revenue Service in future Treasury
Regulations. The Company does not currently expect to issue Notes the interest
on which is described in section 871(h)(4) of the Code, and the United States
federal withholding tax consequences of any such Notes issued by the Company
will be described in the applicable Pricing Supplement.
If a non-United States Holder is engaged in a trade or business in the
United States and interest (including original issue discount) on the Note is
effectively connected with the conduct of such trade or business, the non-United
States Holder, although exempt from the withholding tax discussed in the
preceding paragraphs, will be subject to United States federal income tax on
such interest and original issue discount in the same manner as if it were a
United States Holder. See 'United States Holders' and 'Original Issue Discount
Notes' above. In lieu of the certificate described above, such a Holder will be
required to provide to the Company a properly executed Internal Revenue Service
Form 4224 in order to claim an exemption from withholding tax. In addition, if
such a Holder is a foreign corporation, it may be subject to a branch profits
tax equal to 30% (or such lower rate provided by an applicable treaty) of its
effectively connected earnings and profits for the taxable year, subject to
adjustments. For this purpose, interest (including original issue discount) on a
Note will be included in such effectively connected earnings and profits if such
interest and original issue discount are effectively connected with the conduct
by the non-United States Holder of a trade or business in the United States.
Generally, any gain or income realized upon the sale, exchange, retirement
or other disposition of a Note will not be subject to United States federal
withholding or income tax unless (i) such gain or income is effectively
connected with a trade or business in the United States of the non-United States
Holder or (ii) in the case of a non-United States Holder who is an individual,
the non-United States Holder is present in the United States for 183 days or
more in the taxable year of such sale, retirement or other disposition and
either (a) such individual has a 'tax home' (as defined in section 911(d)(3) of
the Code) in the United States or (b) the gain is attributable to an office or
other fixed place of business maintained by such individual in the United
States.
A Note held by an individual who is a non-United States Holder at the time
of death will not be subject to United States federal estate tax on the Note if
(i) such Holder does not own, actually or constructively, 10% or more of the
total combined voting power of all classes of stock of the Company entitled to
vote, (ii) at the time of such individual's death, the interest payments with
respect to the
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Notes would not have been effectively connected with a United States trade or
business of such Holder and (iii) no portion of the value of the Note held by
such estate is attributable to interest described in section 871(h)(4) of the
Code (as described above).
BACKUP WITHHOLDING AND INFORMATION REPORTING
Under current United States federal income tax law, information reporting
requirements apply to interest and principal payments made to, and to the
proceeds of sales before maturity by, non-corporate United States Holders. In
addition, a 31% backup withholding tax will apply if the non-corporate United
States Holder (i) fails to furnish its Taxpayer Identification Number ('TIN'),
which, for an individual, would be its Social Security Number, (ii) furnishes an
incorrect TIN, (iii) is notified by the Internal Revenue Service that it has
failed properly to report payments of interest and dividends or (iv) in certain
circumstances, fails to certify, under penalties of perjury, that it has
furnished a correct TIN and has not been notified by the Internal Revenue
Service that it is subject to backup withholding for failure to report interest
and dividend payments. Backup withholding will not apply with respect to
payments made to certain exempt recipients, such as corporations and tax-exempt
organizations.
In the case of a non-United States Holder, under current Treasury
Regulations, backup withholding and information reporting will not apply to
payments of principal and interest made by the Company or any paying agent
thereof on a Note with respect to which such Holder has provided the required
certification under penalties of perjury of its non-United States Holder status
or has otherwise established an exemption, provided that the Company or paying
agent, as the case may be, does not have actual knowledge that the payee is a
United States person (as defined in section 7701(a)(30) of the Code).
In addition, if principal or interest payments are collected outside the
United States by a foreign office of a custodian, nominee or other agent acting
on behalf of a beneficial owner of a Note, such custodian, nominee or other
agent will not be required to apply backup withholding to such payments made to
such beneficial owner and will not be subject to information reporting. However,
if such custodian, nominee or other agent is a United States person, a
controlled foreign corporation for United States tax purposes, or a foreign
person 50% or more of whose gross income is effectively connected with its
conduct of a United States trade or business for a specified three-year period,
such custodian, nominee or other agent may be subject to certain information
reporting requirements with respect to such payments unless it has in its
records documentary evidence that the beneficial owner is not a United States
person and certain conditions are met or the beneficial owner otherwise
establishes an exemption.
Under applicable Treasury Regulations, payments on the sale, exchange or
retirement of a Note to or through a foreign office of a broker will not be
subject to backup withholding. However, if such broker is a United States
person, a controlled foreign corporation for United States tax purposes, or a
foreign person 50% or more of whose gross income is effectively connected with
its conduct of a United States trade or business for a specified three-year
period, information reporting will be required unless the broker has in its
records documentary evidence that the beneficial owner is not a United States
person and certain other conditions are met or the beneficial owner otherwise
establishes an exemption. Payments to or through the United States office of a
broker will be subject to backup withholding and information reporting unless
the holder certifies under penalties of perjury that it is not a United States
person or otherwise establishes an exemption. Furthermore, the final regulations
require backup withholding with respect to the payments described in this
paragraph in the event that the custodian, nominee, agent or broker has actual
knowledge that the beneficial owner is a United States person.
Any amounts withheld from a payment to a holder under the backup
withholding rules will be allowed as a refund or a credit against such holder's
United States federal income tax, provided that the required information is
furnished to the Internal Revenue Service.
Holders should consult their tax advisors regarding the application of
information reporting and backup withholding to their particular situations, the
availability of an exemption therefrom, and the procedure for obtaining such an
exemption, if available.
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PLAN OF DISTRIBUTION
Unless otherwise provided in the applicable Pricing Supplement, the Notes
are being offered on a continual basis by the Company through Agents, who have
agreed to use their reasonable best efforts to solicit purchases of the Notes.
The Company will pay an Agent a commission, in the form of a discount ranging
from .050% to .750% of the principal amount of the Note sold through it as
agent, depending upon maturity of the Note, except that the commission payable
by the Company to the Agents with respect to Notes with maturities of greater
than thirty years will be negotiated at the time the Company issues such Notes.
The Company also may sell the Notes to any Agent, acting as principal, or to a
group of underwriters for whom one or more Agents are acting as representatives,
at a discount to be agreed upon at the time of sale (or if no compensation is
indicated therein, in accordance with the agreed schedule of commissions as set
forth on the cover of this Prospectus Supplement), for resale to investors or
dealers at varying prices related to prevailing market prices at the time of
resale, to be determined by the Agents or, if so agreed, at a fixed public
offering price. The Agent, acting as principal, may sell Notes it has purchased
from the Company to other dealers for resale to investors and other purchasers,
and may allow any portion of the discount received in connection with such
purchase from the Company to such dealers. After the initial public offering of
Notes, the public offering price (in the case of Notes to be resold at a fixed
public offering price), the concession and the discount may be changed. In
addition, the Company may arrange for the Notes to be sold through other agents,
dealers or underwriters or may sell the Notes directly to investors on its own
behalf in those jurisdictions where it is authorized to do so. In the case of
sales made directly by the Company, no commission will be payable.
The Company will have the sole right to accept offers to purchase Notes and
may reject any proposed purchase of Notes in whole or in part. The Agents will
have the right, in their reasonable discretion, to reject any offer to purchase
Notes received by them in whole or in part.
The Company has agreed to indemnify the Agents against certain liabilities,
including liabilities under the Securities Act, or to contribute to payments the
Agents may be required to make in respect thereof. The Agents may be deemed to
be 'underwriters' within the meaning of the Securities Act.
The Company may offer an additional series of medium-term notes of the
Company outside the United States to prospective non-United States Holders. Such
other series of medium-term notes may have terms substantially similar to the
terms of the Notes offered hereby (but will constitute a separate series for
purposes of the Indenture), and will be offered in bearer form only. Such other
series of medium-term notes will reduce correspondingly the principal amount of
Notes which may be offered by this Prospectus Supplement and the Prospectus. In
addition, the amount of Notes which may be offered will be reduced by the
aggregate principal amount of any other securities and the purchase price of any
warrants issued by the Company inside or outside the United States under the
Registration Statement.
Each of the Agents may from time to time purchase and sell Notes in the
secondary market, but is not obligated to do so, and there can be no assurance
that there will be a secondary market for the Notes or liquidity in the
secondary market if one develops. From time to time, each of the Agents may make
a market in the Notes.
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SUBJECT TO COMPLETION DATED APRIL 28, 1998
PRELIMINARY PROSPECTUS
$5,000,000,000
[LOGO]
DEBT SECURITIES, DEBT WARRANTS, CURRENCY WARRANTS,
INDEX WARRANTS, AND INTEREST RATE WARRANTS
------------------------
AT&T Capital Corporation ('AT&T Capital' or the 'Company'), an indirect
wholly-owned subsidiary of Newcourt Credit Group Inc. ('Newcourt'), directly,
through agents designated from time to time, or through dealers or underwriters
also to be designated, may offer and sell from time to time, one or more series
of (i) debt securities (the 'Debt Securities') of the Company, (ii) warrants to
purchase Debt Securities (the 'Debt Warrants'), (iii) warrants entitling the
holders thereof to receive from the Company, upon exercise, an amount in cash
equal to the cash value of the right to purchase (the 'Currency Call Warrants')
or to sell (the 'Currency Put Warrants' and, together with the Currency Call
Warrants, the 'Currency Warrants') a certain amount of one currency or currency
unit for a certain amount of a different currency or currency unit, all as shall
be designated by the Company at the time of offering, (iv) warrants entitling
the holders thereof to receive from the Company, upon exercise, an amount in
cash determined by reference to decreases (the 'Index Put Warrants') or
increases (the 'Index Call Warrants') in the level of a specified index (an
'Index') which may be based on one or more U.S. or foreign stocks, bonds or
other securities, one or more U.S. or foreign interest rates, one or more
currencies or currency units, or any combination of the foregoing, or determined
by reference to the differential between any two Indices (the 'Index Spread
Warrants' and, together with the Index Put Warrants and the Index Call Warrants,
the 'Index Warrants') or (v) warrants entitling the holders thereof to receive
from the Company, upon exercise, an amount in cash determined by reference to
decreases (the 'Interest Rate Put Warrants') or increases (the 'Interest Rate
Call Warrants' and, together with the Interest Rate Put Warrants, the 'Interest
Rate Warrants' and, together with the Index Warrants, the Currency Warrants and
the Debt Warrants, the 'Warrants') in the yield or closing price of one or more
specified debt instruments issued either by the United States government or by a
foreign government (the 'Sovereign Debt Instrument'), in the interest rate or
interest rate swap rate established from time to time by one or more specified
financial institutions (the 'Rate') or in any specified combination of Sovereign
Debt Instruments and/or Rates, for an aggregate offering price of up to
$5,000,000,000, or the equivalent thereof in one or more foreign currencies or
currency units (such amount being the aggregate proceeds to the Company from all
Debt Securities, Debt Warrants, Currency Warrants, Index Warrants and Interest
Rate Warrants (collectively, the 'Securities') issued and the aggregate exercise
price of any Debt Securities issuable upon the exercise of any Debt Warrants).
Securities may be offered either together or separately and in one or more
series or amounts, at prices and on terms to be determined at the time of sale.
The Securities will receive the benefit of an irrevocable unconditional Newcourt
guarantee. See 'The Company -- Relationship with Newcourt.' If this Prospectus
is being delivered in connection with the offering and sale of Debt Securities,
the specific designation, aggregate principal amount, the currency or currency
unit for which the Debt Securities may be purchased and in which the principal
and interest, if any, is payable, the rate (or method of calculation) and time
of payment of interest, if any, authorized denominations, maturity, any
redemption terms, and any other terms in connection with such offering and sale
are set forth in the accompanying Prospectus Supplement and pricing supplement
(together, the 'Prospectus Supplement'). If this Prospectus is being delivered
in connection with the offering and sale of Warrants, the specific designation
and aggregate number thereof, the currency or currency unit for which the
Warrants may be purchased and/or in which the cash settlement value or the
exercise price, if applicable, is payable, the method of calculation of the cash
settlement value, if applicable, the date on which such Warrants become
exercisable and the expiration date, provisions, if any, for the automatic
exercise and/or cancellation prior to the expiration date, and any other terms
in connection with such offering and sale will be set forth in the Prospectus
Supplement. The Company reserves the sole right to accept and, together with its
agents from time to time, to reject in whole or in part any proposed purchase of
Securities to be made directly or through agents. The Debt Securities and Debt
Warrants may be issued in registered or bearer form (in the case of Debt
Securities, with or without interest coupons) or both or, in the case of Debt
Securities, in uncertificated form. The Currency Warrants, Index Warrants and
Interest Rate Warrants will be issued in registered form only. In addition, all
or a portion of the Securities of a series may be issued in temporary or
permanent global form. Debt Securities in bearer form will be offered only
outside the United States to non-United States persons and to offices located
outside the United States of certain United States institutions. See
'Description of the Debt Securities -- Limitations on Issuance of Bearer Debt
Securities.' The initial public offering price, the agent, dealer or
underwriter, if any, in connection with the offering and sale of the Securities,
a discussion of certain federal income taxation consequences to holders of
Securities and, if applicable, a discussion of certain risks associated with an
investment in Securities will be set forth in the Prospectus Supplement.
THE SECURITIES ARE NOT GUARANTEED OR SUPPORTED IN ANY WAY BY AT&T CORP.
('AT&T').
------------------------
SEE RISK FACTORS ON PAGE 3 FOR CERTAIN CONSIDERATIONS RELEVANT TO AN INVESTMENT
IN THE SECURITIES.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
------------------------
If an agent of the Company or a dealer or an underwriter is involved in the
sale of the Securities in respect of which this Prospectus is being delivered,
the agent's commission or dealer's or underwriter's discount is set forth in, or
may be calculated from, the Prospectus Supplement, and the net proceeds to the
Company from such sale will be the purchase price of such Securities less such
commission in the case of an agent, the purchase price of such Securities less
such discount in the case of a dealer or the public offering price less such
discount in the case of an underwriter, and less, in each case, the other
attributable issuance expenses. The aggregate proceeds to the Company from all
the Securities will be the purchase price of the Securities sold, less the
aggregate of agents' commissions and dealers' and underwriters' discounts and
other expenses of issuance and distribution. The net proceeds to the Company
from the sale of Securities offered pursuant to a particular Prospectus
Supplement are also set forth in such Prospectus Supplement. See 'Plan of
Distribution' for possible indemnification arrangements for the agents, dealers
and underwriters.
------------------------
May , 1998
<PAGE>
<PAGE>
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS NOT CONTAINED OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS OR
THE PROSPECTUS SUPPLEMENT IN CONNECTION WITH THE OFFER MADE BY THIS PROSPECTUS
AND PROSPECTUS SUPPLEMENT AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY
OR BY ANY AGENT, DEALER OR UNDERWRITER. THIS PROSPECTUS AND PROSPECTUS
SUPPLEMENT DO NOT CONSTITUTE AN OFFER OF ANY SECURITIES OTHER THAN THOSE TO
WHICH THEY RELATE.
------------------------
THE GUARANTOR IS A CANADIAN ISSUER THAT IS PERMITTED, UNDER A
MULTIJURISDICTIONAL DISCLOSURE SYSTEM ADOPTED BY THE UNITED STATES, TO PREPARE
THIS PROSPECTUS INSOFAR AS IT RELATES TO THE GUARANTOR AND THE GUARANTEE IN
ACCORDANCE WITH THE DISCLOSURE REQUIREMENTS OF ITS HOME JURISDICTION.
PROSPECTIVE INVESTORS SHOULD BE AWARE THAT SUCH REQUIREMENTS ARE DIFFERENT FROM
THOSE OF THE UNITED STATES. THE FINANCIAL STATEMENTS OF THE GUARANTOR INCLUDED
OR INCORPORATED BY REFERENCE HEREIN, HAVE BEEN PREPARED IN ACCORDANCE WITH
CANADIAN GENERALLY ACCEPTED ACCOUNTING PRINCIPLES, AND ARE SUBJECT TO CANADIAN
AUDITING AND AUDITOR INDEPENDENCE STANDARDS, AND SUCH FINANCIAL STATEMENTS MAY
NOT BE COMPARABLE TO FINANCIAL STATEMENTS OF UNITED STATES COMPANIES.
THE ENFORCEMENT BY INVESTORS OF CIVIL LIABILITIES UNDER THE FEDERAL
SECURITIES LAWS MAY BE AFFECTED ADVERSELY BY THE FACT THAT THE GUARANTOR IS
INCORPORATED AND ORGANIZED UNDER THE LAWS OF THE PROVINCE OF ONTARIO, THAT SOME
OR ALL OF ITS OFFICERS AND DIRECTORS MAY BE RESIDENTS OF CANADA, THAT SOME OR
ALL OF THE EXPERTS NAMED IN THE REGISTRATION STATEMENT MAY BE RESIDENTS OF
CANADA AND THAT A SUBSTANTIAL PORTION OF THE ASSETS OF THE GUARANTOR AND SAID
PERSONS MAY BE LOCATED OUTSIDE THE UNITED STATES.
AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission (the
'Commission') a Registration Statement on Form S-3, pursuant to the Securities
Act of 1933, as amended (the 'Securities Act'), and the rules and regulations
promulgated thereunder, with respect to the Securities offered hereby. Newcourt
has filed with the Commission a Registration Statement on Form F-9 pursuant to
the Securities Act and the rules and regulations promulgated thereunder with
respect to the Guarantee of the Securities offered hereby. The term
'Registration Statement' means the combined Registration Statement of the
Company on Form S-3 and the Registration Statement of Newcourt on Form F-9 and
includes all amendments, exhibits and schedules thereto. This Prospectus, which
constitutes a part of the Registration Statement, does not contain all the
information set forth in the Registration Statement, certain parts of which are
omitted in accordance with the rules and regulations of the Commission, and to
which reference is hereby made.
The Company is subject to the information and reporting requirements of the
Securities Exchange Act of 1934, as amended (the 'Exchange Act'), and in
accordance therewith files periodic reports and other information with the
Commission. The Registration Statement, as well as such reports and other
information filed by the Company with the Commission, may be inspected and
copied at the public reference facilities maintained by the Commission at Room
1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, and at
the regional offices of the Commission located at 7 World Trade Center, 13th
Floor, New York, New York 10048 and Citicorp Center, 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661. Copies of such material can be obtained
from the Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549 at prescribed rates. The Commission maintains a Web site
that contains reports, proxy and information statements and other information
regarding registrants that file electronically with the Commission. The address
of such Web site is http://www.sec.gov.
Statements made in this Prospectus concerning the provisions of any
contract, agreement or other document referred to herein are not necessarily
complete. With respect to each such statement concerning a contract, agreement
or other document filed as an exhibit to the Registration Statement or otherwise
filed with the Commission, reference is made to such exhibit or other filing for
a more complete description of the matter involved, and each such statement is
qualified in its entirety by such reference.
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INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents have been filed by the Company (File No. 001-11237)
with the Commission and are incorporated by reference in the Prospectus that
constitutes a part of the Registration Statement on Form S-3:
(1) The Company's Annual Report on Form 10-K for the year ended December
31, 1997; and
(2) The Company's Current Reports on Form 8-K dated March 9, 1998, March 4,
1998, February 20, 1998, February 9, 1998, January 12, 1998, January 5,
1998, November 19, 1997, May 30, 1997, May 12, 1997 and February 12,
1997, respectively and the Company's Current Reports on Form 8-K/A
dated March 17, 1998 (amending the Report on Form 8-K dated January 12,
1998), February 18, 1998 (amending the Report on Form 8-K dated
February 9, 1998) and February 11, 1998 (amending the Report on Form
8-K dated November 19, 1997).
The following documents have been filed by Newcourt (File No. 001-14604)
with the Commission and are incorporated by reference in the Prospectus that
constitutes a part of the Registration Statement on Form F-9:
(1) the Renewal Annual Information Form of Newcourt dated May 2, 1997
on Form 40-F;
(2) the audited comparative consolidated financial statements of
Newcourt and the auditors' report there on for the fiscal year ended
December 31, 1997 on Form 6-K; and
(3) the Management Information Circular of Newcourt dated February 4,
1998, except the sections entitled 'Compensation and Conduct Review
Committee', 'Report on Executive Compensation', 'Corporate Governance' and
the 'Share Performance Graph' on Form 6-K.
All documents filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of this Prospectus and prior to the
termination of the offering of the Securities shall be deemed to be incorporated
by reference in this Prospectus and to be a part hereof from the date of filing
of such documents. Any statement contained in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein or in the accompanying Prospectus
Supplement modifies or supersedes such statement. Any such statement so modified
or superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
COPIES OF THE ABOVE DOCUMENTS OF THE COMPANY MAY BE OBTAINED UPON REQUEST
WITHOUT CHARGE FROM AT&T CAPITAL CORPORATION, 44 WHIPPANY ROAD, MORRISTOWN, NJ
07962-1983 (TELEPHONE NUMBER 973-397-3000), ATTENTION: TREASURY DEPARTMENT;
COPIES OF THE ABOVE DOCUMENTS OF NEWCOURT MAY BE OBTAINED UPON REQUEST WITHOUT
CHARGE FROM NEWCOURT CREDIT GROUP INC., BCE PLACE, 181 BAY STREET, SUITE 3500,
P.O. BOX 827, TORONTO, ONTARIO, CANADA M5J2T3 (TELEPHONE NUMBER 416-777-6066),
ATTENTION: COMMUNICATIONS DEPARTMENT.
RISK FACTORS
The following risk factors in addition to the other information included in
this Prospectus should be given careful consideration. To the extent any of the
information constitutes a 'forward-looking statement' for purposes of Section
21E(i) of the Exchange Act or Section 27A(i) of the Securities Act, the risk
factors set forth below are meaningful cautionary statements identifying
important factors that could cause actual results to differ materially from
those anticipated in the forward looking statements, and no assurance can be
given that actual results will not in fact differ materially.
RISKS RELATED TO PLANS INVOLVING NEWCOURT
Integration of Business. Both the Company and Newcourt have completed a
number of acquisitions during the past five years. Integration of these two
businesses will require a significant amount of management's time. Diversion of
management attention from the Company's existing business could have a material
adverse impact on the revenues and operating results of the Company.
Guarantee of Certain Newcourt Debt. In connection with the Newcourt
Acquisition (as defined below), on February 20, 1998 the Company entered into an
agreement pursuant to which the Company
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will guarantee (the 'Company Guarantee') the payment of certain indebtedness and
liquidity facilities issued, guaranteed or entered into by Newcourt (as amended,
supplemented, restated or replaced, collectively, the 'Newcourt Debt
Securities') for the timely benefit of the holders of the Newcourt Debt
Securities (collectively, the 'Newcourt Noteholders'). A copy of the Company
Guarantee is filed as Exhibit 10 to the Company's Current Report on Form 8-K
dated February 20, 1998 filed on March 12, 1998.
Because the Company Guarantee is anticipated to cover future indebtedness
under various documents evidencing or relating to the Newcourt Debt Securities,
as well as amendments, supplements, restatements or replacements of or to the
Newcourt Debt Securities, the aggregate outstanding principal amount of the
Newcourt Debt Securities to be covered by the Company Guarantee is expected to
increase in the future.
The Company's obligations under the Company Guarantee represent an
irrevocable and unconditional guarantee of the due and punctual payment to the
Newcourt Noteholders, on demand, whether at stated maturity or otherwise, of all
debts, liabilities and obligations of Newcourt under the Newcourt Debt
Securities, including present and future, direct and indirect, absolute and
contingent and matured and unmatured debts, liabilities and obligations. The
liability of the Company under the Company Guarantee is anticipated to be
unlimited as to amount and to be absolute and unconditional irrespective of any
conditions or circumstances that might otherwise constitute a defense available
to the Company or Newcourt, including any defense based on the lack of validity
or the unenforceability of the Newcourt Debt Securities or any defense or
counterclaim available to Newcourt.
Sensitivity to Ratings on Debt. As a result of the consummation of the
Newcourt Acquisition, each of the four statistical rating organizations that
have been rating the Company's securities maintained or upgraded their
respective ratings on the Company's short-term and (where applicable) long-term
senior unsecured debt. No assurance can be given that any or all of such rating
organizations will not at any future time or from time to time establish
different ratings on the Company's senior unsecured short-term or long-term
debt. To the extent that any of such rating organizations assigns a lower rating
than the existing ratings, such downgrading would result in relatively higher
borrowing costs for the Company, reduce its access to its traditional funding
sources and reduce its competitiveness, particularly if any such assigned rating
is in a generic rating category that signifies that the relevant debt of the
Company is less than investment grade. In addition, certain ratings downgrading
could result in the termination of one or more of the License Agreements with
AT&T and NCR (as defined below) or the 1998 Lucent Agreement (as defined below).
See ' -- Changes in Relationship with AT&T/Lucent/NCR -- Operating and Certain
Other Agreements with AT&T/Lucent/NCR' below. Any such downgrading could have a
material adverse effect on the Company.
Liquidity and Debt Service. The Company's business requires substantial
amounts of cash to support its growth and operations. The Merged Company's (as
defined below) ability to obtain funds and the cost of such funds could be
affected by its credit rating and restrictions contained in existing or future
debt instruments and by other events beyond its control, such as interest rates,
general economic conditions and the perception of its business, results of
operations, leverage, financial condition and business prospects.
Securitization Program. The Company's securitization transactions,
structured as both private conduit programs and the sale of publicly offered
securities, are an important part of the Company's financing to manage its
leverage ratio and to transfer credit risk. Any delay in the securitization of
finance receivables would cause leverage to fluctuate, postpone the recognition
of the gain on such finance receivables and cause the Company's net income to
fluctuate from period to period.
CONTINUITY OF MANAGEMENT
The Merged Company's success depends to a significant extent upon the
continued services of its management. There is no assurance that any of
Newcourt's or the Company's existing officers and key employees will remain in
their current positions for any period of time following the date hereof. The
unavailability of the continued services of such persons could have a material
adverse effect on the Company's business.
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CHANGES IN RELATIONSHIPS WITH AT&T/LUCENT/NCR
RELIANCE ON MAJOR VENDORS. A substantial portion of the Company's net
income is attributable to the financing provided by the Company to customers of
AT&T Corp. ('AT&T'), Lucent Technologies Inc. ('Lucent') and NCR Corporation
('NCR') with respect to products manufactured or distributed by them
('AT&T/Lucent/NCR Products') and, to a lesser extent, to AT&T, Lucent and NCR as
end-users, primarily with respect to the lease of information technology and
other equipment to them as end-users and the administration and management of
certain leased assets on behalf of AT&T, Lucent and NCR. The Company's
commercial relationships with AT&T, Lucent and NCR are currently governed by
certain agreements.
Although the proportion of the Company's total revenues from sources not
attributable to AT&T, Lucent and NCR has grown over the last several years, a
substantial portion of the Company's net income has been generated by the
Company's relationship with AT&T, Lucent and NCR. A significant decrease in the
portion of the sales of the AT&T/Lucent/NCR Products that are financed by the
Company, or in the absolute amount of AT&T, Lucent and/or NCR product sales (in
either case, particularly with respect to Lucent), or in the amount of
transactions effected by the Company with AT&T, Lucent and/or NCR as end-user
(particularly with respect to AT&T) would have a material adverse effect on the
Company's results of operations and financial condition.
Operating and Certain Other Agreements with AT&T/Lucent/NCR. The initial
terms of each of the Operating Agreements (see 'The Company -- Relationship with
AT&T/Lucent/NCR') (pursuant to which, among other things, the Company serves as
preferred provider of financing services and has certain related and other
rights and privileges in connection with the financing of equipment of the
customers of AT&T and NCR) will expire on August 4, 2000, but will be
automatically renewed for successive two-year periods unless either party
thereto gives the other a non-renewal notice at least one year prior to the end
of the initial or renewal term. Neither AT&T nor NCR is required to renew the
term of its Operating Agreement beyond the expiration of the current term on
August 4, 2000.
On March 9, 1998, Newcourt signed a new five-year agreement with Lucent
(the '1998 Lucent Agreement') which expands the global financing program
established to serve Lucent's business systems customers. The term of the 1998
Lucent Agreement is from October 1, 1997 through September 30, 2002. The 1998
Lucent Agreement replaces the Lucent Operating Agreement (as defined below) and
the letter agreements between the Company and Lucent, the initial terms of which
were scheduled to expire on August 4, 2000. See 'The Company -- Relationship
with AT&T/Lucent/NCR' below. In addition to the extended term of the 1998 Lucent
Agreement, other changes from the previous Lucent Operating Agreement include
Newcourt being the preferred provider of financing services for a greater
portion of Lucent's equipment and related product sales, a change in the
methodology in calculating the amount required to be paid to Lucent (based upon
specific financial, service and performance levels tied to compensation) which
is expected to result in an increase in such amount, and a single point of
contact for customers. The 1998 Lucent Agreement also includes certain early
termination provisions and a buy-out option that could have a material impact on
the Company's future operations, if exercised. Lucent is not required to renew
the term of the 1998 Lucent Agreement beyond the current term. In the event of
either (a) an early termination or buy-out or (b) a non-renewal of the 1998
Lucent Agreement by Lucent, Newcourt will have an extended wind-down period with
cost recovery.
The impact of the 1998 Lucent Agreement on the Company's future net income
is at this time unknown. While there is a possibility that the Company's future
net income from Lucent transactions may increase as a result of an anticipated
increase in financing volume arising from Newcourt being the preferred provider
of financing services for a greater portion of Lucent's equipment and related
product sales, there also is a possibility that the Company's future net income
from Lucent transactions may decrease as a result of the increased amounts due
to Lucent under the 1998 Lucent Agreement.
Although the Company intends to seek to maintain and improve its existing
relationships with Lucent, NCR and AT&T, no assurance can be given that the
Operating Agreements or the 1998 Lucent Agreement, will be extended beyond their
respective termination dates or, if extended, that the terms and conditions
thereof will not be modified in a manner adverse to the Company. Failure to
renew the Operating Agreements and the 1998 Lucent Agreement, on terms not
adverse to the Company could have a material adverse effect on the Company.
Moreover, in certain circumstances the Operating
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Agreements and the 1998 Lucent Agreement may be terminated prior to their
respective expiration dates.
CERTAIN INCREASED COSTS AND EXPENSES
As a result of the Newcourt Acquisition and the related integration plan
for the Merged Company, AT&T Capital's net income will be adversely impacted
over the next eighteen months. Such integration plan is expected to result in
additional costs which include, but are not limited to, severance and other
employee benefit costs, systems conversions, location closures and other
restructuring costs.
AT&T Capital is targeting to reduce its ratio of operating expenses to
owned and managed assets over the next few years. These reductions are expected
to result from extensive cost savings programs and economies of scale in
processing operations, administration and centralized services. While it is
anticipated that these savings will be recognized, any unanticipated event in
the integration of the businesses by both Newcourt and AT&T Capital may require
significant management time and cause a delay in recognition of the cost
savings.
COMPETITION
The equipment leasing and finance industry in which the Company operates is
highly competitive and is undergoing a process of consolidation. As a result,
certain of the Company's competitors' relative cost bases have been reduced.
Participants in the industry compete through price (including the ability to
control costs), risk management, innovation and customer services. Principal
cost factors include the cost of funds, the cost of selling to or obtaining new
end-user customers and vendors and the cost of managing portfolios. The
Company's competitors include captive or related leasing companies (such as
General Electric Capital Corporation and IBM Credit Corporation), independent
leasing companies (such as Comdisco, Inc.), certain banks engaged in leasing,
lease brokers and investment banking firms that arrange for the financing of
leased equipment, and manufacturers and vendors which lease their own products
to customers. In addition, the Company competes with all banking and other
financial institutions, manufacturers, vendors and others who extend or arrange
credit for the acquisition of equipment, and in a sense, with end-users'
available cash resources to purchase equipment that the Company may otherwise
finance. Many of the competitors of the Company are large companies that have
substantial capital, technological and marketing resources; some of these
competitors are significantly larger than the Company and have access to debt at
a lower cost than the Company. In addition, the Company may not have, in the
immediate future, access to sufficient U.S. Federal tax capacity to pursue
efficiently U.S. tax based lease financing.
CERTAIN OTHER RISKS
The Company is subject to certain other risks including the risk that its
allowance for credit losses may not prove adequate to cover ultimate losses and
that its estimated residual values will not be realized at the end of the lease
terms. There can be no assurance that such allowance will prove adequate to
cover losses in connection with the Company's investment in finance receivables,
capital leases and operating leases or that such residual values (which have
historically been a significant element of the net income of the Company) will
be realized.
READINESS FOR YEAR 2000
Prior to its acquisition by Newcourt, AT&T Capital had begun addressing the
Year 2000 issue, also known as the 'millennium bug'. This included inventories
of most systems as well as some conversion effort on major systems.
The Merged Company (as defined below) is addressing the Year 2000 issue
from a global perspective. In early 1998, the Merged Company established a
global Year 2000 Program Office to provide oversight from both a business and
technical perspective. The program will coordinate vendors, consultants and
regional Year 2000 resources. The Merged Company, including AT&T Capital, plans
to convert its critical systems by the end of 1998 with conversion of remaining
systems and compliance testing and certification to be completed in 1999. As
part of the integration strategy, the Merged Company plans to aggressively
consolidate onto a limited set of identified Year 2000 compliant systems in
order to achieve operational efficiencies and to minimize the Year 2000
exposures and costs.
Management does not anticipate that the total cost to the Company of these
Year 2000 compliance activities will be material to its financial position or
results of operations in any given year.
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THE COMPANY
GENERAL
AT&T Capital Corporation ('AT&T Capital' or the 'Company') is a
full-service, diversified equipment leasing and finance company that operates
principally in the United States and also has operations in Europe, Canada, the
Asia/Pacific region, Mexico and South America. The Company is one of the largest
equipment leasing and finance companies in the United States and is the largest
lessor of telecommunications equipment in the United States, in each case, based
on the aggregate value of equipment leased or financed.
AT&T Capital's principal executive offices are located at 44 Whippany Road,
Morristown, New Jersey 07962 and its telephone number is (973) 397-3000.
AT&T Capital, through its various subsidiaries, leases and finances a wide
variety of equipment, including telecommunications equipment (such as private
branch exchanges, telephone systems and voice processing units), information
technology equipment (such as personal computers, retail point of sale systems
and automated teller machines), general office, manufacturing and medical
equipment ('General Equipment'), and transportation equipment. In addition, AT&T
Capital provides franchise financing for franchisees and financing
collateralized by real estate. At December 31, 1997, the Company's portfolio
assets (investment in finance receivables, capital leases and operating leases)
were comprised of, or collateralized by, General Equipment (33%), information
technology equipment (22%), telecommunications equipment (22%), loans secured by
real estate (12%) and transportation equipment (11%). The Company's leasing and
financing services are marketed (i) to customers of equipment manufacturers,
distributors and dealers with which the Company has a marketing relationship for
financing services and (ii) directly to end-users of equipment. The Company's
approximately 500,000 customers include large global companies, small and
mid-sized businesses and federal, state and local governments and their
agencies.
During the period since its founding in 1985, the Company has achieved
significant growth in assets, finance volume (total principal amount of loans
and total cost of equipment associated with finance and lease transactions
recorded by the Company and the increase, if any, in outstanding inventory
financing and asset-based lending transactions), revenues and net income. At
December 31, 1997, the Company's total assets were $8.8 billion, an increase of
8.4% over the prior year-end; finance volume for 1997 was $5.7 billion, an
increase of 8.0% over 1996; total revenues for 1997 were $1.8 billion, a
decrease of 7.1% from 1996; and net income of $21.0 million for 1997 was 87.5%
less than the Company's net income for 1996. The 1997 decrease in total revenues
was primarily due to lower capital lease revenue resulting from the Company's
securitization program, introduced by its $3.1 billion asset securitization in
October 1996, and lower securitization gains, net of service fee revenue. The
1997 decrease in net income was due to the decline in total revenues as
previously discussed, higher costs due to increased leverage associated with the
Company's post-1996 merger capital structure and certain restructure charges of
$23.0 million, certain other severance charges of $13.9 million and a net loss
on the December sales of the Company's commercial fleet automotive and inventory
finance businesses and the anticipated sale of the Company's remaining U.S.
consumer automotive business of $12.2 million, all on an after-tax basis. The
restructure charges and net loss on sales of businesses were the result of the
Company's continued objective to streamline costs, improve operating
efficiencies and exit non-strategic businesses.
AT&T Capital provides its financial products and services to its worldwide
customers and clients through three principal market channels: Vendor Finance,
Direct Customer Finance and International Finance. For the year ended December
31, 1997, the percentage of the Company's aggregate finance volume derived from
the Company's Vendor Finance, Direct Customer Finance and International Finance
programs was 40%, 33% and 27%, respectively. See 'The Merged Company' below.
AT&T Capital seeks to implement its strategies by taking advantage of what
it believes are its competitive strengths: (i) high-volume processing
capabilities that enable it to serve a large number of customers in a timely and
efficient manner; (ii) significant experience in structuring and managing
financing programs tailored to specific customer needs; (iii) risk management
skills (including initial credit review and residual value assessment and
continuing portfolio management capabilities); (iv)
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asset management skills (including equipment remarketing skills that enhance the
ability of the Company to realize the residual values of its equipment); and (v)
financial structuring capabilities.
The Company was founded in 1985 by AT&T as a captive finance company to
assist AT&T's equipment marketing and sales efforts by providing its customers
with sophisticated financing. AT&T Capital has operated independently since its
initial public offering in 1993 (the 'IPO').
On October 1, 1996, the Company consummated a merger (the 'Merger') with
Antigua Acquisition Corporation, a Delaware corporation ('Merger Sub'), pursuant
to an Agreement and Plan of Merger (the 'Merger Agreement') among AT&T, the
former indirect owner of approximately 86% of the outstanding common stock of
the Company, Hercules Holdings (Cayman) Limited, a Cayman Islands corporation
('Holdings'), and Merger Sub, a majority-owned subsidiary of Holdings. Pursuant
to the Merger Agreement, Merger Sub was merged with and into the Company, with
the Company continuing its corporate existence under Delaware law as the
surviving corporation.
NEWCOURT ACQUISITION
On November 17, 1997, Newcourt agreed to acquire all of the issued and
outstanding common shares of the Company. On January 12, 1998 the acquisition of
the shares of the Company by Newcourt (the 'Newcourt Acquisition') was completed
and the Company became an indirect wholly-owned subsidiary of Newcourt. The
aggregate purchase price paid by Newcourt on the acquisition closing was
approximately $1.6 billion (C$2.3 billion). Of this amount, approximately $1.0
billion (C$1.5 billion) was paid in cash and the remaining approximately $0.6
billion (C$0.8 billion) was satisfied by the issuance of approximately 17.6
million common shares of Newcourt to Holdings, which is indirectly owned by
Nomura International plc and which owned 97.4% of the outstanding shares of the
Company. Holdings has agreed, subject to certain exceptions, that such Newcourt
common shares shall not be sold, transferred or otherwise disposed of for
periods of six, twelve and eighteen months following the acquisition closing.
THE MERGED COMPANY
The resulting combination of Newcourt and the Company (the 'Merged
Company') has created one of the largest providers of vendor finance in the
world, and one of the world's largest non-bank commercial asset finance
companies. With corporate headquarters in Toronto, Canada, the Merged Company
has approximately $23.5 billion (C$33.7 billion) of owned and managed assets at
December 31, 1997. In addition, the Merged Company remains well capitalized with
equity of $2.7 billion (C$3.9 billion) resulting in a leverage ratio (defined as
total debt to total equity plus preferred securities) of 3.2 times at December
31, 1997.
The Merged Company's international origination and servicing capabilities
now span 24 countries around the globe. The acquisition provides a platform that
enables both Newcourt and the Company to better serve their respective
manufacturing clients in Canada, the U.S. and the U.K. and creates new
opportunities for serving clients in the Asia/Pacific region, Europe, Mexico and
South America.
The businesses of Newcourt and the Company are complementary in many
respects. The Company possesses asset management and processing skills, systems
capabilities, a broad range of clients, a solid credit underwriting performance
and a consistent operating history. Newcourt originates asset finance business
through innovative financing techniques, provides focused client services and
complementary product offerings. In addition, both Newcourt and the Company have
a conservative risk management culture.
The Merged Company will offer its financing services to clients through
three primary business units: Newcourt Financial, Newcourt Capital, and Newcourt
Services. Newcourt Financial, the Merged Company's commercial finance business,
will provide asset-based financing for a variety of equipment to vendors and
customers. Newcourt Capital, the Merged Company's corporate finance business,
will provide structured corporate finance to a growing list of international
clients, including major corporations, governments and agencies. Finally,
Newcourt Services, the Merged Company's control, growth and support services,
will be responsible for the underwriting, funding, administration and risk
management needs of Newcourt Financial and Newcourt Capital.
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Newcourt Financial offers its lending services through select strategic
relationships with equipment manufacturers, dealers and distributors and certain
professional associations and organizations. Newcourt Financial's strategy
focuses on the creation, maintenance and enhancement of vendor programs ensuring
its position as the premier provider of global asset based financial products.
Newcourt Financial focuses on the following sectors: Transportation and
Industrial Finance, Technology Finance, Telecommunications Finance, Business
Finance, Specialty Finance, Technology Services, International/Joint Ventures,
and Operations.
Newcourt Capital is the corporate finance business which provides asset
based financing for high value assets and related advisory services to equipment
manufacturers, corporate clients, governments and public sector agencies.
Newcourt Capital focuses on the following sectors: Aerospace Finance, Rail
Finance, Public Sector Finance, Project Finance, Structured Finance,
Telecommunication and Media Finance, Business Finance, and Underwriting and
Syndication.
Newcourt Services is the service business unit responsible for providing
cost effective control and support services to Newcourt Financial and Newcourt
Capital. Newcourt Services consists of the following corporate functions:
Treasury, Credit and Risk Management, Financial Reporting and Administration,
Human Resources, Communications & Marketing, Tax Planning and Compliance,
Systems Development, and Quality Assurance.
A successful integration is key to the Merged Company's future performance,
which makes it imperative that the Company be quickly and effectively
integrated. To this end, the Merged Company has established an integration
office to oversee the implementation of the merger. The integration office
consists of 6 full time senior management members and 11 task forces staffed by
90 employees of the Company and Newcourt.
Going forward, the Merged Company will focus a great deal of attention on
the significant cost saving opportunities created by geographic and business
segment synergies. The Merged Company plans to achieve substantial cost
reductions through the consolidation of facilities, systems and functions in
Canada, the U.S. and the U.K.
The Company has provided an irrevocable unconditional guarantee of payment
of certain of Newcourt's outstanding and future debt instruments as well as a
subordinated guarantee of certain affiliate debentures and certain distribution,
redemption and liquidation payments in connection with the issuance and sale by
the Company of certain affiliate preferred securities. Likewise Newcourt will
provide an irrevocable unconditional guarantee of all Securities.
RELATIONSHIP WITH NEWCOURT
Newcourt is an independent financial services company which originates and
manages asset-based financings. Newcourt was formed in 1984 as an investment
bank which originated and structured asset based financings for the corporate
and institutional asset finance market and syndicated such financings to
Canadian financial institutions. In 1988, Newcourt broadened its activities to
include vendor and direct equipment financing.
Newcourt and its subsidiaries originate their asset-based financings by
providing services to specific segments of the vendor asset finance market and
corporate and institutional asset finance market. Newcourt's strategy has been
to sell and manage, rather than own, the majority of the finance assets it and
its subsidiaries originate, thereby reducing its capital requirements.
Consequently, Newcourt's consolidated revenues are generated primarily by gains
and fees earned from the sale of financings it and its subsidiaries originate
and by management fees earned following such sales.
Newcourt's principal executive offices are located at BCE Place, 181 Bay
Street, Suite 3500, P.O. Box 827, Toronto, Ontario, Canada M5J 2T3 and its
telephone number is (416) 594-2400.
As of December 31, 1997, on a Canadian GAAP basis, Newcourt had total
assets of $4.3 billion (C$6.2 billion) compared with $1.6 billion (C$2.2
billion) as of December 31, 1996, total liabilities of $2.2 billion (C$3.1
billion) as of December 31, 1997 compared with $1.2 billion (C$1.7 billion) as
of December 31, 1996, shareholders' equity of $2.1 billion (C$3.1 billion) as of
December 31, 1997 compared with $0.4 billion (C$0.5 billion) as of December 31,
1996 and total revenues and net income
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of $230.1 million (C$318.4 million) and $26.3 million (C$36.4 million),
respectively for the year ended December 31, 1997 compared with $125.8 million
(C$171.6 million) and $37.2 million (C$50.7 million), respectively for the year
ended December 31, 1996.
RELATIONSHIP WITH AT&T/LUCENT/NCR
In connection with the Company's IPO in 1993, the Company entered into a
series of agreements with AT&T to formalize the relationship between the two
companies, including the following three significant agreements, each dated as
of June 25, 1993: (i) an Operating Agreement (the 'AT&T Operating Agreement'),
(ii) an Intercompany Agreement (the 'Intercompany Agreement') and (iii) a
License Agreement (the 'License Agreement'). The Company executed agreements
comparable to the AT&T Operating Agreement with each of Lucent Technologies,
Inc. ('Lucent') and NCR Corporation ('NCR') (the 'Lucent Operating Agreement'
and 'NCR Operating Agreement,' respectively, and, together with the AT&T
Operating Agreement, the 'Operating Agreements'). In addition, the Company also
entered into letter agreements (the 'Agreement Supplements') with Lucent and NCR
pursuant to which Lucent and NCR agreed that various provisions of the
Intercompany Agreement and the License Agreement would apply equally to them.
The initial term of each of the Operating Agreements, the Intercompany
Agreement, the License Agreement and the Agreement Supplements is scheduled to
end on August 4, 2000. In addition, AT&T has the right under the License
Agreement, after two years' prior notice, to require the Company to discontinue
use of the 'AT&T' trade name as part of the Company's corporate or 'doing
business' name.
On March 9, 1998, Newcourt signed the 1998 Lucent Agreement which expands
the global financing program established to serve Lucent's business systems
customers. The 1998 Lucent Agreement replaces the Lucent Operating Agreement and
the letter agreements previously discussed between the Company and Lucent. The
1998 Lucent Agreement covers the period from October 1, 1997 through September
30, 2002. See 'Risk Factors -- Changes in Relationship with AT&T/Lucent/NCR.'
At December 31, 1997, on an owned and securitized basis, the Company's 100
largest customers (including AT&T and Lucent) accounted for approximately 18% of
the Company's owned and securitized portfolio assets, and no customer (with the
exception of AT&T and Lucent, in the aggregate) accounted for more than 1% of
such portfolio assets.
USE OF PROCEEDS
The proceeds from the sale of the Securities will be used primarily to
finance installment sale and lease agreements with respect to direct financing
programs and to repay debt of the Company and its subsidiaries as they become
due. In addition, the proceeds will be used for borrowings by affiliated
entities, all of whom are within the Merged Company's consolidated group, in
connection with the acquisition of equipment, repayment of debt and general
corporate purposes. Ongoing purchases of finance receivables and installment
sale and lease agreements, direct financing programs and any future financing
arrangements will be financed from various sources, including the issuance of
commercial paper and the sale of Securities. The amount and timing of the sales
of the Securities will depend on the timing of asset purchases, market
conditions and the availability of other funds to the Company.
The debt to be repaid with the proceeds from such sales consists generally
of medium-term notes and commercial paper. Such debt has various maturities and
bears interest at various fixed rates. At December 31, 1997, the aggregate
principal amount of the Company's outstanding medium-term notes was
approximately $4.9 billion, and the Company had approximately $1.6 billion in
principal amount of commercial paper outstanding at such date. The weighted
average interest rate of such medium-term notes and commercial paper at December
31, 1997 was approximately 6.30% and 6.37%, respectively. The net proceeds of
all the outstanding medium-term notes and commercial paper issued or incurred by
the Company within the last year to be repaid with net proceeds from the sale of
Securities have been used by the Company as working capital for general
corporate purposes or to repay previously outstanding commercial paper or
medium-term notes.
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RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the historical ratios of earnings to fixed
charges for the Company for the years ended December 31, 1993 through 1997. The
table also includes such ratio calculated on a pro forma basis to give effect to
the Newcourt Acquisition.
<TABLE>
<CAPTION>
PRO FORMA(1)(2) HISTORICAL(1)
----------------------- -------------------------------------
YEAR ENDED DECEMBER 31, YEAR ENDED DECEMBER 31,
----------------------- -------------------------------------
1997 1997 1996 1995 1994 1993
----------------------- ----- ----- ----- ----- -----
(UNAUDITED) (UNAUDITED)
<S> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges................ 1.03 1.07 1.60 1.50 1.62 1.57
</TABLE>
- ------------
(1) Earnings before income taxes and cumulative effect on prior years of
accounting change plus fixed charges (the sum of interest on indebtedness
and the portion of rentals representative of the interest factor) divided by
fixed charges. Fixed charges do not include distributions on
Company-obligated preferred securities of the company's subsidiaries. See
'The Company -- General' for a discussion regarding the reduction of the
Company's net income for 1997. Prior to the Merger, a portion of the
Company's indebtedness to AT&T did not bear interest.
(2) The pro forma data represents the Company's ratio of earnings to fixed
charges as if the Newcourt Acquisition had occurred on January 1, 1997. See
'AT&T Capital Corporation and Subsidiaries and Newcourt Credit Group Inc.
Unaudited Pro Forma Consolidated Financial Statements'.
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DESCRIPTION OF THE DEBT SECURITIES
The Debt Securities are to be issued under the Indenture dated as of April
1, 1998, as amended (the 'Indenture'), between the Company and The Chase
Manhattan Bank, as Trustee (the 'Trustee'). A copy of the Indenture is filed as
an exhibit to the Registration Statement. The following summaries of certain
provisions of the Indenture do not purport to be complete and are subject to,
and are qualified in their entirety by reference to, all the provisions of the
Indenture, including the definitions therein of certain terms. Section
references are to sections of the Indenture, and wherever particular provisions
are referred to, such provisions are incorporated by reference as part of the
statement made, and the statement is qualified in its entirety by such
reference.
The Debt Securities are not guaranteed or supported in any way by AT&T.
GENERAL
The Indenture does not limit the aggregate principal amount of Debt
Securities that may be issued thereunder and provides that the Debt Securities
may be issued from time to time in one or more series. Reference is made to the
Prospectus Supplement which accompanies this Prospectus for a description of the
Debt Securities being offered thereby including:
(1) the title of the series of the Debt Securities;
(2) the aggregate principal amount of such Debt Securities;
(3) the percentage of their principal amount at which such Debt
Securities will be sold;
(4) the date(s) on which such Debt Securities will mature, or whether
such securities are payable on demand;
(5) the rate(s) per annum at which such Debt Securities will bear
interest, if any, or the method of calculating such rate or rates of
interest;
(6) the times at which such interest, if any, will be payable;
(7) the terms for redemption, early repayment or amortization, if
any;
(8) the denominations in which such Debt Securities are authorized to
be issued;
(9) the coin or currency in which the Debt Securities are
denominated, which may be a Euro;
(10) any provision permitting payments of the principal of or any
premium or interest on the Debt Securities in a coin or currency other than
the currency in which the Debt Securities are denominated, including a
non-U.S. dollar denominated currency;
(11) the manner in which the amount of payments of principal of and
any premium or interest on the Debt Securities is to be determined if such
determination is to be made with reference to one or more indices (which
will be based on one or more U.S. or foreign stocks, bonds or other
securities, one or more U.S. or foreign interest rates, one or more
currencies or currency units, one or more commodities, or one or more
equipment leases, third-party loans, tax receipts, real property values,
SWAP receivables, reinsurance contracts, pooled receivables, or any
combination of the foregoing);
(12) whether such Debt Securities are issuable in registered form
('registered Debt Securities') or bearer form (with or without interest
coupons) ('bearer Debt Securities') or both, and whether such Debt
Securities shall be uncertificated;
(13) whether any series of Debt Securities will be represented by one
or more temporary or permanent global Debt Securities ('global Debt
Securities') and, if so, whether any such global Debt Securities will be in
registered or bearer form, the identity of the depositary for such global
Debt Security or Securities and the method of transferring beneficial
interests in such global Debt Security or Securities;
(14) if a temporary global Debt Security is to be issued with respect
to a series, the terms upon which interests in such temporary global Debt
Security may be exchanged for interests in a permanent global Debt Security
or for definitive Debt Securities of the series and the terms upon
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which interest in a permanent global Debt Security, if any, may be
exchanged for definitive Debt Securities of the series;
(15) information with respect to book-entry procedures, if any;
(16) whether and under what circumstances the Company will pay
additional amounts on any Debt Securities held by a person who is not a
U.S. person in respect of taxes or similar charges withheld and, if so,
whether the Company will have the option to redeem such Debt Securities
rather than pay such additional amounts; and
(17) any other terms, including any terms which may be required by or
advisable under United States laws and regulations or advisable in
connection with the marketing of the Debt Securities of such series, which
will not be inconsistent with the provisions of the Indenture.
Debt Securities of any series may be registered Debt Securities or bearer
Debt Securities or both as specified in the terms of the series. Additionally,
Debt Securities of any series may be represented by one or more global Debt
Securities registered in the name of a depositary's nominee and, if so
represented, beneficial interests in such a global Debt Security will be shown
on, and transfers thereof will be effected only through, records maintained by a
designated depositary and its participants. Debt Securities of any series may
also be uncertificated. Unless otherwise indicated in the Prospectus Supplement,
no bearer Debt Securities (including Debt Securities in permanent global bearer
form) will be offered, sold, resold or delivered to any United States person (as
defined under 'Limitations on Issuance of Bearer Debt Securities' below) in
connection with their original issuance or their exchange for a portion of a
temporary or permanent global Debt Security.
Unless otherwise indicated in the Prospectus Supplement, principal and
interest, if any, will be payable at the office of one or more paying agents as
specified in the Prospectus Supplement; provided that, in the case of registered
Debt Securities, payment of interest may be made at the option of the Company by
check mailed to the address of the person entitled thereto as it appears in the
register of the Debt Securities. To the extent set forth in the Prospectus
Supplement, except in special circumstances set forth in the Indenture,
interest, if any, on bearer Debt Securities will be payable only against
presentation and surrender of the coupons for the interest installments
evidenced thereby as they mature at the office of a paying agent of the Company
located outside of the United States and its possessions. The Company will
maintain one or more such agents for a period of two years after the principal
of such bearer Debt Securities has become due and payable. During any period
thereafter for which it is necessary in order to conform to United States tax
laws or regulations, the Company will maintain a paying agent outside of the
United States and its possessions to which the bearer Debt Securities and
coupons related thereto may be presented for payment and will provide the
necessary funds therefor to such paying agent upon reasonable notice. No payment
with respect to any bearer Debt Security will be made at any office or agency of
the Company in the United States or by check mailed to any address in the United
States or by transfer to an account maintained with a bank located in the United
States. Notwithstanding the foregoing, payment of principal of (and premium, if
any) and interest on bearer Debt Securities denominated and payable in U.S.
dollars will be made at the office of the Company's Paying Agent in the Borough
of Manhattan, The City of New York if, and only if, payment of the full amount
thereof in U.S. dollars at all offices or agencies outside the United States is
illegal or effectively precluded by exchange controls or other similar
restrictions.
In connection with any sale during the 'restricted period' as defined in
Section 1.163-5(c)(2)(i)(D)(7) of the United States Treasury Regulations
(generally, the first 40 days after the closing date and, with respect to unsold
allotments, until sold), no bearer Debt Security shall be mailed or otherwise
delivered to any location in the United States (as defined under 'Limitations on
Issuance of Bearer Debt Securities' below). A bearer Debt Security in definitive
form (including interests in a permanent global Security) may be delivered only
if the person entitled to receive such bearer Debt Security furnishes written
certification, in the form required by the applicable Indenture, to the effect
that such bearer Debt Security is not owned by or on behalf of a United States
person (as defined under 'Limitations on Issuance of Bearer Debt Securities'
below), or, if a beneficial interest in such bearer Debt Security is owned by or
on behalf of a United States person, that such United States person (i) acquired
and holds the bearer Debt Security through a foreign branch of a United States
financial institution, (ii) is a foreign branch of a United States financial
institution purchasing for its own account
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or resale (and in either case (i) or (ii) such financial institution agrees to
comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal
Revenue Code of 1986, as amended (the 'Code'), and the regulations thereunder)
or (iii) is a financial institution purchasing for resale during the restricted
period only to non-United States persons outside the United States. See
'Limitations on Issuance of Bearer Debt Securities' below and 'Global
Securities -- Bearer Debt Securities'.
Bearer Debt Securities and the coupons related thereto will be transferable
by delivery. Unless otherwise indicated in the Prospectus Supplement, registered
Debt Securities will be transferable at the office of one or more registrars as
specified in the Prospectus Supplement.
The Debt Securities will be unsecured obligations of the Company and will
rank pari passu (equal in right of payment) with all other unsecured and
unsubordinated indebtedness of the Company. At December 31, 1997, the Company's
consolidated indebtedness (all of which is unsecured and unsubordinated) was
approximately $7.1 billion. The Debt Securities will, however, be effectively
subordinate (with respect to the assets of the Company's subsidiaries) to the
indebtedness and other liabilities of such subsidiaries. At December 31, 1997,
such indebtedness and other liabilities aggregated approximately $1.1 billion.
The Company has no current intention or plan to increase the amount of such
indebtedness in the future, other than in connection with the growth of the
Company's business.
Unless otherwise indicated in the Prospectus Supplement, the Debt
Securities will be issued only in denominations that are integral multiples of
$1,000. No service charge will be made for any transfer or exchange of the Debt
Securities, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Debt Securities may be issued as original issue discount Debt Securities
(bearing no interest or interest at a rate which at the time of issuance is
below market rates) to be sold at a substantial discount below their stated
principal amount. United States federal income tax consequences and other
special considerations applicable to any such original issue discount Debt
Securities will be described in the Prospectus Supplement relating thereto.
Registered Debt Securities may be exchanged for an equal aggregate
principal amount of registered Debt Securities of the same series, date of
maturity, interest rate and original issue date in such authorized denominations
as may be requested upon surrender of the registered Debt Securities to the
registrar or a paying agent of the Company as specified in the Prospectus
Supplement and upon fulfillment of all other requirements of such agent.
To the extent permitted by the terms of a series of Debt Securities
authorized to be issued in registered form and bearer form, bearer Debt
Securities may be exchanged for an equal aggregate principal amount of
registered or bearer Debt Securities of the same series, date of maturity,
interest rate and original issue date in such authorized denominations as may be
requested upon delivery of the bearer Debt Securities with all unpaid coupons
relating thereto to the registrar or a paying agent of the Company as specified
in the Prospectus Supplement and upon fulfillment of all other requirements of
such agent. Registered Debt Securities will not be exchangeable for bearer Debt
Securities.
COVENANTS
Set forth below is a description of the principal covenants of the Company
contained in the Indenture. The Indenture does not restrict the Company, other
than as set forth below, from engaging in any highly leveraged transaction,
reorganization, restructuring, merger or similar transaction, or from incurring
additional indebtedness or causing its subsidiaries to incur additional
indebtedness, any of which transactions could have a material adverse effect on
the holders of the Debt Securities.
CONSOLIDATION, MERGER, SALE OR CONVEYANCE OF ASSETS OF THE
COMPANY. Pursuant to the Indenture, each of the Company and Newcourt (together
with any successor or assign, the 'Guarantor') covenants that it will not merge
or consolidate with any other corporation or sell or convey all or substantially
all its assets to any person (other than such a sale or conveyance to a
Subsidiary (as defined below) of the Company or the Guarantor or any successor
thereto (such a sale or conveyance being called an 'Asset Drop-Down')), unless
(1) either the Company or the Guarantor is the continuing corporation or the
successor corporation or the person which acquires by sale or conveyance
substantially all the assets of the Company or the Guarantor (if other than the
Company or the Guarantor) is a corporation
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organized under the laws of the United States of America or any state thereof or
of Canada or any province or territory thereof and expressly assumes the due and
punctual payment of the principal of, premium, if any, and interest, if any, on
all the Debt Securities and the due and punctual performance and observance of
all the covenants and conditions of the Indenture to be performed or observed by
the Company or the Guarantor, by supplemental indenture in form satisfactory to
the Trustee, executed and delivered to the Trustee by such corporation, and (2)
the Company or the Guarantor or such successor corporation, as the case may be,
is not, immediately after such merger or consolidation, or such sale or
conveyance, in default in the performance of any such covenant or condition. In
the case of any such consolidation, merger, sale or conveyance, and following
such an assumption by the successor corporation, such successor corporation will
succeed to and be substituted for the Company or the Guarantor, as applicable,
with the same effect as if it had been named in the Indenture, and, in the case
of any such sale or conveyance (other than a conveyance by way of lease), the
Company or the Guarantor, as applicable, will be released and discharged from
all obligations and covenants under the Indenture and the Securities. In the
event of any Asset Drop-Down after the date of the Indenture, any subsequent
sale or conveyance of assets by the Subsidiary of the Company or the Guarantor,
as applicable, to which assets were transferred in such Asset Drop-Down (the
'Drop-Down Subsidiary') will be deemed to be a sale or conveyance of assets by
the Company or the Guarantor for purposes of the covenant described in this
paragraph. (Sections 5.01 and 5.02)
The term 'all or substantially all', which appears in the foregoing
covenant, is not defined in the Indenture, and it does not have a precise
established definition under applicable law. The application of the covenant may
depend on the facts and circumstances of a particular transaction, including the
qualitative as well as the quantitative aspects of such transaction.
Accordingly, there may be uncertainty in connection with any particular
transaction as to whether a sale or conveyance of all or substantially all of
the assets of the Company or the Guarantor has occurred and thus as to whether
the Company or the Guarantor has complied with this covenant. Because New York
law governs the Indenture, New York law will govern the interpretation of such
term.
LIMITATIONS ON INCURRENCE OF SECURED DEBT. The Company will not, nor will
it permit any Restricted Subsidiary (as defined below) to, incur, issue, assume
or guarantee any indebtedness for money borrowed ('debt') secured by any pledge,
mortgage, security interest or lien ('lien') on any property or assets of the
Company or any Restricted Subsidiary, or on any shares of stock or debt of any
Restricted Subsidiary, without effectively providing that the principal of,
premium, if any, and interest on the Debt Securities of each series (together
with, if the Company so determines, any other debt of the Company or such
Restricted Subsidiary, which is not subordinated to the Debt Securities of each
series) shall be secured equally and ratably with (or prior to) such debt, so
long as any such debt shall be so secured, unless, after giving effect thereto,
the aggregate amount of all such secured debt of the Guarantor would not exceed
10% of the Consolidated Net Tangible Assets (as defined below); provided,
however, that (i) any recourse provided by the Company or any Restricted
Subsidiary in connection with any sale, transfer or other disposition by the
Company or any Restricted Subsidiary of Accounts Receivable (as defined below)
or of any Restricted Subsidiary substantially all the assets of which are
Accounts Receivable which constitutes a 'sale' under generally accepted
accounting principles (as in effect at the time of such sale, transfer or other
disposition) shall not, in any event, constitute debt and (ii) no Asset
Drop-Down shall, in any event, constitute a lien; and provided further that
neither the satisfaction and discharge of any debt pursuant to the Indenture or
pursuant to any similar provision in any other indenture or instrument governing
any debt, nor the defeasance of any debt pursuant to the Indenture or pursuant
to any similar provision in any other indenture or instrument governing any
debt, shall be deemed the incurrence, issue, assumption or guarantee of debt
secured by a lien for purposes of this provision. Notwithstanding the foregoing,
this restriction does not apply to: (1) liens on property of, or on any shares
of stock or debt of, any corporation existing at the time such corporation
becomes a Restricted Subsidiary; (2) liens on property, shares of stock, other
equity interests, or debt existing at the time of acquisition or repossession
thereof by the Company or any Restricted Subsidiary; (3) liens on physical
property (or any Accounts Receivable arising in connection with the lease
thereof), shares of stock, other equity interests, or debt acquired (or, in the
case of physical property, constructed) after the date of the Indenture by the
Company or any Restricted Subsidiary, which liens are created prior to, at the
time of, or within one year after such
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acquisition (or, in the case of physical property, the completion of such
construction or commencement of commercial operation of such property, whichever
is later) to secure any debt issued, incurred, assumed or guaranteed prior to,
at the time of, or within one year after such acquisition (or such completion or
commencement, whichever is later) or to secure any other debt issued, incurred,
assumed or guaranteed at any time thereafter for the purpose of refinancing all
or any part of such debt; (4) liens on Accounts Receivable of the Company or any
Restricted Subsidiary arising from or in connection with transactions entered
into by the Company or such Restricted Subsidiary after the date of the
Indenture or on Accounts Receivable acquired by the Company or such Restricted
Subsidiary after such date from others, which liens are created prior to, at the
time of, or within one year after such Accounts Receivable arise or are acquired
or, if later, the completion of the delivery or installation of the equipment or
goods or the rendering of the services or the advancement or loaning of funds
relating thereto (i) as a result of any guarantee, repurchase or other
contingent (direct or indirect) or recourse obligation of the Company or such
Restricted Subsidiary in connection with the discounting, sale, assignment,
transfer or other disposition of such Accounts Receivable or any interest
therein, or (ii) to secure or provide for the payment of all or any part of the
investment of the Company or such Restricted Subsidiary in any such Accounts
Receivable (whether or not such Accounts Receivable are the Accounts Receivable
on which such liens are created) or the purchase price thereof or to secure any
debt (including without limitation Non-Recourse Debt (as defined below)) issued,
incurred, assumed or guaranteed for the purpose of financing or refinancing all
or any part of such investment or purchase price; (5) liens in favor of the
Guarantor or any of the Guarantor's Subsidiaries; (6) liens in favor of the
United States of America or any State thereof or the District of Columbia, or
any agency, department or other instrumentality thereof, to secure progress,
advance or other payments pursuant to any contract or provision of any statute;
(7) liens securing the performance of letters of credit, bids, tenders, sales
contracts, purchase agreements, leases, surety and performance bonds, and other
similar obligations not incurred in connection with the borrowing of money; (8)
liens to secure Non-Recourse Debt in connection with the Company or any
Restricted Subsidiary engaging in any leveraged or single-investor or other
lease transactions, whether (in the case of liens on or relating to leases or
groups of leases or the particular properties subject thereto) such liens be on
the particular properties subject to any leases involved in any of such
transactions and/or the rental or other payments or rights under such leases or,
in the case of any group of related or unrelated leases, on the properties
subject to the leases comprising such group and/or on the rental or other
payments or rights under such leases, or on any direct or indirect interest
therein, and whether (in any case) (i) such liens be created prior to, at the
time of, or at any time after the entering into of such lease transactions
and/or (ii) such leases be in existence prior to, or be entered into by the
Company or such Restricted Subsidiary at the time of or at any time after, the
purchase or other acquisition by the Company or such Restricted Subsidiary of
the properties subject to such leases; and (9) any extension, renewal or
replacement (or successive extensions, renewals or replacements), in whole or in
part, of any of the foregoing; provided, however, that any such extension,
renewal or replacement shall be limited to all or a part of the property or
assets which secured the lien so extended, renewed or replaced (plus any
improvements on such property). (Section 4.03)
'Accounts Receivable' means (i) any accounts receivable (whether or not
earned by performance), chattel paper, instruments, documents, general
intangibles, trade acceptances, any other rights to receive installment, rental
or other payments for, or relating to amounts due or to become due on account of
equipment or goods sold or leased or to be sold or leased or services rendered
or to be rendered or funds advanced or loaned or to be advanced or loaned and
other rights to payment of any kind, (ii) any proceeds of any of the foregoing
and (iii) any interest in any property or asset of any kind (whether of the
obligor under such Accounts Receivable or any other person) securing the payment
of any item listed in clause (i) hereof. (Section 1.01)
'Consolidated Net Tangible Assets' means, at the date of any determination,
the total assets appearing on the consolidated balance sheet of the Guarantor as
at the end of the most recent fiscal quarter of the Guarantor for which such
balance sheet is available, prepared in accordance with generally accepted
accounting principles, less (a) all current liabilities (obligations whose
liquidation is reasonably expected to occur within twelve months), (b)
investments in and advances to Subsidiaries of
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the Guarantor other than Restricted Subsidiaries or other entities accounted for
on the equity method of accounting and (c) Intangible Assets. (Section 1.01)
'Intangible Assets' means the value (net of any applicable reserves), as
shown on or reflected in the Guarantor's consolidated balance sheet, of: (i) all
trade names, trademarks, licenses, patents, copyrights and goodwill; (ii)
organization and development costs; (iii) deferred charges (other than prepaid
items such as insurance, taxes, interest, commissions, rents and similar items
and tangible assets being amortized); and (iv) unamortized debt discount and
expense, less unamortized premium. (Section 1.01)
'Non-Recourse Debt' of the Company or any Restricted Subsidiary means any
indebtedness for borrowed money of the Company or such Restricted Subsidiary, as
the case may be, which is secured by any lien on, or payable solely from the
income and proceeds of, any property (including, without limiting the generality
of such term, any intangible assets), shares of stock, other equity interests or
debt of the Company or such Restricted Subsidiary, as the case may be, and which
is not a general obligation of the Company or such Restricted Subsidiary, as the
case may be. (Section 1.01)
'Restricted Subsidiary' means each Subsidiary of the Company organized
under the laws of any State of the United States or the District of Columbia, no
substantial portion of the business of which is carried on outside the United
States; provided that each Drop-Down Subsidiary will be a Restricted Subsidiary.
(Section 1.01)
'Subsidiary' means any corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by any person. For purposes of
such definition, 'voting stock' means stock ordinarily having voting power for
the election of directors, whether at all times or only so long as no senior
class of stock has such voting power by reason of any contingency. (Section
1.01)
EVENTS OF DEFAULT, NOTICE AND WAIVER
The Indenture provides that, if an Event of Default specified therein in
respect of any series of Debt Securities shall have occurred and be continuing,
either the Trustee or the holders of not less than 25% in aggregate principal
amount of the outstanding Debt Securities of such series may declare the
principal of all the securities of such series to be due and payable. (Section
6.01)
Events of Default in respect of the Debt Securities of any series are
defined in the Indenture as being: default for 90 days in payment of any
interest installment when due; unless otherwise specified in the Prospectus
Supplement with respect to the Debt Securities of any series, default in payment
of principal of or premium, if any, on Debt Securities of such series when due;
default for 90 days after written notice to the Company by the Trustee or by the
holders of not less than 25% in aggregate principal amount of the outstanding
Debt Securities of such series in the performance of any other agreement in the
Debt Securities or Indenture in respect of such series; and certain events of
bankruptcy, insolvency and reorganization of the Company or the Guarantor.
(Section 6.01)
The Indenture provides that the Company will, within 120 days after the
close of each fiscal year, commencing with the first fiscal year following the
issuance of any series of Debt Securities, file with the Trustee a certificate
stating whether or not the Company has complied with all conditions and
covenants on its part contained in the Indenture and, if not, specifying each
default (without regard to any grace period or requirement of notice under the
Indenture) and the nature thereof. (Section 4.04)
The Indenture provides that the Trustee will, within 90 days after the
occurrence of a default in respect of any series of Debt Securities, if such
default is known to the Trustee, give to the holders of such series notice of
all defaults known to it; provided that, except in the case of default in
payment on any of the Debt Securities of such series, the Trustee will be
protected in withholding such notice if it in good faith determines that the
withholding of such notice is in the interest of the holders of such series. The
term 'default' for the purpose of this provision means any event which is, or
after notice or passage of time or both would be, an Event of Default. (Section
7.05)
The Indenture contains provisions entitling the Trustee, subject to the
duty of the Trustee during an Event of Default in respect of any series of Debt
Securities to act with the required standard of care, to
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refuse to perform any duty or exercise any right or power unless it receives
indemnity satisfactory to it. (Section 7.01)
The Indenture provides that the holders of a majority in aggregate
principal amount of the outstanding securities of any series affected (with each
series voting as a separate class) may direct the time, method and place of
conducting proceedings for remedies available to the Trustee, or exercising any
trust or power conferred on the Trustee, in respect of such series. (Section
6.06)
In certain cases, the holders of a majority in principal amount of the
outstanding Debt Securities of a series may on behalf of the holders of all Debt
Securities of such series waive any past default or Event of Default, or
compliance with certain provisions of the Indenture, except, among other things,
a default in payment of the principal of, premium, if any, or interest on, any
of the Debt Securities of such series. (Sections 6.01 and 6.06)
DISCHARGE AND DEFEASANCE
Under terms satisfactory to the Trustee, the Company may discharge certain
obligations to holders of any series of Debt Securities issued under the
Indenture which have not already been delivered to the Trustee for cancellation
and which have either become due and payable or are by their terms due and
payable within one year (or scheduled for redemption within one year) by
irrevocably depositing with the Trustee as trust funds an amount in cash
sufficient to pay at maturity (or upon redemption) the principal of, premium, if
any, and interest on such Debt Securities. (Section 8.01)
In the case of any series of Debt Securities with respect to which the
exact amounts (including the currency of payment) of principal of and interest
due on such series can be determined at the time of making the deposit referred
to below (which include Debt Securities with a floating or variable rate of
interest that cannot exceed a specified or determinable maximum rate), the
Company at its option may also (i) discharge any and all of its obligations to
holders of such series of Debt Securities ('defeasance') on the 91st day after
the conditions set forth below have been satisfied, but may not thereby avoid
its duty to register the transfer or exchange of such series of Debt Securities,
to replace any temporary, mutilated, destroyed, lost or stolen Debt Securities
of such series or to maintain an office or agency in respect of such series of
Debt Securities, or (ii) be released with respect to such series of Debt
Securities from the obligations imposed by the covenants described under
'Covenants' above ('covenant defeasance'). Defeasance and covenant defeasance
may be effected only if, among other things, (i) the Company irrevocably
deposits with the Trustee as trust funds (a) money in an amount, (b) in the case
of Debt Securities payable only in U.S. Dollars, U.S. Governmental Obligations
(as defined in the Indenture) which through the payment of interest and
principal in respect thereof will provide money in an amount, or (c) a
combination of (a) and (b), certified by a nationally recognized firm of
independent public accountants to be sufficient to pay each installment of
principal of and interest on all outstanding Debt Securities of such series on
the dates such installments of principal and interest are due; and (ii) the
Company delivers to the Trustee an opinion of independent counsel to the effect
that the holders of such series of Debt Securities will not recognize income,
gain or loss for United States federal income tax purposes as a result of such
defeasance or covenant defeasance and will be subject to United States federal
income tax on the same amount and in the same manner and at the same time as
would have been the case if such defeasance or covenant defeasance had not
occurred (which opinion may include or be based on a ruling to that effect
received from or published by the Internal Revenue Service). (Section 8.02)
MODIFICATION OF THE INDENTURE
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the holders of a majority in principal amount of the
outstanding Debt Securities of each series affected thereby (with such series
voting as a separate class), to execute supplemental indentures adding any
provisions to or changing or eliminating any of the provisions of the Indenture
or modifying the rights of the holders of Debt Securities of each such series,
except that no such supplemental indenture may, without the consent of each
holder affected, among other things, change the maturity of any Debt Securities,
or change the principal amount thereof, or any premium thereon, or change the
rate or
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change the time of payment of interest thereon, make any Debt Security payable
in money other than that stated in the Debt Security, or reduce the aforesaid
percentage of outstanding Debt Securities required to approve any such
supplemental indenture. (Section 9.02)
CONCERNING THE TRUSTEE
The Company may from time to time maintain lines of credit, and have other
customary banking relationships, with The Chase Manhattan Bank, the Trustee
under the Indenture. In addition, The Chase Manhattan Bank is the trustee under
the Indentures dated as of April 9, 1990, and as of June 1, 1992, each as
amended, among the Company, AT&T, AT&T Capital Holdings, Inc., a wholly-owned
subsidiary of AT&T, and The Chase Manhattan Bank, pursuant to which, the Company
assumed and AT&T guaranteed certain medium-term notes and long-term debt issued
by AT&T Capital Holdings, Inc. As of December 31, 1997 the aggregate outstanding
principal amount of such medium-term and long-term notes was approximately
$106.8 million. Furthermore, The Chase Manhattan Bank is the trustee under the
Indenture dated as of July 1, 1993 between the Company and The Chase Manhattan
Bank pursuant to which the Company has issued $4.8 billion aggregate principal
amount of medium-term notes.
LIMITATIONS ON ISSUANCE OF BEARER DEBT SECURITIES
In compliance with United States federal tax laws and regulations, bearer
Debt Securities may not be offered or sold during the restricted period (as
defined under 'General' above), or delivered in definitive form in connection
with a sale during the restricted period, in the United States or to United
States persons other than to (a) the United States office of (i) an
international organization (as defined in Section 7701(a)(18) of the Code and
the regulations thereunder), (ii) a foreign central bank (as defined in Section
895 of the Code and the regulations thereunder), or (iii) any underwriter,
agent, or dealer offering or selling bearer Debt Securities during the
restricted period (a 'Distributor') pursuant to a written contract with the
issuer or with another Distributor, that purchases bearer Debt Securities for
resale or for its own account and agrees to comply with the requirements of
Section 165(j)(3)(A), (B), or (C) of the Code, or (b) the foreign branch of a
United States financial institution purchasing for its own account or for
resale, which institution agrees to comply with the requirements of Section 165
(j)(3)(A), (B), or (C) of the Code. In addition, a sale of a bearer Debt
Security may be made during the restricted period to a United States person who
acquired and holds the bearer Debt Security on the Certification Date through a
foreign branch of a United States financial institution that agrees to comply
with the requirements of Section 165(j)(3)(A), (B) or (C) of the Code. Any
Distributor (including an affiliate of a Distributor) offering or selling bearer
Debt Securities during the restricted period must agree not to offer or sell
bearer Debt Securities in the United States or to United States persons (except
as discussed above) and must employ procedures reasonably designed to ensure
that its employees or agents directly engaged in selling bearer Debt Securities
are aware of these restrictions.
Bearer Debt Securities and their interest coupons will bear the following
legend: 'Any United States person who holds this obligation will be subject to
limitations under the United States income tax laws, including the limitations
provided in Sections 165(j) and 1287(a) of the Internal Revenue Code'.
Purchasers of bearer Debt Securities may be affected by certain limitations
under United States tax laws. See the applicable Prospectus Supplement for a
summary of material U.S. federal income tax consequences to United States
persons investing in bearer Debt Securities.
As used herein, 'United States person' means a citizen or resident of the
United States, a corporation, partnership or other entity created or organized
in or under the laws of the United States and an estate or trust the income of
which is subject to United States federal income taxation regardless of its
source, and 'United States' means the United States of America (including the
States and the District of Columbia) and its possessions including Puerto Rico,
the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern
Mariana Islands.
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DESCRIPTION OF THE WARRANTS
The Debt Warrants, Currency Warrants, Index Warrants and Interest Rate
Warrants are to be issued under separate warrant agreements (each a 'Warrant
Agreement' and respectively a 'Debt Warrant Agreement', a 'Currency Warrant
Agreement', an 'Index Warrant Agreement' and an 'Interest Rate Warrant
Agreement') to be entered into between the Company and one or more banks or
trust companies, as warrant agent (each a 'Warrant Agent' and respectively a
'Debt Warrant Agent', a 'Currency Warrant Agent', an 'Index Warrant Agent' and
an 'Interest Rate Warrant Agent'), all as shall be set forth in the Prospectus
Supplement relating to the Warrants being offered thereby. A form of each type
of Warrant Agreement, including a form of warrant certificate representing each
type of Warrant (each a 'Warrant Certificate' and respectively a 'Debt Warrant
Certificate', a 'Currency Warrant Certificate', an 'Index Warrant Certificate'
and an 'Interest Rate Warrant Certificate'), reflecting the alternative
provisions that may be included in the Warrant Agreements to be entered into
with respect to particular offerings of Warrants, are herein incorporated by
reference to exhibits to the Registration Statement of which this Prospectus is
a part. The descriptions contained herein of the Warrant Agreements and the
Warrant Certificates and summaries of certain provisions of the Warrant
Agreements and the Warrant Certificates do not purport to be complete and are
subject to, and are qualified in their entirety by reference to, all the
provisions of the applicable Warrant Agreements and the Warrant Certificates,
including the definitions therein of certain terms not otherwise defined in this
Prospectus. Wherever particular sections of, or terms defined in, the Warrant
Agreements are referred to, such sections or defined terms are incorporated
herein by reference.
The particular terms of each issue of Warrants, as well as any
modifications or additions to the general terms of the applicable Warrant
Agreement or Warrant Certificate, will be described in the Prospectus Supplement
relating to such Warrants. Accordingly, for a description of the terms of a
particular issue of Warrants, reference must be made to the Prospectus
Supplement relating thereto and to the descriptions set forth below.
DEBT WARRANTS
The Company may issue, together with Debt Securities, Currency Warrants,
Index Warrants or Interest Rate Warrants, or separately, Debt Warrants for the
purchase of Debt Securities. If any of the Debt Warrants are sold for foreign
currencies or foreign currency units or if any series of Debt Warrants is
exercisable in foreign currencies or foreign currency units, the restrictions,
elections, tax consequences, specific terms and other information with respect
to such issue of Debt Warrants and such currencies or currency units will be set
forth in the Prospectus Supplement relating thereto.
If so specified in the Prospectus Supplement, the Debt Warrants may, in
certain circumstances, be cancelled by the Company prior to their expiration
date and the holders thereof will be entitled to receive only the applicable
Cancellation Amount. The Cancellation Amount may be either a fixed amount or an
amount that varies during the term of the Debt Warrants in accordance with a
schedule or formula.
GENERAL
The Prospectus Supplement will describe the terms of any Debt Warrants
offered thereby, the Debt Warrant Agreement relating to such Debt Warrants and
the Debt Warrant Certificates representing such Debt Warrants, including the
following: (1) the title of such Debt Warrants; (2) the aggregate amount of such
Debt Warrants; (3) the initial offering price of such Debt Warrants; (4) the
exercise price; (5) the currency or currency unit in which the initial offering
price and/or the exercise price of such Debt Warrants is payable; (6) whether
the Debt Warrants are to be issuable in registered or bearer form or both, and
if in bearer form whether such Debt Warrants may be exchanged for Debt Warrants
in registered form and the circumstances and places for such exchange, if
permitted; (7) if applicable, the title and terms of related Debt Securities
with which such Debt Warrants are issued, the number of such Debt Warrants
issued with each such Debt Security and the date, if any, on and after which
such Debt Warrants and such Debt Securities will be separately transferable; (8)
the title, aggregate principal
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amount and terms of the Debt Securities purchasable upon exercise of all such
Debt Warrants; (9) the principal amount of Debt Securities purchasable upon
exercise of each Debt Warrant and the price at which such principal amount of
Debt Securities may be purchased upon such exercise; (10) the date on which the
right to exercise such Debt Warrants shall commence and the date (the 'Debt
Warrant Expiration Date') on which such right shall expire; (11) any minimum
number of Debt Warrants which must be exercised at any one time, other than upon
automatic exercise; (12) the maximum number, if any, of such Debt Warrants that
may, subject to election by the Company, be exercised by all owners (or by any
person or entity) on any day; (13) any provisions for the automatic exercise of
such Debt Warrants; (14) whether and under which circumstances such Debt
Warrants may be cancelled by the Company prior to expiration; (15) any other
procedures and conditions relating to the exercise of such Debt Warrants; (16)
the identity of the Debt Warrant Agent; (17) any national securities exchange on
which such Debt Warrants will be listed; (18) provisions, if any, for issuing
such Debt Warrants in certificated form; (19) if applicable, a discussion of
certain United States federal income tax, accounting or other special
considerations applicable thereto; and (20) any other terms of the Debt
Warrants.
Debt Warrant Certificates will be exchangeable for new Debt Warrant
Certificates of different denominations and, if in registered form, may be
presented for registration of transfer and Debt Warrants may be exercised at the
corporate trust office of the Debt Warrant Agent or any other office indicated
in the Prospectus Supplement relating thereto (Section 3.1). Prior to the
exercise of Debt Warrants, holders of Debt Warrants will not be entitled to
payments of principal of (or premium, if any) or interest, if any, on the Debt
Securities purchasable upon such exercise, or to enforce any of the covenants in
the Indenture (Section 4.1).
EXERCISE OF DEBT WARRANTS
Unless otherwise provided in the Prospectus Supplement, each Debt Warrant
will entitle the holder thereof to purchase for cash such principal amount of
Debt Securities at such exercise price as shall in each case be set forth in, or
be determinable as set forth in, the Prospectus Supplement relating to the Debt
Warrants offered thereby (Section 2.1). Debt Warrants may be exercised at any
time up to the close of business on the Debt Warrant Expiration Date specified
in the Prospectus Supplement relating to the Debt Warrants offered thereby.
After the close of business on the Debt Warrant Expiration Date (or such later
date to which such Debt Warrant Expiration Date may be extended by the Company),
unexercised Debt Warrants will become void (Section 2.2).
Debt Warrants may be exercised as set forth in the Prospectus Supplement
relating to the Debt Warrants offered thereby. Upon receipt of payment and the
Debt Warrant Certificate properly completed and duly executed at the corporate
trust office of the Debt Warrant Agent or any other office indicated in the
Prospectus Supplement, the Company will, as soon as practicable, forward to the
person entitled thereto the Debt Securities purchasable upon such exercise. If
fewer than all the Debt Warrants represented by such Debt Warrant Certificate
are exercised, a new Debt Warrant Certificate will be issued for the remaining
amount of Debt Warrants (Section 2.3).
OTHER INFORMATION
Other important information concerning Debt Warrants is set forth below
under 'Certain Items Applicable to All Warrants -- Modifications', ' -- Merger,
Consolidation, Sale or Other Disposition' and ' -- Enforceability of Rights by
Beneficial Owner; Governing Law'.
CURRENCY WARRANTS
The Company may issue, together with Debt Securities, Debt Warrants, Index
Warrants or Interest Rate Warrants, or separately, Currency Warrants (a) in the
form of Currency Put Warrants, entitling the owners thereof to receive from the
Company the Currency Warrant Cash Settlement Value (as shall be defined in the
Prospectus Supplement) of the right to sell a specified amount of one currency
(whether U.S. dollars or a foreign currency or foreign currency unit) (a 'Base
Currency') for a specified amount of a different currency (whether U.S. dollars
or a foreign currency or foreign currency unit) (a 'Reference Currency'), (b) in
the form of Currency Call Warrants, entitling the owners thereof to
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receive from the Company the Currency Warrant Cash Settlement Value of the right
to purchase a specified amount of a Base Currency for a specified amount of a
Reference Currency, or (c) in such other form as shall be specified in the
related Prospectus Supplement. The Prospectus Supplement for an issue of
Currency Warrants will set forth the formula pursuant to which the Currency
Warrant Cash Settlement Value will be determined, including any multipliers, if
applicable.
The Prospectus Supplement will describe the terms of any Currency Warrants
offered thereby, the Currency Warrant Agreement relating to such Currency
Warrants and the Currency Warrant Certificates representing such Currency
Warrants, including the following: (1) the title of such Currency Warrants; (2)
the aggregate amount of such Currency Warrants; (3) the initial offering price
of such Currency Warrants; (4) the exercise price, if any; (5) the currency or
currency unit in which the initial offering price, the exercise price, if any,
and the Currency Warrant Cash Settlement Value of such Currency Warrants is
payable; (6) the Base Currency and the Reference Currency for such Currency
Warrants; (7) whether such Currency Warrants shall be Currency Put Warrants,
Currency Call Warrants or otherwise; (8) the formula for determining the
Currency Warrant Cash Settlement Value, if applicable, of each Currency Warrant;
(9) whether and under what circumstances a minimum and/or maximum expiration
value is applicable upon the expiration or exercise of such Currency Warrants;
(10) the effect or effects, if any, of the occurrence of a Market Disruption
Event or Force Majeure Event (each as defined in the Currency Warrant
Agreement); (11) the date on which the right to exercise such Currency Warrants
shall commence and the date (the 'Currency Warrant Expiration Date') on which
such right shall expire; (12) any minimum number (or maximum number) of Currency
Warrants which must be exercised at any one time, other than upon automatic
exercise; (13) the maximum number, if any, of such Currency Warrants that may,
subject to election by the Company, be exercised by all owners (or by any person
or entity) on any day; (14) any provisions for the automatic exercise of such
Currency Warrants other than at expiration; (15) whether and under what
circumstances such Currency Warrants may be cancelled by the Company prior to
their expiration date; (16) any provisions permitting a Holder to condition any
notice of exercise on the absence of certain specified changes in the Spot Rate
(as defined in the Currency Warrant Agreement); (17) any other procedures and
conditions relating to the exercise of such Currency Warrants; (18) the identity
of the Currency Warrant Agent; (19) any national securities exchange on which
such Currency Warrants will be listed; (20) provisions, if any, for issuing such
Currency Warrants in certificated form; (21) if such Currency Warrants are not
issued in book-entry form, the place or places at which payments in respect of
such Currency Warrants are to be made by the Company; (22) if applicable, a
discussion of certain United States federal income tax, accounting or other
special considerations applicable thereto; and (23) any other terms of such
Currency Warrants.
Other important information concerning Currency Warrants is set forth below
under 'Certain Items Applicable to All Warrants -- Modifications', ' -- Merger,
Consolidation, Sale or Other Disposition' and ' -- Enforceability of Rights by
Beneficial Owner; Governing Law' and 'Certain Items Applicable to Currency
Warrants, Index Warrants and Interest Rate Warrants -- Exercise of Warrants',
' -- Market Disruption and Force Majeure Events', ' -- Settlement Currency' and
' -- Listing'.
INDEX WARRANTS
The Company may issue, together with Debt Securities, Debt Warrants,
Currency Warrants or Interest Rate Warrants, or separately, Index Warrants (a)
in the form of Index Put Warrants, entitling the owners thereof to receive from
the Company the Index Cash Settlement Value (as shall be defined in the
Prospectus Supplement) in cash, which amount will be determined by reference to
the amount, if any, by which the Fixed Amount (as shall be defined in the
Prospectus Supplement) at the time of exercise exceeds the Index Value (as shall
be defined in the Prospectus Supplement), (b) in the form of Index Call
Warrants, entitling the owners thereof to receive from the Company the Index
Cash Settlement Value in cash, which amount will be determined by reference to
the amount, if any, by which the Index Value at the time of exercise exceeds the
Fixed Amount, (c) in the form of Index Spread Warrants, entitling the owners
thereof to receive from the Company the Index Cash Settlement Value in cash,
which amount will be determined by reference to the amount, if any, by which the
Reference Index Value (as shall be defined in the Prospectus Supplement) at the
time of exercise exceeds the Base
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Index Value (as shall be defined in the Prospectus Supplement) or (d) in such
other form as shall be specified in the related Prospectus Supplement. The
Prospectus Supplement for an issue of Index Warrants will set forth the formula
pursuant to which the Index Cash Settlement Value will be determined, including
any multipliers, if applicable.
The Prospectus Supplement will describe the terms of Index Warrants offered
thereby, the Index Warrant Agreement relating to such Index Warrants and the
Index Warrant Certificate representing such Index Warrants, including the
following: (1) the title of such Index Warrants; (2) the aggregate amount of
such Index Warrants; (3) the initial offering price of such Index Warrants; (4)
the exercise price, if any; (5) the currency or currency unit in which the
initial offering price, the exercise price, if any, and the Index Cash
Settlement Value of the Index Warrants is payable; (6) the Index or Indices for
such Index Warrants, which may be based on one or more U.S. or foreign stocks,
bonds, or other securities, one or more U.S. or foreign interest rates, one or
more currencies or currency units, or any combination of the foregoing, and may
be a preexisting U.S. or foreign index compiled and published by a third party
or an index based on one or more securities, interest rates or currencies
selected by the Company solely in connection with the issuance of such Index
Warrants, and certain information regarding such Index or Indices and the
underlying securities, interest rates or currencies or currency units
(including, to the extent possible, the policies of the publisher of the Index
with respect to additions, deletions and substitutions of such securities,
interests rates or currencies or currency units); (7) whether such Index
Warrants shall be Index Put Warrants, Index Call Warrants, Index Spread Warrants
or otherwise; (8) the method of providing for a substitute Index or Indices or
otherwise determining the amount payable in connection with the exercise of such
Index Warrants if any Index changes or ceases to be made available by its
publisher, which determination will be made by an independent expert; (9) the
formula for determining the Index Cash Settlement Value, if applicable, of each
Index Warrant; (10) whether and under what circumstances a minimum and/or
maximum expiration value is applicable upon the expiration or exercise of such
Index Warrants; (11) the effect or effects, if any, of the occurrence of a
Market Disruption Event or Force Majeure event (each as defined in the Index
Warrant Agreement); (12) the date on which the right to exercise such Index
Warrants shall commence and the date (the 'Index Warrant Expiration Date') on
which such right shall expire; (13) any minimum number of Index Warrants which
must be exercised at any one time, other than upon automatic exercise; (14) the
maximum number if any, of such Index Warrants that may, subject to election by
the Company, be exercised by all owners (or by any person or entity) on any day;
(15) any provisions for the automatic exercise of such Index Warrants other than
at expiration; (16) whether and under what circumstances such Index Warrants may
be cancelled by the Company prior to their expiration date; (17) any provisions
permitting a Holder to condition any notice of exercise on the absence of
certain specified changes in the Index Value, the Base Index Value or the
Referenced Index Value after the date of exercise; (18) any other procedures and
conditions relating to the exercise of such Index Warrants; (19) the identity of
the Index Warrant Agent; (20) any national securities exchange on which such
Index Warrants will be listed; (21) provisions, if any, for issuing such Index
Warrants in certificated form; (22) if such Index Warrants are not issued in
book-entry form, the place or places at which payments in respect of such Index
Warrants are to be made by the Company; (23) if applicable, a discussion of
certain United States federal income tax, accounting or other special
considerations applicable thereto; and (24) any other terms of such Index
Warrants.
Other important information concerning Index Warrants is set forth below
under 'Certain Items Applicable to All Warrants -- Modifications', ' -- Merger,
Consolidation, Sale or Other Disposition' and ' -- Enforceability of Rights by
Beneficial Owner; Governing Law' and 'Certain Items Applicable to Currency
Warrants, Index Warrants and Interest Rate Warrants -- Exercise of Warrants',
' -- Market Disruption and Force Majeure Events', ' -- Settlement Currency' and
' -- Listing'.
INTEREST RATE WARRANTS
The Company may issue, together with Debt Securities, Debt Warrants,
Currency Warrants or Index Warrants, or separately, Interest Rate Warrants (a)
in the form of Interest Rate Put Warrants, entitling the owners thereof to
receive from the Company the Interest Rate Cash Settlement Value (as shall be
defined in the Prospectus Supplement) in cash, which amount will be determined
by reference
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to the amount, if any, by which the Spot Amount (as shall be defined in the
Prospectus Supplement) is less than the Strike Amount (as shall be defined in
the Prospectus Supplement) on the applicable valuation date following exercise,
(b) in the form of Interest Rate Call Warrants, entitling the owners thereof to
receive from the Company the Interest Rate Cash Settlement Value in cash, which
amount will be determined by reference to the amount, if any, by which the Spot
Amount on the applicable valuation date following exercise exceeds the Strike
Amount or (c) in such other form as shall be specified in the related Prospectus
Supplement. The Prospectus Supplement for an issue of Interest Rate Warrants
will set forth the formula pursuant to which the Interest Rate Cash Settlement
Value will be determined, including any multipliers, if applicable. The Strike
Amount may either be a fixed yield, price or rate of a Sovereign Debt
Instrument, a Rate or any combination of Sovereign Debt Instruments and/or Rates
or a yield, price or rate that varies during the term of the Interest Rate
Warrants in accordance with a schedule or formula. The Sovereign Debt Instrument
will be one or more instruments specified in the applicable Prospectus
Supplement issued either by the United States government or by a foreign
government. The Rate will be one or more interest rates or interest rate swap
rates established from time to time by one or more financial institutions
specified in the applicable Prospectus Supplement.
The Prospectus Supplement will describe the terms of Interest Rate Warrants
offered thereby, the Interest Rate Warrant Agreement relating to such Interest
Rate Warrants and the Interest Rate Warrant Certificate representing such
Interest Rate Warrants, including the following: (1) the title of such Interest
Rate Warrants; (2) the aggregate amount of such Interest Rate Warrants; (3) the
initial offering price of such Interest Rate Warrants; (4) the exercise price,
if any; (5) the currency or currency unit in which the initial offering price,
the exercise price, if any, and the Interest Rate Cash Settlement Value of such
Interest Rate Warrants is payable; (6) the Sovereign Debt Instrument (which may
be one or more debt instruments issued either by the United States government or
by a foreign government), the Rate (which may be one or more interest rates or
interest rate swap rates established from time to time by one or more specified
financial institutions) or the other yield, price or rate utilized for such
Interest Rate Warrants, and certain information regarding such Sovereign Debt
Instrument, Rate or such other yield, price or rate; (7) whether such Interest
Rate Warrants shall be Interest Rate Put Warrants, Interest Rate Call Warrants
or otherwise; (8) the Strike Amount, the method of determining the Spot Amount
and the method of expressing movements in the yield or closing price of the
Sovereign Debt Instrument or in the level of the Rate or such other yield, price
or rate as a cash amount in the currency in which the Interest Rate Cash
Settlement Value of such Warrants is payable; (9) the formula for determining
the Interest Rate Cash Settlement Value, if applicable, of each Interest Rate
Warrant; (10) whether and under what circumstances a minimum and/or maximum
expiration value is applicable upon the expiration or exercise of such Interest
Rate Warrants; (11) the effect or effects, if any, of the occurrence of a Market
Disruption Event or Force Majeure Event (each as defined in the Interest Rate
Warrant Agreement); (12) the date on which the right to exercise such Interest
Rate Warrants shall commence and the date (the 'Interest Rate Warrant Expiration
Date') on which such right shall expire; (13) any minimum number of Interest
Rate Warrants which must be exercised at any one time, other than upon automatic
exercise; (14) the maximum number, if any, of such Interest Rate Warrants that
may, subject to elections by the Company, be exercised by all owners (or by any
person or entity) on any day; (15) any provisions for the automatic exercise of
such Interest Rate Warrants other than at expiration; (16) whether and under
what circumstances such Interest Rate Warrants may be cancelled by the Company
prior to their expiration date; (17) any provisions permitting a Holder to
condition any notice of exercise on the absence of certain specified changes in
the Spot Amount after the date of exercise; (18) any other procedures and
conditions relating to the exercise of such Interest Rate Warrants; (19) the
identity of the Interest Rate Warrant Agent; (20) any national securities
exchange on which such Interest Rate Warrants will be listed; (21) provisions,
if any, for issuing such Interest Rate Warrants in certificated form; (22) if
such Interest Rate Warrants are not issued in book-entry form, the place or
places at which payments in respect of such Interest Rate Warrants are to be
made by the Company; (23) if applicable, a discussion of certain United States
federal income tax, accounting or other special considerations applicable
thereto; and; (24) any other terms of such Interest Rate Warrants.
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Other important information concerning Interest Rate Warrants is set forth
below under 'Certain Items Applicable to All Warrants -- Modifications',
' -- Merger, Consolidation, Sale or Other Disposition' and ' -- Enforceability
of Rights by Beneficial Owner; Governing Law' and 'Certain Items Applicable to
Currency Warrants, Index Warrants and Interest Rate Warrants -- Exercise of
Warrants', ' -- Market Disruption and Force Majeure Events', ' -- Settlement
Currency' and ' -- Listing'.
CERTAIN ITEMS APPLICABLE TO ALL WARRANTS
MODIFICATIONS. Each Warrant Agreement and the terms of each issue of
Warrants may be amended by the Company and the applicable Warrant Agent, without
the consent of the beneficial owners or the registered holders, for the purpose
of curing any ambiguity, or of curing, correcting or supplementing any defective
or inconsistent provision contained therein, or in any other manner which the
Company may deem necessary or desirable and which will not materially adversely
affect the interests of the beneficial owners of the then outstanding
unexercised Warrants (Section 6.1).
The Company and the applicable Warrant Agent may also modify or amend the
applicable Warrant Agreement and the terms of the related Warrants, with the
consent of the beneficial owners of not less than a majority in number of the
then outstanding unexercised Warrants affected, provided that no such
modification or amendment that reduces the amount receivable upon exercise,
shortens the period of time during which the Warrants may be exercised,
increases the minimum or decreases the maximum number of Warrants that may be
exercised by or on behalf of any one beneficial owner at any one time, changes
the formula for determining the Cash Settlement Value or otherwise materially
and adversely affects the exercise rights of the owners or reduces the number of
outstanding Warrants the consent of whose beneficial owners is required for
modification or amendment of the applicable Warrant Agreement or the terms of
the Warrants may be made without the consent of each beneficial owner affected
thereby (Section 6.1).
MERGER, CONSOLIDATION, SALE OR OTHER DISPOSITION. The Company will
covenant in the Warrant Agreements that it will not merge or consolidate with
any other corporation or sell or convey all or substantially all its assets to
any person (other than an Asset Drop-Down (as defined under 'Description of the
Debt Securities -- Covenants -- Consolidation, Merger, Sale or Conveyance of
Assets of the Company')), unless (i) either the Company is the continuing
corporation or the successor corporation or the person which acquires by sale or
conveyance substantially all the assets of the Company (if other than the
Company) is a corporation organized under the laws of the United States of
America or any state thereof and expressly assumes the due and punctual
performance and observance of all the covenants and conditions of each Warrant
Agreement to be performed or observed by the Company, by amendment to the
Warrant Agreements satisfactory to the respective Warrant Agents, executed and
delivered to the Warrant Agents by such corporation, and (ii) the Company or
such successor corporation, as the case may be, is not, immediately after such
merger or consolidation, or such sale or conveyance, in default in the
performance of any such covenant or condition. In the case of any such
consolidation, merger, sale or conveyance, and following such an assumption by
the successor corporation, such successor corporation will succeed to and be
substituted for the Company, with the same effect as if it had been named in the
Warrant Agreements, and, in the case of any such sale or conveyance, the Company
will be released and discharged from all obligations and covenants under the
Warrant Agreements and the Warrants. In the event of any Asset Drop-Down after
the date of any Warrant Agreement, any subsequent sale or conveyance of assets
by the Drop-Down Subsidiary will be deemed to be a sale or conveyance of assets
by the Company for purposes of the covenant described in this paragraph. The
term 'substantially all', which appears in the foregoing covenant, is not
defined in the Warrant Agreements and a precise explanation of such term is not
feasible. The Company will interpret such term in any particular situation in
light of all then existing facts and circumstances.
ENFORCEABILITY OF RIGHTS BY BENEFICIAL OWNER; GOVERNING LAW. Each Warrant
Agent will act solely as an agent of the Company in connection with the issuance
and exercise of the applicable Warrants and will not assume any obligation or
relationship of agency or trust for or with any owner of a beneficial interest
in any Warrant or with the registered holder thereof (Sections 5.2). A Warrant
Agent shall have no duty or responsibility in the case of any default by the
Company in the performance of its covenants or agreements under the applicable
Warrant Agreement or Warrant Certificate including, without limitation, any duty
or responsibility to initiate any proceedings at law or
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otherwise or except as provided in the applicable Debt Warrant Agreement, to
make any demand upon the Company (Section 5.2). Beneficial owners may, without
the consent of the applicable Warrant Agent, enforce by appropriate legal
action, on their own behalf, their right to exercise their Warrants, to receive
Debt Securities, in the case of Debt Warrants, and to receive payment, if any,
for their Warrants, in the case of Currency Warrants, Index Warrants or Interest
Rate Warrants (Section 3.3 of the Debt Warrant Agreement and Section 3.1 of each
other Warrant Agreement).
Except as may otherwise be provided in the Prospectus Supplement relating
thereto, each issue of Warrants and the applicable Warrant Agreement will be
governed by and construed in accordance with the law of the State of New York
(Section 6.7 of the Debt Warrant Agreement and Section 6.5 of each other Warrant
Agreement).
CERTAIN ITEMS APPLICABLE TO CURRENCY WARRANTS, INDEX WARRANTS AND INTEREST RATE
WARRANTS
EXERCISE OF WARRANTS. Except as may otherwise be provided in the
applicable Prospectus Supplement relating thereto, (a) each Currency Warrant,
Index Warrant and Interest Rate Warrant will entitle the owner, upon payment of
the exercise price, if any, to the applicable Cash Settlement Value of such
Warrant, on the applicable Exercise Date, in each case as such terms will
further be defined in the applicable Prospectus Supplement relating thereto
(Sections 1.1 and 2.2) and (b) if not exercised prior to 1:30 p.m., New York
City time, on the Business Day preceding the applicable Warrant Expiration Date,
the Warrants will be deemed automatically exercised on such Warrant Expiration
Date (Section 2.3). As described below, Currency Warrants, Index Warrants and
Interest Rate Warrants may also be deemed to be automatically exercised if they
are delisted. Procedures for exercise of the Currency Warrants, Index Warrants
and Interest Rate Warrants will be set forth in the applicable Prospectus
Supplement.
MARKET DISRUPTION AND FORCE MAJEURE EVENTS. If so specified in the
applicable Prospectus Supplement, following the occurrence of a Market
Disruption Event or Force Majeure Event (as each term shall be defined therein),
the Cash Settlement Value of a Currency Warrant, an Index Warrant or an Interest
Rate Warrant may be determined on a different basis than under normal exercise
of a Warrant or the determination of the applicable Cash Settlement Value. In
addition, if so specified in the applicable Prospectus Supplement, Currency
Warrants, Index Warrants and Interest Rate Warrants may, in certain
circumstances, be cancelled by the Company prior to the expiration date and the
holders thereof will be entitled to receive only the applicable Cancellation
Amount. The Cancellation Amount may be either a fixed amount or an amount that
varies during the term of the Warrants in accordance with a schedule or formula.
SETTLEMENT CURRENCY. Currency Warrants, Index Warrants and Interest Rate
Warrants will be settled only in U.S. dollars (unless settlement in a foreign
currency is specified in the applicable Prospectus Supplement and is permissible
under securities exchange rules approved by the Commission) and accordingly will
not require or entitle an owner to sell, deliver, purchase, or take delivery of
the currency, security or other instrument underlying such Warrants. If any of
the Currency Warrants, Index Warrants or Interest Rate Warrants are sold for, or
if the exercise price, if any, is payable in, foreign currencies or foreign
currency units or if the amount payable by the Company in respect of any series
of Currency Warrants, Index Warrants or Interest Rate Warrants is payable in
foreign currencies or foreign currency units, the restrictions, elections, tax
consequences, specific terms and other information with respect to such issue of
Warrants and such currencies or currency units will be set forth in the
Prospectus Supplement relating thereto.
LISTING. Unless otherwise provided in the Prospectus Supplement, each
issue of Currency Warrants, Index Warrants and Interest Warrants will be listed
on a national securities exchange, as specified in the applicable Prospectus
Supplement, subject only to official notice of issuance, as a pre-condition to
the sale of any such Warrants. It may be necessary in certain circumstances for
such national securities exchange to obtain the approval of the Commission in
connection with any such listing. In the event that such Warrants are delisted
from, or permanently suspended from trading on, such exchange, and at or prior
to such delisting or suspension, such Warrants shall not have been listed on
another national securities exchange, any such Warrants not previously exercised
will be deemed automatically exercised on the date such delisting or permanent
trading suspension becomes effective
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(Sections 2.3). The applicable Cash Settlement Value to be paid in such event
will be as set forth in the applicable Prospectus Supplement. The Company will
notify holders of such Warrants as soon as practicable of such delisting or
permanent trading suspension. The applicable Warrant Agreement will contain a
covenant of the Company not to seek delisting of such Warrants from or permanent
suspension of their trading on, such exchange (Section 2.4 of the Currency
Warrant Agreement and the Interest Rate Warrant Agreement and Section 2.5 of the
Index Warrant Agreement).
DESCRIPTION OF THE GUARANTEE
Newcourt will provide an irrevocable unconditional guarantee of payment of
principal, premium, if any, and interest on the Notes. Such guarantee will be an
unsecured obligation of Newcourt and will rank pari passu (equal in right of
payment) with all other unsecured and unsubordinated indebtedness of Newcourt.
At December 31, 1997, Newcourt's consolidated indebtedness was approximately
$2.0 billion (C$2.8 billion). Such guarantee will, however, be effectively
subordinate (with respect to the assets of Newcourt's Subsidiaries) to the
indebtedness and other liabilities of such subsidiaries. At December 31, 1997,
such indebtedness and other liabilities aggregated approximately $0.7 billion
(C$1.0 billion). Newcourt has no current intention or plan to increase the
amount of such indebtedness in the future, other than in connection with the
growth of Newcourt's business.
GLOBAL SECURITIES
The Securities of a series may be issued in whole or in part in the form of
one or more global Securities that will be deposited with or on behalf of a
depositary (a 'Depositary') identified in the Prospectus Supplement relating to
such series. Global Securities representing Debt Securities or Debt Warrants may
be issued in either registered or bearer form. Global Securities representing
Currency Warrants, Index Warrants or Interest Rate Warrants will be issued in
registered form only. Global Securities may be issued in either temporary or
permanent form.
The specific terms of the depositary arrangement with respect to any
Securities of a series will be described in the Prospectus Supplement relating
to such series. The Company anticipates that the following provisions will apply
to all depositary arrangements.
Unless otherwise specified in the Prospectus Supplement, Securities which
are to be represented by a global Security in registered form to be deposited
with or on behalf of a Depositary will be registered in the name of such
Depositary or its nominee. Upon the issuance of a global Security in registered
form, the Depositary for such global Security will credit the respective
principal amounts, in the case of Debt Securities, and the respective number of
warrants, in the case of Warrants represented by such global Security, to the
accounts of institutions that have accounts with such Depositary or its nominee
('participants'). The accounts to be credited shall be designated by the
underwriters or agents of such Securities, or by the Company if such Securities
are offered and sold directly by the Company. Ownership of beneficial interests
in such global Securities will be limited to participants or persons that may
hold interests through participants. Ownership of beneficial interests by
participants in such global Securities will be shown on, and the transfer of
that ownership interest will be effected only through, records maintained by the
Depositary or its nominee for such global Security. Ownership of beneficial
interests in global Securities by persons that hold through participants will be
shown on, and the transfer of that ownership interest within such participant
will be effected only through, records maintained by such participant.
The laws of some jurisdictions require that certain purchasers of
securities take physical delivery of such securities in definitive form. Such
limits and such laws may impair the ability to transfer beneficial interests in
a global Security.
So long as the Depositary for a global Security in registered form, or its
nominee, is the registered owner of such global Security, such Depositary or
such nominee, as the case may be, will be considered the sole owner or holder of
the Securities represented by such global Security for all purposes under the
Indenture, in the case of Debt Securities, or under the applicable Warrant
Agreement, in the case of Warrants, governing such Securities. Except as set
forth below or as the Company may otherwise agree in its sole discretion, owners
of beneficial interests in such global Security will not be entitled to have
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Securities of the series represented by such global Security registered in their
names, will not receive or be entitled to receive physical delivery of
Securities of such series in definitive form and will not be considered the
owners or holders thereof under the Indenture, in the case of Debt Securities,
or under the applicable Warrant Agreement, in the case of Warrants.
Payments in respect of Securities registered in the name of or held by a
Depositary or its nominee will be made to the Depositary or its nominee, as the
case may be, as the registered owner or the holder of the global Security. None
of the Company, the Trustee or applicable Warrant Agent, any Paying Agent or any
Security Registrar (the 'Security Registrar') for such Securities will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in a global Security
or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interest.
The Company expects that the Depositary for a permanent global Security in
registered form, upon receipt of any payment in respect of a permanent global
Security, will credit immediately participants' accounts with payments in
amounts proportionate to their respective beneficial interests in such global
Security as shown on the records of such Depositary. The Company also expects
that payments by participants to owners of beneficial interests in such global
Security held through such participants will be governed by standing
instructions and customary practices, as is now the case with securities held
for the accounts of customers in bearer form or registered in 'street name', and
will be the responsibility of such participants.
A global Security in registered form may not be transferred except as a
whole by the Depositary for such global Security to a nominee of such Depositary
or by a nominee of such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary or any such nominee to a successor of such
Depositary or nominee or a nominee of such successor. If a Depositary for a
permanent global Security in registered form is at any time unwilling or unable
to continue as Depositary and a successor Depositary is not appointed by the
Company within 90 days, the Company will issue Securities in definitive
registered form in exchange for the global Security representing such
Securities. In addition, the Company may at any time and in its sole discretion
determine not to have any Securities of a series in registered form represented
by one or more global Securities and, in such event, will issue Securities of
such series in definitive form in exchange for all the global Securities
representing such Series. Further, if the Company so specifies with respect to
the Securities of a series or otherwise consents in its sole discretion, an
owner of a beneficial interest in a global Security representing Securities of
such series may, on terms acceptable to the Company and the Depositary for such
global Security, receive Securities of such series in definitive form. In any
such instance, an owner of a beneficial interest in a global Security will be
entitled to physical delivery in definitive form of Securities of the series
represented by such global Security equal in principal amount, in the case of
Debt Securities, or number, in the case of Warrants, to such beneficial interest
and to have such Securities registered in its name (if the Securities of such
series are issuable as registered securities). Unless otherwise specified by the
Company, Securities of such series so issued in definitive form will be issued
either as registered or bearer securities (if the Securities of such series are
issuable in such form) and in authorized denominations, in the case of Debt
Securities, or in authorized numbers, in the case of Warrants, as specified in
the applicable Prospectus Supplement. See, however, 'Description of the Debt
Securities -- Limitations on Issuance of Bearer Debt Securities' for a
description of certain restrictions on the issuance of a bearer Debt Security in
definitive form in exchange for an interest in a global Security.
BEARER DEBT SECURITIES
If so specified in the Prospectus Supplement, pending the availability of a
permanent global Security, all or any portion of the Debt Securities of a series
which may be issuable as bearer Debt Securities will initially be represented by
one or more temporary global Securities, without interest coupons, to be
deposited with a common depositary in London for Morgan Guaranty Trust Company
of New York, Brussels Office, as operator of the Euroclear System ('Euroclear')
and Cedel Bank, societe anonyme ('Cedel Bank') for credit to the designated
accounts. The interests of the beneficial owner or owners in such a temporary
global Security in bearer form will be exchangeable for definitive bearer
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Debt Securities (including interests in a permanent global Security in bearer
form), representing Debt Securities having the same interest rate and stated
maturity, but only upon written certification in the form and to the effect
described under 'Description of the Debt Securities -- General' unless such
certification has been provided on an earlier interest payment date. The
beneficial owner of a Debt Security represented by a temporary global Security
in bearer form or a permanent global Security in bearer form may, on or after
the applicable exchange date and upon 30 days' notice to the Trustee given
through Euroclear or Cedel Bank, exchange its interest for definitive bearer
Debt Securities or, if specified in the Prospectus Supplement, definitive
registered Debt Securities of any authorized denomination. No bearer Debt
Security delivered in exchange for a temporary global Security or a permanent
global Security shall be mailed or otherwise delivered to any location in the
United States in connection with such exchange.
Unless otherwise specified in the Prospectus Supplement, interest in
respect of any portion of such a temporary global Security in bearer form
payable in respect of an Interest Payment Date occurring prior to the issuance
of a permanent global Security in bearer form will be paid to each of Euroclear
and Cedel Bank with respect to the portion of the temporary global Security in
bearer form held for its account. Each of Euroclear and Cedel Bank will
undertake in such circumstances to credit such interest received by it in
respect of a temporary global Security in bearer form to the respective accounts
for which it holds such temporary global Security in bearer form as of the
relevant Interest Payment Date, but only upon receipt in each case of written
certification, in the form and to the effect described under 'Description of
Debt Securities -- General'.
MATERIAL FEDERAL INCOME TAX CONSEQUENCES
A summary of the material United States federal income tax consequences to
persons investing in Securities will be set forth in the Prospectus Supplement.
This summary in the Prospectus Supplement will be presented for information
purposes only, however, and will not be intended as legal or tax advice to
prospective purchasers. Prospective purchasers of Securities are urged to
consult their own tax advisors prior to any acquisition of Securities.
PLAN OF DISTRIBUTION
The Company may sell any of the Securities in four ways: (i) directly to
purchasers, (ii) through agents, (iii) through dealers or (iv) through
underwriters. Any or all of the foregoing may be customers of, engage in other
transactions with or perform other services for the Company in the ordinary
course of business.
Offers to purchase the Securities may be solicited directly by the Company
or by agents designated by the Company from time to time. Any such agent, who
may be deemed to be an underwriter as that term is defined in the Securities
Act, involved in the offer or sale of the Securities in respect of which this
Prospectus is delivered will be named, and any commissions payable by the
Company to such agent set forth, in the Prospectus Supplement. Unless otherwise
indicated in the Prospectus Supplement, any such agent will be acting on a best
efforts basis for the period of its appointment. Agents may be entitled under
agreements, which may be entered into with the Company, to indemnification by
the Company against certain civil liabilities, including liabilities under the
Securities Act.
If a dealer is utilized in the sale of the Securities in respect of which
this Prospectus is delivered, the Company will sell such Securities to the
dealer, as principal. The dealer may then resell such Securities to the public
at varying prices to be determined by such dealer at the time of resale. Dealers
may be entitled to indemnification by the Company against certain liabilities,
including liabilities under the Securities Act.
If the sale is accomplished through an underwriter or underwriters, the
Company will enter into an underwriting agreement with such underwriters at the
time of sale to them, and the names of the underwriters and the terms of the
transaction will be set forth in the Prospectus Supplement, which, together with
this Prospectus, will be used by the underwriters to make resales of the
Securities in respect of which the Prospectus Supplement and this Prospectus are
delivered to the public. The
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underwriters may be entitled, under the relevant underwriting agreement, to
indemnification by the Company against certain liabilities, including
liabilities under the Securities Act.
If so indicated in the Prospectus Supplement, the Company will authorize
agents and underwriters to solicit offers by certain institutions to purchase
Securities from the Company at the public offering price set forth in the
Prospectus Supplement pursuant to Delayed Delivery Contracts ('Contracts')
providing for payment and delivery on a specified future date. Institutions with
which Contracts, when authorized, may be made include commercial and savings
banks, insurance companies, pension funds, educational and charitable
institutions, and other institutions, but shall in all cases be subject to the
approval of the Company. Except as otherwise provided in the Prospectus
Supplement, Contracts will not be subject to any conditions except that the
purchase by an institution of the Securities covered by its Contract shall not
at the time of delivery be prohibited under the laws of any jurisdiction in the
United States to which such institution is subject. A commission indicated in
the Prospectus Supplement will be paid to agents and underwriters soliciting
purchases of the Securities pursuant to Contracts accepted by the Company.
The place and time of delivery for the Securities in respect of which this
Prospectus is delivered are set forth in the Prospectus Supplement.
VALIDITY OF SECURITIES
The validity of the Securities will be passed upon for the Company by Scott
J. Moore, Senior Vice President, General Counsel and Secretary, and for any
agent, dealer or underwriter by Winston & Strawn, New York, New York. The
opinions of Scott J. Moore and Winston & Strawn will be conditioned upon, and
subject to certain assumptions regarding, future action required to be taken by
the Company and the Trustee in connection with the issuance and sale of any
particular Security, the specific terms of Securities and other matters which
may affect the validity of Securities but which cannot be ascertained on the
date of such opinions.
EXPERTS
The consolidated financial statements for the Company as of December 31,
1997 and for the year then ended incorporated by reference in the Prospectus and
elsewhere in the Registration Statement have been audited by Arthur Andersen
LLP, independent public accountants, as indicated in their report with respect
thereto and is incorporated by reference in reliance upon the authority of said
firm as experts in giving said report.
The Company's consolidated balance sheet as of December 31, 1996 and the
consolidated statements of income, changes in shareowners' equity, and cash
flows for each of the two years in the period ended December 31, 1996,
incorporated by reference in this Prospectus, have been incorporated by
reference in reliance on the report of Coopers & Lybrand L.L.P., independent
auditors, given on the authority of that firm as experts in accounting and
auditing.
The financial statements for Newcourt incorporated by reference in the
Prospectus and elsewhere in the Registration Statement, to the extent and for
the periods indicated in their report, have been audited by Ernst & Young,
Chartered Accountants, and are included herein in reliance on their reports
given on the authority of that firm as experts in accounting and auditing.
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AT&T CAPITAL CORPORATION AND SUBSIDIARIES
AND NEWCOURT CREDIT GROUP INC.
UNAUDITED PRO FORMA CONSOLIDATED FINANCIAL STATEMENTS
F-1
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<PAGE>
AT&T CAPITAL CORPORATION AND SUBSIDIARIES
AND NEWCOURT CREDIT GROUP INC.
UNAUDITED PRO FORMA CONSOLIDATED FINANCIAL INFORMATION
The following unaudited pro forma consolidated balance sheet and statement
of income of AT&T Capital Corporation and Subsidiaries ('AT&T Capital' or the
'Company') are based on the historical Consolidated Financial Statements of AT&T
Capital and Newcourt Credit Group Inc. ('Newcourt') at December 31, 1997 and for
the year then ended. The unaudited pro forma consolidated balance sheet has been
prepared assuming the Newcourt Acquisition, as defined herein, had occurred on
December 31, 1997 and the unaudited pro forma consolidated income statement has
been prepared assuming the Newcourt Acquisition had occurred on January 1, 1997.
On January 12, 1998, Newcourt, an Ontario corporation, consummated the purchase
(the 'Newcourt Acquisition') of all of the outstanding shares of common stock of
AT&T Capital, pursuant to a Stock Purchase Agreement dated as of November 17,
1997 (the 'Stock Purchase Agreement') among the Company, Newcourt, Hercules
Holdings (Cayman) Ltd. ('Hercules'), the former direct owner of 97.4% of the
Company's common stock, and by 21 members and one former member of the senior
management of the Company. In connection with the Newcourt Acquisition, all of
the outstanding shares of common stock of the Company were transferred to
Newcourt Holdings USA, Inc., a newly-formed Delaware corporation which is a
wholly-owned subsidiary of Newcourt. As a result of the Newcourt Acquisition,
all of the outstanding shares of common stock of the Company are owned
indirectly by Newcourt.
The aggregate purchase price pursuant to such Stock Purchase Agreement paid
by Newcourt to the stockholders of AT&T Capital was approximately $1.6 billion
comprised of approximately $1.0 billion in cash and the remainder comprising
approximately 17.6 million of Newcourt common shares. Such shares were issued
entirely to Hercules and generally may not be transferred for periods ranging
from 6 to 18 months following the date of the Newcourt Acquisition. The cash
portion of the purchase price paid by Newcourt was raised through the issuance
by Newcourt of 38.5 million shares of Newcourt common stock at approximately
$32.50 per share to employees of Newcourt and the public in Canada and the
United States. See the Company's Current Report on Form 8-K dated February 9,
1998, as amended by the Company's Current Report on Form 8-K/A dated February
18, 1998, both incorporated by reference in this Registration Statement, for the
prospectus filed by Newcourt in connection with its registration of fully paid
subscription rights to receive one common share of Newcourt.
The pro forma consolidated financial statements reflect the historical cost
of the Company's assets and liabilities. Adjustments to the Company's assets and
liabilities to reflect their respective fair values as a result of the Newcourt
Acquisition have not been made. The excess of purchase price over net book value
has been allocated to goodwill.
The following pro forma financial information is unaudited and should be
read in conjunction with the accompanying notes thereto and with the Company's
1997 audited consolidated financial statements, incorporated by reference in
this Registration Statement, and with the consolidated financial statements
included in Newcourt's Form 6-K for the year ended December 31, 1997,
incorporated by reference in this Registration Statement. The pro forma
financial information is not necessarily indicative of either the financial
position or the results of operations that would have been achieved had the
Newcourt Acquisition and the related transactions actually occurred on the dates
referred to above, nor is it necessarily indicative of the results of future
operations, because such unaudited pro forma financial information is based on
estimates of financial effects that may prove to be inaccurate over time.
F-2
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AT&T CAPITAL CORPORATION AND SUBSIDIARIES
AND NEWCOURT CREDIT GROUP INC.
UNAUDITED PRO FORMA CONSOLIDATED BALANCE SHEET
AS OF DECEMBER 31, 1997
<TABLE>
<CAPTION>
U.S.
GAAP/$ AT&T PRO FORMA PRO FORMA
NEWCOURT CAPITAL ADJUSTMENTS NOTE CONSOLIDATED
---------- ---------- ----------- ----- ------------
NOTE 2 NOTE 1
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
ASSETS
Cash........................................... $1,245,228 $ 8,317 $(1,101,900) 4a $ 120,545
(31,100) 4b
Investment in finance assets................... 1,061,223 2,564,933 3,626,156
Investment in capital leases................... 559,529 3,288,141 3,847,670
Investment in operating leases................. 192,513 1,593,582 1,786,095
Assets held for securitization and
syndication.................................. 761,724 478,213 1,239,937
Investment in affiliated companies............. 121,383 121,383
Accounts receivable and other.................. 236,956 525,963 45,700 4a 808,619
Goodwill, net.................................. 299,010 85,600 871,121 4a 1,296,631
40,900 4b
Deferred income taxes.......................... 0 231,146 231,146
---------- ---------- ----------- ------------
TOTAL ASSETS......................... $4,477,566 $8,775,895 $ (175,279) $ 13,078,182
---------- ---------- ----------- ------------
---------- ---------- ----------- ------------
LIABILITIES, PREFERRED SECURITIES AND
SHAREHOLDERS' EQUITY
LIABILITIES
Accounts payable and accrued
liabilities............................. $ 202,283 $ 709,997 $ 8,700 4a $ 967,880
46,900 4b
Debt...................................... 2,063,579 7,117,994 9,181,573
Future income tax liability............... 28,980 4,125 33,105
---------- ---------- ----------- ------------
TOTAL LIABILITIES.................... 2,294,842 7,832,116 55,600 10,182,558
---------- ---------- ----------- ------------
PREFERRED SECURITIES........................... 200,000 200,000
SHAREHOLDERS' EQUITY
Share capital............................. 2,048,718 903 549,097 4a 2,561,618
(37,100) 4b
Additional paid-in capital................ 651,552 (651,552) 4a
Recourse loans to senior executives....... (15,471) 15,471 4a
Foreign currency translation
adjustments............................. (4,032) 4,032 4a
Retained earnings......................... 134,006 110,827 (110,827) 4a 134,006
---------- ---------- ----------- ------------
TOTAL SHAREHOLDERS' EQUITY........... 2,182,724 743,779 (230,879) 2,695,624
---------- ---------- ----------- ------------
TOTAL LIABILITIES, PREFERRED
SECURITIES AND SHAREHOLDERS'
EQUITY............................. $4,477,566 $8,775,895 $ (175,279) $ 13,078,182
---------- ---------- ----------- ------------
---------- ---------- ----------- ------------
</TABLE>
See accompanying explanatory notes to the Unaudited Pro Forma Consolidated
Balance Sheet.
F-3
<PAGE>
<PAGE>
AT&T CAPITAL CORPORATION AND SUBSIDIARIES
AND NEWCOURT CREDIT GROUP INC.
UNAUDITED PRO FORMA CONSOLIDATED STATEMENT OF INCOME
FOR THE YEAR ENDED DECEMBER 31, 1997
<TABLE>
<CAPTION>
U.S.
GAAP/$ AT&T PRO FORMA PRO FORMA
NEWCOURT CAPITAL ADJUSTMENTS NOTE CONSOLIDATED
---------- ---------- ----------- ----- ------------
NOTE 2 NOTE 1
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
FEE AND AFFILIATE INCOME:
Securitization and syndication fees............ $ 143,570 $ 82,663 $226,233
Net income from affiliated companies........... 6,902 6,902
Management fees................................ 25,794 261,701 287,495
----------- -------- ------------
TOTAL FEE BASED INCOME.................... 176,266 344,364 520,630
Net rental revenue from operating leases....... 279,968 279,968
Net finance income............................. 51,027 25,208 76,235
----------- -------- ------------
TOTAL ASSET FINANCE INCOME................ 227,293 649,540 876,833
Selling, general and other operating
expenses..................................... 130,092 525,383 655,475
Depreciation and amortization.................. 14,760 20,345 $ 45,600 4c 80,705
Distributions on Preferred Securities.......... 18,120 18,120
----------- -------- ----------- ------------
Income before loss on sale of businesses, net,
restructuring charges and taxes................... 82,441 85,692 $ (45,600) 122,533
Loss on sales of businesses, net............... 18,563 18,563
Restructuring charges.......................... 49,377 35,093 84,470
----------- -------- ----------- ------------
Income before taxes................................. 33,064 32,036 $ (45,600) 19,500
Provision for (benefit of) income taxes........ (4,742) 11,029 6,287
----------- -------- ----------- ------------
NET INCOME................................ $ 37,806 $ 21,007 $ (45,600) $ 13,213
----------- -------- ----------- ------------
----------- -------- ----------- ------------
Basic and diluted earnings per common share......... $.10
------------
------------
</TABLE>
See accompanying explanatory notes to the unaudited Pro Forma Consolidated
Statement of Income.
F-4
<PAGE>
<PAGE>
AT&T CAPITAL CORPORATION AND SUBSIDIARIES
AND NEWCOURT CREDIT GROUP INC.
EXPLANATORY NOTES TO THE UNAUDITED PRO FORMA CONSOLIDATED BALANCE SHEET
AND THE UNAUDITED PRO FORMA CONSOLIDATED STATEMENT OF INCOME
AS OF AND FOR THE YEAR ENDED DECEMBER 31, 1997
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
1. BASIS OF PRESENTATION
The unaudited pro forma consolidated balance sheet and unaudited pro forma
consolidated statement of income have been prepared using the following
information:
(a) Audited consolidated financial statements of Newcourt Credit Group
Inc. ('Newcourt') as of and for the year ended December 31, 1997, which are
incorporated by reference in this Registration Statement (See Note 2);
(b) Audited consolidated financial statements of AT&T Capital
Corporation ('AT&T Capital' or the 'Company') as of and for the year ended
December 31, 1997, which are incorporated by reference in this Registration
Statement. Certain financial statement items have been reclassified from
the audited consolidated financial statements of AT&T Capital in order to
conform to the presentation used by Newcourt. These reclassifications are
as follows:
<TABLE>
<CAPTION>
PER AT&T CAPITAL PRO FORMA NEWCOURT
BALANCE SHEET CATEGORY* PRESENTATION RECLASSIFICATION NOTE PRESENTATION
- --------------------------------------------- ---------------- ---------------- ----------- ------------
<S> <C> <C> <C> <C>
Net investment in finance receivables........ 2,343,604 221,329 (1) 2,564,933
Deferred charges and other assets............ 832,892 (221,329) (1) 525,963
(85,600) (2)
Goodwill, net................................ -- 85,600 (2) 85,600
Short-term notes, less unamortized
discounts.................................. 1,868,585 (1,868,585) (3) --
Medium and long-term debt.................... 5,249,409 1,868,585 (3) 7,117,994
Income taxes and other payables.............. 714,122 (4,125) (4) 709,997
Future income tax liability.................. -- 4,125 (4) 4,125
INCOME STATEMENT CATEGORY*
Finance revenue.............................. 229,855 (229,855) (5) --
Capital lease revenue........................ 361,124 (361,124) (5) --
Rental revenue on operating leases........... 834,027 (834,027) (6) --
Equipment sales.............................. 49,349 (49,349) (7) --
Other revenue, net........................... 257,121 (257,121) (7) --
Interest expense............................. 451,470 (451,470) (5) --
Operating and administrative................. 545,728 (20,345) (8) 525,383
Depreciation on operating leases............. 554,059 (554,059) (6) --
Cost of equipment sales...................... 44,769 (44,769) (7) --
Provision for credit losses.................. 114,301 (114,301) (5) --
Net finance income........................... -- 25,208 sum of (5) 25,208
Net rental revenue from operating leases..... -- 279,968 sum of (6) 279,968
Management fees.............................. -- 261,701 sum of (7) 261,701
Depreciation and amortization................ -- 20,345 (8) 20,345
</TABLE>
- ------------
(1) Net investment in securitized assets have been reclassified from Deferred
charges and other assets to the caption Investment in finance assets.
(2) Goodwill has been reclassified from Deferred charges and other assets to the
caption Goodwill, net.
F-5
<PAGE>
<PAGE>
(3) Short-term notes, less unamortized discounts and Medium and long-term debt
have been reclassified to the caption Debt.
(4) The current liability for operating income taxes has been reclassified from
Income taxes and other payables to Future income tax liability.
(5) Finance revenue, Capital lease revenue, Interest expense and Provision for
credit losses have been reclassified to the caption Net finance income.
(6) Rental revenue on operating leases and Depreciation on operating leases have
been reclassified to the caption Net rental revenue from operating leases.
(7) Other revenue, net, Equipment sales and Cost of equipment sales have been
reclassified to the caption Management fees.
(8) Depreciation on property, plant and equipment and goodwill amortization have
been reclassified from Operating and administrative to the caption
Depreciation and amortization.
* Descriptions may differ slightly in the Newcourt presentation. See AT&T
Capital Corporation and Subsidiaries and Newcourt Credit Group
Inc. -- Unaudited Pro Forma Consolidated Balance Sheet and Income Statement.
(c) Such other supplementary information as was considered necessary
to reflect the acquisition of the Company by Newcourt (the 'Newcourt
Acquisition') in these unaudited pro forma consolidated financial
statements.
2. NEWCOURT CREDIT GROUP INC.
The financial statements of Newcourt as of and for the year ended December
31, 1997, incorporated by reference in this Registration Statement, were
prepared in accordance with accounting principles generally accepted in Canada
and are expressed in Canadian dollars. For the purposes of these unaudited pro
forma consolidated financial statements, the following adjustments have been
made to the balance sheet and income statement of Newcourt to conform them to
U.S. generally accepted accounting principles in U.S. dollars.
(a) Differences between Generally Accepted Accounting Principles ('GAAP')
in Canada and the United States.
(i) For Canadian GAAP purposes, unrealized translation gains and
losses on long term monetary items are deferred and amortized over the
remaining terms of those items. For U.S. GAAP purposes, such gains and
losses are recorded in income immediately.
(ii) For Canadian GAAP purposes, amounts paid to employees to retire
issued stock options without issuing common stock are recorded as capital
transactions. For U.S. GAAP purposes, such amounts paid are recorded as
compensation expense.
(iii) For Canadian GAAP purposes, finance assets sold to
securitization vehicles are not consolidated. Under U.S. GAAP, certain of
these securitization vehicles are required to be accounted for under the
equity method of accounting while others are required to be consolidated.
Accordingly, for U.S. GAAP purposes, gains relating to these asset sales
have been deferred, and, in the case of consolidated vehicles, the assets
and liabilities have been recorded on the balance sheet. The deferred gains
will be recognized in income as the related finance assets are collected.
(iv) The restructuring charge was reduced for costs that would have
been accrued as an adjustment to the liabilities assumed relating to a
recent acquisition and the rationalization of certain Newcourt businesses
in Canada and the United States under U.S. GAAP, rather than expensed as
permitted by Canadian GAAP.
F-6
<PAGE>
<PAGE>
The following tables summarizes the differences between what was reported
by Newcourt in its financial statements under Canadian GAAP and what has been
reflected herein for U.S. GAAP purposes as of and for the year ended December
31, 1997:
Income Statement:
<TABLE>
<S> <C>
Net income for the year ended December 31, 1997 as reported under Canadian GAAP.... $26,318
Difference in accounting for foreign exchange gains (losses) (net of income tax
recovery of $4,466).............................................................. (5,458)
Difference in accounting for options retired....................................... (796)
Difference in accounting for securitization transactions (net of income taxes of
$3,153).......................................................................... 3,964
Difference in accounting for restructuring charge (net of income taxes of
$11,272)......................................................................... 13,778
-------
Net income for the year ended December 31, 1997 reported under U.S. GAAP........... $37,806
-------
-------
</TABLE>
Balance Sheet:
<TABLE>
<S> <C>
Increase in investment in finance assets........................................... $95,370
Increase in accounts receivable and other.......................................... 53,132
Increase in goodwill, net.......................................................... 13,726
Decrease in accounts payable and accrued liabilities............................... 9,867
Increase in debt................................................................... 94,540
Increase in subordinated debt...................................................... 21,930
Increase in future income tax liability............................................ 9,620
</TABLE>
(b) Currency
The audited consolidated financial statements of Newcourt are expressed in
Canadian dollars. For the purposes of these unaudited pro forma consolidated
financial statements, the consolidated balance sheet of Newcourt has been
translated into U.S. dollars using the December 31, 1997 exchange rate of 1.4328
and the consolidated statement of income of Newcourt has been translated into
U.S. dollars using the weighted average exchange rate for the year ended
December 31, 1997 of 1.3839.
3. PRO FORMA ASSUMPTIONS
(a) The acquisition, pursuant to an agreement dated November 17, 1997,
whereby Newcourt agreed to purchase all of the issued and outstanding common
shares of AT&T Capital, subject to satisfaction of certain closing conditions,
for approximately $1.6 billion payable as follows:
(i) approximately $1.0 billion by means of cash payment at closing;
and
(ii) the remainder by the issuance of approximately 17.6 million of
Newcourt common shares at closing.
(b) The acquisition of AT&T Capital has been accounted for using the
purchase method. The difference between the purchase price and estimated fair
value of the net assets acquired has been allocated to goodwill. Goodwill has
not yet been adjusted to revalue the assets and liabilities of AT&T Capital to
their fair values. The amount assigned to goodwill will be amortized as a
reduction to income over a twenty year period.
(c) The issuance of 38.5 million Newcourt common shares, pursuant to a
prospectus filed with the Securities and Exchange Commission on November 24,
1997, which resulted in Newcourt receiving net proceeds (after the underwriters'
fees and the expenses of issue) of approximately $1.2 billion.
4. PRO FORMA ADJUSTMENTS
The pro forma adjustments contained in these pro forma consolidated
financial statements are based on estimates and assumptions by management of
AT&T Capital and Newcourt based on available information. The adjustments for
the actual acquisition may differ as a result of changes arising from
F-7
<PAGE>
<PAGE>
evaluation of the fair value of AT&T Capital's net assets by Newcourt after the
effective date of acquisition. The following adjustments have been made to
reflect the Newcourt Acquisition:
(a) Issuance of approximately $1.2 billion of Newcourt common shares,
a portion of which, was used to satisfy the cash portion of the purchase
price (See Note 3), the issuance of approximately 17.6 million treasury
shares by Newcourt in the amount of approximately $.6 billion to satisfy
the remaining portion of the purchase price and to reflect the purchase of
all the issued and outstanding common stock of AT&T Capital.
(b) To reflect the costs of issuing Newcourt common shares as well as
other transaction related costs.
(c) Amortization of goodwill over a twenty year period.
5. EARNINGS PER SHARE
Earnings per share reflects the issuance by Newcourt of approximately 56.1
million common shares arising from the acquisition of the Company combined with
the average number of Newcourt common shares outstanding (subsequent to the
subdivision of the common shares) during the period.
F-8
<PAGE>
<PAGE>
________________________________ ________________________________
No person has been authorized to give any information or to make any
representations other than those contained or incorporated by reference in this
Prospectus Supplement or the Prospectus in connection with the offer made by
this Prospectus Supplement and the Prospectus and, if given or made, such
information or representations must not be relied upon as having been
authorized. Neither the delivery of this Prospectus Supplement and the
Prospectus nor any sale made hereunder and thereunder shall under any
circumstances create an implication that there has been no change in the affairs
of the Company since the date hereof. This Prospectus Supplement and the
Prospectus do not constitute an offer or solicitation by anyone in any state in
which such offer or solicitation is not authorized or in which the person making
such offer or solicitation is not qualified to do so or to anyone to whom it is
unlawful to make such offer or solicitation.
---------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Prospectus Supplement
Important Currency Exchange Information...................................................................................... S-2
Description of Medium-Term Notes, Series F................................................................................... S-2
Foreign Currency and Indexed Note Risks...................................................................................... S-16
Material Federal Income Tax Consequences..................................................................................... S-17
Plan of Distribution......................................................................................................... S-29
Prospectus
Available Information........................................................................................................ 2
Incorporation of Documents by Reference...................................................................................... 3
Risk Factors................................................................................................................. 3
The Company.................................................................................................................. 7
Use of Proceeds.............................................................................................................. 10
Ratio of Earnings to Fixed Charges........................................................................................... 11
Description of the Debt Securities........................................................................................... 12
Description of the Warrants.................................................................................................. 20
Description of the Guarantee................................................................................................. 27
Global Securities............................................................................................................ 27
Material Federal Income Tax Consequences..................................................................................... 29
Plan of Distribution......................................................................................................... 29
Validity of Securities....................................................................................................... 30
Experts...................................................................................................................... 30
</TABLE>
U.S. $5,000,000,000
[LOGO]
MEDIUM-TERM NOTES, SERIES F
DUE NINE MONTHS OR
MORE FROM DATE OF ISSUE
GUARANTEED AS TO PAYMENT OF PRINCIPAL,
PREMIUM, IF ANY, AND INTEREST BY
[LOGO]
------------------------------------------
PROSPECTUS SUPPLEMENT
DATED MAY , 1998
------------------------------------------
________________________________ ________________________________
<PAGE>
<PAGE>
PART II TO FORM F-9
INFORMATION NOT REQUIRED TO BE DELIVERED
TO OFFEREES OR PURCHASERS
INDEMNIFICATION
Under the Business Corporations Act (Ontario) (the 'OBCA'), the Registrant
may indemnify a present or former director or officer of the Registrant or
person who acts or acted at the Registrant's request as a director or officer of
another body corporate of which the Registrant is or was a shareholder or
creditor, and his or her heirs and legal representatives:
(a) against all costs, charges and expenses, including an amount paid
to settle an action or satisfy a judgment, reasonably incurred by him or
her in respect of any civil, criminal or administrative action or
proceeding to which he or she is made a party by reason of being or having
been a director or officer of the Registrant;
(b) with court approval, against all costs, charges and expenses
reasonably incurred by him or her in connection with an action brought by
or on behalf of the Registrant or body corporate to procure a judgment in
its favour, to which he or she is made a party by reason of being or having
been a director or officer of the Registrant or body corporate; and
(c) in respect of all costs, charges and expenses reasonably incurred
by him or her in connection with the defence of any civil, criminal or
administrative action or proceeding to which he or she is made a party by
reason of having been a director or officer of the Registrant or body
corporate, if he or she was substantially successful on the merits or his
or her defence of the action or proceeding.
provided, in all cases, such director or officer (i) acted honestly and in good
faith with a view to the best interests of the Registrant, and (ii) in the case
of a criminal or administrative action or proceeding that is enforced by a
monetary penalty, such director or officer had reasonable grounds for believing
that his or her conduct was lawful.
Subject to the limitations contained in the OBCA, the By-laws of the
Registrant provide that every director or officer of the Registrant, every
former director or officer of the Registrant or a person who acts or acted at
the Registrant's request as a director or officer of a body corporate of which
the Registrant is or was a shareholder or creditor, and his heirs and legal
representatives shall, from time to time, be indemnified and saved harmless by
the Registrant from and against all costs, charges and expenses, including an
amount paid to settle an action or satisfy a judgment, reasonably incurred by
him in respect of any civil, criminal or administrative action or proceeding to
which he is made a party by reason of being or having been a director or officer
of the Registrant or body corporate if:
(1) he acted honestly and in good faith with a view to the best
interests of the Registrant; and
(2) in the case of a criminal or administrative action or proceeding
that is enforced by a monetary penalty, he had reasonable grounds for
believing that his conduct was lawful.
The Registrant maintains directors' and officers' liability insurance with
an aggregate annual limit of liability of U.S.$40,000,000. Under this insurance
coverage, the Registrant is reimbursed for payments made to directors or
officers of the Registrant, as required or permitted by law or under provisions
of the By-laws of the Registrant, as indemnity for loss, including legal costs,
arising from acts, errors or omissions done or committed by officers or
directors of the Registrant in the course of their duties.
Any agents, dealers of underwriters, who execute any of the agreements
filed as Exhibits 1A or 1B to the registration statement on Form S-3 filed
concurrently herewith, will agree to indemnify the registrant and registrant's
directors and its officers who signed the registration statement against certain
liabilities which might arise under the Securities Act of 1933 from information
furnished to the registrant by or on behalf of any such indemnifying party.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended, may be permitted to directors, officers or persons
controlling the Registrant pursuant to the foregoing provisions, the Registrant
has been informed that in the opinion of the U.S. Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933, as amended, and is therefore unenforceable.
II-1
<PAGE>
<PAGE>
PART II TO FORM S-3
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
<TABLE>
<S> <C>
Securities and Exchange Commission Filing Fee....................................................... $1,475,000
Rating Agency Fees.................................................................................. 580,000*
Fees and Expenses of Trustee........................................................................ 20,000
Printing and Distributing Registration Statement, Prospectus, Indenture and Miscellaneous
Material.......................................................................................... 40,000*
Accountants' Fee.................................................................................... 150,000*
Legal Fees and Expenses............................................................................. 50,000*
Blue Sky Fees and Expenses.......................................................................... 6,500*
Miscellaneous Expenses.............................................................................. 9,500*
----------
Total.......................................................................................... $2,331,000
----------
----------
</TABLE>
- ------------
* Estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of Delaware and the registrant's
Restated Certificate of Incorporation and By-Laws provide for the
indemnification of directors and officers under certain circumstances, and on a
case by case basis, against expenses reasonably incurred in connection with a
civil or criminal action to which he or she was a party, or threatened to be
made a party, by reason of being a director or officer. The registrant's
Restated Certificate of Incorporation and By-Laws provide for indemnity of
directors and officers to the fullest extent permitted by law.
The directors and officers of the registrant are covered by an insurance
policy indemnifying them against certain liabilities, including certain
liabilities arising under the Securities Act of 1933, which might be incurred by
them in such capacities and against which they cannot be indemnified by the
registrant.
Any agents, dealers or underwriters, who execute any of the agreements
filed as Exhibits 1A or 1B to this registration statement, will agree to
indemnify the registrant and registrant's directors and its officers who signed
the registration statement against certain liabilities which might arise under
the Securities Act of 1933 from information furnished to the registrant by or on
behalf of any such indemnifying party.
ITEM 16. EXHIBITS.
The exhibits marked with an asterisk below, on file with the Commission,
are incorporated by reference as exhibits hereto.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
- -------
<S> <C>
1A -- Form of Underwriting Agreement
1B -- Form of Distribution Agreement
4A -- Form of Indenture dated as of April 1, 1998 (the 'Indenture'), between the Registrant and The Chase
Manhattan Bank, as Trustee***
4B -- Form of Medium-Term Global Fixed Rate Note*
4C -- Form of Medium-Term Certificated Fixed Rate Note*
4D -- Form of Medium-Term Global Floating Rate Note*
4E -- Form of Medium-Term Certificated Floating Rate Note*
4F -- Form of Debt Warrant Agreement*
4G -- Form of Currency Warrant Agreement**
4H -- Form of Index Warrant Agreement**
4I -- Form of Interest Rate Warrant Agreement**
4J -- Form of Guarantee relating to the Notes
</TABLE>
II-2
<PAGE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
- -------
<S> <C>
4K -- Form of Guarantee relating to the Warrants
5 -- Opinion of Glen J. DuMont, Assistant General Counsel of the Registrant, as to the legality of the
securities being registered
12 -- Computation of Ratio of Earnings to Fixed Charges*
23A -- Consent of Coopers & Lybrand L.L.P.*
23B -- Consent of Glen J. DuMont, Assistant General Counsel of the Registrant (contained in the opinion filed
as Exhibit 5)
23C -- Consent of Arthur Andersen LLP*
23D -- Consent of Ernst & Young*
24 -- Powers of Attorney executed by the directors and officers who signed the registration statement*
25 -- Statement of Eligibility of the Trustee on Form T-1***
</TABLE>
- ------------
* Previously filed as an exhibit to this Registration Statement
** Previously filed as the corresponding exhibit to Registration Statement No.
33-54359
*** Amends the corresponding exhibit filed with the initial filing of this
Registration Statement
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made
of the securities registered hereby, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in this registration statement
or any material change to such information in this registration
statement;
Provided, however, that the undertakings set forth in paragraphs (i)
and (ii) above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed with the Securities and Exchange Commission by the registrant
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934
that is incorporated by reference in this registration statement shall be
deemed to be a new registration statement relating to the securities
offered herein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions referred to in the first paragraph of Item
15 above or otherwise, the registrant has been advised that in the opinion of
the Securities and Exchange Commission such indemnification by it is against
public policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such
II-3
<PAGE>
<PAGE>
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the
final adjudication of such issue.
For purposes of determining any liability under the Securities Act of 1933,
the information omitted from the form of prospectus filed as part of a
registration statement in reliance upon Rule 430A and contained in the form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of the registration
statement as of the time it was declared effective.
For the purpose of determining any liability under the Securities Act of
1933, each post-effective amendment that contains a form of prospectus shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
II-4
<PAGE>
<PAGE>
PART III
UNDERTAKING AND CONSENT TO SERVICE OF PROCESS
ITEM 1. UNDERTAKING
The Registrant undertakes to make available, in person or by telephone,
representatives to respond to inquires made by the Commission staff, and to
furnish promptly, when requested to do so by the Commission staff, information
relating to the securities registered pursuant to this Form F-9 or to
transactions in said securities.
ITEM 2. CONSENT TO SERVICE OF PROCESS
Concurrently with the filing of this Registration Statement, the Registrant
is filing with the Commission a written irrevocable consent and power of
attorney on Form F-X.
III-1
<PAGE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form F-9 and has duly caused this Amendment to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Toronto, Province of Ontario, Country
of Canada, on April 28, 1998.
NEWCOURT CREDIT GROUP INC.
By: /s/ BORDEN D. ROSIAK
...................................
NAME: BORDEN D. ROSIAK
TITLE: EXECUTIVE VICE PRESIDENT
III-2
<PAGE>
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------ -------------------------------------------- -------------------
<C> <S> <C>
** Chief Executive Officer and Director April 28, 1998
.........................................
STEVEN K. HUDSON
/s/ BORDEN D. ROSIAK Executive Vice-President April 28, 1998
.........................................
BORDEN D. ROSIAK
** Chief Financial Officer April 28, 1998
.........................................
DANIEL A. JAUERNIG
** Chairman of the Board and Director April 28, 1998
.........................................
DAVID F. BANKS
** Director April 28, 1998
.........................................
GERALD E. BEASLEY
** Director April 28, 1998
.........................................
DAVID A. MACINTOSH
** Director April 28, 1998
.........................................
RONALD A. MCKINLAY
** Director April 28, 1998
.........................................
BRADLEY D. NULLMEYER
** Director April 28, 1998
.........................................
DAVID D. MCKERROLL
** Director April 28, 1998
.........................................
PAUL G. MORTON
** Director April 28, 1998
.........................................
ROBERT F. KILIMNIK
** Director April 28, 1998
.........................................
BRUCE I. ROBERTSON
** Director April 28, 1998
.........................................
RICHARD C. VERN
AT&T CAPITAL Authorized Representative in the United April 28, 1998
CORPORATION States
By: **
.........................................
SCOTT J. MOORE
**By: /s/ BORDEN D. ROSIAK
.........................................
BORDEN D. ROSIAK
Attorney-in-Fact
</TABLE>
III-3
<PAGE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment to the
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the Town of Morristown, State of New Jersey, on the 28th day
of April, 1998.
AT&T CAPITAL CORPORATION
By /s/ SCOTT J. MOORE
...................................
SCOTT J. MOORE
SENIOR VICE PRESIDENT,
GENERAL COUNSEL AND SECRETARY
Pursuant to the requirements of the Securities Act of 1933, this Amendment
to the Registration Statement has been signed below by the following persons in
the capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE CAPACITY DATE
- ------------------------------------------ -------------------------------------------- -------------------
<C> <S> <C>
** Principal Executive Officer -- Chief April 28, 1998
......................................... Executive Officer and Director
STEVEN K. HUDSON
** Principal Financial Officer -- Chief April 28, 1998
......................................... Financial Officer
DANIEL A. JAUERNIG
** Principal Accounting Officer -- Vice April 28, 1998
......................................... President and Controller
THOMAS G. ADAMS
** Director April 28, 1998
.........................................
DAVID F. BANKS
**By /s/ SCOTT J. MOORE
.........................................
SCOTT J. MOORE,
AS ATTORNEY-IN-FACT
</TABLE>
<PAGE>
<PAGE>
EXHIBIT INDEX
The exhibits marked with an asterisk below, on file with the Commission,
are incorporated by reference as exhibits hereto.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
- -------
<S> <C>
1A -- Form of Underwriting Agreement
1B -- Form of Distribution Agreement
4A -- Form of Indenture dated as of April 1, 1998 (the 'Indenture'), between the Registrant and The Chase
Manhattan Bank, as Trustee***
4B -- Form of Medium-Term Global Fixed Rate Note*
4C -- Form of Medium-Term Certificated Fixed Rate Note*
4D -- Form of Medium-Term Global Floating Rate Note*
4E -- Form of Medium-Term Certificated Floating Rate Note*
4F -- Form of Debt Warrant Agreement*
4G -- Form of Currency Warrant Agreement**
4H -- Form of Index Warrant Agreement**
4I -- Form of Interest Rate Warrant Agreement**
4J -- Form of Guarantee relating to the Notes
4K -- Form of Guarantee relating to the Warrants
5 -- Opinion of Glen J. DuMont, Assistant General Counsel of the Registrant, as to the legality of the
securities being registered
12 -- Computation of Ratio of Earnings to Fixed Charges*
23A -- Consent of Coopers & Lybrand L.L.P.*
23B -- Consent of Glen J. DuMont, Assistant General Counsel of the Registrant (contained in the opinion filed
as Exhibit 5)
23C -- Consent of Arthur Andersen LLP*
23D -- Consent of Ernst & Young*
24 -- Powers of Attorney executed by the directors and officers who signed the registration statement*
25 -- Statement of Eligibility of the Trustee on Form T-1***
</TABLE>
- ------------
* Previously filed as an exhibit to this Registration Statement
** Previously filed as the corresponding exhibit to Registration Statement No.
33-54359
*** Amends the corresponding exhibit filed with the initial filing of this
Registration Statement
<PAGE>
<PAGE>
EXHIBIT 1A
AT&T CAPITAL CORPORATION
FORM OF NOTE UNDERWRITING AGREEMENT
, 1998
J.P. Morgan Securities Inc.
As Representative of the Several Underwriters
c/o J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260
Ladies and Gentlemen:
Each of the undersigned, AT&T Capital Corporation (the "Company") and
Newcourt Credit Group Inc. ("Newcourt"), hereby confirms its agreement with the
several Underwriters named in Schedule I hereof, as follows:
1. Underwriters and Representatives. The term "Underwriters" as used
herein shall mean the several persons, firms and corporations named in Schedule
I hereof, and the term "Underwriter" shall mean any one of such persons, firms
or corporations. The terms "Underwriters," "persons," "firms" and "corporations"
as used herein shall include the singular of such terms as well as the plural.
The term "Representative" shall mean the representative to whom this Agreement
is addressed, who, by signing this Agreement, represents that it has been
authorized by each Underwriter to execute this Agreement on behalf of such
Underwriter and to act for such Underwriter in the manner herein provided. All
obligations of the Underwriters hereunder are several and not joint.
2. Description of Notes. The Company proposes to issue $750,000,000
principal amount of its Medium-Term Notes, Series F (the "Notes") under an
Indenture dated as of April 1, 1998, (as amended, restated or supplemented from
time to time, the "Indenture"), between the Company, Newcourt and The Chase
Manhattan Bank, Trustee (the "Trustee"). The Notes will be guaranteed as to
payment of principal, premium, if any, and interest pursuant to the guarantee
dated as of April 1, 1998 made by Newcourt to the Trustee (the "Guarantee"). The
Notes and the Guarantee are more fully described in the Registration Statement.
The term "Registration Statement" means the joint registration
statement on Form S-3/Form F-9 (File No. 333-48415) relating to the Notes and
the Guarantee (including a prospectus and prospectus supplement, each as amended
to the date hereof, relating to the Notes and the Guarantee) which has become
effective under the Securities Act of 1933 (the "Act"). The term "Basic
Prospectus" means the prospectus included in the Registration Statement. The
term "Prospectus" means the Basic Prospectus together with the prospectus
supplement specifically relating to the
<PAGE>
<PAGE>
Notes and Guarantee, as filed with, or delivered for filing to, the Commission
pursuant to Rule 424 under the Act. The term "preliminary prospectus" means any
preliminary prospectus supplement specifically relating to the Notes and
Guarantee together with the Basic Prospectus. As used herein, Registration
Statement, Basic Prospectus, Prospectus, and preliminary prospectus shall
include in each case the material, if any, incorporated by reference therein.
3. Representations and Warranties of the Company. The Company
and Newcourt jointly and severally represent and warrant to the several
Underwriters that:
(a) The Company and Newcourt have filed with the Commission the
Registration Statement, which has become effective under the
Act, and the Company and Newcourt have filed or will file
with, or has delivered or will deliver for filing to, the
Commission a prospectus supplement specifically relating to
the Notes and Guarantee pursuant to Rule 424 under the Act.
(b)(i) Each part of the Registration Statement (including the
material incorporated by reference therein) when such part
became effective, did not contain any 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, (ii) each preliminary prospectus, if any, relating
to the Notes and the Guarantee, filed pursuant to Rule 424
under the Act, complied when so filed in all material respects
with the Act and the Trust Indenture Act of 1939 (the "Trust
Indenture Act") and the applicable rules and regulations of
the Commission thereunder, (iii) the Registration Statement
and the Prospectus comply and, as amended or supplemented, if
applicable, will comply in all material respects with the Act
and the Trust Indenture Act and the applicable rules and
regulations of the Commission thereunder and (iv) the
Registration Statement and the Prospectus do not and, as
amended or supplemented, if applicable, will not contain any
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 Company
makes no representations or warranties as to the information
contained in or omitted from the Registration Statement, any
preliminary prospectus or the Prospectus in reliance upon
information furnished in writing to the Company by an
Underwriter through J.P. Morgan Securities Inc. specifically
for inclusion therein or as to any statements in or omissions
from the Statement of Eligibility and Qualification of the
Trustee under the Indenture.
(c) Each document or portion thereof incorporated by reference in
the Prospectus complied when filed with the Commission in all
material respects with the provisions of the Securities
Exchange Act of 1934 (the "Exchange Act"), together with the
applicable instructions, rules and regulations of the
2
<PAGE>
<PAGE>
Commission thereunder, and each document, if any, hereafter
filed under the Exchange Act and so incorporated by reference
in the Prospectus will comply when so filed in all material
respects with the requirements of such Exchange Act and such
applicable instructions, rules and regulations.
(d) The accountants who have certified or shall certify the
financial statements filed and to be filed with the Commission
as parts of the Registration Statement and the Prospectus are
public or certified accountants, independent with respect to
the Company and Newcourt, as required by the Act and the rules
and regulations of the Commission thereunder.
(e) The financial statements, and the related notes thereto,
included or incorporated by reference in the Registration
Statement and the Prospectus present fairly the consolidated
financial position of the Company and Newcourt and their
respective consolidated subsidiaries as of the dates indicated
and the results of their operations and the changes in their
consolidated cash flows for the periods specified; said
financial statements have been prepared in conformity with
generally accepted accounting principles applied on a
consistent basis, and the supporting schedules included or
incorporated by reference in the Registration Statement
present fairly the information required to be stated therein;
and the pro forma financial information and the related notes
thereto, included or incorporated by reference in the
Registration Statement and the Prospectus, have been prepared
in accordance with the applicable requirements of the Act and
Exchange Act, as applicable, and is based upon good faith
estimates and assumptions believed by the Company and Newcourt
to be reasonable.
(f) Since the respective dates as of which information is given in
the Registration Statement and Prospectus, there has not been
any change in the capital stock or long-term debt of the
Company or Newcourt or any of their respective subsidiaries,
or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the
general affairs, business, prospects, management, financial
position, stockholders' equity or results of operations of the
Company or Newcourt and their respective subsidiaries, taken
as a whole, otherwise than as set forth or contemplated in the
Prospectus; and except as set forth or contemplated in the
Prospectus neither the Company, Newcourt nor any of their
respective subsidiaries has entered into any transaction or
agreement (whether or not in the ordinary course of business)
material to the Company and its subsidiaries and Newcourt and
its subsidiaries, each taken as a whole.
(g) The Indenture has been duly authorized, executed and delivered
by the Company and constitutes the valid and binding agreement
of the Company,
3
<PAGE>
<PAGE>
enforceable in accordance with its terms (except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or
affecting creditors' rights generally and by general equity
principles); (ii) the Notes have been validly authorized and,
when duly executed, authenticated and delivered as provided in
the Indenture, will be validly issued and outstanding, and
will constitute valid and binding agreements of the Company
entitled to the benefits of the Indenture and enforceable in
accordance with their terms (except as enforcement thereof may
be limited by bankruptcy, insolvency, reorganization,
moratorium and other laws relating to or affecting creditors'
rights generally and by general equity principles); and (iii)
the Notes and the Indenture conform to the descriptions
thereof contained in the Prospectus.
(h) The Guarantee has been duly authorized, executed and delivered
by the Company and constitutes the valid and binding agreement
of Newcourt, enforceable in accordance with its terms (except
as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium and other laws relating
to or affecting creditors' rights generally and by general
equity principles); and (ii) the Guarantee conforms to the
descriptions thereof contained in the Prospectus.
(i) Each of the Company, Newcourt and their respective
subsidiaries have been duly incorporated, is validly existing
and in good standing under the laws of its respective
jurisdiction of incorporation, is duly qualified to do
business and in good standing as a foreign corporation in each
jurisdiction in which its respective ownership of properties
or the conduct of its respective businesses requires such
qualification (except to the extent that the failure to be so
qualified or be in good standing would not have a material
adverse effect on the Company, Newcourt and their respective
subsidiaries taken as a whole), and has the power and
authority necessary to own or hold its respective properties
and to conduct the businesses in which it is engaged, as
described in the Prospectus.
(j) Neither the Company, Newcourt nor any of their respective
subsidiaries is in violation of its corporate charter or
by-laws or in default under any agreement, indenture or
instrument, the effect of which violation or default would be
material to the Company, Newcourt and their respective
subsidiaries taken as a whole.
(k) The execution, delivery and performance of this Agreement by
the Company and Newcourt and the execution, delivery and
performance by Newcourt of the Guarantee and the consummation
of the transactions contemplated hereby and thereby will not
conflict with or result in a breach or violation of any of
4
<PAGE>
<PAGE>
the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company, Newcourt or any
of their respective subsidiaries is a party or by which the
Company, Newcourt or any of their respective subsidiaries is
bound or to which any of the property or assets of the
Company, Newcourt or any of their respective subsidiaries is
subject, nor will such actions result in any violation of the
provisions of the charter or by-laws of the Company, Newcourt
or any of their respective subsidiaries or any statute or any
order, rule or regulation of any court or governmental agency
or body having jurisdiction over the Company, Newcourt or any
of their respective subsidiaries or any of their properties or
assets, the effect of which breach, violation or default would
be material to the Company, Newcourt and their respective
subsidiaries taken as a whole; and except for the registration
of the Notes and the Guarantee under the Act and such
consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act and
applicable state securities laws in connection with the
purchase and distribution of the Notes and the Guarantee by
the Underwriters, no consent, approval, authorization or order
of, or filing or registration with, any such court or
governmental agency or body is required for the execution and
delivery by the Company and Newcourt of, compliance by the
Company and Newcourt with the provisions of, or consummation
of the transactions contemplated by, this Agreement, except to
the extent that the effect of the failure to obtain such
consent, approval, authorization or order or to make such
filing or registration would not be material to the Company,
Newcourt and their respective subsidiaries taken as a whole.
(l) The Company is in compliance with all provisions of Section 1
of Laws of Florida, Chapter 92-128, AN ACT RELATING TO
DISCLOSURE OF DOING BUSINESS WITH CUBA.
4. Purchase And Sale of Notes. On the basis of the representations and
warranties and on the terms and subject to the conditions herein set forth, each
of the Underwriters agrees to purchase from the Company, severally and not
jointly, and on the terms and subject to the conditions herein set forth the
Company agrees to sell to each of the Underwriters, severally and not jointly,
the principal amount of Notes set forth opposite its name in Schedule I, at %
of the principal amount thereof, together with accrued interest, if any, thereon
from , 199 to the date of payment and delivery.
The terms of the public offering of the Notes are as set forth in the
Prospectus.
5. Closing. Delivery of, and payment of the purchase price for, the
Notes which the Underwriters severally agree to purchase shall be made at the
office of Winston & Strawn, New
5
<PAGE>
<PAGE>
York, New York, at 10:00 a.m.(1) on , 1998 or at other such other place
or time on the same or such other day as shall be agreed upon by the Company and
the Representative. The time and date for such payment and delivery are herein
referred to as the "time of closing". At the time of closing, the Company will
deliver the Notes, registered in such names and in such authorized denominations
as the Representative shall have specified not less than two business days prior
to the day of closing, against payment therefor as provided in Section 6 hereof,
to the Representative for the respective accounts of the Underwriters.
The Company agrees to make the Notes available to the
Representative for examination on behalf of the Underwriters at the office of
Winston & Strawn, New York, New York, not later than 2:00 p.m. on the business
day next preceding the day of closing.
If, for any reason (other than termination of this Agreement
in accordance with the provisions of Section 8, 9 or 10 hereof), one or more of
the Underwriters shall fail or refuse to pay for the Notes it has or they have
agreed to purchase (any such Underwriter being hereinafter referred to as a
"defaulting Underwriter"), and the aggregate principal amount of the Notes which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase is not more than one-tenth of the aggregate principal amount of the
Notes, the remaining Underwriters shall be obligated severally in the proportion
which the amounts of Notes set forth opposite their names in Schedule I of this
Agreement bear to the aggregate principal amount of the Notes set forth opposite
the names of all such non-defaulting Underwriters (or in such other proportion
as the Representative shall specify) to purchase the Notes which the defaulting
Underwriter or Underwriters agreed but failed or refused to purchase; provided
that in no event shall the principal amount of Notes that any Underwriter has
agreed to purchase pursuant to Section 5 be increased pursuant to this Section 5
by an amount in excess of one-tenth of such principal amount of such Notes
without the written consent of such Underwriter. In the event that any
Underwriter or Underwriters shall fail or refuse to purchase the Notes and the
aggregate principal amount of the Notes with respect to which such default
occurs is more than one-tenth of the aggregate principal amount of the Notes,
and arrangements satisfactory to the Representative and the Company for the
purchase of all such Notes are not made within [ ] hours after such default,
this Agreement will terminate without liability on the part of any of the
non-defaulting Underwriters or of the Company. In any such case either the
Representative or the Company shall have the right to postpone the Closing Date,
but in no event for longer than seven days, in order that the required changes,
if any, in the Registration Statement and in the Prospectus or in any other
documents or arrangements may be effected. Except to the extent provided in
subparagraphs (d) and (g) of Section 7 hereof, termination of this Agreement
pursuant to this Section 5 shall be without any liability on the part of the
Company or any Underwriter other than a defaulting Underwriter. Any action taken
under this Section shall not relieve any defaulting Underwriter from liability
in respect of any default of such Underwriter under this Agreement.
- --------
(1) Times mentioned herein are New York time.
6
<PAGE>
<PAGE>
6. Payment. At the time of closing, the Company will cause the Notes to
be delivered to the Representative for the account of each Underwriter against
payment of the purchase price of such Notes by wire transfer of next-day funds
to an account specified by the Company at least two business days prior to the
time of closing or by certified or official bank check or checks payable to the
order of the Company in New York Clearing House or other next-day funds.
7. Covenants of The Company and Newcourt. The Company and Newcourt
jointly and severally agree as follows:
(a) Prior to the end of the period specified in Section 7(h),
neither the Company nor Newcourt will file any amendment or
supplement to the Registration Statement or the Prospectus of
which the Representative shall not previously have been
advised or which shall be disapproved by Winston & Strawn,
which firm is acting as counsel for the Underwriters, and will
not file any document pursuant to the Exchange Act which is
deemed to be incorporated by reference in the Prospectus of
which Winston & Strawn shall not previously have been advised.
(b) The Company or Newcourt will deliver to the Representative a
reasonable number of copies of the Registration Statement as
originally filed (including documents incorporated by
reference therein) and of all amendments thereto up to the
time of closing. Promptly upon the filing with the Commission
of any amendment to the Registration Statement or of any
supplement to or amendment of the Prospectus, the Company or
Newcourt will deliver to the Representative a reasonable
number of copies thereof. The terms "supplement" and
"amendment" or "amend", as used in this Agreement, shall
include all documents filed by the Company or Newcourt with
the Commission subsequent to the date of the Basic Prospectus,
pursuant to the Exchange Act, which are deemed to be
incorporated by reference in the Prospectus.
(c) The Company or Newcourt will advise the Representative
promptly (confirming such advice in writing) of any official
request made by the Commission for an amendment to the
Registration Statement or Prospectus or for additional
information with respect thereto and of any official notice of
the institution of proceedings for, or of the entry of, a stop
order suspending the effectiveness of the Registration
Statement. Each of the Company and Newcourt will use its best
efforts to prevent the issuance of any such stop order and, if
such a stop order should be entered, the Company and Newcourt
will make every reasonable effort to obtain the lifting or
removal thereof as soon as possible.
7
<PAGE>
<PAGE>
(d) The Company or Newcourt will pay all expenses in connection
with the preparation and filing of the Registration Statement,
the preparation of the Indenture and Guarantee, the rating of
the Notes, the issuance and delivery of the Notes and the
printing of the copies of any preliminary prospectus and of
the Prospectus to be furnished as provided in the first
sentence of subparagraph (h) below; and will pay any taxes on
the issuance of the Notes, but will not pay any transfer
taxes. The Company and Newcourt will not be required to pay
any amount for any expenses of the Representative or any of
the Underwriters, except the cost of mailing to Underwriters
copies of the Registration Statement and all amendments
thereto (including documents incorporated by reference), the
preliminary prospectuses and the Prospectus, and except as
provided by subparagraph (g) below, and provided that if no
Notes are delivered to and purchased by the Underwriters
hereunder for any reason other than a default by one or more
of the Underwriters or the occurrence of any of the events
referred to in Section 10 hereof, the Company, in addition to
any payment provided for by subparagraph (g) of this Section
7, will reimburse the Representative for the reasonable
out-of-pocket expenses of the Underwriters, not exceeding
[$50,000], and for the fees and disbursements of Winston &
Strawn, the Underwriters agreeing to pay such expenses, fees
and disbursements in any other event. Neither the Company nor
Newcourt will not in any event be liable to any of the several
Underwriters for damages on account of loss of anticipated
profits.
(e) The Company and Newcourt will apply the proceeds from the sale
of the Notes as set forth under the heading "Use of Proceeds"
appearing in the Prospectus.
(f) So long as any of the Notes shall remain outstanding, the
Company or Newcourt will furnish to the Representative, upon
request and in reasonable quantities for distribution to the
Underwriters, copies of such documents, reports and other
information as may be required to be furnished to noteholders
under the Indenture.
(g) The Company and Newcourt will use its best efforts to qualify
the Notes, or to assist in the qualification of the Notes by
or on behalf of the Representative, for offer and sale under
the securities or Blue Sky laws of such jurisdictions as the
Representative may designate, and will pay or reimburse the
Representative for counsel fees, filing fees and out-of-pocket
expenses in connection with such qualification; provided that
neither the Company nor Newcourt shall be required to qualify
as a foreign corporation or to file a general consent to
service of process in any jurisdiction or to pay, or to incur,
or to reimburse the Representative for, any such expenses if
no Notes are delivered to and purchased by the Underwriters
hereunder because
8
<PAGE>
<PAGE>
of a default by one or more of the Underwriters or the
termination of this Agreement pursuant to Section 10 hereof.
(h) The Company will furnish to the Representative, upon request
and in reasonable quantities for distribution to the
Underwriters, as many copies of the Prospectus as the
Representative may reasonably request for the purposes
contemplated by the Act. If, during such period after the
first date of the public offering of the Notes as, in the
opinion of the counsel for the Underwriters, the Prospectus is
required by law to be delivered, any event shall occur which
should be set forth in a supplement to or an amendment of the
Prospectus in order to make the Prospectus not misleading,
the Company or Newcourt, as applicable, will, upon the
occurrence of each such event, forthwith at its expense,
either (i) prepare and furnish to the Representative,
upon request and in reasonable quantities for distribution to
the Underwriters, as many copies as the Representative may
reasonably request for the purposes contemplated by the Act of
a Supplement to or amendment of the Prospectus which will
supplement or amend the Prospectus or (ii) file with the
Commission documents deemed incorporated by reference in the
Prospectus, in either case so that as supplemented or amended,
it will not at the date of such supplement or amendment
contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the
statement therein not misleading. For the purpose of this
subparagraph (h), the Company and Newcourt will furnish such
reasonable information with respect to itself as the
Representative may from time to time request. Notwithstanding
any of the other provisions of this subparagraph (h), neither
the Company nor Newcourt shall be under any obligation to
furnish any supplement to or amendment of the Prospectus on
account of any change in, or to include in any amended
prospectus any change in, the information furnished to the
Company or Newcourt by any Underwriter or Underwriters or by
the Representative on its or their behalf for use in the
Prospectus, unless the Representative has advised the Company
and Newcourt in writing of such change and has requested the
Company or Newcourt at the expense of such Underwriter or
Underwriters to prepare a supplement to or amendment of the
Prospectus to reflect such change or to include such change in
an amended prospectus.
(i) The Company and Newcourt will cause to be made generally
available to its security holders as soon as practicable an
earnings statement which shall meet the requirements of
Section 11(a) of the Act and Rule 158 promulgated thereunder.
(j) Until the business day following the Closing Date, the Company
will not, without the consent of the Representative offer,
sell or contract to sell, or
9
<PAGE>
<PAGE>
announce the offering of, any debt securities covered by the
Registration Statement or any other registration statement
filed under the Act.
8. Conditions of the Obligations of the Underwriters. The obligations
of the Underwriters to purchase and pay for the Notes shall be subject to the
following additional conditions:
(a) At the time of closing, the Indenture [and the Guarantee]
shall be qualified under the Trust Indenture Act, the
Prospectus shall have been filed or delivered for filing to
the Commission not later than 5:00 p.m. on the second business
day following the date hereof, no stop order suspending the
effectiveness of the Registration Statement, as amended from
time to time, shall be in effect and no proceedings for that
purpose shall be pending before or threatened by the
Commission, and the Representative shall have received a
certificate dated the day of the closing and signed by the
President, a Vice President or the Treasurer of each of the
Company and Newcourt to the effect that no such stop order is
in effect and, to the knowledge of the Company and Newcourt,
no proceedings for such purpose are pending before, or
threatened by, the Commission.
(b) At or prior to the time of closing, the Representative shall
have received from counsel for the Company, an opinion,
satisfactory to Winston & Strawn, to the effect that --
(i) The Company has been duly incorporated and is validly
existing and in good standing under the laws of the
State of Delaware and Newcourt has been duly
incorporated and is validly existing and in good
standing under the laws of the Province of Ontario,
Canada; each of the Company and Newcourt is duly
qualified to do business and in good standing as a
foreign corporation in all jurisdictions in which its
ownership or leasing of properties or the conduct of
its businesses requires such qualification (except
where the failure to so qualify or be in good
standing would not have a material adverse effect
upon it and its subsidiaries taken as a whole), and
has all power and authority necessary to own its
respective properties and conduct the businesses in
which it is engaged, as described in the Prospectus;
(ii) The issue and sale of the Notes by the Company and
the compliance by the Company with all the provisions
of this Agreement, and the Indenture, and the
consummation of the transactions contemplated hereby
and thereby will not conflict with or result in a
breach or violation of any of the terms or provisions
of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other
10
<PAGE>
<PAGE>
agreement or instrument known to such counsel to
which the Company or any of its subsidiaries is a
party or by which the Company or any of its
subsidiaries is bound or to which any of the property
or assets of the Company or any of its subsidiaries
is subject, nor will such actions result in any
violation of the provisions of the charter or by-laws
of the Company or any of its subsidiaries or any
statute or any order, rule or regulation known to
such counsel of any court or governmental agency or
body having jurisdiction over the Company or any of
its subsidiaries or any of their properties or assets
(except for such conflicts, breaches, violations and
defaults as would not have a material adverse effect
on the Company and its subsidiaries taken as a
whole); and, except for the registration of the Notes
under the Act and such consents, approvals,
authorizations, registrations or qualifications as
may be required under the Exchange Act and applicable
state securities laws in connection with the purchase
and distribution of the Notes by the Underwriters, no
consent, approval, authorization, qualification or
order of, or filing or registration with, any such
court or governmental agency or body is required for
the execution and delivery by the Company of,
compliance by the Company with the provisions of, or
the consummation of the transactions contemplated by
this Agreement and any Delayed Delivery Contract,
except to the extent that the effect of the failure
to obtain such consent, approval, authorization,
qualification or order or to make such filing or
registration would not be material to the Company and
its subsidiaries taken as a whole;
(iii) The issue of the Guarantee by Newcourt and the
compliance by Newcourt with all the provisions of
this Agreement, the Guarantee, and the Indenture, and
the consummation of the transactions contemplated
hereby and thereby will not conflict with or result
in a breach or violation of any of the terms or
provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument known to such counsel
to which Newcourt or any of its subsidiaries is a
party or by which Newcourt or any of its subsidiaries
is bound or to which any of the property or assets of
Newcourt or any of its subsidiaries is subject, nor
will such actions result in any violation of the
provisions of the charter or by-laws of Newcourt or
any of its subsidiaries or any statute or any order,
rule or regulation known to such counsel of any court
or governmental agency or body having jurisdiction
over Newcourt or any of its subsidiaries or any of
their properties or assets (except for such
conflicts, breaches, violations and defaults as would
not have a material adverse effect on Newcourt and
its subsidiaries
11
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<PAGE>
taken as a whole); and, except for the registration
of the Notes and the Guarantee under the Act and such
consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange
Act and applicable state securities laws in
connection with the purchase and distribution of the
Notes by the Underwriters, no consent, approval,
authorization, qualification or order of, or filing
or registration with, any such court or governmental
agency or body is required for the execution and
delivery by Newcourt of, compliance by Newcourt with
the provisions of, or the consummation of the
transactions contemplated by this Agreement, except
to the extent that the effect of the failure to
obtain such consent, approval, authorization,
qualification or order or to make such filing or
registration would not be material to the Newcourt
and its subsidiaries taken as a whole;
(iv) The Indenture has been duly authorized, executed and
delivered by the Company, Newcourt and the Trustee
and duly qualified under the Trust Indenture Act and
is a valid and binding agreement of the Company and
Newcourt enforceable in accordance with its terms
(except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium
and other laws relating to or affecting creditors'
rights generally and by general equity principles);
(v) The Notes have been duly authorized by the Company
and, when duly executed and authenticated as provided
in the Indenture and delivered against payment
therefor in accordance with this Agreement and each
Delayed Delivery Contract, will be duly and validly
issued and outstanding, and will constitute valid and
binding agreements of the Company enforceable in
accordance with their terms (except as enforcement
thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally
and subject to general equitable principles), and
entitled to the benefits of the Indenture;
(vi) The Guarantee has been duly authorized, executed and
delivered by Newcourt and is a valid and binding
agreement of Newcourt enforceable in accordance with
its terms (except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization,
moratorium and other similar laws relating to or
affecting creditors' rights generally and subject to
general equitable principles);
(vii) The Registration Statement has become effective under
the Act and, to the knowledge of such counsel, no
stop order suspending the
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<PAGE>
<PAGE>
effectiveness of the Registration Statement has been
issued and no proceeding for that purpose is pending
or threatened by the Commission;
(viii) The statements made in the Prospectus under the
captions "Description of the Debt Securities" and
"Plan of Distribution", insofar as such statements
constitute summaries of the legal matters, documents
or proceedings specifically referred to therein,
fairly present the information called for with
respect to such legal matters, documents and
proceedings and fairly summarize the matters referred
to therein;
(ix) This Agreement has been duly authorized, executed and
delivered on behalf of the Company and Newcourt and
is valid and binding on the Company and Newcourt,
except as rights to indemnity and contribution
hereunder may be limited under applicable law;
(x) The opinions of counsel, if, any, expressed or
referred to under the caption "Material Federal
Income Tax Consequences" in the Prospectus are
confirmed as correct in all material respects;
(xi) Except as to financial statements and schedules
contained therein, as to which such opinion is not
called upon to express any opinion or belief, (A)
each document or portion thereof incorporated by
reference in the Registration Statement and the
Prospectus complied when filed with the Commission as
to form in all material respects with the
requirements of the Exchange Act, together with the
applicable instructions, rules and regulations of the
Commission thereunder, (B) each part of the
Registration Statement when it became effective
complied as to form in all material respects with the
requirements of the Act and the applicable
instructions, rules and regulations of the Commission
thereunder, (C) the Registration Statement and the
Prospectus, as amended or supplemented, if
applicable, comply, and at the date hereof complied,
as to form in all material respects with the
requirements of the Act and the applicable
instructions, rules and regulations of the Commission
thereunder, (D) the Registration Statement, as of its
effective date, did not contain any 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, and (E) the
Prospectus does not contain any untrue statement of a
material fact or omit to state a material fact
required to be stated therein or necessary to make
the statements
13
<PAGE>
<PAGE>
therein, in the light of the circumstances under
which they were made, not misleading.
(c) At or prior to the time of closing, the Representative shall
have received from Winston & Strawn an opinion to the effect
specified in clauses (iv), (v), (vii), (viii), (ix) (solely
with respect to the Company), (x), and (xi) (B), (C) and (E),
specifically.
(d) At each of the dates hereof and at or prior to the time of
closing, the Representative shall have received an executed
copy of a letter from each of Coopers & Lybrand L.L.P., Arthur
Andersen LLP and Ernst & Young, addressed to the Company or
Newcourt, as applicable, and to the Representative, to the
effect that (i) they are independent public accountants as
required by the Act and the applicable published rules and
regulations of the Commission thereunder; (ii) the audited
financial statements contained or incorporated by reference in
the Registration Statement, as amended or supplemented from
time to time, comply as to form in all material respects with
the applicable accounting requirements of the Exchange Act and
the applicable published rules and regulations of the
Commission thereunder; and (iii) nothing has come to their
attention as the result of specified procedure not
constituting an audit that caused them to believe (A) that the
unaudited financial statements, if any, contained in or
incorporated by reference as aforesaid, do not so comply and
are not fairly presented in conformity with generally accepted
accounting principles applied on a basis substantially
consistent with that of the audited financial statements
contained as aforesaid, (B) that there was any change in the
capital stock or long or intermediate term debt of the
Company, or any decrease in net assets, from the date of the
latest balance sheet which is contained in or incorporated by
reference as aforesaid, to a date not more than five days
prior to the date of such letter or (C) that there were any
decreases, as compared with the corresponding period in the
preceding year, in total revenues, income before interest
deductions or net income from the date of the latest figures
for such items contained in the Registration Statement to the
date of the latest available financial statements of the
Company; provided that, with respect to any of the items
specified in clause (iii), such letter may contain an
exception for matters which the Registration Statement
discloses have occurred or may occur; and provided, further,
that the letter may vary from the requirements specified in
this subparagraph in such manner as the Representative in its
sole discretion may determine to be immaterial or in such
manner as may be acceptable to the Representative.
(e) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, there shall not
have been, at the time of
14
<PAGE>
<PAGE>
closing, any material adverse change in or affecting the
general affairs, management, financial position, stockholders'
equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in
the Registration Statement and the Prospectus; the
representations and warranties of the Company herein shall be
true at the time of closing; the Company shall not have
failed, at or prior to the time of closing, to have performed
all agreements herein contained which should have been
performed by it at or prior to such time; and the
Representative shall have received, at the time of closing, a
certificate to the foregoing effect dated the day of the
closing and signed by the President, a Vice President or the
Treasurer of the Company.
(f) Subsequent to the execution and delivery of this Agreement (i)
no downgrading shall have occurred in the rating accorded the
Company's debt securities by any "nationally recognized
statistical rating organization", as that term is defined by
the Commission for purposes of rule 436(g) (2) under the Act
and (ii) no such organization shall have publicly announced
that it has under surveillance or review, with possible
negative implications, its rating of any of the Company's
debt securities.
(g) Prior to the Closing Date, the Company shall have furnished to
the Representative such further information, certificates and
documents as the Representative may reasonably request.
In case any of the conditions specified above in this Section 8 shall
not have been fulfilled, this Agreement may be terminated by the Representative
by delivering written notice of termination to the Company. Any such termination
shall be without liability of any party to any other party except to the extent
provided in subparagraphs (d) and (g) of Section 7 hereof.
9. Conditions of Company's Obligation. The obligation of the Company to
deliver the Notes upon payment therefor shall be subject to the following
conditions:
At the time of closing, the Indenture [and the Guarantee] shall be
qualified under the Trust Indenture Act, the Prospectus shall have been filed or
delivered for filing to the Commission not later than 5:00 p.m. on the second
business day following the date hereof and no stop order suspending the
effectiveness of the Registration Statement, as amended from time to time, shall
be in effect and no proceedings for that purpose shall then be pending before,
or threatened by, the Commission.
In case any of the conditions specified above in this Section shall not
have been fulfilled, this Agreement may be terminated by the Company by
delivering written notice of termination to the Representative. Any such
termination shall be without liability of any party to any other party except to
the extent provided in subparagraphs (d) and (g) of Section 7 hereof.
15
<PAGE>
<PAGE>
10. Termination of Agreement. This Agreement may be terminated by
delivering written notice of termination to the Company at any time prior to the
time of closing, by the Representative with the consent of Underwriters which,
together with the Representative, have agreed to purchase 50% or more of the
aggregate principal amount of the Notes, if after the signing of this Agreement
(i) trading in securities generally on the New York Stock Exchange or the
American Stock Exchange or in the over-the-counter market, or trading in any
securities of the Companies on any exchange or in the over-the-counter market,
shall have been suspended or minimum prices shall have been established on any
such exchange or such market by the Commission, by such exchange or by any other
regulatory body or governmental authority having jurisdiction, (ii) a banking
moratorium shall have been declared by Federal or New York State authorities, or
(iii) the United States shall have become engaged in hostilities, there shall
have been an escalation in hostilities involving the United States or there
shall have been a declaration of a national emergency or war by the United
States as to make it, in the judgment of the Representative, impracticable or
inadvisable to proceed with the offering or delivery of the Notes on the terms
and in the manner contemplated in the Prospectus.
A termination of this Agreement pursuant to this Section shall be
without liability of any party to any other party.
11. Indemnification And Contribution. (a) The Company and Newcourt
shall, jointly and severally, indemnify and hold each Underwriter harmless from
and against any and all losses, claims, damages, and liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages, liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement or
the Prospectus, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigated or
defending any such action or claim as such expenses are incurred; provided,
however, that the Company and Newcourt shall not be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in the Provided Information in the Registration Statement
or the Prospectus or any such amendment or supplement.
(b) Each Underwriter will indemnify and hold harmless the Company and
Newcourt against any losses, claims, damages or liabilities to which the Company
or Newcourt may become subject, under the Act or otherwise, insofar as such
losses, claims, damages, liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in the Provided
Information in the Registration Statement or Prospectus or any such amendment or
supplement; and will reimburse the
16
<PAGE>
<PAGE>
Company and Newcourt for any legal or other expenses reasonably incurred by the
Company and Newcourt in connection with investigating or defending any such
action or claim as such expenses are incurred.
(c) The Company, Newcourt and each Underwriter agree that upon the
commencement of any action against it, its directors, its officers who sign the
Registration Statement, or any person controlling it as aforesaid in respect of
which indemnity may be sought on account of any indemnity agreement contained
herein, it will promptly give written notice of the commencement thereof to the
party or parties against whom indemnity shall be sought, but the omission so to
notify such indemnifying party or parties of any such action shall not relieve
such indemnifying party or parties from any liability which it or they may have
to the indemnified party or parties otherwise than on account of such indemnity
agreement. In case such notice of any such action shall be so given, such
indemnifying party or parties shall be entitled to participate at its or their
own expense in the defense of such action, or, if it or they so elect, to assume
the defense of such action, and in the latter event such defense shall be
conducted by counsel chosen by such indemnifying party or parties and
satisfactory to the indemnified party or parties who shall be defendant or
defendants in such action, and such defendant or defendants shall bear the fees
and expenses of any additional counsel retained by them; but if the indemnifying
party or parties shall not elect to assume the defense of such action, such
indemnifying party or parties will reimburse such indemnified party or parties
for the reasonable fees and expenses of any counsel retained by them. In the
event that the parties to any such action (including impleaded parties) include
the Company, Newcourt and one or more Underwriters and either (i) the
indemnifying party or parties and indemnified party or parties mutually agree or
(ii) representation of both the indemnifying party or parties and the
indemnified party or parties by the same counsel is inappropriate under
applicable standards of professional conduct due to actual or potential
differing interests between them, then the indemnifying party or parties shall
not have the right to assume the defense of such action on behalf of such
indemnified party or parties and will reimburse such indemnified party or
parties for the reasonable fees and expenses of any counsel retained by them and
satisfactory to the indemnifying party or parties, it being understood that the
indemnifying party or parties shall not, in connection with any one action or
separate but similar or related actions arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys (in addition to local counsel) for all
such indemnified parties, which shall be designated in writing by the
Representative in the case of an action in which one or more Underwriters or
controlling persons are indemnified parties and by the Company or Newcourt in
the case of an action in which the Company or Newcourt or any of their
respective directors, officers or controlling persons are indemnified parties.
The indemnifying party or parties shall not be liable under this Agreement with
respect to any settlement made by any indemnified party or parties without prior
written consent by the indemnifying party or parties to such settlement.
(d) If the indemnification provided for in subparagraph (a) or (b) of
this Section 11 is unavailable to an indemnified party in respect of any losses,
claims, damages, or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party under such paragraph, shall contribute to
the amount paid or payable by such indemnified party as a result of such losses,
17
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<PAGE>
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and Newcourt on the one hand and the Underwriters on the other from the
offering of the Notes. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required under subparagraph (c) above, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company and Newcourt on one
hand the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company and Newcourt on
one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Notes purchased
under this Agreement (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by the Underwriters
with respect to the Notes purchased under this Agreement, in each case as set
forth the in table on the cover page of the Prospectus. The relative fault of
the Company and Newcourt and of the Underwriters shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or Newcourt on one hand or by the
Underwriters on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company, Newcourt and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this subparagraph (d) were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this subparagraph (d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in this subparagraph (d) shall be
deemed to include, subject to the limitations set forth above in this Section
11, any legal or other expenses reasonably incurred by such indemnified party in
connection with defending any such action or claim. Notwithstanding the
provisions of this subparagraph (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Notes underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which Underwriter has been required to
pay by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations in this subparagraph (d) to contribute are several in proportion to
their respective underwriting obligations as set forth in Schedule I hereto
(including an increase pursuant to Section 6) and not joint.
(e) The obligations of the Company and Newcourt under this Section 11
shall be in addition to any liability which the Company and Newcourt may
otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Underwriter within the meaning of the Act; and
the obligations of the underwriters under this Section 11 shall be in addition
to any liability which the respective Underwriters may otherwise have and shall
extend, upon the
18
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<PAGE>
same terms and conditions, to each officer and director of the Company or
Newcourt and to each person, if any, who controls the Company or Newcourt within
the meaning of the Act.
12. Miscellaneous. This Agreement shall inure to the benefit of the
Company and Newcourt, their respective directors and officers who sign the
registration statement, the several Underwriters and each controlling person
referred to in Section 11 hereof and their respective successors. Nothing in
this Agreement is intended or shall be construed to give to any other person,
firm or corporation any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. The term
"successor" as used in this Agreement shall not include any purchaser, as such
purchaser, of any of the Notes from any of the several Underwriters.
13. Notices. All communications hereunder shall be in writing, and if
to the Underwriters, unless otherwise provided, shall be mailed or delivered to
the Representative at [ ] and if to the Company, unless
otherwise provided, shall be mailed or delivered to the Company at 44 Whippany
Road, Morristown, New Jersey 07962-1983.
14. Governing Law. The validity and interpretation of this Agreement
shall be governed by the laws of the State of New York.
15. Survival Clause. Except with respect to any Underwriter who is in
default within the meaning of Section 5 hereof, the indemnity and contribution
agreement contained in Section 11 hereof and the representations and warranties
of the Company and Newcourt set forth in this Agreement or in any certificate
furnished pursuant hereto shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any investigation made
by or on behalf of any Underwriter or any person controlling any Underwriter, or
(iii) acceptance of and payment for the Notes.
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<PAGE>
Please sign and return to us the enclosed duplicate of this letter,
whereupon this letter will become a binding agreement between the Company,
Newcourt and the several Underwriters, in accordance with its terms.
Very truly yours,
AT&T CAPITAL CORPORATION
By:
-------------------------------
Printed Name:
----------------
Title:
------------------------
By:
-------------------------------
Printed Name:
----------------
Title:
------------------------
NEWCOURT CREDIT GROUP INC.
By:
-------------------------------
Printed Name:
----------------
Title:
-----------------------
By:
-------------------------------
Printed Name:
----------------
Title:
-----------------------
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written
(Representative of the Several Underwriters)
By:
-------------------------------
Printed Name:
---------------
Title:
----------------------
By:
-------------------------------
Printed Name:
---------------
Title:
----------------------
Acting severally on behalf of itself
and the several Underwriters named herein
20
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<PAGE>
SCHEDULE I
NAME PRINCIPAL AMOUNT
22
<PAGE>
<PAGE>
EXHIBIT 1B
AT&T CAPITAL CORPORATION
Medium-Term Notes, Series F
DISTRIBUTION AGREEMENT
April ___, 1998
[Initial Purchasers]
Ladies and Gentlemen:
AT&T Capital Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell from time to time up to U.S. $5,000,000,000 (or the
equivalent thereof in other currencies or currency units) aggregate principal
amount of its Medium-Term Notes, Series F (the "Notes"), as such amount shall be
reduced by the aggregate principal amount of any other debt securities and the
aggregate purchase price of any warrants issued by the Company, whether within
or without the United States (the "Other Securities"), pursuant to the
Registration Statement discussed in Section II hereof, or otherwise. The Notes
are to be issued under an Indenture dated as of April 1, 1998, as amended (the
"Indenture") between the Company and The Chase Manhattan Bank, as Trustee (the
"Trustee"). The Notes will be represented by either a global security registered
in the name of a nominee of The Depository Trust Company (the "Depositary"), as
Depositary (a "Book-Entry Note"), or a certificate issued in definitive form (a
"Certificated Note"), as selected by the purchaser and agreed to by the Company
and specified in the applicable pricing supplement. Beneficial interests in
Book-Entry Notes will be shown on, and transfers thereof will be effected only
through, records maintained by the Depositary and its participants. Book-Entry
Notes will not be issuable in definitive form, except under the circumstances
described in the applicable prospectus supplement. The Notes shall be issued in
the currency or currency unit (the "Specified Currency") and shall have the
maturity ranges, annual interest rate (whether fixed or floating), redemption
provisions, repayment provisions and other terms set forth in the Prospectus
referred to below as it may be supplemented from time to time, including any
applicable pricing supplement (the "Pricing Supplement").
I.
Subject to the terms and conditions stated herein and subject to the
reservation by the Company of the right to sell Notes (a) directly to investors
on its own behalf or (b) through other agents, dealers or underwriters, the
Company hereby (i) appoints [Initial Purchasers] (each, an "Agent", and
collectively, the "Agents") to act as its agents to solicit orders for, and to
sell, all or part of the Notes during a period beginning on the date hereof and
ending when the Notes have been sold, or such other time as the Company may
specify to you in writing, and (ii) agrees that whenever the Company determines
to sell Notes directly to any of the Agents as principal
<PAGE>
<PAGE>
for resale to others it will enter into a Terms Agreement relating to such sale
in accordance with the provisions of Section I(b) hereof.
(a) Solicitations as Agent. On the basis of the representations and
warranties herein contained, but subject to the terms and conditions herein set
forth, each Agent, severally and not jointly, will use its reasonable best
efforts to solicit offers to purchase the Notes upon the terms and conditions
set forth in the Prospectus as then amended or supplemented.
The Company reserves the right, in its sole discretion, to instruct the
Agents to suspend at any time, for any period of time or permanently, the
solicitation of offers to purchase the Notes. As soon as practicable, but in any
event not later than one business day after receipt of notice from the Company,
the Agents will suspend solicitation of offers to purchase Notes from the
Company until such time as the Company has advised them that such solicitation
may be resumed.
Unless otherwise agreed between the Company and the Agents, the
Company agrees to pay each Agent, as consideration for soliciting the sale of
any Notes, a commission in the form of a discount equal to the following
percentage of the principal amount of each Note sold by such Agent:
<TABLE>
<CAPTION>
Term Commission Rate
---- ---------------
<S> <C>
From 9 months to 13 months .050%
More than 13 months to 2 years .200%
More than 2 years to 3 years .250%
More than 3 years to 4 years .350%
More than 4 years to 5 years .450%
More than 5 years to 6 years .500%
More than 6 years to 7 years .550%
More than 7 years to 10 years .600%
More than 10 years to 15 years .625%
More than 15 years to 20 years .700%
More than 20 years to 30 years .750%
</TABLE>
The commission payable by the Company to the Agents with respect to notes with
maturities greater than 30 years will be negotiated at the time the Company
issues such Notes. Each Agent is authorized to solicit offers to purchase Notes
only in principal amounts that are integral multiples of U.S. $1,000 or, if
denominated in a Specified Currency other than U.S. dollars, then in principal
amounts that are integral multiples of 1,000 units of such Specified Currency.
Each Agent shall communicate to the Company, orally or in writing, each
reasonable offer received by it to purchase Notes. The Company shall have the
sole right to accept offers to purchase Notes and may reject any such offer in
whole or in part. Each Agent shall have the right to reject, in its
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discretion reasonably exercised, any offer received by it to purchase the Notes
in whole or in part, and any such rejection shall not be deemed a breach of its
agreements contained herein.
(b) Purchases as Principal. Each sale of Notes to an Agent, as
principal, shall be made in accordance with the terms of this Agreement and a
separate agreement which will provide for the sale of such Notes to, and the
purchase and reoffering thereof by, such Agent. Each such separate agreement
(which shall be either (i) substantially in the form of Exhibit A hereto and may
take the form of an exchange of any standard form of written telecommunication
between such Agent and the Company or (ii) an oral agreement) is herein referred
to as a "Terms Agreement." Any oral agreement entered into pursuant to the
preceding sentence shall be confirmed promptly in writing. Any written
confirmation containing the terms of such an oral agreement delivered or
transmitted by the Agent to the Company shall constitute an agreement between
such Agent and the Company unless the Company objects thereto in writing within
one business day. An Agent's commitment to purchase Notes pursuant to any Terms
Agreement shall be deemed to have been made on the basis of the representations
and warranties of the Company herein contained and shall be subject to the terms
and conditions herein set forth. Each Terms Agreement shall specify the
principal amount of Notes to be purchased by such Agent pursuant thereto, the
price to be paid to the Company for such Notes, the Specified Currency in which
such Notes shall be denominated, on which interest is to be paid and in which
the redemption or repayment price, if any, is to be paid, the rate at which
interest will be paid on the Notes, whether such rate of interest shall be fixed
or floating and the time and place of delivery of any payment for such Notes
(the "Settlement Date"). Such Terms Agreement shall also specify any
requirements for opinions of counsel and letters from the Company's independent
accountants pursuant to Section III hereof and may also contain additional
provisions relating to defaults by underwriters and other provisions relating to
termination as may be agreed at the time between the Company and the applicable
Agent. The Company agrees that if an Agent purchases Notes as principal for
resale, such Agent shall receive such compensation, in the form of a discount or
otherwise, as shall be indicated in the applicable Terms Agreement or, if no
compensation is indicated therein, a commission in accordance with the schedule
set forth in subsection (a) of this Section I.
(c) Procedures. Each Agent and the Company agree to perform the
respective duties and obligations specifically provided to be performed by them
in the Medium-Term Notes, Series F, Administrative Procedures (attached hereto
as Exhibit B) (the "Procedures"), as amended from time to time. The Procedures
may be amended only by written agreement of the Company and the Agents.
(d) Delivery. The documents required to be delivered by Section III of
this Agreement shall be delivered on the date hereof or at such other time as
you and the Company may agree upon in writing (each a "time of closing").
(e) Other Securities. The Company agrees to notify each Agent of sales
by the Company of the Other Securities.
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II.
The Company represents and warrants to each Agent that:
(a) The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement including a prospectus relating to
debt securities and warrants of the Company, including the Notes, which has
become effective under the Securities Act of 1933 (the "Act"), and has filed or
will file with, or has delivered or will deliver for filing to, the Commission a
prospectus supplement specifically relating to the Notes pursuant to Rule 424
under the Act. The term "Registration Statement" means such registration
statement as amended to the date hereof, together with such prospectus
supplement as amended to the date hereof. The term "Basic Prospectus" means the
prospectus, as amended, included in the Registration Statement. The term
"Prospectus" means the Basic Prospectus together with the prospectus supplement
or supplements specifically relating to the Notes, as filed with, or delivered
for filing to, the Commission pursuant to Rule 424. The term "preliminary
prospectus" means any preliminary prospectus supplement specifically relating to
the Notes together with the Basic Prospectus. As used herein, Registration
Statement, Basic Prospectus, Prospectus, and preliminary prospectus shall
include in each case the material, if any, incorporated by reference therein.
(b) (i) Each part of the Registration Statement relating to the Notes,
filed with the Commission pursuant to the Act, when such part became effective,
did not contain any 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, (ii) each Prospectus, if any, relating to any Notes,
filed pursuant to Rule 424 under the Act, complied when so filed in all material
respects with the Act and the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), and the applicable rules and regulations of the
Commission thereunder, (iii) the Registration Statement and the Prospectus
comply and, as amended or supplemented, if applicable, will comply in all
material respects with the Act and the Trust Indenture Act and the applicable
rules and regulations of the Commission thereunder and (iv) the Registration
Statement and the Prospectus do not and, as amended or supplemented, if
applicable, will not contain any 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 Company makes no representations or warranties as to the
information contained in or omitted from the Registration Statement, any
preliminary prospectus or the Prospectus in reliance upon written information
furnished to the Company by or on behalf of any Agent specifically for inclusion
therein or as to any statements in or omissions from the Statement of
Eligibility and Qualification of the Trustee under the Indenture.
(c) Each document or portion thereof incorporated by reference in the
Prospectus complied when filed with the Commission in all material respects with
the provisions of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), together with the applicable instructions, rules and regulations of the
Commission thereunder, and each document, if any, hereafter filed under the
Exchange Act and so incorporated by reference in the Prospectus
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will comply when so filed in all material respects with the requirements of such
Exchange Act, instructions, rules and regulations.
(d) The accountants who have certified or shall certify the financial
statements filed and to be filed with the Commission as parts of the
Registration Statement and the Prospectus are public or certified accountants,
independent with respect to the Company, as required by the Act and the rules
and regulations of the Commission thereunder.
(e) This Agreement and any applicable Terms Agreement have been duly
authorized, executed and delivered by the Company and constitute the valid and
binding agreements of the Company except as rights to indemnification and
contribution hereunder may be limited by applicable law.
(f) (i) The Indenture has been duly authorized, executed and delivered
by the Company and constitutes the valid and binding agreement of the Company,
enforceable in accordance with its terms (except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium and other laws
relating to or affecting creditors' rights generally and by general equity
principles); (ii) the Notes have been validly authorized for issuance and sale
pursuant to this Agreement and, when the terms of a particular Note and of its
issuance and sale have been duly established in accordance with the Indenture
and this Agreement, and when such Note has been duly executed, authenticated,
delivered and paid therefor as provided in this Agreement and the Indenture,
such Note will be validly issued and outstanding, and will constitute the valid
and binding agreement of the Company entitled to the benefits of the Indenture
and enforceable in accordance with its terms (except as enforcement thereof may
be limited by bankruptcy, insolvency, reorganization, moratorium and other laws
relating to or affecting creditors' rights generally and by general equity
principles); (iii) each of the Operating Agreement, the Intercompany Agreement,
the Tax Agreements and the License Agreement (each between the Company and AT&T
Corp. and dated as of June 25, 1993) have been duly authorized, executed and
delivered by the Company and constitutes the valid and legally binding agreement
of the Company; and (iv) the Notes and the Indenture conform to the descriptions
thereof contained in the Prospectus.
(g) Each of the Company and each of its subsidiaries has been duly
incorporated, is validly existing and in good standing under the laws of its
respective jurisdiction of incorporation, is duly qualified to do business and
in good standing as a foreign corporation in each jurisdiction in which its
respective ownership of properties or the conduct of its respective businesses
requires such qualification (except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole), and has the power and authority
necessary to own or hold its respective properties and to conduct the businesses
in which it is engaged, as described in the Prospectus.
(h) Neither the Company nor any of its subsidiaries is in violation of
its corporate charter or bylaws or in default under any agreement, indenture or
instrument, the effect
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of which violation or default would be material to the Company and its
subsidiaries taken as a whole.
(i) The execution, delivery and performance of this Agreement and any
applicable Terms Agreement by the Company and the consummation of the
transactions contemplated hereby and thereby will not conflict with or result in
a breach or violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound or to which
any of the property or assets of the Company or any if its subsidiaries is
subject, nor will such actions result in any violation of the provisions of the
charter or by-laws of the Company or any of its subsidiaries or any statute or
any order, rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of their
properties or assets, the effect of which breach, violation or default would be
material to the Company and its subsidiaries taken as a whole; and except for
the registration of the Notes under the Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under the
Exchange Act and applicable state securities laws in connection with the
purchase or distribution of the Notes by the Agents, no consent, approval,
authorization or order of, or filing or registration with, any such court or
governmental agency or body is required for the execution and delivery by the
Company of, compliance by the Company with the provisions of, or consummation of
the transactions contemplated by, this Agreement and any Terms Agreement, except
to the extent that the effect of the failure to obtain such consent, approval,
authorization or order or to make such filing or registration would not be
material to the Company and its subsidiaries taken as a whole.
(j) The Company is not and, after giving effect to the offering and sale
of the Notes and the application of the proceeds thereof as described in the
Prospectus, will not be an "investment company" as defined in the Investment
Company Act of 1940, as amended.
III.
The obligations of each Agent hereunder and under any Terms Agreement
are subject to the following conditions:
(a) At the time of closing and at each Settlement Date with respect to
any Terms Agreement, the Indenture shall be qualified under the Trust Indenture
Act and no stop order suspending the effectiveness of the Registration Statement
as amended from time to time, shall be in effect, no proceedings for that
purpose shall be pending before, or threatened by, the Commission, and at the
time of closing each Agent shall have received, and at each Settlement Date with
respect to any Terms Agreement, if called for by such Terms Agreement, the Agent
which is a party thereto shall have received, a certificate, dated the time of
closing or such applicable Settlement Date and signed by the President, a Vice
President or the Treasurer of the Company to the effect that no such stop order
is in effect and, to the knowledge of the Company, no proceedings for such
purpose are pending before, or threatened by, the Commission.
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(b) At or prior to the time of closing each Agent shall have received,
and at each Settlement Date with respect to any Terms Agreement, if called for
by such Terms Agreement, the Agent which is a party thereto shall have received,
from counsel for the Company, to the effect that
(i) The Company has been duly incorporated and is validly existing and
in good standing under the laws of the State of Delaware, is duly qualified
to do business and in good standing as a foreign corporation in all
jurisdictions in which its ownership or leasing of properties or the
conduct of its businesses requires such qualification (except where the
failure to so qualify or be in good standing would not have a material
adverse effect upon the Company and its subsidiaries taken as a whole), and
has all power and authority necessary to own its respective properties and
conduct the businesses in which it is engaged, as described in the
Prospectus;
(ii) The issue and sale of the Notes by the Company and the compliance
by the Company with all the provisions of this Agreement, (and, if the
opinion is being given on account of the Company having entered into a
Terms Agreement, the applicable Terms Agreement) and the Indenture, and the
consummation of the transactions contemplated hereby and thereby will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument known to such
counsel to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to which any of
the property or assets of the Company or any of its subsidiaries is
subject, nor will such actions result in any violation of the provisions of
the charter or by-laws of the Company or any of its subsidiaries or any
statute or any order, rule or regulation known to such counsel of any court
or governmental agency or body having jurisdiction over the Company or any
of its subsidiaries or any of their properties or assets (except for such
conflicts, breaches, violations and defaults as would not have a material
adverse effect on the Company and its subsidiaries taken as a whole); and,
except for the registrations or qualifications as may be required under the
Exchange Act and applicable state securities laws in connection with the
purchase or distribution of the Notes by the Agents, no consent, approval,
authorization or order of, or filing or registration with, any such court
or governmental agency or body is required for the execution and delivery
by the Company of, compliance by the Company with the provisions of, or the
consummation of the transactions contemplated by this Agreement and any
applicable Terms Agreement, except to the extent that the effect of the
failure to obtain such consent, approval, authorization, qualification or
order or to make such filing or registration would not be material to the
Company and its subsidiaries taken as a whole;
(iii) The Indenture has been duly authorized, executed and delivered by
the Company and duly qualified under the Trust Indenture Act and is a valid
and binding agreement of the Company enforceable in accordance with its
terms (except as enforcement thereof
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may be limited by bankruptcy, insolvency, reorganization, moratorium and
other laws relating to or affecting creditors' rights generally and by
general equity principles);
(iv) The Notes are in a form contemplated by the Indenture and have been
duly authorized by all necessary corporate action and (other than in the
case of an opinion delivered at a Settlement Date) when the terms of a
particular Note and of its issuance and sale have been duly established in
accordance with the Indenture and this Agreement so as not to violate any
applicable law or agreement or instrument then binding on the Company, and
when such Note has been duly executed and authenticated as specified in the
Indenture and delivered against payment therefor in accordance with this
Agreement, such Note will be a valid and binding agreement of the Company
enforceable in accordance with its terms (except as enforcement thereof may
be limited by bankruptcy, insolvency, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally and by
general equity principles), and entitled to the benefits of the Indenture;
(v) The Registration Statement has become effective under the Act and,
to the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose is pending or threatened by the Commission;
(vi) The statements made in the Prospectus under the captions
"Description of the Debt Securities", "Description of Medium-Term Notes,
Series F" and "Plan of Distribution", insofar as such statements constitute
summaries of the legal matters, documents or proceedings specifically
referred to therein, fairly present the information called for with respect
to such legal matters, documents and proceedings and fairly summarize the
matters referred to therein;
(vii) This Agreement (and, if the opinion is being given on account of
the Company having entered into a Terms Agreement, the applicable Terms
Agreement) has been duly authorized, executed and delivered on behalf of
the Company and is valid and binding on the Company, except as rights to
indemnification and contribution hereunder may be limited under applicable
law; and
(viii) Except as to financial statements and schedules contained
therein, as to which such counsel is not called upon to express any opinion
or belief, (A) each document or portion thereof incorporated by reference
in the Registration Statement and the Prospectus complied when filed with
the Commission as to form in all material respects with the requirements of
the Exchange Act and the applicable rules and regulations of the Commission
thereunder, (B) each part of the Registration Statement filed with the
Commission, when it became effective, complied as to form in all material
respects with the requirements of the Act and the applicable rules and
regulations of the Commission thereunder, (C) the Registration Statement
and the Prospectus, as amended or supplemented, if applicable, comply, and
at the date of this Agreement complied, as to
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form in all material respects with the requirements of the Act and the
applicable rules and regulations of the Commission thereunder, (D) the
Registration Statement, as of its effective date, did not contain any
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, and (E) the Prospectus does not contain any 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 made, not misleading.
(c) At or prior to the time of closing each Agent shall have received,
and at each Settlement Date with respect to any Terms Agreement, if called for
by such Terms Agreement, the Agent which is a party thereto shall have received,
from Sidley & Austin, special tax counsel to the Company, an opinion confirming
as correct in all material respects the opinion of such counsel expressed or
referred to under "Material Federal Income Tax Consequences" in the Prospectus.
(d) At or prior to the time of closing each Agent shall have received,
and at each Settlement Date with respect to any Terms Agreement, if called for
by such Terms Agreement, the Agent which is a party thereto shall have received,
from Sullivan & Cromwell, an opinion or opinions with respect to the
incorporation of the Company, the validity of the Notes, the Registration
Statement, the Prospectus and other related matters as the Agents or such Agent
may require, and the Company shall have furnished to such counsel such documents
as they request for the purpose of enabling such counsel to pass upon such
matters.
(e) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, as amended and supplemented to the
time of closing, date of acceptance by the Company of an offer to purchase Notes
or date of a Terms Agreement, as the case may be, there shall not have been (i)
any material adverse change in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of the Company
and its subsidiaries, otherwise than as set forth or contemplated in the
Registration Statement and the Prospectus, as amended and supplemented to such
time of closing, date of acceptance by the Company or date of such Terms
Agreement, or (ii) any downgrading in the rating accorded the Company's debt
securities by any "nationally recognized statistical rating organization", as
that term is defined by the Commission for purposes of Rule 436(g)(2) under the
Act or any public announcement that any such organization has under surveillance
or review, with possible negative implications, its rating of any of the
Company's debt securities; the representations and warranties of the Company
herein shall be true at the time of closing, each date of acceptance by the
Company of an offer to purchase Notes and at each Settlement Date with respect
to any Terms Agreement; the Company shall not have failed, at or prior to the
time of closing, such date of acceptance by the Company of an offer to purchase
Notes or such applicable Settlement Date, to have performed all agreements
herein contained which should have been performed by it at or prior to such
time; and each Agent shall have received at the time of closing, and the Agent
which is a party to any Terms Agreement shall have received at each Settlement
Date with respect to any such Terms Agreement, a certificate to the foregoing
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effect dated the day of the closing and signed by the President, a Vice
President or the Treasurer of the Company.
(f) At or prior to the time of closing each Agent shall have received,
and at each Settlement Date with respect to any Terms Agreement, if called for
by such Terms Agreement the Agent which is party thereto shall have received,
executed copies of a letter from the Company's independent accountants addressed
to the Company and to each Agent, if delivered at the time of closing, or to the
Company and the applicable Agent if delivered in connection with any Terms
Agreement, dated as of the closing date or the Settlement Date, as appropriate,
to the effect that (i) they are independent public accountants as required by
the Act and the applicable published rules and regulations of the Commission
thereunder; (ii) the audited financial statements contained in or incorporated
by reference in the Registration Statement comply as to form in all material
respects with the applicable accounting requirements of the Exchange Act and the
applicable published rules and regulations of the Commission thereunder; and
(iii) nothing has come to their attention as the result of specified procedures
not constituting an audit that caused them to believe (A) that the unaudited
financial statements, if any, contained in or incorporated by reference as
aforesaid, do not so comply and are not fairly presented in conformity with
generally accepted accounting principles applied on a basis substantially
consistent with that of the audited financial statements contained as aforesaid,
(B) that there was any change in the capital stock or long or intermediate term
debt of the Company, or any decrease in net assets, from the date of the latest
balance sheet which is contained in or incorporated by reference in the
Registration Statement as aforesaid to a date not more than five days prior to
the date of such letter or (C) that there were any decreases, as compared with
the corresponding period in the preceding year, in total revenues, income before
interest deductions or net income from the date of the latest figures for such
items contained in the Registration Statement to the date of the latest
available financial statements of the Company; provided, that with respect to
any of the items specified in clause (iii), such letter may contain an exception
for matters which the Registration Statement discloses have occurred or may
occur; and provided further, that the letter may vary from the requirements
specified in this subparagraph in such manner as may be acceptable to each Agent
if delivered at the time of closing or the applicable Agent if delivered in
connection with a Terms Agreement.
In case, at the time of closing, and at each Settlement Date with
respect to any Terms Agreement, any of the conditions specified above in this
Article III shall not have been fulfilled, this Distribution Agreement may be
terminated by the Agents, if such failure occurs at the time of closing, or such
Terms Agreement may be terminated by the applicable Agent, if such failure
occurs at a Settlement Date with respect to such Terms Agreement, in each case
by delivering written notice of termination to the Company. Any such termination
shall be without liability of any party to any other party.
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IV.
The obligation of the Company to deliver the Notes upon payment therefor
shall be subject to the following conditions: at the time of closing, and at
each Settlement Date with respect to any Terms Agreement, the Indenture shall be
qualified under the Trust Indenture Act and no stop order suspending the
effectiveness of the Registration Statement, as amended from time to time, shall
be in effect and no proceedings for this purpose shall then be pending before,
or threatened by, the Commission.
In case the conditions specified above in this Article IV shall not have
been fulfilled, this Agreement may be terminated by the Company by delivering
written notice of termination to the Agents, if such failure occurs at the time
of closing, or such Terms Agreement may be terminated by the Company by
delivering written notice of termination to the applicable Agent, if such
failure occurs at a Settlement Date with respect to such Terms Agreement;
Any such termination shall be without liability of any party to any
other party.
V.
In further consideration of your agreements herein contained with
respect to any Notes, the Company covenants and agrees as follows:
(a) To furnish each of you, without charge, a copy of the Registration
Statement, including exhibits and materials, if any, incorporated by reference
therein and, during the period mentioned in paragraph (d) below, as many copies
of the Prospectus, relating to such Notes, any documents incorporated by
reference therein and any supplements and amendments thereto as you may
reasonably request. The terms "supplement," and "amendment" or "amend" as used
in this Agreement shall include all documents filed by the Company with the
Commission subsequent to the date of the Basic Prospectus pursuant to the
Exchange Act which are deemed to be incorporated by reference in the Prospectus.
(b) To advise each of you promptly (confirming such advice in writing)
of any official request made by the Commission for an amendment to the
Registration Statement or Prospectus or for additional information with respect
thereto and of any official notice of the institution of proceedings for, or of
the entry of, a stop order suspending the effectiveness of the Registration
Statement. The Company will use its best efforts to prevent the issuance of any
such stop order, and, if such a stop order should be entered, the Company will
make every reasonable effort to obtain the lifting or removal thereof as soon as
possible.
(c) Not to file any amendment or supplement to the Registration
Statement or the Prospectus with respect to the Notes of which you shall not
previously have been advised or which shall be disapproved by Sullivan &
Cromwell, your counsel, and not to file any document pursuant to the Exchange
Act which is deemed to be incorporated by reference in the Prospectus of which
Sullivan & Cromwell shall not previously have been advised.
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(d) If, during such period after the first date of the public offering
of such Notes as in the opinion of Sullivan & Cromwell, your counsel, the
Prospectus relating to such Notes is required by law to be delivered, any event
shall occur as a result of which it is necessary to amend or supplement such
Prospectus in order to make the statements therein, in the light of the
circumstances when such Prospectus is delivered to a purchaser, not misleading,
or if it is necessary to amend or supplement such Prospectus to comply with law,
forthwith to prepare and furnish, at its own expense, to each of you, either
amendments or supplements to such Prospectus so that the statements in such
Prospectus as so amended or supplemented will not, in the light of the
circumstances when such Prospectus is delivered to a purchaser, be misleading or
so that such Prospectus will comply with law.
(e) To use its best efforts to qualify the Notes, or to assist in the
qualification of the Notes by or on behalf of each of you, for offer and sale
under the securities or Blue Sky laws of such jurisdictions as each of you may
reasonably request, and to pay all expenses with respect thereto (including
counsel fees), provided that the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process in any
jurisdiction, or to incur or to pay any such expenses if no Notes are delivered
to and purchased by any Agent by reason of an Agent's default in making payment
for the Notes.
(f) To cause to be made generally available to its security holders as
soon as practicable an earning statement or statements which shall meet the
requirements of Section II(a) of the Act and Rule 158 promulgated thereunder
covering a period of twelve months which shall begin not later than the closing
date of the Company's fiscal quarter next following the "effective date" (as
defined in Rule 158 under the Act) of the Registration Statement with respect to
each sale of Notes.
(g) To apply the proceeds from the sale of the Notes as set forth under
the heading "Use of Proceeds" appearing in the Prospectus.
(h) Each acceptance by the Company of an offer for the purchase of
Notes, and each sale of Notes to the applicable Agent pursuant to a Terms
Agreement, shall be deemed to be an affirmation that the representations and
warranties of the Company contained in this Agreement and in any certificate
theretofore delivered to you pursuant hereto are true and correct at the time of
such acceptance or sale, as the case may be, and an undertaking that such
representations and warranties will be true and correct at the time of delivery
to the purchaser or his agent, or the applicable Agent, of the Notes relating to
such acceptance or sale, as the case may be, as though made at and as of each
such time (and it is understood that such representations and warranties shall
relate to the Registration Statement and the Prospectus as amended and
supplemented to each such time).
(i) Each time the Registration Statement or the Prospectus is amended or
supplemented (other than by an amendment or supplement providing solely for a
change in the interest rates (excluding any change in the formula by which such
interest rate may be determined) or maturities offered on the Notes or for a
change deemed immaterial in the
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reasonable opinion of the Agents), or if the Company sells Notes to an Agent
pursuant to a Terms Agreement, and if so indicated in the applicable Terms
Agreement, the Company will deliver or cause to be delivered forthwith to each
Agent or, in the case of a sale of Notes pursuant to a Terms Agreement, to the
applicable Agent, a certificate of the Company signed by the President, a Vice
President or the Treasurer of the Company, dated the date of the effectiveness
of such amendment or filing or supplement or sale, as the case may be, in form
reasonably satisfactory to such Agent, to the effect that the statements
contained in the certificates referred to in Sections III(a) and (e) that was
last furnished to the Agent (either pursuant to Sections III(a) and (e) or
pursuant to this Section V(i)) are true and correct as though made at and as of
such time (except that such statements shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to such
time) or, in lieu of such certificates, certificates of the same tenor as the
certificates referred to in Sections III(a) and (e) relating to the Registration
Statement and the Prospectus as amended and supplemented to the time of delivery
of such certificates.
(j) Each time the Registration Statement or the Prospectus is amended or
supplemented, or if so indicated in the applicable Terms Agreement, the Company
sells Notes to an Agent pursuant to a Terms Agreement the Company shall furnish
or cause to be furnished forthwith to each Agent, or, in the case of a sale of
Notes pursuant to a Terms Agreement, to the applicable Agent, written opinions
of counsel and special tax counsel to the Company satisfactory to such Agent;
provided, however, that such opinions need not be furnished with respect to an
amendment or supplement (i) providing solely for a change in the interest rates
offered on the Notes (other than a change in the formula by which such interest
rate may be determined) or for a change deemed immaterial in the reasonable
opinion of such Agent, or (ii) setting forth or incorporating by reference
financial statements or other information as of and for a fiscal quarter,
unless, in the case of clause (ii) above, in the reasonable judgment of such
Agent, such financial statements or other information are of such a nature that
an opinion of counsel should be furnished; provided, further that such counsel
need not provide opinions regarding the content of such financial statements.
Any such opinion shall be dated the date of such amendment or supplement, in
form satisfactory to the Agent to whom such opinions will be delivered, and
shall be of the same tenor as the opinion referred to in Sections III(b) and (c)
but modified to relate to the Registration Statement and the Prospectus as
amended and supplemented to the time of delivery of such opinion. In lieu of
such opinion, counsel last furnishing such an opinion to such Agent may furnish
to such Agent a letter to the effect that such Agent may rely on such last
opinion to the same extent as though it were dated the date of such letter
authorizing reliance on such last opinion (except that statements in such last
opinion will be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of such letter
authorizing reliance).
(k) Each time that the Registration Statement or the Prospectus is
amended or supplemented to set forth amended or supplemental financial
information or such amended or supplemental information is incorporated by
reference in the Registration Statement or the Prospectus, or if so indicated in
the applicable Terms Agreement, the Company sells Notes to an Agent pursuant to
a Terms Agreement, the Company shall cause the Company's independent
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<PAGE>
<PAGE>
accountants forthwith to furnish each Agent or, in the case of a sale of Notes
pursuant to a Terms Agreement, to the applicable Agent, a letter, dated the date
of the effectiveness of such amendment or the date of filing of such supplement,
or the date of such sale, as the case may be, in form satisfactory to the
Agents, of the same tenor as the letter referred to in Section III(f) with
regard to the amended or supplemental financial information included or
incorporated by reference in the Registration Statement and the Prospectus, as
amended or supplemented to the date of such letter.
(l) Between the date of any Terms Agreement and the Settlement Date with
respect to such Terms Agreement, the Company will not, without your prior
consent, offer or sell, or enter into any agreement to sell, any debt securities
of the Company substantially similar to the Notes (other than the Notes that are
to be sold pursuant to such Terms Agreement and commercial paper in the ordinary
course of business), except as may otherwise be provided in any such Terms
Agreement.
(m) The Company will pay all expenses incident to the performance of its
obligations under this Agreement and any applicable Terms Agreement, including:
(i) the preparation and filing of the Registration Statement and all amendments
thereto, (ii) the preparation, issuance and delivery of the Notes, (iii) the
fees and disbursements of the Company's accountants and of the Trustee and its
counsel, (iv) the qualification of the Notes under securities laws in accordance
with the provisions of Sections V(e), including filing fees and the reasonable
fees and disbursements of your counsel in connection therewith and in connection
with the preparation of any Blue Sky Memorandum and any Legal Investment
Memorandum, (v) the printing and delivery to you in quantities as herein above
stated of copies of the Registration Statement and all amendments thereto, and
of the Prospectus and any amendments or supplements thereto, (vi) the printing
and delivery to you of copies of the Indenture and any Blue Sky Memorandum and
any Legal Investment Memorandum, (vii) any fees charged by rating agencies for
the rating of the Notes, (viii) any advertising and other out-of-pocket expenses
incurred with the approval of the Company, provided, however, that the expenses
of any tombstone advertisement shall be paid by the Agents, and (ix) the fees
and expenses, if any, incurred with respect to any filing with the National
Association of Securities Dealers, Inc.
The Company shall also reimburse each Agent promptly upon receipt of an
invoice from such Agent for the reasonable fees of counsel for such Agent
incurred in connection with the offering and sale of the Notes (including the
reasonable fees and expenses of special counsel in any state in the event it
should become necessary to obtain opinions of such counsel as to usury or other
matters of local law in order to obtain or maintain the qualifications referred
to in Section V(e) hereof).
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<PAGE>
<PAGE>
VI.
(a) The Company agrees to indemnify and hold each Agent, and each
person, if any, who controls such Agent within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act, harmless from and against any and all
losses, claims, damages and liabilities with respect to the Notes or any other
securities of the Company or its subsidiaries arising because the Registration
Statement or any Preliminary Prospectus used in connection with the offering of
the Notes (if used within the period set forth in paragraph (d) of Article V
hereof and if used as amended or supplemented by all amendments or supplements
thereto which have been furnished to you) contained or is alleged to have
contained any untrue statement of a material fact or omitted or is alleged to
have omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading, except as to losses, claims,
damages or liabilities caused by any such untrue statement or omission or
alleged untrue statement or omission made in reliance upon information furnished
to the Company herein or otherwise in writing by or on behalf of such Agent for
use in connection with the preparation of any Preliminary Prospectus, the
Registration Statement or any amendment or supplement thereto, or caused by any
statement in or omission from the Statement of Eligibility and Qualification of
the Trustee under the Indenture, provided that the indemnity agreement with
respect to any Preliminary Prospectus shall not inure to the benefit of an Agent
(or to the benefit of any person controlling such Agent) on account of any
losses, claims, damages or liabilities arising from the sale of Notes to any
person if a copy of the Prospectus (as amended or supplemented by all amendments
or supplements thereto which have been furnished to such Agent, but without
documents incorporated by reference therein or exhibits) shall not have been
sent, mailed or given by or on behalf of such Agent to such person, if required
by the Act, at or prior to the written confirmation of the sale of such Notes to
such person.
(b) Each Agent agrees severally and not jointly to indemnify and hold
the Company, each of its directors, each of its officers who sign the
Registration Statement, and each person who controls the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, harmless
from and against any and all losses, claims, damages and liabilities, joint or
several, or any action in respect thereof arising because the Registration
Statement or any preliminary prospectus relating to the Notes or any amendment
or supplement thereto contained or is alleged to have contained any untrue
statement of a material fact or omitted or is alleged to have omitted to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, which untrue statement or omission or alleged untrue
statement or omission was made in the Registration Statement or any such
Preliminary Prospectus or any amendment or supplement thereto in reliance upon
information furnished to the Company herein or otherwise in writing by or on
behalf of such Agent for use in connection with the preparation thereof.
(c) The Company and each Agent agree that upon the commencement of any
action against it, its directors, its officers who sign the Registration
Statement, or any person controlling it as aforesaid in respect of which
indemnity may be sought on account of any indemnity agreement contained herein,
it will promptly give written notice of the
-15-
<PAGE>
<PAGE>
commencement thereof to the party or parties against whom indemnity shall be
sought, but the omission so to notify such indemnifying party or parties of any
such action shall not relieve such indemnifying party or parties from any
liability which it or they may have to the indemnified party or parties
otherwise than on account of such indemnity agreement. In case of such notice of
any such action, the indemnifying party or parties shall be entitled to
participate at its or their own expense in the defense of such action, or, if it
or they so elect, to assume the defense of such action, and in the latter event
such defense shall be conducted by counsel chosen by such indemnifying party or
parties and satisfactory to the indemnified party or parties who shall be
defendant or defendants in such action, and such defendant or defendants shall
bear the fees and expenses of any additional counsel retained by them; but if
the indemnifying party or parties shall not elect to assume the defense of such
action, such indemnifying party or parties will reimburse such indemnified party
or parties for the reasonable fees and expenses of any counsel retained by them.
In the event that the parties to any such action (including impleaded parties)
include both the indemnifying party and the indemnified party and either (i) the
indemnifying party or parties and indemnified party or parties mutually agree or
(ii) representation of both the indemnifying party or parties and the
indemnified party or parties by the same counsel is inappropriate under
applicable standards of professional conduct due to actual or potential
differing interests between them, then the indemnifying party or parties shall
not have the right to assume the defense of such action on behalf of such
indemnified party or parties and will reimburse such indemnified party or
parties for the reasonable fees and expenses of any counsel retained by them and
satisfactory to the indemnifying party or parties, it being understood that the
indemnifying party or parties shall not, in connection with any one action or
separate but similar or related actions arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys (in addition to local counsel) for all
such indemnified parties, which firm shall be designated in writing by the Agent
who is a party to the proceeding or, if more than one Agent is party to the
proceedings, by mutual agreement of the Agents, or controlling persons are
indemnified parties and by the Company in the case of an action in which the
Company or any of its directors, officers or controlling persons are indemnified
parties. The indemnifying party or parties shall not be liable under this
Agreement with respect to any settlement made by an indemnified party or parties
without prior written consent by the indemnifying party or parties to such
settlement.
(d) If the indemnification provided for in paragraph (a) or (b) above is
unavailable to an indemnified party in respect of any losses, claims, damages or
liabilities referred to therein, then each indemnifying party under such
paragraph, in lieu of indemnifying such indemnified party thereunder, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities in such proportion as is
appropriate to reflect primarily the relative benefits received by the Company
on the one hand and each Agent on the other from the offering of the Notes and
also to reflect where appropriate the relative fault of the Company on the one
hand and of each Agent on the other in connection with the statements or
omissions or alleged statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Company and of each Agent shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or
-16-
<PAGE>
<PAGE>
alleged omission to state a material fact relates to information supplied by the
Company or by each Agent and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and each Agent agree that it would not be just and equitable if
contribution pursuant to this paragraph (d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this paragraph (d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities referred to in this paragraph (d) shall be deemed to
include, subject to the limitation set forth above in this Article VI, any legal
or other expenses reasonably incurred by such indemnified party in connection
with defending any such action or claim. Notwithstanding the provisions of this
paragraph (d), no Agent shall be required to contribute any amount in excess of
the amount by which the total price at which the Notes distributed by it were
offered to the public exceeds the amount of any damages which such Agent has
been required to pay, otherwise than pursuant to this paragraph (d), by reason
of such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
The indemnity and contribution agreements contained in this Article VI
and the representations and warranties of the Company in this Agreement shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement or of any Terms Agreement hereunder, (ii) any investigation
made by any Agent or on its behalf or any person controlling any Agent or by or
on behalf of the Company, its directors or officers or any person controlling
the Company and (iii) acceptance of and payment for any of the Notes.
This Agreement and any Terms Agreement hereunder shall inure to the
benefit of the Company, its directors, its officers who sign the registration
statement, each Agent, or in the case of any such Terms Agreement, the
applicable Agent and each controlling person referred to in Article VI hereof
and their respective successors. Nothing in this Agreement or in any Terms
Agreement hereunder is intended or shall be construed to give to any other
person, firm or corporation any legal or equitable right, remedy or claim under
or in respect of this Agreement or any Terms Agreement hereunder or any
provision herein or therein contained. The term "successor" as used in this
Agreement or any Terms Agreement hereunder shall not include any purchaser, as
such purchaser, of any of the Notes from an Agent.
The provisions of this Agreement relating to the solicitation of offers
to purchase Notes from the Company may be suspended or terminated at any time by
the Company as to any Agent or by any Agent insofar as this Agreement relates to
such Agent upon the giving of written notice of such suspension or termination
to such Agent or the Company, as the case may be. In the event of such
suspension or termination with respect to any Agent, (x) this Agreement shall
remain in full force and effect with respect to any Agent as to which such
suspension or termination has not occurred, (y) this Agreement shall remain in
full force and effect with respect to the rights and obligations of any party
which have previously accrued or which relate to Notes already issued, agreed to
be issued or the subject of a pending offer at the time of such
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<PAGE>
<PAGE>
suspension or termination and (z) in any event, this Agreement shall remain in
full force and effect insofar as the third paragraph of Article I(a), Article
V(f), Article V(m) and Article VI are concerned.
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<PAGE>
<PAGE>
This Agreement and any Terms Agreement may be executed in any number of
counterparts each of which shall be an original, with the same effect as of the
signatures thereto and hereto were upon the same instrument.
This Agreement and any Terms Agreement hereunder shall be governed by
and construed in accordance with the laws of the State of New York.
Very truly yours,
AT&T Capital Corporation
By
--------------------------------------------
Title: Treasurer
Accepted:
Lehman Brothers Inc.
By
--------------------------
Title:
Goldman, Sachs & Co.
By
--------------------------
Title:
Merrill Lynch, Pierce, Fenner & Smith Incorporated
By
--------------------------
Title:
Morgan Stanley & Co. Incorporated
By
--------------------------
Title:
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<PAGE>
<PAGE>
This Agreement and any Terms Agreement may be executed in any number of
counterparts each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
This Agreement and any Terms Agreement hereunder shall be governed by
and construed in accordance with the laws of the State of New York.
Very truly yours,
AT&T Capital Corporation
By
-------------------------------------------
Title: Treasurer
Accepted:
Lehman Brothers Inc.
By
--------------------------
Title:
Goldman, Sachs & Co.
By
--------------------------
Title:
Merrill Lynch, Pierce, Fenner & Smith Incorporated
By
--------------------------
Title:
Morgan Stanley & Co. Incorporated
By
--------------------------
Title:
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<PAGE>
<PAGE>
EXHIBIT A
AT&T CAPITAL CORPORATION
Medium-Term Notes, Series F
TERMS AGREEMENT
_________, 199__
AT&T Capital Corporation
Attention:
Re: Distribution Agreement dated April ___, 1998
The undersigned agrees to purchase the following principal amount of
your Medium-Term Notes, Series F:
Specified Currency as to:
Principal:
Interest:
Aggregate Principal Amount: [U.S. $] [other]
Price to Public:
[Provisions relating to redemption, if any:]
[Provisions relating to repayment, if any:]
If Fixed Rate Notes:
Interest Rate:
Maturity:
Amortization Schedule:
If Floating Rate Notes:*
Base Rate:
Initial Interest Date:
Interest Determination Date:
Interest Reset Date:
Interest Reset Period:
Record Date:
Interest Payment Dates:
Index Maturity:
- ----------------------
* See Prospectus Supplement dated April __, 1998 for explanation of terms.
<PAGE>
<PAGE>
Maturity:
Maximum Interest Rate:
Minimum Interest Rate:
Spread:
Spread Multiplier:
Indexed Currency or Currencies (if any):
Settlement Date and Time:
Place of Delivery:
Calculation Agent:
Form of Note (Book-Entry or Certificated)
Purchase Price
Method of and Specified Funds for Payment of
Purchase Price: [By certified or
official bank check or checks, payable
to the order of the Company, in [New
York] Clearing House] [immediately
available) funds [By wire transfer to a
bank account specified by the Company in
[next day][immediately available] funds]
Provisions relating to underwriter default,
if any:
Other termination provisions, if any:
[The certificates referred to in Section V(i) of the Distribution
Agreement, the opinions referred to in Section V(j) of the Distribution
Agreement and the accountants letter referred to in Section V(k) of the
Distribution Agreement will be required.]
[ ]
By:
-------------------------------------
Accepted:
AT&T CAPITAL CORPORATION
By:
---------------------
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<PAGE>
<PAGE>
EXHIBIT B
AT&T CAPITAL CORPORATION
Medium-Term Notes, Series 4, Administrative Procedures
Medium-Term Notes, Series 4 (the "Notes") are to be offered on a
continuous basis by AT&T Capital Corporation (the "Company"). Lehman Brothers
Inc., Goldman, Sachs & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated
("Merrill Lynch") and Morgan Stanley & Co. Incorporated (each, an "Agent", and
collectively, the "Agents"), have agreed to solicit purchases of the Notes. The
Agents will not be obligated to purchase Notes for their own accounts. The Notes
are being sold pursuant to a Distribution Agreement among the Company and each
Agent dated January 10, 1997 (the "Distribution Agreement"). The Notes will rank
equally with all other unsecured and unsubordinated debt of the Company and have
been registered with the Securities and Exchange Commission (the "Commission").
The Chase Manhattan Bank ("CMB") is the trustee (the "Trustee") under the
Indenture covering the Notes (the "Indenture").
Notes will bear interest at either fixed rates ("Fixed Rate Notes") or
floating rates ("Floating Rate Notes"). Fixed Rate Notes may pay a level amount
in respect of both interest and principal amortized over the life of the Notes
("Amortizing Notes"). Each Note will be represented by either a Global Security
(as defined hereinafter) delivered to CMB as agent for The Depository Trust
Company ("DTC"), and recorded in the book-entry system maintained by DTC (a
"Book-Entry Note") or a certificate delivered to the Holder thereof or a Person
designated by such Holder (a "Certificated Note"). Except in certain limited
circumstances or unless otherwise determined by the Company, an owner of a
Book-Entry Note will not be entitled to receive a certificate representing such
a Note.
CMB will act as paying agent ("Paying Agent") for the payment of
principal of and premium, if any, and interest on the Notes and will perform, as
Paying Agent, unless otherwise specified, the other duties specified herein.
Book-Entry Notes will be issued in accordance with the administrative procedures
set forth in Parts I and II hereof, and Certificated Notes will be issued in
accordance with the administrative procedures set forth in Parts I and III
hereof. Unless otherwise defined herein, terms defined in the Indenture shall be
used herein as therein defined.
Administrative procedures and specific terms of the offerings are
explained below.
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<PAGE>
<PAGE>
PART VII.: Administrative Procedures for all Notes
<TABLE>
<S> <C>
Maturities: Each Note will have a maturity from
date of issue of not less than nine
months.
Price to Public: Each Note will be issued at 100% of
principal amount unless otherwise
specified in the applicable pricing
supplement.
Acceptance of Orders: The Company will have the sole
right to accept offers to purchase
Notes. Each Agent will promptly
advise the Company of each
reasonable offer to purchase Notes
received by it, and, if the Company
has not posted rates, the proposed
rate of interest on such Notes. The
Company may reject an offer in
whole or in part. Each Agent may
reject, in its discretion
reasonably exercised, any offer
received by it in whole or in part.
If the Company accepts an offer to
purchase a Note it will prepare a
pricing supplement reflecting the
terms of such Note and will, so
long as it is a participant in the
Commission's EDGAR program,
electronically submit a version of
such pricing supplement complying
with the rules of the Commission
relating to such program, or, if
the Company is no longer a
participant in such program,
arrange to have ten copies of such
pricing supplement filed with, or
mailed for filing to, the
Commission, in each case no later
than the second business day
following the date such offer is
accepted.
One copy of such filed document
will be sent by telecopy,
overnight, (express or special
delivery (for delivery as soon as
practicable following the trade,
but in no event later than 11:00
a.m. on the Business Day following
the applicable trade date) to the
selling Agent and the Trustee at
the following applicable address:
if to Lehman Brothers Inc., by
telecopy to: Lehman Brothers Inc.,
c/o ADP, Prospectus Services, 536
Broadhollow Road,
</TABLE>
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<PAGE>
<PAGE>
<TABLE>
<S> <C>
Melville, New York 11747, Attention:
Mike Ward, (516) 249-7942, telecopier:
(516) 254-7106, and by hand to: Lehman
Brothers Inc., 3 World Financial
Center, 9th Floor, New York, New
York 10285-0900, Attention: Brunnie
Vazquez, (212) 526-8400; if to
Goldman Sachs & Co, to Karen
Robertson, Goldman, Sachs & Co., 85
Broad Street, New York, New York
10004, (212),902-8401, telecopier:
(212) 902-3000; if to Merrill
Lynch, Pierce, Fenner & Smith
Incorporated via overnight, express
or special delivery packages only
to: Tritech Services, 40 Colonial
Drive, Piscataway, New Jersey
08854, Attention: Prospectus
Operations/Nachman Kimerling, (908)
885-2768, telecopier: (908)
885-2774/75/76; if to Merrill
Lynch, Pierce, Fenner & Smith
Incorporated via all other types of
deliveries, to: Tritech Services,
#4 Corporate Place, Corporate Park
287, Piscataway, New Jersey 08854,
Attention: Prospectus
Operations/Nachman Kimerling, (908)
885-2768, telecopier: (908)
885-2774/75/76; if to Morgan
Stanley Co. Incorporated, to:
Morgan Stanley & Co. Incorporated,
1585 Broadway, 2nd Floor, New York,
New York 10036, Attention: Carlos
Cabrera, MTN Trading Desk,
telecopier: (212) 761-8846; and if
to the Trustee, to: The Chase
Manhattan Bank, Corporate Trust
Administration, 450 West 33rd
Street, New York, New York 10001,
Attention: Greg McFarland, (212)
946-8567, telecopier: (212)
946-8567. For record keeping
purposes, one copy of each Pricing
Supplement, as so filed, shall also
be mailed or telecopied to:
Goldman, Sachs & Co., Registration
Department, 85 Broad Street, New
York, New York 10004, Attention:
Don Hansen, (212) 902-6685,
telecopier: (212) 375-5505; and to
Merrill Lynch, Pierce, Fenner &
Smith Incorporated, World Financial
Center, North Tower, 10th Floor,
New York, New York
</TABLE>
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<PAGE>
<PAGE>
<TABLE>
<S> <C>
10281-1310, Attention: MTN Product
Management, telecopier: (212)
449-2234.
Outdated Pricing Supplements, and
the supplemented Prospectuses to
which they are attached (other than
those retained for files) will be
destroyed.
Procedure for
Rate Changes: The Company and the Agent will
discuss from time to time the
aggregate principal amount of, the
issuance price of, and the interest
rates to be borne by, Notes that
may be sold as a result of the
solicitation of orders by the
Agents. When a decision has been
reached to change the interest
rates of Notes being sold by the
Company, the Company will promptly
inform each Agent. Each Agent will
advise the Company with respect to
the changed rates. See "Acceptance
of Orders," above.
Suspension of
Solicitation;
Amendment or
Supplement: The Company may instruct the Agents
to suspend solicitation of
purchases at any time. Upon receipt
of such instructions, the Agents
will forthwith suspend solicitation
until such time as the Company has
advised them that solicitation of
purchases may be resumed.
If the Company decides to amend or
supplement the Registration
Statement or the Prospectus
relating to the Notes, it will
promptly advise the Agents and the
Trustee, and will furnish the
Agents and the Trustee with the
proposed amendment or supplement in
accordance with the terms of the
Distribution Agreement. The Company
will file with the Commission any
supplement to the Prospectus
relating to the Notes including any
supplement which provides solely
for a change in the interest rates
offered on the Notes, provide the
Agents with sufficient quantities
of copies of any supplement within
a reasonable time prior to the
earlier of the delivery of written
confirmation of the sale of
</TABLE>
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<PAGE>
<PAGE>
<TABLE>
<S> <C>
Notes or the delivery of Notes to
any purchaser thereof, and confirm
to the Agents that such supplement
has been filed with the Commission.
In the event that at the time the
Company suspends solicitation of
purchases there shall be any orders
outstanding for settlement, the
Company will promptly advise the
Agents and the Trustee whether such
orders may be settled and whether
copies of the Prospectus as in
effect at the time of the
suspension may be delivered in
connection with the settlement of
such orders. The Company will have
the sole responsibility for such
decisions and for any arrangements
which may be made in the event that
the company determines that such
orders may not be settled or that
copies of such Prospectus may not
be so delivered.
Delivery of Prospectus: Each Agent shall, for each Note
order received by it, deliver a
copy of the Prospectus as most
recently amended or supplemented
(including the pricing supplement
relating to such Note) with the
earlier of the delivery or the
confirmation of sale of the Note to
a purchaser or such purchaser's
agent.
Payment of Selling
Commission and Expenses: The selling commission on each sale
of Notes will be calculated by the
applicable Agent and the applicable
Agent will deduct, for its own
account, the selling commission
from the proceeds of each such sale
of Notes. Each Agent will forward,
from time to time at its
discretion, an itemized statement
setting forth the aggregate amount
of out-of-pocket expenses incurred
by it in connection with the
offering and sale of the Notes,
which are reimbursable to it
pursuant to the terms of the
Distribution Agreement. The Company
will promptly remit payment to such
Agent.
Advertising: The Company will determine with
each Agent the form, substance and
amount of advertising
</TABLE>
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<PAGE>
<PAGE>
<TABLE>
<S> <C>
that may be appropriate in offering
the Notes. Advertising expenses
will be paid by the Company or
reimbursed to the Agents by the
Company; provided, however, that
the expenses of any tombstone
advertisement shall be paid by the
Agents.
</TABLE>
PART VIII.: Administrative Procedures For Book-Entry Notes
In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, CMB will perform the
custodial, document control and administrative functions described below, in
accordance with its respective obligations under a Letter of Representations
from the Company and CMB to DTC dated as of the date hereof, and a Medium Term
Note Certificate Agreement between CMB and DTC, dated as of December 2, 1988,
and its obligations as a participant in DTC, including DTC's Same-Day Funds
Settlement System ("SDFS").
<TABLE>
<S> <C>
Issuance: On any date of Settlement (as
defined under "Settlement" below)
for one or more Book-Entry Notes,
the Company will issue a global
security in fully registered form
without coupons (a "Global
Security") representing up to
$200,000,000 principal amount of
all such Notes that have the same
stated maturity, redemption or
repayment provisions, interest
payment dates, interest payment
period and original issue date,
and, in the case of Fixed Rate
Notes, interest rate and
amortization schedule (if any), or
in the case of Floating Rate Notes,
initial interest rate, base rate,
interest payment dates, index
maturity, interest reset period,
interest reset dates, spread or
spread multiplier, minimum interest
rate (if any), and maximum interest
rate (if any) (collectively
"Terms"). Each Global Security will
be dated and issued as of the date
of its authentication by the
Trustee, acting as Authenticating
Agent. No Global security will
represent (i) both Fixed Rate and
Floating Rate Book-Entry Notes or
(ii) any Certificated Note.
Identification Numbers: The Company has arranged with the
CUSIP Service Bureau of Standard
Poor's
</TABLE>
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<PAGE>
<PAGE>
<TABLE>
<S> <C>
Corporation (the "CUSIP Service
Bureau") for the reservation of a
series of CUSIP numbers (including
tranche numbers), which series
consists of approximately 900 CUSIP
numbers and relates to Global
Securities representing the
Book-Entry Notes. The Company has
obtained from the CUSIP Service
Bureau a written list of such
series of reserved CUSIP numbers
and has delivered to CMB and DTC a
written list of such reserved CUSIP
numbers of such series. The Company
will assign CUSIP numbers to Global
Securities as described below under
Settlement Procedure "B". DTC will
notify the CUSIP Service Bureau
periodically of the CUSIP numbers
that the Company has assigned to
Global Securities. At any time when
fewer than 100 of the reserved
CUSIP numbers of the series remain
unassigned to Global Securities,
and if it deems necessary, the
Company will reserve additional
CUSIP numbers for assignment to
Global Securities. upon obtaining
such additional CUSIP numbers, the
Company shall deliver a list of
such additional CUSIP numbers to
CMB and DTC.
Registration: Global Securities will be issued
only in fully registered form
without coupons. Each Global
Security will be registered in the
name of CEDE & Co., as nominee for
DTC, on the security register
maintained under the Indenture by
CMB as Registrar. The beneficial
owner of a Book-Entry Note (or one
or more indirect participants in
DTC designated by such owner) will
designate one or more participants
in IDTC (with respect to such Note,
the "Participants") to act as agent
or agents for such owner in
connection with the book-entry
system maintained by DTC, and DTC
will record in book-entry form, in
accordance with instructions
provided by such Participants, a
credit balance with respect to such
beneficial owner in such Note
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in the account of such
Participants. The ownership
interest of such beneficial owner
in such Note will be recorded
through the records of such
Participants or through the
separate records of such
Participants and one or more
indirect participants in DTC.
Transfers: Transfers of a Book-Entry Note will
be accompanied by book entries made
by DTC and, in turn, by
Participants (and in certain cases,
one or more indirect participants
in DTC) acting on behalf of
beneficial transferors and
transferees of such Note.
Exchanges: CMB may deliver to DTC and the
CUSIP Service Bureau at any time a
written notice of consolidation
specifying (i) the CUSIP numbers of
two or more Outstanding Global
Securities that represent (A) Fixed
Rate Book-Entry Notes having the
same terms and for which interest
has been paid to the same date, or
(B) Floating Rate Book-Entry Notes
having the same terms and for which
interest has been paid to the same
date, (ii) a date, occurring at
least thirty days after such
written notice is delivered and at
least thirty days before the next
interest payment date for such
Book-Entry Notes, on which such
Global Securities shall be
exchanged for a single replacement
Global Security and (iii) a new
CUSIP number, obtained from the
Company, to be assigned to such
replacement Global Security. Upon
receipt of such a notice, DTC will
send to its participants (including
CMB) a written reorganization
notice to the effect that such
exchange will occur on such date.
Prior to the specified exchange
date, CMB will deliver to the CUSIP
Service Bureau a written notice
setting forth such exchange date
and the new CUSIP number and
stating that, as of such exchange
date, the CUSIP numbers of the
Global Securities to be exchanged
will no longer be valid. On the
specified exchange
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date, CMB will exchange such Global
Securities for a single Global
Security bearing the new CUSIP
number and the CUSIP numbers of the
exchanged Global Securities will,
in accordance with CUSIP Service
Bureau procedures, be cancelled and
not immediately reassigned.
Notwithstanding the foregoing, if
the Global Securities to be
exchanged exceed $200,000,000 in
aggregate principal amount, one
Global Security will be
authenticated and issued to
represent each $200,000,000 of
principal amount of the exchanged
Global Security and an additional
Global Security will be
authenticated and issued to
represent any remaining principal
amount of such Global Securities
(see "Denominations" below).
Denominations: Book-Entry Notes will be issued in
principal amounts that are integral
multiples of $1,000. Global
Securities will be denominated in
principal amounts not in excess of
$200,000,000. If one or more
Book-Entry Notes having an
aggregate principal amount in
excess of $200,000,000 would, but
for the preceding sentence, be
represented by a single Global
Security, then one Global Security
will be issued to represent each
$200,000,000 principal amount of
such Book-Entry Note or Notes and
an additional Global Security will
be issued to represent any
remaining principal amount of such
Book-Entry Note or Notes. In such a
case, each of the Global Securities
representing such Book-Entry Note
or Notes shall be assigned the same
CUSIP number.
Interest: General. Interest on each
Book-Entry Note will accrue from
the original issue date or the last
date to which interest has been
paid, if any, on the Global
Security representing such Note.
Unless otherwise specified therein,
each payment of interest on a
Book-Entry Note will include
interest accrued to but excluding
the interest payment date (provided
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that in the case of Floating Rate
Notes which reset daily or weekly,
interest payments will include
interest accrued to and including
the record date immediately
preceding the interest payment
date) or maturity date. Interest
payable at the maturity of a
Book-Entry Note will be payable to
the person to whom the principal of
such Note is payable. Standard &
Poor's Corporation will use the
information received in the pending
deposit message described under
Settlement Procedure "C" below in
order to include the amount of any
interest payable and certain other
information regarding the related
Global Security in the appropriate
weekly bond report published by
Standard & Poor's Corporation.
Record. The Record Date with
respect to any interest payment
date shall be the date fifteen
calendar days prior to such
interest payment date, whether or
not such date shall be a Business
Day.
Fixed Rate Book-Entry Notes. Unless
otherwise specified in the
applicable Pricing Supplement,
interest payments on Fixed Rate
Book-Entry Notes (other than
Amortizing Notes) will be made
semiannually on February 15 and
August 15 of each year and at
maturity, and, unless otherwise
specified in the applicable Pricing
Supplement, principal and interest
payments on Book-Entry Amortizing
Notes will be made semiannually on
February 15 and August 15 of each
year, or quarterly on February 15,
May 15, August 15 and November 15
of each year and at maturity;
provided, however, that in the case
of a Fixed Rate Book-Entry Note
issued between a Record Date and an
interest payment date or on an
interest payment date, the first
interest payment will be made on
the interest payment date following
the next succeeding Record Date to
the registered holder on such next
succeeding Record Date
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of such Fixed Rate Book-Entry Note;
provided further, that if any
interest payment date falls on a
day that is not a Business Day, the
required payment of principal,
premium, if any, and/or interest
will be made on the next succeeding
Business Day as if made on the date
such payment was due, and no
interest will accrue on such
payment for the period from and
after such interest payment date to
the date of such payment on the
next succeeding Business Day.
Floating Rate Book-Entry Notes.
Unless otherwise specified in the
applicable Pricing Supplement,
interest payments will be made on
Floating Rate Book-Entry Notes
monthly, quarterly, semi-annually,
or annually. Unless otherwise
agreed upon, interest will be
payable, in the case of Floating
Rate Book-Entry Notes with a
monthly interest payment period, on
the third Wednesday of each month;
with a quarterly interest payment
period, on the third Wednesday of
February, May, August and November
of each year; with a semi-annual
interest payment period on the
third Wednesday of the two months
specified pursuant to Settlement
Procedure "A", below; and with an
annual interest payment period, on
the third Wednesday of the month
specified pursuant to Settlement
Procedure "A" below; provided,
however, that if an interest
payment date for Floating Rate
Book-Entry Notes (other than the
maturity date) would otherwise be a
day that is not a Business Day such
interest payment date will be
postponed to the next succeeding
day that is a Business Day, except
that in the case of a LIBOR Note,
if such Business Day falls in the
next succeeding calendar month,
such interest payment date will be
the immediately preceding Business
Day. If the maturity date of a
Floating Rate Book-Entry Notes
falls on a day that is not a
Business Day, the required payment
of principal, premium, if any,
and/or
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interest will be made on the next
succeeding Business Day as if made
on the date such payment was due,
and no interest shall accrue on
such payment for the period from
and after the Maturity Date to the
date of such payment on the next
succeeding Business Day. In the
case of a Floating Rate Book-Entry
Note issued between a Record Date
and an interest payment date, the
first interest payment will be made
on the interest payment date
following the next succeeding
Record Date to the registered
holder on such next succeeding
Record Date of such Floating Rate
Book-Entry Note.
Notice of Interest Payment and
Record Dates. On the first Business
Day of March, June, September and
December of each year, CMB will
deliver to the Company, the Trustee
and DTC a written list of Record
Dates and interest payment dates
that will occur with respect to
Book-Entry Notes during the
six-month period beginning on such
first Business Day.
Calculation of Interest: Fixed Rate Book-Entry Notes.
Interest on Fixed Rate Book-Entry
Notes (including interest for
partial periods) will be calculated
on the basis of a year of twelve
thirty-day months. (Examples of
interest calculations are as
follows: The period from August 15,
1991, to February 15, 1992, equals
6 months and 0 days, or 180 days;
the interest payable equals 180/360
times the annual rate of interest
times the principal amount of the
Note. The period from September 17,
1991, to February 15, 1992, equals
4 months and 28 days, or 148 days;
the interest payable equals 148/360
times the annual rate of interest
times the principal amount of the
Note.)
Floating Rate Book-Entry Notes.
Interest rates on Floating Rate
Book-Entry Notes will be determined
as set forth in the form of
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Notes. Interest on Floating Rate
Book-Entry Notes will be calculated
on the basis of actual days elapsed
and a year of 360 days except that
in the-case of Treasury Rate Notes,
interest will be calculated on the
basis of the actual number of days
in the year.
Payments of
Principal and
Interest: Payment of Interest Only. Promptly
after each Record Date, CMB will
deliver to the Company, the Trustee
and DTC a written notice specifying
by CUSIP number the amount of
interest to be paid on each Global
Security (other than an Amortizing
Note) on the following interest
payment date (other than an
interest payment date coinciding
with maturity) and the total of
such amounts. DTC will confirm the
amount payable on each Global
Security on such Interest Payment
Date by reference to the
appropriate (daily or weekly) bond
reports published by Standard &
Poor's Corporation. In the case of
Amortizing Notes, CMB will provide
separate written notice to the
Company and to DTC of the principal
and interest due on such security
prior to each Interest Payment Date
at the time and in the manner set
forth in the Letter of
Representations. The Company will
pay to the Paying Agent, the total
amount of interest due on such
Interest Payment Date (and, in the
case of an Amortizing Note,
principal and interest) (other than
at maturity), and the Paying Agent
will pay such amount to DTC at the
times and in the manner set forth
below under "Manner of Payment".
Payments at Maturity and on
Redemption or Repayment. On or
about the first Business Day of
each month, the Paying Agent will
deliver to the Company, the Trustee
and DTC a written list of principal
and interest to be paid on each
Global Security (other than an
Amortizing Note) maturing either at
stated maturity or on a redemption
or repayment date in the following
month. The Paying
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Agent, the Company and DTC will
confirm the amounts of such
principal and interest payments
with respect to each such Global
Security on or about the fifth
Business Day preceding the maturity
of such Global Security. In the
case of Amortizing Notes, the
Paying Agent will provide separate
written notice of the principal and
interest due on such date to the
Company and to DTC prior to the
date of maturity and any redemption
or repayment date, as the case may
be, at the times and in the manner
set forth in the Letter of
Representations. The Company will
pay to the Paying Agent, the
principal amount of such Global
Security, together with interest
due at such maturity. The Paying
Agent will pay such amounts to DTC
at the times and in the manner set
forth below under "Manner of
Payment". if any stated maturity of
a Global Security representing
Book-Entry Notes is not a Business
Day, the payment due on such day
shall be made on the next
succeeding Business Day and no
interest shall accrue on such
payment for the period from-and
after such maturity. Promptly after
payment to DTC of the principal and
interest due at the maturity of
such Global Security, the Paying
Agent shall deliver such Global
Security to the Trustee which shall
cancel such Global Security in
accordance with the terms of the
Indenture and so advise the
Company. On the first Business Day
of each month, the Paying Agent
will deliver to the Trustee a
written statement indicating the
total principal amount of
outstanding Global Securities as of
the preceding Business Day.
Manner of Payment. The total amount
of any principal and interest due on
Global Securities on any interest
payment date or at maturity shall
be paid by the Company to the
Paying Agent in immediately
available funds as of 9:30 A.M.
(New York City time) on such
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date. The Company will make such
payment on such Global Securities
by wire transfer to the Paying
Agent or by instructing the Paying
Agent to withdraw funds from an
account maintained by the Company
as Paying Agent. The Company will
confirm such instructions in
writing to Paying Agent. Prior to
10 A.M. (New York City time) on
each maturity date, redemption or
repayment, or as soon as possible
thereafter, following receipt of
such funds from the Company, the
Paying Agent will pay by separate
wire transfer (using Fed-wire
message entry instructions in a
form previously specified by DTC)
to an account at the Federal
Reserve Bank of New York previously
specified by DTC, in funds
available for immediate use by DTC,
each payment of principal (together
with interest thereon) due on a
Global Security on such date. On
each interest payment date (other
than at maturity), interest
payments and, in the case of
Amortizing Notes, interest and
principal payments shall be made to
DTC in funds available for
immediate use by DTC, in accordance
with existing arrangements between
the Paying Agent and DTC. On each
such date, DTC will pay, in
accordance with its SDFS operating
procedures then in effect, such
amounts in funds available for
immediate use to the respective
Participants in whose names the
Book-Entry Notes represented by
such Global Securities are recorded
in the book-entry system maintained
by DTC. Neither the Company (as
issuer or as Paying Agent), nor the
Paying Agent shall have any direct
responsibility or liability for the
payment by DTC to such Participants
of the principal or interest on the
Book-Entry Notes.
Withholding Taxes. The amount of
any taxes required under applicable
law to be withheld from any
interest payment on a Book-Entry
Note will be determined and
withheld by the
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Participant, indirect participant
in DTC or other person responsible
for forwarding payments and
materials directly to the
beneficial owner of such Note.
Settlement: The receipt by the Company of
immediately available funds in
payment for a Book-Entry Note and
the authentication and issuance of
the Global Security representing
such Note shall constitute
"Settlement" with respect to such
Note. All orders accepted by the
Company will be settled on the
third Business Day pursuant to the
timetable for Settlement set forth
below unless the Company and the
purchaser agree to Settlement on
another day which shall be no
earlier than the next Business Day
following the date of sale.
Settlement
Procedures: Settlement Procedures with regard
to each Book-Entry Note sold by the
Company through an Agent, as agent,
shall be as follows:
(a) Such Agent will advise the Company
by telephone (and will confirm in
writing on the same date) of the
following settlement information:
(i) Principal amount.
(ii) Stated maturity.
(iii) In the case of a Fixed Rate
Book-Entry Note, the interest
rate and if such Note is an
Amortizing Note, the interest
rate and Amortization
Schedule, or in the case of
Floating Rate Book-Entry
Note, the initial interest
rate (if known at such time),
base rate, index maturity,
interest reset period,
interest reset dates, spread
or spread multiplier (if
any); minimum interest rate
(if any) and maximum interest
rate (if any), interest
payment
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period and interest payment
dates and any other
information necessary to
complete such Note.
(iv) Redemption provisions, if
any.
(v) Repayment provisions, if any.
(vi) Settlement date.
(vii) Sale Date.
(viii) Price.
(ix) Agent's Commission,
determined as provided in
Section I(a) of the
Distribution Agreement
between the Company and such
Agent.
(x) Whether the Note is an
original issue discount note,
and if it is an original
issue discount note, the
total amount of original
issue discount ("OID"), the
yield to maturity and the
initial accrual period OID.
(xi) Net Proceeds to the Company.
(b) The Company will assign a CUSIP
number to the Global Security
representing such Note and then
advise CMB by telephone or
electronic transmission (confirmed
in writing at any time on the same
date) of the information set forth
in settlement Procedure "A" above,
such CUSIP number and the name of
such Agent. The Company will also
notify the Agent of such CUSIP
number by telephone as soon as
practicable. Each such
communication by the Company shall
constitute a representation and
warranty by the Company to CMB and
each Agent that (i) such Note is
then, and at the time of issuance
and sale thereof will be, duly
authorized for issuance and sale by
the Company, (ii) such
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Note, and the Global Security
representing such Note, will
conform with the terms of the
Indenture pursuant to which such
Note and Global Security are issued
and (iii) upon authentication and
delivery of such Global Security,
the aggregate initial offering
price of all securities sold
pursuant to the Registration
Statement (as defined in the
Distribution Agreement) (including
the Notes) will not exceed $4
billion or the equivalent thereof
in one or more currencies (except
for securities represented by,
authenticated and delivered in
exchange for or in lieu of
securities pursuant to Sections
2.08 and 2.09 of the Indenture).
(c) CMB will enter a pending deposit
message through DTC's Participant
Terminal System, providing the
following settlement information to
DTC, such Agent and Standard &
Poor's Corporation:
(i) The information set forth in
Settlement Procedure "A".
(ii) Identification as a Fixed
Rate Book-Entry Note and
whether such Note is an
Amortizing Note (by an
appropriate notation in the
comments field of DTC's
Participant Terminal System)
or a Floating Rate Book-Entry
Note.
(iii) Initial interest payment date
for such Note, number of days
by which such date succeeds
the related Record Date
(which, in the case of
Floating Rate Notes which
reset daily or weekly, shall
for DTC purposes be the date
five calendar days
immediately preceding the
applicable Interest Payment
Date and, in the case of all
other Notes, shall he the
Record Date as defined in the
Note), and, if known,
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the amount of interest
payable on such Interest
Payment Date.
(iv) The interest payment period.
(v) CUSIP number of the Global
Security representing such
Note.
(vi) The Participant account
numbers maintained by DTC on
behalf of the Agents and CMB.
(d) CMB will complete such Note, stamp
the appropriate legend as
instructed by the Company in
accordance with DTC procedures, if
not already set forth thereon, and
authenticate the Global Security
representing such Note.
(e) DTC will credit such Note to CMB's
participant account at DTC.
(f) CMB will enter an SDFS deliver
order through DTC's
ParticipantTerminal System
instructing DTC to (i) debit such
Note to CMB's participant account
and credit such Note to such
Agent's participant account and
(ii) debit such Agent's settlement
account and credit CMB's settlement
account for an amount equal to the
price of such Note less such
Agent's commission. The entry of
such a deliver order shall
constitute a representation and
warranty by CMB to DTC that (a) the
Global Security representing such
Book-Entry Note has been issued and
authenticated and (b) CMB is
holding such Global Security
pursuant to the Medium Term Note
Certificate Agreement between CMB
and DTC.
(g) Such Agent will enter an SDFS
deliver order through DTC's
Participant Terminal System
instructing DTC (i) to debit such
Note to such Agent's participant
account and credit such
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Note to the participant accounts of
the Participants with respect to
such Note and (ii) to debit the
settlement account of such
Participant and credit the
settlement account of such Agent
for an amount equal to the price of
such Note.
(h) Transfers of funds in accordance
with SDFS deliver orders described
in Settlement Procedures "F" and
"G" will be settled in accordance
with SDFS operating procedures in
effect on the settlement date.
(i) CMB, upon confirming receipt of
such funds, will credit or wire
transfer to the account of the
Company maintained at The Chase
Manhattan Bank, New York, New York,
in funds available for immediate
use in the amount transferred to
CMB in accordance with Settlement
Procedure
(j) The Agent will confirm the purchase
of such Note to the purchaser
either by transmitting to the
Participants with respect to such
Note a confirmation order or orders
through DTC's institutional
delivery system or by mailing a
written confirmation to such
purchaser.
Settlement For orders of Book-Entry Notes
Procedures solicited by an Agent, as agent,
Timetable: and accepted by the Company for
Settlement on the first Business
Day after the sale date, Settlement
Procedures "A" through "J" set
forth above shall be completed as
soon as possible but no later than
the respective times (New York City
time) set forth below:
Settlement
Procedure: Time
A 11:00 A.M. on the sale date
B 12:00 Noon on the sale date
c 2:00 P.M. on the sale date
D 9:00 A.M. on settlement date
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E 10:00 A.M. on settlement date
F-G 2:00 P.M. on settlement date
H 4:45 P.M. on settlement date
I-J 5:00 P.M. on settlement date
If a sale is to be settled more than one
Business Day after the sale date,
Settlement Procedures "A", "B" and "C"
shall be completed as soon as
practicable but no later than 11:00
A.M., 12 Noon and 2:00 P.M.,
respectively on the first Business Day
after the sale date. If the initial
interest rate for a Floating Rate
Book-Entry Note has not been determined
at the time that Settlement Procedure
"A" is completed, Settlement Procedures
"B" and "C" shall be completed as soon
as such rate has been determined but no
later than 12 Noon and 2:00 P.M.,
respectively, on the second Business day
following the trade date. Settlement
Procedure "H" is subject to extension in
accordance with any extension of Fedwire
closing deadlines and in the other
events specified in the SDFS operating
procedures in effect on the settlement
date.
If Settlement of a Book-Entry Note is
rescheduled or cancelled, by no later
than 2:00 P.M. on the Business Day
preceding the settlement date, the
Company will instruct CMB to deliver to
DTC, through DTC's Participant Terminal
System, a cancellation message to such
effect. (CMB will enter such message by
no later than 4:00 P.M. on such Business
Day.)
Failure to
Settle: If CMB fails to enter an SDFS deliver
order with respect to a Book-Entry Note
pursuant to Settlement Procedure "F",
CMB may deliver to DTC, through DTC's
Participant Terminal System, as soon as
practicable a withdrawal message
instructing DTC to debit such Note to
CMB's participant account. DTC will
process the withdrawal message, provided
that CMB's participant account contains
a principal amount of the Global
Security representing such Note that is
at least equal to the principal amount
to be debited. If a withdrawal message
is processed with respect to all the
Book-Entry Notes represented by a Global
Security, the Trustee will mark such
Global
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Security "cancelled" and make
appropriate entries in the Trustee's
records.
The CUSIP number assigned to such Global
Security shall, in accordance with CUSIP
Service Bureau procedures, be cancelled
and not immediately reassigned. If a
withdrawal message is processed with
respect to less than the entire
principal amount of a Global Security,
CMB will exchange such Global Security
for two Global Securities, one of which
shall represent the principal amount of
such Global Security to which the
withdrawal message relates and shall be
cancelled immediately after issuance and
the other of which shall represent the
remaining principal amount previously
represented by the surrendered Global
Security and shall bear the CUSIP number
of the surrendered Global Security.
If the purchase price for any Book-Entry
Note is not timely paid to the
Participants with respect to such Note
by the beneficial purchaser thereof (or
a person, including an indirect
participant in DTC, acting on behalf of
such purchaser), such Participants and,
in turn, the Agent for such Note may
enter SDFS deliver orders through DTC's
Participant Terminal System reversing
the orders entered pursuant to
Settlement Procedures "F" and "G",
respectively. Thereafter, the Company
will return to CMB the funds transferred
in accordance with Settlement Procedure
"I" and will instruct CMB to deliver the
withdrawal message and take the related
actions described in the preceding
paragraph.
Notwithstanding the foregoing, upon any
failure to settle with respect to a
Book-Entry Note, DTC may take any
actions in accordance with its SDFS
operating procedures then in effect. In
the event of a failure to settle with
respect to less than the entire
principal amount of a Global Security,
the Trustee will provide, in accordance
with Settlement Procedures "D", for the
authentication and issuance of a Global
Security representing the remaining
principal amount to have been
represented by such
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Global Security and will make
appropriate entries in its records.
PART IX.: Administrative Procedures For Certificated Notes
Currencies: Certificated Notes will be denominated
in U.S. dollars or in such other
currency or currency unit as specified
in the Prospectus (the "Specified
Currency").
Denominations: The denomination of any Certificated
Note will be an integral a multiple of
$1,000 or 1,000 units of any Specified
Currency other than U.S. dollars.
Registration: Certificated Notes will be issued in
fully registered form.
Interest Payments: Each Certificated Note which is a Fixed
Rate Note, will bear interest or, in the
case of Certificated Amortizing Notes,
principal and interest, from the date of
issue at the annual rate stated on the
face thereof, payable unless otherwise
specified in the applicable Pricing
Supplement semi-annually on February 15
and August 15 of each year, and at
maturity or, in the case of Certificated
Amortizing Notes, unless otherwise
specified in the applicable Pricing
Supplement, semi-annually on February 15
and August 15 of each year, or quarterly
on February 15, May 15, August 15 and
November 15 of each year and at maturity
subject to certain exceptions, and each
Certificated Note which is a Floating
Rate Note will bear interest as
determined in the manner set forth on
the face thereof, payable on the date or
dates set forth on the face thereof and
will have the record dates as set forth
in the Note.
Interest or, in the case of a
Certificated Amortizing Note, principal
and interest, will be payable to the
person in whose name the Certificated
Note is registered at the close of
business on the record date next
preceding the interest payment date;
provided, however, that (i) interest
payable at maturity (whether or not the
maturity date is an interest
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payment date) will be payable to the
person to whom principal shall be
payable, and (ii) the first payment of
interest on any Certificated Note
originally issued between a record date
and an interest payment date will be
made on the interest payment date
following the next succeeding Record
Date to the registered holder on such
next succeeding Record Date of such
Certificated Note.
The date of issue of each Certificated
Note will be the date of its
authentication, as provided in the
Indenture. The date of authentication of
each Certificated Note will be the
settlement date. Unless otherwise
specified in the applicable Pricing
Supplement, interest (including payments
for partial periods) on Fixed Rate
Certificated Notes will be calculated on
the basis of a 360-day year of twelve
30-day months and interest on Floating
Rate Certificated Notes will be
determined by the Company and the
Purchaser thereof in accordance with the
provisions of the Prospectus. Except as
otherwise set forth in the Prospectus,
all interest payments and in the case of
a Certificated Amortizing Note,
principal and interest payments
(excluding interest payments made on a
date of maturity) will be made by check
and mailed to the person entitled
thereto as provided above.
On the fifth business day immediately
preceding each interest payment date,
the Paying Agent will advise the Company
of the aggregate amount of interest to
be paid on the Certificated Notes (other
than Certificated Amortizing Notes)
theretofore issued on such interest
payment date and the currency or
currency units in which such interest
payments are to be made. The Paying
Agent will provide separate written
notice to the Company specifying the
aggregate amount of principal and
interest to be paid on the Certificated
Amortizing Notes on the following
interest payment date (other than at
maturity or earlier redemption or
repayment). The Paying Agent will
provide monthly to the Company's
Treasury Department a list of the
principal and interest to the extent
ascertainable to be paid on the
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Notes (including Amortizing Notes)
maturing in the next succeeding month.
Settlement: The receipt of immediately available
funds by the Company in payment for a
Certificated Note and the authentication
and issuance of such Certificated Note
shall, with respect to such Certificated
Note, constitute "Settlement". All
orders accepted by the Company will be
settled on the next business day
pursuant to the timetable for Settlement
set forth below unless the Company and
the purchaser agree to Settlement on a
later date; provided, however, that in
the case of a delayed Settlement the
Company will notify CMB at least 24
hours prior to the time of Settlement.
Settlement Procedures: Settlement Procedures with regard to
each Certificated Note sold by an Agent
as agent shall be as follows:
(a) Such Agent will advise the Company
by telephone or facsimile of the
following settlement information:
(i) Exact name in which
Certificated Note is to be
registered.
(ii) Exact address of the
registered owner and address
for payment of principal and
interest.
(iii) Taxpayer identification
number of the registered
owner.
(iv) Principal amount of the
Certificated Note.
(v) Currency or currency unit.
(vi) Interest rate and, in the
case of a Fixed Rate
Certificated Note, whether
such Note is an Amortizing
Note, and if so, the
Amortization Schedule.
(vii) Base Rate.
(viii) Index maturity.
(ix) Initial interest rate.
(x) Interest Reset Period.
(xi) Interest Reset Dates.
(xii) Interest Payment Periods.
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(xiii) Interest Payment Dates.
(xiv) Redemption Provisions, if
any.
(xv) Repayment Provisions, if any.
(xvi) Whether the Note is an
original issue discount note
and if it is an original
issue note, the total amount
of original issue discount
("OID"), the yield to
maturity and the initial
accrual period OID.
(xvii) Maximum interest rate.
(xviii) Minimum interest rate.
(xix) Spread or spread multiplier.
(xx) Date of Certificated Note.
(xxi) Settlement date.
(xxii) Maturity date.
(xxiii) Agent's commission.
(xxiv) Net proceeds to the Company.
(xxv) Minimum denominations
including the U.S. dollar
equivalent thereof if
denominated in other than
U.S. dollars.
(xxvi) Calculation Agent.
(xxvii) All other items to be
specified in any Note.
(b) The Company will provide CMB with
the information listed in A (which,
if provided orally, will be
promptly confirmed in writing).
(c) CMB will complete and distribute
the preprinted 4-ply Certificated
Note packet containing the
following documents in forms
approved by the Company, the Agents
and the Trustee:
(i) Note with customer
confirmation.
(ii) Stub 1 - For Agent.
(iii) Stub 2 - For Company.
(iv) Stub 3 - For CMB.
(d) CMB will deliver the Certificated
Note (with the confirmation) and
stub 1 to the Agent or the Agent's
agent.
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(e) The Agent will make payment to the
Company in immediately available
funds equal to the principal amount
of the Certificated Note less any
applicable commission or discount.
(f) The Agent or the Agent's agent will
deliver the Certificated Note (with
confirmation) to the customer
against payment in immediately
available funds.
(g) The Agent or the Agent's agent will
obtain the acknowledgment of
receipt of the Certificated Note by
the customer through completion of
stub 1.
(h) CMB will send by first class mail
stub 2 to the Company.
Periodically, CMB will also send to
the Company and the Trustee a
statement setting forth the
principal amount of the
Certificated Notes outstanding as
of that date after giving effect to
such transaction and all other
orders of which the Company has
advised CMB but which have not yet
been settled.
Settlement For offers accepted by the Company,
Procedures Settlement Procedures "A" through "H"
Timetable: set forth above shall be completed on or
before the respective times to the
extent possible (New York City time) set
forth below:
Settlement Procedures: Time
A (1-3) 11:00 A.M. on day prior to settlement.
5:00 P.M. on day of order
A (4-20) 1:00 P.M. on day prior to settlement.
B 12:00 P.M. on day of settlement
C-D 3:00 P.M. on day of settlement
E-F 4:30 P.M. on day of settlement
G-H
Fails: For orders received by an Agent, in the
event that a purchaser shall fail to
accept delivery of and make
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payment for a Certificated Note, such
Agent will notify CMB, and the Company,
by telephone, confirmed in writing, and
return the Certificated Note to CMB.
Upon receipt of the Certificated Note by
CMB, the Company will immediately credit
an account designated by such Agent in
an amount of immediately available funds
equal to the amount previously credited
in respect of the Note. Such credits
will be made on the settlement date, if
possible, and in any event not later
than the business day following the
settlement date. The Agent shall deliver
such Certificated Note to CMB as soon as
practicable. If such fail shall have
occurred for any reason other than the
failure of the Agent to provide the
necessary information to the Company as
described above for Settlement or to
provide a confirmation to the purchaser
within a reasonable period of time as
described above, the Company will
reimburse the Agent on an equitable
basis for its loss of the use of funds
during the period when such funds were
credited to the account of the Company.
Immediately upon receipt of the
Certificated Note in respect of which
the fail occurred, CMB will make
appropriate entries in their records and
CMB will deliver such certificated notes
to the Trustee for cancellation in
accordance with the Indenture.
Maturity: At maturity, the principal amount of
each Certificated Note together with any
accrued, but unpaid, interest will be
payable in immediately available funds
provided that the Paying Agent receives
the Certificated Note, and appropriate
information in time to make payments in
such funds in accordance with its normal
procedures. Certificated Notes presented
to the Paying Agent or the Trustee will
be cancelled and disposed of by the
Trustee.
Manner of Payment: The total amount of any principal and
interest due on Certificated Notes on
any interest payment date or at maturity
shall be paid by the Company to the
Paying Agent in immediately available
funds as of 9:30 A.M. (New York City
time) on such date. The Company will
make such payment on such
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Certificated Notes by wire transfer to
the Paying Agent or by instructing the
Paying Agent to withdraw funds from an
account maintained by the Company at the
Paying Agent. The Company will confirm
such instructions in writing to the
Paying Agent.
Authenticity
of Signatures: The Agents will have no obligation or
liability to the Company or the Trustee
in respect of the authenticity of the
signature of any officer, employee or
agent of the Company or the Trustee on
any Certificated Note.
Calculation of Interest: The provisions set forth under
"Calculation of Interest" in Part II of
these Administrative Procedures shall
apply mutatis mutandi with respect
to Certificated Notes.
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EXHIBIT 4A
AT&T CAPITAL CORPORATION,
NEWCOURT CREDIT GROUP INC.
AND
THE CHASE MANHATTAN BANK,
AS TRUSTEE
----------------
INDENTURE
Dated as of April 1, 1998
----------------
Securities
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TABLE OF CONTENTS*
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PARTIES...........................................................................................................1
RECITALS OF THE COMPANY:..........................................................................................1
Purpose of Indenture.....................................................................................1
Compliance with Legal Requirements.......................................................................1
Purpose of and Consideration for Indenture...............................................................1
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE.
SECTION 1.01. Definitions.........................................................................................1
Accounts Receivable......................................................................................1
Affiliate................................................................................................1
Agent....................................................................................................1
Authenticated............................................................................................2
Authorized Newspaper.....................................................................................2
Board of Directors.......................................................................................2
Board Resolution.........................................................................................2
Certificated Security....................................................................................2
Company..................................................................................................2
Company Order............................................................................................2
Consolidated Net Tangible Assets.........................................................................2
Default..................................................................................................3
Depositary...............................................................................................3
Global Security..........................................................................................3
Guarantee................................................................................................3
Guarantor................................................................................................3
Holder or Securityholder.................................................................................3
Indenture................................................................................................3
Internal Procedures......................................................................................3
Newcourt.................................................................................................4
Non-Recourse Debt........................................................................................4
Officer..................................................................................................4
Officers' Certificate....................................................................................4
Opinion of Counsel.......................................................................................4
Original Issue Discount Security.........................................................................4
Principal................................................................................................4
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*The Table of Contents is not part of the Indenture.
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Registered Security......................................................................................4
Responsible Officer......................................................................................4
Restricted Subsidiary....................................................................................5
SEC......................................................................................................5
Series...................................................................................................5
Securities...............................................................................................5
Statement of Account.....................................................................................5
Subsidiary...............................................................................................5
TIA......................................................................................................5
Trust Indenture Act of 1939..............................................................................5
Trustee..................................................................................................5
Uncertificated Security or Uncertificated Securities.....................................................5
Unregistered Security....................................................................................5
U.S. Government Obligations..............................................................................6
U.S. Person..............................................................................................6
Yield to Maturity........................................................................................6
SECTION 1.02. Other Definitions......................................................................6
SECTION 1.03. Incorporation by Reference of Trust Indenture Act......................................6
SECTION 1.04. Rules of Construction..................................................................7
ARTICLE 2
THE SECURITIES.
SECTION 2.01. Issuable in Series.....................................................................7
SECTION 2.02. Establishment of Terms and Form of Series of Securities................................8
SECTION 2.03. Execution, Authentication and Delivery................................................11
SECTION 2.04. Registrar and Paying Agent............................................................13
SECTION 2.05. Payment on Securities.................................................................14
SECTION 2.06. Paying Agent to Hold Money in Trust...................................................15
SECTION 2.07. Securityholder Lists; Ownership of Securities.........................................15
SECTION 2.08. Transfer and Exchange.................................................................16
SECTION 2.09. Replacement Securities................................................................17
SECTION 2.10. Outstanding Securities................................................................17
SECTION 2.11. Temporary Securities; Global Securities...............................................18
SECTION 2.12. Cancellation..........................................................................20
SECTION 2.13. Defaulted Interest....................................................................20
ARTICLE 3
REDEMPTION.
SECTION 3.01. Notice to Trustee.....................................................................21
SECTION 3.02. Selection of Securities to be Redeemed................................................21
SECTION 3.03. Notice of Redemption..................................................................21
SECTION 3.04. Effect of Notice of Redemption........................................................22
SECTION 3.05. Deposit of Redemption Price...........................................................23
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SECTION 3.06. Mandatory and Optional Sinking Funds..................................................23
ARTICLE 4
COVENANTS
SECTION 4.01. Payment of Securities.................................................................25
SECTION 4.02. Reports by the Company and the Guarantor..............................................26
SECTION 4.03. Limitations on Incurrence of Secured Debt.............................................27
SECTION 4.04. Statement as to Compliance; Notice of Certain Events of Default.......................29
ARTICLE 5
CONSOLIDATION, MERGER, SALE OR CONVEYANCE.
SECTION 5.01. Consolidation or Merger, etc., on Certain Terms.......................................29
SECTION 5.02. Successor Corporation Substituted.....................................................30
SECTION 5.03. Opinion of Counsel to Trustee.........................................................30
ARTICLE 6
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT.
SECTION 6.01. Events of Default; Acceleration of Maturity; Waiver of Default........................31
SECTION 6.02. Collection of Indebtedness by Trustee; Trustee May Prove Debt.........................33
SECTION 6.03. Application of Proceeds...............................................................35
SECTION 6.04. Limitation on Suits by Securityholders................................................36
SECTION 6.05. Powers and Remedies Cumulative; Delay or Omission, Not Waiver of
Default...............................................................................37
SECTION 6.06. Control by Securityholders; Waiver of Defaults........................................37
SECTION 6.07. Right of Court to Require Filing of Undertaking to Pay Costs..........................38
ARTICLE 7
TRUSTEE
SECTION 7.01. Duties of Trustee.....................................................................38
SECTION 7.02. Rights of Trustee.....................................................................39
SECTION 7.03. Individual Rights of Trustee..........................................................40
SECTION 7.04. Trustee Disclaimer....................................................................40
SECTION 7.05. Notice of Default.....................................................................40
SECTION 7.06. Reports by Trustee to Holders.........................................................41
SECTION 7.07. Compensation and Indemnity............................................................41
SECTION 7.08. Replacement of Trustee................................................................42
SECTION 7.09. Successor Trustee, Agents by Merger, etc..............................................43
SECTION 7.10. Eligibility; Disqualification.........................................................43
SECTION 7.11. Preferential Collection of Claims Against Company.....................................44
SECTION 7.12. Authenticating Agent..................................................................44
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ARTICLE 8
SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE;
UNCLAIMED MONIES.
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SECTION 8.01. Satisfaction and Discharge of Indenture...............................................47
SECTION 8.02. Defeasance upon Deposit of Moneys or U.S. Government Obligations......................48
SECTION 8.03. Application of Moneys Deposited.......................................................49
SECTION 8.04. Repayment of Moneys Held..............................................................50
SECTION 8.05. Return of Moneys Unclaimed for Two Years; Return of Additional
Moneys and U.S. Government Obligations................................................50
SECTION 8.06. Indemnity for Government Obligations..................................................51
ARTICLE 9
AMENDMENTS AND WAIVERS.
SECTION 9.01. Without Consent of Holders............................................................51
SECTION 9.02. With Consent of Holders...............................................................51
SECTION 9.03. Compliance with Trust Indenture Act...................................................53
SECTION 9.04. Revocation and Effect of Consents.....................................................53
SECTION 9.05. Notation on or Exchange of Securities.................................................53
SECTION 9.06. Trustee Protected.....................................................................53
ARTICLE 10
MISCELLANEOUS.
SECTION 10.01. Trust Indenture Act Controls..........................................................53
SECTION 10.02. Notices...............................................................................54
SECTION 10.03. Communication by Holders with Other Holders...........................................55
SECTION 10.04. Certificate and Opinion as to Conditions Precedent....................................55
SECTION 10.05. Statements Required in Certificate or Opinion.........................................55
SECTION 10.06. Legal Holidays........................................................................56
SECTION 10.07. Governing Law.........................................................................56
SECTION 10.08. No Adverse Interpretation of Other Agreements.........................................56
SECTION 10.09. No Recourse Against Others............................................................56
SECTION 10.10. When Treasury Securities Disregarded..................................................57
SECTION 10.11. Rules by Trustee, Paying Agent, Registrar, Record Dates...............................57
SECTION 10.12. Execution in Counterparts.............................................................57
SECTION 10.13. Securities in a Foreign Currency......................................................57
SECTION 10.14. Judgment Currency.....................................................................58
SIGNATURES AND SEALS
ACKNOWLEDGEMENTS
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CROSS-REFERENCE TABLE**
Trust Indenture
Act of 1939 Indenture
Section Section
- ------- -------
310(a).................................................................7.10
310(b).................................................................7.10
310(c)..................................................................N/A
311(a).................................................................7.11
311(b).................................................................7.11
311(c)..................................................................N/A
312(a).................................................................2.07
312(b)................................................................10.03
312(c)................................................................10.03
313(a).................................................................7.06
313(b).................................................................7.06
313(c).................................................................4.02
314(a)...........................................................4.02, 4.04
314(b)..................................................................N/A
314(c)................................................................10.04
314(d)..................................................................N/A
314(e)................................................................10.05
314(f)..................................................................N/A
315(a).................................................................7.01
315(b).................................................................7.05
315(c).................................................................7.01
315(d).................................................................7.01
315(e).................................................................6.07
316(a)...........................................................6.06, 9.02
316(b).................................................................9.02
316(c)................................................................10.11
317(a).................................................................6.02
317(b).................................................................2.06
318(a)................................................................10.01
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**The Cross-Reference Table is not part of the Indenture.
v
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THIS INDENTURE, dated as of April 1, 1998, is entered into by and among
AT&T Capital Corporation, a corporation duly organized and validly existing
under the laws of the State of Delaware (together with its successors and
assigns, the "Company"), Newcourt Credit Group Inc., a corporation duly
organized and validly existing under the laws of Ontario, Canada (together with
its successors and assigns, the "Guarantor") and The Chase Manhattan Bank, a
corporation duly organized and validly existing under the laws of the State of
New York (together with its successors and assigns, the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness ("Securities") as herein
provided.
The Guarantor has duly authorized the execution and delivery of this
Indenture to provide for its Guarantee relating the Securities.
All things necessary to make this Indenture a valid agreement of the
Company and the Guarantor, in accordance with its terms, have been done.
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed as follows for the
equal and ratable benefit of the Holders of the Securities:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE.
SECTION 1.01. Definitions.
"Accounts Receivable" mean (i) any accounts receivable (whether or not
earned by performance), chattel paper, instruments, documents, general
intangibles, trade acceptances, any other rights to receive installment, rental
or other payments for, or relating to amounts due or to become due on account of
equipment or goods sold or leased or to be sold or leased or services rendered
or to be rendered or funds advanced or loaned or to be advanced or loaned and
other rights to payment of any kind, (ii) any proceeds of any of the foregoing
and (iii) any interest in any property or asset of any kind (whether of the
obligor under such Accounts Receivable or any other person) securing the payment
of any item listed in clause (i) hereof.
"Affiliate" means any person directly or indirectly controlling or
controlled by, or under direct or indirect common control with, the Company.
"Agent" means any Paying Agent or Registrar.
1
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"Authenticated" means (a) with respect to a Certificated Security, one
which has been duly authenticated by manual signature of an authorized officer
of the Trustee or an authenticating agent; and (b) with respect to an
Uncertificated Security, one in respect of which the Trustee or authenticating
agent has completed all Internal Procedures. "Authenticate," "Authenticating,"
and "Authentication" have the appropriate correlative meanings.
"Authorized Newspaper" means a newspaper of general circulation, in the
official language of the country of publication or in the English language,
customarily published on each business day. Whenever successive weekly
publications in an Authorized Newspaper are required hereunder they may be made
(unless otherwise expressly provided herein) on the same or different days of
the week and in the same or different Authorized Newspapers.
"Board of Directors" means the Board of Directors of the Company or any
duly authorized committee thereof.
"Board Resolution" means a copy of a resolution of the Board of Directors,
certified by the Secretary or an Assistant Secretary of the Company to have been
adopted by the Board of Directors and to be in full force and effect on the date
of the certificate, and delivered to the Trustee.
"Certificated Security" or "Certificated Securities" means a Registered
Security, Registered Securities, Unregistered Security or Unregistered
Securities of any series evidenced by a writing or writings substantially in the
form established as provided in Section 2.02(a) hereof.
"Company" means AT&T Capital Corporation until a successor replaces it
subject to the provisions of Article 5 and thereafter means the successor.
"Company Order" means an order signed by two Officers or by any Officer and
an Assistant Treasurer or an Assistant Secretary of the Company.
"Consolidated Net Tangible Assets" means, at the date of any determination,
the total assets appearing on the consolidated balance sheet of the Guarantor as
at the end of the most recent fiscal quarter of the Guarantor for which such
balance sheet is available, prepared in accordance with generally accepted
accounting principles, less (a) all current liabilities (obligations whose
liquidity is reasonably expected to occur within twelve months), (b) investments
in and advances to Subsidiaries other than Restricted Subsidiaries or other
entities accounted for on the equity method of accounting, and (c) Intangible
Assets. "Intangible Assets" means the value (net of any applicable reserves), as
shown on or reflected in Newcourt's consolidated balance sheet, of : (i) all
trade names, trademarks, licenses, patents, copyrights and goodwill; (ii)
organization and development costs; (iii) deferred charges (other than prepaid
items such as insurance, taxes, interest, commissions, rents and similar items
and tangible assets being amortized); and (iv) unamortized debt discount and
expense, less unamortized premium.
2
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"Default" means any event which is, or after notice or passage of time or
both would be, an Event of Default.
"Depositary" means, (i) with respect to Global Securities of any Series
which are offered for sale solely outside of the United States, a common
depositary for Morgan Guaranty Trust Company of New York, Brussels office,
operator of the Euroclear System, and Centrale de Livraison de Valeurs
Mobilieres, S.A., and (ii) with respect to Global Securities of any Series which
are offered for sale in the United States, a clearing agency registered under
the Securities Exchange Act of 1934, or any successor thereto, which shall in
either case be designated by the Company pursuant to either Section 2.02 or
2.11.
"Global Security" means, with respect to any Series of Securities issued
hereunder, a Security, which may be a Registered or an Unregistered Security,
executed by the Company and authenticated and delivered by the Trustee to the
Depositary or pursuant to the Depositary's instruction, all in accordance with
this Indenture including Section 2.11 and pursuant to a Company Order, and which
shall represent, and shall be denominated in an amount equal to the aggregate
principal amount of, all of the outstanding Securities of such Series or a
portion thereof, in either case having the same terms, including, without
limitation, the same issue date, date or dates on which principal is due,
interest rate or method of determining interest, and, in the case of Original
Issue Discount Securities, which have the same issue price. "Global Security"
shall include any temporary global Security and any permanent global Security.
"Guarantee" means the agreement of the Guarantor in the form attached
hereto as Exhibit A.
"Guarantor" means Newcourt or any permitted successor or assign.
"Holder" or "Securityholder" means a bearer of an Unregistered Security or
of a coupon appertaining thereto or a person in whose name a Registered Security
is registered on the Registrar's books.
"Indenture" means this Indenture as amended or supplemented from time to
time and shall include the forms and terms of particular Series of Securities
established as contemplated hereunder.
"Internal Procedures" means in respect of the making of any one or more
changes in or deletions of any one or more entries in the books or records kept
for the purpose of indicating the registered Holder of a Security at any time
(including without limitation, original issuance or registration of any transfer
of ownership) the minimum number of the Trustee's or authenticating agent's
internal procedures customary at such time for the action taken to be complete
under the operating procedures followed at the time by the Trustee or
authenticating agent, as the case may be, it being understood that neither
preparation nor issuance, nor delivery
3
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<PAGE>
to nor receipt by holders of Statements of Account shall constitute part of such
procedures for any purpose of this definition.
"Newcourt" means Newcourt Credit Group Inc., a corporation organized under
the laws of Ontario, Canada.
"Non-Recourse Debt" of the Company or any Restricted Subsidiary means any
indebtedness for borrowed money of the Company or such Restricted Subsidiary, as
the case may be, which is secured by any lien (as such term is used in Section
4.03) on, or payable solely from the income and proceeds of, any property
(including, without limiting the generality of such term, any intangible
assets), shares of stock, other equity interests or debt of the Company or such
Restricted Subsidiary, as the case may be, and which is not a general obligation
of the Company or such Restricted Subsidiary, as the case may be.
"Officer" means the Chairman of the Board of Directors, any Vice-Chairman
of the Board of Directors, the Chief Executive Officer, the President, any
Vice-President (whether or not designated by a number or numbers, or a word or
words added before or after the title Vice-President), the Chief Financial
Officer, the Treasurer, the Secretary or the Controller of the Company or the
Guarantor, as the case may be.
"Officers' Certificate" means a certificate signed by two officers or by
any officer and an Assistant Treasurer or an Assistant Secretary of the Company
or the Guarantor, as the case may be.
"Opinion of Counsel" means a written opinion of legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Guarantor, the Company or the Trustee.
"Original Issue Discount Security" means any Security which provides for an
amount less than the stated principal amount thereof to be due and payable upon
declaration of acceleration of the maturity thereof pursuant to Section 6.01.
"Person" means an individual, partnership, corporation, trust, joint
venture, joint stock company, association, unincorporated organization or other
entity.
"Principal" whenever used with reference to the Securities or any portion
thereof, shall be deemed to include "any premium, if any."
"Registered Security" means any Security issued hereunder and registered as
to principal and interest by the Registrar.
"Responsible Officer" when used with respect to the Trustee, shall mean the
chairman or any vice-chairman of the board of directors, the executive committee
of the board of directors or trust committee, the president, any vice-president,
the cashier, the secretary, the treasurer, any trust officer, any second or
assistant vice-president or any other officer or assistant officer of the
Trustee customarily performing functions similar to those performed by the
persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of his knowledge of and familiarity
with a particular subject.
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"Restricted Subsidiary" means each Subsidiary of the Company organized
under the laws of any State of the United States or the District of Columbia, no
substantial portion of the business of which is carried on outside of the United
States; provided that each Drop-Down Subsidiary (as defined in Section 5.01)
shall be a Restricted Subsidiary.
"SEC" means the Securities and Exchange Commission.
"Series" or "Series of Securities" means a series of Securities.
"Securities" means the debentures, notes or other obligations of the
Company that have been Authenticated under this Indenture.
"Statement of Account" means a statement containing the information
required by law, and such other information as the Company or the Trustee or the
authenticating agent may provide, to be sent to Holders of Uncertificated
Securities at the intervals and other times required law or otherwise determined
to be appropriate by the Company or the Trustee or the authenticating agent.
"Subsidiary" means any corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by any Person and/or by one or
more other Subsidiaries (including the Company). For purposes of such
definition, "voting stock" means stock ordinarily having voting power for the
election of directors, whether at all times or only so long as no senior class
of stock has such voting power by reason of any contingency.
"TIA" means the Trust Indenture Act of 1939.
"Trust Indenture Act of 1939" means (except as herein otherwise expressly
provided) the Trust Indenture Act of 1939 (15 U.S.C. 'SS' 'SS' 7aaa-7bbbb) as
amended, as in force at the date of this Indenture as originally executed.
"Trustee" means the party named as such in this Indenture until a successor
replaces it and thereafter means the successor and if, at any time, there is
more than one Trustee, "Trustee" as used with respect to the Securities of any
Series shall mean the Trustee with respect to that Series.
"Uncertificated Security" or "Uncertificated Securities" means any Security
or Securities which is or are not a Certificated Security or Securities.
"Unregistered Security" means any Security issued hereunder which is not a
Registered Security.
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"U.S. Government Obligations" means:
(i) direct obligations of the United States of America for the payment of
which the full faith and credit of the United States of America is
pledged; or
(ii) obligations of a person controlled or supervised by and acting as an
agency or instrumentality of the United States of America, the payment
of which is unconditionally guaranteed as a full faith and credit
obligation by the United States or America.
"U.S. Person" means a citizen, national or resident of the United States, a
corporation, partnership or other entity created or organized in or under the
laws of the United States or any political subdivision thereof, or an estate or
trust whose income from sources without the United States is includible in gross
income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States.
"Yield to Maturity" means the yield to maturity, calculated by the Company
at the time of issuance of a Series of Securities or at the time of issuance of
the Securities of a Series or portion thereof, or, if applicable, at the most
recent determination of interest on such Series or Securities in accordance with
accepted financial practice.
SECTION 1.02. Other Definitions.
Term Section
---- -------
"Asset Drop-Down" 5.01
"Drop-Down Subsidiary" 5.01
"Event of Default" 6.01
"Legal Holiday" 10.06
"Paying Agent" 2.04
"Registrar" 2.04
SECTION 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
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"indenture securities" means the Securities.
"indenture security holder" means a Holder or a Securityholder.
"indenture to be so qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company and the Guarantor
or any other obligor on the indenture securities.
All other terms used in this Indenture that are defined by the TIA, defined
by TIA reference to another statute or defined by SEC rule under TIA have the
meanings assigned to them therein.
SECTION 1.04. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned to
it in accordance with generally accepted accounting principles, and,
except as may otherwise be herein expressly provided, the term
"generally accepted accounting principles" with respect to any
computation required or permitted hereunder shall mean such accounting
principles as are generally accepted at the date of such computation;
(3) "or" is not exclusive; and
(4) words in the singular include the plural, and words in the plural
include the singular.
ARTICLE 2
THE SECURITIES.
SECTION 2.01. Issuable in Series.
The aggregate principal amount of Securities which may be Authenticated and
delivered under this Indenture is unlimited. The Securities may be issued in one
or more Series.
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There may be Registered Securities and Unregistered Securities within a Series
and the Unregistered Securities may be subject to such restrictions, and contain
such legends, as may be required by United States laws and regulations.
Securities of a Series need not be identical but may differ with respect to
maturity date, interest rate, redemption price, denominations, original issue
date, issue price, and as to other terms. Securities of different Series may
differ in any respect; provided that all Series of Securities shall be equally
and ratably entitled to the benefits of this Indenture.
SECTION 2.02. Establishment of Terms and Form of Series of Securities.
(a) At or prior to the issuance of any Series of Securities, the following
shall be established either by or pursuant to a Board Resolution or by an
indenture supplemental hereto:
(1) the title of the Securities of the Series (which title shall
distinguish the Securities of the Series from the Securities of
any other Series and from any other securities issued by the
Company);
(2) any limit upon the aggregate principal amount of the Securities
of the Series which may be Authenticated and delivered under this
Indenture (which limit shall not pertain to Securities
Authenticated and delivered upon registration of transfer of, or
in exchange for, or in lieu of, other Securities of the Series
pursuant to Section 2.08, 2.09, 2.11, 3.05 or 9.05);
(3) the date or dates on which the principal of the Securities of the
Series is payable, or whether the Securities of the Series are
due upon demand by the Holder;
(4) the rate or rates at which the Securities of the Series shall
bear interest, if any, or the method of calculating such rate or
rates of interest, the date or dates from which such interest
shall accrue, the dates on which such interest shall be payable
and, with respect to Registered Securities, the record date for
the interest payable on any interest payment date;
(5) the place or places where the principal of and interest on
Registered and Unregistered, if any, Securities of the Series
shall be payable;
(6) the period or periods within which, the price or prices at which,
and the terms and conditions upon which, Securities of the Series
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may be redeemed, in whole or in part, at the option of the
Company;
(7) the obligation, if any, of the Company to redeem or purchase
Securities of the Series pursuant to any sinking fund or
analogous provisions or upon the happening of a specified event
or at the option of a Holder thereof and the period or periods
within which, the price or prices at which, and the terms and
conditions upon which, Securities of the Series shall be redeemed
or purchased, in whole or in part, pursuant to such obligation;
(8) if in other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the
Series shall be issuable;
(9) if other than the principal amount thereof, the portion of the
principal amount of Securities of the Series which shall be
payable upon declaration of acceleration of the maturity thereof
pursuant to Section 6.01;
(10) whether Securities of the Series shall be issuable as Registered
Securities or Unregistered Securities (with or without interest
coupons), or both, whether if such Security is a Registered
Security such Security shall be a Certificated Security of an
Uncertificated Security, and any restrictions applicable to the
payment, offering, sale or delivery of Unregistered Securities
and whether, and the terms upon which, Unregistered Securities of
a Series may be exchanged for Registered Securities of the same
Series and vice versa;
(11) whether and under what circumstances the Company will pay
additional amounts on the Securities of that Series held by a
person who is not a U.S. Person in respect of taxes or similar
charges withheld or deducted and, if so, whether the Company will
have the option to redeem such Securities rather than pay such
additional amounts;
(12) the form of the Securities (or forms thereof if Unregistered and
Registered Securities shall be issuable in such Series, including
such legends as may be required by United States laws or
regulations, the form of any coupons or temporary global Security
which may be issued and the forms of any certificates which may
be required hereunder or under United States laws or regulations
in
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connection with the offering, sale, delivery or exchange of
Unregistered Securities);
(13) the coin or currency in which the Securities of the Series are
denominated, including multiple currency units;
(14) if other than the coin or currency in which the Securities of the
Series are denominated, the coin or currency in which payment of
the principal of, premium, if any, or interest on the Securities
of the Series shall be payable;
(15) if the amount of payments of principal of, premium, if any, or
interest on the Securities of the Series may be determined with
reference to one or more indices the manner in which such amounts
shall be determined;
(16) whether Securities of the Series are issuable as, or exchangeable
for, one or more Global Securities and, in such case, the terms
upon which interests in such Global Security or Global Securities
shall be exchangeable by the Company or the Holder thereof for
definitive Securities, and the identity of the Depositary for
such Series; and
(17) any other terms of the Series (which terms shall not be
inconsistent with the provisions of this Indenture) including any
terms which may be required by or advisable under United States
laws or regulations or advisable in connection with the marketing
of Securities of that Series.
(b) If the terms and form or forms of any Series of Securities are
established by or pursuant to a Board Resolution, the Company shall deliver a
copy of such Board Resolution to the Trustee at or prior to the issuance of such
Series with (1) the form or forms of Security which have been approved attached
thereto, or (2) if such Board Resolution authorizes a specific Officer or
Officers to approve the terms and form or forms of the Securities, a certificate
of such Officer or Officers approving the terms and form or forms of Security
with such form or forms of Securities attached thereto; provided that if such
Security is to be an Uncertificated Security, then no such form of Security need
be delivered to the Trustee and in lieu thereof of the Company shall deliver to
the Trustee a summary statement of the principal terms and conditions of such
Uncertificated Securities, to the extent not already set forth pursuant to a
Board Resolution establishing such Series of Uncertificated Securities. Such
Board Resolution or certificate may provide general terms or parameters for
Securities of any Series and may provide that the specific terms of particular
Securities of a Series may be determined in accordance with or pursuant to the
Company order referred to in Section 2.03(d) hereof.
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SECTION 2.03. Execution, Authentication and Delivery.
(a) Certificated Securities shall be executed on behalf of the Company by
its Chairman of the Board of Directors, the Vice-Chairman of the Board of
Directors, the Chief Executive Officer, the President, a Vice-President, the
Chief Financial Officer, the Treasurer, or an Assistant Treasurer, under its
corporate seal reproduced thereon and attested by its Secretary or an Assistant
Secretary. Signatures shall be manual or facsimile. The coupons of Unregistered
Securities shall bear the facsimile signature of the Treasurer or an Assistant
Treasurer of the Company.
(b) If an Officer, an Assistant Treasurer or an Assistant Secretary whose
signature is on a Certificated Security or coupon no longer holds that office at
the time the Certificated Security is Authenticated, the Certificated Security
or coupon shall be valid nevertheless.
(c) A Security shall not be valid until Authenticated by the manual
signature of the Trustee or an authenticating agent and no coupon shall be valid
until the Security to which it appertains has been so Authenticated. Such
signature shall be conclusive evidence that the Security has been Authenticated
under this Indenture. Each Unregistered Security shall be dated the date of its
original issuance and each Registered Security shall be dated the date of its
Authentication. Notwithstanding the foregoing, an Uncertificated Security shall
be valid when Authenticated by the Trustee or authenticating agent.
(d) The Trustee shall Authenticate and deliver Securities of any Series for
original issue from time to time in the aggregate principal amount established
for such Series pursuant to such procedures acceptable to the Trustee and to
such recipients as may be specified from time to time by a Company Order;
provided that in the case of Uncertificated Securities of any Series there shall
be no delivery requirement. The maturity date, original issue date, interest
rate and any other terms of the Securities of such Series shall be determined by
or pursuant to such Order and procedures. If provided for in such procedures,
such Order may authorize Authentication and delivery pursuant to oral
instructions from the Company or its duly authorized agent, which instructions
shall be promptly confirmed in writing.
The Trustee may conclusively rely on the documents and opinion delivered
pursuant to Section 2.02 and this Section 2.03, as applicable (unless revoked by
superseding comparable documents or opinions) as to the authorization of the
Board of Directors of any Securities delivered hereunder, the form thereof and
the legality, validity, binding effect and enforceability thereof.
If the form and general terms of the Securities of any Series have been
established by or pursuant to one or more Board Resolutions as permitted by
Section 2.02, in Authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 7.01) shall be
fully protected in relying upon, an Opinion of Counsel stating,
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(1) the form and general terms of such Securities have been
established in conformity with the provisions of this Indenture;
(2) that Securities in such form, when completed as to specific terms
substantially in accordance with the Board Resolution
establishing such form or any actions taken pursuant thereto (the
records of which actions shall have been evidenced as provided in
such Board Resolution), when Authenticated in accordance with the
Indenture, all in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company, enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
reorganization and other laws of general applicability relating
to or affecting the enforcement of creditors' rights and to
general equity principles; and
(3) the Guarantee in respect of the Securities constitutes a valid
and legally binding obligation of the Guarantor, enforceable in
accordance with its terms, subject to bankruptcy, insolvency,
reorganization and other laws of general applicability relating
to or affecting the enforcement of creditors' rights and to
general equity principles.
If the terms and form or forms of such Securities have been established by
or pursuant to a Board Resolution as permitted by Section 2.02, the Trustee
shall not be required to Authenticate such Securities if the issue of such
Securities pursuant to this Indenture will adversely affect the Trustee's own
rights, duties, or immunities under the Securities and this Indenture or
otherwise in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the foregoing, until the Company has delivered an Officers'
Certificate to the Trustee and the Registrar stating that, as a result of the
action described in such notice, the Company would not suffer adverse
consequences under the provisions of United States law or regulations in effect
at the time of the delivery of Unregistered Securities, (i) delivery of
Unregistered Securities will be made only outside the United States and its
possessions and (ii) Unregistered Securities will be released in definitive form
whether in the form of a Global Security or otherwise to the person entitled to
physical delivery thereof only upon presentation of a certificate in the form
prescribed by the Company and set forth in or annexed to such Officers'
Certificate.
(e) The aggregate principal amount of Securities of any Series outstanding
at any time may not exceed any limit upon the maximum principal amount for such
Series set forth in the Board Resolution (or certificate of an Officer or
Officers) or supplemental indenture pursuant to Section 2.02.
(f) The form of the Trustee's Certificate of Authentication to appear on
Certificated Securities shall read as follows:
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"This is one of the Certificated Securities of the Series designated
therein referred to in the within-mentioned Indenture.
The Chase Manhattan Bank, as Trustee
By
----------------------------------
Authorized Officer"
(g) The Company and the Guarantor hereby acknowledge that the failure to
endorse the Guarantee on Certificated Securities shall not affect or impair
validity or enforceability of such Guarantee.
SECTION 2.04. Registrar and Paying Agent.
The Company shall maintain in the Borough of Manhattan, The City of New
York, State of New York, any office or agency where Registered Securities may be
presented for registration of transfer or for exchange ("Registrar") and an
office or agency where (subject to Sections 2.05 and 2.08) Securities may be
presented for payment or for exchange ("Paying Agent"). With respect to any
Series of Securities issued in whole or in part as Unregistered Securities, the
Company shall maintain one or more Paying Agents located outside the United
States and its possessions and shall maintain such Paying Agents for a period of
two years after the principal of such Unregistered Securities has become due and
payable. During any period thereafter for which it is necessary in order to
conform to United States tax law or regulations, the Company will maintain a
Paying Agent outside the Untied States and its possession to which the
Unregistered Securities or coupons appertaining thereto may be presented for
payment and will provide the necessary funds therefor to such Paying Agent with
reasonable notice. The Registrar shall keep a register with respect to each
Series of Securities issued in whole or in part as Registered Securities and to
their transfer and exchange. The Company may appoint one or more co-Registrars
and one or more additional Paying Agents for each Series of Securities and the
Company may terminated the appointment of any co-Registrar or Paying Agent at
any time upon written notice. The term "Registrar" includes any co-Registrar,
except that any co-Registrar shall not keep the register. The term "Paying
Agent" includes any additional Paying Agent. The Company shall notify the
Trustee of the name and address of any Agent not a party to this Indenture. If
the Company fails to maintain a Registrar or Paying Agent, the Trustee shall act
as such.
The Company initially appoints the Trustee as Registrar and Paying Agent.
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SECTION 2.05. Payment on Securities.
(a) Subject to the following provisions, the Company will pay to the
Trustee the amounts of principal of and interest on the Securities at the times
and for the purposes set forth herein and in the text or provided for in the
terms of the Securities for each Series, and the Company hereby authorizes and
directs the Trustee from funds so paid to it to make or cause to be made payment
of the principal of and interest, if any, on the Securities and coupons of each
Series as set forth herein and in the text or provided for in the terms of such
Securities and coupons. Except as otherwise provided with respect to any Series
of Securities, the Trustee will arrange directly with any Paying Agent for the
payment, or the Trustee will may payment, from funds furnished by the Company,
of the principal of and interest, if any, on the Securities and coupons of each
Series by check in the currency in which the Securities are payable.
(b) Except as otherwise provided with respect to a Series of Securities,
interest, if any, on Registered Securities of a Series shall be paid on each
interest payment date for such Series to the Holder thereof at the close of
business on the relevant record dates specified in the Securities of such
Series. The Company may pay such interest by check mailed to such Holder's
address as it appears on the register for Securities of such Series. Principal
of Registered Securities that are Certificated Securities shall be payable only
against presentation and surrender thereof at the office of the Paying Agent in
New York, unless the Company shall have otherwise instructed the Trustee in
writing. Principal of Registered Securities that are Uncertificated Securities
shall be paid by check payable to the Holder mailed to its address as shown on
the books of the Registrar, unless the Company shall have otherwise instructed
the Trustee in writing. If a payment date is a Legal Holiday at a place of
payment, payment may be made at such place on the next succeeding day that is
not a Legal Holiday, and no interest shall accrue for the intervening period,
except in the case of interest (other than interest payable at maturity) payable
on any Security that bears interest at a floating rate, in which case interest
shall accrue for such intervening period.
(c) To the extent provided in the Securities of a Series, (i) payments with
respect to which coupons have been issued by the Company shall be paid only
against presentation and surrender of the coupons as they mature and (ii)
original issue discount (as defined in Section 1273 of the Internal Revenue Code
of 1986, as amended), if any, on Unregistered Securities with respect to which
coupons have not been issued shall be paid only against presentation and
surrender of such Securities; in either case at the office of a Paying Agent
located outside of the United States and its possessions, unless the Company
shall have otherwise instructed the Trustee in writing. Principal of
Unregistered Securities shall be paid only against presentation and surrender
thereof as provided in the Securities of a Series. If at the time a payment of
principal of or interest, if any, or original issue discount, if any, on an
Unregistered Security or coupon shall become due, the payment of the full amount
so payable at the office or offices of all the Paying Agents outside the United
States and its possessions is illegal or effectively precluded because of the
impositions of exchange controls or other similar restrictions on the payment of
such amount in the applicable currency, then the Company may instruct the
Trustee to make such payments at the office of a Paying Agent located in the
United
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States, provided that provision for such payment in the United States would not
cause such Unregistered Security to be treated as a "registration-required
obligation" under United States law and regulations.
SECTION 2.06. Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the Trustee to agree
in writing that the Paying Agent will hold in trust, for the benefit of
Securityholders of any or all Series of Securities, or the Trustee, all money
held by the Paying Agent for the payment of principal or interest on such Series
of Securities, and that the Paying Agent will notify the Trustee of any default
by the Company in making any such payment while any such default continues, the
Trustee may require a Paying Agent to pay all money held by it to the Trustee.
If the Company or a subsidiary acts as Paying Agent, it shall segregate the
money held by it for the payment of principal or interest on any Series of
Securities and hold such money as a separate trust fund. The Company at any time
may require a Paying Agent to pay all money held by it to the Trustee. Upon so
doing the Paying Agent shall have no further liability for the money so paid.
SECTION 2.07. Securityholder Lists; Ownership of Securities.
(a) The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders of each Series of Securities. If the Trustee is not the Registrar, the
Company shall furnish to the Trustee semi-annually on or before the last day of
June and December in each year, and at such other times as the Trustee may
request in writing, a list, in such form and as of such date as the Trustee may
reasonably require, containing all the information in the possession or control
of the Registrar, the Company or any of its Paying Agents other than the Trustee
as to the names and addresses of Holders of each such Series of Securities. If
there are Unregistered Securities of any Series outstanding, even if the Trustee
is the Registrar, the Company shall furnish to the Trustee such a list
containing such information with respect to Holders of such Unregistered
Securities only.
(b) Ownership of Registered Securities of a Series shall be proved by the
register for such Series kept by the Registrar. Ownership of Unregistered
Securities may be proved by the production of such Unregistered Securities or by
a certificate or affidavit executed by the person holding such Unregistered
Securities or by a depository with whom such Unregistered Securities have been
deposited, if the certificate or affidavit is satisfactory to the Trustee. The
Company, the Trustee and any agent of the Company or the Trustee may treat the
bearer of any Unregistered Security or coupon and the person in whose name a
Registered Security is registered as the absolute owner thereof for all
purposes.
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SECTION 2.08. Transfer and Exchange.
(a) Where Registered Securities of a Series (other than Securities which,
pursuant to the Board Resolution or supplemental indenture establishing the
terms of the series to which the Securities belong, are not transferable) are
presented to the Registrar with a request to register their transfer or to
exchange them for an equal principal amount of Registered Securities of the same
Series, date of maturity, interest rate, and original issue date of other
authorized denominations, the Registrar shall register the transfer or make the
exchange if its requirements for such transactions are met.
(b) If both Registered and Unregistered Securities are authorized for a
Series of Securities and the terms of such Securities permit, (i) Unregistered
Securities may be exchanged for an equal principal amount of Registered or
Unregistered Securities of the same Series, date of maturity, interest rate, and
original issue date in any authorized denominations upon delivery to the
Registrar (or a Paying Agent, if the exchange is for Unregistered Securities) of
the Unregistered Security with all unmatured coupons and all matured coupons in
default appertaining thereto and if all other requirements of the Registrar (or
such Paying Agent) and such Securities for such exchange are met, and (ii)
Registered Securities may be exchanged for an equal principal amount of
Unregistered Securities of the same Series, date of maturity, interest rate, and
original issue date in any authorized denominations (except that any coupons
appertaining to such Unregistered Securities which have matured and have been
paid shall be detached) upon delivery to the Registrar of the Registered
Securities and if all other requirements of the Registrar (or such Paying Agent)
and such Securities for such exchange are met.
Notwithstanding the foregoing, the exchange of Unregistered Securities for
Registered Securities or Registered Securities for Unregistered Securities will
be subject to the satisfaction of the provisions of United States law and
regulations in effect at the time of such exchange, and no exchange of
Registered Securities for Unregistered Securities will be made until the Company
has notified the Trustee and the Registrar that, as a result of such exchange,
the Company would not suffer adverse consequences under such law or regulations.
(c) To permit registrations of transfers and exchanges, the Trustee shall
Authenticate Securities upon surrender of Securities for registration of
transfer or for exchange as provided in this Section. The Company will not make
any charge for any registration of transfer or exchange but may require the
payment by the party requesting such registration of transfer or exchange of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
(d) Neither the Company nor the Registrar shall be required (i) to issue,
register the transfer of or exchange Securities of any Series for the period of
15 days immediately preceding the selection of any such Securities to be
redeemed, or (ii) to register the transfer of or exchange Securities of any
Series selected, called or being called for redemption as a whole or the portion
being redeemed of any such Securities selected, called or being called for
redemption in part.
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(e) Unregistered Securities or any coupons appertaining thereto shall be
transferable by delivery.
SECTION 2.09. Replacement Securities.
(a) If a mutilated Security or a Security with a mutilated coupon
appertaining to it is surrendered to the Trustee, the Company shall issue and
the Trustee shall authenticate a replacement Registered Security, if such
surrendered Security was a Registered Security, or a replacement Unregistered
Security with coupons corresponding to the coupons appertaining to the
surrendered Security, if such surrendered Security was an Unregistered Security,
of the same Series, date of maturity, interest rate, and original issue date if
the Trustee's requirements are met.
(b) If the Holder of a Security claims that the Security or any coupon
appertaining thereto has been lost, destroyed or wrongfully taken, the Company
shall issue and the Trustee shall authenticate a replacement Registered
Security, if such Holder's claim pertains to a Registered Security, or a
replacement Unregistered Security with coupons corresponding to the coupons
appertaining to the lost, destroyed or wrongfully taken Unregistered Security or
the Unregistered Security to which such lost, destroyed or wrongfully taken
coupon appertains, if such Holder's claim pertains to an Unregistered Security,
of the same Series, date of maturity, interest rate, and original issue date, if
the Trustee's requirements are met; provided, however, that the Trustee, the
Company or the Guarantor may require any such Holder to provide to the Trustee,
the Company or the Guarantor security or indemnity sufficient in the judgment of
the Company, the Guarantor and the Trustee to protect the Company, the
Guarantor, the Trustee, any Agent or any authenticating agent from any loss
which any of them may suffer if a Security is replaced. The Company may charge
the party requesting a replacement Security for its expenses in replacing a
Security.
(c) Every replacement Security is an additional obligation of the Company.
SECTION 2.10. Outstanding Securities.
(a) Securities outstanding at any time are all Securities Authenticated by
the Trustee or an authenticating agent except for those cancelled by it, those
Certificated Securities delivered to it for cancellation, those Uncertified
Securities for which the Trustee or the Registrar has received valid
cancellation instructions and those Securities described in this Section as not
outstanding.
(b) If a Security is replaced pursuant to Section 2.09, it ceases to be
outstanding until the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
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(c) If the Paying Agent holds on a redemption date or maturity date money
sufficient to pay all amounts due on Securities of such Series, they shall cease
to be outstanding and interest on them shall cease to accrue.
(d) Any acquisition of any Security by the Company or an Affiliate shall
not operate as a redemption or satisfaction of the indebtedness represented by
such Security unless and until the same is cancelled and delivered to the
Trustee or surrendered to the Trustee for cancellation.
(e) In determining whether the Holders of the requisite principal amount of
outstanding Securities of any Series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, or whether
sufficient funds are available for redemption or for any other purpose, the
principal amount of an Original Issue Discount Security that shall be deemed to
be outstanding for such purposes shall be the amount of the principal thereof
that would be due and payable as of the date of such determination upon a
declaration of acceleration of the maturity thereof pursuant to Section 6.01.
SECTION 2.11. Temporary Securities; Global Securities.
(a) Until definitive Registered Securities of any Series are ready for
delivery, the Company may prepare and execute and the Trustee shall authenticate
temporary Registered Securities of such Series. Temporary Registered Securities
of any Series shall be substantially in the form of definitive Registered
Securities of such Series but may have variations that the Company considers
appropriate for temporary Securities. Every temporary Registered Security shall
be executed by the Company and authenticated by the Trustee, and registered by
the Registrar, upon the same conditions, and with like effect, as a definitive
Registered Security. Without unreasonable delay, the Company shall prepare and
the Trustee shall authenticate definitive Registered Securities of the same
Series, date of maturity, interest rate, and original issue date in exchange for
temporary Registered Securities. All references herein to "definitive Registered
Securities" shall be deemed to apply equally to permanent global Registered
Securities.
(b) Until definitive or permanent global Unregistered Securities of any
series are ready for delivery, the Company may prepare and execute and the
Trustee shall authenticate one or more temporary Unregistered Securities, which
may have coupons attached or which may be in the form of a single temporary
global Unregistered Security of that Series. The temporary Unregistered Security
or Securities of any Series shall be substantially in the form approved by or
pursuant to a Board Resolution and shall be delivered outside the United States
and its possession to such person or persons as the Company shall direct against
such certification as the Company may from time to time prescribe by or pursuant
to a Board Resolution. The temporary Unregistered Security or Securities of a
Series shall be executed by the Company and authenticated by the Trustee upon
the same conditions, and with like effect, as a definitive Unregistered Security
of such Series, except as provided herein or therein. A temporary
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Unregistered Security or Securities shall be exchangeable for definitive or
permanent global Unregistered Securities at the time and on the conditions, if
any, specified in the temporary Security.
(c) Upon any exchange of a part of a temporary or permanent global
Unregistered Security of a Series for definitive or permanent global
Unregistered Securities of such Series, the temporary or permanent global
Unregistered Security, as the case may be, shall be endorsed by the Trustee or
an authenticating agent for the Trustee to reflect the reduction of its
principal amount by an amount equal to the aggregate principal amount of
definitive or permanent Unregistered Securities, as the case may be, of such
Series so exchanged and endorsed. Upon any exchange of a part of a temporary or
permanent global Registered Security of a Series for definitive or permanent
global Registered Securities of such Series, the temporary or permanent global
Registered Security, as the case may be, shall be endorsed by the Trustee or an
authenticating agent for the Trustee to reflect the reduction of its principal
amount by an amount equal to the aggregate principal amount of definitive or
permanent Registered Securities, as the case may be, of such Series so exchanged
and endorsed.
(d) If the Company shall establish pursuant to Section 2.02 that the
Securities of a particular Series are to be issued as one or more Global
Securities, then the Company shall execute and the Trustee shall, in accordance
with Section 2.03 and the Company Order delivered to the Trustee thereunder,
authenticate and deliver to the Depositary or pursuant to the Depositary's
instruction one or more Global Securities. Each Global Security shall bear a
legend substantially to the following effect: "Except as otherwise provided in
Section 2.11 of the Indenture, this Security may be transferred, in whole but
not in part, only to another nominee of the Depositary or to a successor
Depositary or to a nominee of such successor Depositary."
(e) Notwithstanding any other provision of this Section 2.11 or of Section
2.08, except for exchanges of Global Securities as provided in Section 2.11(c),
a Global Security may be transferred, in whole but not in part and in the manner
provided in Section 2.08, only to another nominee of the Depositary for such
Series, or to a Successor Depositary for such Series selected or approved by the
Company or to a nominee of such successor Depositary.
(f) If at any time the Depositary for a Series of Securities notifies the
Company that it is unwilling or unable to continue as Depositary for such Series
or, with respect to a Depositary for such Series or, with respect to a
Depositary contemplated by clause (ii) of the definition thereof, if at any time
the Depositary for such Series shall no longer be registered or in good standing
under the Securities Exchange Act of 1934, as amended, or other applicable
statute or regulation and, in any such case, a successor Depositary for such
Series is not appointed by the Company within 90 days after the Company receives
such notice or becomes aware of such condition, as the case may be, this Section
2.11 shall no longer be applicable to the Securities of such Series and the
Company will execute, and the Trustee will authenticate and deliver in
accordance with a Company Order, Securities of such Series in definitive
registered form without coupons, or in definitive bearer form with coupons, as
applicable, in authorized
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denominations, and in an aggregate principal amount equal to the principal
amount of the Global Security of such Series in exchange for such Global
Security.
(g) With the prior written consent of the Company with respect to a Series
of Registered Securities, the Depositary for such Series of Securities may
surrender a Global Security for such Series of Securities in exchange in whole
or in part for Securities of such Series of like tenor and terms and in
definitive form on such terms as are acceptable to the Company and such
Depositary. Thereupon the Company shall execute, and the Trustee shall
authenticate and deliver, without service charge, (i) to each Person specified
by such Depositary (pursuant to instructions from its direct or indirect
participants or otherwise) a new Security or Securities of the same Series, of
like tenor and terms and of any authorized denomination as requested by such
Person in aggregate principal amount equal to and in exchange for such Person's
beneficial interest in the Global Security; and (ii) in the event the principal
amount of the surrendered Global Security exceeds the aggregate principal amount
of Securities delivered to Holders pursuant to the preceding clause (i), to such
Depositary a new Global Security of like tenor and terms and in an aggregate
principal amount equal to such excess.
SECTION 2.12. Cancellation.
The Company at any time may deliver Certificated Securities and coupons to
the Trustee for cancellation. The Registrar and the Paying Agent shall forward
to the Trustee any Certificated Securities and coupons surrendered to them, for
registration of transfer, or for exchange or payment. The Trustee shall cancel
all Certificated Securities and coupons surrendered for registration of
transfer, or for exchange, payment or cancellation and may dispose of cancelled
Certificated Securities and coupons as the Company directs; provided, however,
that any Unregistered Certificated Securities of a Series delivered to the
Trustee for exchange prior to maturity shall be retained by the Trustee for
reissue as provided herein or in the Certificated Securities of such Series. The
Company may not issue new Certificated Securities of a Series to replace
Certificated Securities of such Series that it has paid or delivered to the
Trustee for cancellation.
SECTION 2.13. Defaulted Interest.
If the Company defaults on a payment of interest on a Series of Securities,
the Company or the Guarantor shall pay the defaulted interest as provided in
such Securities or in any lawful manner not inconsistent with the requirements
of any securities exchange on which such Securities may be listed and acceptable
to the Trustee.
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ARTICLE 3
REDEMPTION.
SECTION 3.01. Notice to Trustee.
The Company may, with respect to any Series of Securities, reserve the
right to redeem and pay the Series of Securities or any part thereof, or may
covenant to redeem and pay the Series of Securities or any part thereof, before
maturity at such time and on such terms as provided for in such Securities. If a
Series of Securities is redeemable and the Company wants or is obligated to
redeem all or part of the Series of Securities pursuant to the terms of such
Securities, it shall notify the Trustee of the redemption date and the principal
amount of the Series of Securities to be redeemed. The Company shall give sixty
days advance notice to the Trustee before the redemption date or such lesser
notice as shall be satisfactory to the Trustee.
SECTION 3.02. Selection of Securities to be Redeemed.
Upon notice that less than all the Securities of a Series are to be
redeemed, the Trustee shall thereupon select the Securities of the Series to be
redeemed in such manner as the Trustee shall deem fair and appropriate, such
selection to be made from Securities of the Series that are outstanding and that
have not previously been called for redemption. Securities of the Series and
portions of them selected by the Trustee shall be in amounts of $1,000 or
integral multiples of $1,000 or, with respect to Securities of any Series
issuable in other denominations pursuant to Section 2.02(a)(8), in amounts equal
to the minimum principal denomination for each such Series and integral
multiples thereof. Provisions of the Indenture that apply to Securities of a
Series called for redemption also apply to portions of Securities of that Series
called for redemption. The Trustee shall promptly notify the Company in writing
of the Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be redeemed.
SECTION 3.03. Notice of Redemption
(a) At least 30 days but not more than 90 days before a redemption date,
the Company shall mail a notice of redemption by first-class mail to each Holder
of Registered Securities that are to be redeemed.
(b) If Unregistered Securities are to be redeemed, notice of redemption
shall be published in an Authorized Newspaper in the City of New York, and if
such Securities to be redeemed are listed on the London Stock Exchange, London,
and, if such Securities to be redeemed are listed on the Luxembourg Stock
Exchange, Luxembourg, once in each of four successive calendar weeks, the first
publication to be not less than 30 nor more than 90 days before the redemption
date.
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(c) All notices shall identify the Series of Securities to be redeemed and
shall state:
(1) the redemption date;
(2) the redemption price;
(3) if less then all the outstanding Securities of a Series are to be
redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the Particular Securities
to be redeemed;
(4) the name and address of the Paying Agent;
(5) the Securities of the Series called for redemption and that all
unmatured coupons, if any, appertaining thereto must be
surrendered to the Paying Agent to collect the redemption price;
(6) that interest on Securities of the Series called for redemption
ceases to accrue on and after the redemption date; and
(7) if redemption is for a mandatory or optional sinking fund
payment. At the Company's request, the Trustee shall give the
notice of redemption in the Company's name and at its expense.
SECTION 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed or published, Securities of a Series
called for redemption become due and Payable on the redemption date. Upon
surrender to the Paying Agent of such Securities together with all unmatured
coupons, if any, appertaining thereto, such Securities will be paid at the
redemption price plus accrued interest to the redemption date, but regular
installments of interest due on or prior to the redemption date will be payable,
in the case of Unregistered Securities, to the bearers of the coupons for such
interest upon surrender thereof, and, in the case of Registered Securities
(except as otherwise provided with respect to the Securities of a Series), to
the Holders of such Securities of record at the close of business on the
relevant record dates; provided that in the case of Securities that are
Uncertificated Securities, no such surrender shall be required and the
redemption price shall be paid to the Holders of such Uncertificated Securities
of record at the close of business on the redemption date (except as otherwise
provided with respect to the Securities of a Series).
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SECTION 3.05. Deposit of Redemption Price.
On or before the redemption date, the Company shall deposit with the
Trustee money sufficient to pay the redemption price of and (unless the
redemption date shall be an interest payment date) interest accrued to the
redemption date on all Securities to be redeemed on that date.
Upon surrender of a Certificated Security that is redeemed in part, the
Company shall issue and the Trustee shall authenticate for the Holder of that
Security a new Security or Securities of the same Series, the same form and the
same date of maturity, interest rate, and original issue date in authorized
denominations equal in aggregate principal amount to the unredeemed portion of
the Security surrendered.
SECTION 3.06. Mandatory and Optional Sinking Funds.
The minimum amount of any sinking fund payment provided for by the terms of
any Series of Securities is herein referred to as a "mandatory sinking fund
payment," and any payment in excess of such minimum amount provided for by the
terms of any Series of Securities is herein referred to as an "optional sinking
fund payment." The date on which a sinking fund payment is to be made is herein
referred to as the "sinking fund payment date".
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any Series of Securities in cash, the Company may at its option
(a) deliver to the Trustee Securities of such Series theretofore purchased or
otherwise acquired (except upon redemption pursuant to the mandatory sinking
fund) by the Company or receive credit for Securities of such Series (not
previously so credited) theretofore purchased or otherwise acquired (except as
aforesaid) by the Company and delivered to the Trustee for cancellation pursuant
to Section 2.12, (b) receive credit for optional sinking fund payments (not
previously so credited) made pursuant to this Section, or (c) receive credit for
Securities of such Series (not previously so credited) redeemed by the Company
through any optional redemption provision contained in the terms of such Series.
Securities so delivered or credited shall be received or credited by the Trustee
at the sinking fund redemption price specified in such Securities.
On or before the sixtieth day next preceding each sinking fund payment date
for any Series, the Company will deliver to the Trustee a written statement
signed by an authorized officer of the Company (a) specifying the portion of the
mandatory sinking fund payment to be satisfied by payment of cash and the
portion to be satisfied by credit of Securities of such Series, (b) stating that
none of the Securities of such Series has theretofore been so credited, (c)
stating that no defaults in the payment of interest or Events of Default with
respect to such Series have occurred (which have not been waived or cured) and
are continuing, (d) stating whether or not the Company intends to exercise its
right to make an optional sinking fund payment with respect to such Series and,
if so, specifying the amount of such optional sinking fund payment which the
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Company intends to pay on or before the next succeeding sinking fund payment
date, and (e) specifying such sinking fund payment date. Any Securities of such
Series to be credited and required to be delivered to the Trustee in order for
the Company to be entitled to credit therefor as aforesaid which have not
theretofore been delivered to the Trustee shall be delivered for cancellation
pursuant to Section 2.12 to the Trustee with such written statement (or
reasonably promptly thereafter if acceptable to the Trustee). Such written
statement shall be irrevocable and upon its receipt by the Trustee the Company
shall become unconditionally obligated to make all the cash payments or payments
therein referred to, if any, on or before the next succeeding sinking fund
payment date. Failure of the Company, on or before any such sixtieth day, to
deliver such written statement and Securities specified in this paragraph, if
any, shall not constitute a default but shall constitute, on and as of such
date, the irrevocable election of the Company (i) that the mandatory sinking
fund payment for such Series due on the next succeeding sinking fund payment
date shall be paid entirely in cash without the option to deliver or credit
Securities of such Series in respect thereof and (ii) that the Company will make
no optional sinking fund payment with respect to such Series as provided in this
Section.
If the sinking fund payment or payments (mandatory or optional or both) to
be made in cash on the next succeeding sinking fund payment date plus any unused
balance of any preceding sinking fund payments made in cash shall exceed $50,000
(or a lesser sum if the Company shall so request) with respect to the Securities
of any particular Series, such cash shall be applied on the next succeeding
sinking fund payment date to the redemption of Securities of such Series at the
sinking fund redemption price together with accrued interest to the date fixed
for redemption. If such amount shall be $50,000 or less and the Company makes no
such request then it shall be carried over until a sum in excess of $50,000 is
available. The Trustee shall select, in the manner provided in Section 3.02, for
redemption on such sinking fund payment date a sufficient principal amount of
Securities of such Series to absorb said cash, as nearly as may be possible, and
shall (if requested in writing by the Company) inform the Company of the serial
numbers of the Securities of such Series (or portions thereof) so selected.
Securities of any Series which are (a) owned by the Company or an entity known
by the Trustee to be directly or indirectly controlling or controlled by or
under direct or indirect common control with the Company, as shown by the
Security register, and not known to the Trustee to have been pledged or
hypothecated by the Company or any such entity or (b) identified in an Officers'
Certificate at least 60 days prior to the sinking fund payment date as being
beneficially owned by, and not pledged or hypothecated by, the Company or an
entity directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company shall be excluded from Securities of
such Series eligible for selection for redemption. The Trustee, in the name and
at the expense of the Company (or the Company, if it shall so request the
Trustee in writing) shall cause notice of redemption of the Securities of such
Series to be given in substantially the manner provided in Section 3.03 (and
with the effect provided in Section 3.04) for the redemption of Securities of
such Series in part at the option of the Company. The amount of any sinking fund
payments not so applied or allocated to the redemption of Securities of such
Series shall be added to the next cash sinking fund payment for such Series and,
together with such payment, shall be applied in accordance with the provisions
of this Section. Any and all sinking fund moneys held on the stated maturity
date of the Securities of any particular Series (or earlier,
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if such maturity is accelerated), which are not held for the payment or
redemption of particular Securities of such Series shall be applied, together
with other moneys, if necessary, sufficient for the purpose, to the payment of
the principal of, and interest on, the Securities of such Series at maturity.
At least one business day before each sinking fund payment date, the
Company shall pay to the Trustee in cash or shall otherwise provide for the
payment of all interest accrued to the date fixed for redemption on Securities
to be redeemed on the next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of a
Series with sinking fund moneys or mail any notice of redemption of Securities
for such Series by operation of the sinking fund during the continuance of a
default in payment of interest on such Securities or of any Event of Default
except that, where the mailing of notice of redemption of any Securities shall
theretofore have been made, the Trustee shall redeem or cause to be redeemed
such Securities, provided that it shall have received from the Company a sum
sufficient for such redemption. Except as aforesaid, any moneys in the sinking
fund for such Series at the time when any such default or Event of Default shall
occur, and any moneys thereafter paid into the sinking fund, shall, during the
continuance of such default or Event of Default, be deemed to have been
collected under Article Six and held for the payment of all such Securities. In
case such Event of Default shall have been waived as provided in Section 6.06 or
the default cured on or before the sixtieth day preceding the sinking fund
payment date in any year, such moneys shall thereafter be applied on the next
succeeding sinking fund payment date in accordance with this Section to the
redemption of such Securities.
ARTICLE 4
COVENANTS.
SECTION 4.01. Payment of Securities.
The Company shall pay the principal of and interest on the Securities on
the dates and in the manner provided herein and in the Securities. An
installment of principal or interest shall be considered paid on the date it is
due if the Trustee or Paying Agent holds on that date money designated for and
sufficient to pay the installment. If the Securities of a Series provide for the
payment of additional amounts as contemplated by Section 2.02(a)(11), at least
10 days prior to the first interest payment date with respect to that Series of
Securities (or if the Securities of that Series will not bear interest prior to
maturity, the first day on which a payment of principal and any premium is
made), and at least 10 days prior to each date of payment of principal and any
premium or interest if there has been any change with respect to the matters set
forth in the below-mentioned Officers' Certificate, the Company will furnish the
Trustee and the Company's principal Paying Agent or Paying Agents, if other than
the Trustee, with an Officers' Certificate instructing the Trustee and such
Paying Agent or Paying Agents whether such
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payment of principal of and interest on the Securities of that Series shall be
made to Holders of Securities of that Series or any related coupons who are not
U.S. Persons without withholding for or on account of any tax, assessment or
other governmental charge described in the Securities of the Series. If any such
withholding shall be required, then such Officers' Certificate shall specify by
country the amount, if any, required to be withheld on such payments to such
Holders of Securities or coupons and the Company will pay to the Trustee or such
Paying Agent such additional amounts as may be required pursuant to the terms
applicable to such Series. The Company covenants to indemnify the Trustee and
any Paying Agent for, and to hold them harmless against, any loss, liability or
expense reasonably incurred without negligence or bad faith on their part
arising out of or in connection with actions taken or omitted by any of them in
reliance on any Officers' Certificate furnished pursuant to this Section.
SECTION 4.02. Reports by the Company and the Guarantor.
The Company and the Guarantor covenant:
(a) to file with the Trustee, within 15 days after the Company or the
Guarantor is required to file the same with the SEC, copies of the annual
reports and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the SEC may from time to time by rules and
regulations prescribe) which the Company or the Guarantor may be required to
file with the SEC pursuant to section 13 or section 15(d) of the Securities
Exchange Act of 1934, as amended; or, if the Company or the Guarantor is not
required to file information, documents or reports pursuant to either of such
sections, then to file with the Trustee and the SEC, in accordance with rules
and regulations prescribed from time to time by the SEC, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to section 13 of the Securities Exchange Act of 1934, as
amended, in respect of a security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and regulations;
(b) to file with the Trustee and the SEC, in accordance with the rules and
regulations prescribed from time to time by the SEC, such additional
information, documents, and reports with respect to compliance by the Company
and the Guarantor with the conditions and covenants provided for in this
Indenture as may be required from time to time by such rules and regulations;
(c) to transmit by mail to all Holders of Registered Securities, as the
names and addresses of such Holders appear on the register for each Series of
Securities, and to such Holders of Unregistered Securities as have, within the
two years preceding such transmission, filed their names and addresses with the
Trustee for that purpose, within 30 days after the filing thereof with the
Trustee, and to all Holders whose names appear on the list furnished to the
Trustee by the Company under Section 2.07(a), such summaries of any information,
documents and reports required to be filed by the Company and the Guarantor
pursuant to subsections (a)
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and (b) of this Section 4.02 as may be required by rules and regulations
prescribed from time to time by the SEC; and
(d) in the case of Uncertificated Securities for which the Trustee does not
act as Registrar, to file with the Trustee at the time it files the annual or
quarterly reports required to be filed pursuant to paragraph (a) hereof or at
such other times as the Trustee may reasonably request, a statement of the
aggregate amount of such Uncertificated Securities issued and outstanding
hereunder.
SECTION 4.03. Limitations on Incurrence of Secured Debt.
(a) The Company will not, nor will it permit any Restricted Subsidiary to,
incur, issue, assume or guarantee any indebtedness for money borrowed ("debt")
secured by any pledge, mortgage, security interest or lien ("lien") on any
property or assets of the Company or any Restricted Subsidiary, or on any shares
of stock or debt of any Restricted Subsidiary, without effectively providing
that the principal of, premium, if any, and interest, if any, on the Securities
of each Series (together with, if the Company so determines, any other debt of
the Company or such Restricted Subsidiary, which is not subordinated to the
Securities of each Series) shall be secured equally and ratably with (or prior
to) such debt, so long as any such debt shall be so secured, unless, after
giving effect thereto, the aggregate amount of all such secured debt of the
Guarantor would not exceed 10% of Consolidated Net Tangible Assets of the
Guarantor; provided, however, that (i) any recourse provided by the Company or
any Restricted Subsidiary in connection with any sale, transfer or other
disposition by the Company or any Restricted Subsidiary of Accounts Receivable
or of any Restricted Subsidiary substantially all the assets of which are
Accounts Receivable which constitutes a "sale" under generally accepted
accounting principles (as in effect at the time of such sale, transfer or other
disposition) shall not, in any event, constitute debt and (ii) no Asset Drop
Down (as defined in Section 5.01) shall, in any event, constitute a lien; and
provided further that neither the satisfaction and discharge of any debt
pursuant to Section 8.01 of this Indenture or pursuant to any similar provision
in any other indenture or instrument governing any debt, nor the defeasance of
any debt pursuant to Section 8.02 of this Indenture or pursuant to any similar
provision in any other indenture or instrument governing any debt, shall be
deemed the incurrence, issue, assumption or guarantee of debt secured by a lien
for purposes of this Section 4.03(a). Notwithstanding the foregoing, this
Section shall neither limit nor be deemed or construed as limiting the right of
the Company or any Restricted Subsidiary to incur, issue, assume or guarantee
any debt secured by any one or more of the following: (1) liens on property of,
or on any shares of stock or debt of, any corporation existing at the time such
corporation becomes a Restricted Subsidiary; (2) liens on property, shares of
stock, other equity interests, or debt existing at the time of acquisition or
repossession thereof by the Company or any Restricted Subsidiary; (3) liens on
physical property (or any Accounts Receivable arising in connection with the
lease thereof), shares of stock, other equity interests, or debt acquired (or,
in the case of physical property, constructed) after the date of this Indenture
by the Company or any Restricted Subsidiary, which liens are created prior to,
at the time of, or within one year after such acquisition (or, in the case of
physical property, the
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completion of such construction or commencement of commercial operation of such
property, whichever is later) to secure any debt issued, incurred, assumed or
guaranteed prior to, at the time of, or within one year after such acquisition
(or such completion or commencement, whichever is later) or to secure any other
debt issued, incurred, assumed or guaranteed at any time thereafter for the
purpose of refinancing all or any part of such debt; (4) liens on Accounts
Receivable of the Company or any Restricted Subsidiary arising from or in
connection with transactions entered into by the Company or such Restricted
Subsidiary after the date of this Indenture or on Accounts Receivable acquired
by the Company or such Restricted Subsidiary after such date from others which
liens are created prior to, at the time of, or within one year after such
Accounts Receivable arise or are acquired or, if later, the completion of the
delivery or installation of the equipment or goods or the rendering of the
services or the advancement or loaning of funds relating thereto (i) as a result
of any guarantee, repurchase or other contingent (direct or indirect) or
recourse obligation of the Company or such Restricted Subsidiary in connection
with the discounting, sale, assignment, transfer or other disposition of such
Accounts Receivable or any interest therein, or (ii) to secure or provide for
the payment of all or any part of the investment of the Company or such
Restricted Subsidiary in any such Accounts Receivable (whether or not such
Accounts Receivable are the Accounts Receivable on which such liens are created)
or the purchase price thereof or to secure any debt (including, without
limitation, Non-Recourse Debt) issued, incurred, assumed or guaranteed for the
purpose of financing or refinancing all or any part of such investment or
purchase price; (5) liens in favor of the Guarantor or any Guarantor's
Subsidiaries; (6) liens in favor of the United States of America or any State
thereof or the District of Columbia, or any agency, department or other
instrumentality thereof, to secure progress, advance or other payments pursuant
to any contract or provision of any statute; (7) liens securing the performance
of letters of credit, bids, tenders, sales contracts, purchase agreements,
leases, surety and performance bonds, and other similar obligations not incurred
in connection with the borrowing of money; (8) liens to secure Non-Recourse Debt
in connection with the Company or any Restricted Subsidiary engaging in any
leveraged or single-investor or other lease transactions, whether (in the case
of liens on or relating to leases or groups of leases or the particular
properties subject thereto) such liens be on the particular properties subject
to any leases involved in any of such transactions and/or the rental or other
payments or rights under such leases or, in the case of any group of related or
unrelated leases, on the properties subject to the leases comprising such group
and/or on the rental or other payments or rights under such leases, or on any
direct or indirect interest therein, and whether (in any case) (i) such liens
be created prior to, at the time of, or at any time after the entering into of
such lease transactions and/or (ii) such leases be in existence prior to, or be
entered into by the Company or such Restricted Subsidiary at the time of or at
any time after, the purchase or other acquisition by the Company or such
Restricted Subsidiary of the properties subject to such leases; and (9) any
extension, renewal or replacement (or successive extensions, renewals or
replacements), in whole or in part, of any of the foregoing; provided, however,
that any such extension, renewal or replacement shall be limited to all or a
part of the property or assets which secured the lien so extended, renewed or
replaced (plus improvements on such property).
(b) The Company may omit in any particular instance to comply with any
covenant or condition set forth in Section 4.03(a) with respect to the
Securities of any Series if
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before or after the time for such compliance the holders of a majority in
aggregate principal amount of the Securities of such Series at the time
outstanding shall, by action of such Securityholders in accordance with this
Indenture, either waive such compliance in such instance or generally waive
compliance with such covenant or conditions, but no such waiver shall extend to
or affect (x) any other Series of Securities or (y) such covenant or condition
except to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and duties of the Trustee in respect
of any such covenant or condition shall remain in full force and effect.
SECTION 4.04. Statement as to Compliance; Notice of Certain Events of Default.
The Company and the Guarantor will, within 120 days after the close of each
fiscal year, commencing with the first fiscal year following the issuance of
Securities of any Series under this Indenture, file with the Trustee a
certificate of the principal executive officer, the principal financial officer
or the principal accounting officer of each of the Company and the Guarantor,
covering the period from the date of issuance of such Securities to the end of
the fiscal year in which such Securities were issued, in the case of the first
such certificate, and covering the preceding fiscal year in the case of each
subsequent certificate, and stating whether or not, to the knowledge of the
signers, the Company and Guarantor, as applicable has complied with all
conditions and covenants on its part contained in this Indenture, and, if the
signers have obtained knowledge of any default by the Company or Guarantor in
the performance, observance or fulfillment of any such condition or covenant,
specifying each such default and the nature thereof. For the purpose of this
Section 4.04, compliance shall be determined without regard to any grace period
or requirement of notice provided pursuant to the terms of this Indenture.
ARTICLE 5
CONSOLIDATION, MERGER, SALE OR CONVEYANCE.
SECTION 5.01. Consolidation or Merger, etc., on Certain Terms.
The Company and the Guarantor each covenants that it will not merge or
consolidate with any other corporation or sell or convey all, or substantially
all of its assets to any person (other than such a sale or conveyance to a
Subsidiary or any successor thereto (such a sale or conveyance being called an
"Asset Drop-Down"), unless (i) either the Company or the Guarantor shall be the
continuing corporation or the successor corporation or the person which acquires
by sale or conveyance substantially all the assets of the Company or the
Guarantor (if other than the Guarantor or the Company) shall be a corporation
organized under the laws of the United States of America or any State thereof or
of Canada or any province or territory thereof and shall expressly assume the
due and punctual payment of the principal of, premium, if any, and interest, if
any, on all the Securities, according to their tenor, and the due and punctual
performance and observance of all of the covenants and conditions of this
Indenture to be performed or observed by the Company, by supplemental indenture
in form satisfactory to the Trustee, executed and
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delivered to the Trustee by such corporation, and (ii) the Company or such
successor corporation, as the case may be, shall not, immediately after such
merger or consolidation, or such sale or conveyance, be in default in the
performance of any such covenant or condition. In the event of any Asset
Drop-Down after the date of this Indenture, any subsequent sale or conveyance of
assets by a Subsidiary to which assets were transferred in such Asset Drop-Down
(a "Drop-Down Subsidiary") will be deemed to be a sale or conveyance of assets
by the Company for purposes of this Section 5.01.
SECTION 5.02. Successor Corporation Substituted.
In case of any such consolidation, merger, sale or conveyance, and
following such an assumption by the successor corporation, such successor
corporation shall succeed to and be substituted for the Company or the
Guarantor, as applicable, with the same effect as if it had been named herein.
With respect to any successor to the Company, such successor corporation may
cause to be signed, and may issue either in its own name or in the name of the
Company prior to such succession any or all of the Securities issuable hereunder
which theretofore shall not have been signed by the Company and delivered to the
Trustee; and, upon the order of such successor corporation instead of the
Company and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall deliver any
Securities which previously shall have been signed and delivered by the officers
of the Company to the Trustee for authentication, and any Securities which such
successor corporation thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All of the Securities so issued shall in all respects
have the same legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all of such Securities had been issued at the date of the execution
hereof.
In case of any such consolidation, merger, sale, lease or conveyance such
changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
In the event of any such sale or conveyance (other than a conveyance by way
of lease) the Company, the Guarantor or any successor corporation which shall
theretofore have become such in the manner described in this Article shall be
released and discharged from all obligations and covenants under this Indenture.
SECTION 5.03. Opinion of Counsel to Trustee.
The Trustee, subject to the provisions of Sections 7.01 and 7.02, may
receive an Opinion of Counsel, prepared in accordance with Section 10.04, as
conclusive evidence that any such consolidation, merger, sale, lease or
conveyance, any such assumption, and any such release and discharge complies
with the applicable provisions of this Indenture.
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ARTICLE 6
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT.
SECTION 6.01. Events of Default; Acceleration of Maturity; Waiver of Default.
In case one or more of the following events shall have occurred and be
continuing with respect to the Securities of any Series ("Events of Default"):
(a) default in the payment of any installment of interest upon any of the
Securities of that Series as and when the same shall become due and
payable, and continuance of such default for a period of 90 days; or
(b) default in the payment of the principal of any of the Securities of
that Series as and when the same shall become due and payable either
at maturity, upon redemption, or otherwise (except as may be otherwise
provided in the Board Resolution or supplemental indenture
establishing the terms of the Securities of such Series); or
(c) failure on the part of the Company or the Guarantor duly to observe or
perform any other of the covenants or agreements on the part of the
Company or the Guarantor in the Securities of that Series, in this
Indenture contained or in any supplemental indenture under which the
Securities of that Series have been issued, for a period of 90 days
after the date on which written notice of such failure (specified as a
"Notice of Default"), requiring the Company or the Guarantor to remedy
the same, shall have been given to the Company and the Guarantor by
the Trustee or to the Company, the Guarantor and the Trustee by the
Holders of at least twenty-five percent in aggregate principal amount
of the Securities of that Series at the time outstanding; or
(d) a court or governmental agency having jurisdiction in the premises
shall enter a decree or order for relief in respect of the Company or
the Guarantor in an involuntary case under any applicable federal or
state bankruptcy, insolvency or other similar law now or hereafter in
effect, or appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of the Company or the
Guarantor or for all or substantially all of its property or ordering
the winding up or liquidation of its affairs, and such decree or order
shall remain unstayed and in effect for a period of 90 consecutive
days; or
(e) the Company or the Guarantor shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or
hereafter in
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effect, or consent to the entry of an order for relief in an
involuntary case under any such law, or consent to the appointment or
taking possession by a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of the Company or the
Guarantor or for all or substantially all of its property or make any
general assignment for the benefit of creditors; or the Company or the
Guarantor shall admit in writing its inability to pay its debts
generally as they become due; or
(f) any other Event of Default provided in the applicable resolution of
the Board of Directors or in the supplemental indenture under which
such Series of Securities is issued, as the case may be, as
contemplated by Section 2.02;
then and in each and every such case, unless the principal of all the Securities
of that Series shall have already become due and payable, either the Trustee or
the Holders of not less than twenty-five percent in aggregate principal amount
of the Securities of that Series then outstanding hereunder, by notice in
writing to the Company and the Guarantor (and to the Trustee if given by
Securityholders), may declare the principal (or, if the Securities of that
Series are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of that Series) of all the Securities of
that Series to be due and payable immediately, and upon any such declaration the
same (or, in the case of Original Issue Discount Securities, such specified
amount) shall become and shall be immediately due and payable, anything in this
Indenture, in any supplemental indenture under which the Securities of that
Series have been issued or in the Securities of that Series contained to the
contrary notwithstanding. This provision, however, is subject to the condition
that if, at any time after the principal of the Securities of that Series (or,
if the Securities of that Series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of that Series)
shall have been so declared due and payable, and before any judgment or decree
for the payment of the moneys due shall have been obtained or entered as
hereinafter provided, the Company or the Guarantor shall pay, or shall deposit
with the Trustee a sum sufficient to pay, all matured installments of interest
upon all the Securities of that Series and the principal of any and all
Securities of that Series which shall have become due otherwise than by
declaration, with interest upon such principal and (to the extent that payment
of such interest is enforceable under applicable law) upon any overdue
installments of interest at the same rate of interest or Yield to Maturity (in
the case of Original Issue Discount Securities) specified in the Securities of
that Series, to the date of such payment or deposit, and such amount as shall be
sufficient to cover reasonable compensation to the Trustee, its agents and
counsel, and all other expenses and liabilities incurred, and all advances made,
by the Trustee except as a result of its negligence or bad faith, and if any and
all defaults under this Indenture with respect to the Securities of that Series,
other than the nonpayment of the principal of and interest on the Securities of
that Series which shall have become due by declaration, shall have been remedied
- -- then and in every such case the Holders of a majority in aggregate principal
amount of the Securities of that Series then outstanding by written notice to
the Company, the Guarantor and to the Trustee may waive all defaults and rescind
and annul such declaration and its consequences; but no such waiver or
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rescission or annulment shall extend to or shall affect any subsequent default
or shall impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the principal of any
Original Issue Discount Securities shall have been accelerated and declared due
and payable pursuant to the provisions hereof, then, from and after such
declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be deemed, for
all purposes hereunder, to be such portion of the principal thereof as shall be
due and payable as a result of such acceleration, and payment of such portion of
the principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
In case the Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned because
of such waiver or rescission or annulment or for any other reason or shall have
been determined adversely to the Trustee, then and in every such case the
Company, the Guarantor, the Trustee and the Holders of the Securities shall be
restored respectively to their former positions and rights hereunder, and all
rights, remedies and powers of the Company, the Guarantor, the Trustee and the
Holders of the Securities shall continue as though no such proceedings had been
taken.
SECTION 6.02. Collection of Indebtedness by Trustee; Trustee May Prove Debt.
The Company and the Guarantor covenants that (1) in the case default shall
be made in the payment of any installment of interest on any of the Securities
of any Series, as and when the same shall become due and payable, and such
default shall have continued for a period of 90 days, or (2) in case default
shall be made in the payment of the principal of any of the Securities of any
Series when the same shall have become due and payable, whether upon maturity or
upon redemption or upon declaration or otherwise -- then, upon demand of the
Trustee, the Company or the Guarantor will pay to the Trustee, for the benefit
of the Holders of the Securities of such Series, the whole amount that then
shall have become due and payable on all Securities of such Series for principal
(and premium, if any) and interest, with interest upon any overdue principal
(and premium, if any) and (to the extent that payment of such interest is
enforceable under applicable law) upon any overdue installments of interest at
the same rate as the rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) specified in the Securities of such Series,
and, in addition thereto, such further amount as shall be sufficient to cover
reasonable compensation to the Trustee, its agents and counsel, and all other
expenses and liabilities incurred, and all advances made, by the Trustee except
as a result of its negligence or bad faith.
In case the Company or the Guarantor shall fail forthwith to pay such
amounts upon such demand, the Trustee, in its own name and as trustee of an
express trust, shall be entitled and empowered to institute any action or
proceedings at law or in equity for the
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collection of the sums so due and unpaid, and may prosecute any such action or
proceedings to judgment or final decree and may enforce any such judgment or
final decree against the Company or the Guarantor or other obligor upon such
Securities and collect in the manner provided by law out of the property of the
Company or the Guarantor or other obliger upon such Securities wherever situated
the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the Company or the
Guarantor or any other obligor upon the Securities under Title 11 of the United
States Code or any other applicable federal or state bankruptcy, insolvency or
other similar law, or in case a receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, sequestrator or similar official shall have been
appointed for or taken possession of the Company or the Guarantor or its
property or such other obligor, or in case of any other judicial proceedings
relative to the Company or the Guarantor or other obligor upon the Securities of
any Series, or to the creditors or property of the Company, the Guarantor or
such other obligor, the Trustee, irrespective of whether the principal of any
Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
pursuant to the provisions of this Section 6.02, shall be entitled and
empowered, by intervention in such proceedings or otherwise, (a) to file and
prove a claim or claims for the whole amount of principal (or, if the Securities
of any Series are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of such Series) , premium, if
any, and interest paid and unpaid in respect of the Securities of any Series and
to file such other papers or documents as may be necessary or advisable in order
to have the claims of the Trustee (including any claim for reasonable
compensation to the Trustee, its agents and counsel, and for reimbursement of
all expenses and liabilities incurred, and all advances made, by the Trustee
except as a result of its negligence or bad faith) and of the Securityholders
allowed in any judicial proceedings relative to the Company, the Guarantor or
other obligor upon the Securities of any Series, or to the creditors or property
of the Company, the Guarantor or such other obligor, (b) unless prohibited by
applicable law and regulations, to vote on behalf of the Holders of the
Securities of any Series in any election of a trustee or a standby trustee in
arrangement, reorganization, liquidation or other bankruptcy or insolvency
proceedings or person performing similar functions in comparable proceedings,
and (c) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute all amounts received with
respect to the claims of the Securityholders and of the Trustee on their behalf
and any receiver, assignee, liquidator, custodian, trustee or other similar
official is hereby authorized by each of the Securityholders to make payments to
the Trustee and, in the event that the Trustee shall consent to the making of
payments directly to the Securityholders, to pay the Trustee such amount as
shall be sufficient to cover reasonable compensation to the Trustee, its agents
and counsel, and all other expenses and liabilities incurred, and all advances
made, by the Trustee except as a result of its negligence or bad faith.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or vote for or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities of any Series or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
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Securityholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar person.
All rights of action and to assert claims under this Indenture, or under
any of the Securities of any Series or coupons appertaining thereto, may be
enforced by the Trustee without the possession of any of the Securities of such
Series or of any coupons appertaining thereto or the production thereof in any
trial or other proceedings relative thereto, and any recovery of judgment shall
be for the ratable benefit of the holders of the Securities or coupons
appertaining to such Securities in respect of which such action was taken.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the Holders
of the Securities or coupons appertaining to such Securities in respect to which
such action was taken, and it shall not be necessary to make any Holders of such
Securities or coupons parties to any such proceedings.
In the case of an Event of Default hereunder the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture, or in aid of the exercise
of any power granted in this Indenture, or otherwise, and the Trustee may
enforce any other legal or equitable right vested in the Trustee by this
Indenture or by law.
SECTION 6.03. Application of Proceeds.
Any moneys collected by the Trustee pursuant to Section 6.02 in respect of
any Series shall be applied in the order following, at the date or dates fixed
by the Trustee and in case of the distribution of such moneys on account of
principal (or premium, if any) or interest, upon presentation (except in the
case of Uncertificated Securities) of the several Securities and coupons, if
any, appertaining to such Securities in respect of which moneys have been
collected and stamping thereon the payment if only partially paid, and upon
surrender thereof if fully paid:
First: The Trustee for amounts due under Section 7.07;
Second: In case the principal of the Securities of such Series in
respect of which moneys have been collected shall not have become due, to
the payment of interest on the Securities of such Series in default, in the
order of the maturity of the installments of such interest, with interest
(to the extent that such interest has been collected by the Trustee) upon
the overdue installments of interest, at the same rate as the rate of
interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in the Securities of such Series, such payments to be
made ratably to the persons entitled thereto;
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Third: In case the principal of the Securities of such Series in
respect of which moneys have been collected shall have become due by
declaration or otherwise, to the payment of the whole amount then owing and
unpaid upon all of the Securities of such Series for principal (and
premium, if any) and interest, with interest on the overdue principal (and
premium, if any) , and (to the extent that such interest has been collected
by the Trustee) upon overdue installments of interest, at the same rate as
the rate of interest or Yield to Maturity (in the case of Original Issue
Discount Securities) specified in the Securities of such Series, and in the
case such moneys shall be insufficient to pay in full the whole amount so
due and unpaid upon the Securities of such Series, then to the payment of
such principal (and premium, if any) and interest or Yield to Maturity
without preference or priority of principal (and premium, if any) over
interest or Yield to Maturity, or of interest over any other installment of
interest, or of any Security of such Series over any other Security of such
Series, ratably to the aggregate of such principal (and premium, if any)
and interest or Yield to Maturity; and
Fourth: To the Company.
SECTION 6.04. Limitation on Suits by Securityholders.
No Holder of any Security of any Series or any coupon appertaining thereto
shall have any right by virtue or by availing of any provision of this Indenture
to institute any action or proceeding at law or in equity or in bankruptcy or
otherwise upon or under or with respect to this Indenture, or for the
appointment of a receiver, trustee, liquidator, custodian or other similar
official or for any other remedy hereunder, unless such Holder previously shall
have given to the Trustee written notice of an Event of Default and unless also
the Holders of not less than twenty-five percent in aggregate principal amount
of the Securities of such Series then outstanding shall have made written
request upon the Trustee to institute such action or proceedings in its own name
as trustee hereunder and shall have offered to the Trustee such reasonable
indemnity, as it may require against the costs, expenses, and liabilities to be
incurred therein or thereby and the Trustee, for 60 days after its receipt of
such notice, request and offer of indemnity, shall have failed to institute any
such action or proceedings and no direction inconsistent with such written
request shall have been given to the Trustee pursuant to Section 6.06; it being
understood and intended and being expressly covenanted by the taker and Holder
of every Security or coupon with every other taker and Holder and the Trustee
that no one or more Holders of Securities of any Series or coupons appertaining
thereto shall have any right in any manner whatever by virtue or by availing of
any provision of this Indenture to affect, disturb or prejudice the rights of
any other Holder of Securities or coupons of such Series, or to obtain or seek
to obtain priority over or preference to any other such Holder, or to enforce
any right under this Indenture, except in the manner herein provided and for the
equal, ratable and common benefit of all Holders of Securities of the applicable
Series and coupons, if any, appertaining thereto. For the protection and
enforcement of the provisions of this Section 6.04, each and every
Securityholder and the Trustee shall be entitled to such relief as can be given
either at law or in equity.
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Notwithstanding any other provision in this Indenture or any provision of
any Security, the right of any Holder of any Security to receive payment of the
principal of, premium, if any and interest on such Security, on or after the
respective due dates expressed in such Security, or any redemption date, and the
right of any Holder of a coupon to receive payment of interest due as provided
in such coupon, or to institute suit for the enforcement of any such payment on
or after such respective due dates or redemption dates, shall not be impaired or
affected without the consent of such holder.
SECTION 6.05. Powers and Remedies Cumulative; Delay or Omission, Not Waiver of
Default.
All powers and remedies given by this Article Six to the Trustee or to the
Securityholders or the Holders of any coupons shall, to the extent permitted by
law, be deemed cumulative and not exclusive of any thereof or of any other
powers and remedies available to the Trustee or the Securityholders or the
Holders of any coupons, by judicial proceedings or otherwise, to enforce the
performance or observance of the covenants and agreements contained in this
Indenture, and no delay or omission of the Trustee or of any Holder of the
Securities or coupons in exercising any right or power accruing upon any Event
of Default occurring and continuing as aforesaid shall impair any such right or
power or shall be construed to be a waiver of any such default or an
acquiescence therein; and, subject to the provisions of Section 6.04, every
power and remedy given by this Article 6 or by law to the Trustee or to the
Securityholders or the Holders of any coupons may be exercised from time to
time, and as often as shall be deemed expedient, by the Trustee or by the
Securityholders or the Holders of any coupons.
SECTION 6.06. Control by Securityholders; Waiver of Defaults.
The Holders of a majority in aggregate principal amount of the Securities
of each Series affected (with each Series voting as a separate class) at the
time outstanding shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee with respect to the Securities of
such Series by this Indenture; provided that such direction shall not be
otherwise than in accordance with law and the provisions of this Indenture and
provided further that (subject to the provisions of Section 7.01) the Trustee
shall have the right to decline to follow any such direction if the Trustee,
being advised by counsel, shall determine that the action or proceeding so
directed may not lawfully be taken or if the Trustee in good faith by its board
of directors, the executive committee, or a trust committee of directors or
Responsible Officers of the Trustee shall determine that the action or
proceedings so directed would involve the Trustee in personal liability or if
the Trustee in good faith shall so determine that the actions or forebearances
specified in or pursuant to such direction would be unduly prejudicial to the
interests of Holders of the Securities of all Series so affected not joining in
the giving of said direction, it being understood that (subject to Section 7.01)
the Trustee shall have no duty to
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ascertain whether or not such actions or forebearances are unduly prejudicial to
such Holders. Nothing in this Indenture shall impair the right of the Trustee in
its discretion to take any action deemed proper by the Trustee and which is not
inconsistent with such direction or directions by Securityholders. Prior to the
declaration of the maturity of the Securities of any Series as provided in
Section 6.01, the Holders of a majority in aggregate principal amount of the
Securities of such Series at the time outstanding may on behalf of the Holders
of all the Securities of such Series waive any past default hereunder with
respect to such Series and its consequences, except a default in the payment of
the principal of or interest on any of the Securities of such Series. In the
case of any such waiver, the Company, the Guarantor, the Trustee and the holders
of the Securities of such Series shall be restored to their former positions and
rights hereunder, respectively; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 6.07. Right of Court to Require Filing of Undertaking to Pay Costs.
All parties to this Indenture agree, and each Holder of any Security or
coupon appertaining thereto, by such Holder's acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken or omitted by it as Trustee, the filing
by any party litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section 6.07 shall not apply to
any suit instituted by the Trustee, to any suit instituted by any
Securityholder, or group of Securityholders of any Series, holding in the
aggregate more than ten percent in principal amount of the Securities of such
Series outstanding, or to any suit instituted by any Securityholder for the
enforcement of the payment of the principal of (or premium, if any) or interest
on any Security on or after the due date expressed in such Security.
ARTICLE 7
TRUSTEE.
SECTION 7.01. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise its rights and powers under this Indenture and use the same
degree of care and skill in their exercise as a prudent person would exercise or
use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
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(1) The Trustee need perform only those duties that are specifically
set forth in this Indenture and no implied covenants or obligations shall be
read into this Indenture against the Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture. However, the
Trustee shall examine the certificates and opinions to determine whether or not
they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct, except
that
(1) This paragraph does not limit the effect of paragraph (b) of this
Section.
(2) The Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction received by
it pursuant to Section 6.06.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee may refuse to perform any duty or exercise any right or
power unless it receives indemnity satisfactory to it against any loss,
liability or expense.
(f) The Trustee shall not be liable for interest on any money received by
it except as the Trustee may agree with the Company. Money held in trust by the
Trustee need not be segregated from other funds except to the extent required by
law.
SECTION 7.02. Rights of Trustee.
(a) The Trustee may rely on any document believed by it to be genuine and
to have been signed or presented by the proper person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may consult with
counsel or require an Officers' Certificate or an Opinion of Counsel. The
Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on a Board Resolution, the
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written advice of counsel reasonably acceptable to the Trustee, a certificate of
an Officer or Officers delivered pursuant to Section 2.02(b), an Officers'
Certificate or an Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible for the
misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights or
powers.
(e) Unless otherwise specifically provided, any demand, request, direction
or notice from the Company shall be sufficient if signed by an Officer of the
Company.
SECTION 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner or
pledgee of Securities and may otherwise deal with the Company or an Affiliate
with the same rights it would have if it were not Trustee. Any Agent may do the
same with like rights. However, the Trustee is subject to Section 7.10 and 7.11.
SECTION 7.04. Trustee Disclaimer.
The Trustee makes no representation as to the validity or adequacy of this
Indenture, the Securities or the Guarantee. It shall not be accountable for the
Company's use of the proceeds from the Securities or for moneys paid over to the
Company pursuant to this Indenture, and it shall not be responsible for any
statement in the Securities other than its certificate of authentication.
SECTION 7.05. Notice of Default.
If a Default occurs and is continuing with respect to the Securities of any
Series and it is known to the Trustee, the Trustee shall mail to each Holder of
a Security of that Series entitled to receive reports pursuant to Section
4.02(c) (and, if Unregistered Securities of that Series are outstanding, shall
cause to be published at least once in an Authorized Newspaper in The City of
New York, and if such Securities are listed on the London Stock Exchange,
London, and, if such Securities are listed on The Luxembourg Stock Exchange,
Luxembourg) notice of the Default within 90 days after it occurs. Except in the
case of a Default in payment on the Securities of any Series, the Trustee may
withhold the notice if and so long as its Corporate Trust Committee or a
committee of its Responsible Officers in good faith determines that withholding
such notice is in the interests of Securityholders of that Series.
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SECTION 7.06. Reports by Trustee to Holders.
(a) Within 60 days after each anniversary date of the first issue of
Securities, the Trustee shall mail to each Securityholder, if any, entitled to
receive reports pursuant to Section 4.02(c) a brief report dated as of such date
that complies with TIA ss. 313(a) (but if no event described in TIA ss. 313(a)
has occurred within the twelve months preceding such date, no report need be
transmitted). Commencing at such time, the Trustee also shall comply with TIA
ss. 313(b).
(b) At the time that it mails such a report to Securityholders, the Trustee
shall file a copy of that report with the SEC and with each stock exchange on
which the Securities are listed. The Company shall provide written notice to the
Trustee when the Securities of any Series are listed on any stock exchange.
SECTION 7.07. Compensation and Indemnity.
(a) The Company shall pay to the Trustee from time to time reasonable
compensation for its services. The Trustee's compensation shall not be limited
by any law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable out-of-pocket expenses
incurred by it in connection with the performance of its duties under this
Indenture. Such expenses shall include the reasonable compensation and expenses
of the Trustee's agents and counsel.
(b) The Company shall indemnify the Trustee against any loss or liability
incurred by it arising out of or in connection with its acceptance or
administration of the trust or trusts hereunder. The Trustee shall notify the
Company promptly of any claim for which it may seek indemnity. The Company shall
defend the claim and the Trustee shall cooperate in the defense. The Trustee may
have separate counsel and the Company shall pay the reasonable fees and expenses
of such counsel. The Company need not pay for any settlement made without its
consent.
(c) The Company need not reimburse any expense or indemnify against any
loss or liability incurred by the Trustee through negligence or bad faith.
(d) To secure the payment obligations of the Company pursuant to this
Section, the Trustee shall have a lien prior to the Securities of any Series on
all money or property held or collected by the Trustee, except that held in
trust to pay principal and interest on particular Securities of a Series.
(e) If the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(d) or (e) occurs, such expenses and the
compensation for such services are intended to constitute expenses of
administration under any state or federal bankruptcy, insolvency or related law.
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SECTION 7.08. Replacement of Trustee.
(a) The resignation or removal of the Trustee and the appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section.
(b) The Trustee may resign with respect to the Securities of any Series by
so notifying the Company. The Holders of a majority in principal amount of the
Securities of any Series may remove the Trustee with respect to that Series by
so notifying the Trustee and the Company and may appoint a successor Trustee for
such Series with the Company's consent. The Company may remove the Trustee with
respect to Securities of any Series if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or public officer takes charge of the Trustee or its
property or;
(4) the Trustee becomes incapable of acting.
(c) If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, with respect to Securities of any Series, the
Company shall promptly appoint a successor Trustee for such Series.
(d) If a successor Trustee with respect to the Securities of any Series
does not take office within 30 days after the retiring Trustee resigns or is
removed, the retiring Trustee, the Company or the Holders of a majority in
principal amount of the Securities of the applicable Series may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
(e) If the Trustee with respect to the Securities of any Series fails to
comply with Section 7.10, after request therefor by any Securityholder of the
applicable Series who has been a bona fide Holder of a Security of such Series
for at least six months, then such Holder may petition any court of competent
jurisdiction for the removal of such Trustee and the appointment of a successor
Trustee.
(f) A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee for any Series of Securities
shall become effective, and the successor Trustee shall have all the rights,
powers and duties of the retiring Trustee with respect to all Series of
Securities for which the successor Trustee is to be acting as Trustee under this
Indenture. The retiring Trustee shall promptly transfer all property held by it
as Trustee with respect to such Series of Securities
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to the successor Trustee subject to the lien provided for in Section 7.07. The
Company shall give notice of each appointment of a successor Trustee for any
Series of Securities by publishing notice of such event once in an Authorized
Newspaper in The City of New York, and if Securities of that Series are listed
on the London Stock Exchange, London, and if Securities of that Series are
listed on the Luxembourg Stock Exchange, Luxembourg, and by mailing written
notice of such event by first-class mail to the Holders of Securities of such
Series entitled to receive reports pursuant to Section 4.02(c).
(g) All provisions of this Section 7.08 except subparagraphs (b)(1) and (e)
and the words "subject to the lien provided for in Section 7.07" in subparagraph
(f) shall apply also to any Paying Agent located outside the U.S. and its
possessions as required by Section 2.04.
(h) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) Series, the Company, the
retiring Trustee and such successor Trustee shall execute and deliver a
supplemental indenture wherein such successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, such successor Trustee all
the rights, powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those Series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to the Securities of a Series, shall contain such provisions as shall be
deemed necessary ro desirable to confirm that the trusteeship for Securities of
that or those Series as to which the retiring Trustee is not retiring shall
continue to be vested in the retiring Trustee, and (3) shall add to or change
any of the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Trustee,
it being understood that nothing herein or in such supplemental indenture shall
constitute such Trustees as co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee.
SECTION 7.09. Successor Trustee, Agents by Merger, etc.
If the Trustee or any Agent consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business assets to,
another corporation, the successor corporation, without any further act, shall
be the successor Trustee or Agent, as the case may be.
SECTION 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee with respect to each Series of
Securities who satisfies the requirement of TIA 'SS' 310(a)(1) and (5). The
Trustee shall always have a combined capital and surplus of at least
$100,000,000 as set forth in its most recent published annual report of
condition. The Trustee is subject to TIA 'SS' 310(b) during the period of
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time required thereby, except that there shall be excluded from the operation of
TIA 'SS' 310(b)(1) all indentures of the Company now or hereafter existing which
may be excluded under the proviso of TIA 'SS' 310(b)(1) including the Indenture
dated as of April 9, 1990, as amended between the Company and The Chase
Manhattan Bank (formerly known as Chemical Bank), as Trustee, and the Indenture
dated as of June 1, 1992, as amended between the Company and The Chase Manhattan
Bank (formerly known as Chemical Bank), as Trustee and the Indenture dated as of
July 1, 1993, as amended, between the Company and The Chase Manhattan Bank
(formerly known as Chemical Bank). Nothing herein shall prevent the Trustee from
filing with the SEC the application referred to in the penultimate paragraph of
TIA 'SS' 310(b).
SECTION 7.11. Preferential Collection of Claims Against Company.
The Trustee if subject to TIA 'SS' 311(a), excluding any creditor
relationship listed in TIA 'SS' 311(b). A Trustee who has resigned or been
removed shall be subject to TIA 'SS' 311(a) to the extent indicated.
SECTION 7.12. Authenticating Agent.
The Trustee may appoint an authenticating agent or agents acceptable to the
Company and the Trustee with respect to the Securities of one or more Series
which shall be authorized to act on behalf of the Trustee to Authenticate
Certificated and Uncertificated Securities of such Series issued upon original
issue, exchange, registration of transfer, partial redemption, conversion or
payment or substitution of Securities pursuant to any provision contained in
this Indenture. Securities so Authenticated shall be entitled to the benefits of
this Indenture and shall be valid and obligatory for all purposes as if
Authenticated by the Trustee hereunder and every reference herein to the
Authentication and delivery of Securities by the Trustee or the Trustee's
certificate of Authentication on Certificated Securities or the issuance of
Statements of Account by the Trustee shall be deemed to include Authentication
and delivery on behalf of the Trustee by an authenticating agent and a
certificate of Authentication on Certificated Securities executed on behalf of
the Trustee by an authenticating agent and the issuance of Statements of Account
on behalf of the Trustee by an authenticating agent. Each authenticating agent
shall at all times be a corporation organized and doing business under the laws
of the United States of America or any state thereof or the District of Columbia
and authorized under such laws to act as an authenticating agent.
Any corporation into which an authenticating agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such authenticating agent
shall be a party, or any corporation succeeding to the corporate agency or all
or substantially all of the business of an authenticating agent, shall continue
to be an authenticating agent, provided that such corporation shall be otherwise
eligible under this Section 7.12, without the execution or filing of any paper
or any further act on the part of the Trustee or the authenticating agent.
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An authenticating agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an authenticating agent by giving written notice hereof to such
authenticating agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
authenticating agent shall cease to be eligible in accordance with the
provisions of this Section 7.12, the Trustee may appoint a successor
authenticating agent which shall be acceptable to the Company. Any successor
authenticating agent upon acceptance of its appointment hereunder shall become
vested with all rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an authenticating agent. No successor
authenticating agent shall be appointed unless eligible under the provisions of
this Section 7.12.
The Company agrees to pay to each authenticating agent from time to time
reasonable compensation for its services under this Section 7.12.
The Trustee shall not incur any liability for the appointment by the
Trustee of any authenticating agent or for any misconduct or negligence of any
such authenticating agent, including without limitation, its authentication of
Securities upon original issuance or otherwise. If the Trustee does incur
liability for any such misconduct or negligence of any such authenticating
agent, the Company agrees to indemnify the Trustee for, and hold it harmless
against, any such liability, including the costs and expenses of defending
itself against any liability in connection with such misconduct or negligence of
such authenticating agent.
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If an authenticating agent is appointed with respect to the Securities of
one or more Series pursuant to this Section 7.12, the Certificated Securities of
such Series may have endorsed thereon, in addition to or in lieu of the
Trustee's certificate of Authentication, an alternate certificate of
Authentication in the following form:
"This is one of the Certificated Securities of the Series designated
therein referred to in the within-mentioned Indenture.
The Chase Manhattan Bank, as Trustee
By
--------------------------------------
As Authenticating Agent
By
--------------------------------------
Authorized Officer"
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ARTICLE 8
SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE;
UNCLAIMED MONIES.
SECTION 8.01. Satisfaction and Discharge of Indenture.
If at any time (a) the Company shall have delivered to the Trustee
cancelled or for cancellation all Securities of any Series theretofore
authenticated and all unmatured coupons, if any, appertaining thereto (other
than any Securities of such Series and coupons appertaining thereto which shall
have been destroyed, lost or stolen and which shall have been replaced or paid
as provided in Section 2.09), or (b) in the case of any Series of Securities
where the exact amount (including currency of payment) of principal of and
interest due on which can be determined at the time of making the deposit
referred to in clause (ii) below, (i) all the Securities of such Series and all
unmatured coupons appertaining thereto, not theretofore delivered to the Trustee
cancelled or for cancellation shall have become due and payable, or are by their
terms to become due and payable within one year or are to be called for
redemption within one year under arrangements satisfactory to the Trustee for
the giving of notice of redemption, and (ii) the Company or the Guarantor shall
deposit or cause to be deposited with the Trustee as trust funds the entire
amount in cash sufficient to pay at maturity or upon redemption all such
Securities not theretofore delivered to the Trustee cancelled or for
cancellation, including principal (and premium, if any) and interest due or to
become due to such date of maturity or date fixed for redemption, as the case
may be, or (c) in the case of any Series of Securities which have a floating or
variable rate of interest that cannot exceed a specified or determinable maximum
rate of interest, (i) all the Securities of such Series and all unmatured
coupons appertaining thereto, not theretofore delivered to the Trustee cancelled
or for cancellation shall have become due and payable, or are by their terms to
become due and payable within one year or are to be called for redemption within
one year under arrangements satisfactory to the Trustee for the giving of notice
of redemption, and (ii) the Company or the Guarantor shall deposit or cause to
be deposited with the Trustee as trust funds the entire amount in cash
sufficient to pay each installment of interest on such Series of Securities not
theretofore delivered to the Trustee for cancellation at the applicable
specified or determined maximum rate of interest thereon on the dates such
installments of interest are due and sufficient to pay the principal of (and
premium, if any, on) the Securities of such Series not theretofore delivered to
the Trustee for cancellation at maturity or upon redemption, but excluding,
however, in each of the foregoing cases, the amount of any moneys for the
payment of principal of (and premium, if any) or interest on the Securities (1)
theretofore deposited with the Trustee and repaid by the Trustee to the Company
in accordance with the provisions of Section 8.05, or (2) paid to any state or
to the District of Columbia pursuant to its unclaimed property or similar laws,
and if in either case the Company or the Guarantor shall also pay or cause to be
paid all other sums payable hereunder by the Company or the Guarantor, then this
Indenture shall cease to be of further effect with respect to the Securities of
such Series (except as to the provisions applicable to transfers and exchanges
of Securities of such Series and any coupons appertaining thereto) and the
Trustee on demand of and at the cost and expense of the Company, shall execute
proper instruments acknowledging
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satisfaction of and discharging this Indenture with respect to the Securities of
such Series. The Company agrees to reimburse the Trustee for any costs or
expenses thereafter reasonably and properly incurred by the Trustee in
connection with this Indenture or the Securities.
SECTION 8.02. Defeasance upon Deposit of Moneys or U.S. Government Obligations.
In the case of any Series of Securities, the exact amounts (including the
currency of payment) of principal of and interest due on which can be determined
at the time of making the deposit referred to in clause (1) below, at the
Company's option, either (i) the Company and the Guarantor shall be deemed to
have been Discharged (as defined below) from its obligations with respect to the
Securities of such Series and coupons, if any, appertaining thereto or (ii) the
Company and the Guarantor shall cease to be under any obligation to comply with
any term, provision or condition set forth in Sections 4.03 and 5.01 with
respect to the Securities of such Series at any time after the applicable
conditions set forth below have been satisfied:
(1) the Company or the Guarantor shall have deposited or caused to be
deposited irrevocably with the Trustee as trust funds in trust,
specifically pledged as security for, and dedicated solely to, the
benefit of the holders of the Securities of such Series and coupons
appertaining thereto (i) money in an amount, or (ii) in the case of
any Series of Securities the payments on which may only be made in
U.S. dollars, U.S. Government Obligations which through the payment of
interest and principal in respect thereof in accordance with their
terms will provide, not later than one day before the due date of any
payment, money in an amount, or (iii) a combination of (i) and (ii),
sufficient in each case in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge each
installment of principal of, and interest on, the outstanding
Securities of such Series and coupons appertaining thereto on the
dates such installments of interest or principal are due;
(2) if the Securities of such Series are then listed on the New York Stock
Exchange, the Company shall have delivered to the Trustee an opinion
of Counsel to the effect that the Company's exercise of its option
under this paragraph would not cause such Securities to be delisted;
(3) no Event of Default or event (including such deposit) which with
notice or lapse of time would become an Event of Default with respect
to the Securities of such Series shall have occurred and be continuing
on the date of such deposit and no Event of Default under Section
6.01(d) or (e) shall have occurred by the 91st day after such deposit
in connection with a deposit under Clause (1) of this Section 8.02 to
Discharge the Company or
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the Guarantor from its obligations with respect to the Securities of
such Series; and
(4) the Company shall have delivered to the Trustee an opinion of
independent counsel satisfactory to the Trustee to the effect that
Holders of the Securities of such Series and coupons appertaining
thereto will not recognize income, gain or loss for Federal income tax
purposes as a result of the Company's exercise of its option under
this Section 8.02 and will be subject to Federal income tax on the
same amount and in the same manner and at the same time as would have
been the case if such option had not been exercised, which opinion
may, but is not required to, include or be based upon a ruling to that
effect received from or published by the Internal Revenue Service.
"Discharged" means that the Company and the Guarantor shall be deemed to
have paid and discharged the entire indebtedness represented by, and obligations
under, the Securities of such Series and coupons appertaining thereto and the
Guarantee relating thereto and to have satisfied all the obligations under this
Indenture relating to the Securities of such Series and coupons appertaining
thereto (and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), except (A) the rights of holders of the
Securities of such Series and coupons appertaining thereto to receive, from the
trust fund described in clause (1) above, payment of the principal of and the
interest on such Securities of such Series and coupons when such payments are
due; (B) the Company's obligations with respect to such Securities of such
Series under Sections 2.04, 2.08, 2.09, 2.11 and 8.03; and (C) the rights,
powers, trusts, duties and immunities of the Trustee hereunder.
This Indenture may be Discharged pursuant to this Section 8.02 with respect
to Securities of a Series which have a floating or variable rate of interest
that cannot exceed a specified or determinable maximum rate of interest by
deposit, in accordance with clause (1) of this Section 8.02, with respect to the
interest payments required to be made on the outstanding Securities of such
Series of money and/or U.S. Government Obligations sufficient (determined in
accordance with clause (1) of this Section 8.02) to pay and discharge each
installment of interest on the outstanding Securities of such Series at the
applicable specified or determined maximum rate of interest thereon on the dates
such installments of interest are due and the satisfaction of all other
requirements of this Section 8.02.
SECTION 8.03. Application of Moneys Deposited.
All moneys deposited with the Trustee pursuant to Section 8.01 or 8.02
shall be held in trust and applied by it to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying Agent),
to the Holders of the particular Securities of such Series and of coupons
appertaining thereto for the payment or redemption of
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which such moneys have been deposited with the Trustee, of all sums due, and to
become due thereon for principal and interest.
SECTION 8.04. Repayment of Moneys Held.
In connection with the satisfaction and discharge of this Indenture with
respect to the Securities of any Series, all moneys then held by any Paying
Agent under the provisions of this Indenture with respect to such Series of
Securities shall, upon demand of the Company, be repaid to it or paid to the
Trustee and thereupon such Paying Agent shall be released from all further
liability with respect to such moneys.
SECTION 8.05. Return of Moneys Unclaimed for Two Years; Return of Additional
Moneys and U.S. Government Obligations.
(a) Any moneys deposited with or paid to the Trustee or any Paying Agent
pursuant to any provision of this Indenture for payment of the principal of (and
premium, if any) or interest on the Securities of any Series and any coupon
appertaining thereto and not applied but remaining unclaimed for two years after
the date upon which the principal of (and premium, if any) or interest on such
Securities or coupons, as the case may be, shall have become due and payable,
shall be repaid to the Company by the Trustee or such Paying Agent on demand;
and the Holder of any of the Securities of such Series or coupons appertaining
thereto shall thereafter look only to the Company for any payment which such
Holder may be entitled to collect and all liability of the Trustee or any Paying
Agent with respect to such moneys shall thereupon cease; provided, however, that
the Trustee or such Paying Agent, before being required to make any such
repayment with respect to moneys deposited with it for any payment (a) in
respect of Registered Securities of any Series, shall at the expense of the
Company, mail by first-class mail to Holders of such Securities at their
addresses as they shall appear on the Security register, and (b) in respect of
Unregistered Securities of any Series, shall at the expense of the Company cause
to be published once, in an Authorized Newspaper in the Borough of Manhattan,
The City of New York, and if the Securities of such Series are listed on the
London Stock Exchange, once in an Authorized Newspaper in London, and if the
Securities of such Series are listed on the Luxembourg Stock Exchange, once in
an Authorized Newspaper in Luxembourg, notice, that such moneys remain and that,
after a date specified therein, which shall not be less than thirty days from
the date of such mailing or publication, any unclaimed balance of such money
then remaining will be repaid to the Company.
(b) Any moneys or U.S. Government Obligations remaining on deposit with the
Trustee pursuant to Section 8.01 or 8.02 with respect to Securities of a Series
(including Securities of a Series which have a floating or variable rate of
interest that cannot exceed a specified or determinable maximum rate of
interest) shall, after payment of all amounts of principal of and interest on
and other amounts due with respect to the outstanding Securities of such Series,
be promptly remitted by the Trustee to the Company.
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SECTION 8.06. Indemnity for Government Obligations.
The Company shall pay and shall indemnify the Trustee and each
Securityholder of each Series in respect of which the deposit shall have been
made against any tax, fee or other charge imposed on or assessed against
deposited U.S. Government Obligations or the principal and interest received on
such obligations.
ARTICLE 9
AMENDMENTS AND WAIVERS.
SECTION 9.01. Without Consent of Holders.
The Company, the Guarantor and the Trustees may enter into one or more
supplemental indentures without consent of any Securityholder for any of the
following purposes:
(1) to cure any ambiguity, defect or inconsistency herein or in the
Securities of any Series or to make any other change, provided no such
action shall adversely affect the rights of any Securityholder; or
(2) to comply with Article 5; or
(3) to secure the Securities pursuant to Section 4.03; or
(4) to provide for Uncertificated Securities in addition to or in place of
Certificated Securities; or
(5) to provide for the issuance of and establish the form and terms and
conditions of Securities of any Series as provided in Section 2.02, to
establish the form of any certifications required to be furnished
pursuant to the terms of this Indenture or any Series of Securities,
or to add to the rights of the Holders of any Series of Securities, or
to surrender any right or power conferred on the Company.
SECTION 9.02. With Consent of Holders.
(a) With the written consent of the Holders of a majority in principal
amount of the outstanding Securities of each Series affected by such
supplemental indenture (with each Series voting as a class), the Company,
the Guarantor and the Trustee may enter into a supplemental indenture to add any
provisions to or to change or eliminate any provisions of this Indenture or of
any supplemental indenture or to modify, in each case in any manner not covered
by Section
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9.01, the rights of the Securityholders of each such Series. The Holders of a
majority in principal amount of the outstanding Securities of each Series
affected by such waiver (with each Series voting as a class), by notice to the
Trustee, may waive compliance by the Company or the Guarantor with any provision
of this Indenture, any supplemental indenture or the Securities of any such
Series; but no such waiver shall extend to or affect (x) any other Series or
Securities or (y) such provision except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company and the
Guarantor and duties of the Trustee in respect to any such provision shall
remain in full force and effect, provided, however, without the consent of each
Securityholder affected, an amendment or waiver may not:
(1) reduce the amount of Securities whose Holders must consent to an
amendment or waiver;
(2) change the rate of or change the time for payment of interest on
any Security;
(3) change the principal of or change the fixed maturity of any
Security;
(4) waive a Default in the payment of the principal of or interest on
any Security;
(5) make any Security payable in money other than that stated in the
Security; or
(6) make any changes in Sections 6.04 (last paragraph), 6.06 (third
sentence), or the proviso in the last sentence of Section
9.02(a).
(b) It is not necessary under this Section 9.02 for the Securityholders to
consent to the particular form of any proposed supplemental indenture, but it is
sufficient if they consent to the substance thereof.
(c) Promptly after the execution by the Company, the Guarantor and the
Trustee of any supplemental indenture pursuant to the provisions of this Section
9.02, the Company shall transmit by mail a notice, setting forth in general
terms the substance of such supplemental indenture, to all Holders of Registered
Securities, as the names and addresses of such holders appear on the register
for each Series of Securities, and to such Holders of Unregistered Securities
that are entitled to receive reports pursuant to Section 4.02(c). Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental indenture.
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SECTION 9.03. Compliance with Trust Indenture Act.
Every amendment to this Indenture or the Securities of one or more Series
shall be set forth in a supplemental indenture that complies with the TIA as
then in effect.
SECTION 9.04. Revocation and Effect of Consents.
Until an amendment, direction or waiver becomes effective, a consent to it
by a Holder of a Security is a continuing consent by the Holder and every
subsequent Holder of a Security or portion of a Security that evidences the same
debt as the consenting Holder's Security, even if notation of the consent is not
made on any Security. However, any such Holder (or, if no record date has been
established for the solicitation of consents, any subsequent Holder) may revoke
the consent as to his Security or portion of a Security if the Trustee receives
the notice of revocation before the date the amendment, direction or waiver
becomes effective. After an amendment or waiver becomes effective, it shall bind
ever Securityholder of each Series affected by such amendment or waiver.
SECTION 9.05. Notation on or Exchange of Securities.
The Trustee may, at the direction of the Company, place an appropriate
notation about an amendment or waiver on any Security of any Series thereafter
authenticated. The Company in exchange for Securities of that Series may issue
and the Trustee shall authenticate new Securities of that Series that reflect
the amendment or waiver.
SECTION 9.06. Trustee Protected.
The Trustee need not sign any supplemental indenture that adversely affects
its rights, duties, obligations and standard of care hereunder.
ARTICLE 10
MISCELLANEOUS.
SECTION 10.01. Trust Indenture Act Controls.
If and to the extent that any provision of this Indenture limits, qualifies
or conflicts with the duties imposed by, or with another provision (an
"incorporated provision") included in this Indenture by operation of, Sections
310 to 318, inclusive of the Trust Indenture Act of 1939, such imposed duties or
incorporated provision shall control.
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SECTION 10.02. Notices.
(a) Unless otherwise herein provided, any notice or communication by the
Company, the Guarantor or the Trustee to any of the other is duly given if in
writing and delivered in person or mailed by first-class mail:
if to the Company to :
AT&T Capital Corporation
44 Whippany Road
Morristown, NJ
07962-1963
if to the Trustee to:
The Chase Manhattan Bank
450 West 33rd Street
New York, NY 10001
Attention: Corporate Trustee
Administration Department
if to the Guarantor to:
Newcourt Credit Group Inc.
BCE Place
181 Bay Street, Suite 3500
Toronto, Ontario
Canada M5J2T3
(b) The Company, the Guarantor or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
(c) Any notice or communication to Holders of Securities entitled to
received reports pursuant to Section 4.02(c) shall be mailed by first-class mail
to the addresses for Holders of Registered Securities shown on the register kept
by the Registrar and to addresses filed with the Trustee for other Holders.
Failure to so mail a notice or communication or any defect in such notice or
communication shall not affect its sufficiency with respect to other Holders of
Securities of that or any other Series entitled to receive notice.
(d) If a notice or communication is mailed in the manner provided above
within the time prescribed, it is conclusively presumed to have been duly given,
whether or not the addressee receives it.
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(e) If the Company mails a notice or communication to Securityholders, it
shall mail a copy to the Guarantor, the Trustee and to each Agent at the same
time.
(f) If it shall be impractical in the opinion of the Trustee, the Guarantor
or the Company to make any publication of any notice required hereby in an
Authorized Newspaper, any publication or other notice in lieu thereof which is
made or given with the approval of the Trustee shall constitute a sufficient
publication of such notice.
(g) In case, by reason of the suspension of regular mail service, or by
reason of any other cause, it shall be impossible to mail any notice as required
by this Indenture, then such method of notification as shall be made with the
approval of the Trustee shall constitute a sufficient mailing of such notice.
SECTION 10.03. Communication by Holders with Other Holders.
Securityholders of any Series may communicate pursuant to TIA 'SS' 312(b)
with other Securityholders of that Series or of all Series with respect to their
rights under this Indenture or under the Securities of that Series or of all
Series. The Company, the Trustee, the Registrar and anyone else shall have the
protection of TIA 'SS' 312(c).
SECTION 10.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company or the Guarantor to the
Trustee to take any action under this Indenture, the Company or the Guarantor,
as the case may be, shall furnish to the Trustee:
(1) an Officers' Certificate stating that, in the opinion of the signers,
all conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such counsel, all
such conditions precedent have been complied with.
SECTION 10.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than statements delivered
pursuant to Section 4.04) shall include:
(1) a statement that the person making such certificate or opinion has
read such covenant or condition;
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(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such person he has made such
examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether or not, in the opinion of such person, such
condition or covenant has been complied with.
SECTION 10.06. Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday, or a day on which banking
institutions are not required to be open.
SECTION 10.07. Governing Law.
This Indenture, each Security and any coupons shall be deemed to be a
contract made under the laws of the State of New York, and for all purposes
shall be construed in accordance with the laws of said State.
SECTION 10.08. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or debt
agreement of the Company, the Guarantor or an Affiliate. No such indenture, loan
or debt agreement may be used to interpret this Indenture.
SECTION 10.09. No Recourse Against Others.
No director, officer, employee or stockholder, as such, of the Company or
the Guarantor shall have any liability for any obligations of the Company or the
Guarantor under the Securities or the Indenture or for any claim based on, in
respect of or by reason of such obligations or their creation. Each
Securityholder by accepting a Security waives and releases all such liability.
The waiver and release are part of the consideration for the issue of the
Securities.
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SECTION 10.10. When Treasury Securities Disregarded.
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, waiver or consent, Securities owned
by the Company or any Affiliate of the Company shall be disregarded, except that
for the purposes of determining whether the Trustee shall be protected in
relying on any such direction, waiver or consent, only Securities which the
Trustee knows are so owned shall be so disregarded. Securities so owned which
have been pledged in good faith shall not be disregarded if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to the Securities and that the pledgee is not the Company or an
affiliate of the Company.
SECTION 10.11. Rules by Trustee, Paying Agent, Registrar, Record Dates.
The Trustee may make reasonable rules for action by or a meeting of
Securityholders. The Paying Agent or Registrar may make reasonable rules for its
functions. The Company may set a record date for purposes of determining the
identity of Holders entitled to vote or consent to any action by vote or consent
authorized or permitted under this Indenture, which record date, in the case of
a consent or vote pursuant to Section 6.06, shall be the later of 10 days prior
to the first solicitation of such consent or the date of the most recent list of
Holders furnished to the Trustee pursuant to Section 2.07 of this Indenture
prior to such solicitation. If a record date is fixed, those persons who were
Holders of Securities at such record date (or their duly designated proxies),
and only those persons, shall be entitled to take such action by vote or consent
or to revoke any vote or consent previously given, whether or not such persons
continue to be Holders after such record date. No such vote or consent shall be
valid or effective for more than 120 days after such record date.
SECTION 10.12. Execution in Counterparts.
This Indenture may be executed in any number of counterparts, each of which
shall be an original, but such counterparts shall together constitute but one
instrument.
SECTION 10.13. Securities in a Foreign Currency.
Unless otherwise specified in a Company Order delivered pursuant to Section
2.03(d) of this Indenture with respect to a Series of Securities, whenever for
purposes of this Indenture any action may be taken by the holders of a specified
percentage in aggregate principal amount of Securities of all Series or all
Series affected at the time outstanding and, at such time, there are outstanding
Securities of any Series which are denominated in a coin or currency other than
United States dollars, then the principal amount of Securities of such Series
which shall be deemed to be outstanding for the purpose of taking such action
shall be that amount of United
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States dollars that could be obtained for such amount at the Market Exchange
Rate, as such rate shall be certified to the Trustee by an Officers'
Certificate. For purposes of this Section 10.13, Market Exchange Rate shall mean
the noon United States dollar buying rate for that currently for cable transfers
quoted in New York City as certified for customs purposes by the Federal Reserve
Bank of New York; provided, however, in the case of Euros ("Euros"), Market
Exchange Rate shall mean the rate of exchange determined by the Commission of
the European Communities (or any successor thereof) as published in the Official
Journal of the European Communities (such publication or any successor
publication, the "Journal"). If such Market Exchange Rate is not available
for any reason with respect to such currency, the Company shall use, in its
sole discretion and without liability on its part, (i) such quotation of
the Federal Reserve Bank of New York, or, in the case of Euros, the rate of
exchange as published in the Journal, as the most recent available date or (ii)
quotations or, in the case of Euros, rates of exchange from one or more major
banks in New York City or in the country of issue of the currency in question,
which for purposes of the Euros shall be Brussels, Belgium, or such other
quotations or, in the case of Euros, rates of exchange as the Company shall deem
appropriate. The provisions of this paragraph shall apply in determining the
equivalent number of votes which each Holder or proxy shall be entitled to in
respect of Securities of a Series denominated in a currency other than United
States dollars.
All decisions and determinations of the Company regarding the Market
Exchange Rate shall be in its sole discretion and shall, in the absence of
manifest error, be conclusive for all purposes and irrevocably binding upon the
Company, the Trustee and all Holders.
SECTION 10.14. Judgment Currency.
Each of the Company and the Guarantor agrees, to the fullest extent that it
may effectively do so under applicable law, that (a) if for the purpose of
obtaining judgment in any court it is necessary to convert any sum due in
respect of the principal of or interest on the Securities of any Series (the
"Required Currency") into a currency in which such judgment will be rendered
(the "Judgment Currency"), the rate of exchange used shall be the rate at which
in accordance with normal banking procedures the Trustee could purchase in The
City of New York the Required Currency with the Judgment Currency on the day on
which final judgment is entered, unless such day is not a New York Banking Day
then, to the extent permitted by applicable law, the rate of exchange used shall
be the rate at which in accordance with normal banking procedures the Trustee
could purchase in The City of New York the Required Currency with the Judgment
Currency on the New York Banking Day preceding the day on which final judgment
is entered and (b) its obligations under this Indenture to make payments in the
Required Currency (i) shall not be discharged or satisfied by any tender, or any
recovery pursuant to any judgment (whether or not entered in accordance with
subsection (a)), in any currency other than the Required Currency, except to the
extent that such tender or recovery shall result in the actual receipt, by the
payee, of the full amount of the Required Currency expressed to be payable in
respect of such payments, (ii) shall be enforceable as an alternative or
additional cause of action for the purpose of recovering in the Required
Currency the amount, if any, by which such actual receipt shall fall short of
the full amount of the Required Currency so
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expressed to be payable and (iii) shall not be affected by judgment being
obtained for any other sum due not previously tendered or recovered under this
Indenture. For purposes of the foregoing, "New York Banking Day" means any day
except a Saturday, Sunday or a legal holiday in The City of New York or a day on
which banking institutions in The City of New York are authorized by law or
required by executive order to close.
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IN WITNESS WHEREOF, the undersigned have caused this Indenture to be duly
executed as of the date and year first above written.
AT&T CAPITAL CORPORATION
By
-------------------------------
Treasurer
Attest:
- --------------------------------
Assistant Secretary
THE CHASE MANHATTAN BANK
By
-------------------------------
Vice President
Attest:
- --------------------------------
Assistant Trust Officer
NEWCOURT CREDIT GROUP INC.
By
-------------------------------
Attest:
- --------------------------------
Assistant Secretary
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STATE OF NEW JERSEY )
) ss.: Morristown, N.J.
COUNTY OF MORRIS )
On the ____ day of March, 1998, before me personally came ______________,
to me known, who, being by me duly sworn, did depose and say that he resides at
_____________, that he is the Treasurer of AT&T Capital Corporation, one of the
corporations described in and which executed the above instrument, and that he
signed his name thereto by like authority.
-------------------------------
Notary Public
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STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ____ day of March, 1998, before me personally came Gregory K.
McFarlane, to me known, who, being by me duly sworn, did depose and say that
he resides at _______________, that he is a Vice President of The Chase
Manhattan Bank, one of the corporations described in and which executed the
above instrument, and that he signed his name thereto by like authority.
-------------------------------
Notary Public
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STATE OF NEW JERSEY )
) ss.: Morristown, N.J.
COUNTY OF MORRIS )
On the ___ day of March, 1998, before me personally came _____________, to
me known, who, being by me duly sworn, did depose and say that he resides at
__________, that he is the _________ of Newcourt Credit Group Inc., one of the
corporations described in and which executed the above instrument, and that he
signed his name thereto by like authority.
-------------------------------
Notary Public
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EXHIBIT 4J
GUARANTEE
Guarantee dated as of April 1, 1998, made by Newcourt Credit
Group Inc. (the "Guarantor"), a corporation incorporated under the laws of the
Province of Ontario, to and in favor of The Chase Manhattan Bank, as Trustee
(the "Trustee") under the Indenture (as defined herein), for the benefit of the
registered holders of the Securities (as defined herein) (collectively, the
"Holders").
WHEREAS the Guarantor is the owner of all the issued and
outstanding capital stock of AT&T Capital Corporation (the "Company");
AND WHEREAS the Company will issue from time to time debt
securities (the "Securities") pursuant to the Indenture dated as of April 1,
1998 by and among the Guarantor, the Company and the Chase Manhattan Bank, as
Trustee (the "Indenture").
NOW THEREFORE, in consideration of the foregoing premises, and
other good and valuable consideration given by the Holders and the Company to
the Guarantor, the receipt and sufficiency of which are hereby acknowledged, the
Guarantor hereby agrees as follows:
SECTION 1. GUARANTEE. The Guarantor hereby, irrevocably and
unconditionally guarantees (as a guarantor and not as a surety) to the holders
of the Securities the due and punctual payment of the principal of, premium, if
any, and interest on such Securities when and as the same shall become due and
payable, whether at maturity, upon redemption or otherwise, according to the
terms of the Indenture; (the obligations set forth in this Section 1 being
herein called the "Guaranteed Obligations").
SECTION 2. ABSOLUTE LIABILITY. The Guarantor hereby guarantees
that the Guaranteed Obligations will be paid to the Holders strictly in
accordance with the terms and conditions hereof, and that the liability of the
Guarantor under this Guarantee shall be absolute and unconditional irrespective
of:
(a) the validity or enforceability of the the Securities or the
Indenture;
(b) any contest by the Company or any other person as to the amount
of the Guaranteed Obligations or the validity or enforceability
of the Securities or the Indenture;
(c) any defense, counter-claim or right of set-off available to the
Company;
(d) any extension of the time or times for payment of the Guaranteed
Obligations or any other indulgences which the Holders may grant
to the Company or any amendment to or alteration of the Indenture
or the Securities; and
(e) any other circumstances which might otherwise constitute a
defense available to, or a discharge of, the Guarantor, the
Company or any other person in
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respect of the Guaranteed Obligations or the Guarantor in respect of the
Guarantee.
SECTION 3. REMEDIES. The guarantee set forth in Section 1
constitutes a present and continuing guarantee of payment and performance and
not of collection. The Guarantor agrees that its obligations hereunder shall be
joint and several with any and all other guarantees given in connection with the
Guaranteed Obligations from time to time. The Guarantor agrees that the Holders
shall not be bound to exhaust their recourse against the Company or any other
person or to make demand upon the Company or to realize on any security they may
hold in respect of the Guaranteed Obligations before being entitled to payment
or performance hereunder. The Guarantor hereby waives the right to require the
Holders to join the Company in any action brought hereunder or to commence any
action against or obtain any judgment against the Company or to pursue any other
remedy or enforce any other right. The Guarantor further agrees that nothing
contained herein or otherwise shall prevent the Holders from pursuing
concurrently or successively all rights and remedies available to them at law
and/or in equity or under the Indenture, and the exercise of any of their rights
or the completion of any of their remedies shall not constitute a discharge of
any of Guarantor's obligations hereunder.
SECTION 4. PAYMENT ON DEMAND. The Guarantor shall make payment of
the amount of the Guaranteed Obligations and all other amounts payable by it to
the Holders hereunder forthwith after demand therefor is made in writing to it
and such demand shall be deemed to have been effectively made when either an
envelope containing such demand, addressed to it c/o Newcourt Credit Group, BCE
Place, 181 Bay Street, P.O. Box 827, Toronto, Ontario, M5J 2T3 for the attention
of President, is personally delivered to such address or a facsimile
transmission containing such demand is sent to the Guarantor, for the attention
of its President, at the following fax number: (416) 594-5248.
SECTION 5. SUBROGATION. Upon receipt by the Holders of any
payment or payments on account of liability under this Guarantee, the Guarantor
shall not be entitled to claim repayment against the Company until the claims of
the Holders against the Company in respect of the Guaranteed Obligations have
been repaid in full; and in the case of the liquidation, winding-up or
bankruptcy of the Company (whether voluntary or compulsory) or in the event that
the Company shall make a bulk sale of any of the Company's assets within the
provisions of any bulk sales legislation or makes an assignment for the benefit
of creditors or the assets of the Company are distributed to creditors for any
other reason, the Holders shall have the right to rank in priority to the
Guarantor for their full claims in respect of the Guaranteed Obligations and
receive all distributions and other payments in respect thereof until their
claims in respect of the Guaranteed Obligations have been paid in full, and the
Guarantor shall continue to be liable, less any payments made by or on behalf of
the Guarantor, for any balance which may be owing to the Holders by the Company.
If any amount shall be paid to the Guarantor on account of any subrogation
rights at any time when all the Guaranteed Obligations shall not have been paid
in full, such amount shall be held in trust for the benefit of the Holders and
shall forthwith be paid to the Holders.
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SECTION 6. SUBORDINATION. All obligations, liabilities and
indebtedness of the Company to the Guarantor of any nature whatsoever (the
"Corporate Indebtedness") be subordinated to the payment in full of all
obligations owing by the Company to the Holders, and any payments received by
the Guarantor on account of such Corporate Indebtedness at a time when any
Default or Event of Default (as defined in the Indenture) exists shall be
collected and received by the Guarantor in trust and paid over to the Holders
without impairing or releasing any obligations of the Guarantor hereunder. The
Guarantor shall not assign the Corporate Indebtedness nor any part thereof to
any person other than to a subsidiary of the Company which has provided a
guarantee to the Holders in respect of the Guaranteed Obligations in the form
and substance of this Guarantee, without the prior written consent of the
Holders.
SECTION 7. SUSPENSION OF GUARANTOR RIGHTS. The Guarantor agrees
that so long as any obligations remain outstanding hereunder, whether present or
future, direct or indirect, absolute or contingent, matured or not, the
Guarantor shall not exercise any rights which the Guarantor may at any time have
by reason of the performance of any of its obligations hereunder:
i. to be indemnified by the Company;
ii. to claim contribution from any other guarantor of the
debts, liabilities or obligations of the Company; or
iii. to take the benefit (in whole or in part and whether by
way of subrogation or otherwise) of any rights of the
Holders under the Indenture.
SECTION 8. WAIVERS. The Guarantor hereby waives, to the extent
permitted by applicable law, (i) notice of acceptance of this Guarantee by the
Holders and any and all notices and demands of every kind which may be required
to be given by any statute, rule or law, (ii) any defense, right of set-off or
other claim which the Guarantor may have against the Company or which the
Guarantor or the Company may have against the Holders, (iii) presentment for
payment, demand for payment, notice of nonpayment or dishonor, protest and
notice of protest, diligence in collection and any and all formalities which
otherwise might be legally required to charge the Guarantor with liability,
except for demands or notices expressly provided for herein, (iv) any failure by
the Holders or the Trustee to inform the Guarantor of any facts the Holders or
the Trustee may now or hereafter know about the Company, the Securities or the
transactions contemplated by the Indenture, it being understood and agreed that
the Holders or the Trustee have no duty to so inform and that the Guarantor is
fully responsible for being and remaining informed by the Company of all
circumstances bearing on the existence or creation, or the risk of nonpayment or
nonperformance of the Guaranteed Obligations and (v) any and all right to cause
a marshalling of assets of the Company or any other action by any court or
governmental body with respect thereto. No modification or waiver of any of the
provisions of this Guarantee shall be binding upon the Holders except as
expressly set forth in a writing duly signed and delivered on behalf of the
Holders; provided, however, the Company, the Guarantor and the Trustee may amend
this Guarantee to cure any ambiguity, defect or inconsistency herein, provided
no such action shall adversely affect the rights of any Holder.
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SECTION 9. CONTINUING GUARANTEE. The guarantee herein shall be a
continuing guarantee and shall extend to all present and future Guaranteed
Obligations and shall be binding as a continuing obligation of the Guarantor
until the earlier of (i) the date the Guarantor is released from any further
obligation hereunder in accordance with Article 8 of the Indenture; and (ii) the
date on which the Company or the Guarantor shall have performed and satisfied in
full the Guaranteed Obligations. This Guarantee shall continue to be effective
or be reinstated, as the case may be, if at any time any payment of any of the
Guaranteed Obligations is rescinded or must otherwise be refunded by the Holders
upon the insolvency, bankruptcy or reorganization of the Company or otherwise,
regardless of whether the Holders contested the order requiring the return of
such payment, all as though such payment had not been made.
SECTION 10. INTEREST ACT (CANADA). The Guarantor acknowledges
that, for the purposes of the Interest Act (Canada), (i) whenever any interest
or fee applicable to the Guaranteed Obligations is calculated using a rate based
on a year of 360 days or 365 days, such rate determined pursuant to such
calculation, when expressed as an annual rate, is equivalent to (x) the
applicable rate based on a year of 360 days or 365 days, as the case may be, (y)
multiplied by the actual number of days in the calendar year in which the period
for which such interest or fee is payable (or compounded) ends, and (z) divided
by 360 or 365 as the case may be; (ii) the principle of deemed reinvestment of
interest does not apply to any interest calculation in respect of the Guaranteed
Obligations; and (ii) the rates of interest stipulated in respect of the
Guaranteed Obligations are intended to be nominal rates and not effective rates
or yields.
SECTION 11. SUCCESSORS OF THE COMPANY. Any change or changes in
the name of the Company or reorganization (whether by way of reconstruction,
consolidation, amalgamation, merger, transfer, sale, lease or otherwise) of the
Company or its business shall not affect or in any way limit or lessen the
liability of the Guarantor hereunder and this Guarantee shall extend to any
person, firm or Company acquiring or from time to time carrying on the business
of the Company.
SECTION 12. NO RECOURSE. Any right of subrogation acquired by the
Guarantor by reason of payment under or pursuant to this Guarantee shall not be
exercised until the Guaranteed Obligations and other amounts due to the Holders
hereunder have been paid or repaid in full and shall be no greater than the
right held by the Holders, and the Guarantor shall have no recourse against the
Holders for any irregularity or defect in the manner or procedure by which the
Holders make demand or pursue any rights or remedies they may have.
SECTION 13. REPRESENTATIONS AND WARRANTIES. The Guarantor
represents and warrants that:
(a) ORGANIZATION AND QUALIFICATION. It is a corporation duly
incorporated and validly existing under the laws of the
Province of Ontario.
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(b) CORPORATE POWER. It has full corporate right, power and
authority to own its property and assets and to carry on its
business as now conducted and as contemplated to be conducted
and to enter into and perform this Guarantee.
(c) CONFLICT WITH OTHER INSTRUMENTS. Neither the execution and
delivery of this Guarantee nor the consummation of the
transactions herein contemplated nor compliance with the
terms, conditions and provisions hereof (i) conflicts with or
results in a breach of any of the terms, conditions or
provisions of (A) its charter documents or by-laws; (B) any
law, rule or regulation having the force of law; (C) any
material contractual restriction binding on or affecting it or
its properties; or (D) any writ, judgment, injunction,
determination or award which is binding on it; or (ii) results
in, or requires the creation or imposition of any lien upon or
security interest in or with respect to the properties now
owned or hereafter acquired by it under any contractual
provision binding on or affecting it.
(d) AUTHORIZATION, GOVERNMENTAL APPROVALS ETC. The execution and
delivery of this Guarantee and the consummation by it of the
transactions herein contemplated have been duly authorized by
all necessary corporate action and no authorization, consent,
approval, license or exemption under any applicable law, rule
or regulation having the force of law, and no registration,
qualification, designation, declaration, recording, or filing
with any official body, is or was necessary therefor or to
perfect the same or to preserve the benefit thereof to the
Holders, except such as are in full force and effect,
unamended, at the date hereof.
(e) EXECUTION AND BINDING OBLIGATION. This Guarantee has been duly
executed and delivered by it, and constitutes the legal, valid
and binding obligation of it enforceable against it in
accordance with its terms, subject to the effect of any
applicable bankruptcy, fraudulent conveyance, insolvency,
reorganization, moratorium or similar laws affecting
creditors' rights general and the effect of general principles
of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
(f) ACTIONS. There is no pending or threatened action or
proceeding affecting it before any court, governmental agency
or arbitrator, which may materially adversely affect its
financial condition or operations.
(g) SHARES. The Guarantor is the registered and beneficial holder
of 100% of the issued and outstanding shares of the capital
stock of the Company.
SECTION 14. PAYMENT OF TAXES AND OTHER TAXES. The Guarantor
hereby agrees to obtain any necessary exchange control approvals, consents or
authorizations which may at
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any time and from time to time be required by the laws of the Province of
Ontario or any state in the United States in connection with the making of
payments hereunder. Any and all payments by the Guarantor hereunder shall be
made and shall be free and clear of and without set-off or counterclaim and
without deduction for or on account of, or withholding for any and all present
or future income or other taxes, levies, imposts, dues, charges, fees,
deductions, withholdings or restrictions or conditions of any nature whatever
now or hereafter imposed, levied, collected or withheld or assessed by any
country (or by any political subdivision or taxing authority thereof or
therein), and all liabilities with respect thereto (all such taxes, levies,
imposts, duties, charges, fees, deductions, withholdings and liabilities being
hereinafter referred to as "Taxes") unless such Taxes are required by law or the
administration thereof to be deducted or withheld. If the Guarantor shall be
required by law to deduct or withhold any Taxes from or in respect of any amount
payable hereunder, subject as provided in the next following sentence, (i) the
sum payable shall be increased as may be necessary so that after making all
required deductions or withholdings (including deduction or withholding
applicable to additional amounts paid under this Section), the Holders receive
an amount equal to the sum they would have received if no deduction or
withholding had been made, (ii) the Guarantor shall make such deductions or
withholdings, and (iii) the Guarantor shall pay the full amount deducted or
withheld to the relevant taxation or other authority in accordance with
applicable law.
(a) The Guarantor shall pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies (all such taxes, charges and levies being hereinafter referred to as
"Other Taxes") which arise from any payment made hereunder or from the
execution, delivery or registration of, or otherwise with respect to, this
Guarantee.
(b) The Guarantor shall indemnify the Holders for the full amount
of Taxes or Other Taxes (including, without limitation, any Taxes or Other Taxes
imposed by any jurisdiction on amounts payable under this Section) paid by the
Holders and any liability (including penalties, interest and expenses) arising
therefrom or with respect thereto, whether or not such Taxes or Other Taxes were
correctly or legally asserted. Payment under this indemnification shall be made
within 30 days from the date the Holders make written demand therefor. A
certificate as to the amount of such Taxes or Other Taxes submitted to the
Guarantor by the Holders and evidence of payment thereof shall, in the absence
of manifest error, be prima facie evidence of the amount due by the Guarantor to
the Holders.
SECTION 15. GOVERNING LAW. (a) This Guarantee shall be governed
by and construed in accordance with the laws of the State of New York applicable
therein and shall be treated in all respects as a New York contract.
(b) The Guarantor hereby (i) irrevocably submits to the
jurisdiction of any court sitting in the State of New York over any suit, action
or proceeding arising out of or relating to this Guarantee or the Indenture;
(ii) irrevocably agrees that all claims in respect of any such action or
proceeding may be heard and determined in such court; (iii) irrevocably waives,
to the fullest extent permitted by law, any objection which it may have or
hereafter have to the laying of the venue of any such suit, action or preceding
brought in such a court and any claim that any such suit, action or
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proceeding brought in such a court has been brought in an inconvenient forum;
and (iv) irrevocably appoints Newcourt Credit Group USA, Inc. (the "Process
Agent"), with an office at the date hereof at 44 Whippany Road, Morristown, NJ
07960 (Fax No. 973/397-4435), its authorized agent to accept and acknowledge
service of any and all process which may be served in any suit, action or
proceeding. Such service may be made by delivering a copy of such process to the
Guarantor in care of the Process Agent at the Process Agent's above address and
the Guarantor hereby irrevocably authorizes and directs the Process Agent to
accept such service on its behalf. As an alternative method of service, the
Guarantor also irrevocably consents to the service of any and all process in any
such action or proceeding by the delivery of copies of such process to the
Guarantor to: BCE Place, 181 Bay Street, P.O. Box 827, Toronto, Canada M5J2T3
for the attention of President. The Guarantor agrees that a final judgment in
any such action or proceeding may be enforced in any other manner provided by
law. Nothing in this Section shall affect the right of the Trustee or the
Holders to serve process in any manner permitted by law or limit the rights of
the Trustee or the Holders to bring proceedings against the Guarantor in the
courts of any other jurisdiction.
(c) Subject to Section 15(e), the Guarantor hereby consents in
respect of any legal action or proceedings arising out of or in connection with
this Guarantee for the payment and performance hereof to the giving of any
relief or the issue of any process in connection with such action or
proceedings, including, without limitation the making, enforcement or execution
against any property whatsoever (irrespective of its use or intended use) of any
order or judgment which may be made or given in such action or proceedings.
(d) To the extent that the Guarantor has or hereafter may acquire
any immunity from the jurisdiction of any court or from any legal process
(whether service of notice, attachment prior to judgment, attachment in the aid
of execution, execution or otherwise) with respect to itself or its property,
the Guarantor hereby irrevocably waives, to the fullest extent permitted by law,
such immunity in respect of its obligations under this Guarantee and any
security for the payment and performance hereof.
(e). Nothing in this Section shall constitute a waiver by the
Guarantor of any right to (i) appeal any order or judgment referred to herein;
(ii) seek any stay or reconsideration or review of any such order or judgment,
or (iii) seek any stay of execution or levy pending any appeal from, or suit,
action or proceeding for reconsideration or review of, any such order or
judgment.
(f) The Guarantor agrees that the Trustee or the Holders shall
have the right to proceed against the Guarantor or its property in a court in
any location to enable such person to (i) obtain personal jurisdiction over the
Guarantor, or (ii) to enforce a judgment or other court order entered in favor
of such person. The Guarantor agrees that it will not assert any permissive
counterclaims in any proceeding brought by such person to enforce a judgment or
other court order in favor of such person. The Guarantor waives any objection
that it may have to the location of the court in which such person has commenced
a proceeding described in this subsection.
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SECTION 16. HEADINGS, ETC. The division of this Guarantee into
sections and the insertion of headings are for convenience of reference only and
shall not affect the interpretation hereof.
SECTION 17. SEVERABILITY. Any provision of this Guarantee which
is invalid or not enforceable shall not affect any other provision and shall be
deemed to be severable.
SECTION 18. SUCCESSORS AND ASSIGNS. This Guarantee shall extend
to and inure to the benefit of the Trustee and the Holders and their respective
successors and assigns and shall be binding upon the Guarantor and its
successors and assigns. This Guarantee is assignable by the Holders to the
extent and in the same proportion that any underlying interest in the Securities
and applicable Indenture has been assigned and is assignable by the Trustee to
any successor Trustee under the Indenture.
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IN WITNESS WHEREOF, the Guarantor has duly executed this
Guarantee and affixed its corporate seal under the hand of its proper officer(s)
duly authorized in that behalf as of the day and year first above written.
NEWCOURT CREDIT GROUP INC.
Attest:
By:______________________________ By:______________________________
Glen J. DuMont Glenn A. Votek
Assistant Secretary Executive Vice President
and Treasurer
By:______________________________
DOCUMENT NUMBER: 313608.05
4-27-98/11:49pm
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EXHIBIT 4K
GUARANTEE
Guarantee dated as of April 1, 1998, made by Newcourt Credit
Group Inc. (the "Guarantor"), a corporation incorporated under the laws of the
Province of Ontario, to and in favor of _________________________ for the
benefit of the holders of the Securities (as defined herein) (collectively, the
"Holders").
WHEREAS the Guarantor is the owner of all the issued and
outstanding capital stock of AT&T Capital Corporation (the "Company");
AND WHEREAS the Company will issue from time to time (i) warrants
to purchase the Debt Securities ("Debt Warrants") pursuant to a Debt Warrant
Agreement substantially in the form attached hereto as Exhibit A (the "Debt
Warrant Agreement"); (ii) warrants entitling the holder thereof to receive from
the Company, upon exercise, an amount in cash equal to the cash value of the
right to purchase or to sell a certain amount of one currency for a certain
amount of a different currency ("Currency Warrants") pursuant to a Currency
Warrant Agreement substantially in the form attached hereto as Exhibit B (the
"Currency Warrant Agreement"); (iii) warrants entitling the holders thereof to
receive from the Company, upon exercise, an amount in cash determined by
reference to decreases or increases in the level of a specified index or
determined by reference between two specified indices ("Index Warrants")
pursuant to an Index Warrant Agreement substantially in the form attached hereto
as Exhibit C (the "Index Warrant Agreement"); and (iv) warrants entitling the
holders thereof to receive from the Company, upon exercise, an amount in cash
determined by reference to decreases or increases in the yield or closing price
of one or more specified debt instruments issued by either the United States
government or by a foreign government, in the interest rate or interest swap
rate established from time to time by one or more specified financial
institutions or in any specified combination thereof ("Interest Rate Warrants"
and together with the Debt Warrants, Currency Warrants and the Index Warrants,
the "Securities") pursuant to an Interest Rate Warrant Agreement substantially
in the form attached hereto as Exhibit D (the "Interest Rate Warrant Agreement"
and together with the Debt Warrant Agreement, Currency Warrant Agreement and
Index Warrant Agreement, the "Warrant Agreements").
NOW THEREFORE, in consideration of the foregoing premises, and
other good and valuable consideration given by the Holders and the Company to
the Guarantor, the receipt and sufficiency of which are hereby acknowledged, the
Guarantor hereby agrees as follows:
SECTION 1. GUARANTEE. The Guarantor hereby, irrevocably and
unconditionally guarantees (as a guarantor and not as a surety) (a) to the
holders of Currency Warrants, Index Warrants and Interest Rate Warrants the due
and punctual payment of all obligations of the Company when and as the same
shall become due and payable, whether upon exercise or otherwise, according to
the terms of the applicable Warrant Agreements; and (b) to the holders of the
Debt Warrants the punctual performance of the obligations of the Company
according to the terms of the Debt Warrant Agreement (the obligations set forth
in clauses (a)-(b) being herein called the "Guaranteed Obligations").
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SECTION 2. ABSOLUTE LIABILITY. The Guarantor hereby guarantees
that the Guaranteed Obligations will be paid to the Holders strictly in
accordance with the terms and conditions hereof, and that the liability of the
Guarantor under this Guarantee shall be absolute and unconditional irrespective
of:
(a) the validity or enforceability of the Securities or the
Warrant Agreements;
(b) any contest by the Company or any other person as to the
amount of the Guaranteed Obligations or the validity or
enforceability of the Securities or the Warrant
Agreements;
(c) any defense, counter-claim or right of set-off available
to the Company;
(d) any extension of the time or times for payment of the
Guaranteed Obligations or any other indulgences which
the Holders may grant to the Company or any amendment to
or alteration of the Warrant Agreements or the
Securities; and
(e) any other circumstances which might otherwise constitute
a defense available to, or a discharge of, the
Guarantor, the Company or any other person in respect of
the Guaranteed Obligations or the Guarantor in respect
of the Guarantee.
SECTION 3. REMEDIES. The guarantees set forth in Sections 1(a)
constitute present and continuing guarantees of payment and performance and not
of collection. The guarantee set forth in Section 1(b) constitutes a present and
continuing guarantee of performance. The Guarantor agrees that its obligations
hereunder shall be joint and several with any and all other guarantees given in
connection with the Guaranteed Obligations from time to time. The Guarantor
agrees that the Holders shall not be bound to exhaust their recourse against the
Company or any other person or to realize on any security they may hold in
respect of the Guaranteed Obligations before being entitled to payment or
performance hereunder. The Guarantor hereby waives the right to require the
Holders to join the Company in any action brought hereunder or to commence any
action against or obtain any judgment against the Company or to pursue any other
remedy or enforce any other right. The Guarantor further agrees that nothing
contained herein or otherwise shall prevent the Holders from pursuing
concurrently or successively all rights and remedies available to them at law
and/or in equity or under the Warrant Agreements, and the exercise of any of
their rights or the completion of any of their remedies shall not constitute a
discharge of any of Guarantor's obligations hereunder.
SECTION 4. PAYMENT ON DEMAND. The Guarantor shall make payment of
the amount of the Guaranteed Obligations and all other amounts payable by it (or
performance with respect to the Debt Warrants) to the Holders hereunder
forthwith after demand therefor is made in writing to it and such demand shall
be deemed to have been effectively made when an envelope containing such demand,
addressed to it c/o Newcourt Credit Group, BCE Place, 181 Bay Street,
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P.O. Box 827, Toronto, Ontario, M5J 2T3 for the attention of President, is
personally delivered to such address.
SECTION 5. SUBROGATION. Upon receipt by the Holders of any
payment or payments (or performance with respect to the Debt Warrants) on
account of liability under this Guarantee, the Guarantor shall not be entitled
to claim repayment against the Company until the claims of the Holders against
the Company in respect of the Guaranteed Obligations have been repaid (or
performed with respect to the Debt Warrants) in full; and in the case of the
liquidation, winding-up or bankruptcy of the Company (whether voluntary or
compulsory) or in the event that the Company shall make a bulk sale of any of
the Company's assets within the provisions of any bulk sales legislation or
makes an assignment for the benefit of creditors or the assets of the Company
are distributed to creditors for any other reason, the Holders shall have the
right to rank in priority to the Guarantor for their full claims in respect of
the Guaranteed Obligations and receive all distributions and other payments in
respect thereof until their claims in respect of the Guaranteed Obligations have
been paid in full, and the Guarantor shall continue to be liable, less any
payments made by or on behalf of the Guarantor, for any balance which may be
owing to the Holders by the Company. If any amount shall be paid to the
Guarantor on account of any subrogation rights at any time when all the
Guaranteed Obligations shall not have been paid in full, such amount shall be
held in trust for the benefit of the Holders and shall forthwith be paid to the
Holders.
SECTION 6. SUBORDINATION. All obligations, liabilities and
indebtedness of the Company to the Guarantor of any nature whatsoever (the
"Corporate Indebtedness") be subordinated to the payment in full of all
obligations owing by the Company to the Holders. The Guarantor shall not assign
the Corporate Indebtedness nor any part thereof to any person other than to a
subsidiary of the Company which has provided a guarantee to the Holders in
respect of the Guaranteed Obligations in the form and substance of this
Guarantee, without the prior written consent of the Holders.
SECTION 7. SUSPENSION OF GUARANTOR RIGHTS. The Guarantor agrees
that so long as any obligations remain outstanding hereunder, whether present or
future, direct or indirect, absolute or contingent, matured or not, the
Guarantor shall not exercise any rights which the Guarantor may at any time have
by reason of the performance of any of its obligations hereunder:
(i) to be indemnified by the Company;
(ii) to claim contribution from any other guarantor of the
debts, liabilities or obligations of the Company; or
(iii) to take the benefit (in whole or in part and whether by
way of subrogation or otherwise) of any rights of the
Holders under the Warrant Agreements.
SECTION 8. WAIVERS. The Guarantor hereby waives, to the extent
permitted by applicable law, (i) notice of acceptance of this Guarantee by the
Holders and any and all notices and
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demands of every kind which may be required to be given by any statute, rule or
law, (ii) any defense, right of set-off or other claim which the Guarantor may
have against the Company or which the Guarantor or the Company may have against
the Holders, (iii) presentment for payment, demand for payment, notice of
nonpayment or dishonor, protest and notice of protest, diligence in collection
and any and all formalities which otherwise might be legally required to charge
the Guarantor with liability, except for demands or notices expressly provided
for herein, (iv) any failure by the Holders to inform the Guarantor of any facts
the Holders may now or hereafter know about the Company, the Securities or the
transactions contemplated by the Warrant Agreements, it being understood and
agreed that the Holders have no duty to so inform and that the Guarantor is
fully responsible for being and remaining informed by the Company of all
circumstances bearing on the existence or creation, or the risk of nonpayment or
nonperformance of the Guaranteed Obligations and (v) any and all right to cause
a marshalling of assets of the Company or any other action by any court or
governmental body with respect thereto. No modification or waiver of any of the
provisions of this Guarantee shall be binding upon the Holders except as
expressly set forth in a writing duly signed and delivered on behalf of the
Holders; provided, however, the Company, the Guarantor and [ ] may amend this
Guarantee to cure any ambiguity, defect or inconsistency herein, provided no
such action shall adversely affect the rights of any Holder.
SECTION 9. CONTINUING GUARANTEE. The guarantee herein shall be a
continuing guarantee and shall extend to all present and future Guaranteed
Obligations and shall be binding as a continuing obligation of the Guarantor
until the earlier of (i) the Holders release the Guarantor from any further
obligation hereunder; and (ii) the date on which the Company or the Guarantor
shall have performed and satisfied in full the Guaranteed Obligations. This
Guarantee shall continue to be effective or be reinstated, as the case may be,
if at any time any payment (or performance with respect to the Debt Warrants) of
any of the Guaranteed Obligations is rescinded or must otherwise be refunded by
the Holders upon the insolvency, bankruptcy or reorganization of the Company or
otherwise, regardless of whether the Holders contested the order requiring the
return of such payment, all as though such payment had not been made.
SECTION 10. INTEREST ACT (CANADA). The Guarantor acknowledges
that, for the purposes of the Interest Act (Canada), (i) whenever any interest
or fee applicable to the Guaranteed Obligations is calculated using a rate based
on a year of 360 days or 365 days, such rate determined pursuant to such
calculation, when expressed as an annual rate, is equivalent to (x) the
applicable rate based on a year of 360 days or 365 days, as the case may be, (y)
multiplied by the actual number of days in the calendar year in which the period
for which such interest or fee is payable (or compounded) ends, and (z) divided
by 360 or 365 as the case may be; (ii) the principle of deemed reinvestment of
interest does not apply to any interest calculation in respect of the Guaranteed
Obligations; and (ii) the rates of interest stipulated in respect of the
Guaranteed Obligations are intended to be nominal rates and not effective rates
or yields.
SECTION 11. SUCCESSORS OF THE COMPANY. Any change or changes in
the name of the Company or reorganization (whether by way of reconstruction,
consolidation, amalgamation, merger, transfer, sale, lease or otherwise) of the
Company or its business shall not affect or in any
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way limit or lessen the liability of the Guarantor hereunder and this Guarantee
shall extend to any person, firm or Company acquiring or from time to time
carrying on the business of the Company.
SECTION 12. NO RECOURSE. Any right of subrogation acquired by the
Guarantor by reason of payment under or pursuant to this Guarantee shall not be
exercised until the Guaranteed Obligations and other amounts due to the Holders
hereunder have been paid or repaid in full and shall be no greater than the
right held by the Holders, and the Guarantor shall have no recourse against the
Holders for any irregularity or defect in the manner or procedure by which the
Holders make demand or pursue any rights or remedies they may have.
SECTION 13. REPRESENTATIONS AND WARRANTIES. The Guarantor
represents and warrants that:
(a) ORGANIZATION AND QUALIFICATION. It is a corporation duly
incorporated and validly existing under the laws of the
Province of Ontario.
(b) CORPORATE POWER. It has full corporate right, power and
authority to own its property and assets and to carry on
its business as now conducted and as contemplated to be
conducted and to enter into and perform this Guarantee.
(c) CONFLICT WITH OTHER INSTRUMENTS. Neither the execution and
delivery of this Guarantee nor the consummation of the
transactions herein contemplated nor compliance with the
terms, conditions and provisions hereof (i) conflicts with
or results in a breach of any of the terms, conditions or
provisions of (A) its charter documents or by-laws; (B)
any law, rule or regulation having the force of law; (C)
any material contractual restriction binding on or
affecting it or its properties; or (D) any writ, judgment,
injunction, determination or award which is binding on it;
or (ii) results in, or requires the creation or imposition
of any lien upon or security interest in or with respect
to the properties now owned or hereafter acquired by it
under any contractual provision binding on or affecting
it.
(d) AUTHORIZATION, GOVERNMENTAL APPROVALS ETC. The execution
and delivery of this Guarantee and the consummation by it
of the transactions herein contemplated have been duly
authorized by all necessary corporate action and no
authorization, consent, approval, license or exemption
under any applicable law, rule or regulation having the
force of law, and no registration, qualification,
designation, declaration, recording, or filing with any
official body, is or was necessary therefor or to perfect
the same or to preserve the benefit thereof to the
Holders, except such as are in full force and effect,
unamended, at the date hereof.
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(e) EXECUTION AND BINDING OBLIGATION. This Guarantee has been
duly executed and delivered by it, and constitutes the
legal, valid and binding obligation of it enforceable
against it in accordance with its terms, subject to the
effect of any applicable bankruptcy, fraudulent
conveyance, insolvency, reorganization, moratorium or
similar laws affecting creditors' rights general and the
effect of general principles of equity (regardless of
whether such enforceability is considered in a proceeding
in equity or at law).
(f) ACTIONS. There is no pending or threatened action or
proceeding affecting it before any court, governmental
agency or arbitrator, which may materially adversely
affect its financial condition or operations.
(g) SHARES. The Guarantor is the registered and beneficial
holder of 100% of the issued and outstanding shares of the
capital stock of the Company.
SECTION 14. PAYMENT OF TAXES AND OTHER TAXES. (a) The Guarantor
hereby agrees to obtain any necessary exchange control approvals, consents or
authorizations which may at any time and from time to time be required by the
laws of the Province of Ontario or any state in the United States in connection
with the making of payments hereunder. Any and all payments by the Guarantor
hereunder shall be made and shall be free and clear of and without set-off or
counterclaim and without deduction for or on account of, or withholding for any
and all present or future income or other taxes, levies, imposts, dues, charges,
fees, deductions, withholdings or restrictions or conditions of any nature
whatever now or hereafter imposed, levied, collected or withheld or assessed by
any country (or by any political subdivision or taxing authority thereof or
therein), and all liabilities with respect thereto (all such taxes, levies,
imposts, duties, charges, fees, deductions, withholdings and liabilities being
hereinafter referred to as "Taxes") unless such Taxes are required by law or the
administration thereof to be deducted or withheld. If the Guarantor shall be
required by law to deduct or withhold any Taxes from or in respect of any amount
payable hereunder, subject as provided in the next following sentence, (i) the
sum payable shall be increased as may be necessary so that after making all
required deductions or withholdings (including deduction or withholding
applicable to additional amounts paid under this Section), the Holders receive
an amount equal to the sum they would have received if no deduction or
withholding had been made, (ii) the Guarantor shall make such deductions or
withholdings, and (iii) the Guarantor shall pay the full amount deducted or
withheld to the relevant taxation or other authority in accordance with
applicable law.
(b) The Guarantor shall pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies (all such taxes, charges and levies being hereinafter referred to as
"Other Taxes") which arise from any payment made hereunder or from the
execution, delivery or registration of, or otherwise with respect to, this
Guarantee.
(c) The Guarantor shall indemnify the Holders for the full amount
of Taxes or Other Taxes (including, without limitation, any Taxes or Other Taxes
imposed by any jurisdiction on amounts payable under this Section) paid by the
Holders and any liability (including penalties, interest
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and expenses) arising therefrom or with respect thereto, whether or not such
Taxes or Other Taxes were correctly or legally asserted. Payment under this
indemnification shall be made within 30 days from the date the Holders make
written demand therefor. A certificate as to the amount of such Taxes or Other
Taxes submitted to the Guarantor by the Holders and evidence of payment thereof
shall, in the absence of manifest error, be prima facie evidence of the amount
due by the Guarantor to the Holders.
SECTION 15. GOVERNING LAW. (a) This Guarantee shall be governed
by and construed in accordance with the laws of the State of New York applicable
therein and shall be treated in all respects as a New York contract.
(b) The Guarantor hereby (i) irrevocably submits to the
jurisdiction of any court sitting in the State of New York over any suit, action
or proceeding arising out of or relating to this Guarantee or the Warrant
Agreements; (ii) irrevocably agrees that all claims in respect of any such
action or proceeding may be heard and determined in such court; (iii)
irrevocably waives, to the fullest extent permitted by law, any objection which
it may have or hereafter have to the laying of the venue of any such suit,
action or preceding brought in such a court and any claim that any such suit,
action or proceeding brought in such a court has been brought in an inconvenient
forum; and (iv) irrevocably appoints Newcourt Credit Group USA, Inc. (the
"Process Agent"), with an office at the date hereof at 44 Whippany Road,
Morristown, NJ 07960 (Fax No. 973/397-4435), its authorized agent to accept and
acknowledge service of any and all process which may be served in any suit,
action or proceeding. Such service may be made by delivering a copy of such
process to the Guarantor in care of the Process Agent at the Process Agent's
above address and the Guarantor hereby irrevocably authorizes and directs the
Process Agent to accept such service on its behalf. As an alternative method of
service, the Guarantor also irrevocably consents to the service of any and all
process in any such action or proceeding by the delivery of copies of such
process to the Guarantor to: BCE Place, 181 Bay Street, P.O. Box 827, Toronto,
Canada M5J2T3 for the attention of President. The Guarantor agrees that a final
judgment in any such action or proceeding may be enforced in any other manner
provided by law. Nothing in this Section shall affect the right of the Holders
to serve process in any manner permitted by law or limit the rights of the
Holders to bring proceedings against the Guarantor in the courts of any other
jurisdiction.
(c) Subject to Section ___, the Guarantor hereby consents in
respect of any legal action or proceedings arising out of or in connection with
this Guarantee for the payment and performance hereof to the giving of any
relief or the issue of any process in connection with such action or
proceedings, including, without limitation the making, enforcement or execution
against any property whatsoever (irrespective of its use or intended use) of any
order or judgment which may be made or given in such action or proceedings.
(d) To the extent that the Guarantor has or hereafter may acquire
any immunity from the jurisdiction of any court or from any legal process
(whether service of notice, attachment prior to judgment, attachment in the aid
of execution, execution or otherwise) with respect to itself or its property,
the Guarantor hereby irrevocably waives, to the fullest extent permitted by law,
such
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immunity in respect of its obligations under this Guarantee and any security for
the payment and performance hereof.
(e) Nothing in this Section shall constitute a waiver by the
Guarantor of any right to (i) appeal any order or judgment referred to herein;
(ii) seek any stay or reconsideration or review of any such order or judgment,
or (iii) seek any stay of execution or levy pending any appeal from, or suit,
action or proceeding for reconsideration or review of, any such order or
judgment.
(f) The Guarantor agrees that the Holders shall have the right to
proceed against the Guarantor or its property in a court in any location to
enable such person to (i) obtain personal jurisdiction over the Guarantor, or
(ii) to enforce a judgment or other court order entered in favor of such person.
The Guarantor agrees that it will not assert any permissive counterclaims in any
proceeding brought by such person to enforce a judgment or other court order in
favor of such person. The Guarantor waives any objection that it may have to the
location of the court in which such person has commenced a proceeding described
in this subsection.
SECTION 16. HEADINGS, ETC. The division of this Guarantee into
sections and the insertion of headings are for convenience of reference only and
shall not affect the interpretation hereof.
SECTION 17. SEVERABILITY. Any provision of this Guarantee which
is invalid or not enforceable shall not affect any other provision and shall be
deemed to be severable.
SECTION 18. SUCCESSORS AND ASSIGNS. This Guarantee shall extend
to and inure to the benefit of [ ] and the Holders and their respective
successors and assigns and shall be binding upon the Guarantor and its
successors and assigns. This Guarantee is assignable by the Holders to the
extent and in the same proportion that any underlying interest in the Securities
and applicable Warrant Agreements has been assigned.
8
<PAGE>
<PAGE>
IN WITNESS WHEREOF, the Guarantor has duly executed this
Guarantee and affixed its corporate seal under the hand of its proper officer(s)
duly authorized in that behalf as of the day and year first above written.
NEWCOURT CREDIT GROUP INC.
Attest:
By:_______________________________ By:_______________________________
Glen J. DuMont Glenn A. Votek
Assistant Secretary Executive Vice President
and Treasurer
By:_______________________________
DOCUMENT NUMBER: 0318536.02
4-27-98/11:58pm
9
<PAGE>
<PAGE>
EXHIBIT 5
[LOGO]
[LETTERHEAD]
April 27, 1998
AT&T Capital Corporation
44 Whippany Road
Morristown, New Jersey 07962
Newcourt Credit Group Inc.
BCE Place, 181 Bay Street, Suite 3500
Toronto, Ontario Canada M5J2T3
Ladies and Gentlemen:
I hereby refer to the Registration Statement on Form S-3 (File
No. 333-48415) (the "Registration Statement") filed by AT&T Capital Corporation,
a Delaware corporation (the "Company"), with the Securities and Exchange
Commission under the Securities Act of 1933, as amended (the "Securities Act"),
relating to the registration of one or more series of debt securities (the "Debt
Securities") under the Indenture dated as of April 1, 1998 (the "Indenture")
between the Company and The Chase Manhattan Bank, as trustee (the "Trustee") and
warrants to purchase Debt Securities, currency warrants, index warrants and
interest rate warrants (collectively, the "Warrants").
This opinion is being delivered to you pursuant to the
requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.
I am familiar with the proceedings to date with respect to the
proposed issuance and delivery of the Debt Securities and Warrants and have
examined such records, documents and questions of law, and satisfied myself as
to such matters of fact, as I have considered relevant and necessary as a basis
for this opinion.
In my examination, I have assumed the legal capacity of all
natural persons, the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such latter documents. In making my examination
of documents executed by parties other than the Company, I have assumed that
such parties had the power, corporate or other, to enter into and perform all
obligations thereunder and have also
<PAGE>
<PAGE>
April 27, 1998
Page 2
assumed the due authorization by all requisite action, corporate or other,
and execution and delivery by such parties of such documents and the validity
and binding effect thereof. As to any facts material to the opinions expressed
herein which I did not independently establish or verify, I have relied upon
oral and written statements and representations of officers and other
representatives of the Company and others. In addition, I have also relied upon
the accuracy and completeness of all certificates and other statements,
representations, documents, records, financial statements and papers reviewed by
me, and the accuracy and completeness of all representations, warranties,
schedules and exhibits contained in such documents, with respect to the factual
matters set forth therein. Additionally, I have assumed that the Registration
Statement, as finally amended, has been declared effective under the Securities
Act and no stop order suspending the effectiveness of the Registration Statement
has been issued and no proceeding for that purpose has been initiated or
threatened by the Securities and Exchange Commission.
Based on the foregoing, and assuming that the terms of each
series of Debt Securities and Warrants are otherwise in compliance with
applicable law at the time of issuance of such securities, I am of the opinion
that:
1. when the Indenture shall have been qualified under the Trust
Indenture Act of 1939, as amended and, with respect to each series of
Debt Securities, when (a) the amount, price, interest rate and other
principal terms of the Debt Securities relating to such series of Debt
Securities have been duly approved by the Board of Directors of the
Company; (b) such Debt Securities shall have been duly authorized,
executed and authenticated as provided in the Indenture and shall have
been duly paid for and delivered in accordance with the provisions of
the Distribution Agreement or Underwriting Agreement, substantially
in the form filed as an exhibit to the Registration Statement, such
Debt Securities will constitute legally valid and binding obligations
of the Company enforceable in accordance with, and subject to, their
terms and entitled to the benefits of the Indenture; and
2. with respect to each issue of Warrants, when (a) the principal terms
of the Warrants to be issued shall have been duly approved by the Board
of Directors of the Company; (b) the applicable Debt Warrant Agreement,
Currency Warrant Agreement, Index Warrant Agreement and/or Interest
Rate Warrant Agreement, substantially in the forms filed as exhibits to
the Registration Statement (collectively, the "Warrant Agreements")
have been duly authorized and executed by the parties thereto; and (c)
the Warrants shall have been duly authorized and executed by the
Company and countersigned as provided in the Warrant Agreements and
shall have been duly paid for and delivered pursuant to a prospectus
and a prospectus supplement relating to such sale, such Warrants will
constitute legally valid and binding obligations of the Company
enforceable in accordance with, and subject to, their terms and the
terms of the Warrant Agreements.
<PAGE>
<PAGE>
April 27, 1998
Page 3
The opinions expressed herein are qualified to the extent that
the enforceability of the Debt Securities and the Warrants and the obligations
of the Company thereunder and the availability of certain rights and remedial
provisions provided for in the Indenture and the applicable Warrant Agreements
are subject to the effect of bankruptcy, fraudulent conveyance or transfer,
insolvency, reorganization, arrangement, liquidation, conservatorship and
moratorium laws and subject to the limitations imposed by other laws and
judicial decisions relating to or affecting the rights of creditors generally,
to general principles of equity, regardless of whether enforcement is considered
in proceedings in equity or at law, and to an implied covenant of good faith and
fair dealing;
I do not find it necessary for the purposes of this opinion to
cover, and accordingly I express no opinion as to, the application of the
securities or blue sky laws of the various states to the offer and sale of the
Debt Securities or the Warrants.
This opinion is limited to the laws of the United States of
America and the State of New York, and I express no opinion with respect to the
laws of any state or other jurisdiction.
The opinions set forth in this letter are based on the facts
in existence and the laws in effect on the date hereof and I expressly disclaim
any obligation to update the opinions herein, regardless of whether changes in
such facts or laws come to my attention after the delivery hereof.
I hereby consent to the filing of this opinion as an Exhibit
to the Registration Statement and to all references to me included in or made a
part of the Registration Statement. In giving such consent, I do not concede
that I am an expert within the meaning of the Securities Act or the rules and
regulations thereunder or that this consent is required by Section 7 of the
Securities Act.
Very truly yours,
Glen J. DuMont
<PAGE>
<PAGE>
___________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
---------------------------------------------
AT&T CAPITAL CORPORATION
(Exact name of obligor as specified in its charter)
DELAWARE 22-3211453
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
44 WHIPPANY ROAD
MORRISTOWN, NEW JERSEY 07962
(Address of principal executive offices) (Zip Code)
NEWCOURT CREDIT GROUP INC.
(Exact name of obligor as specified in its charter)
ONTARIO NOT APPLICABLE
(Province or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
BCE PLACE
181 BAY STREET, SUITE 3500
TORONTO, ONTARIO M5J 2T3, CANADA
(Address of principal executive offices)
-------------------------------------------
DEBT SECURITIES
(Title of the indenture securities)
-----------------------------------------------------
<PAGE>
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington, D.C.,
20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty Street,
New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligors.
If the obligors are affiliates of the trustee, describe each such
affiliation.
None.
- 2 -
<PAGE>
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form
T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
(On July 14, 1996, in connection with the merger of Chemical Bank and The Chase
Manhattan Bank (National Association), Chemical Bank, the surviving corporation,
was renamed The Chase Manhattan Bank).
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 27TH day of APRIL, 1998.
THE CHASE MANHATTAN BANK
By /s/ G. McFarlane
------------------------
/s/ G. McFarlane
Vice President
- 3 -
<PAGE>
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business December 31, 1997, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Millions
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ................................................................................. $ 12,428
Interest-bearing balances ......................................................................... 3,428
Securities:
Held to maturity securities............................................................................ 2,561
Available for sale securities ......................................................................... 43,058
Federal funds sold and securities purchased under agreements to resell ................................ 29,633
Loans and lease financing receivables:
Loans and leases, net of unearned income $129,260
Less: Allowance for loan and lease losses 2,783
Less: Allocated transfer risk reserve..... 0
--------
Loans and leases, net of unearned income,
allowance, and reserve ............................................................................ 126,477
Trading Assets......................................................................................... 62,575
Premises and fixed assets (including capitalized leases)............................................... 2,943
Other real estate owned ............................................................................... 295
Investments in unconsolidated subsidiaries and associated companies ................................... 231
Customers' liability to this bank on acceptances outstanding........................................... 1,698
Intangible assets...................................................................................... 1,466
Other assets........................................................................................... 10,268
--------
TOTAL ASSETS........................................................................................... $297,061
========
</TABLE>
- 4 -
<PAGE>
<PAGE>
<TABLE>
<CAPTION>
LIABILITIES
<S> <C> <C>
Deposits
In domestic offices ......................................................... $94,524
Noninterest-bearing ................................................ $39,487
Interest-bearing ................................................... 55,037
-------
In foreign offices, Edge and Agreement,
subsidiaries and IBF's ...................................................... 71,162
Noninterest-bearing ................................................ 3,205
Interest-bearing ................................................... 67,957
Federal funds purchased and securities sold under
agreements to repurchase......................................................... 43,181
Demand notes issued to the U.S. Treasury ........................................ 1,000
Trading liabilities.............................................................. 48,903
Other borrowed money (includes mortgage indebtedness and obligations under
capitalized leases):
With a remaining maturity of one year or less ............................... 3,599
With a remaining maturity of more than one year
through three years .................................................. 253
With a remaining maturity of more than three years .......................... 132
Bank's liability on acceptances executed and outstanding ........................ 1,698
Subordinated notes and debentures ............................................... 5,715
Other liabilities................................................................ 9,896
TOTAL LIABILITIES ............................................................... 280,063
--------
EQUITY CAPITAL
Perpetual preferred stock and related surplus 0
Common stock..................................................................... 1,211
Surplus (exclude all surplus related to preferred stock)........................ 10,291
Undivided profits and capital reserves .......................................... 5,502
Net unrealized holding gains (losses)
on available-for-sale securities................................................. (22)
Cumulative foreign currency translation adjustments ............................. 16
TOTAL EQUITY CAPITAL ............................................................ 16,998
--------
TOTAL LIABILITIES AND EQUITY CAPITAL............................................. $297,061
========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE )DIRECTORS
WILLIAM B. HARRISON, JR.)
-5-
