<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 15, 1999
REGISTRATION NOS. 333-82913; 333-82913-01
________________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 1
TO
FORM F-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
NEWCOURT CREDIT GROUP INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
------------------------
<TABLE>
<S> <C> <C>
ONTARIO NOT APPLICABLE
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (IRS EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
</TABLE>
NEWCOURT CENTRE
207 QUEENS QUAY WEST
SUITE 700
TORONTO, ONTARIO, CANADA M5J 1A7
(416) 507-2400
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL OFFICES)
------------------------
AT&T CAPITAL CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
------------------------
<TABLE>
<S> <C> <C>
DELAWARE 22-3211453
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
</TABLE>
2 GATEHALL DRIVE
PARSIPPANY, NEW JERSEY 07054
(973) 606-3500
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
SCOTT J. MOORE, ESQ.
EXECUTIVE VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
NEWCOURT CREDIT GROUP INC.
AT&T CAPITAL CORPORATION
2 GATEHALL DRIVE
PARSIPPANY, NEW JERSEY 07054
(973) 606-3500
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
------------------------
COPIES TO:
M. DAVID GALAINENA, ESQ.
WINSTON & STRAWN
35 WEST WACKER DRIVE
CHICAGO, ILLINOIS 60601
(312) 558-5600
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) 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 this Form is a post-effective amendment filed pursuant to Rule 462(d)
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. [ ]
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED PROPOSED
MAXIMUM MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED PER UNIT OFFERING PRICE FEE(1)
- -------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
6.875% Exchange Notes, Series B. 1,000,000,000 100% 1,000,000,000 278,000
</TABLE>
(1) Paid at the time of the initial filing of this Registration Statement.
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
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 THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
________________________________________________________________________________
<PAGE>
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
PROSPECTUS
OFFER TO EXCHANGE ALL $1,000,000,000 6.875% NOTES, SERIES B
DUE FEBRUARY 16, 2005
FOR
$1,000,000,000 6.875% EXCHANGE NOTES, SERIES B
DUE FEBRUARY 16, 2005
OF
NEWCOURT CREDIT GROUP INC.
PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, AND INTEREST GUARANTEED BY
AT&T CAPITAL CORPORATION
------------------------
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M. NEW YORK CITY TIME,
ON NOVEMBER 17, 1999, UNLESS EXTENDED.
------------------------
Terms of this exchange offer:
We will exchange all outstanding 6.875% Notes, Series B that are validly
tendered and not withdrawn prior to the expiration of this exchange offer.
You may withdraw tenders of 6.875% Notes, Series B at any time prior to
the expiration of this exchange offer.
This exchange of notes will not be a taxable exchange for U.S. federal
income tax purposes, but you should see 'United States Federal Income Tax
Considerations' on page 37 for more information.
We will not receive any proceeds from this exchange offer.
The 6.875% Exchange Notes, Series B and the outstanding 6.875% Notes,
Series B evidence the same indebtedness and are substantially identical,
except that the 6.875% Exchange Notes, Series B have been registered under
the Securities Act and certain transfer restrictions and registration
rights relating to the 6.875% Notes, Series B do not apply to the 6.875%
Exchange Notes, Series B.
The Exchange Notes will be issued by Newcourt Credit Group Inc. The
Exchange Notes will be unconditionally guaranteed as to payment of principal,
premium, if any, and interest by AT&T Capital. The Exchange Notes are not
guaranteed or supported in any way by AT&T Corp. AT&T Capital is not owned by,
or an affiliate of, AT&T Corp.
------------------------
SEE 'RISK FACTORS' BEGINNING ON PAGE 10 FOR A DISCUSSION OF CERTAIN RISKS
THAT YOU SHOULD CONSIDER PRIOR TO TENDERING YOUR NOTES.
------------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR
PASSED UPON THE ADEQUACY OR ACCURACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------
The date of this prospectus is October 15, 1999.
------------------------
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED IN THIS DOCUMENT OR TO
WHICH WE HAVE REFERRED YOU. WE HAVE NOT AUTHORIZED ANYONE TO PROVIDE YOU WITH
INFORMATION THAT IS DIFFERENT. THIS DOCUMENT MAY ONLY BE USED WHERE IT IS LEGAL
TO SELL THESE SECURITIES. THE INFORMATION IN THIS DOCUMENT MAY ONLY BE ACCURATE
ON THE DATE OF THIS DOCUMENT.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Prospectus Summary.................... 3
Where You Can Find More Information... 3
Financial Information................. 4
Recent Developments................... 4
Risk Factors.......................... 10
Use of Proceeds....................... 14
Newcourt.............................. 14
AT&T Capital.......................... 16
The Exchange Offer.................... 17
<CAPTION>
PAGE
----
<S> <C>
Description of the Exchange Notes..... 25
Canadian Federal Income Tax
Considerations...................... 36
United States Federal Income Tax
Considerations...................... 37
ERISA Considerations.................. 37
Plan of Distribution.................. 38
Legal Matters......................... 39
Experts............................... 39
</TABLE>
2
<PAGE>
PROSPECTUS SUMMARY
The following summary highlights selected information from this prospectus
but may not contain all of the information that is important to you. This
prospectus includes specific terms of the notes we are offering, as well as
information regarding our business and detailed financial data. We encourage you
to read this entire prospectus.
WHERE YOU CAN FIND MORE INFORMATION
Newcourt and AT&T Capital have filed with the Securities and Exchange
Commission a Registration Statement on Form F-4, under the Securities Act of
1933, with respect to the securities and the guarantee of the securities offered
by this prospectus. This prospectus, which constitutes a part of the
Registration Statement, does not contain all the information included in the
Registration Statement. You may read copies of the Registration Statement and
the exhibits, without charge, at the SEC's offices, or obtain copies of these
documents from the SEC's Public Reference Section, by paying the copying fees.
Statements made in this prospectus concerning the provisions of any
contract, agreement or other document referred to are not necessarily complete.
This prospectus incorporates by reference important business and financial
information about Newcourt and AT&T Capital that is not included in or delivered
with this prospectus. You are urged to read each referenced contract, agreement
or other document in its entirety. All the documents are filed as exhibits to
the Registration Statement or to documents incorporated by reference in this
prospectus.
Newcourt has elected to 'incorporate by reference' into this prospectus
other documents filed with the SEC by Newcourt. As allowed by the SEC, the
documents incorporated by reference into this document are considered part of
this document. Newcourt and AT&T Capital can disclose important information to
you in this document by referring to these other documents.
Newcourt is subject to the information and reporting requirements of the
Securities Exchange Act of 1934. Newcourt files periodic reports and other
information with the SEC. You may read these reports and other information filed
by Newcourt, without charge, or obtain copies for a fee, from the SEC's Public
Reference Section. Please call the SEC at 1-800-SEC-0330 for more information on
the public reference rooms. You can also find many of these documents on the
SEC's web site at http://www.sec.gov.
Newcourt incorporates by reference the following documents previously filed
with the SEC (File No. 061-14604) and any future filings it will make with the
SEC under Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date
of this prospectus:
Newcourt's Annual Report on Form 40-F for the year ended December 31,
1998;
Newcourt's audited consolidated financial statements and the auditors'
report thereon for the fiscal years ended December 31, 1998 and 1997 on
Form 6-K dated February 26, 1999;
Newcourt's Management Information Circular of Newcourt dated
February 26, 1999, except the sections entitled 'Governance and
Compensation Committee,' 'Report on Executive Compensation,' 'Corporate
Governance' and the 'Share Performance Graph' on Form 6-K;
Newcourt's Form 6-K filed March 8, 1999;
Newcourt's Form 6-K filed March 12, 1999;
Newcourt's Form 6-K filed March 18, 1999;
Newcourt's Form 6-K filed April 6, 1999;
Newcourt's Form 6-K filed April 22, 1999;
Newcourt's unaudited interim financials for the three month period
ending March 31, 1999 on Form 6-K filed May 5, 1999;
Newcourt's Form 6-K filed June 15, 1999;
Newcourt's unaudited interim financials for the six month period ending
June 30, 1999 on Form 6-K filed August 5, 1999;
Newcourt's Form 6-K filed August 5, 1999;
3
<PAGE>
Newcourt's Form 6-K filed August 9, 1999;
Newcourt's Form 6-K filed September 10, 1999; and
Newcourt's proxy statement relating to the pending
Newcourt/CIT combination on Form 6-K filed October 15, 1999.
AT&T Capital was previously subject to the information and reporting
requirements of the Exchange Act. However, AT&T Capital is no longer required to
file those reports and information. Summarized financial information concerning
the company will be included in a footnote to the financial statements contained
in Newcourt's Exchange Act reports.
Information in this prospectus supersedes information incorporated by
reference that AT&T Capital or Newcourt filed with the SEC before the date of
this prospectus. Information AT&T Capital or Newcourt files later with the SEC
will automatically update and, in some cases, supersede this information.
Copies of the above documents of AT&T Capital or Newcourt may be obtained
upon request without charge from Newcourt Credit Group Inc., 207 Queens Quay
West, Suite 700, Toronto, Ontario, Canada M5J 1A7 (Telephone Number
416-507-2400), attention: Communications Department. TO OBTAIN TIMELY DELIVERY,
YOU MUST REQUEST THE DOCUMENTS NO LATER THAN NOVEMBER 10, 1999.
FINANCIAL INFORMATION
Dollar amounts included in this prospectus or incorporated by reference
into this prospectus are in either United States dollars ('U.S. $' or '$') or
Canadian dollars ('C$').
Our consolidated financial statements included in this prospectus and in
our reports filed pursuant to the Exchange Act are prepared in accordance with
accounting principles generally accepted in Canada ('Canadian GAAP').
Differences between Canadian GAAP and accounting principles generally accepted
in the United States ('U.S. GAAP') as they affect our financial statements are
explained in a note to our audited consolidated financial statements
incorporated by reference into this prospectus. On January 1, 1999, we began
reporting our financial results in U.S. dollars.
RECENT DEVELOPMENTS
On March 8, 1999, Newcourt announced that it had entered into an Agreement
and Plan of Reorganization with The CIT Group, Inc. pursuant to which the
outstanding common shares of Newcourt will be converted into either common stock
of The CIT Group, Inc. or, in the case of shares held by Canadian residents who
so elect, into a new class of stock exchangeable into common stock of The CIT
Group, Inc. and Newcourt will become a wholly-owned subsidiary of The CIT Group,
Inc. On June 15, 1999, Newcourt and The CIT Group, Inc. announced that they had
entered into an Amendment to the Agreement and Plan of Reorganization. On
August 5, 1999, Newcourt and The CIT Group, Inc. announced that they had revised
their agreement and had entered into an Amended and Restated Agreement and Plan
of Reorganization. Completion of the transaction is subject to a number of
conditions set forth in the Agreement and Plan of Reorganization, as amended and
restated, which is on file with the SEC and which is incorporated by reference
herein. The preceding description of the Agreement and Plan of Reorganization,
as amended and restated, is qualified in its entirety by reference to the full
and complete text of the agreement and we recommend reading the agreement. The
parties cannot be certain whether the transaction contemplated by the Agreement
and Plan of Reorganization, as amended and restated, will be completed in
accordance with the terms thereof. See 'Newcourt -- Announced Acquisition of
Newcourt' herein. Additionally, you should not assume that The CIT Group, Inc.
will guarantee the notes offered hereby if the business combination transaction
with The CIT Group, Inc. is completed.
NEWCOURT
OVERVIEW
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. Today, Newcourt is one of the world's largest
providers of vendor finance and one of the world's largest non-bank commercial
asset finance companies, having
4
<PAGE>
approximately U.S. $24.6 billion (C$36.2 billion) of owned and managed assets
and U.S. $3.1 billion (C$4.6 billion) shareholders' equity at June 30, 1999.
Newcourt provides asset-based sales and inventory financing for a variety
of equipment to both vendors and customers through Newcourt Financial, its
commercial finance business. Newcourt also provides asset-based financing for
high value assets and related advisory services through Newcourt Capital, its
corporate finance business. Newcourt originates asset finance business through
innovative financing techniques and provides focused client services and
complementary product offerings. Newcourt characterizes its risk management
culture as conservative and has a solid credit underwriting performance.
Newcourt's international origination and servicing capabilities span
twenty-six countries around the globe. Newcourt serves clients in Canada, the
United States, the United Kingdom, the Asia/Pacific region, Europe, Mexico and
South America.
Newcourt's long-term debt is rated 'Baa3' by Moody's Investors Services
Inc. and 'BBB' by Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies.
Newcourt's principal executive offices are located at: Newcourt Centre, 207
Queens Quay West, Suite 700, Toronto, Ontario M5J1AF, telephone number (416)
507-2400.
AT&T CAPITAL
AT&T Capital, an indirect wholly-owned subsidiary of Newcourt, is a
full-service, diversified equipment leasing and finance company that operates
principally in the United States. 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 and transportation
equipment. In addition, AT&T Capital provides franchise financing for
franchisees and financing collateralized by real estate.
AT&T Capital's principal executive offices are located at: 2 Gatehall
Drive, Parsippany, New Jersey 07054 and its telephone number is (973) 606-3500.
AT&T Capital's long-term debt is rated 'A - ', 'BBB+', 'Baa3' and 'BBB' by
Duff & Phelps Credit Rating Company, Fitch IBCA, Inc., Moody's Investors
Services Inc. and Standard & Poor's Ratings Services, a division of The McGraw
Hill Companies, respectively.
RISK FACTORS
You should consider carefully all of the information set forth in this
prospectus. In particular, you should consider the specific factors set forth
under 'Risk Factors' before deciding to tender your notes in the exchange offer.
THE EXCHANGE OFFER
<TABLE>
<S> <C>
Securities Offered........................... We are offering up to $1,000,000,000 aggregate
principal amount of 6.875% Exchange Notes, Series B
due February 16, 2005, which have been registered
under the Securities Act of 1933. The Exchange Notes
evidence the same indebtedness as the notes you
currently own and have substantially identical terms,
except that some transfer restrictions and
registration rights relating to the notes you
currently own do not apply to the Exchange Notes.
The Exchange Offer........................... We are offering to issue the Exchange Notes in
exchange for the notes you currently own on a
dollar-for-dollar basis. The notes you currently own
were not registered with the SEC. We are offering to
issue the Exchange Notes to satisfy our obligations
contained in the registration rights agreement
entered into when the notes you currently own were
originally sold by us. You may take part in this
exchange offer by following the
</TABLE>
5
<PAGE>
<TABLE>
<S> <C>
procedures described in this prospectus under the
heading 'The Exchange Offer.'
Expiration Date.............................. This exchange offer will expire at 5:00 p.m., New
York City time, on November 17, 1999, unless we
extend it.
Tenders...................................... If you decide to exchange your notes for Exchange
Notes, you must acknowledge that you are not engaging
in, and do not intend to engage in, a distribution of
your new Exchange Notes.
Withdrawal................................... If you decide to exchange your notes, you may change
your mind and choose not to take part in this
exchange offer at any time prior to November 17,
1999. If we decide for any reason not to accept any
notes you currently own for exchange, your notes will
be returned without expense to you promptly after the
expiration or termination of this exchange offer.
Conditions to the Exchange Offer............. The exchange offer is subject to some conditions,
which we may waive. Please read the section 'The
Exchange Offer -- Conditions to the Exchange Offer'
of this prospectus for more information regarding
conditions to this exchange offer.
United States Federal Income Tax
Considerations............................. Your exchange of the notes you currently own for
Exchange Notes will not result in any gain or loss to
you for United States federal income tax purposes.
See 'United States Federal Income Tax Considerations'
section of this prospectus.
Procedures for Tendering Old Notes........... See the procedures described in this prospectus under
the heading 'The Exchange Offer -- General
Procedures.'
Use of Proceeds.............................. We will receive no proceeds from the exchange of
notes for Exchange Notes. For more details, see 'Use
of Proceeds' section.
Exchange Agent............................... The Chase Manhattan Bank, trustee for the notes, is
the exchange agent for this exchange offer. The Chase
Manhattan Bank's address and telephone number are set
forth under the heading 'The Exchange Offer --
Exchange Agent.'
No Dissenters' or Appraisal Rights........... Holders of notes will not have dissenters' rights or
appraisal rights in connection with this exchange
offer. See 'The Exchange Offer -- Appraisal Rights.'
</TABLE>
CONSEQUENCES OF NOT EXCHANGING NOTES
If you do not exchange your notes for the Exchange Notes, you will continue
to be subject to restrictions on transfer of your notes. The restrictions on
transfer of your notes exist because we issued the notes you currently own
pursuant to exemptions from, or in transactions not subject to, the registration
requirements of the Securities Act and state securities laws. In general, you
may only offer or sell the notes you currently own if they are registered under
the Securities Act and state securities laws, or offered and sold pursuant to an
exemption from those requirements. We do not intend to register the notes you
currently own under the Securities Act.
In addition, if you take part in this exchange offer for the purpose of
participating in a distribution of your new Exchange Notes, your Exchange Notes
may be treated as restricted securities. If so, you will be required to comply
with the registration and prospectus delivery requirements of the Securities Act
in connection with any resale of your Exchange Notes. To the extent notes are
tendered and accepted by us, any trading market for the notes you currently own
would be adversely affected.
6
<PAGE>
SUMMARY DESCRIPTION OF THE EXCHANGE NOTES
The Exchange Notes and the notes you currently own evidence the same
indebtedness and are identical in all material respects, except that the
Exchange Notes are registered with the Securities and Exchange Commission and
the transfer restrictions and registration rights relating to the notes you
currently own do not apply to the Exchange Notes.
<TABLE>
<S> <C>
Securities Offered........................... We are offering up to $1,000,000,000 aggregate
principal amount of 6.875% Exchange Notes, Series B
due February 16, 2005.
Guaranty..................................... The payment of principal, premium, if any, and
interest on the Exchange Notes is guaranteed by AT&T
Capital. AT&T Capital is not owned by, and is not
affiliated with, AT&T Corp.
Maturity Date................................ February 16, 2005.
Interest Payment Dates....................... February 16 and August 16, beginning August 16, 1999.
Ranking and Security......................... The Exchange Notes will be unsecured obligations of
Newcourt. The Exchange Notes will rank equally in
right of payment with all other unsecured and
unsubordinated indebtedness of Newcourt.
Redemption................................... We do not have the option to redeem the Exchange
Notes and the holders of the Exchange Notes will not
have the option to request repayment of the Exchange
Notes prior to February 16, 2005.
Certain Covenants............................ The indenture under which we are issuing the Exchange
Notes contains covenants restricting or limiting our
ability to, among other things:
merge or consolidate with other companies,
sell substantially all of our assets, or
incur some types of liens.
Registration Rights.......................... You will not be entitled to any registration rights
in connection with the Exchange Notes.
</TABLE>
RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth the unaudited historical ratios of earnings
to fixed charges for Newcourt for the six month period ended June 30, 1999 and
for the years ended December 31, 1994 through 1998.
<TABLE>
<CAPTION>
HISTORICAL(1)
FOR THE SIX YEAR ENDED
MONTHS ENDED DECEMBER 31,
JUNE 30, --------------------------------
1999(1) 1998 1997 1996 1995 1994
------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges............... 1.39 1.47 1.11 1.60 1.53 1.55
</TABLE>
- ------------
(1) Calculated under Canadian GAAP, 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.
7
<PAGE>
The following table sets forth the unaudited historical ratios of earnings
to fixed charges for AT&T Capital for the six months ended June 30, 1999 and for
the years ended December 31, 1994 through 1998.
<TABLE>
<CAPTION>
HISTORICAL(1)
FOR THE SIX YEAR ENDED
MONTHS ENDED DECEMBER 31,
JUNE 30, --------------------------------
1999(1) 1998 1997 1996 1995 1994
------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges............... 1.25 1.35 1.07 1.60 1.50 1.62
</TABLE>
- ------------
(1) Calculated under U.S. GAAP, 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. Prior to October 1, 1996, a portion of the company's
indebtedness to AT&T Corp. did not bear interest.
SELECTED CONSOLIDATED FINANCIAL INFORMATION OF NEWCOURT
The following selected financial information has been derived from the
consolidated financial statements of Newcourt for the six months ended June 30,
1999 and 1998 and for the five years ended December 31, 1998. The information
should be read in conjunction with the consolidated financial statements and
accompanying notes which are contained in Newcourt's Annual Report filed on
Form 40-F for the year ended December 31, 1998, incorporated into this
prospectus.
SELECTED SUMMARY FINANCIAL INFORMATION
(IN THOUSANDS OF U.S. DOLLARS, EXCEPT PER SHARE AMOUNTS)(1)
<TABLE>
<CAPTION>
FOR THE SIX MONTHS
ENDED JUNE 30, YEAR ENDED DECEMBER 31,
------------------------- ----------------------------------------------------------------
1999(9)(10) 1998(8) 1998(2)(8) 1997(8) 1996(8) 1995(8) 1994(8)
----------- ------- ---------- ------- ------- ------- -------
$ $ $ $ $ $ $
<S> <C> <C> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA
Securitization and syndication
fees.......................... $ 154,168 $ 127,749 $ 291,300 $ 121,668 $ 56,380 $ 28,589 $ 22,124
Net income from affiliated
companies and management
fees.......................... $ 171,818 $ 67,526 $ 148,630 $ 29,154 $ 20,422 $ 11,663 $ 5,599
Net finance income.............. $ 206,928 241,551 $ 525,612 $ 54,346 $ 33,752 $ 19,127 $ 10,264
----------- ----------- ----------- ---------- ---------- ---------- --------
Total asset financial income.... $ 532,914 $ 436,826 $ 965,542 $ 205,168 $ 110,555 $ 59,379 $ 37,987
Operating income................ $ 162,885 $ 120,372 $ 304,170 $ 76,719(3) $ 41,332 $ 23,477 $ 15,856
Net income...................... $ 97,731 $ 72,256 $ 189,661 $ 23,466 $ 32,654 $ 18,946 $ 12,072
Earnings per Common and Special
Share(4)(5)(6)................ $ 0.66 $ 0.52 $ 1.33 $ 0.86(3) $ 0.62 $ 0.49 $ 0.39
Fully diluted earnings per
Common and Special
Share(6)(7)................... $ 0.66 $ 0.52 $ 1.33 $ 0.34 $ 0.62 $ 0.49 $ 0.39
</TABLE>
<TABLE>
<CAPTION>
AS AT JUNE 30, AS AT DECEMBER 31,
------------------------- ----------------------------------------------------------------
1999(9)(10) 1998(8) 1998(2)(8) 1997(8) 1996(8) 1995(8) 1994(8)
----------- ------- ---------- ------- ------- ------- -------
$ $ $ $ $ $ $
<S> <C> <C> <C> <C> <C> <C> <C>
BALANCE SHEET DATA (8)
Total assets.................... $15,631,455 $12,499,607 $15,352,957 $3,983,717 $1,426,078 $ 876,305 $472,897
Debt............................ $11,846,438 $ 8,607,684 $11,607,184 $1,797,478 $1,025,742 $ 684,189 $333,026
Shareholders' equity(4)(5)...... $ 3,102,656 $ 2,905,930 $ 3,018,305 $1,972,520 $ 332,416 $ 157,978 $103,709
</TABLE>
8
<PAGE>
SELECTED SUMMARY FINANCIAL INFORMATION
(IN THOUSANDS OF CANADIAN DOLLARS, EXCEPT PER SHARE AMOUNTS)(1)
<TABLE>
<CAPTION>
FOR THE SIX MONTHS
ENDED JUNE 30, YEAR ENDED DECEMBER 31,
------------------------- --------------------------------------------------------
1999(9)(10) 1998 1998(2) 1997 1996 1995 1994
----------- ---- ------- ---- ---- ---- ----
C$ C$ C$ C$ C$ C$ C$
<S> <C> <C> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA
Securitization and syndication
fees............................ $ 230,067 $ 198,275 452,119 188,837 87,506 44,372 34,338
Net income from affiliated
companies and management fees... $ 256,407 $ 104,805 230,685 45,249 31,697 18,102 8,690
Net finance income................ $ 308,802 $ 374,904 815,787 84,349 52,386 29,686 15,930
----------- ----------- ---------- --------- --------- --------- -------
Total asset financial income...... $ 795,275 $ 677,984 1,498,591 318,435 171,589 92,160 58,958
Operating income.................. $ 243,076 186,824 472,093 119,074(3) 64,150 36,438 24,610
Net income........................ $ 145,845 $ 112,144 294,367 36,421 50,681 29,405 18,737
Earnings per Common and Special
Share(4)(5)(6).................. $ 0.98 $ 0.81 2.06 1.33(3) 0.96 0.76 0.60
Fully diluted earnings per Common
and Special Share(6)(7)......... $ 0.98 $ 0.81 2.06 0.52 0.96 0.76 0.60
</TABLE>
<TABLE>
<CAPTION>
AS AT JUNE 30, AS AT DECEMBER 31,
------------------------- --------------------------------------------------------
1999(9)(10) 1998 1998(2) 1997 1996 1995 1994
----------- ---- ------- ---- ---- ---- ----
C$ C$ C$ C$ C$ C$ C$
<S> <C> <C> <C> <C> <C> <C> <C>
BALANCE SHEET DATA
Total assets...................... $23,058,644 $19,400,291 23,828,895 6,183,016 2,213,376 1,360,088 733,970
Debt.............................. $17,475,200 $13,359,745 18,015,185 2,789,816 1,592,026 1,061,911 516,881
Shareholders' equity(4)(5)........ $ 4,573,345 $ 4,510,213 4,684,627 3,061,493 515,934 245,194 160,964
</TABLE>
- ------------
(1) Certain amounts have been reclassified to conform to the presentation
adopted in the current year.
(2) The increase in the amounts reflected in the selected financial information
for 1998 as compared to 1997 was primarily attributable to the inclusion of
AT&T Capital Corporation, which was acquired by Newcourt in 1998.
(3) Before pre-tax restructuring charges of U.S. $66.4 million (C$103.0
million).
(4) Based on the weighted average number of Common Shares and Special Shares
outstanding during the period.
(5) On November 30, 1995, 1,611,000 Special Shares were converted into
1,611,000 Common Shares. On December 27, 1995, 1,411,675 Special Shares
were converted into 1,411,675 Common Shares. On July 2, 1996, the remaining
199,325 Special Shares were converted into 199,325 Common Shares. On
December 11, 1995, Newcourt redeemed and cancelled all issued and
outstanding Preference Shares.
(6) Effective April 14, 1997, Newcourt subdivided on a two-for-one basis all of
Newcourt's issued and outstanding Common Shares and all of Newcourt's
Common Shares reserved for issuance. The Selected Summary Financial
Information set out in the above table has been adjusted to reflect the
stock split.
(7) Based on the weighted average number of Common Shares and Special Shares
outstanding during the period after giving effect to the exercise of
outstanding stock options and any other dilutive item.
(8) Since Newcourt had adopted the U.S. dollar as its reporting currency
effective January 1, 1999, Newcourt's historical financial information has
been converted to U.S. dollars using the December 31, 1998 exchange rate of
.6443. As of October 14, 1999, the Canadian to U.S. dollar exchange rate
was 0.6752.
(9) Since Newcourt had adopted the U.S. dollar as its reporting currency
effective January 1, 1999, the selected financial data regarding the income
statement and earnings per share data; total assets and debt; and
shareholders' equity has been converted to Canadian dollars using the six
month weighted average exchange rate of 0.6701; the June 30th exchange rate
of 0.6779 and the historical exchange rate, respectively. As of
October 14, 1999, the Canadian to U.S. dollar exchange rate was 0.6752.
(10) In March 1999, Newcourt recorded a one-time pre-tax gain of U.S. $56.6
million (C$85.9 million) arising from its unwinding of certain currency
hedges no longer required following the change in Newcourt's reporting
currency to U.S. dollars from Canadian dollars. During the second quarter,
Newcourt realized a one time pre-tax gain of U.S. $34.3 (C$50.5) from the
sale of its automobile fleet leasing business in Canada and the U.K.
9
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RISK FACTORS
You should give careful consideration to the following risk factors, in
addition to the other information included or incorporated by reference in this
prospectus. To the extent any of the information in this prospectus constitutes
a 'forward-looking statement' for purposes of Section 21E of the Exchange Act or
Section 27A 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 forward-looking
statements. We cannot be certain that our actual results will not materially
differ from those anticipated in forward-looking statements contained in this
prospectus.
Before you participate in this exchange offer, you should be aware that
there are various risks, including the ones listed below. You should carefully
consider these risk factors, as well as other information contained in this
prospectus in evaluating your participation in the exchange offer.
PENDING COMBINATION WITH THE CIT GROUP, INC. COULD DISTRACT NEWCOURT FROM ITS
BUSINESS AND RESULT IN LOSS OF PERSONNEL AND DISRUPTION OF OPERATIONS
Newcourt has entered into an agreement providing for a business combination
with The CIT Group. See 'Prospectus Summary -- Recent Developments.' Although we
are not certain that the proposed business combination of CIT and Newcourt will
be completed, preparing for the completion of this combination and, if
completed, integration of Newcourt and The CIT Group will require a substantial
amount of management's time. Diversion of management attention from Newcourt's
existing business as well as problems that may arise in connection with the
integration of Newcourt's and The CIT Group's operations may have a material
adverse impact on Newcourt's revenues and results of operations. The integration
of Newcourt and The CIT Group may result in additional expenses which could
negatively impact Newcourt's results of operations. Further, the uncertainty
created by the combination may result in the loss of management and other
employees. The unavailability of these people and the resulting disruption in
Newcourt's operations could have a material adverse effect on Newcourt's
business. See 'Newcourt -- Announced Acquisition of Newcourt.'
The proposed transaction involves the integration of two companies that
have different corporate cultures and that have previously operated
independently. In addition, the composition of the combined company's management
will be new. The success of the combined company will depend to a significant
degree on the compatability of key executives and its ability to retain
highly-skilled personnel. It is not certain that the two companies will be able
to integrate their operations without encountering difficulties, including
incompatability of key executives, the loss of key employees and customers, the
disruption of our respective ongoing businesses or possible inconsistencies in
systems, standards, procedures and policies.
NEWCOURT'S AND AT&T CAPITAL'S AVAILABILITY AND COST OF FUNDS FOR OPERATION OF
THEIR BUSINESS MAY SUFFER ADVERSELY DUE TO FACTORS BEYOND THEIR CONTROL
Each of Newcourt's and AT&T Capital's business requires substantial amounts
of cash to support growth and operations. Any number of factors which are beyond
our control, such as credit ratings, interest rates, general economic conditions
and the perception of Newcourt's and AT&T Capital's business, results of
operations, leverage, financial condition and business prospects, may affect the
ability of Newcourt and AT&T Capital to obtain funds and the cost of these
funds. Further, each of Newcourt and AT&T Capital may now, or in the future
become, subject to restrictions as a result of our participation in other debt
financing transactions. These restrictions might also affect the amount of cash
available to us to operate our respective businesses. While Newcourt and AT&T
Capital each continue to obtain new sources of funding, we cannot be certain
that cash in an amount sufficient to fund the operations of our respective
businesses will always be available.
NEWCOURT'S AND AT&T CAPITAL'S BUSINESS MAY SUFFER ADVERSELY UPON ANY DOWNGRADE
IN THEIR DEBT RATINGS
Newcourt's long-term debt is rated 'Baa3' by Moody's Investors Services
Inc. and 'BBB' by Standard & Poor's Ratings Services. AT&T Capital's long-term
debt is rated 'A - ,' 'BBB+,' 'Baa3' and 'BBB' by Duff & Phelps Credit Rating
Co., Fitch IBCA, Inc., Moody's Investors Services Inc. and Standard & Poor's
Ratings Services, respectively. We cannot be certain that any of these ratings
agencies will not, at any time, change these ratings. In the event any ratings
were lowered, this downgrading would: (1) result in relatively higher borrowing
costs, (2) reduce access to traditional funding sources and (3) reduce
competitiveness, particularly if any such assigned rating is in a generic rating
category that signifies that the debt is less than investment grade. In
addition, if our debt ratings are downgraded to ratings below investment grade,
such downgrading could result in the termination of our Lucent agreement. Any
such downgrading could have an adverse effect on Newcourt's or AT&T Capital's
business and a negative impact on the value of the Exchange Notes offered by
this prospectus.
NEWCOURT AND AT&T CAPITAL DEPEND ON SECURITIZATION PROGRAMS TO PROVIDE FINANCING
AND MAY SUFFER ADVERSE FINANCIAL CONSEQUENCES UPON ANY DELAY OR DECREASE IN
THEIR ABILITY TO FINANCE ASSETS THROUGH SECURITIZATION PROGRAMS
Newcourt and AT&T Capital each sell financial assets ('securitizations')
and retain an interest in those financial assets. Our securitization
transactions are structured as both private conduit programs and the sale of
publicly offered securities. These transactions allow each of Newcourt and AT&T
Capital to record securitization gains, manage its respective leverage ratio and
to transfer credit risk. Any delay or decrease in the sale of finance assets
and/or an increase in the actual defaults from that expected may cause
Newcourt's and AT&T Capital's net income and leverage to be adversely affected.
Any delay in the securitization of finance receivables may cause
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leverage to fluctuate, postpone the recognition of the gain on such finance
receivables and cause our net income to fluctuate from period to period.
NEWCOURT AND AT&T CAPITAL OPERATE IN A HIGHLY COMPETITIVE INDUSTRY AND COMPETE
AGAINST ENTITIES WITH SUBSTANTIAL CAPITAL AND RESOURCES
The equipment leasing and finance industry in which Newcourt and AT&T
Capital operate is highly competitive and is undergoing a process of
consolidation. As a result, certain of our competitors' relative cost bases have
been reduced. We compete with these companies 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.
Our 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, we compete 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 Newcourt or AT&T Capital may otherwise
finance. Many of our competitors are large companies that have substantial
capital, technological and marketing resources; some of these competitors are
significantly larger than we are and have access to borrowings at a lower cost
than we do. In addition, we may not have, in the immediate future, access to
sufficient U.S. federal tax capacity to pursue efficiently U.S. tax based lease
financing.
CHANGES IN RELATIONSHIPS WITH MAJOR VENDORS COULD ADVERSELY AFFECT RESULTS OF
OPERATIONS
A significant portion of Newcourt's and/or AT&T Capital's consolidated net
income is attributable to the financing provided by major vendor relationships,
including those with Lucent Technologies, Inc., Dell Corporation, Snap-on
Incorporated, Western Star Trucks Inc. and Yamaha Corporation, with respect to
products manufactured or distributed by them and, to a lesser extent, to Lucent
as an end-user, primarily with respect to the lease of information technology
and other equipment or vehicles.
Newcourt's and AT&T Capital's commercial relationships with these and other
major vendors are governed by formal agreements. Although Newcourt and AT&T
Capital intend to seek to maintain and improve their existing relationships with
these and other major vendors, we cannot be certain that any agreement with
these and other major vendors will be extended beyond their respective
termination dates. Further, if they are extended, we cannot be certain that the
terms and conditions of future agreements with our major vendors will be as
beneficial to Newcourt and AT&T Capital. If we fail to renew any of those
agreements or change the terms of the agreements with our major vendors, this
may have a material adverse effect on Newcourt and AT&T Capital.
In addition, these agreements may contain provisions which allow these
vendors to terminate their respective agreement. The agreement with Lucent
contains provisions which allow Lucent to terminate the agreement prior to its
termination date. If the agreement with Lucent is terminated, the results of
operations of Newcourt and AT&T Capital could be adversely affected.
NEWCOURT AND AT&T CAPITAL HAVE UNLIMITED LIABILITY UNDER GUARANTEES ISSUED
NEWCOURT GUARANTEE. Newcourt has fully and unconditionally guaranteed (the
'Newcourt Guarantee') the payment of any present and future principal,
indebtedness for borrowed money incurred by AT&T Capital or by any other person
whose debts AT&T Capital has guaranteed, except for (1) any indebtedness for
borrowed money where the terms of that indebtedness specifically provide that
repayment is not guaranteed by Newcourt; and (2) any indebtedness, (a) for
borrowed money secured by liens on, or payable solely from the income and
proceeds of,
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<PAGE>
any property of AT&T Capital or any of its subsidiaries and (b) which is not a
general obligation of AT&T Capital.
Newcourt's liability under the Newcourt Guarantee is unlimited in amount
and absolute and unconditional in that defenses based on the lack of validity or
the unenforceability of the AT&T Capital debt or any defense or counterclaim
available to AT&T Capital will not be available to Newcourt. Because Newcourt
expects to guarantee future AT&T Capital debt, as well as amendments,
supplements, restatements or replacements of existing AT&T Capital debt, the
total outstanding principal amount of AT&T Capital debt to be guaranteed by
Newcourt is expected to increase in the future. The aggregate principal amount
of AT&T Capital debt was U.S. 8.9 billion (C$13.2 billion) as of June 30, 1999.
AT&T CAPITAL GUARANTEE. In connection with Newcourt's acquisition of AT&T
Capital, AT&T Capital guaranteed the payment of certain indebtedness and
liquidity facilities issued, guaranteed or entered into by Newcourt for the
benefit of the holders of the Newcourt debt securities. The amount of Newcourt
debt securities covered by AT&T Capital's guarantee was U.S. $2.3 billion
(C$3.4 billion) at June 30, 1999. Because AT&T Capital's guarantee covers
Newcourt's future indebtedness in addition to the current Newcourt debt
securities, the aggregate outstanding principal amount of the Newcourt debt
securities to be covered by AT&T Capital's guarantee is expected to increase in
the future.
The liability of AT&T Capital under AT&T Capital's guarantee is unlimited
in amount and absolute and unconditional in that defenses based, among other
things, on the lack of validity or the unenforceability of the Newcourt debt
securities or any defense or counterclaim available to Newcourt will not be
available to AT&T Capital.
AT&T CAPITAL'S GUARANTEE MAY BE VOIDABLE BY A BANKRUPTCY COURT
As stated above, AT&T Capital, Newcourt's subsidiary, will guarantee the
repayment of the Exchange Notes. If a court in a lawsuit by an unpaid creditor
or representative of creditors of AT&T Capital were to find that, at the time
AT&T Capital issued its guarantee, AT&T Capital was insolvent, or was rendered
insolvent by reason of the incurrence of its obligation under the guarantee, was
engaged in a business or transaction for which its remaining unencumbered assets
constituted unreasonably small capital, or that AT&T Capital intended to incur,
or believed that it would incur, debts beyond its ability to pay as such debts
matured or intended to hinder, delay, or defraud its creditors, such court
could, under state or federal fraudulent transfer law, avoid the guarantee and
order that any payments made by AT&T Capital pursuant to the guarantee be
returned to AT&T Capital or to a fund for the benefit of its creditors. A court
could also subordinate the guarantee to all existing and future indebtedness of
AT&T Capital, the effect of which would be to entitle AT&T Capital's other
creditors to be paid in full before any payment could be made on AT&T Capital's
guarantee of the Exchange Notes. Newcourt and AT&T Capital believe that the
issuance of the guarantee by AT&T Capital will not render AT&T Capital
insolvent; however, we are not certain that a court would agree with that belief
or that a court would not void AT&T Capital's guarantee on grounds other than
insolvency.
ALLOWANCE FOR CREDIT LOSSES MAY NOT BE ADEQUATE; ESTIMATED RESIDUAL VALUES MAY
NOT BE REALIZED
In connection with origination of finance receivables, capital leases and
operating leases, Newcourt and AT&T Capital are subject to the risk that our
allowances for credit losses may not be enough to cover ultimate losses. If our
allowance is not adequate to cover our credit losses actually incurred,
Newcourt's and AT&T Capital's results of operations and financial condition may
be materially adversely affected. In addition, the estimated residual values may
not be realized at the end of the lease terms and realization of these residual
values has historically been a significant element of the net income of AT&T
Capital. If Newcourt and/or AT&T Capital fail to realize the estimated residual
values, their results of operations and financial constitution may be materially
adversely affected.
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<PAGE>
NEWCOURT IS SUBJECT TO SIGNIFICANT FOREIGN CURRENCY EXCHANGE RISK
Newcourt operates in twenty-six countries and, as a result, is subject to
the effects of fluctuations in foreign currency exchange rates. If these foreign
currency exchange rates move adverse to Newcourt's reporting currency, it could
have a material adverse impact on Newcourt's financial position and results of
operations.
UNCERTAINTY AS TO READINESS FOR YEAR 2000 AND POTENTIAL ADVERSE EFFECT ON
FINANCIAL PERFORMANCE
The 'Year 2000 issue' arises from widespread use of computer programs that
rely on two-digit date codes to perform computations or decision-making
functions. Newcourt and AT&T Capital are addressing the Year 2000 issue from a
global perspective. In early 1998, we established a global Year 2000 Program
Office to provide oversight from both a business and technical perspective. The
program coordinates vendors, consultants and regional Year 2000 resources. We
converted our critical systems in 1998. We will convert remaining systems and
conduct compliance testing and certification in 1999. We plan to consolidate our
operations onto a limited set of identified Year 2000 compliant systems in order
to achieve operational efficiencies and to minimize any potential problems or
costs due to the Year 2000 issue. We do not anticipate that the total cost of
these Year 2000 compliance activities will be material to our financial position
or results of operations in any given year. However, we cannot be certain that
our compliance activities will be sufficient to address all possible effects of
the Year 2000 issue. Significant Year 2000 failures in Newcourt's or AT&T
Capital's systems or in the systems of third parties (or third parties upon whom
they depend) could have a material adverse effect on Newcourt's or AT&T
Capital's, respectively, financial condition and results of operations.
THERE IS NO PUBLIC MARKET FOR THE EXCHANGE NOTES
We do not intend to list the Exchange Notes on any securities exchange. The
notes you currently own are eligible for trading in the PORTAL market of the
National Association of Securities Dealers, Inc. Market making activity, if any,
may be limited during the exchange offer.
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<PAGE>
THE CONSEQUENCE OF FAILURE TO EXCHANGE YOUR NOTES FOR EXCHANGE NOTES IS
CONTINUED RESTRICTIONS ON YOUR ABILITY TO RESELL YOUR NOTES
If you do not exchange your notes for the Exchange Notes pursuant to the
exchange offer, you will continue to be subject to restrictions on transfer of
your notes. The restrictions on transfer of your notes arise because we issued
the notes pursuant to exemptions from, or in transactions not subject to, the
registration requirements of the Securities Act and applicable state securities
laws. In general, you may only offer or sell the notes if they are registered
under the Securities Act and applicable state securities laws, or offered and
sold pursuant to an exemption from such requirements. We do not intend to
register the notes under the Securities Act. In addition, if you exchange your
notes in the exchange offer for the purpose of participating in a distribution
of the Exchange Notes, you may be deemed to have received restricted securities
and, if so, will be required to comply with the registration and prospectus
delivery requirements of the Securities Act in connection with any resale
transaction. To the extent notes are tendered and accepted in the exchange
offer, the trading market, if any, for the notes would be adversely affected.
ENFORCEABILITY OF LIABILITIES AND SERVICE OF PROCESS
Newcourt is incorporated and has its principal executive office in Canada.
Some of its directors and officers reside outside the United States and a
material portion of their assets are located outside the United States. As a
result, it may be difficult for investors to effect service of process within
the United States upon Newcourt or such persons with respect to matters arising
under the Securities Act, or to enforce against them judgments of courts of the
United States whether or not predicated upon the civil liability provisions of
the federal securities or other laws of the United States or any state thereof.
Newcourt will irrevocably submit to the jurisdiction of any court sitting in the
State of New York with respect to any action or proceeding by a holder of Notes.
OTHER RISKS
You should carefully review the risk factors described in the other
documents we file from time to time with the Canadian securities regulatory
authorities and the SEC, including those risk factors set forth in Form 40-F
relating to our Annual Report to the Shareholders for the year ended
December 31, 1998.
USE OF PROCEEDS
Newcourt will not receive any proceeds from this exchange offer. We used
the net proceeds received from the offering of the notes (approximately U.S.
$990.6 million, after deducting the estimated expenses of the offering of the
notes) primarily to finance installment sale and lease agreements with respect
to direct financing programs and to repay some of our debts including Newcourt
debt securities as they became due.
NEWCOURT
BUSINESS
Newcourt 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. We provide focused client services and
complementary product offerings. Newcourt has a conservative risk management
culture.
Newcourt has organized its activities and operations around three core
businesses: (1) Newcourt Financial; (2) Newcourt Capital; and (3) Newcourt
Services.
Newcourt Financial. Newcourt Financial, our commercial finance
business, provides asset-based sales and inventory financing for a
variety of equipment to both vendors and
14
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customers. Newcourt Financial offers these 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 -- provides inventory and
term financing in North America in the transportation,
construction, industrial and fleet vehicle leasing
marketplaces;
Technology Finance -- provides direct and vendor financing in
North America to manufacturers, distributors and resellers of
information technology hardware and software and to their
customers;
Telecommunications Finance -- provides vendor financing in
North America to the telecommunication industry under an
exclusive international vendor program with Lucent Technologies
Inc.;
Business Finance -- provides asset-based sales and inventory
financing to vendors and customers in the commercial,
industrial, health care and retail finance markets in North
America;
Specialty Finance -- provides a variety of financial products
to the small business and health care markets in North America
through micro-balance leasing, government supported (SBA and
SBLA) programs and intermediary financial services;
Technology Services -- provides other Newcourt business units
with the ability to underwrite operating leases and rental
products for the information technology business sector; and
International/Joint Ventures and Operations -- provides
specialized support in Europe, Asia Pacific and Latin America
for Newcourt's established vendor programs and develops and
manages dedicated joint venture structures.
Newcourt Capital. Newcourt Capital is our corporate finance business
which provides asset-based financing for high value assets as well as
related advisory services. Newcourt Capital's customers include
equipment manufacturers, corporate clients, governments and public
sector agencies. Newcourt Capital works with a growing list of
international clients, including major corporations, governments and
agencies. Newcourt Capital focuses on the following sectors:
Aerospace Finance -- provides financial services in Canada, the
United States and Europe to both the commercial aviation
market, with an emphasis on the regional airline industry, and
the general aviation market, with an emphasis on the corporate
aircraft and helicopter market segments;
Rail Finance -- provides financing and advisory services to
railroads and industrial rail shippers in Canada and the United
States;
Public Sector Finance -- provides financing and advisory
services in Canada, the United Kingdom and internationally to
governments, public sector agencies and corporate clients in
the infrastructure and institutional health care sectors;
Project Finance -- provides limited or non-recourse project
specific financing for institutional and corporate clients in
North America and the United Kingdom;
Structured Finance -- provides structure financing services in
Canada, the United States and Europe, including cross-border
leases, single investor leases, synthetic leases and
off-balance sheet financings;
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Media and Communications Finance -- provides debt financing
services to the communications market and various media sectors
in North America;
Business Finance -- provides financing in North America for
acquisitions, buy-outs and recapitalizations which are done in
conjunction with existing management teams and/or established
financial buyers of companies.
Newcourt Services. Newcourt Services is our service business
responsible for providing cost effective control, growth 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.
Newcourt's long-term debt is rated 'Baa3' by Moody's Investors Services
Inc. and 'BBB' by Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies.
ANNOUNCED ACQUISITION OF NEWCOURT
On March 8, 1999, Newcourt announced that it had entered into an Agreement
and Plan of Reorganization with The CIT Group, Inc. pursuant to which the
outstanding common shares of Newcourt will be converted into either common stock
of The CIT Group, Inc. or, in the case of shares held by Canadian residents who
so elect, into a new class of stock exchangeable into common stock of The CIT
Group, Inc. and Newcourt will become a wholly-owned subsidiary of The CIT Group,
Inc. On June 15, 1999, Newcourt and The CIT Group, Inc. announced that they had
entered into an Amendment to the Agreement and Plan of Reorganization. On
August 5, 1999, Newcourt and The CIT Group, Inc. announced that they had revised
their agreement and had entered into an Amended and Restated Agreement and Plan
of Reorganization. Completion of the transaction is subject to a number of
conditions set forth in the Agreement and Plan of Reorganization, as amended and
restated, which is on file with the SEC and is incorporated by reference
therein. This description of the Agreement and Plan of Reorganization, as
amended and restated, is qualified in its entirety by reference to the full and
complete text of the agreement.
The parties are not certain whether or when the transaction contemplated by
the Agreement and Plan of Reorganization, as amended and restated, will be
completed. We cannot be certain that the parties will be able to satisfy all of
the conditions to the completion of the acquisition of Newcourt by CIT specified
in the Agreement and Plan of Reorganization, as amended and restated, or that
the transaction will be completed in accordance with the terms of the agreement
with CIT.
Preparing for the consummation of this combination and, if completed,
integration of Newcourt and The CIT Group, Inc. will require a substantial
amount of management's time. Diversion of management attention from Newcourt's
existing business as well as problems that may arise in connection with the
integration of Newcourt's and The CIT Group, Inc.'s operations may have a
material adverse impact on Newcourt's revenues and results of operations. The
integration of Newcourt and The CIT Group may result in additional expenses
which could negatively impact Newcourt's results of operations. Further, the
uncertainty created by the combination may result in the loss of management and
other employees. The unavailability of such persons and the resulting disruption
in Newcourt's operations could have a material adverse effect on Newcourt's
business.
AT&T CAPITAL
AT&T Capital is a full-service, diversified equipment leasing and finance
company that operates principally in the United States and also has operations
in the Asia/Pacific region, Mexico and South America. AT&T Capital 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.
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AT&T Capital, a Delaware corporation, is a wholly owned subsidiary of
Newcourt Credit Group USA Inc., which in turn is a wholly owned subsidiary of
Newcourt. AT&T Capital, through certain of the originators, 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, and transportation equipment. In addition, the group provides
franchise financing for franchises and financing collateralized by real estate.
As of December 31, 1998, AT&T Capital consolidated portfolio assets (investment
in finance receivables, capital leases and operating leases) were comprised of,
or collateralized by, general equipment, information technology equipment,
telecommunications equipment, loans secured by real estate and transportation
equipment. AT&T Capital's leasing and financing services are marketed (i) to
customers of equipment manufacturers, distributors and dealers with which AT&T
Capital has a marketing relationship for financing services and (ii) directly to
end-users of equipment. AT&T Capital's approximately 500,000 customers include
large global companies, small and mid-sized businesses and federal, state and
local governments and their agencies.
As of June 30, 1999, AT&T Capital had, on a consolidated basis, total
assets of U.S. $10.4 billion, total liabilities of U.S. $9.5 billion and net
income for the six months ended June 30, 1999 of U.S. $50.8 million.
As of December 31, 1998, AT&T Capital had, on a consolidated basis, total
assets of U.S. $10.8 billion, total liabilities of U.S. $9.9 billion and net
income for the year ended December 31, 1998 of U.S. $97.5 million.
AT&T Capital was founded in 1985 by AT&T Corp. as a captive finance company
to assist AT&T Corp.'s equipment marketing and sales efforts by providing its
customers with sophisticated financing. AT&T Capital is no longer owned in part
or affiliated with AT&T Corp.
THE EXCHANGE OFFER
PURPOSE AND EFFECT OF THE EXCHANGE OFFER
The sole purpose of this exchange offer is to fulfill our obligations with
respect to the registration of the notes.
We will keep this exchange offer open for at least 20 business days. If you
take part in this exchange offer, you will receive an Exchange Note in the same
principal amount as each note you surrender to us. Interest on each Exchange
Note will accrue from the last interest payment date on which interest was paid
on the tendered notes or, if no interest has been paid on the tendered note,
from the date of the original issue of the tendered note.
Under existing SEC interpretations, the Exchange Notes would in general be
freely transferable after the exchange offer without further compliance with the
registration and prospectus delivery requirements under the Securities Act.
However, any purchaser of the notes who is an affiliate of Newcourt or AT&T
Capital or who intends to participate in this exchange offer for the purpose of
distributing Exchange Notes will not be able to tender any notes in the exchange
offer, and those purchasers must comply with the registration and prospectus
delivery requirements of the Securities Act in connection with any sale or
transfer of the notes, unless the sale or transfer is made under an exemption
from such requirements. Moreover, a broker-dealer who acquired notes for its own
account as a result of market-making activities or other trading activities must
deliver a prospectus meeting the requirements of the Securities Act in
connection with the resale of the Exchange Notes. Newcourt has agreed for a
period of at least 180 days after completion of this exchange offer to make
available a prospectus meeting the requirements of the Securities Act to any
broker-dealer for use in connection with a resale of the Exchange Notes. A
broker-dealer that delivers a prospectus to purchasers in connection with
resales will be subject to some of the civil liability provisions under the
Securities Act and will be bound by the provisions of the registration rights
agreement.
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If you want to replace your notes with Exchange Notes by participating in
this exchange offer, you will be required to certify that
(1) any Exchange Notes you may receive will be acquired in the ordinary
course of your business,
(2) you are not engaged in, and do not intend to engage in, and have no
arrangement with any person to participate in the distribution of the Exchange
Notes and
(3) you are not an affiliate of Newcourt or AT&T Capital.
TERMS OF THE EXCHANGE
We are offering to exchange $1,000 in principal amount of Exchange Notes
for each $1,000 in principal amount of your notes. This offer is made on the
terms and subject to the conditions set forth in this prospectus and the Letter
of Transmittal accompanying the registration statement and this prospectus.
The terms of the Exchange Notes are substantially identical to the terms of
your notes except that (1) your ability to transfer the Exchange Notes will not
be restricted and (2) you will not be entitled to the same registration rights
and liquidated damages provisions as you were prior to this exchange offer,
regardless of whether or not you choose to participate in this exchange offer.
The Exchange Notes will evidence the same debt as the notes you currently own
and will be entitled to the benefits of the Indenture. See 'Description of
Exchange Notes.'
This exchange offer is not conditioned upon any minimum aggregate principal
amount of notes being offered by you or accepted by us for exchange.
Resales. Based on our view of interpretations set forth in no-action
letters issued by the SEC, we believe that you may resell or otherwise transfer
the Exchange Notes unless you are (1) an affiliate of Newcourt or AT&T Capital,
(2) a broker-dealer who acquired notes directly from Newcourt or AT&T Capital or
(3) a broker-dealer who acquired notes as a result of market making or other
trading activities. In connection with a resale of the Exchange Notes, you will
not have to comply with the registration and prospectus delivery provisions of
the Securities Act so long as you acquire the notes in the ordinary course of
your business, and you are not engaged in, and do not intend to engage in, and
have no arrangement or understanding with any person to participate in, a
distribution of your Exchange Notes.
Resales by broker-dealers. Any broker-dealer that resells Exchange Notes
that were received by it for its own account pursuant to this exchange offer and
any broker or dealer that participates in a distribution of such Exchange Notes
may be deemed to be an 'underwriter' under the Securities Act. As a result, any
profit, commissions or concessions received on such a resale may be deemed to be
underwriting compensation under the Securities Act. Each broker-dealer that
receives Exchange Notes for its own account pursuant to this exchange offer must
acknowledge that it will deliver a prospectus in connection with any resale of
those Exchange Notes. The Letter of Transmittal states that by so acknowledging,
and by delivering a prospectus, a broker-dealer will not be deemed to admit that
it is an 'underwriter' within the meaning of the Securities Act.
Broker-dealers who acquired notes as a result of market making or other
trading activities may use this prospectus, as supplemented or amended, in
connection with resales of Exchange Notes. Newcourt has agreed that, for a
period of 180 days after the registration statement is declared effective, it
will make this prospectus available to any broker-dealer for use in connection
with any such resale. Any holder who tenders in the exchange offer for the
purpose of participating in a distribution of the Exchange Notes or any other
holder that cannot rely upon our interpretations of SEC no-action letters must
comply with the registration and prospectus delivery requirements of the
Securities Act in connection with a secondary resale transaction.
Commissions and fees. You will not be required to pay brokerage commissions
or fees or, subject to the instructions in the Letter of Transmittal, transfer
taxes with respect to the exchange of your notes.
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Interest. The Exchange Notes will bear interest from the most recent date
to which interest has been paid on the notes you currently own, or if no
interest has been paid, the initial issuance date of the old notes
(February 16, 1999) at a rate of 6.875% per annum, payable semi-annually on
February 16 and August 16 of each year, commencing August 16, 1999.
EXPIRATION DATE; EXTENSIONS; TERMINATION; AMENDMENTS
This exchange offer expires at 5:00 p.m., New York City time, on
November 17, 1999 unless we decide to extend the expiration date. We may extend
the exchange offer at any time prior to the expiration date by giving written
notice to The Chase Manhattan Bank, as exchange agent, and by timely public
announcement communicated by no later than 5:00 p.m. on the next business day
following the expiration date, unless otherwise required by applicable law or
regulation, by making a release to the Dow Jones News Service. During an
extension of the exchange offer, all notes previously tendered pursuant to the
exchange offer will remain subject to the exchange offer.
The initial exchange date will be the third business day following the
expiration date or as soon thereafter as practicable. We expressly reserve the
right to (1) terminate the exchange offer and not accept any notes for any
reason, including if any of the events set forth below under ' -- Conditions to
the Exchange Offer' shall have occurred and (2) amend the terms of this exchange
offer in any manner, whether before or after any tender of notes. If any
termination or amendment occurs, we will notify the exchange agent in writing
and will either issue a press release or give written notice to you as promptly
as practicable. Unless we terminate the exchange offer prior to 5:00 p.m., New
York City time, on the expiration date, we will exchange the notes you currently
own for Exchange Notes on the third business day following the expiration date
or as soon thereafter as practicable.
HOW TO TENDER
You may tender your notes for exchange by following the procedures outlined
below. By tendering your notes, you are agreeing to the terms and conditions
contained in this prospectus and the Letter of Transmittal.
GENERAL PROCEDURES
You may tender your notes by either:
(1) completing and signing the Letter of Transmittal and delivering it
by mail or facsimile (unless an agent's message (as defined below) is
transmitted in lieu thereof), together with your notes and any required
signature guarantees (or a timely confirmation of a book-entry transfer (a
'Book-Entry Confirmation') pursuant to the procedure described below), to
The Chase Manhattan Bank, acting as the exchange agent, at its address set
forth under the heading ' -- Exchange Agent' herein before the expiration
date, or
(2) complying with the guaranteed delivery procedures described below.
If the Exchange Notes are to be issued (and any untendered notes are to be
reissued) in the name of the registered holder of the notes and that holder has
signed the Letter of Transmittal, a signature guarantee is not required. In any
other case, your notes must be endorsed or accompanied by written instruments of
transfer satisfactory to us signed by the registered holder and the signature on
the endorsement or instrument of transfer must be guaranteed by an eligible
institution, such as a bank, broker, dealer, credit union, savings association,
clearing agency or other institution (each an 'eligible institution') that is a
member of a recognized signature guarantee medallion program within the meaning
of Rule 17Ad-15 under the Exchange Act. If you want your notes to be delivered
to an address other than that of a registered holder appearing on the note
register for the notes you currently own, the signature on the Letter of
Transmittal must also be guaranteed by an eligible institution.
If your notes are registered in the name of a broker, dealer, commercial
bank, trust company or other nominee and you want to tender your notes you
should contact that institution right
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away and instruct them to tender your notes on your behalf. If you want to
tender your notes yourself, you must, prior to completing and executing the
Letter of Transmittal and delivering your notes, either make arrangements to
register ownership of the notes in your name or follow the procedures described
in the immediately preceding paragraph. The transfer of record ownership to your
name may take considerable time.
If you do not provide the exchange agent with your taxpayer identification
number and certify that that number is correct, the exchange agent will withhold
31% of the amount payable to you, unless a tax exemption concerning 'backup
withholding' otherwise applies. Unless such an exemption applies, you should
complete and sign the main signature form and the Substitute Form W-9 which are
part of the Letter of Transmittal to avoid such backup withholding.
DELIVERY OF NOTES TO THE EXCHANGE AGENT THROUGH THE DEPOSITORY TRUST COMPANY
The exchange agent will establish an account for the notes at The
Depository Trust Company within two days after delivery of this prospectus to
you. Any financial institution that is a participant in The Depository Trust
Company system may make book-entry delivery of your notes into the exchange
agent's account at The Depository Trust Company. However, you still must either
(1) complete and sign the documents as described above or transmit an agent's
message in lieu thereof or (2) follow the guaranteed delivery procedures
described below.
Tenders by book-entry transfer may also be made by delivering an agent's
message in lieu of the Letter of Transmittal. The term 'agent's message' means a
message, transmitted by The Depository Trust Company to and received by the
Exchange Agent and forming a part of a Book-Entry Confirmation, which states
that The Depository Trust Company has received an express acknowledgment from
the tendering Participant, which acknowledgment states that such Participant has
received and agrees to be bound by the Letter of Transmittal and that we may
enforce the Letter of Transmittal against such Participant.
YOU ARE RESPONSIBLE FOR DELIVERY OF YOUR NOTES TO US BY THE EXPIRATION
DATE. IF YOU ARE SENDING YOUR NOTES BY MAIL, WE RECOMMEND THAT YOU USE INSURED
REGISTERED MAIL, RETURN RECEIPT REQUESTED, AND THAT YOU MAIL YOUR NOTES WELL IN
ADVANCE OF THE EXPIRATION DATE.
FACSIMILE AND GUARANTEED DELIVERY PROCEDURES
If you want to exchange your notes and your notes are not immediately
available or you do not have enough time to get your notes to the exchange agent
before the expiration of the offer, you may still participate by complying with
the following conditions. An eligible institution, on your behalf, must deliver
a duly executed Letter of Transmittal (or facsimile thereof) (or agent's message
in lieu thereof) and a letter, telegram or facsimile, a form of which is
available from the exchange agent, to the exchange agent prior to the expiration
date, which sets forth:
your name and address;
the amount of notes you want to exchange;
the names in which the notes are registered;
if possible, the certificate numbers of the notes being tendered; and
a guarantee that, within three NYSE trading days, the notes being
exchanged and all other documentation required by the Letter of
Transmittal will be delivered to the exchange agent.
Your tender will be completed once the exchange agent receives your
completed Letter of Transmittal (or agent's message in lieu), all other
documentation required by the Letter of Transmittal and the notes you currently
own.
VALIDITY OF TENDERS
We will make all decisions as to the validity, form, eligibility, timing
and acceptance of all tenders of notes. We reserve the right to reject any or
all tenders which are not in the proper
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form or which we, or our counsel, determine is unlawful. We also reserve the
right to waive any of the conditions of this exchange offer. We may choose to
accept tenders from some holders despite defects or irregularities in those
tenders, and not accept tenders having the same defects or irregularities from
other holders. No one has any duty to notify you of any defects or
irregularities in your tender. Our interpretation of the terms and conditions of
this exchange offer, including the Letter of Transmittal, will be final and
binding.
TERMS AND CONDITIONS OF THE LETTER OF TRANSMITTAL
The Letter of Transmittal contains, among other things, the following terms
and conditions, which are part of this exchange offer.
A party tendering notes for exchange (the 'Transferor') exchanges,
assigns and transfers the notes to Newcourt and irrevocably
constitutes and appoints the exchange agent as the Transferor's agent
and attorney-in-fact to cause the notes to be assigned, transferred
and exchanged.
The Transferor represents and warrants that it has full power and
authority to tender, exchange, assign and transfer the notes and to
acquire Exchange Notes issuable upon the exchange of such tendered
notes, and that, when the same are accepted for exchange, Newcourt
will acquire good and unencumbered title to the tendered notes, free
and clear of all liens, restrictions, charges and encumbrances and
not subject to any adverse claim.
The Transferor also warrants that it will, upon request, execute and
deliver any additional documents deemed by Newcourt to be necessary
or desirable to complete the exchange, assignment and transfer of
tendered notes.
The Transferor further agrees that acceptance of any tendered notes
by Newcourt and the issuance of Exchange Notes in exchange therefor
shall constitute performance in full by Newcourt of its obligations
under the registration rights agreement and that Newcourt shall have
no further obligations or liabilities under that agreement (except in
certain limited circumstances).
All authority conferred by the Transferor will survive the death or
incapacity of the Transferor and every obligation of the Transferor
shall be binding upon the heirs, legal representatives, successors,
assigns, executors and administrators of such Transferor.
By tendering notes and executing the Letter of Transmittal or transmitting
an agent's message in lieu thereof, you are certifying that
any Exchange Notes to be received by you will be acquired in the
ordinary course of your business,
you have no arrangement with any person to participate in the
distribution of the Exchange Notes,
you are not an 'affiliate,' as defined in Rule 405 of the Securities
Act, of Newcourt or AT&T Capital, or if you are an affiliate of
Newcourt or AT&T Capital, you will comply with the registration and
prospectus delivery requirements of the Securities Act, and
you are not a broker-dealer, or if you are a broker-dealer, you are
not engaged in, and do not intend to engage in, the distribution of
the Exchange Notes, or if you are a broker-dealer that will receive
Exchange Notes for your own account in exchange for notes that were
acquired as a result of market making activities or other trading
activities, you will deliver a prospectus in connection with any
resale of your Exchange Notes.
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WITHDRAWAL RIGHTS
You may withdraw your tender of your notes at any time prior to the
expiration date.
For a withdrawal to be effective, a written or facsimile transmission
notice of withdrawal must be received by the exchange agent prior to the
expiration date. Any notice of withdrawal must specify:
(1) the person named in the Letter of Transmittal as having tendered
notes to be withdrawn,
(2) the certificate numbers of notes to be withdrawn,
(3) the principal amount of notes to be withdrawn,
(4) a statement that you are withdrawing your election to have your
notes exchanged, and
(5) the name of the registered holder of the notes.
Also, the notice of withdrawal must be signed by the holder in the same
manner as the original signature on the Letter of Transmittal (including any
required signature guarantees) or be accompanied by evidence satisfactory to us
that the person withdrawing the tender has succeeded to the beneficial ownership
of the notes being withdrawn. The exchange agent will return the properly
withdrawn notes promptly after it receives notice of withdrawal. All questions
as to the validity of notices of withdrawals, including time of receipt, will be
determined by Newcourt, and its determination will be final and binding.
ACCEPTANCE OF NOTES FOR EXCHANGE; DELIVERY OF EXCHANGE NOTES
On the terms and subject to the conditions of this exchange offer, we will
accept for exchange notes validly tendered and not withdrawn and we will issue
the Exchange Notes on the third business day following the expiration date of
the exchange offer or as soon thereafter as practicable. For the purposes of
this exchange offer, Newcourt shall be deemed to have accepted for exchange
validly tendered notes when, as and if Newcourt has given written notice thereof
to the exchange agent.
The exchange agent will act as your agent for the purposes of receiving
Exchange Notes from Newcourt and causing the notes to be assigned, transferred
and exchanged. Upon the terms and subject to the conditions of this exchange
offer, the exchange agent will deliver to you Exchange Notes in exchange for
your tendered notes accepted for exchange by Newcourt promptly after acceptance
by us of such tendered notes. Tendered notes not accepted for exchange by us
will be returned without expense: (1) to you; or (2) in the case of notes
tendered by book-entry transfer into the exchange agent's account at The
Depository Trust Company pursuant to the procedures described above, such
non-exchanged notes will be credited to an account maintained with The
Depository Trust Company promptly following the expiration date; or (3) if
Newcourt terminates this exchange offer prior to the expiration date, promptly
after the exchange offer is so terminated.
CONDITIONS TO THE EXCHANGE OFFER
Notwithstanding any other provision of this exchange offer, or any
extension of this exchange offer, Newcourt will not be required to issue
Exchange Notes in respect of any properly tendered notes not previously
accepted, Newcourt may terminate this exchange offer or, at its option, modify
or otherwise amend the exchange offer.
Newcourt may terminate or modify or otherwise amend the exchange offer as
follows:
(1) Newcourt may terminate the exchange offer by oral (promptly
confirmed in writing) or written notice to the exchange agent and by making
a timely public announcement communicated by no later than 5:00 p.m. on the
next business day following the expiration date, by making a release to the
Dow Jones News Service;
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(2) Newcourt may modify or amend the exchange offer, if any of the
folllowing occur:
(a) a lawsuit is threatened, instituted or pending or an
injunction, order or decree is issued by any court, governmental agency
or regulatory authority, agency or commission that would interfere with,
delay, prohibit or seek damages relating to the exchange offer;
(b) a statute, rule, reglation or order or injunction is sought,
proposed, introduced, enacted, promulgated or deemed applicable to this
exchange offer by any government, governmental authority, agency or
court commission that would delay, prohibit or seek damages relating to
the exchange offer or might result in the holders of Exchange Notes
having additional obligations relating to resales and transfers of
Exchange Notes than described under the heading ' -- Terms of the
Exchange' in this section of the Prospectus or otherwise make Newcourt
deem it inadvisable to proceed with this exchange offer; or
(c) a material adverse change occurs in the business, condition,
operations or prospects of Newcourt.
These conditions benefit Newcourt only and not the holders of the notes and
only Newcourt may assert these rights with respect to all or any portion of this
exchange offer regardless of the circumstances. These rights are available to
Newcourt at any time and each right will be deemed an ongoing right which may be
asserted at any time or from time to time. In addition, we have reserved the
right, notwithstanding the satisfaction of each of the foregoing conditions, to
terminate or amend this exchange offer.
Any determination by Newcourt concerning the fulfillment or nonfulfillment
of any conditions will be final and binding upon all parties.
In addition, Newcourt will not accept for exchange any notes tendered and
no Exchange Notes will be issued in exchange for any tendered notes, if at such
time any stop order shall be threatened or in effect with respect to the
registration statement of which this prospectus constitutes a part or
qualification of the Indenture under the Trust Indenture Act of 1939.
EXCHANGE AGENT
The Chase Manhattan Bank has been appointed as the exchange agent for this
exchange offer. Letters of Transmittal, whether sent by mail, overnight
delivery, hand delivery or facsimile must be addressed to the exchange agent at:
The Chase Manhattan Bank
55 Water Street
New York, New York 10041
Attention: Carlos Esteves
Phone: 212-638-0828
Facsimile: 212-638-7380
DELIVERY TO ANY OTHER ADDRESS, OR TRANSMISSIONS OF INSTRUCTIONS VIA A
FACSIMILE OR TELEX NUMBER OTHER THAN THE ONE SPECIFIED, WILL NOT BE ACCEPTED AS
A VALID DELIVERY.
EXPENSES
We have not retained any dealer-manager or similar agent in connection with
this exchange offer and we will not make any payments to brokers, dealers or
others for soliciting acceptances of the exchange offer. We will, however, pay
the exchange agent normal fees for its services and will reimburse it for
reasonable out-of-pocket expenses. We will also pay brokerage houses and other
custodians, nominees and fiduciaries the reasonable out-of-pocket expenses
incurred by them in forwarding tenders for their customers. The expenses to be
incurred in connection with this exchange offer, including the fees and expenses
of the exchange agent and printing, accounting, legal fees and miscellaneous
expenses will be paid by Newcourt and are estimated to be approximately
$620,000.
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SOLICITATION OF TENDERS
No person has been authorized to give any information or to make any
representations in connection with this exchange offer other than those
contained in this prospectus. If you receive any other information, you should
not rely on that information as having been authorized by us. You should not
assume that, because of our delivery of this prospectus or any exchange of
tendered notes by us, that the information contained in this prospectus
regarding Newcourt or AT&T Capital has not changed since the date as of such
information is given.
We are not making this exchange offer in any jurisdiction where to do so
would not be in compliance with the laws of that jurisdiction. However, we may,
at our discretion, take any action we deem necessary to make this exchange offer
in any such jurisdiction in order to extend the exchange offer to holders of
notes in such jurisdiction. Where required by applicable law, this exchange
offer is being made on our behalf by one or more registered brokers or dealers
that are licensed under the laws of that jurisdiction.
APPRAISAL RIGHTS
HOLDERS OF NOTES WILL NOT HAVE DISSENTERS' RIGHTS OR APPRAISAL RIGHTS IN
CONNECTION WITH THIS EXCHANGE OFFER.
OTHER
Participation in this exchange offer is voluntary. You should carefully
consider whether to accept the terms and conditions described in this
prospectus. We urge you to consult your financial and tax advisors in making
your decisions on what action to take with respect to this exchange offer.
Upon the completion of the exchange of notes made as a result of this
exchange offer, we will have fulfilled our obligation contained in the terms of
the original notes and the registration rights agreement. Holders of the notes
who do not tender their original notes in this exchange offer will no longer be
entitled to any rights under the registration rights agreement, as that
agreement terminates as a result of the making of this exchange offer. All
untendered notes will continue to be subject to the restriction on transfer set
forth in the Indenture. Upon the completion of this exchange offer, the trading
market, if any, for any remaining original notes could be adversely affected.
We may in the future seek to acquire untendered notes in the open market or
privately negotiated transactions, through subsequent exchange offers or in
other ways. However, we have no present plan to acquire any notes that are not
tendered in this exchange offer.
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DESCRIPTION OF THE EXCHANGE NOTES
GENERAL
The Exchange Notes constitute a single series and are to be issued under an
Indenture dated as of February 15, 1999, among AT&T Capital, Newcourt and The
Chase Manhattan Bank, as trustee (the 'trustee'). We have summarized below some
provisions of the Indenture. However, you should look to the Indenture for a
full description of the terms and conditions of the Exchange Notes. Section
references are to sections of the Indenture. Wherever particular provisions of
the Indenture are referred to, you should consider those provisions as part of
this prospectus.
The Indenture does not limit the total principal amount of debt securities
that may be issued pursuant to the Indenture. The Indenture provides that debt
securities may be issued by Newcourt at any time in one or more series.
Therefore, additional series of debt securities, other than the notes, may be
issued by Newcourt. The Indenture also permits Newcourt to specify the form and
terms of the debt securities. Newcourt currently has U.S. $300 million total
principal amount of debt securities outstanding, including the notes, under the
Indenture.
The Exchange Notes will be unsecured obligations of Newcourt and will rank
equal in right of payment with all other unsecured and unsubordinated
indebtedness of Newcourt. At June 30, 1999, Newcourt's consolidated
indebtedness, all of which is unsecured and unsubordinated, was approximately
U.S. $11.8 billion (C $17.5 billion). The Exchange Notes will, however, be
effectively subordinated to the indebtedness and other liabilities of Newcourt's
subsidiaries other than AT&T Capital. At June 30, 1999, that indebtedness and
other liabilities, including those of AT&T Capital, totaled approximately
U.S. $10.3 billion (C $15.1 billion). At this time, we do not intend or plan to
increase the amount of this indebtedness in the future, except in connection
with the growth of our business.
PAYMENTS OF PRINCIPAL AND INTEREST
The Exchange Notes will be limited in total principal amount to U.S. $1,000
million and will mature on February 16, 2005. The Exchange Notes will bear
interest from the most recent date to which interest has been paid on the notes
you currently own, at 6.875% per annum until the principal is paid or made
available to you for payment. Interest will be payable to the person in whose
name the Exchange Note is registered at the close of business on the record date
with respect to the interest payment date as specified in the Indenture;
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. If you hold an Exchange Note that is a book-entry
note represented by a global security, all interest payments, except interest
due at maturity, will be made to a nominee of The Depository Trust Company. The
'record date' with respect to any interest payment date shall be the date
fifteen calendar days prior to that interest payment date.
Interest on the Exchange Notes will be payable on February 16 and
August 16 of each year and at maturity. Interest payments on Exchange 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 an
interest payment date (other than the maturity date) would otherwise be a day
that is not a business day, that interest payment date will be postponed to the
next succeeding day that is a business day, except that if that business day
falls in the next succeeding calendar month, that interest payment date will be
the immediately preceding business day. If the maturity date of the Exchange
Notes 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 shall
accrue on the payment for the period from and after the maturity date to the
date of the payment.
The Exchange Notes will be issuable as book-entry notes represented by a
global security registered in the name of a nominee of The Depository Trust
Company as depositary. Except as set forth in 'Book-Entry System' below,
book-entry notes will not be issuable as certificates issued
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in definitive form. The Exchange Notes will be issued in denominations of U.S.
$1,000 and any integral multiple of $1,000 in excess thereof.
We have 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 Exchange Notes, as the paying agent for the Exchange Notes and as
the authenticating agent for the Exchange Notes.
Principal and premium, if any, and interest will be payable, and the
Exchange Notes will be transferable, at the office of the paying agent, 270 Park
Avenue, New York, New York 10017 or at such other place or places as may be
designated under the Indenture. However, we may, at our option 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). At the maturity of the Exchange Notes, the
principal, together with accrued interest, will be payable in immediately
available funds upon surrender of these Exchange Notes at the office of the
trustee at such other place or places as may be designated under the Indenture.
REDEMPTION, REPURCHASE OR REPAYMENT
We do not have the option to redeem the Exchange Notes and you may not
request repayment of the Exchange Notes prior to maturity. We may at any time,
subject to applicable law, purchase Exchange Notes at any price in the open
market or by other means. We may hold, resell or surrender to the trustee for
cancellation any Exchange Notes we purchase.
However, if we are required to pay an additional amount in accordance with
' -- Certain Covenants -- Payment of Additional Amounts,' we may, on proper
notice to you, redeem all the notes and Exchange Notes then outstanding, at
their principal amount, together with accrued interest.
BOOK-ENTRY SYSTEM
Upon issuance, the Exchange Notes will be book-entry notes represented by a
single global security. The global security representing the book-entry notes
will be deposited with, or on behalf of, The Depository Trust Company and
registered in the name of a nominee of the The Depository Trust Company. 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. The depositary has advised us 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 Exchange Act.
The depositary's management has advised us that it is aware that some
computer applications, systems and the like for processing data that are
dependent upon calendar dates, including dates before, on and after January 1,
2000, may encounter 'Year 2000 problems.' The depositary has informed its
participants and other members of the financial community that it has developed
and is implementing a program so that its computer systems, as the same relate
to the timely payment of distributions (including principal and interest
payments) to securityholders, book-entry deliveries, and settlement of trades
within the depositary, continue to function appropriately. This program includes
a technical assessment and a remediation plan, each of which is complete.
Additionally, the depositary's plan includes a testing phase, which is expected
to be complete within appropriate time frames.
However, the depositary's ability to perform properly its services is also
dependent upon other parties, including but not limited to issuers and their
agents, as well as third-party vendors from
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whom the depositary licenses software and hardware, and third-party vendors on
whom the depositary relies for information or the provision of services,
including telecommunication and electrical utility service providers, among
others. The depositary has informed the financial community that it is
contacting (and will continue to contact) third-party vendors from whom the
depositary acquires services to: (i) impress upon them the importance of such
services being Year 2000 compliant; and (ii) determine the extent of their
efforts for Year 2000 remediation (and, as appropriate, testing) of their
services. In addition, the depositary is in the process of developing such
contingency plans as it deems appropriate.
The depositary holds securities deposited by its participants. 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. It thereby
eliminates the need for physical movement of securities. 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 Securities
Dealers, Inc. (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 SEC.
BOOK-ENTRY FORMAT. Upon the issuance of the global security, the depositary
will credit on its book-entry registration and transfer system its participants'
accounts with their respective principal amounts of the Exchange Notes
represented by that global security. The only persons who may own beneficial
interests in a global security will be the depositary's participants or persons
that hold interests through participants. Ownership of beneficial interests in
the global security will be shown on, and 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
their securities in definitive form. These limits and laws may impair your
ability to transfer your interest in a book-entry note.
So long as the depositary or its nominee is the registered owner of the
global security, the depositary or its nominee, as the case may be, will be
considered the sole owner or holder of the Exchange Notes represented by the
global security for all purposes under the Indenture. Except as provided below
or as we may otherwise agree in our sole discretion, owners of beneficial
interests in a global security will not be entitled to have Exchange Notes
represented by such global security registered in their names, will not receive
or be entitled to receive physical delivery of Exchange 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 Exchange 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 the Exchange Notes. None of Newcourt, the trustee,
any paying agent or the registrar for such Exchange 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 Exchange Notes or for maintaining, supervising or reviewing any records
relating to such beneficial interests.
We expect that the depositary for the Exchange Notes or its nominee, upon
receipt of any payment of principal, premium or interest, will credit
immediately its participants' accounts with payments in amounts proportionate to
their respective beneficial interests in the principal amount of the global
security for the Exchange Notes as shown on the records of the depositary or its
nominee. We also expect that payments by participants to owners of beneficial
interest in the global security held through those 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
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form or registered in 'street name' (i.e., the name of a securities broker or
dealer), and will be the responsibility of those participants.
ISSUANCE OF NOTES IN DEFINITIVE FORM. If the depositary is at any time
unwilling or unable to continue as depositary and a successor depositary is not
appointed by us within 90 days, we will issue Exchange Notes in definitive form
in exchange for the entire global security representing the Exchange Notes. In
addition, we may at any time determine not to have the Exchange Notes
represented by the global security. In such event, we will issue Exchange Notes
in definitive form in exchange for the global security representing the Exchange
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 Exchange
Notes represented by the global security equal in principal amount to its
beneficial interest and to have its Exchange Notes registered in its name.
Exchange Notes so issued in definitive form will be issued as registered
Exchange Notes in denominations of U.S. $1,000 and any integral multiple of
$1,000 in excess thereof.
CERTAIN COVENANTS
Set forth below is a description of Newcourt's and AT&T Capital's principal
covenants contained in the Indenture. The Indenture does not restrict us, 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 our subsidiaries to incur additional
indebtedness, any of which transactions could have an adverse effect on you, as
a holder of the Exchange Notes.
Consolidation, Merger, Sale or Conveyance of Assets of the Company. Under
the Indenture, each of Newcourt and AT&T Capital 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 a sale or conveyance to one of our subsidiaries, unless:
(1) either (a) Newcourt or AT&T Capital is the continuing
corporation or (b) if Newcourt or AT&T Capital is not the
continuing corporation, the continuing corporation 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 in a
manner acceptable to the trustee, and
(2) the continuing corporation is not, immediately after the
transaction in default in the performance of any covenant or
condition.
In the case of any such consolidation, merger, sale or conveyance, and
following an assumption by the successor corporation, the successor corporation
will succeed to and be substituted for Newcourt or AT&T Capital, with the same
effect as if it had been named in the Indenture or the Guarantee, as applicable,
and, in the case of any sale or conveyance (other than a conveyance by way of
lease), Newcourt or AT&T Capital will be released and discharged from all
obligations and covenants under the Indenture and the Exchange Notes or the
Guarantee, as applicable. In the event Newcourt or AT&T Capital sells or conveys
assets to a subsidiary, as permitted, an asset drop-down occurs after the date
of the Indenture, any subsequent sale or conveyance of assets by such subsidiary
will be deemed to be a sale or conveyance of assets by Newcourt or AT&T Capital
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. Accordingly,
there may be uncertainty in connection with any particular transaction as to
whether a sale or conveyance of all or substantially all of Newcourt's or AT&T
Capital's assets has occurred and thus as to whether Newcourt or AT&T Capital
has complied with this covenant.
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Because New York law governs the Indenture, New York law will govern the
interpretation of the term 'all or substantially all.'
Limitations on Incurrence of Secured Debt. We will not, nor will we permit
any Restricted Subsidiary (as defined below) to:
create or incur, or suffer to be incurred or to exist, any Lien on
our property or assets, whether now owned or acquired later, or upon
any income or profits from those properties or assets,
transfer any property for the purpose of subjecting that property to
the payment of obligations in priority to the payment of our general
creditors,
acquire or agree to acquire, or permit any Restricted Subsidiary to
acquire, any property or assets upon conditional sales agreements or
other title retention devices, without thereupon expressly securing
the due and punctual payment of the principal of, premium, if any,
and the interest on the debt securities of each Series equally and
ratably with any and all other obligations and indebtedness secured
by such Lien, so long as any such other obligations and indebtedness
shall be so secured,
and if and when any of these Liens is created, the debt securities of each
Series will be so secured thereby.
However, this Section shall neither limit nor be deemed or construed as
limiting our right or any Restricted Subsidiary's right to create or incur, or
suffer to be incurred or to exist, any one or more of the following Liens:
(i) Subject to certain restrictions, Liens for property taxes and
assessments or governmental charges or levies and Liens securing claims or
demands of mechanics and materialmen;
(ii) Liens of or resulting from any judgment or award, the time for
the appeal or petition for rehearing of which shall not have expired, or in
respect of which Newcourt or a Restricted Subsidiary shall at any time in
good faith be prosecuting an appeal or proceeding for a review and in
respect of which a stay of execution pending such appeal or proceeding for
review shall have been secured;
(iii) Liens incidental to the conduct of business or the ownership or
properties and assets (including Liens in connection with worker's
compensation, unemployment insurance and other like laws, warehousemen's
and solicitors' liens and statutory landlords' liens) and Liens to secure
the performance of bids, tenders or trade contracts, or to secure statutory
obligations, surety or appeal bonds or other Liens of like general nature
incurred in the ordinary course of business and not in connection with the
borrowing of money; provided in each case, the obligation secured is not
overdue or, if overdue, is being contested in good faith by appropriate
actions or proceedings;
(iv) Minor survey exceptions, or minor encumbrances, easements or
reservations, or rights of others for rights-of-way, utilities and other
similar purposes, or zoning or other restrictions as to the use of real
properties, which are necessary for the conduct of the activities of the
Company and the Restricted Subsidiaries or which customarily exist on
properties of corporations engaged in similar activities and similarly
situated and which do not in any event materially impair their use in the
operation of the business of Newcourt and the Restricted Subsidiaries;
(v) Liens securing Debt of a Restricted Subsidiary to the Company or
to another Restricted Subsidiary;
(vi) Any other Liens (other than the Liens described in
clauses (i)-(xvi)) which in the aggregate relate to Debt the aggregate
amount of which does not exceed 10% of Consolidated Net Tangible Assets;
(vii) Purchase Money Obligations;
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(viii) Liens on Acquired Financing Assets to secure Secured
Subordinated Debt of Newcourt or the Restricted Subsidiaries arising in
connection with the acquisition of such Acquired Financing Assets;
(ix) Liens securing Non-Recourse Debt of Newcourt or the Restricted
Subsidiaries;
(x) Liens created or incurred after December 15, 1998 upon any
property (the 'Substitute Property') concurrently with the release of a
comparable Lien on other property (the 'Released Property'), provided that
(A) the fair market value of the Substitute Property shall not exceed the
fair market value of the Released Property by more than 110%, (B) the
character and use of the Substitute Property shall be substantially
equivalent to the character and use of the Released Property, and (C) such
substitution shall be without increase in the principal amount of the Debt
remaining unpaid as of the date of such substitution which is to be secured
by the Lien on such Substitute Property and such remaining unpaid principal
amount of such Debt shall not exceed the aggregate fair market value of
such Substitute Property and any other property securing such Debt;
(xi) 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;
(xii) Liens on property, shares of stock, other equity interests, or
debt existing at the time of acquisition or repossession thereof by
Newcourt or any Restricted Subsidiary;
(xiii) 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 December 15, 1998 by Newcourt 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
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;
(xiv) Liens on Accounts Receivable of Newcourt or any Restricted
Subsidiary arising from or in connection with transactions entered into by
Newcourt or such Restricted Subsidiary after December 15, 1998 or on
Accounts Receivable acquired by Newcourt or such Restricted Subsidiary
after such date from others which liens are created prior to, at the time
of, or after such Accounts Receivable arise or are acquired:
(a) 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
(b) to secure or provide for the payment of all or any part of the
investment of Newcourt 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;
(xv) any extension, renewal, or replacement of any Lien permitted by
the preceding subsections (vi), (vii), (viii), (x), (xi), (xii), (xiii) and
(xiv) hereof in respect of the same property theretofore subject to such
Lien in connection with the extension, renewal or refinancing of the Debt
secured thereby; provided that (A) such Lien shall attached solely to the
same such property or Substitute Property, (B) such extension, renewal or
refinancing of such Debt shall be without increase in the principal
remaining unpaid as of the date of such extension, renewal or refinancing;
and
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(xvi) any Lien approved by the Holders holding a majority in principal
amount of the outstanding debt securities of each Series. (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)
'Acquired Financing Assets' means assets (including, but not limited to,
securities and receivables) of any Person the acquisition of which was financed
in accordance with our credit policies and procedures manual approved from time
to time by the Board of Directors. (Section 1.01)
'Capitalized Lease' means any lease the obligation for Rentals with respect
to which is required to be capitalized on a consolidated balance sheet of the
lessee and its subsidiaries in accordance with GAAP. (Section 1.01)
'Capitalized Rentals' of any Person shall mean as of the date of any
determination thereof the amount at which the aggregate Rentals due and to
become due under all Capitalized Leases under which such Person is a lessee
would be reflected as a liability on a consolidated balance sheet of such
Person. (Section 1.01)
'Consolidated Net Tangible Assets' means, at the date of any determination,
the total assets appearing on our consolidated balance sheet and its Restricted
Subsidiaries as at the end of our most recent fiscal quarter 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 other than Restricted Subsidiaries
or other entities accounted for on the equity method of accounting and (c)
Intangible Assets. (Section 1.01)
'Debt' of any Person shall mean and include all obligations of such Person
for money borrowed or which have been incurred in connection with the
acquisition of assets which in accordance with GAAP shall be classified upon a
balance sheet of such Person as liabilities of such Person, and in any event
shall include, without duplication, all (i) Capitalized Rentals and (ii)
Guaranties of obligations of others of the character referred to in this
definition. (Section 1.01)
'Guaranties' by any Person shall mean all obligations (other than
endorsements in the ordinary course of business of negotiable instruments for
deposit or collection) of such Person guaranteeing, or in effect guaranteeing,
any Indebtedness, dividend or other obligation of any other Person (the 'primary
obligor') in any manner, whether directly or indirectly, including, without
limitation, all obligations incurred through an agreement, contingent or
otherwise, by such Person: (i) to purchase such Indebtedness or obligation or
any property or assets constituting security therefor, (ii) to advance or supply
funds (x) for the purchase or payment of such Indebtedness or obligation, (y) to
maintain working capital or other balance sheet condition or otherwise to
advance or make available funds for the purchase or payment of such Indebtedness
or obligation, (iii) to lease property or to purchase capital stock or other
property or services primarily for the purpose of assuring the owner of such
Indebtedness or obligation of the ability of the primary obligor to make payment
of the Indebtedness or obligation, or (iv) otherwise to assure the owner of the
Indebtedness or obligation of the primary obligor against loss in respect
thereof. For the purposes of all computations made under this Indenture, a
Guaranty in respect of any Debt shall be deemed, without duplication, to be
Indebtedness equal to the principal amount of such Debt which has been
guaranteed, and a Guaranty in respect of any other obligation or liability or
any dividend shall be deemed to be Indebtedness equal to the maximum aggregate
amount of such obligation, liability or dividend. (Section 1.01)
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'Intangible Assets' means the value (net of any applicable reserves), as
shown on or reflected in our 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)
'Lien' means any interest in property securing an obligation owed to, or a
claim by, a Person other than the owner of the property, whether such interest
is based on the common law, statute or contract, and including but not limited
to the security interest line arising from a mortgage, encumbrance, pledge,
conditional sale or trust receipt or a lease, consignment or bailment for
security purposes. The term 'Lien' shall include reservations, exception,
encroachments, easements, rights-of-way, covenants, conditions, restrictions,
leases and other title exceptions and encumbrances (including, with respect to
shares, shareholder agreements, voting trust agreements, buy-back agreements and
all similar arrangements) affecting property. For purposes of the Indenture,
Newcourt or any Restricted Subsidiary shall be deemed to be the owner of any
property which it has acquired or holds subject to a conditional sale agreement,
Capitalized Lease or other arrangement pursuant to which title to the property
has been retained by or vested in some other Person for security purposes and
such retention or vesting shall constitute a Lien. (Section 1.01)
'Non-Recourse Debt' of Newcourt or any Restricted Subsidiary means any
indebtedness for borrowed money of Newcourt 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 Newcourt or such Restricted Subsidiary, as the case may be, and which is
not a general obligation of Newcourt or Restricted Subsidiary, as the case may
be. (Section 1.01)
'Purchase Money Obligations' means Liens created to secure the payment of
the purchase price incurred in connection with the acquisition of real or
personal assets (other than Acquired Financing Assets) useful and intended to be
used in carrying on the business of Newcourt or a Restricted Subsidiary,
including Liens existing on such assets at the time of acquisition by Newcourt
or a Restricted Subsidiary of any business entity then owning such assets,
whether or not such existing Liens were given to secure the payment of the
purchase price of such assets to which they attach so long as they were not
incurred, extended or renewed in contemplation of such acquisition, provided
that:
(A) the Lien attaches solely to such assets acquired or purchased,
(B) at the time of acquisition of such assets, the aggregate amount
remaining unpaid on all Debt secured by Liens on such assets whether or not
assumed by Newcourt or a Restricted Subsidiary shall not exceed an amount
equal to the lesser of the total purchase price or fair market value at the
time of acquisition of such assets, and
(C) any such Lien shall be created contemporaneously with, or within
120 days after, the acquisition of such property.
'Rentals' shall mean and include as of the date of any determination
thereof all fixed payments (including as such all payments which the lessee is
obligated to make to the lessor on termination of the lease or surrender of the
property) payable by Newcourt or a Restricted Subsidiary, as lessee or sublessee
under a lease of real or personal property, but shall be exclusive of any
amounts required to be paid by Newcourt or a Restricted Subsidiary (whether or
not designated as rents or additional rents) on account of maintenance, repairs,
insurance, taxes and similar charges. Fixed rents under any so-called
'percentage leases' shall be computed solely on the basis of the minimum rents,
if any, required to be paid by the lessee regardless of sales volume or gross
revenues.
'Restricted Subsidiary' means each Subsidiary of Newcourt organized under
the laws of any State of the United States or the District of Columbia or
Canada, 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)
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'Subsidiary' means any corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by Newcourt and/or by one or
more other Subsidiaries (including AT&T Capital). 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)
Payment of Additional Amounts. All payments made by us with respect to the
notes and the Exchange Notes will be made free and clear of and without
withholding or deduction on account of any present or future tax, or other
governmental charge imposed by the Government of Canada or of any Canadian
province or territory or by any Canadian authority or agency having power to tax
(hereinafter 'Taxes'). However, if we are required to withhold or deduct Taxes
from any payment made with respect to the notes or the Exchange Notes, we will
pay such additional amounts ('Additional Amounts') so that you receive the same
net amount as you would have received if the Taxes had not been withheld or
deducted; provided that we will not pay any Additional Amounts with respect to a
payment made to a holder of Exchange Notes (an 'Excluded Holder'):
(a) with which Newcourt does not deal at arm's length (within the
meaning of the Income Tax Act (Canada)) at the time of making such payment,
(b) which is subject to such Taxes by reason of its being connected
with Canada or any province or territory thereof otherwise than by the mere
holding of notes or Exchange Notes or the receipt of payments thereunder,
or
(c) who could lawfully avoid (but has not so avoided) such deduction
or withholding by complying, or procuring that any third party complies
with, any statutory requirements or by making or procuring that any third
party makes a declaration of non-residence or other similar claim for
exemption to any relevant tax authority.
We will also (1) make the withholding or deduction and (2) remit the full
amount deducted or withheld to the relevant authority in accordance with
applicable law. We will furnish to the trustee within 30 days of when the Taxes
are due, certified copies of tax receipts evidencing our payment.
EVENTS OF DEFAULT
If an event of default in respect of any series of debt securities shall
have occurred and be continuing under the Indenture, either the trustee or the
holders of at least 25% in aggregate principal amount of the outstanding debt
securities of that series may declare the principal of all the securities of
that 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 with respect to the debt securities of any
series, default in payment of principal of the debt securities of
such series when due;
default for 90 days after written notice to Newcourt or AT&T Capital,
as applicable, by the trustee or by the holders of at least 25% in
aggregate principal amount of the outstanding debt securities of that
series in the performance of any other agreement by Newcourt or AT&T
Capital, as applicable, in the debt securities or Indenture in
respect of that series; and
events of bankruptcy, insolvency and reorganization with respect to
Newcourt or AT&T Capital, as applicable. (Section 6.01)
The Indenture provides that we will, within 120 days after the close
of each fiscal year, beginning with the first fiscal year following the
issuance of any series of debt securities, file with the trustee a
certificate stating whether or not we have complied with all conditions and
covenants contained in the Indenture and, if not, specifying each default
and the nature of that default. (Section 4.04)
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The Indenture allows the trustee, subject to the trustee's duty during
an event of default to act with the required standard of care, to 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 debt 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
that series. (Section 6.06)
Notice. The Indenture requires the trustee to give to the holders of a
series notice of all defaults known to it relating to that series of debt
securities within 90 days of any default; provided that, except in the case
of default in payment on any of the debt securities of that series, the
trustee will be protected in withholding notice if it in good faith
determines that the withholding of notice is in the interest of the holders
of that 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 as defined in the Indenture. (Section 7.05)
Waiver. 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 that 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, or interest on, any of
the debt securities of that series. (Sections 6.01 and 6.06)
DISCHARGE AND DEFEASANCE
Under terms satisfactory to the trustee, Newcourt or AT&T Capital may
discharge certain obligations to holders of any series of debt securities issued
under the Indenture so long as those securities (1) have not already been
delivered to the trustee for cancellation and (2) have either become due and
payable or are by their terms due and payable within one year (or scheduled for
redemption within one year). Newcourt or AT&T Capital may do so 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 those 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 that 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), Newcourt
or AT&T Capital may at its option also
(1) discharge any and all of the obligations to holders of that series
of debt securities ('defeasance') on the 91st day after the conditions set
forth below have been satisfied, but may not avoid the duty to register the
transfer or exchange of that series of debt securities, to replace any
temporary, mutilated, destroyed, lost or stolen debt securities of that
series or to maintain an office or agency in respect of the series, or
(2) be released with respect to that 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,
(1) Newcourt or AT&T Capital irrevocably deposit 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 that series on the dates
installments of principal and interest are due; and
(2) we deliver to the trustee an opinion of independent counsel to the
effect that the holders of the series of debt securities will not recognize
income, gain or loss for United
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States federal income tax purposes as a result of the 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 the 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 allows Newcourt, AT&T Capital and the trustee, with the
consent of the holders of a majority in principal amount of the outstanding debt
securities of each series affected (with such series voting as a separate
class), to change the Indenture. In order to change the Indenture after
receiving the required consent of holders of any series, Newcourt, AT&T Capital
and the trustee may 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. However, we cannot
change, without the consent of all holders affected, among other things,
the maturity of any debt securities,
the principal amount of those securities,
any premium on those securities,
the rate or the time of payment of interest thereon, the type of
currency in which any debt security is payable, or
reduce the aforesaid percentage of outstanding debt securities
required to approve any such change. (Sections 9.01 and 9.02)
CONCERNING THE TRUSTEE
We may from time to time maintain lines of credit, and have other customary
banking relationships, with The Chase Manhattan Bank. In addition, The Chase
Manhattan Bank is the trustee under the Indentures dated as of April 9, 1990, as
of June 1, 1992 each as amended, among AT&T Capital, AT&T Corp., AT&T Capital
Holdings, Inc., a wholly-owned subsidiary of AT&T Corp., and The Chase Manhattan
Bank, pursuant to which AT&T Capital assumed and AT&T Corp. guaranteed certain
medium and long-term debt issued by AT&T Capital Holdings, Inc. As of June 30,
1999, the aggregate outstanding principal amount of such medium and long-term
debt was approximately U.S. $41.6 million. Furthermore, The Chase Manhattan Bank
is the trustee under the indenture dated as of July 1, 1993, between AT&T
Capital and The Chase Manhattan Bank pursuant to which AT&T Capital has issued
U.S. $11.4 billion aggregate principal amount of medium-term notes, the trustee
under the indenture dated as of April 1, 1998, among AT&T Capital, Newcourt and
The Chase Manhattan Bank pursuant to which AT&T Capital has issued U.S. $5.0
billion aggregate principal amount of medium-term notes, the trustee under the
indenture dated as of December 15, 1998, between Newcourt and The Chase
Manhattan Bank pursuant to which Newcourt has issued U.S. $0.3 billion aggregate
principal amount of notes, the trustee under the indenture dated as of
February 15, 1999, among AT&T Capital, Newcourt and The Chase Manhattan Bank
pursuant to which Newcourt has issued U.S. $1.0 billion aggregate principal
amount of notes, and the trustee under the Indenture dated as of March 1, 1999
among AT&T Capital, Newcourt and the Chase Manhattan Bank pursuant to which AT&T
Capital has issued U.S. $771 million aggregate principal amount of notes.
DESCRIPTION OF THE GUARANTEE
AT&T Capital will unconditionally guarantee the due and punctual payment of
principal, premium, if any, and interest on the Exchange 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 AT&T Capital. The right of AT&T Capital and,
hence, the right of creditors of AT&T Capital, including holders of the Exchange
Notes as beneficiaries of Guarantee, to participate in any distribution of the
assets of any subsidiary of
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AT&T Capital, whether upon liquidation, reorganization, or otherwise, is subject
to prior claims of creditors of each such subsidiary, except to the extent that
claims of AT&T Capital itself as a creditor of a subsidiary may be allowed.
NO ESTABLISHED TRADING MARKET FOR THE NOTES
The Exchange Notes are a new issue of securities with no established
trading market. Newcourt does not intend to list the Exchange Notes on any
national securities exchange or to seek admission thereof to trading in the
Nasdaq National Market System.
Newcourt has been advised by the initial purchasers that they intend to
make a market in the notes. However, they are not obligated to do so and any
market-making activities with respect to the notes may be discontinued at any
time without notice. In addition, such market making activity in the notes may
be limited during the pendency of the exchange offer. Accordingly, no assurance
can be given as to the liquidity of or the trading market for the notes.
Certain of the initial purchasers of the notes or their affiliates engage
from time to time in various general financing and banking transactions with
Newcourt and AT&T Capital. The Chase Manhattan Bank, the trustee, is an
affiliate of Chase Securities Inc., one of the initial purchasers of the notes.
CANADIAN FEDERAL INCOME TAX CONSIDERATIONS
Prior to the exchange offer, Blake, Cassels & Graydon, special Canadian tax
counsel to Newcourt, will issue an opinion to the effect that the following is a
summary of principal Canadian federal income tax considerations generally
applicable to a person (a 'United States holder') who acquires Exchange Notes
pursuant to the exchange offer in replacement of notes which were acquired by
the United States holders pursuant to the initial offering of the notes on
February 16, 1999 and who, for purposes of the Income Tax Act (Canada) (the
'Canadian Tax Act') and the Canada-United States Income Tax Convention (the
'Convention') and at all relevant times, is resident in the United States and
not resident or deemed to be resident in Canada, deals at arm's length with
Newcourt, holds Exchange Notes as capital property, does not use or hold and is
not deemed to use or hold Exchange Notes in or in the course of carrying on a
business in Canada and, in the case of a United States holder who carries on an
insurance business in Canada and elsewhere, establishes that the Exchange Notes
are not effectively connected with its Canadian insurance business.
This summary is based on the current provisions of the Convention and of
the Canadian Tax Act and the regulations thereunder in force as of the date
hereof, all specific proposals to amend the Canadian Tax Act and the regulations
publicly announced by the Ministry of Finance prior to the date hereof and
counsel's understanding as to certain changes to such proposals which will be
recommended by the Department of Finance (Canada) (the 'Proposed Amendments')
and counsels' understanding of the published administrative and assessing
practices of Revenue Canada, Customs, Excise & Taxation. The Proposed Amendments
may not be enacted and, if enacted, may not be enacted in the form proposed.
This description is not exhaustive of all possible Canadian federal income tax
consequences, and except for the Proposed Amendments, does not anticipate any
changes in law or administrative practice, whether by legislative, governmental
or judicial action, nor does it take into account Canadian provincial or
territorial or any non-Canadian tax considerations, which may differ
significantly from those discussed herein.
This summary is of a general nature only and is not, and should not be
interpreted as, legal or tax advice to any particular person, and no
representation is made with respect to the Canadian income tax consequences to
any person acquiring Exchange Notes. ACCORDINGLY, YOU SHOULD CONSULT YOUR OWN
TAX ADVISORS WITH RESPECT TO YOUR PARTICULAR CIRCUMSTANCES.
Payment of Interest, Principal or Premium. Under the Canadian Tax Act, the
payment by Newcourt of interest, principal or premium on the Exchange Notes to a
United States holder will be exempt from Canadian withholding tax.
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Other Taxes. No other tax on income (including taxable capital gains) will
be payable under the Canadian Tax Act by a United States holder solely as a
consequence of the holding, redemption or disposition of Exchange Notes or the
receipt of interest, principal or premium thereon.
UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS
Prior to the Exchange Offer, Sidley & Austin, special United States tax
counsel to Newcourt, will issue an opinion to the effect that the following
information contained under this heading 'United States Federal Income Tax
Considerations' is a general discussion of the material United States federal
income tax considerations relevant to the exchange of your original notes for
Exchange Notes. This discussion is a summary for general information purposes
only, and does not consider all aspects of federal income taxation that may be
relevant to a particular investor in light of his, her or its personal
circumstances.
This discussion is based upon the United States federal income tax law now
in effect, which is subject to change, possibly retroactively. The description
does not consider the effect of any applicable foreign, state, local or other
tax laws or estate or gift tax considerations.
You should consult your own tax advisors regarding the particular United
States federal tax consequences to you of exchanging your original notes for
Exchange Notes, as well as any tax consequences that may arise under the laws of
any foreign, state, local or other taxing jurisdiction.
EXCHANGE OF NOTES FOR EXCHANGE NOTES
The exchange of your notes for Exchange Notes pursuant to the exchange
offer should not constitute a sale or exchange for federal income tax purposes.
Accordingly, not only should the exchange offer have no federal income tax
consequences to you if you exchange the notes you currently own for Exchange
Notes (i.e., there should be no change in your tax basis, and your holding
period should carry over to the Exchange Notes), but the federal income tax
consequences of holding and disposing of the Exchange Notes should also be the
same as those that would apply to the notes you currently own.
ERISA CONSIDERATIONS
OVERVIEW
The Employee Retirement Income Security Act of 1974, as amended ('ERISA'),
imposes certain requirements on employee benefit plans subject to ERISA ('ERISA
Plans') and prohibits certain transactions between ERISA Plans and persons who
are 'parties in interest' (as defined under ERISA) with respect to assets of
such ERISA Plans. Section 4975 of the Code prohibits a similar set of
transactions between certain plans or individual retirement accounts ('Code
Plans' and together with ERISA Plans, the 'Plans') and persons who are
'disqualified persons' (as defined in the Code) with respect to Code Plans.
Certain employee benefit plans, such as governmental plans and church plans (if
no election has been made under Section 410(d) of the Code), are not subject to
the requirements of ERISA or Section 4975 of the Code, and assets of such plans
may be invested in the Exchange Notes, subject to the provisions of other
applicable federal and state law. Any such plan which is qualified under Section
401(a) of the Code and exempt from taxation under Section 501(a) of the Code is,
however, subject to the prohibited transaction rules set forth in Section 503 of
the Code.
Investments by ERISA Plans are subject to ERISA's general fiduciary
requirements, including the requirement of investment prudence and
diversification and the requirement that investments be made in accordance with
the documents governing the ERISA Plan. An ERISA Plan fiduciary should consider,
among other factors, whether investing in the Exchange Notes is appropriate in
view of the overall investment policy and liquidity needs of the ERISA Plan.
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PROHIBITED TRANSACTIONS
Section 406 of ERISA and Section 4975 of the Code prohibit parties in
interest and disqualified persons with respect to a ERISA Plans and Code Plans
from engaging in certain transactions involving such Plans or 'plan assets' of
such Plans, unless a statutory or administrative exemption applies to the
transaction. Section 4975 of the Code and Sections 502(i) and 502(l) of ERISA
provide for the imposition of certain excise taxes and civil penalties on
certain persons that engage or participate in such prohibited transactions.
Newcourt, AT&T Capital or the investment banks who were the initial purchasers
of the notes in December 1998 or certain affiliates thereof may be considered or
may become parties in interest or disqualified persons with respect to a Plan.
If this were so, the acquisition of holding of the notes by, on behalf of or
with 'plan assets' of such Plan may be considered to give rise to a 'prohibited
transaction' within the meaning of ERISA and/or Section 4975 of the Code, unless
an administrative exemption described below or some other exemption is
available.
Depending on the relevant facts and circumstances, certain prohibited
transaction exemptions may apply to the purchase or holding of the Exchange
Notes -- for example, Prohibited Transaction Class Exemption ('PTCE') 96-23,
which exempts certain transactions effected on behalf of a Plan by an 'in-house
asset manager'; PTCE 95-60, which exempts certain transactions between insurance
company general accounts and parties in interest; PTCE 91-38, which exempts
certain transactions between bank collective investment funds and parties in
interest; PTCE 90-1, which exempts certain transactions between insurance
company pooled separate accounts and parties in interest; PTCE 84-14, which
exempts certain transactions effected on behalf of a Plan by a 'qualified
professional asset manager'; or PTCE 75-1, which exempts certain transactions
between a Plan and certain broker-dealers. There can be no assurance that any of
these exemptions will apply with respect to any Plan's investment in the
Exchange Notes or, even if an exemption were deemed to apply, that any exemption
would apply to all prohibited transactions that may occur in connection with
such investment.
Due to the complexity of these rules and the penalties imposed, any
fiduciary or other Plan investor who proposes to invest assets of a Plan in the
Exchange Notes should consult with its counsel with respect to potential
consequences under ERISA and Section 4975 of the Code before doing so.
PLAN OF DISTRIBUTION
Based on interpretations by the staff of the SEC set forth in no-action
letters issued to third parties, we believe that Exchange Notes issued pursuant
to the exchange offer in exchange for old notes may be offered for resale,
resold and otherwise transferred by holders thereof (other than any holder which
is (1) an affiliate of Newcourt or AT&T Capital, (2) a broker-dealer who
acquired old notes directly from us, or (3) a broker dealer who acquired old
notes as a result of market-mailing or other trading activities) without
compliance with the registration and prospectus delivery provisions of the
Securities Act provided that such Exchange Notes are acquired in the ordinary
course of such holders' business, and such holders are not engaged in, and do
not intend to engage in, and have no arrangement or understanding with any
person to participate in, a distribution of such Exchange Notes; provided, that
broker-dealers ('participating broker-dealers') receiving Exchange Notes in the
exchange offer will be subject to a prospectus delivery requirement with respect
to resales of such Exchange Notes. To date, the SEC has taken the position that
participating broker-dealers may fulfill their prospectus delivery requirements
with respect to transactions involving an exchange of securities such as the
exchange pursuant to the exchange offer (other than a resale of an unsold
allotment from the sale of old notes to the initial purchasers of the old notes)
with the prospectus contained in the registration statement. Pursuant to the
registration rights agreement, Newcourt and AT&T Capital have agreed to permit
participating broker-dealers and other persons, if any, subject to similar
prospectus delivery requirements to use this prospectus in connection with the
resale of such Exchange Notes. Newcourt and AT&T Capital have agreed that, for a
period of 180 days after the date the registration statement of which this
prospectus is a part is declared effective by the SEC, it will
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make this prospectus, and any amendment or supplement of this prospectus,
available to any broker-dealer that requests such documents in the letter of
transmittal.
Each holder of old notes who wishes to exchange its old notes for Exchange
Notes in the exchange offer will be required to make certain representations to
Newcourt and AT&T Capital as set forth in 'The Exchange Offer -- Terms and
Conditions of the Letter of Transmittal.' In addition, each holder who is a
broker-dealer and who receives Exchange Notes for its own account in exchange
for old notes that were acquired by it as a result of market-making activities
or other trading activities, will be required to acknowledge that it will
deliver a prospectus in connection with any resale by it of such Exchange Notes.
We will not receive any proceeds from any sale of Exchange Notes by
broker-dealers. Exchange Notes received by broker-dealers for their own account
pursuant to the exchange offer may be sold from time to time in one or more
transactions in the over-the-counter market, in negotiated transactions, through
the writing of options on the Exchange Notes or a combination of such methods of
resale, at market prices prevailing at the time of resale, at prices related to
such prevailing market prices or at negotiated prices. Any such resale may be
made directly to purchasers or to or through brokers or dealer who may receive
compensation in the form of commissions or concessions from any such
broker-dealers and/or the purchasers of any such distribution of such Exchange
Notes may be deemed to be an 'underwriter' within the meaning of the Securities
Act and any profit on any such resale of Exchange Notes and any commissions or
concessions received by any such persons may be deemed to be underwriting
compensation under the Securities Act. The letter of transmittal states that by
acknowledging that it will deliver and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an 'underwriter' within the
meaning of the Securities Act.
Newcourt has agreed to pay all expenses incidental to the exchange offer
other than commissions and concession of any brokers or dealers and Newcourt and
AT&T Capital will indemnify holders of the notes (including any broker-dealers)
against certain liabilities, including liabilities under the Securities Act, as
set forth in the registration rights agreement.
LEGAL MATTERS
The validity of the Exchange Notes and Guarantee will be passed upon for
Newcourt by Wilentz, Goldman & Spitzer and Blake, Cassels & Graydon, Special
Counsels to Newcourt, and for AT&T Capital by Wilentz, Goldman & Spitzer,
Special Counsel to AT&T Capital and one or more of its Assistant General
Counsels.
EXPERTS
The consolidated financial statements for Newcourt incorporated by
reference in this prospectus, to the extent and for the periods indicated in
their report, have been audited by Ernst & Young LLP, Chartered Accountants and
are incorporated by reference herein in reliance on their report given on the
authority of that firm as experts in accounting and auditing.
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[THIS PAGE INTENTIONALLY LEFT BLANK]
<PAGE>
[Logo]
Offer To Exchange All
$1,000,000,000 6.875% Notes, Series B due February 16, 2005
For
$1,000,000,000 6.875% Exchange Notes, Series B due February 16, 2005
Guaranteed as to Payment of Principal, Premium, if any, and Interest by
[Logo]
PROSPECTUS
October 15, 1999
The Chase Manhattan Bank as Exchange Agent
<PAGE>
PART II TO FORM F-4
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION*
<TABLE>
<S> <C>
Securities and Exchange Commission Filing fee. 278,000
Rating Agency Fees.......................................... 10,000
Fees and Expenses of Trustee................................ 5,000
Printing and Distributing Registration Statement,
Prospectus, Indenture and Miscellaneous Material.......... 130,000
Accountants' Fees........................................... 20,000
Legal Fees and Expenses..................................... 100,000
Blue Sky Fees and Expenses.................................. 40,000
Exchange Agent Fees and Expenses............................ 10,000
Miscellaneous Expenses...................................... 27,000
--------
Total.................................................. $620,000
--------
--------
</TABLE>
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* Estimated, except for filing fee.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
NEWCOURT CREDIT GROUP INC. ('NEWCOURT')
Under the Business Corporations Act (Ontario) (the 'OBCA'), Newcourt may
indemnify a present or former director or officer of Newcourt or person who acts
or acted at Newcourt's request as a director or officer of another body
corporated of which Newcourt 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 Newcourt;
(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 Newcourt 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 Newcourt or body corporate; and
(c) in respect of all costs, charges and expenses reasonably incurred
by him or her in connection with the defense 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 Newcourt or body corporate,
if her or she was substantially successful on the merits or his or her
defense 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 Newcourt, 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 Newcourt
provide that every director or officer of Newcourt, every former director or
officer of Newcourt or a person who acts or acted at Newcourt's request as a
director or officer of a body corporate of which Newcourt is or was a
shareholder or creditor, and his heirs and legal representatives shall, from
time to time, be indemnified and saved harmless by Newcourt 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 Newcourt or body corporate if:
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(1) he acted honestly and in good faith with a view to the best
interests of Newcourt; 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.
Newcourt maintains directors' and officers' liability insurance with an
aggregate annual limit of liability of $40,000,000. Under this insurance
coverage, Newcourt is reimbursed for payments made to directors or officers of
Newcourt, as required or permitted by law or under provisions of the By-laws of
Newcourt, as indemnity for loss, including legal costs, arising from acts,
errors or omissions done or committed by officers or directors of Newcourt in
the course of their duties.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended, may be permitted to directors, officers or persons
controlling AT&T Capital or Newcourt pursuant to the foregoing provisions. AT&T
Capital and Newcourt have been informed that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act of 1933, as amended, and is therefore
unenforceable.
AT&T CAPITAL CORPORATION ('AT&T CAPITAL')
Section 145 of the General Corporation Law of Delaware and AT&T Capital'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. AT&T Capital's Resated
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 AT&T Capital are covered by an insurance
policy indemnifying them against certain liabilities, including certain
liabilities arising under the Securities Act of 1933, as amended, which might be
incurred by them in such capacities and against which they cannot be indemnified
by AT&T Capital.
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
- ------
<S> <C>
4A -- Form of Indenture dated as of February 15, 1999 (the
'Indenture'), among AT&T Capital, Newcourt and The Chase
Manhattan Bank, as trustee
4B -- Form of Series B Global Fixed Rate Note
4C -- Form of Guarantee dated as of February 15, 1999 by AT&T
Capital relating to the notes
4D -- Form of Registration Rights Agreement dated February 10,
1999 among Newcourt, AT&T Capital and Lehman Brothers Inc.
as Representative of the initial purchasers
4E -- Form of Exchange Note
5A -- Opinion of Blake, Cassels & Graydon, as to the legality
under Canadian and Ontario law of the securities being
registered
5B -- Opinion of Wilentz, Goldman & Spitzer, as to the legality
under New York law of the Securities and the Guarantees
being registered
5C -- Opinion of Eric S. Mandelbaum, assistant general counsel
to AT&T Capital, as to the legality under Federal and
Delaware corporate law of the Guarantees being registered
8A -- Opinion of Sidley and Austin as to certain tax matters
8B -- Opinion of Blake, Cassels & Graydon as to certain
Canadian tax matters
10 -- Form of Purchase Agreement dated February 10, 1999 among
Lehman Brothers Inc. as Representative of the initial
purchasers, Newcourt and AT&T Capital
12A -- Computation of Ratios of Earnings to Fixed Charges for
Newcourt
12B -- Computation of Ratios of Earnings to Fixed Charges for
AT&T Capital
23A -- Consent of Ernst & Young LLP
23B -- Consent of Blake, Cassels & Graydon (included in
Exhibit 5A)
23C -- Consent of Wilentz, Goldman & Spitzer (included in
Exhibit 5B)
23D -- Consent of Eric S. Mandelbaum, assistant general counsel
to AT&T Capital (included in Exhibit 5C)
23E -- Consent of Sidley and Austin (included in Exhibit 8A)
</TABLE>
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<PAGE>
<TABLE>
<S> <C>
23F -- Consent of Blake, Cassels & Graydon (included in Exhibit
8B)
*24 -- Powers of Attorney executed by the directors and officers
who signed the registration statement (incorporated into
the signature pages on pages II-5, II-6 and II-7 of the
initial filing of this registration statement)
25 -- Statement of Eligibility of the trustee on Form T-1
99A -- Letter of Transmittal
99B -- Notice of Guaranteed Delivery
99C -- Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees
99D -- Letter from Registered Holders to Clients
</TABLE>
- ------------
* Previously filed.
ITEM 17. UNDERTAKINGS
The undersigned Registrants hereby undertake:
(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, as amended;
(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 or furnished to the Securities and
Exchange Commission by Newcourt pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended, that are incorporated by
reference in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, as amended, 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, as amended, each filing or Newcourt's annual report
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934,
as amended, 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.
(5) (a) to respond to requests for information that is incorporated by
reference into the prospectus pursuant to Items 4, 10(b), 11 or 13 of Form
F-4, including information contained in documents filed subsequent to the
effective date through the date of responding to the request, within one
business day of receipt of such request, and to send the incorporated
documents by first class mail or equally prompt means; and (6) to arrange
or provide for a facility in the United States for the purpose of
responding to such requests.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended, may be permitted to directors, officers and controlling
persons of the Registrants pursuant to the applicable
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provisions referred to in Item 15 above or otherwise, the Registrants have been
advised that in the opinion of the Securities and Exchange Commission such
indemnification by them is against public policy as expressed in the Securities
Act of 1933, as amended and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Registrants of expenses incurred or paid by a director, officer or
controlling person of the Registrants 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, each of the Registrants
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 Securities Act of 1933, as amended, and will be governed by the
final adjudication of such issue.
For purposes of determining any liability under the Securities Act of 1933,
as amended, 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 Registrants pursuant to Rule 424(b)(1) or (4) of 497(b)
under the Securities Act of 1933, as amended, 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, as amended, 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>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
AT&T Capital Corporation certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form F-4 and has duly caused
this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the Township of Parsippany, State of New Jersey,
on the 15th day of October 1999.
AT&T CAPITAL CORPORATION
By /s/ SCOTT J. MOORE
................................
SCOTT J. MOORE
EXECUTIVE VICE PRESIDENT,
GENERAL COUNSEL AND SECRETARY
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
* Principal Executive Officer -- Chief
...................................... Executive Officer and Director
(STEVEN K. HUDSON)
* Principal Financial Officer and
...................................... Acting Principal Accounting
(BORDEN D. ROSIAK) Officer -- Chief Financial Officer
and Director
* Vice President and Controller By /s/ SCOTT J. MOORE
...................................... ....................
(THOMAS G. ADAMS) SCOTT J. MOORE
ATTORNEY-IN-FACT*
* Director
......................................
(DAVID F. BANKS) October 15, 1999
* Group President and Director
......................................
(BRADLEY D. NULLMEYER)
/s/ DANIEL A. JAUERNIG Director October 15, 1999
......................................
(DANIEL A. JAUERNIG)
</TABLE>
----------------
* Scott J. Moore was appointed attorney-in-fact with power and attorney to
execute on behalf of such officers and directors pursuant to a power of
attorney incorporated into the signature page on page II-5 of the initial
filing of the Registration Statement.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
Newcourt Credit Group Inc. certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form F-4 and has duly caused
this 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 the 15th day of October 1999.
NEWCOURT CREDIT GROUP INC.
By /S/ BORDEN D. ROSIAK
................................
NAME: BORDEN D. ROSIAK
TITLE: CHIEF FINANCIAL OFFICER
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed below by the following persons in
the capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
* Principal Executive Officer -- Chief
...................................... Executive Officer and Director
(STEVEN K. HUDSON)
* Principal Financial Officer and
...................................... Principal Accounting
(BORDEN D. ROSIAK) Officer -- Chief Financial Officer
* Chairman of the Board and Director
......................................
(DAVID F. BANKS)
* Director
......................................
(THOMAS S. AXWORTHY)
* Director By /S/ SCOTT J. MOORE
...................................... ...................
(GERALD E. BEASLEY) SCOTT J. MOORE
ATTORNEY-IN-FACT*
* Director
......................................
(WILLIAM A. FARLINGER) October 15, 1999
* Director
......................................
(GUY HANDS)
* Director
......................................
(ROBERT F. KILIMNIK)
</TABLE>
II-6
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
* Director
......................................
(DAVID A. MACINTOSH)
* Director
......................................
(DAVID D. MCKERROLL)
* Director
......................................
(RONALD A. MCKINLAY)
* Director
......................................
(PAUL G. MORTON)
* Director
......................................
(BRADLEY S. NULLMEYER)
* Director By /S/ SCOTT J. MOORE
...................................... ...................
(BRUCE I. ROBERTSON) SCOTT J. MOORE
ATTORNEY-IN-FACT*
* Director
......................................
(DAVID J. SHARPLESS) October 15, 1999
* Director
......................................
(TAKUMI SHIBATA)
* Director
......................................
(DR. STEVEN C. SMALL)
* Director
......................................
(RICHARD E. VENN)
* Director
......................................
(WILLIAM D. WALSH)
AT&T CAPITAL CORPORATION Authorized Representative in the October 15, 1999
United States
By: /S/ SCOTT J. MOORE
......................................
(SCOTT J. MOORE)
</TABLE>
----------------
* Scott J. Moore was appointed attorney-in-fact with power and authority to
execute on behalf of such officers and directors pursuant to a power of
attorney incorporated into the signature pages on pages II-6 and II-7 of the
initial filing of this Registration Statement.
II-7
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
- ------
<S> <C>
4A -- Form of Indenture dated as of February 15, 1999 (the
'Indenture'), among AT&T Capital, Newcourt and The Chase
Manhattan Bank, as trustee
4B -- Form of Series B Global Fixed Rate Note
4C -- Form of Guarantee dated as of February 15, 1999 relating
to the notes
4D -- Form of Registration Rights Agreement dated February 10,
1999 among Newcourt, AT&T Capital and Lehman Brothers Inc.
as representative of the initial purchasers
4E -- Form of Exchange Note
5A -- Opinion of Blake, Cassels & Graydon, as to the legality
under Canadian and Ontario law of the Securities being
registered
5B -- Opinion of Wilentz, Goldman & Spitzer, as to the legality
under New York law of the Guarantees being registered
5C -- Opinion of Eric S. Mandelbaum, assistant general counsel
to AT&T Capital, as to the legality under Federal and
Delaware corporate law of the Guarantees being registered.
8A -- Opinion of Sidley and Austin as to certain tax matters
8B -- Opinion of Blake, Cassels & Graydon as to certain
Canadian tax matters
10 -- Form of Purchase Agreement dated February 10, 1999 among
Lehman Brothers Inc. as representative of the initial
purchasers, Newcourt and AT&T Capital
12A -- Computation of Ratios of Earnings to Fixed Charges for
Newcourt
12B -- Computation of Ratios of Earnings to Fixed Charges for
AT&T Capital
23A -- Consent of Ernst & Young LLP
23B -- Consent of Blake, Cassels & Graydon (included in Exhibit
5A)
23C -- Consent of Wilentz, Goldman & Spitzer (included in
Exhibit 5B)
23D -- Consent of Eric S. Mandelbaum, assistant general counsel
to AT&T Capital (included in Exhibit 5C)
23E -- Consent of Sidley and Austin (included in Exhibit 8A)
23F -- Consent of Blake, Cassels & Graydon (included in
Exhibit 8B)
*24 -- Powers of Attorney executed by the directors and officers
who signed the registration statement (incorporated into
the signature pages on pages II-5, II-6 and II-7 of the
initial filing of this registration statement)
25 -- Statement of Eligibility of the Trustee on Form T-1
99A -- Letter of Transmittal
99B -- Notice of Guaranteed Delivery
99C -- Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees
99D -- Letter from Registered Holders to Clients
</TABLE>
------------
* Previously filed.
STATEMENT OF DIFFERENCES
------------------------
The section symbol shall be expressed as............................... 'SS'
<PAGE>
CHAPMAN AND CUTLER
DRAFT OF FEBRUARY 15, 1999
FORM OF INDENTURE
================================================================================
NEWCOURT CREDIT GROUP INC.,
AT&T CAPITAL CORPORATION
AND
THE CHASE MANHATTAN BANK,
AS TRUSTEE
INDENTURE
DATED AS OF FEBRUARY 15, 1999
================================================================================
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
SECTION HEADING PAGE
<S> <C> <C>
RECITALS OF THE COMPANY....................................................................................... 1
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE.............................................1
Section 1.01. Definitions............................................................................1
Section 1.02 Other Definitions......................................................................8
Section 1.03. Incorporation by Reference of Trust Indenture Act......................................8
Section 1.04. Rules of Construction..................................................................9
ARTICLE II THE SECURITIES.........................................................................9
Section 2.01. Issuable in Series.....................................................................9
Section 2.02. Establishment of Terms and Form of Series of Securities...............................10
Section 2.03. Execution, Authentication and Delivery................................................12
Section 2.04. Registrar and Paying Agent............................................................14
Section 2.05. Payment on Securities.................................................................14
Section 2.06. Paying Agent to Hold Money in Trust...................................................16
Section 2.07. Securityholder Lists; Ownership of Securities.........................................16
Section 2.08. Transfer and Exchange.................................................................16
Section 2.09. Replacement Securities................................................................18
Section 2.10. Outstanding Securities................................................................18
Section 2.11 Temporary Securities; Global Securities...............................................19
Section 2.12. Cancellation..........................................................................20
Section 2.13. Defaulted Interest....................................................................21
ARTICLE III REDEMPTION............................................................................21
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
Section 3.06. Mandatory and Optional Sinking Funds..................................................23
ARTICLE IV COVENANTS.............................................................................25
Section 4.01. Payment of Securities.................................................................25
Section 4.02. Reports by the Company and the Guarantor..............................................26
Section 4.03. Limitations on Liens..................................................................27
Section 4.04 Statement as to Compliance; Notice of Certain Events of Default.......................30
ARTICLE V CONSOLIDATION, MERGER, SALE OR CONVEYANCE.............................................31
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C>
Section 5.01. Consolidation or Merger, etc., on Certain Terms.......................................31
Section 5.02 Successor Substituted.................................................................31
Section 5.03. Opinion of Counsel to Trustee.........................................................32
ARTICLE VI REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT.......................32
Section 6.01. Events of Default; Acceleration of Maturity; Waiver of Default........................32
Section 6.02. Collection of Indebtedness by Trustee; Trustee May Prove Debt.........................34
Section 6.03. Application of Proceeds...............................................................36
Section 6.04. Limitation on Suits by Securityholders................................................37
Section 6.05. Powers and Remedies Cumulative; Delay or Omission Not Waiver
of Default........................................................................37
Section 6.06. Control by Securityholders; Waiver of Defaults........................................38
Section 6.07. Right of Court to Require Filing of Undertaking to Pay Costs..........................38
ARTICLE VII TRUSTEE...............................................................................39
Section 7.01. Duties of Trustee.....................................................................39
Section 7.02. Rights of Trustee.....................................................................40
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................................................................41
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.....................................43
Section 7.12. Authenticating Agent..................................................................44
ARTICLE VIII SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE; UNCLAIMED
MONIES................................................................................45
Section 8.01. Satisfaction and Discharge of Indenture...............................................45
Section 8.02. Defeasance upon Deposit of Moneys or U.S. Government
Obligations.......................................................................46
Section 8.03. Application of Moneys Deposited.......................................................47
Section 8.04. Repayment of Moneys Held..............................................................48
Section 8.05. Return of Moneys Unclaimed for Two Years; Return of Additional
Monies and U.S. Government Obligations............................................48
Section 8.06. Indemnity for Government Obligations..................................................48
ARTICLE IX AMENDMENTS AND WAIVERS................................................................49
Section 9.01. Without Consent of Holders............................................................49
</TABLE>
-ii-
<PAGE>
<TABLE>
<S> <C> <C>
Section 9.02. With Consent of Holders...............................................................49
Section 9.03. Compliance with Trust Indenture Act...................................................50
Section 9.04. Revocation and Effect of Consents.....................................................50
Section 9.05. Notation on or Exchange of Securities.................................................50
Section 9.06. Trustee Protected.....................................................................51
ARTICLE X MISCELLANEOUS.........................................................................51
Section 10.01. Trust Indenture Act Controls..........................................................51
Section 10.02. Notices...............................................................................51
Section 10.03. Communication by Holders with Other Holders...........................................52
Section 10.04. Certificate and Opinion as to Conditions Precedent....................................52
Section 10.05. Statements Required in Certificate or Opinion.........................................52
Section 10.06. Legal Holidays........................................................................53
Section 10.07. Governing Law.........................................................................53
Section 10.08. No Adverse Interpretation of Other Agreements.........................................53
Section 10.09. No Recourse Against Others............................................................53
Section 10.10. When Treasury Securities Disregarded..................................................53
Section 10.11. Rules by Trustee, Paying Agent, Registrar, Record Dates...............................53
Section 10.12. Execution in Counterparts.............................................................54
Section 10.13. Securities in a Foreign Currency......................................................54
Section 10.14. Judgment Currency.....................................................................54
Section 10.15. Forum Selection and Consent to Jurisdiction...........................................55
SIGNATURE........................................................................................................56
</TABLE>
-iii-
<PAGE>
THIS INDENTURE, dated as of February 15, 1999, is entered into by and
among Newcourt Credit Group Inc., a corporation duly organized and validly
existing under the laws of Ontario, Canada (together with its successors and
assigns, the "Company"), 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 "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 Subsidiary Guarantee relating to the Securities of
certain Series.
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 I
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.
"Acquired Financing Assets" means assets (including, but not limited
to, securities and receivables) of any Person the acquisition of which was
financed in accordance with the Company credit policies and procedures manual
approved from time to time by the Board of Directors of the Company.
<PAGE>
"Affiliate" means any person directly or indirectly controlling or
controlled by, or under direct or indirect common control with, the Company or
the Guarantor, as the case may be.
"Agent" means any Paying Agent or Registrar.
"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 the
Guarantor, as the case may be, or any duly authorized committee thereof.
"Board Resolution" means a copy of a resolution of the Board of
Directors, certified by the Secretary, an Assistant Secretary or any other
Officer of the Company or the Guarantor, as the case may be, to have been
adopted by the Board of Directors of the Company or the Guarantor, as the case
may be, and to be in full force and effect on the date of the certificate, and
delivered to the Trustee.
"Capitalized Lease" means any lease the obligation for Rentals with
respect to which is required to be capitalized on a consolidated balance sheet
of the lessee and its subsidiaries in accordance with GAAP.
"Capitalized Rentals" of any Person shall mean as of the date of any
determination thereof the amount at which the aggregate Rentals due and to
become due under all Capitalized Leases under which such Person is a lessee
would be reflected as a liability on a consolidated balance sheet of such
Person.
"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 Newcourt until a successor replaces it subject to the
provisions of Article V and thereafter means the successor.
"Company Order" means an order signed by any Officer of the Company.
-2-
<PAGE>
"Consolidated Net Tangible Assets" means, at the date of any
determination, the total assets appearing on the consolidated balance sheet of
the Company and its Restricted Subsidiaries as at the end of the most recent
fiscal quarter of the Company 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
other than Restricted Subsidiaries or other entities accounted for on the equity
method of accounting and (c) Intangible Assets.
"Debt" of any Person shall mean and include all obligations of such
Person for money borrowed or which have been incurred in connection with the
acquisition of assets which in accordance with GAAP shall be classified upon a
balance sheet of such Person as liabilities of such Person, and in any event
shall include, without duplication, all (i) Capitalized Rentals and (ii)
Guaranties of obligations of others of the character referred to in this
definition.
"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
(provided, that unless otherwise so designated, the Depositary for purposes of
clause (ii) shall be The Depository Trust Company).
"GAAP" means generally accepted accounting principles.
"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.
"Guaranties" by any Person shall mean all obligations (other than
endorsements in the ordinary course of business of negotiable instruments for
deposit or collection) of such Person guaranteeing, or in effect guaranteeing,
any Indebtedness, dividend or other obligation of any other Person (the "Primary
Obligor") in any manner, whether directly or indirectly, including, without
limitation, all obligations incurred through an agreement, contingent or
otherwise, by such Person: (i) to purchase such Indebtedness or obligation or
any property or assets
-3-
<PAGE>
constituting security therefor, (ii) to advance or supply funds (x) for the
purchase or payment of such Indebtedness or obligation, (y) to maintain working
capital or other balance sheet condition or otherwise to advance or make
available funds for the purchase or payment of such Indebtedness or obligation,
(iii) to lease property or to purchase capital stock or other property or
services primarily for the purpose of assuring the owner of such Indebtedness or
obligation of the ability of the Primary Obligor to make payment of the
Indebtedness or obligation, or (iv) otherwise to assure the owner of the
Indebtedness or obligation of the Primary Obligor against loss in respect
thereof. For the purposes of all computations made under this Indenture, a
Guaranty in respect of any Debt shall be deemed, without duplication, to be
Indebtedness equal to the principal amount of such Debt which has been
guaranteed, and a Guaranty in respect of any other obligation or liability or
any dividend shall be deemed to be Indebtedness equal to the maximum aggregate
amount of such obligation, liability or dividend.
"Guarantor" means AT&T Capital Corporation until a successor replaces
it subject to the provisions of Article V and thereafter means the successor.
"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.
"Indebtedness" of any Person shall mean and include all obligations of
such Person which in accordance with GAAP shall be classified upon a balance
sheet of such Person as liabilities of such Person, and in any event shall
include all (i) obligations of such Person for borrowed money or which has been
incurred in connection with the acquisition of property or assets, (ii)
obligations secured by any Lien upon property or assets owned by such Person,
even though such Person has not assumed or become liable for the payment of such
obligations, (iii) obligations created or arising under any conditional sale or
other title retention agreement with respect to property acquired by such
Person, notwithstanding the fact that the rights and remedies of the seller,
lender or lessor under such agreement in the event of default are limited to
repossession or sale of property, (iv) the face amount of all letters of credit
issued for the account of such Person and all drafts drawn thereunder, (v)
Capitalized Rentals and (vi) Guaranties of obligations of others of the
character referred to in this definition.
"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.
"Intangible Assets" means the value (net of any applicable reserves),
as shown on or reflected in the Company's 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.
"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
-4-
<PAGE>
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 to nor
receipt by holders of Statements of Account shall constitute part of such
procedures for any purpose of this definition.
"Lien" means any interest in property securing an obligation owed to,
or a claim by, a Person other than the owner of the property, whether such
interest is based on the common law, statute or contract, and including but not
limited to the security interest lien arising from a mortgage, encumbrance,
pledge, conditional sale or trust receipt or a lease, consignment or bailment
for security purposes. The term "Lien" shall include reservations, exceptions,
encroachments, easements, rights-of-way, covenants, conditions, restrictions,
leases and other title exceptions and encumbrances (including, with respect to
shares, shareholder agreements, voting trust agreements, buy-back agreements and
all similar arrangements) affecting property. For purposes of the Indenture, the
Company or any Restricted Subsidiary shall be deemed to be the owner of any
property which it has acquired or holds subject to a conditional sale agreement,
Capitalized Lease or other arrangement pursuant to which title to the property
has been retained by or vested in some other Person for security purposes and
such retention or vesting shall constitute a Lien.
"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 Debt 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.
"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, any Assistant Treasurer, the Secretary or the
Controller of the Company or the Guarantor, as the case may be.
"Officer's Certificate" means a certificate signed by any Officer 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 Company, the Guarantor or the Trustee.
-5-
<PAGE>
"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, limited liability company,
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 "premium, if any."
"Purchase Money Obligations" means Liens created to secure the payment
of the purchase price incurred in connection with the acquisition of real or
personal assets (other than Acquired Financing Assets) useful and intended to be
used in carrying on the business of the Company or a Restricted Subsidiary,
including Liens existing on such assets at the time of acquisition by the
Company or a Restricted Subsidiary of any business entity then owning such
assets, whether or not such existing Liens were given to secure the payment of
the purchase price of such assets to which they attach so long as they were not
incurred, extended or renewed in contemplation of such acquisition, provided
that (A) the Lien attaches solely to such assets acquired or purchased, (B) at
the time of acquisition of such assets, the aggregate amount remaining unpaid on
all Debt secured by Liens on such assets whether or not assumed by the Company
or a Restricted Subsidiary shall not exceed an amount equal to the lesser of the
total purchase price or fair market value at the time of acquisition of such
assets, and (C) any such Lien shall be created contemporaneously with, or within
120 days after, the acquisition of such property.
"Registered Security" means any Security issued hereunder and
registered as to principal and interest by the Registrar.
"Rentals" shall mean and include as of the date of any determination
thereof all fixed payments (including as such all payments which the lessee is
obligated to make to the lessor on termination of the lease or surrender of the
property) payable by the Company or a Restricted Subsidiary, as lessee or
sublessee under a lease of real or personal property, but shall be exclusive of
any amounts required to be paid by the Company or a Restricted Subsidiary
(whether or not designated as rents or additional rents) on account of
maintenance, repairs, insurance, taxes and similar charges. Fixed rents under
any so-called "percentages leases" shall be computed solely on the basis of the
minimum rents, if any, required to be paid by the lessee regardless of sales
volume or gross revenues.
"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 or
Canada, no substantial portion of the business of which is carried on outside of
the United States or Canada; provided that each Drop-Down Subsidiary (as defined
in Section 5.01) shall be a Restricted Subsidiary.
"SEC" means the Securities and Exchange Commission.
"Secured Subordinated Debt" means Subordinated Debt of any Person which
is secured by a Lien.
"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 by law or otherwise
determined to be appropriate by the Company or the Trustee or the authenticating
agent.
"Subordinated Debt" means and includes any Debt of any Person which is
subordinated in right of payment to the Debt (other than Unsecured Subordinated
Debt) of such Person provided, however, that so long as no default has occurred
and is continuing under any such Debt of such Person, such Person may make
payments in connection with such Subordinated Debt as such payments become due.
"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 Guarantor). 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.
"Subsidiary Guarantee" means the agreement of the Guarantor executed in
connection with a particular Series of Securities.
"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.
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"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.
"Unsecured Subordinated Debt" means all Subordinated Debt of any Person
other than Secured Subordinated Debt.
"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 of America.
"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.
<TABLE>
<CAPTION>
TERM SECTION
<S> <C>
"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
</TABLE>
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.
"Indenture Securities" means the Securities.
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"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 in Canada, with respect to the
Company or any entity organized under the laws of Canada, and in the
United States with respect to the Guarantor or any entity organized
under the laws of the United States 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 II
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.
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 and any applicable
foreign 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.
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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 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;
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(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 or
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
any 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
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 (if other than as set forth in Section 2.11),
and the identity of the Depositary for such Series (if other than The
Depository Trust Company); 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
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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 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.
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 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 Company Order and procedures. If provided
for in such procedures, such Company 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
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delivered hereunder, the form thereof and the legality, validity, binding effect
and enforceability thereof.
If the form and terms or 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,
(1) the form and terms or general terms, as
applicable, 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) if the Guarantor has Guaranteed the Securities of
such Series, the Subsidiary Guarantee in respect of such 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 Officer's 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
Officer's Certificate.
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(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:
"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 Subsidiary Guarantee, if any, on Certificated Securities shall
not affect or impair validity or enforceability of such Subsidiary 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, an 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 United 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 terminate 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.
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
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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 make 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 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.
(d) The Company acknowledges that, for the purposes of the Interest Act
(Canada), (i) whenever any interest or fee applicable to the Securities of any
Series 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 such interest or fee is payable (or
compounded) ends, and (z) divided by 360
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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 Securities
of any Series; and (iii) the rates of interest stipulated in respect of the
Securities of each Series are intended to be nominal rates and not effective
rates or yields.
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 and, 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 any
of its Subsidiaries 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.
(c) None of the Company, the Guarantor, the Trustee, any Paying Agent
or the Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial interests in a
Global Security or for maintaining, supervising or reviewing any records
relating to such beneficial interests.
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
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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.
(e) Unregistered Securities or any coupons appertaining thereto shall
be transferable by delivery.
(f) If the Securities of any Series are subject to restrictions on
transfer, the Trustee shall, prior to any transfer of such Securities, receive
information from the Holder of such Securities and/or the prospective transferee
thereof acceptable to the Company.
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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 Uncertificated 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.
(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
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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 possessions 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 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.
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(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 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
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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.
ARTICLE III
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 60 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.
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(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.
(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 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 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
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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 Officer's 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, 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.
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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 IV
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 is made), and at least 10 days prior to each
date of payment of principal or interest if there has been any change with
respect to the matters set forth in the below-mentioned Officer's Certificate,
the Company will furnish the Trustee and the Company's principal Paying Agent or
Paying Agents, if other than the Trustee, with an Officer's Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such
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 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 (a) such Officer's 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, and (b) the Company may, at its option, redeem the
Securities of such Series at a redemption price equal to the principal amount of
such Securities plus unpaid accrued interest to the date of redemption, if any.
The Company shall retain the right to redeem any Securities pursuant to the
immediately preceding sentence, notwithstanding the fact that the Company may
have made payments of such additional amounts. The date of any such redemption
shall be not earlier than the interest payment date immediately preceding the
date on which the Company did or will become obligated to pay such additional
amounts. Whether the conditions precedent to the right of the Company to redeem
the
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Securities of such Series pursuant to the immediately preceding sentences have
occurred shall be determined by the Company on the basis of such relevant
evidence as shall be available to the Company and on the basis of the laws,
regulations or administrative or assessing policies of any relevant taxation
authority in effect on the date of such determination or to become effective as
of the next succeeding interest payment date following the date of redemption or
any time prior to such date. Prior to a redemption of any Securities under this
provision, the Company shall certify to the Trustee that it has made or will be
required to make such a payment of such additional amounts with respect to such
Securities, and the Trustee shall within fifteen (15) days of its receipt of
such notification give a notice of redemption of such Securities to each Holder
thereof. Any such redemption shall not occur less than thirty (30) days after
such notice is sent to the Holders of such Securities. Notwithstanding any other
provision in this Indenture concerning the timing of the giving of notice of
redemption, if any terms of the Securities of any Series or the agreements
relating thereto (including this Indenture) which require such additional
amounts to be paid in respect of such Securities become unlawful by virtue of
legislation or order of a court, board or commission, the Company shall so
certify to the Trustee on or promptly following the Company's receipt of notice
thereof, shall become obligated to redeem such Securities and shall cause notice
to be given by the Trustee to each Holder of such Securities of their redemption
at their principal amount plus unpaid interest, if any, on the first interest
payment date for such Securities on or after forty-five (45) days after such
certification, but not prior to the interest payment date immediately preceding
the interest payment date on which such additional amounts would otherwise
become due, and no such additional amounts shall be paid in the interim.
The Company shall (i) make such withholding or deduction and (ii) remit
the full amount deducted or withheld to the relevant authority in accordance
with applicable law. The Company shall furnish to the Trustee, within 30 days
after the date the payment of any taxes so withheld or deducted is due pursuant
to applicable law, certified copies of tax receipts evidencing such payment by
the Company. 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
Officer's 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
or the Ontario Securities Commission, as applicable, 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 or the
Ontario Securities Commission, as applicable, 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 the
Ontario Securities Commission, as applicable; or, if the Company or the
Guarantor is not required to file information, documents or reports
pursuant to either of such sections of the Securities Exchange Act of
1934, as amended, then to file with the Trustee and the SEC, in
accordance with rules and regulations
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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 SEC and the Ontario Securities
Commission, as applicable, in accordance with the rules and regulations
prescribed from time to time by the SEC and the Ontario Securities
Commission, as applicable, and the Trustee 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) and (b) of this Section
4.02 as may be required by rules and regulations prescribed from time
to time by the SEC and the Ontario Securities Commission, as
applicable; 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.
(e) so long as any outstanding Securities are
"restricted securities" within the meaning of Rule 144(a)(3) under the
Securities Act of 1933, as amended, to either (i) file the reports and
other information with respect to the Company and the Guarantor with
the SEC specified in Section 13 or 15(d) of the Securities Exchange Act
of 1934, as amended, in the time and manner specified in such Sections,
or (ii) in the event that they are not subject to Section 13 or 15(d)
of the Securities Exchange Act of 1934, as amended, make available to
Holders of such Securities and prospective purchasers of such
Securities designated by such Holders, upon request of prospective
purchasers, the information required to be delivered pursuant to Rule
144A(d)(4) under the Securities Act of 1933, as amended, to permit
compliance with Rule 144A in connection with resales of such
Securities.
Section 4.03. Limitations on Liens. The Company will not, nor will it
permit any Restricted Subsidiary to, create or incur, or suffer to be incurred
or to exist, any Lien on its or their property or assets, whether now owned or
hereafter acquired, or upon any income or profits therefrom, or transfer any
property for the purpose of subjecting the same to the payment of
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obligations in priority to the payment of its or their general creditors, or
acquire or agree to acquire, or permit any Restricted Subsidiary to acquire, any
property or assets upon conditional sales agreements or other title retention
devices, without thereupon expressly securing the due and punctual payment of
the principal of and the interest on the Securities of each Series equally and
ratably with any and all other obligations and indebtedness secured by such
Lien, so long as any such other obligations and indebtedness shall be so
secured, and the Company covenants that if and when any such Lien is created,
the Securities of each Series will be so secured thereby. 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 create or
incur, or suffer to be incurred or to exist, any one or more of the following
Liens:
(a) Liens for property taxes and assessments or governmental
charges or levies which are not yet due and payable, or the amount,
applicability or validity thereof is being contested by the Company or
any Restricted Subsidiary on a timely basis in good faith and in
appropriate proceedings, and the Company or such Restricted Subsidiary
has established adequate reserves therefor in accordance with GAAP on
the books of the Company or such Restricted Subsidiary, or the
nonpayment of all such taxes, assessments, charges and levies in the
aggregate would not reasonably be expected to have a materially adverse
effect on the business, operations, affairs, financial condition,
properties or assets of the Company and its Restricted Subsidiaries
taken as a whole and Liens securing claims or demands of mechanics and
materialmen in each case incurred in the ordinary course of business
for sums not yet due and payable or the non-payment of which would not
reasonably be expected, individually or in the aggregate, to have a
materially adverse effect on the business, operations, affairs,
financial condition, properties or assets of the Company and its
Restricted Subsidiaries taken as a whole;
(b) Liens of or resulting from any judgment or award, the
time for the appeal or petition for rehearing of which shall not have
expired, or in respect of which the Company or a Restricted Subsidiary
shall at any time in good faith be prosecuting an appeal or proceeding
for a review and in respect of which a stay of execution pending such
appeal or proceeding for review shall have been secured;
(c) Liens incidental to the conduct of business or the
ownership of properties and assets (including Liens in connection with
worker's compensation, unemployment insurance and other like laws,
warehousemen's and solicitors' liens and statutory landlords' liens)
and Liens to secure the performance of bids, tenders or trade
contracts, or to secure statutory obligations, surety or appeal bonds
or other Liens of like general nature incurred in the ordinary course
of business and not in connection with the borrowing of money; provided
in each case, the obligation secured is not overdue or, if overdue, is
being contested in good faith by appropriate actions or proceedings;
(d) Minor survey exceptions, or minor encumbrances, easements
or reservations, or rights of others for rights-of-way, utilities and
other similar purposes, or zoning or other restrictions as to the use
of real properties, which are necessary for the conduct of the
activities of the Company and the Restricted Subsidiaries or which
customarily exist on properties of corporations engaged in similar
activities and similarly
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situated and which do not in any event materially impair their use in
the operation of the business of the Company and the Restricted
Subsidiaries;
(e) Liens securing Debt of a Restricted Subsidiary to the
Company or to another Restricted Subsidiary;
(f) Purchase Money Obligations;
(g) Liens on Acquired Financing Assets to secure Secured
Subordinated Debt of the Company or the Restricted Subsidiaries arising
in connection with the acquisition of such Acquired Financing Assets;
(h) Liens securing Non-Recourse Debt of the Company or the
Restricted Subsidiaries;
(i) Liens created or incurred after December 15, 1998 upon
any property (the "Substitute Property") concurrently with the release
of a comparable Lien on other property (the "Released Property"),
provided that (A) the fair market value of the Substitute Property
shall not exceed the fair market value of the Released Property by more
than 110%, (B) the character and use of the Substitute Property shall
be substantially equivalent to the character and use of the Released
Property, and (C) such substitution shall be without increase in the
principal amount of the Debt remaining unpaid as of the date of such
substitution which is to be secured by the Lien on such Substitute
Property and such remaining unpaid principal amount of such Debt shall
not exceed the aggregate fair market value of such Substitute Property
and any other property securing such Debt;
(j) 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;
(k) 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;
(l) 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 December 15, 1998 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 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;
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(m) 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
December 15, 1998 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 after such Accounts Receivable
arise or are acquired (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;
(n) any extension, renewal, or replacement of any Lien
permitted by the preceding subsections (f), (g), (i), (j), (k) (l) and
(m) hereof in respect of the same property theretofore subject to such
Lien in connection with the extension, renewal or refinancing of the
Debt secured thereby; provided that (A) such Lien shall attached solely
to the same such property or Substitute Property, and (B) such
extension, renewal or refinancing of such Debt shall be without
increase in the principal remaining unpaid as of the date of such
extension, renewal or refinancing;
(o) Any other Liens (other than the Liens described in
clauses (a) - (n)) which in the aggregate relate to Debt the aggregate
amount of which does not exceed 10% of Consolidated Net Tangible
Assets; and
(p) any Lien approved by the Holders holding a majority in
principal amount of the outstanding Securities of each Series.
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.
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ARTICLE V
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 Person 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 Person 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 expressly
assume the due and punctual payment of the principal of 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 and, if applicable, each Subsidiary Guarantee to be performed or
observed by the Company and the Guarantor, by supplemental indenture in form
satisfactory to the Trustee, executed and delivered to the Trustee by such
corporation or Person, and, if applicable, execution and delivery of a Guaranty
relating to the Securities that are Guaranteed by the Guarantor, each
substantially in the form of the related Subsidiary Guarantee, and (ii) the
Company, the Guarantor or such successor corporation or Person, 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 or the Guarantor, as applicable
for purposes of this Section 5.01.
Section 5.02 Successor Substituted. In case of any such consolidation,
merger, sale or conveyance, and following such an assumption by the successor
Person, such Person 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
and in each Subsidiary Guarantee. With respect to any successor to the Company,
such successor Person 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
Person 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 Person 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.
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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 Person 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.
ARTICLE VI
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
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any applicable 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
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
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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
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 covenant 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 interest, with interest upon any overdue 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 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 both the Company and 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 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
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provided by law out of the property of the Company or the Guarantor or other
obligor 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, state or other 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), 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
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
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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 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;
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 interest, with interest on
the overdue principal, 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
interest or Yield to Maturity without preference or priority of principal over
interest
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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 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.
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 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 VI 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
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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 VI 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 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
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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
interest on any Security on or after the due date expressed in such Security.
ARTICLE VII
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:
(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.
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(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 Officer's 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 written advice of counsel
reasonably acceptable to the Trustee, a certificate of an Officer or Officers
delivered pursuant to Section 2.02(b), an Officer's 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 or the Guarantor shall be sufficient if
signed by an Officer of the Company or the Guarantor, as the case may be.
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 Sections 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 any Subsidiary
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
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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.
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 applicable bankruptcy, insolvency or other similar law.
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.
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(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 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).
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(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 or 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 time required thereby, except that there
shall be excluded from the operation of TIA 'SS'310(b)(1) all indentures of the
Company or the Guarantor 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 Guarantor and The Chase Manhattan Bank (formerly
known as Chemical Bank), as Trustee, the Indenture dated as of June 1, 1992,
as amended between the Guarantor and The Chase Manhattan Bank (formerly known
as Chemical Bank), as Trustee, the Indenture dated as of July 1, 1993, as
amended, between the Guarantor and The Chase Manhattan Bank (formerly known as
Chemical Bank), as Trustee, the Indenture dated as of April 1, 1998 among the
Company, the Guarantor and The Chase Manhattan Bank, as Trustee, and the
Indenture dated as of December 15, 1998 between the Company and The Chase
Manhattan Bank, as Trustee. 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 is 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.
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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.
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 thereof 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
ARTICLE VIII
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 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
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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 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 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 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;
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(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 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 Subsidiary Guarantee, if any, 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 which such moneys have been deposited with the Trustee, of all
sums due, and to become due thereon for principal and interest.
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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 Monies 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 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 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.
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.
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ARTICLE IX
AMENDMENTS AND WAIVERS
Section 9.01. Without Consent of Holders. The Company, the Guarantor
and the Trustee 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 V; 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 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 of 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;
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(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.
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.
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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 X
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.
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 :
Newcourt Credit Group Inc.
BCE Place 181 Bay Street
Suite 3500
Toronto, Ontario, Canada M5J2T3
if to the Trustee to:
The Chase Manhattan Bank
450 West 33rd Street
New York, NY 10001
Attention: Capital Markets Fiduciary Services
if to the Guarantor to:
AT&T Capital Corporation
2 Gatehall Drive
Parsippany, New Jersey 07054
(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
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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.
(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 Officer's Certificate stating that, in the opinion of the
signer, 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;
(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;
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(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.
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
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<PAGE>
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 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
Officer's Certificate. For purposes of this Section 10.13, "Market Exchange
Rate" shall mean the noon United States dollar buying rate for that currency for
cable transfers quoted in The City of New York 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 The City of New York 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
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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 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.
Section 10.15. Forum Selection and Consent to Jurisdiction. ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
INDENTURE, ANY RELATED AGREEMENT OR THE SECURITIES, OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE
COMPANY, THE GUARANTOR OR THE TRUSTEE SHALL BE BROUGHT AND MAINTAINED
EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW YORK OR IN THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK. THE COMPANY, THE GUARANTOR
AND THE TRUSTEE HEREBY EXPRESSLY AND IRREVOCABLY SUBMIT TO THE NON-EXCLUSIVE
JURISDICTION OF ALL FEDERAL AND STATE COURTS OF THE STATE OF NEW YORK FOR THE
PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY AGREE TO BE
BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH LITIGATION. EACH
OF THE COMPANY, THE GUARANTOR AND THE TRUSTEE FURTHER IRREVOCABLY CONSENTS TO
THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL
SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK. EACH OF THE COMPANY, THE
GUARANTOR AND THE TRUSTEE HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER
MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT
REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. TO THE EXTENT THAT THE COMPANY, THE GUARANTOR OR THE TRUSTEE
HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM
ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO
JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR
ITS PROPERTY, EACH HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS
OBLIGATIONS UNDER THIS INDENTURE, ANY RELATED AGREEMENT AND THE SECURITIES.
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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
THE CHASE MANHATTAN BANK
By
NEWCOURT CREDIT GROUP INC.
By
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<PAGE>
STATE OF NEW JERSEY )
) ss.:Parsippany, N.J.
COUNTY OF MORRIS )
On the ____ day of _____________, 1999, 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 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
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ____ day of ______________, 1999, before me personally came
_________________, to me known, who, being by me duly sworn, did depose and say
that he resides at _______________, that he is a ________________ 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
<PAGE>
STATE OF NEW JERSEY )
) ss.:Parsippany, N.J.
COUNTY OF MORRIS )
On the ___ day of ____________, 1999, 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
<PAGE>
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
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.
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS
THAT (a) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER
THE ACT), (b) IT IS AN "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2),
(3) OR (7) UNDER THE ACT) (AN "ACCREDITED INVESTOR") OR (c) IT IS NOT A U.S.
PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION, (2) AGREES
THAT IT WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY
RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (a) TO THE COMPANY OR ANY
SUBSIDIARY THEREOF, (b) INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL
BUYER IN COMPLIANCE WITH RULE 144A UNDER THE ACT, (c) INSIDE THE UNITED STATES
TO AN ACCREDITED INVESTOR IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE
SECURITIES ACT WHO, PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS FURNISHED ON ITS
BEHALF BY A U.S. BROKER-DEALER) TO THE TRUSTEE A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER
OF THIS SECURITY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE FOR
THIS SECURITY), (d) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH RULE 904 UNDER THE ACT, (e) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE ACT (IF AVAILABLE), OR (f) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND (3) AGREES THAT IT WILL
GIVE TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY
TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS SECURITY
WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY, IF THE PROPOSED
TRANSFEREE IS AN ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER,
FURNISH TO THE TRUSTEE AND THE COMPANY SUCH CERTIFICATIONS, LEGAL OPINIONS OR
OTHER INFORMATION AS THE COMPANY MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH
TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE ACT. AS USED HEREIN, THE TERMS
"OFFSHORE TRANSACTION,"
<PAGE>
"UNITED STATES" AND "U.S. PERSON" HAVE THE RESPECTIVE MEANINGS GIVEN TO THEM BY
REGULATION S UNDER THE ACT.
No. R-1 CUSIP NO. 650905AD4
NEWCOURT CREDIT GROUP INC.
6.875% NOTE, SERIES B DUE FEBRUARY 16, 2005
Original Issue Date: February 16, 1999
Issue Price: 99.661%
Interest Rate: 6.875%
Maturity Date: February 16, 2005
Principal Amount: $200,000,000
Newcourt Credit Group Inc, a corporation organized under the laws of
the Province of Ontario (herein referred to as the "Company") for value
received, hereby promises to pay to Cede & Co. or registered assigns, the
principal sum of two hundred million dollars (U.S. $200,000,000), or such other
amount as is indicated on Schedule A hereof, on the Maturity Date shown above
and to pay interest thereon at the rate per annum shown above until the
principal hereof is paid or made available for payment. The Company will pay
interest semiannually on February 16 and August 16 (each an "Interest Payment
Date"), commencing with the Interest Payment Date immediately following the
Original Issue Date shown above, and on the Maturity Date shown above. If an
Interest Payment Date, a redemption date or the Maturity Date would otherwise be
a day that is not a Business Day, the payment due on such day will be made on
the next succeeding Business Day, and no interest shall accrue for the
intervening period. Interest on this Note will accrue from the most recent
Interest Payment Date to which interest has been paid or duly provided for or,
if no interest has been paid or duly provided for, from the Original Issue Date
shown above. The amount of interest payable on any Interest Payment Date shall
be computed on the basis of a year of twelve 30-day months. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will, as provided in the Indenture referred to below, be paid to the person in
whose name this Note is registered at the close of business on the Record Date
for such Interest Payment Date which shall be the February 1 or August 1
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date; provided, however, that interest payable on the Maturity
Date (whether or not such date is an Interest Payment Date) shall be payable to
the person to whom principal shall be payable. Payment of the principal of and
interest on this Note will be made at the office or agency of the Company
maintained for that purpose in the Borough of Manhattan, The City of New York,
State of New York, in such coin or currency of the United States of America as
at the time of payment shall be legal tender for payment of public and private
debts; provided, however, that at the option of the Company payment of interest
other than interest due at the Maturity Date shown above may be made by check
mailed to the address of the person entitled thereto as such address shall
appear in the Security Register. "Business Day" means any day, other than a
Saturday or a Sunday, and that is neither a legal holiday nor a day on which
banking institutions are authorized or required by law or regulation to close in
The City of New York. This note is
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guaranteed as to payment of principal, premium, if any, and interest (including
Additional Amounts and Liquidated Damages, if any) by AT&T Capital Corporation
(the "Guarantor").
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET
FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS IF SET FORTH IN THIS PLACE.
This Note shall not be valid or become obligatory for any purpose until
the certificate of authentication hereon shall have been executed by the Trustee
under the Indenture referred to herein.
-3-
<PAGE>
IN WITNESS WHEREOF, Newcourt Credit Group Inc. has caused this instrument
to be duly executed.
Dated: February 16, 1999 NEWCOURT CREDIT GROUP INC.
By:
-------------------------------
Attest
---------------------------------
CERTIFICATE OF AUTHENTICATION
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
-4-
<PAGE>
[REVERSE OF NOTE]
This note is one of a duly authorized issue of Securities of the
Company (herein referred to as the "Securities"), issued and to be issued in one
or more series under and pursuant to an Indenture dated as of February 15, 1999
(as amended, restated or supplemented from time to time, the "Indenture"), among
the Company, AT&T Capital Corporation (the "Guarantor") and The Chase Manhattan
Bank, as Trustee (the "Trustee"), to which Indenture and all indentures
supplemental thereto reference is hereby made for description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Trustee, the Company, the Guarantor and the Holders (the words "Holders" or
"Holder" meaning the registered holders or registered holder) of the Securities.
This note is one of the series of Securities designated as 6.875% Notes, Series
B due February 16, 2005 (herein referred to as the "Notes"). The Guarantor has
guaranteed the payment of principal, premium, if any, and interest (including
Additional Amounts and Liquidated Damages, if any) on the Notes and reference is
hereby made to the Guarantee dated as of February 15, 1999 by the Guarantor in
favor of the Trustee for the benefit of the Holders of the Securities for a
complete description of the terms of such Guarantee.
In case an Event of Default with respect to the Notes, as defined in
the Indenture, shall have occurred and be continuing, the principal hereof may
be declared, and upon such declaration shall become due and payable in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Holder of this Note is entitled to the benefits of a Registration
Rights Agreement, dated as of February 10, 1999, among the Company, the
Guarantor and Lehman Brothers Inc., as representative for the Initial Purchasers
defined therein (the "Registration Rights Agreement"). Pursuant to the
Registration Rights Agreement, the Company has agreed for the benefit of the
Holders of the Notes, that it will, at its cost, (i) within a specified period
after the closing of the sale of the Notes (the "Closing"), consummate a
registered exchange offer (the "Exchange Offer") pursuant to which this Note, at
the option of the Holder hereof, may be exchanged for a Security substantially
identical to this Note (except that such Security will not contain the legend
set forth on the face of this Note restricting transfers) or (ii) file a shelf
registration statement (the "Shelf Registration Statement") with the Securities
and Exchange Commission (the "Commission") with respect to resales of the Notes,
and will use its best efforts to cause such Shelf Registration Statement to be
declared effective within eight months after the Closing. If (i) neither the
registration statement with respect to the Exchange Offer nor the Shelf
Registration Statement is filed on or before the dates specified for such filing
in the Registration Rights Agreement, (ii) neither of the registration
statements described above is declared effective by the Commission on or prior
to the date specified for effectiveness in the Registration Rights Agreement,
(iii) the Company fails to consummate the Exchange Offer within 30 business days
after the date specified for effectiveness in the Registration Rights Agreement,
or (iv) the Shelf Registration Statement is declared effective but thereafter
ceases to be effective or usable in connection with resales of the Notes during
the period specified in the Registration Rights Agreement (each such event
referred to in clauses (i) through (iv) above a "Registration Default"), then
the Company will pay liquidated damages to each Holder, with respect to the
first 90-day period immediately following the occurrence of such Registration
Default in an amount equal to $.05 per week per $1,000 principal amount of Notes
held by such Holder ("Liquidated
<PAGE>
Damages"), provided that a Holder shall not be entitled to the benefit of any
Liquidated Damages unless and until such Holder shall have furnished to the
Company the information required by Section 4(b) of the Registration Rights
Agreement. The amount of Liquidated Damages will increase by an additional $.05
per week per $1,000 principal amount with respect to each subsequent 90-day
period until all Registration Defaults have been cured, up to a maximum amount
of Liquidated Damages of $.50 per week per $1,000 principal amount of Notes. All
accrued Liquidated Damages shall be paid by the Company on each Interest Payment
Date for which Liquidated Damages are owed to the Holders of Notes in the same
manner as interest is paid pursuant to the Indenture. Following the cure of all
Registration Defaults, the accrual of Liquidated Damages will cease.
All payments of principal of and interest on this Note will be made
free and clear of and without withholding or deduction for or on account of any
present or future tax, duty, levy, impost, assessment or other governmental
charge imposed or levied by or on behalf of the Government of Canada or of any
province or territory thereof or by any authority or agency therein or thereof
having power to tax ("Taxes"), unless the Company is required to withhold or
deduct Taxes by law or by the interpretation or administration thereof. If the
Company is so required to withhold or deduct any amount for or on account of
Taxes from any payment made under or with respect to this Note, the Company will
pay such additional amounts ("Additional Amounts") as may be necessary so that
the net amounts received by the Holder of this Note (including Additional
Amounts) after such withholding or deduction will not be less than the amount
the Holder of this Note would have received if such Taxes had not been withheld
or deducted; provided that no such Additional Amounts shall be payable with
respect to a payment made to a Holder of Notes:
(i) with which the Company does not deal at arm's length
(within the meaning of the Income Tax Act (Canada)) at the time of
making such payment;
(ii) which is subject to such Taxes by reason of its being
connected with Canada or any province or territory thereof otherwise
than by the mere holding of Notes or the receipt of payment thereunder;
or
(iii) who could lawfully avoid (but has not so avoided) such
deduction or withholding by complying, or procuring that any third
party complies with any statutory requirements or by making or
procuring that a third party makes a declaration of non-residence or
other similar claim for exemption to the relevant tax authority.
The Company will also (i) make such withholding or deduction and (ii)
remit the full amount deducted or withheld to the relevant authority in
accordance with applicable law. The Company will furnish to the Trustee within
30 days after the date the payment of any Taxes is due pursuant to applicable
law, certified copies of tax receipts evidencing such payment by the Company.
Any reference herein to principal or interest shall be deemed also to
refer to any Additional Amounts which may be payable under this provision.
-2-
<PAGE>
Except as provided in this paragraph, this Note may not be redeemed
prior to the Maturity Date and this Note shall not be subject to repayment at
the option of the holder prior to the Maturity Date. If the Company shall
determine that it has or will become obligated to pay Additional Amounts, then
the Company may, at its option, or shall, if required, redeem this Note in
accordance with Section 4.01 of the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company or the Guarantor and the rights of the Holders of the Securities of each
series to be affected under the Indenture at any time by the Company, the
Guarantor and the Trustee with the consent of the Holders of a majority in
principal amount of the outstanding Securities of each series affected by any
such amendment or modification (with each series voting as one class). The
Indenture also contains provisions permitting the Holders of not less than a
majority in principal amount of the outstanding Securities of each series
affected thereby (with each series voting as one class), on behalf of the
Holders of all Securities of such series, to waive compliance by the Company or
the Guarantor with certain provisions of the Indenture. The Indenture also
provides that, regarding the Securities of any series, the Holders of not less
than a majority in principal amount of the outstanding Securities of such series
way waive certain past defaults and their consequences on behalf of the Holders
of all Securities of such series. Any such consent or waiver by the Holder of
this Note shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note issued upon registration of transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such consent
or waiver is made upon this Note.
The Indenture contains provisions setting forth certain conditions to
the institution of proceedings by Holders of Securities with respect to the
Indenture or for any remedy under the Indenture.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the place, at the respective times, at the rate and in the coin or currency
herein prescribed.
The Notes are issuable as registered Notes without coupons in
denominations that are integral multiples of U.S. $1,000. At the corporate trust
office of the Trustee in the Borough of Manhattan, The City of New York and in
the manner and subject to the limitations provided in the Indenture, Notes may
be exchanged without service charge for a like aggregate principal amount of
Notes of other authorized denominations.
Upon due presentment for registration of transfer of this Note at the
office or agency of the Company referred to above, a new Note or Notes of
authorized denominations for a like aggregate principal amount will be issued to
the transferee as provided in the Indenture. No service charge shall be made for
any such transfer, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereof.
-3-
<PAGE>
The Company, the Guarantor, the Trustee, and any agent of the Company,
the Guarantor, or the Trustee may deem and treat the Holder hereof as the
absolute owner hereof (whether or not this Note shall be overdue and
notwithstanding any notation of ownership or other writing hereof) for the
purpose of receiving payment of or on account of the principal hereof and,
subject to the provisions on the face hereof, interest hereon, and for all
purposes, and neither the Company, the Guarantor, nor the Trustee nor any such
agent shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Note, or for any claim based hereon, or otherwise in respect
hereof, or based on or in respect of the Indenture or any indenture supplemental
thereto, against any incorporator, shareholder, officer or director as such,
past, present or future, of the Company, of the Guarantor or of any successor
corporations or Persons, either directly or through the Company, the Guarantor
or any successor corporation or Person, whether by virtue of any constitution,
statute or rule of law or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as part of the
consideration for the issue hereof, expressly waived and released.
This Note shall be deemed to be a contract made under the laws of the
State of New York and for all purposes shall be governed by and construed in
accordance with the laws of said State.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
-4-
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT MIN ACT - __________________________ Custodian ______________________
(Cust) (Minor)
Under Uniform Gifts to Minor Act ___________________________
(State)
Additional abbreviations may also be used though not in the above list
<PAGE>
ASSIGNMENT FORM
To assign this Note, fill in the form below:
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE]
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
[PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING ZIP CODE, OF ASSIGNEE]
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing such person attorney to transfer such Note on the books of the
Company, with full power of substitution in the premises.
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within Note in every particular
without alteration or enlargement or any change whatsoever.
Your Signature:_________________________________________________________________
(Sign exactly as your name appears on the other side of this Note)
Date:_______________________
Signature Guarantee:____________________________________________________________
In connection with any transfer of any of the Notes evidenced by this
certificate occurring prior to the date that is two years after the later of the
date of original issuance of such Notes and the last date, if any, on which such
Notes were owned by the Company or any Affiliate of the Company, the undersigned
confirms that such Notes are being transferred:
-2-
<PAGE>
CHECK ONE BOX BELOW
(1) [ ] to the Company or any subsidiary thereof,
(2) [ ] to a qualified institutional buyer in compliance with Rule 144A,
(3) [ ] outside the United States in compliance with Rule 904 under the
Securities Act
(4) [ ] pursuant to the exemption from registration provided by Rule 144
under the Securities Act (if available) or
(5) [ ] pursuant to an effective registration statement under the
Securities Act.
-3-
<PAGE>
SCHEDULE A
SCHEDULE OF PRINCIPAL AMOUNT
The initial principal amount of this Global Note shall be $200,000,000.
The following increases or decreases in the principal amount of this Global Note
have been made:
<TABLE>
<CAPTION>
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AMOUNT OF DECREASE IN AMOUNT OF INCREASE PRINCIPAL AMOUNT OF SIGNATURE OF DATE OF EXCHANGE
PRINCIPAL AMOUNT OF IN PRINCIPAL AMOUNT THIS GLOBAL NOTE AUTHORIZED OFFICER FOLLOWING SUCH
THIS GLOBAL NOTE OF THIS GLOBAL NOTE OF TRUSTEE OR NOTES DECREASE OR
CUSTODIAN INCREASE
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
<S> <C> <C> <C> <C>
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</TABLE>
<PAGE>
GUARANTEE
Guarantee dated as of February 15, 1999, made by AT&T Capital
Corporation (together with its successors and assigns, the "Guarantor", a
Delaware corporation, to and in favor of The Chase Manhattan Bank, as Trustee
(together with its successors and assigns, 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 an indirect wholly-owned subsidiary of Newcourt
Credit Group Inc., a corporation incorporated under the laws of the Province of
Ontario (the "Company");
WHEREAS the Company will issue its 6.875% Notes, Series B due February
16, 2005 (together with any notes issued in replacement thereof in accordance
with the Registration Rights Agreement referred to below, the "Securities"),
pursuant to the Indenture dated as of February 15, 1999 among the Company, the
Guarantor and the Trustee (the "Indenture"); and
WHEREAS the Company and the Guarantor have entered into a Registration
Rights Agreement, dated February 10, 1999 (the "Registration Rights Agreement"),
pursuant to which they have agreed to take certain actions with respect to the
Securities and have agreed to pay certain amounts ("Liquidated Damages") in the
event they fail to take the required actions; and
WHEREAS the Guarantor, as an indirect wholly-owned subsidiary of the
Company, will derive substantial and direct benefits (which benefits are hereby
acknowledged by the Guarantor) from the issuance and sale of the Securities.
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 (capitalized terms used but not defined
herein shall be as defined in the Indenture):
Section 1. Guarantee. The Guarantor hereby irrevocably and unconditionally
guarantees (as a guarantor and not as a surety) to the Trustee for the benefit
of the Holders of the Securities the due and punctual payment of the principal
of, premium, if any, and interest on the 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, including any additional amounts
payable in respect of taxes or similar charges withheld or deducted and
Liquidated Damages under the Registration Rights Agreement; (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:
<PAGE>
(a) the validity or enforceability of 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;
(e) the commencement by or against the Company or the Guarantor
or any other Person of any proceedings under any bankruptcy or
insolvency law or laws relating to the relief of debtors, readjustment
of indebtedness, reorganizations, arrangements, compositions or
extension or other similar laws; and
(f) 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 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 neither the
Trustee nor the Holders shall 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 Trustee or 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 Trustee or 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 the 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 AT&T Capital Corporation, 2
Gatehall Road, Parsippany, New Jersey 07054 for the attention of the Treasurer,
is personally delivered to such address or a facsimile transmission containing
such demand is sent to the Guarantor, for the attention of the Treasurer, at the
following fax number: (973) 355-7021.
-2-
<PAGE>
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.
Section 6. Subordination. All obligations, liabilities and indebtedness of
the Company to the Guarantor of any nature whatsoever (the "Corporate
Indebtedness") shall 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 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 Trustee for the benefit of 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:
(a) to be indemnified by the Company
(b) to claim contribution from any other guarantor of the debts,
liabilities or obligations of the Company; or
(c) 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, any and all defenses available to guarantors, sureties and
other secondary parties at law or in equity, including without limitation, (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
-3-
<PAGE>
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, notice of default or event of default under the
Indenture, protest and notice of protest, diligence or promptness in collection
or enforcement 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 the Guarantor 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 marshaling of assets of the Company or any other action by any court or
governmental body with respect thereto.
Section 9. Amendment. (a) With the written consent of the Holders of a
majority in principal amount of the outstanding Securities, the Guarantor and
the Trustee may add any provisions or change or eliminate any provisions of this
Guarantee or modify, in each case, in any manner, the rights of the Holders of
the Securities under this Guarantee. The Holders of a majority in principal
amount of the outstanding Securities, by notice to the Trustee, may waive
compliance by the Guarantor with any provision of this Guarantee; but no such
waiver shall extend to or affect such provision except to the extent so
expressly waived, and, until such waiver shall become effective, the obligations
of the Guarantor in respect to any such provision shall remain in full force and
effect; provided, however, without the consent of each Holder affected, an
amendment or waiver may not (i) reduce the amount of Securities whose Holders
must consent to an amendment or waiver or (ii) make any changes in Section 1;
(b) Notwithstanding the provisions of Section 9(a), the Guarantor and the
Trustee may amend this Guarantee to cure any ambiguity, defect or inconsistency
herein or to make any other change, provided, however no such action shall
adversely affect the rights of any Holder; and
(c) The Trustee need not enter into any such amendment that adversely
affects its rights, duties or immunities hereunder or otherwise and shall be
entitled to receive as a condition to entering into any such amendment an
Opinion of Counsel and Officers' Certificate complying with Sections 10.04 and
10.05 of the Indenture.
Section 10. 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.
-4-
<PAGE>
Section 11. Successors of the Guarantor. Any change or changes in the name
of the Guarantor or reorganization (whether by way of reconstruction,
consolidation, amalgamation, merger, transfer, sale, lease or otherwise) of the
Guarantor or its business or any change in the ownership of any shares of the
capital stock of the Guarantor shall not affect or in any way limit or lessen
the liability of the Guarantor hereunder.
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 State of
Delaware.
(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
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<PAGE>
bankruptcy, fraudulent conveyance, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally 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, to its knowledge threatened
action or proceeding affecting it before any court, governmental agency
or arbitrator, which may materially adversely affect its financial
condition or operations or impair the ability of the Guarantor to
perform its obligations under this Guarantee. The Guarantor is not in
default with respect to any order of any court, governmental authority
or arbitrator, the effect of which would have a material adverse effect
on the Guarantor and its subsidiaries on a consolidated basis.
(g) Shares. The Company is the registered and beneficial holder
of 100% of the issued and outstanding shares of the capital stock of
Newcourt Credit Group USA Inc.; Newcourt Credit Group USA Inc. is the
registered and beneficial holder of 100% of the issued and outstanding
shares of the capital stock of the Guarantor.
Section 14. Payment of Taxes and Other Taxes. (a) 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 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
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<PAGE>
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) Subject to Section 15(d), 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.
(c) 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
(d) 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.
(e) 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.
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. This Guarantee is assignable by the Holders to the
extent and in the same proportion that any
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<PAGE>
underlying interest in the Securities and the Indenture has been assigned and is
assignable by the Trustee to any successor Trustee under the Indenture.
[Signature Page Follows]
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<PAGE>
IN WITNESS WHEREOF, the Guarantor has duly executed this Guarantee as of
the day and year first above written.
AT&T CAPITAL CORPORATION
By: /s/ Glenn A. Votek
--------------------------------
Name: Glenn A. Votek
Title: Executive Vice President
and Treasurer
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<PAGE>
===============================================================================
REGISTRATION RIGHTS AGREEMENT
Dated as of February 10, 1999
among
NEWCOURT CREDIT GROUP INC.,
AT&T CAPITAL CORPORATION
and
LEHMAN BROTHERS INC.
as representative for the Initial Purchasers
===============================================================================
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
PAGE
<S> <C> <C>
SECTION 1. DEFINITIONS............................................................1
SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT...................................3
SECTION 3. REGISTERED EXCHANGE OFFER..............................................3
SECTION 4. SHELF REGISTRATION.....................................................5
SECTION 5. LIQUIDATED DAMAGES.....................................................6
SECTION 6. REGISTRATION PROCEDURES................................................6
SECTION 7. REGISTRATION EXPENSES.................................................13
SECTION 8. INDEMNIFICATION AND CONTRIBUTION......................................13
SECTION 9. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS...........................16
SECTION 10. SELECTION OF UNDERWRITERS.............................................16
SECTION 11. MISCELLANEOUS.........................................................16
</TABLE>
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and
entered into as of February 10, 1999 by and among Newcourt Credit Group Inc.,
formed under the laws of the Province of Ontario, Canada (the "Company"), AT&T
Capital Corporation, a corporation formed under the laws of Delaware ("AT&T
Capital"), and Lehman Brothers Inc., as representative of the Initial Purchasers
(as such term is defined in the Purchase Agreement) (Lehman Brothers Inc. and
the Initial Purchasers shall be collectively referred to herein as the "Initial
Purchasers").
This Agreement is entered into in connection with the Purchase
Agreement, dated February 10, 1999, among the Company, AT&T Capital and Lehman
Brothers Inc. as representative of the Initial Purchasers (the "Purchase
Agreement"), which provides for the sale by the Company to the Initial
Purchasers of $1,000,000,000 principal amount of the Company's 6.875% Senior
Notes, Series B due February 16, 2005 (the "Notes"). The Notes are general
unsecured obligations of the Company and rank pari passu in right of payment to
all existing and future senior unsecured debt of the Company; the payment of
principal and interest on the Notes will be guaranteed by AT&T Capital pursuant
to the Guarantee. Capitalized terms used but not specifically defined herein
have the respective meaning ascribed thereto in the Purchase Agreement. As an
inducement to the Initial Purchasers to enter into the Purchase Agreement and in
satisfaction of a condition to their obligations thereunder, the Company and
AT&T Capital agree with you, for the benefit of the holders of the Notes
(including the Initial Purchasers) (the "Holders"), as follows:
Section 1. Definitions. As used in this Agreement, the following
capitalized terms shall have the following meanings:
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
Closing Date: The date on which the Notes were sold.
Commission: The Securities and Exchange Commission.
Consummate: A Registered Exchange Offer shall be deemed "Consummated"
for purposes of this Agreement upon the occurrence of (i) the filing and
effectiveness under the Securities Act of the Exchange Offer Registration
Statement relating to the Exchange Notes to be issued in the Exchange Offer,
(ii) the maintenance of such Registration Statement continuously effective and
the keeping of the Exchange Offer open for a period not less than the minimum
period required pursuant to Section 3(b) hereof, and (iii) the delivery by the
Company of the Exchange Notes in the same aggregate principal amount, interest
rate, maturity date and interest payment dates as the Transfer Restricted
Securities that were validly tendered by Holders thereof pursuant to the
Exchange Offer.
Damages Payment Date: With respect to the Notes, each Interest Payment
Date until the earlier of (i) the date on which Liquidated Damages no longer are
payable or (ii) maturity of the Notes.
<PAGE>
Effectiveness Target Date: As defined in Section 5.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Notes: The Notes to be issued pursuant to the Indenture in the
Exchange Offer (which shall be either book-entry or certificated form and issued
pursuant to the Indenture).
Exchange Offer: The registration by the Company and AT&T Capital under
the Securities Act of the Exchange Notes, together with the related Guarantee,
pursuant to a Registration Statement pursuant to which the Company offers the
Holders of all outstanding Transfer Restricted Securities the opportunity to
exchange all such outstanding Transfer Restricted Securities held by such
Holders for Exchange Notes in an aggregate amount equal to the aggregate amount
of the Transfer Restricted Securities tendered in such exchange offer by such
Holders.
Exchange Offer Registration Statement: The Registration Statement
relating to the Exchange Offer, including the Prospectus which forms a part
thereof.
Exempt Resales: The transactions in which the Initial Purchasers propose
to sell the Notes to certain "qualified institutional buyers," as such term is
defined in Rule 144A under the Securities Act, and to certain institutional
"accredited investors," as such term is defined in Rule 501(a)(1), (2), (3) and
(7) of Regulation D under the Securities Act ("Accredited Institutions").
Holder: As defined in Section 2(b) hereof.
Indenture: The Indenture, dated as of February 15, 1999, between the
Company and The Chase Manhattan Bank, as trustee (the "Trustee"), pursuant to
which the Notes are to be issued, as such Indenture is amended or supplemented
from time to time in accordance with the terms thereof.
Initial Purchasers: As defined in the preamble hereto.
Person: An individual, partnership, corporation, limited liability
company, trust or unincorporated organization, or a government or agency or
political subdivision thereof.
Prospectus: The prospectus included in a Registration Statement, as
amended or supplemented by any prospectus supplement and by all other amendments
thereto, including post-effective amendments, and all material incorporated by
reference therein.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the Company and
AT&T Capital relating to (a) an offering of Exchange Notes pursuant to an
Exchange Offer or (b) the registration for resale of Transfer Restricted
Securities pursuant to the Shelf Registration Statement, which is filed pursuant
to the provisions of this Agreement, in either case, including
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<PAGE>
the Prospectus included therein, all amendments and supplements thereto
(including post-effective amendments) and all exhibits and material incorporated
by reference therein.
Securities Act: The Securities Act of 1933, as amended.
Shelf Filing Deadline: As defined in Section 4 hereof.
Shelf Registration Statement: As defined in Section 4 hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb),
as amended.
Transfer Restricted Securities: Each Note, until the earliest to occur
of (a) the date on which such Note has been exchanged by a person other than a
Broker-Dealer for Exchange Notes in the Exchange Offer, (b) following the
exchange by a Broker-Dealer in the Exchange Offer of such Note for one or more
Exchange Notes, the date on which such Exchange Notes are sold to a purchaser
who receives from such Broker-Dealer on or prior to the date of such sale a copy
of the Prospectus contained in the Exchange Offer Registration Statement, (c)
the date on which such Notes have been effectively registered under the
Securities Act and disposed of in accordance with the Shelf Registration
Statement or (d) the date on which such Notes are eligible to be distributed to
the public pursuant to Rule 144 under the Securities Act.
Underwritten Registration or Underwritten Offering: A registration under
the Securities Act in which securities of the Company are sold to an underwriter
for reoffering to the public.
Section 2. Securities Subject to this Agreement.
(a) Transfer Restricted Securities. The securities entitled to the
benefits of this Agreement are the Transfer Restricted Securities.
(b) Holders of Transfer Restricted Securities. A Person is deemed to be
a holder of Transfer Restricted Securities (each, a "Holder") whenever such
Person owns Transfer Restricted Securities.
Section 3. Registered Exchange Offer. (a) Unless the Exchange Offer shall
not be permissible under applicable law or Commission policy (after the
procedures set forth in Section 6(a) below have been complied with), each of the
Company and AT&T Capital shall (i) cause to be filed with the Commission after
the Closing Date, but in no event later than five (5) months after the Closing
Date, a Registration Statement under the Securities Act relating to the Exchange
Notes, the Guarantee and the Exchange Offer, (ii) use its reasonable best
efforts to cause such Registration Statement to become effective no later than
eight (8) months after the Closing Date, (iii) in connection with the foregoing,
(A) file all pre-effective amendments to such Registration Statement as may be
necessary in order to cause such Registration Statement to become effective, (B)
file, if applicable, a post-effective amendment to such Registration Statement
pursuant to Rule 430A under the Securities Act and (C) cause all necessary
filings in connection with the registration and qualification of the Exchange
Notes to be made under the Blue Sky laws of such jurisdictions as are necessary
to permit Consummation of the Exchange
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<PAGE>
Offer, and (iv) unless the Exchange Offer would not be permitted by applicable
law or Commission policy, commence the Exchange Offer and use its reasonable
best efforts to issue, on or prior to 30 business days after the date on which
such Registration Statement was declared effective by the Commission, Exchange
Notes in exchange for all Transfer Restricted Securities tendered prior thereto
in the Exchange Offer. The Exchange Offer shall be on the appropriate form
permitting registration of the Exchange Notes to be offered in exchange for the
Transfer Restricted Securities and to permit resales of Exchange Notes held by
Broker-Dealers as contemplated by Section 3(c) below.
(b) The Company and AT&T Capital shall use their reasonable best efforts
to cause the Exchange Offer Registration Statement to be effective continuously
and shall keep the Exchange Offer open for a period of not less than the minimum
period required under applicable federal and state securities laws to Consummate
the Exchange Offer; provided, however, that in no event shall such period be
less than 20 business days. The Company and AT&T Capital shall cause the
Exchange Offer to comply in all material respects with all applicable federal
and state securities laws. No securities other than the Exchange Notes shall be
included in the Exchange Offer Registration Statement.
(c) The Company shall indicate in a "Plan of Distribution" section
contained in the Prospectus contained in the Exchange Offer Registration
Statement that any Broker-Dealer who holds Notes that are Transfer Restricted
Securities and that were acquired for its own account as a result of
market-making activities or other trading activities (other than Transfer
Restricted Securities acquired directly from the Company), may exchange such
Notes pursuant to the Exchange Offer, however, such Broker-Dealer may be deemed
to be an "underwriter" within the meaning of the Securities Act and must,
therefore, deliver a prospectus meeting the requirements of the Securities Act
in connection with any resales of the Exchange Notes received by such
Broker-Dealer in the Exchange Offer, which prospectus delivery requirement may
be satisfied by the delivery by such Broker-Dealer of the Prospectus contained
in the Exchange Offer Registration Statement. Such "Plan of Distribution"
section shall also contain all other information with respect to such resales by
Broker-Dealers that the Commission may require in order to permit such resales
pursuant thereto, but such "Plan of Distribution" section shall not name any
such Broker-Dealer or disclose the amount of Exchange Notes held by any such
Broker-Dealer except to the extent required by the Commission as a result of a
change in policy announced after the date of this Agreement.
The Company and AT&T Capital shall use their reasonable best efforts to
keep the Exchange Offer Registration Statement continuously effective,
supplemented and amended as required by the provisions of Section 6(b) below to
the extent necessary to ensure that it is available for resales of Exchange
Notes acquired by Broker-Dealers for their own accounts as a result of
market-making activities or other trading activities, and to ensure that it
conforms with the requirements of this Agreement, the Securities Act and the
policies, rules and regulations of the Commission as announced from time to
time, for a period of 180 days from the date on which the Exchange Offer
Registration Statement is declared effective.
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<PAGE>
The Company shall provide sufficient copies of the latest version of
such Prospectus to Broker-Dealers promptly upon request at any time during such
180-day period in order to facilitate such resales.
Section 4. Shelf Registration.
(a) Shelf Registration. If the Company is not required to file an
Exchange Offer Registration Statement or to consummate the Exchange Offer
because the Exchange Offer is not permitted by applicable law or Commission
policy (after the procedures set forth in Section 6(a) below have been complied
with) then the Company and AT&T Capital shall in lieu of the registration of the
Exchange Notes pursuant to the Exchange Offer Registration Statement, use their
reasonable best efforts to:
(x) cause to be filed a shelf registration statement pursuant to
Rule 415 under the Securities Act, which may be an amendment to the
Exchange Offer Registration Statement (in either event, the "Shelf
Registration Statement"), on or prior to the 90th day after the date on
which the Company determines that it is not required to file the
Exchange Offer Registration Statement (such date being the "Shelf Filing
Deadline"), which Shelf Registration Statement shall provide for resales
of all Transfer Restricted Securities the Holders of which shall have
provided the information required pursuant to Section 4(b) hereof; and
(y) cause such Shelf Registration Statement to be declared
effective by the Commission on or before the 120th day after the Shelf
Filing Deadline.
The Company and AT&T Capital shall use their reasonable best efforts to keep
such Shelf Registration Statement continuously effective, supplemented and
amended as required by the provisions of Section 6(b) hereof to the extent
necessary to ensure that it is available for resales of Notes by the Holders of
Transfer Restricted Securities entitled to the benefit of this Section 4(a), and
to ensure that it conforms with the requirements of this Agreement, the
Securities Act and the policies, rules and regulations of the Commission as
announced from time to time, for a period ending on the earlier to occur of (x)
the second anniversary of the Closing Date and (y) the date on which all of the
Transfer Restricted Securities have been exchanged for the Exchange Notes.
(b) Provision by Holders of Certain Information in Connection with the
Shelf Registration Statement. No Holder of Transfer Restricted Securities may
include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Company in writing, within 20 business days after receipt of a request
therefor, such information as the Company may reasonably request for use in
connection with any Shelf Registration Statement or Prospectus or preliminary
Prospectus included therein. No Holder of Transfer Restricted Securities shall
be entitled to Liquidated Damages pursuant to Section 5 hereof unless and until
each Holder shall have used its best efforts to provide all such reasonably
requested information. Each Holder as to which any Shelf Registration Statement
is being effected agrees to furnish promptly to the Company and AT&T Capital all
information required to be disclosed in order to make the information previously
furnished to the Company and AT&T Capital by such Holder not materially
misleading.
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<PAGE>
Section 5. Liquidated Damages. (a) If (i) any of the Registration
Statements required by this Agreement is not filed with the Commission on or
prior to the date specified for such filing in this Agreement, (ii) any of such
Registration Statement has not been declared effective by the Commission on or
prior to the date specified for such effectiveness in this Agreement (the
"Effectiveness Target Date") (provided this clause (ii) shall not be applicable
in the event the Holders shall not have provided in a timely manner the
information described in Section 4(b) hereof), (iii) the Exchange Offer has not
been Consummated within 30 business days after the Effectiveness Target Date
with respect to the Exchange Offer Registration Statement or (iv) any
Registration Statement required by this Agreement is filed and declared
effective but shall thereafter cease to be effective or fail to be usable for
its intended purpose without being succeeded within two business days by a
post-effective amendment to such Registration Statement that cures such failure
and that is itself immediately declared effective (each such event referred to
in clauses (i) through (iv), a "Registration Default"), additional cash interest
("Liquidated Damages") shall accrue to each Holder of the Notes commencing upon
the occurrence of such Registration Default in an amount equal to $.05 per week
per $1,000 principal amount of Notes held by such Holder. The amount of
Liquidated Damages will increase by an additional $.05 per week per $1,000
principal amount of Notes with respect to each subsequent 90-day period until
all Registration Defaults have been cured, up to a maximum amount of Liquidated
Damages of $.50 per week per $1,000 principal amount of Notes. All accrued
Liquidated Damages shall be paid to Holders by the Company in the same manner as
interest is made pursuant to the Indenture. Following the cure of all
Registration Defaults relating to any particular Transfer Restricted Securities,
the accrual of Liquidated Damages with respect to such Transfer Restricted
Securities will cease.
All obligations of the Company set forth in the preceding paragraph that
have accrued and are outstanding with respect to any Transfer Restricted
Security at the time such security ceases to be a Transfer Restricted Security
shall survive until such time as all such obligations with respect to such
Transfer Restricted Security shall have been satisfied in full.
(b) The Company shall notify the Trustee within one business day after
each and every date on which an event occurs in respect of which Liquidated
Damages are required to be paid (an "Event Date"). Liquidated Damages shall be
paid by depositing Liquidated Damages with the Trustee, in trust, for the
benefit of the Holders of the Notes, on or before the applicable Interest
Payment Date (whether or not any payment other than Liquidated Damages is
payable on such Notes), in immediately available funds in sums sufficient to pay
the Liquidated Damages then due to such Holders. Each obligation to pay
Liquidated Damages shall be deemed to accrue from the applicable date of the
occurrence of the Registration Default.
Section 6. Registration Procedures.
(a) Exchange Offer Registration Statement. In connection with the
Exchange Offer, the Company and AT&T Capital shall comply with all of the
provisions of Section 6(b) below, shall use their reasonable best efforts to
effect such exchange to permit the sale of Transfer Restricted Securities being
sold in accordance with the intended method or methods of distribution thereof,
and shall comply with all of the following provisions:
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<PAGE>
(i) As a condition to its participation in the Exchange Offer
pursuant to the terms of this Agreement, each Holder of Transfer
Restricted Securities shall furnish, upon the request of the Company and
AT&T Capital, prior to the Consummation thereof, a written
representation to the Company and AT&T Capital (which may be contained
in the letter of transmittal contemplated by the Exchange Offer
Registration Statement) to the effect that (A) it is not an affiliate of
the Company and AT&T Capital, (B) it is not engaged in, and does not
intend to engage in, and has no arrangement or understanding with any
person to participate in, a distribution of the Exchange Notes to be
issued in the Exchange Offer and (C) it is acquiring the Exchange Notes
in its ordinary course of business. In addition, all such Holders of
Transfer Restricted Securities shall otherwise cooperate in the
Company's and AT&T Capital's preparations for the Exchange Offer. Each
Holder hereby acknowledges and agrees that any Broker-Dealer and any
such Holder using the Exchange Offer to participate in a distribution of
the securities to be acquired in the Exchange Offer (1) could not under
Commission policy as in effect on the date of this Agreement rely on the
position of the Commission enunciated in Morgan Stanley and Co., Inc.
(available June 5, 1991) and Exxon Capital Holdings Corporation
(available May 13, 1988), as interpreted in the Commission's letter to
Shearman & Sterling dated July 2, 1993, and similar no-action letters
(including Brown & Wood LLP (available February 7, 1997), and any
no-action letter obtained pursuant to clause (i) above), and (2) must
comply with the registration and prospectus delivery requirements of the
Securities Act in connection with a secondary resale transaction and
that such a secondary resale transaction should be covered by an
effective registration statement containing the selling security holder
information required by Item 507 or 508, as applicable, of Regulation
S-K if the resales are of Exchange Notes obtained by such Holder in
exchange for Notes acquired by such Holder directly from the Company.
(ii) Prior to the effectiveness of the Exchange Offer Registration
Statement in the event underwriters are not participating, the Company
shall provide a supplemental letter to the Commission (A) stating that
the Company is registering the Exchange Offer in reliance on the
position of the Commission enunciated in Exxon Capital Holdings
Corporation (available May 13, 1988), Morgan Stanley and Co., Inc.
(available June 5, 1991) and Brown & Wood, LLP (available February 7,
1997) and (B) including a representation that the Company has not
entered into any arrangement or understanding with any Person to
distribute the Exchange Notes to be received in the Exchange Offer and
that, to the best of the Company's information and belief, each Holder
participating in the Exchange Offer is acquiring the Exchange Notes in
its ordinary course of business and has no arrangement or understanding
with any Person to participate in the distribution of the Exchange Notes
received in the Exchange Offer.
(b) General Provisions. In connection with any Registration Statement and
any Prospectus required by this Agreement to permit the sale or resale of
Transfer Restricted Securities (including, without limitation, any Registration
Statement and the related Prospectus required to permit resales of Notes by
Broker-Dealers), the Company and AT&T Capital shall:
(i) upon the occurrence of any event that would cause any such
Registration Statement or the Prospectus contained therein (A) to
contain a material misstatement or
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<PAGE>
omission or (B) not to be effective and usable for resale of Transfer
Restricted Securities during the period required by this Agreement, the
Company and AT&T Capital shall file promptly an appropriate amendment to
such Registration Statement, in the case of clause (A), correcting any
such misstatement or omission, and, in the case of either clause (A) or
(B), use their reasonable best efforts to cause such amendment to be
declared effective and such Registration Statement and the related
Prospectus to become usable for their intended purpose(s) as soon as
practicable thereafter;
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement as may be
necessary to keep the Registration Statement effective for the
applicable period set forth in Section 3 or 4 hereof, as applicable, or
such shorter period as will terminate when all Transfer Restricted
Securities covered by such Registration Statement have been sold; cause
the Prospectus to be supplemented by any required Prospectus supplement,
and as so supplemented to be filed pursuant to Rule 424 under the
Securities Act, and to comply fully with the applicable provisions of
Rules 424 and 430A under the Securities Act in a timely manner; and
comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such Registration Statement
during the applicable period in accordance with the intended method or
methods of distribution by the sellers thereof set forth in such
Registration Statement or supplement to the Prospectus;
(iii) in the case of a Shelf Registration, advise the lead
underwriter to confirm such advice in writing, (A) when the Prospectus
or any Prospectus supplement or post-effective amendment has been filed,
and, with respect to any Registration Statement or any post-effective
amendment thereto, when the same has become effective, (B) of any
request by the Commission for amendments to the Registration Statement
or amendments or supplements to the Prospectus or for additional
information relating thereto, (C) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration
Statement under the Securities Act or of the suspension by any state
securities commission of the qualification of the Transfer Restricted
Securities for offering or sale in any jurisdiction, or the initiation
of any proceeding for any of the preceding purposes, (D) of the
existence of any fact or the happening of any event that makes any
statement of a material fact made in the Registration Statement, the
Prospectus, any amendment or supplement thereto, or any document
incorporated by reference therein untrue, or that requires the making of
any additions to or changes in the Registration Statement or the
Prospectus in order to make the statements therein not misleading;
provided, however, this subclause (D) shall not be construed to require
the Company and AT&T Capital to amend or supplement the Registration
Statement to the extent such supplemental information is incorporated by
reference pursuant to the Company's Exchange Act filings. If at any time
the Commission shall issue any stop order suspending the effectiveness
of the Registration Statement, or any state securities commission or
other regulatory authority shall issue an order suspending the
qualification or exemption from qualification of the Transfer Restricted
Securities under state securities or Blue Sky laws, the Company and AT&T
Capital shall use their best efforts to obtain the withdrawal or lifting
of such order at the earliest possible time;
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<PAGE>
(iv) in the case of a Shelf Registration, furnish to the lead
underwriter, before filing with the Commission, copies of any
Registration Statement or any Prospectus included therein or any
amendments or supplements to any such Registration Statement or
Prospectus (including all documents incorporated by reference after the
initial filing of such Registration Statement), which documents will be
subject to the review of the lead underwriter, for a period of at least
two business days, and the Company and AT&T Capital will not file any
such Registration Statement or Prospectus or any amendment or supplement
to any such Registration Statement or Prospectus (including all
documents incorporated by reference) to which the lead underwriter shall
reasonably object within two (2) business days after the receipt
thereof. The lead underwriter shall be deemed to have reasonably
objected to such filing if such Registration Statement, amendment,
Prospectus or supplement, as applicable, as proposed to be filed,
contains a material misstatement or omission;
(v) in the case of a Shelf Registration and prior to the
effectiveness of the same, make available at reasonable times for
inspection by the lead underwriter participating in any disposition
pursuant to such Registration Statement, and any attorney or accountant
retained by the lead underwriter, all financial and other records,
pertinent corporate documents and properties of the Company and AT&T
Capital and cause the Company's and AT&T Capital's officers, directors,
managers and employees to supply all information reasonably requested by
the lead underwriter and its attorney or accountant in connection with
customary "due diligence";
(vi) in the case of a Shelf Registration, furnish to the lead
underwriter without charge at least one copy of the Registration
Statement, as first filed with the Commission, and of each amendment
thereto, and all exhibits thereto (exclusive of any exhibits
incorporated therein by reference);
(vii) in the case of a Shelf Registration, deliver to the lead
underwriter and the Holders without charge, as many copies of the
Prospectus (including each preliminary prospectus) and any amendment or
supplement thereto as such Persons reasonably may request; subject to
the terms thereof each of the Company and AT&T Capital hereby consents
to the use of the Prospectus and any amendment or supplement thereto by
the underwriter(s), if any, in connection with the offering and the sale
of the Transfer Restricted Securities covered by the Prospectus or any
amendment or supplement thereto;
(viii) in the case of a Shelf Registration which is underwritten,
the Company and AT&T Capital shall:
(A) upon request, furnish to the lead underwriter in such
substance and scope as may be mutually agreeable to the lead
underwriter, the Company and AT&T Capital the following described
items which are customarily provided by issuers to underwriters
in primary underwritten offerings, upon the date of the
effectiveness of the Shelf Registration Statement:
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(1) a certificate, dated the date of the
effectiveness of the Shelf Registration Statement, signed
by (y) the Chairman of the Board, its President or a Vice
President and (z) the Chief Financial Officer of the
Company and AT&T Capital, confirming, as of the date
thereof, such matters as shall be mutually agreeable to
the lead underwriter and the Company and AT&T Capital and
which are customarily provided by issuers to underwriters
in primary underwritten offerings;
(2) an opinion, dated the date of the
effectiveness of the Shelf Registration Statement, of
counsel for the Company and AT&T Capital, covering such
matters as such parties may reasonably request, and in any
event including a statement to the effect that such
counsel has participated in such conferences as such
counsel shall deem necessary in connection with the
preparation of such Registration Statement and the related
Prospectus and has considered the matters required to be
stated therein and the statements contained therein,
although such counsel has not independently verified the
accuracy, completeness or fairness of such statements; and
that such counsel advises that, on the basis of the
foregoing (relying as to materiality to a large extent
upon facts provided to such counsel by officers and other
representatives of the Company and AT&T Capital and
without independent check or verification), no facts came
to such counsel's attention that caused such counsel to
believe that the applicable Registration Statement, at the
time such Registration Statement or any post-effective
amendment thereto became effective, contained an untrue
statement of a material fact or omitted to state a
material fact required to be stated therein or necessary
to make the statements therein not misleading, or that the
Prospectus contained in such Registration Statement as of
its date, contained an untrue statement of a material fact
or omitted to state a material fact necessary in order to
make the statements therein, in light of the circumstances
under which they were made, not misleading. Without
limiting the foregoing, such counsel may state further
that such counsel assumes no responsibility for, and has
not independently verified, the accuracy, completeness or
fairness of the financial statements, notes and schedules
and other financial data included in any Registration
Statement contemplated by this Agreement or the related
Prospectus and shall take such other exceptions and make
qualifications as are customarily taken or made with
respect to such an opinion; and
(3) a customary comfort letter, dated the date of
the effectiveness of the Shelf Registration Statement,
from the Company's and AT&T Capital's independent
accountants, in the customary form and covering matters of
the type customarily covered in comfort letters by
underwriters in connection with primary underwritten
offerings.
(B) deliver such other documents and certificates as may
be mutually agreeable to the lead underwriter and the Company and
AT&T Capital and which
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are customarily provided by issuers to underwriters in primary
underwritten offerings to evidence compliance with clause (A)
above and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the
Company and AT&T Capital pursuant to this clause (viii); if any.
(ix) in the case of a Shelf Registration, prior to any public
offering of Transfer Restricted Securities, cooperate with the lead
underwriter and its counsel in connection with the registration and
qualification of the Transfer Restricted Securities under the securities
or Blue Sky laws of such jurisdictions as the lead underwriter may
reasonably request and do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdictions of the
Transfer Restricted Securities covered by the Shelf Registration
Statement; provided, however, that neither the Company nor AT&T Capital
shall be required to register or qualify as a foreign corporation where
it is not now so qualified or to take any action with would subject it
to the service of process in suits or to taxation, other than as to
matters and transactions relating to the Registration Statement, in any
jurisdiction where it is not now so subject;
(x) in the case of an Exchange Offer Registration, shall issue,
upon the request of any Holder of Notes covered by the Exchange Offer
Registration Statement, Exchange Notes in the same amount as the Notes
surrendered to the Company by such Holder in exchange therefor or being
sold by such Holder; such Exchange Notes to be registered in the name of
such Holder or in the name of the purchaser(s) of such Exchange Notes,
as the case may be; in return, the Notes held by such Holder shall be
surrendered to the Company for cancellation;
(xi) in the case of a Shelf Registration, cooperate with the
selling Holders and the lead underwriter to facilitate the timely
preparation and delivery of certificates representing Transfer
Restricted Securities to be sold and not bearing any restrictive
legends; and enable such Transfer Restricted Securities to be in such
denominations and registered in such names as the Holder or the
underwriters may request (subject to the terms and conditions of the
Indenture) at least two business days prior to any sale of Transfer
Restricted Securities made by such underwriter(s);
(xii) use its best efforts to cause the Transfer Restricted
Securities covered by the Registration Statement to be registered with
or approved by such other governmental agencies or authorities as may be
necessary (solely with respect to the Company and AT&T Capital) to
enable the seller or sellers thereof or the underwriter(s), if any, to
consummate the disposition of such Transfer Restricted Securities,
subject to the provision contained in clause (ix) above;
(xiii) if any fact or event contemplated to clause (b)(iii)(D)
above shall exist or have occurred, prepare a supplement or
post-effective amendment to the Registration Statement or related
Prospectus (to the extent such information has not already been
disseminated pursuant to the Company's or AT&T Capital's Exchange Act
filings) any document incorporated therein by reference or file any
other required documents so that, as thereafter delivered to the
purchasers of Transfer Restricted Securities, the Prospectus
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will not contain an untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein not
misleading;
(xiv) provide CUSIP numbers for all Transfer Restricted
Securities not later than the effective date of the Registration
Statement as well as take such actions consistent with the terms and
conditions of the Indenture to deliver either certificated or book-entry
Notes;
(xv) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make generally available to
its security holders, as soon as practicable such financial information
as is required by the Indenture;
(xvi) cause the Indenture and the Guarantee to be qualified under
the TIA not later than the effective date of the first Registration
Statement required by this Agreement, and, in connection therewith,
cooperate with the Trustee and the Holders of Notes to effect such
changes to the Indenture and the Guarantee as may be required for such
Indenture and the Guarantee to be so qualified in accordance with the
terms of the TIA (notwithstanding anything contained in this clause
(xvi) the Holders shall obligate themselves to cooperate with the
Company and AT&T Capital to the extent necessary to cause the Indenture
and the Guarantee to be qualified under the TIA); and execute and use
its best efforts to cause the Trustee to execute all documents that may
be required to effect such changes and all other forms and documents
required to be filed with the Commission to enable such Indenture to be
so qualified in a timely manner; and
(xvii) provide promptly to each Holder upon request each document
filed with the Commission pursuant to the requirements of Section 13 and
Section 15 of the Exchange Act.
Each Holder agrees by acquisition of a Transfer Restricted Security
that, upon receipt of any notice from the Company or AT&T Capital of the
existence of any fact of the kind described in Section 6(b)(iii)(D) hereof, such
Holder will forthwith discontinue disposition of Transfer Restricted Securities
pursuant to the applicable Registration Statement until such Holder's receipt of
the copies of the supplemented or amended Prospectus contemplated by Section
6(b)(xiii) hereof, or until it is advised in writing (the "Advice") by the
Company or AT&T Capital that the use of the Prospectus may be resumed, and has
received copies of any additional or supplemental filings that are incorporated
by reference in the Prospectus. If so directed by the Company or AT&T Capital,
each Holder will deliver to the Company (at the Company's expense) all copies,
other than permanent file copies then in such Holder's possession of the
Prospectus covering such Transfer Restricted Securities that was current at the
time of receipt of such notice. In the event the Company or AT&T Capital shall
give any such notice, the time period regarding the effectiveness of such
Registration Statement set forth in Section 3 or 4 hereof, as applicable, shall
be extended by the number of days during the period from and including the date
of the giving of such notice pursuant to Section 6(b)(iii)(D) hereof to and
including the date when each selling Holder covered by such Registration
Statement shall have received the copies of the supplemented or amended
Prospectus contemplated by Section 6(b)(xiii) hereof or shall have received the
Advice.
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<PAGE>
Section 7. Registration Expenses. All reasonable expenses incident to the
Company's and AT&T Capital's performance of or compliance with this Agreement
will be borne by the Company, regardless of whether a Registration Statement
becomes effective, including without limitation: (i) all registration and filing
fees and expenses; (ii) all fees and expenses of compliance with federal
securities and state Blue Sky or securities laws; (iii) all expenses of printing
(including printing certificates for the Exchange Notes to be issued in the
Exchange Offer and printing of Prospectuses), and associated messenger and
delivery services and telephone; (iv) all fees and disbursements of counsel for
the Company; (v) all application and filing fees in connection with listing
Notes on a national securities exchange or automated quotation system; and (vi)
all fees and disbursements of independent certified public accountants of the
Company and AT&T Capital (including the expenses of any special audit and
comfort letters required by or incident to such performance).
The Company will, in any event, bear its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expenses of any annual audit and the
fees and expenses of any person, including special experts, retained by the
Company.
Section 8. Indemnification and Contribution. (a) In connection with a
Shelf Registration Statement or in connection with any delivery of a Prospectus
contained in an Exchange Offer Registration Statement by any participating
Broker Dealer or Initial Purchaser, as applicable, who seeks to sell Exchange
Notes, the Company and AT&T Capital shall jointly and severally indemnify and
hold harmless each Holder of Transfer Restricted Securities included within any
such Shelf Registration Statement and each participating Broker-Dealer or
Initial Purchaser selling Exchange Notes, and each person, if any, who controls
any such person within the meaning of Section 15 of the Securities Act (each, a
"Participant") from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof (including, but not limited to, any
loss, claim, damage, liability or action relating to purchases and sales of
Notes) to which such Participant or controlling person may become subject, under
the Securities Act or otherwise, insofar as such loss, claim, damage, liability
or action arises out of, or is based upon; (i) any untrue statement or alleged
untrue statement of a material fact contained in any such Registration Statement
or any prospectus forming part thereof or in any amendment or supplement thereto
or (ii) the omission or alleged omission to state therein in a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and shall reimburse each participant promptly upon demand for any
legal or other expenses reasonably incurred by such Participant in connection
with investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that (i) neither the Company nor AT&T Capital shall be liable in any
such case to the extent that any such loss, claim, damage, liability or action
arises out of, or is based upon, any untrue statement or alleged untrue
statement or omissions or alleged omission made in any such Registration
Statement or any prospectus forming part thereof or in any such amendment or
supplement in reliance upon and in conformity with written information furnished
to the Company or AT&T Capital by or on behalf of any Participant specifically
for inclusion therein; and provided further that as to any preliminary
Prospectus, the indemnity agreement contained in this Section 8(a) shall not
inure to the benefit of any such Participant or any controlling person of such
Participant on account of any loss, claim, damage, liability or action arising
from the sale of the
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<PAGE>
Exchange Notes to any person by that Participant if (i) that Participant failed
to send or give a copy of the Prospectus, as the same may be amended or
supplemented, to that person within the time required by the Securities Act and
(ii) the untrue statement or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact in such preliminary
Prospectus was corrected in the Prospectus, unless, in each case, such failure
resulted from non-compliance by the Company with Section 6(c). The foregoing
indemnity agreement is in addition to any liability which the Company or AT&T
Capital may otherwise have to any Participant or to any controlling person of
that Participant.
(b) Each Participant, severally and not jointly, shall indemnify and hold
harmless the Company and AT&T Capital, its directors, officers, employees or
agents and each person, if any, who controls the Company or AT&T Capital within
the meaning of Section 15 of the Securities Act, from and against any loss,
claim, damage or liability, joint or several, or any action in respect thereto,
to which the Company or AT&T Capital or any such director, officer, employees or
agents or controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained in any preliminary Prospectus, Registration Statement or
Prospectus or in any amendment or supplement thereto or (ii) 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, but in each case
only to the extent that the untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Company or AT&T Capital by or on behalf of
that Participant specifically for inclusion herein, and shall reimburse the
Company and any such director, officer, employees or agents or controlling
person for any legal or other expenses reasonably incurred by the Company, AT&T
Capital or any such director, officer, employees or agents or controlling person
in connection with investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses are incurred. The
foregoing indemnity agreement is in addition to any liability which any
Participant may otherwise have to the Company, AT&T Capital or any such
director, officer or controlling person.
(c) Promptly after receipt by an indemnified party under this Section 8
of notice of any claim or the commencement of any action, the indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party in writing of the
claim or the commencement of that action; provided, however, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have under this Section 8 except to the extent it has been materially
prejudiced by such failure and, provided, further, that the failure to notify
the indemnifying party shall not relieve it from any liability which it may have
to an indemnified party otherwise than under this Section 8. If any such claim
or action shall be brought against any indemnified party, and it shall have
notified the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
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<PAGE>
thereof other than reasonable costs of investigation; provided, however, that
the indemnified party shall have the right to employ counsel to represent
jointly the indemnified party and those other Participants and its respective
officers, employees and controlling persons who may be subject to liability
arising out of any claim in respect of which indemnity may be sought by the
Participants against the indemnifying party under this Section 8 if, in the
reasonable judgment of the indemnified party it is advisable for the indemnified
party and those Participants, officers, employees and controlling persons to be
jointly represented by separate counsel, and in that event the fees and expenses
of such separate counsel shall be paid by the indemnifying party. In no event
shall the indemnifying parties be liable for the fees and expenses of more than
one counsel (in addition to local counsel where required). Each indemnified
party, as a condition of the indemnity agreements contained in Section 8, shall
use its best efforts to cooperate with the indemnifying party in the defense of
any such action or claim. No indemnifying party shall (i) without the prior
written consent of the indemnified parties (which consent shall not be
unreasonably withheld), settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, comprise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceedings, or (ii) be liable for
any settlement of any such action effected without is written consent (which
consent shall not be unreasonably withheld), but if settled with its written
consent or if there be a final judgment of the plaintiff in any such action, the
indemnifying party agrees to indemnify any hold harmless an indemnified party
from and against any loss or liability by reason of such settlement or
judgement.
(d) If the indemnification provided for in this Section 8 shall for any
reason be unavailable to or insufficient to hold harmless an indemnified party
under Section 8(a) or 8(b) in respect of any loss, claim, damage or liability,
or any action in respect thereof, referred to therein, then each indemnifying
party shall, in lieu of indemnifying such indemnified party, contribute to the
amount paid or payable by such indemnified party as a result of such loss,
claim, damage or liability, or action on respect thereto, in such proportion as
shall be appropriate to reflect the relative fault of the Company and AT&T
Capital on the one hand and the Participants on the other with respect to the
statements or omissions which resulted in such loss, claim, damage or liability,
or action in respect thereof, as well as any other relevant equitable
considerations. The relative fault shall be determined by reference to whether
the untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the
Company, AT&T Capital or the Participants, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company, AT&T Capital and the Participants agree
that it would not be just and equitable if contributions pursuant to this
Section 8(d) were to be determined by pro rata allocation (even if the
Participants were treated as one entity for such purposes) or by any other
method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this Section 8(d) shall be deemed to include, for
purposes of this Section 8(d), any reasonable legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this Section 8(d),
no Participant shall be required to
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contribute any amount in excess of the amount by which proceeds received by such
participant from an offering of the Notes exceeds the amount of any damages
which such Participant has otherwise paid or become liable to pay by reason of
any untrue or alleged untrue statement or omission or alleged omission.
(e) No person guilty or fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to indemnification or
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Participants' obligation to indemnify and contribute as
provided in this Section 8 are several and not joint.
Section 9. Participation in Underwritten Registrations. No Holder may
participate in any Underwritten Registration hereunder unless such Holder (a)
agrees to sell such Holder's Transfer Restricted Securities on the basis
provided in any underwriting arrangements approved by the Persons entitled
hereunder to approve such arrangements and (b) completes and executes all
reasonable questionnaires, powers of attorney, indemnities, underwriting
agreements, lock-up letters and other documents required under the terms of such
underwriting arrangements.
Section 10. Selection of Underwriters. The Holders of Transfer Restricted
Securities covered by the Shelf Registration Statement who desire to do so may
sell such Transfer Restricted Securities in an Underwritten Offering. In any
such Underwritten Offering, the investment banker or investment bankers and
manager or managers that will administer the offering will be selected by the
Company.
Section 11. Miscellaneous.
(a) Remedies. The Company and the Holders agree that monetary damages
(including Liquidated Damages) would not be adequate compensation for any loss
incurred by reason of a breach by either of them of the provisions of this
Agreement and hereby agree to waive the defense in any action for specific
performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company and AT&T Capital will not on
or after the date of this Agreement enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the Holders in this
Agreement or otherwise conflicts with the provision hereof. The rights granted
to the Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the Holders of the Company's and AT&T
Capital's securities under any agreement in effect on the date hereof.
(c) Adjustments Affecting the Notes. The Company and AT&T Capital will
not take any action, or permit any change to occur, with respect to the terms of
the Notes that would materially and adversely affect the ability of the Holders
to Consummate any Exchange Offer unless such action or change is required by
applicable law.
(d) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to or departures from
the provisions hereof may not be given unless the Company has obtained the
written consent of Holders of a majority of the outstanding principal amount of
Transfer Restricted Securities. Notwithstanding the
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foregoing, a waiver or consent to departure from the provisions hereof that
relates exclusively to the rights of Holders whose securities are being tendered
pursuant to the Exchange Offer and does not affect directly or indirectly the
rights of other Holders whose securities are not being tendered pursuant to such
Exchange Offer may be given by the Holders of a majority of the outstanding
principal amount of Transfer Restricted Securities being tendered or registered.
In connection with the determination of whether the requisite number of Holders
has consented to any such amendment, waiver or supplement, the Company may rely
on a list of the names and addresses of such Holders compiled by the Trustee as
Registrar and Paying Agent under the Indenture.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder, at the address of such Holder maintained by
the Registrar under the Indenture; and
(ii) if to the Company
or to AT&T Capital: Glenn A. Votek EVP, Treasurer
Newcourt Credit Group Inc.
2 Gatehall Drive
Parsippany, New Jersey 07054
Facsimile: (973) 355-7019
with a copy to: Scott Moore, Esq.
General Counsel
Newcourt Credit Group Inc.
2 Gatehall Drive
Parsippany, New Jersey 07054
Facsimile: (973) 355-7058
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt acknowledged, if telecopied, and on the
next business day, if timely delivered to an air courier guaranteeing overnight
delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties, including
without limitation and without the need for an express assignment, subsequent
Holders of Transfer Restricted Securities; provided, however, that this
Agreement shall not inure to the benefit of or be binding upon a successor or
assign of a Holder unless and to the extent such successor or assign acquired
Transfer Restricted Securities from such Holder.
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<PAGE>
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to the
conflict of law rules thereof.
(j) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provisions in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(k) Entire Agreement. This Agreement together with the other transaction
documents is intended by the parties as a final expression of their agreement
and intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein. There are no restrictions, promises, warranties or undertakings, other
than those set forth or referred to herein with respect to the registration
rights granted by the Company with respect to the Transfer Restricted
Securities. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
(l) Required Consents. Whenever the consent or approval of Holders of a
specified percentage of Transfer Restricted Securities is required hereunder,
Transfer Restricted Securities held by the Company or its affiliates (as such
term is defined in Rule 405 under the Securities Act) shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
NEWCOURT CREDIT GROUP INC.
By
Printed Name:
--------------------------
Title:
---------------------------------
AT&T CAPITAL CORPORATION
By
Printed Name:
--------------------------
Title:
---------------------------------
ACCEPTED as of the date thereof
By: LEHMAN BROTHERS INC.
By
------------------------------------
Printed Name:
-----------------------
Title:
------------------------------
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UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
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.
No. R-1 CUSIP NO. 650905AF9
NEWCOURT CREDIT GROUP INC.
6.875% EXCHANGE NOTE, SERIES B DUE FEBRUARY 16, 2005
Original Issue Date: November ____, 1999
Issue Price: 100%
Interest Rate: 6.875%
Maturity Date: February 16, 2005
Principal Amount: $200,000,000
Newcourt Credit Group Inc, a corporation organized under the laws of the
Province of Ontario (herein referred to as the "Company") for value received,
hereby promises to pay to Cede & Co. or registered assigns, the principal sum of
two hundred million dollars (U.S. $200,000,000), or such other amount as is
indicated on Schedule A hereof, on the Maturity Date shown above and to pay
interest thereon at the rate per annum shown above until the principal hereof is
paid or made available for payment. The Company will pay interest semiannually
on February 16 and August 16 (each an "Interest Payment Date"), commencing with
the Interest Payment Date immediately following the Original Issue Date shown
above, and on the Maturity Date shown above. If an Interest Payment Date, a
redemption date or the Maturity Date would otherwise be a day that is not a
Business Day, the payment due on such day will be made on the next succeeding
Business Day, and no interest shall accrue for the intervening period. Interest
on this Note will accrue from the most recent Interest Payment Date to which
interest has been paid or duly provided for or, if no interest has been paid or
duly provided for, then from the last interest payment date for the Company's
6.875% Notes, Series B due February 16, 2005. The amount of interest payable on
any Interest Payment Date shall be computed on the basis of a year of twelve
30-day months. The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in the Indenture referred to
below, be paid to the person in whose name this Note is registered at the close
of business on the Record Date for such
<PAGE>
Interest Payment Date which shall be the February 1 or August 1 (whether or not
a Business Day), as the case may be, next preceding such Interest Payment Date;
provided, however, that interest payable on the Maturity Date (whether or not
such date is an Interest Payment Date) shall be payable to the person to whom
principal shall be payable. Payment of the principal of and interest on this
Note will be made at the office or agency of the Company maintained for that
purpose in the Borough of Manhattan, The City of New York, State of New York, in
such coin or currency of the United States of America as at the time of payment
shall be legal tender for payment of public and private debts; provided,
however, that at the option of the Company payment of interest other than
interest due at the Maturity Date shown above may be made by check mailed to the
address of the person entitled thereto as such address shall appear in the
Security Register. "Business Day" means any day, other than a Saturday or a
Sunday, and that is neither a legal holiday nor a day on which banking
institutions are authorized or required by law or regulation to close in The
City of New York. This note is guaranteed as to payment of principal, premium,
if any, and interest (including Additional Amounts and Liquidated Damages, if
any) by AT&T Capital Corporation (the "Guarantor").
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET FORTH
ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE
SAME EFFECT AS IF SET FORTH IN THIS PLACE.
This Note shall not be valid or become obligatory for any purpose until the
certificate of authentication hereon shall have been executed by the Trustee
under the Indenture referred to herein.
-2-
<PAGE>
IN WITNESS WHEREOF, Newcourt Credit Group Inc. has caused this instrument
to be duly executed.
Dated: November ____, 1999 NEWCOURT CREDIT GROUP INC.
By:
----------------------------
Attest
-------------------------------
CERTIFICATE OF AUTHENTICATION
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
<PAGE>
[REVERSE OF NOTE]
This note is one of a duly authorized issue of Securities of the Company
(herein referred to as the "Securities"), issued and to be issued in one or more
series under and pursuant to an Indenture dated as of February 15, 1999 (as
amended, restated or supplemented from time to time, the "Indenture"), among the
Company, AT&T Capital Corporation (the "Guarantor") and The Chase Manhattan
Bank, as Trustee (the "Trustee"), to which Indenture and all indentures
supplemental thereto reference is hereby made for description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Trustee, the Company, the Guarantor and the Holders (the words "Holders" or
"Holder" meaning the registered holders or registered holder) of the Securities.
This note is one of the series of Securities designated as 6.875% Notes, Series
B due February 16, 2005 (herein referred to as the "Notes"). The Guarantor has
guaranteed the payment of principal, premium, if any, and interest (including
Additional Amounts and Liquidated Damages, if any) on the Notes and reference is
hereby made to the Guarantee dated as of February 15, 1999 by the Guarantor in
favor of the Trustee for the benefit of the Holders of the Securities for a
complete description of the terms of such Guarantee.
In case an Event of Default with respect to the Notes, as defined in the
Indenture, shall have occurred and be continuing, the principal hereof may be
declared, and upon such declaration shall become due and payable in the manner,
with the effect and subject to the conditions provided in the Indenture.
All payments of principal of and interest on this Note will be made free
and clear of and without withholding or deduction for or on account of any
present or future tax, duty, levy, impost, assessment or other governmental
charge imposed or levied by or on behalf of the Government of Canada or of any
province or territory thereof or by any authority or agency therein or thereof
having power to tax ("Taxes"), unless the Company is required to withhold or
deduct Taxes by law or by the interpretation or administration thereof. If the
Company is so required to withhold or deduct any amount for or on account of
Taxes from any payment made under or with respect to this Note, the Company will
pay such additional amounts ("Additional Amounts") as may be necessary so that
the net amounts received by the Holder of this Note (including Additional
Amounts) after such withholding or deduction will not be less than the amount
the Holder of this Note would have received if such Taxes had not been withheld
or deducted; provided that no such Additional Amounts shall be payable with
respect to a payment made to a Holder of Notes:
(i) with which the Company does not deal at arm's length (within the
meaning of the Income Tax Act (Canada)) at the time of making such payment;
(ii) which is subject to such Taxes by reason of its being connected
with Canada or any province or territory thereof otherwise than by the mere
holding of Notes or the receipt of payment thereunder; or
(iii) who could lawfully avoid (but has not so avoided) such deduction
or withholding by complying, or procuring that any third party complies
with any statutory
<PAGE>
requirements or by making or procuring that a third party makes a
declaration of non-residence or other similar claim for exemption to the
relevant tax authority.
The Company will also (i) make such withholding or deduction and (ii) remit
the full amount deducted or withheld to the relevant authority in accordance
with applicable law. The Company will furnish to the Trustee within 30 days
after the date the payment of any Taxes is due pursuant to applicable law,
certified copies of tax receipts evidencing such payment by the Company.
Any reference herein to principal or interest shall be deemed also to refer
to any Additional Amounts which may be payable under this provision.
Except as provided in this paragraph, this Note may not be redeemed prior
to the Maturity Date and this Note shall not be subject to repayment at the
option of the holder prior to the Maturity Date. If the Company shall determine
that it has or will become obligated to pay Additional Amounts, then the Company
may, at its option, or shall, if required, redeem this Note in accordance with
Section 4.01 of the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company or the Guarantor and the rights of the Holders of the Securities of each
series to be affected under the Indenture at any time by the Company, the
Guarantor and the Trustee with the consent of the Holders of a majority in
principal amount of the outstanding Securities of each series affected by any
such amendment or modification (with each series voting as one class). The
Indenture also contains provisions permitting the Holders of not less than a
majority in principal amount of the outstanding Securities of each series
affected thereby (with each series voting as one class), on behalf of the
Holders of all Securities of such series, to waive compliance by the Company or
the Guarantor with certain provisions of the Indenture. The Indenture also
provides that, regarding the Securities of any series, the Holders of not less
than a majority in principal amount of the outstanding Securities of such series
way waive certain past defaults and their consequences on behalf of the Holders
of all Securities of such series. Any such consent or waiver by the Holder of
this Note shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note issued upon registration of transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such consent
or waiver is made upon this Note.
The Indenture contains provisions setting forth certain conditions to the
institution of proceedings by Holders of Securities with respect to the
Indenture or for any remedy under the Indenture.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the place, at the respective times, at the rate and in the coin or currency
herein prescribed.
-2-
<PAGE>
The Notes are issuable as registered Notes without coupons in denominations
that are integral multiples of U.S. $1,000. At the corporate trust office of the
Trustee in the Borough of Manhattan, The City of New York and in the manner and
subject to the limitations provided in the Indenture, Notes may be exchanged
without service charge for a like aggregate principal amount of Notes of other
authorized denominations.
Upon due presentment for registration of transfer of this Note at the
office or agency of the Company referred to above, a new Note or Notes of
authorized denominations for a like aggregate principal amount will be issued to
the transferee as provided in the Indenture. No service charge shall be made for
any such transfer, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereof.
The Company, the Guarantor, the Trustee, and any agent of the Company, the
Guarantor, or the Trustee may deem and treat the Holder hereof as the absolute
owner hereof (whether or not this Note shall be overdue and notwithstanding any
notation of ownership or other writing hereof) for the purpose of receiving
payment of or on account of the principal hereof and, subject to the provisions
on the face hereof, interest hereon, and for all purposes, and neither the
Company, the Guarantor, nor the Trustee nor any such agent shall be affected by
any notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Note, or for any claim based hereon, or otherwise in respect
hereof, or based on or in respect of the Indenture or any indenture supplemental
thereto, against any incorporator, shareholder, officer or director as such,
past, present or future, of the Company, of the Guarantor or of any successor
corporations or Persons, either directly or through the Company, the Guarantor
or any successor corporation or Person, whether by virtue of any constitution,
statute or rule of law or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as part of the
consideration for the issue hereof, expressly waived and released.
This Note shall be deemed to be a contract made under the laws of the State
of New York and for all purposes shall be governed by and construed in
accordance with the laws of said State.
All terms used in this Note which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
-3-
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<S> <C>
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants in common
</TABLE>
UNIF GIFT MIN ACT - __________________________ Custodian ______________________
(Cust) (Minor)
Under Uniform Gifts to Minor Act ___________________________
(State)
Additional abbreviations may also be used though not in the above list
<PAGE>
ASSIGNMENT FORM
To assign this Note, fill in the form below:
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE]
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
[PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING ZIP CODE, OF ASSIGNEE]
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing such person attorney to transfer such Note on the books of the
Company, with full power of substitution in the premises.
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within Note in every particular without
alteration or enlargement or any change whatsoever.
Your Signature:_________________________________________________________________
(Sign exactly as your name appears on the other side of this Note)
Date:_______________________
Signature Guarantee:____________________________________________________________
-2-
<PAGE>
SCHEDULE A
SCHEDULE OF PRINCIPAL AMOUNT
The initial principal amount of this Global Note shall be $200,000,000. The
following increases or decreases in the principal amount of this Global Note
have been made:
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------
AMOUNT OF DECREASE IN AMOUNT OF INCREASE PRINCIPAL AMOUNT OF SIGNATURE OF DATE OF EXCHANGE
PRINCIPAL AMOUNT OF IN PRINCIPAL AMOUNT THIS GLOBAL NOTE AUTHORIZED OFFICER FOLLOWING SUCH
THIS GLOBAL NOTE OF THIS GLOBAL NOTE OF TRUSTEE OR NOTES DECREASE OR INCREASE
CUSTODIAN
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
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</TABLE>
<PAGE>
[LETTERHEAD OF BLAKE, CASSELS & GRAYDON]
October 15, 1999
The Chase Manhatten Bank
as Indenture Trustee on behalf of the holders
of the Debt Securities (as defined below)
450 West 33rd Street
New York, NY 10001
Dear Sirs:
RE: U.S. $1,000,000,000 6.875% EXCHANGE NOTES, SERIES B DUE
FEBRUARY 16, 2005
We are Canadian counsel for Newcourt Credit Group Inc. ("Newcourt"), a
corporation incorporated under the laws of the Province of Ontario.
Materials Reviewed
We have examined originals, or copies certified or otherwise identified to
our satisfaction, of Newcourt's Restated Articles of Incorporation dated
February 8, 1996 and the Articles of Amendment dated March 26, 1997 (the
"Articles"), by-laws No. 1 and No. 4 (the "By-Laws", together with the Articles,
collectively the "Constating Documents") and the resolutions of the Executive
Committee of the Board of Directors of Newcourt dated February 10, 1999 and the
resolutions of the Board of Directors of Newcourt dated February 8, 1999,
authorizing the issuance of the Debt Securities referred to herein.
We did not participate in the negotiation or preparation of, nor have we
reviewed, the indenture dated as of February 15, 1999 (the "Indenture") and the
Registration Statement referred to herein.
Definitions
In this opinion, terms defined in the Indenture and not otherwise defined
in this opinion have the same meaning as in the Indenture.
Assumptions and Fact Reliance
We have examined originals or copies, certified or otherwise identified to
our satisfaction, of such public and corporate records, certificates,
instruments and other documents and have considered such questions of law as we
have deemed relevant and necessary as a basis
<PAGE>
for the opinions expressed below in this opinion. In such examination, we
have assumed the genuineness of all signatures, the authenticity of all
documents submitted to us as originals and the conformity to authentic original
documents of all documents submitted to us as copies, whether facsimile,
photostatic, certified or otherwise.
We have assumed that each party to the Indenture (other than Newcourt) has
duly authorized, executed and delivered the Indenture and that, other than in
respect of Newcourt, the Indenture constitutes valid and binding obligations of
such parties enforceable against each of them in accordance with its terms.
We have, with your permission, relied upon a certificate of an officer of
Newcourt, a copy of which has been delivered to you and is attached to this
opinion, with respect to the accuracy of the factual matters contained therein,
which factual matters we believe to be true but which factual matters have not
been independently investigated or verified by us.
We have relied upon a certificate of status relative to Newcourt and have,
with your permission, assumed that such certificate of status continues to be
accurate as of the date of this opinion.
Delivery and Benefit
This opinion is being delivered to you in connection with the exchange
offer as described in the Registration Statement on Form F-4 expected to be
dated October 15, 1999 (the "Registration Statement") to be filed by Newcourt
and AT&T Capital Corporation with the United States Securities and Exchange
Commission relating to the registration of Newcourt's U.S. $1,000,000,000 6.875%
Exchange Notes, Series B Due February 16, 2005 (the "Debt Securities") to be
issued in replacement of, and evidencing the same indebtedness as, the U.S.
$1,000,000,000 6.875% Notes, Series B due February 16, 2005 issued by Newcourt
on February 15, 1999.
Opinions
Based and relying upon the foregoing, and subject to the qualifications
hereinafter expressed, we are of the opinion that:
1. Newcourt is a company which is validly existing under the laws of the
Province of Ontario.
2. Newcourt has all necessary corporate power and corporate capacity to
execute and deliver the Debt Securities and to perform its obligations
under the Debt Securities. The execution and delivery of the Debt
Securities and the performance by Newcourt of its obligations thereunder
have been duly authorized by all necessary corporate action on the part of
Newcourt.
3. The execution and delivery by Newcourt of the Debt Securities does not
contravene or result in a breach of or constitute a default under any of
the Constating Documents of Newcourt or
<PAGE>
any law or regulation of either the Province of Ontario or the federal
laws of Canada binding on or applicable to Newcourt.
4. The performance by Newcourt of its obligations under the Debt Securities
does not and will not contravene or constitute a default under any of the
Constating Documents of Newcourt.
5. No further authorization, approval or other action by, and no further
notice to or filing with, any governmental authority or regulatory body in
the Province of Ontario is required for or in connection with the execution
and delivery by Newcourt of the Debt Securities and the performance by
Newcourt of its obligations under the Debt Securities.
Qualifications
The opinions expressed above are subject to the qualification that this
opinion is limited to the laws of the Province of Ontario and the federal laws
of Canada applicable in such Province in existence on the date hereof. The
opinions expressed above are not, and should not be construed as, opinions as to
the enforceability of the Debt Securities given that the Debt Securities and the
Indenture are governed by, and subject to, the laws of the State of New York.
Consent to Filing
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement and to all references to us or this opinion included in
or made a part of the Registration Statement. In giving such consent, we do not
concede that we are experts 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.
Yours truly,
/s/ Blake, Cassels & Graydon
Blake, Cassels & Graydon
<PAGE>
[WILENTZ GOLDMAN & SPITZER LETTERHEAD]
October 15, 1999
The Chase Manhattan Bank
as Indenture Trustee on behalf of the holders
of the Exchange Notes (as defined below)
450 West 33rd Street
New York, New York 10001
RE: U.S. $1,000,000,000 6.875% EXCHANGE NOTES SERIES B DUE FEBRUARY 16, 2005
Ladies and Gentlemen:
We have acted as special counsel to Newcourt Credit Group Inc., an
Ontario corporation ("Newcourt"), and AT&T Capital Corporation, a Delaware
corporation ("AT&T Capital"), for purposes of rendering the opinions hereinbelow
set forth.
We refer to the Registration Statement on Form F-4 (the "Registration
Statement") being filed by Newcourt and AT&T Capital with the Securities and
Exchange Commission under the Securities Act of 1933, as amended (the
"Securities Act"), relating to the registration of Newcourt's U.S.
$1,000,000,000 6.875% Exchange Notes, Series B, Due February 16, 2005 (the
"Exchange Notes") guaranteed as to payment of principal, premium, if any, and
interest by AT&T Capital pursuant to the Guarantee dated as of February 15, 1999
(the "Guarantee") issued by AT&T Capital in favor of The Chase Manhattan Bank,
as trustee (the "Trustee"). The Exchange Notes are to be issued under the
Indenture dated as of February 15, 1999 (the "Indenture") among Newcourt, AT&T
Capital and the Trustee. Newcourt and AT&T Capital intend to offer, upon the
terms and subject to the conditions set forth in the Registration Statement, to
exchange (the "Exchange Offer") $1,000,000,000 principal amount of the Exchange
Notes for each $1,000,000,000 principal amount of its 6.875% Notes Series
<PAGE>
[WILENTZ GOLDMAN & SPITZER LETTERHEAD] The Chase Manhattan Bank
October 15, 1999
Page 2
B Due February 16, 2005 (the "Old Notes"), of which $1,000,000,000 aggregate
principal amount is outstanding.
This opinion is being delivered to you pursuant to the requirements of
Item 601(b)(5) of Regulation S-K under the Securities Act.
In connection with rendering this opinion, we have examined (i) an
executed copy of the Indenture, (ii) the form of the Exchange Notes and (iii)
the form of Guarantee (the documents described in clauses (i) through (iii)
above are collectively hereinafter referred to as the "Documents"), and we have
made such further investigation of fact and law as we deemed necessary and
appropriate.
In our examination, we have assumed the legal capacity of all natural
persons, 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 rendering this opinion, we have assumed that all parties
executing the Documents have the power, corporate or other, to enter into and
perform all obligations thereunder and have also assumed the due authorization
by all requisite action, corporate or other, authentication, to the extent
required by the terms of the Documents, and due execution and delivery by such
parties of such Documents. We have assumed that the execution and delivery of
the Documents will not violate any agreement or instrument then binding on
Newcourt and/or AT&T Capital or any applicable law governing and/or regulating
Newcourt and/or AT&T Capital. We have assumed that Canadian Law (as hereinafter
defined) to the extent applicable to the execution, delivery, issuance, offering
and/or sale of the Exchange Notes, the Guarantee and/or the Indenture has been
complied with. As to any facts material to the opinions expressed herein which
we did not independently establish or verify, we have relied upon the accuracy
and completeness of the representations of Newcourt and AT&T Capital contained
in the documents reviewed by us. Additionally, we have assumed that at the time
of the issuance of the Exchange Notes, the Registration Statement, as finally
amended, shall have been declared effective under the Securities Act of 1933, as
amended (the "Securities Act") and no stop order suspending the effectiveness of
the Registration Statement shall be in effect and no proceeding for that purpose
shall have been initiated or threatened by the Securities and Exchange
Commission and any prospectus or prospectus supplement required to be delivered
to a purchaser thereof pursuant to the Securities Act shall have been duly
delivered. We have further assumed that at the time of the issuance of the
Exchange Notes, the Indenture shall have been qualified under the Trust
Indenture Act of 1939, as amended. Notwithstanding anything contained herein to
the contrary, no assumption or limitation hereinafter set forth in this opinion
shall be construed to limit or otherwise affect any assumptions or limitations
hereinbefore set forth in this opinion.
Based upon the foregoing, and subject to the assumptions,
qualifications, and limitations set forth herein, we are of the opinion that,
when the Exchange Notes have been duly executed, delivered
<PAGE>
[WILENTZ GOLDMAN & SPITZER LETTERHEAD] The Chase Manhattan Bank
October 15, 1999
Page 3
and authenticated as specified in the Indenture and delivered against payment
therefor in accordance with the terms and conditions of the Exchange Offer:
(i) the Exchange Notes will constitute valid and binding
obligations of Newcourt enforceable in accordance with their terms; and
(ii) the Guarantee will constitute the valid and binding
obligation of AT&T Capital enforceable in accordance with its terms.
The foregoing opinions 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.
The opinions set forth in this letter are limited to the laws of the
State of New York. In addition, without limiting the foregoing sentence, we
express no opinion as to (i) the laws of Canada, its provinces or any political
subdivision thereof ("Canadian Law"), (ii) compliance by any party with the
provisions of the United States federal securities laws, including the
Securities Act, applicable to the issuance, offer and/or sale of any of the
Exchange Notes or the Guarantee and (iii) the application of the securities or
blue sky laws of the various states to the issuance, offer and/or sale of the
Exchange Notes or the Guarantee or compliance by any party therewith.
This opinion letter is rendered as of the date hereof and we undertake
no, and disclaim any, obligation to advise you of any changes in any matter set
forth herein, regardless of whether changes in such matters come to our
attention after the date hereof. We hereby consent to the filing of this opinion
as an Exhibit to the Registration Statement and to all references to this firm
or this opinion included in or made a part of the Registration Statement. In
giving such consent, we do not concede that we are experts 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. Except as set forth in the
preceding sentence, this opinion may not be quoted, filed with any governmental
authority or other regulatory agency or otherwise circulated or relied upon by
other than the addressee hereof or for any other purpose without out prior
written consent.
Very truly yours,
WILENTZ, GOLDMAN & SPITZER, P.A.
<PAGE>
[AT&T CAPITAL LETTERHEAD]
October 15, 1999
The Chase Manhattan Bank
as Indenture Trustee on behalf of the holders
of the Debt Securities (as defined below)
450 West 33rd Street
New York, NY 10001
Re: U.S. $1,000,000,000 6.875% Exchange Notes, Series B Due February 16, 2005
-----------------------------------------------------------------------------
Ladies and Gentlemen:
I am Assistant General Counsel-Treasury to AT&T Capital Corporation, a
corporation organized under the laws of the State of Delaware ("AT&T Capital").
This opinion is being delivered in my capacity as an officer of AT&T Capital and
not in my personal capacity.
I refer to the Registration Statement on Form F-4 (the "Registration
Statement") being filed by Newcourt Credit Group Inc.("Newcourt") and AT&T
Capital, with the Securities and Exchange Commission under the Securities Act of
1933, as amended (the "Securities Act"), relating to the registration of
Newcourt's U.S. $1,000,000,000 6.875% Exchange Notes, Series B Due February 16,
2005 (the "Debt Securities") guaranteed (the "Guarantees") as to payment of
principal, premium, if any, and interest by AT&T Capital pursuant to the
Guarantee dated as of February 15, 1998 (the "Guarantee") issued by AT&T Capital
in favor of The Chase Manahattan Bank, as trustee (the "Trustee"). The Debt
Securities are to be issued under the Indenture dated as of February 15, 1998
(the "Indenture") between Newcourt and the Trustee. Newcourt and AT&T Capital
intend to offer, upon the terms and subject to the conditions set forth in the
Registration Statement, to exchange (the "Exchange Offer") $1,000 principal
amount of the Debt Securities for each $1,000 principal amount of its 6.875%
Notes, Series B Due February 16, 2005 (the "Old Notes"), of which $1,000,000,000
aggregate principal amount is outstanding.
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 the Guarantees 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.
<PAGE>
October 15, 1999
Page 2
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 me as originals, the conformity to original documents of all
documents submitted to me 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 Newcourt or AT&T Capital, I have
assumed that such parties had the power, corporate or other, to enter into and
perform all obligations thereunder and have also 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. 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.
Based on the foregoing, I am of the opinion that when (i) the Registration
Statement, as finally amended, shall have become effective under the Securities
Act and the Indenture shall have been qualified under the Trust Indenture Act of
1939, as amended and (ii) the Debt Securities shall have been duly executed and
authenticated as provided in the Indenture and shall have been duly delivered to
the holders of the Old Notes in accordance with the terms and conditions of the
Exchange Offer, the Guarantees will constitute legally valid and binding
obligations of AT&T Capital enforceable in accordance with the terms of the
Guarantees (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 exchange of the Debt
Securities.
This opinion is limited to the laws of the United States of America and
Delaware corporate law, and I express no opinion with respect to the laws of any
state or other jurisdiction. I hereby inform you that I am admitted to practice
law only in the State of New Jersey.
My 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 my opinions herein, regardless of whether changes in such
facts or laws come to my attention after the delivery hereof.
<PAGE>
October 15, 1999
Page 3
I hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement and to all references to me or this opinion 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,
/s/ Eric S. Mandelbaum
------------------------------------
Eric S. Mandelbaum
Assistant General Counsel-Treasury
to AT&T Capital Corporation
<PAGE>
[LETTERHEAD OF SIDLEY & AUSTIN]
October 15, 1999
Newcourt Credit Group Inc.
Newcourt Centre
207 Queens Quay West
Suite 700
Toronto, Ontario, Canada M5J 1A7
AT&T Capital Corporation
2 Gatehall Drive
Parsippany, New Jersey 07054
The Chase Manhattan Bank
as Indenture Trustee on behalf of the holders
of the 6.875% Exchange Notes, Series B
450 West 33rd Street
New York, New York 10001
Re: Registration Statement on Form F-4
Registration No. 333-82913
Dear Ladies and Gentlemen:
You have requested our opinion as to the material United States
federal income tax consequences expected to result to holders from the exchange
of 6.875% Notes, Series B for 6.875% Exchange Notes, Series B of Newcourt Credit
Group Inc. pursuant to an exchange offer as set forth in the Prospectus (the
"Prospectus") included in Amendment No. 1 to the referenced Registration
Statement on Form F-4 and exhibits thereto filed with the Securities and
Exchange Commission (as amended, the "Registration Statement"). Capitalized
terms not defined herein shall have the meanings ascribed to them in the
Prospectus.
Based on the facts as set forth in the Prospectus, it is our
opinion that the material United States federal income tax consequences expected
to result to holders whose 6.875% Notes, Series B are exchanged for 6.875%
Exchange Notes, Series B in the exchange offer, under
<PAGE>
[LETTERHEAD OF SIDLEY & AUSTIN]
Newcourt Credit Group Inc.
AT&T Capital Corporation
The Chase Manhattan Bank
October 15, 1999
Page 2
currently applicable law, are as stated under the caption "United States Federal
Income Tax Considerations" in the Prospectus included in the Registration
Statement.
This opinion expresses our view as to the federal income tax laws
in effect as of the date hereof, including the Internal Revenue Code of 1986, as
amended, applicable Treasury Regulations promulgated thereunder, judicial
authority and current administrative rulings and practice of the Internal
Revenue Service, all of which are subject to change either prospectively or
retroactively. Also, any variation or difference in the facts as incorporated
herein might affect the conclusion stated herein.
We consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not consider that we are
"experts", within the meaning of the term as used in the Securities Act or the
rules and regulations of the Securities and Exchange Commission issued
thereunder, with respect to any part of the Registration Statement, including
this opinion as an exhibit or otherwise.
We express no opinion as to the laws of any jurisdiction other
than the federal income tax laws of the United States of America, nor do we
express any opinion, either implicitly or otherwise, on any issue not expressly
addressed above.
Very truly yours,
/s/ Sidley & Austin
<PAGE>
EXHIBIT 8B
[BLAKE, CASSELS & GRAYDON LETTERHEAD]
October 15, 1999
Newcourt Credit Group Inc.
Newcourt Centre
207 Queens Quay West
Suite 700
Toronto, Ontario
M5J 1A7
- - and -
The Chase Manhattan Bank
as Indenture Trustee on behalf of the holders of the
Replacement Notes (as defined below)
450 West 33rd Street New York, NY 10001 U.S.A.
Dear Ladies and Gentlemen:
RE: ISSUE OF $1,000,000,000 6.875% EXCHANGE NOTES, SERIES B DUE FEBRUARY 16,
2005
- --------------------------------------------------------------------------------
We have acted as special Canadian tax counsel to Newcourt
Credit Group Inc., an Ontario Corporation ("Newcourt" or the "Corporation"), in
connection with Newcourt's offer, pursuant to a prospectus dated the date hereof
(the "Prospectus"), to replace $1,000,000,000 aggregate principal amount of
6.875% Notes, Series B due February 16, 2005 (the "Notes") issued pursuant to an
Offering Memorandum dated February 10, 1999 (the "Offering Memorandum") with
$1,000,000,000 aggregate principal amount of 6.875% Exchange Notes, Series B due
February 16, 2005 (the "Replacement Notes"). The Replacement Notes are not being
offered to residents of Canada. All capitalized terms used and not otherwise
defined herein shall have the respective meanings set forth in the Offering
Memorandum.
As special Canadian tax counsel to the Corporation, we have
reviewed the Prospectus and have participated, to the extent necessary in that
capacity, together with Chapman and Cutler, counsel to the Initial Purchasers,
in the preparation of the following documents:
(a) the Indenture dated as of February 15, 1999 among the
Corporation, AT&T Capital Corporation and The Chase Manhattan
Bank, as Trustee under the Indenture;
<PAGE>
BLAKE, CASSELS & GRAYDON PAGE 2
(b) the Guarantee dated as of February 15, 1999 by AT&T Capital
Corporation to and in favour of The Chase Manhattan Bank, as
Trustee under the Indenture,
(c) the Offering Memorandum; and
(d) a Form of Note dated February 16, 1999.
We have also reviewed an executed copy of, but not
participated in the preparation of, the following documents:
(a) the Purchase Agreement dated February 10, 1999 among the
Corporation, AT&T Capital Corporation and Lehman Brothers
Inc., as representative of the Initial Purchasers; and
(b) the Registration Rights Agreement dated February 10, 1999
among the Corporation, AT&T Capital Corporation and Lehman
Brothers Inc., as representative of the Initial Purchasers.
For the purposes of the opinion set forth below, we have
assumed with respect to all documents examined by us, the genuineness of all
signatures, the authenticity of all documents submitted to us as originals and
the conformity to authentic original documents of all documents submitted to us
as certified, conformed, telecopied or photostatic copies.
In delivering the opinion set forth below, we have relied upon
a reliance letter dated the date hereof and a letter of opinion dated February
16, 1999 from Chapman and Cutler addressed to us and the Corporation,
respectively.
Furthermore, in delivering our opinion, we have relied upon
the current provisions of the Income Tax Act (Canada) (the "Tax Act"), the
regulations thereunder (the "Regulations") and the Canada-United States Income
Tax Convention, 1980 (the "Convention"), in force as at the date hereof, all
specific proposals to amend the Tax Act and the Regulations publicly announced
by the Department of Finance (Canada) prior to the date hereof and our
understanding as to changes to such proposals which will be recommended by the
Department of Finance (Canada) (the "Proposed Amendments"), and our
understanding of the published administrative and assessing practices of Revenue
Canada, Customs, Excise & Taxation as at the date hereof. However, there can be
no assurance that the Proposed Amendments will be enacted in the form proposed
or at all. Except for the Proposed Amendments, the opinion set forth below does
not take into account or anticipate any changes in law or administrative
practice, whether by legislative, governmental or judicial action, which may
occur on or after the date hereof, nor does it take into account Canadian
provincial or territorial or any non-Canadian tax considerations, which may
differ significantly from those discussed herein.
The opinion set forth below applies only to a person (a
"Holder") who acquires Replacement Notes pursuant to the Prospectus in
replacement of Notes acquired by the Holder
<PAGE>
BLAKE, CASSELS & GRAYDON PAGE 3
pursuant to the Offering Memorandum and who, for purposes of the Tax Act and the
Convention and at all relevant times, is resident in the United States and not
resident or deemed to be resident in Canada, deals at arm's length with the
Corporation, holds Replacement Notes as capital property, does not use or hold
and is not deemed to use or hold Replacement Notes in or in the course of
carrying on a business in Canada and, in the case of such a person who carries
on an insurance business in Canada and elsewhere, establishes that the
Replacement Notes are not effectively connected with its Canadian insurance
business.
The opinion hereafter expressed is limited to the laws of the
Province of Ontario and the federal laws of Canada applicable therein.
Based and relying on the foregoing and subject to the
qualifications expressed herein and in the Prospectus, we are of the opinion
that, as at the date hereof, the statements contained in the section of the
Prospectus titled "Canadian Federal Income Tax Considerations", to the extent
that they concern matters of Canadian federal income tax law, are correct in all
material respects.
We consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not consider that we are
"experts", within the meaning of the term as used in the Securities Act (United
States of America) or the rules and regulations of the Securities and Exchange
Commission issued thereunder, with respect to any part of the Registration
Statement, including this opinion as an exhibit or otherwise.
This opinion letter is addressed to you solely for your
benefit in connection with the replacement of the Notes with Replacement Notes
further to the Prospectus and is limited in all respects to (i) the specific
issues addressed herein and (ii) laws and interpretations thereof existing on
the date hereof. We do not undertake to update this opinion to account for
changes in such laws or interpretations on or after the date hereof. This
opinion may be relied upon by you solely in connection with the transactions
contemplated herein and is not to be relied upon by any other person or for any
other purpose.
Yours very truly,
/s/ Blake Cassels & Graydon
<PAGE>
$1,000,000,000 6.875% NOTES, SERIES B
DUE FEBRUARY 16, 2005
OF
NEWCOURT CREDIT GROUP INC.
PURCHASE AGREEMENT
February 10, 1999
Lehman Brothers Inc., as Representative of
the Several Initial Purchasers named in Schedule I hereof
Three World Financial Center
New York, New York 10285
Ladies and Gentlemen:
Each of the undersigned, Newcourt Credit Group Inc. ("Newcourt" or the
"Company") and its indirect wholly-owned subsidiary, AT&T Capital Corporation
("AT&T Capital"), hereby confirms its agreement (this "Agreement") with you as
the Representative of the several Initial Purchasers named in Schedule I hereof
(hereinafter collectively referred to herein as the "Initial Purchasers")
concerning the sale of the Notes as follows:
1. Description of Notes. Newcourt proposes to issue
$1,000,000,000 principal amount of its Notes, Series B, due February
16, 2005 (the "Notes") under an Indenture dated as of February 15,
1999, (as amended, restated or supplemented from time to time, the
"Indenture"), among Newcourt, AT&T Capital and The Chase Manhattan
Bank, Trustee (the "Trustee"). The Notes will contain the terms set
forth on Schedule II hereto. The Notes will be guaranteed as to payment
of principal, premium, if any, and interest pursuant to the guarantee
dated as of February 15, 1999 made by AT&T Capital to the Trustee (the
"Guarantee"). The Notes will be offered without being registered under
the Securities Act of 1933, as amended (the "Securities Act"), in
reliance on exemptions therefrom. The term "Memorandum" means the final
offering memorandum relating to the Notes and the Guarantee. The Notes
and the Guarantee are more fully described in the Memorandum. On the
Closing Date, the parties hereto will execute and deliver the
Registration Rights Agreement (the "Registration Rights Agreement")
relating to the Notes, substantially in the form attached hereto as
Exhibit A.
2. Representations and Warranties of the Company. The
Company and AT&T Capital jointly and severally represent and warrant to
the several Initial Purchasers that:
(a) The Memorandum, as of its date did not and at
the Closing Date will not, contain any untrue statement of a
material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that the
representations and warranties set forth in this Section 2(a)
do not apply to statements or omissions in
<PAGE>
the Memorandum based upon information furnished to Newcourt
or AT&T Capital in writing by an Initial Purchaser through
the Representative specifically for use therein ("Provided
Information"). Reference herein to the Memorandum shall be
deemed to refer to and include any document filed by
Newcourt or AT&T Capital under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), on or before the
Closing Date, which is incorporated in the Memorandum by
reference.
(b) Assuming the offer, issue, sale and delivery of
the Notes occurs in the manner and under the circumstances
contemplated in this Agreement and the Memorandum, the issue
and sale of the Notes and the Guarantee are exempt from the
registration requirements of Section 5 of the Securities Act
pursuant to Section 4(2) of the Securities Act, and they are
not required by applicable law or regulation to qualify the
Indenture in respect of the Notes or the Guarantee under the
Trust Indenture Act of 1939, as amended.
(c) Ernst & Young LLP and Arthur Andersen LLP, who
have certified or shall certify certain financial statements
of Newcourt and AT&T Capital, whose reports are incorporated
by reference through the date hereof in the Memorandum, are
independent public accountants as defined in the Securities
Act and the rules and regulations of the Securities and
Exchange Commission (the "Commission") thereunder.
(d) The financial statements, and the related notes
thereto, included or incorporated by reference in the
Memorandum present fairly the consolidated financial position
of Newcourt and its consolidated subsidiaries as of the dates
indicated and the results of their operations and cash flows
for the periods specified; the financial statements, and the
related notes thereto incorporated by reference in the
Memorandum present fairly the consolidated financial position
of AT&T Capital and its consolidated subsidiaries as of the
dates indicated and the results of their operations and cash
flows for the specified periods; said financial statements
have been prepared in conformity with generally accepted
accounting principles in Canada or the United States, as
applicable, applied on a consistent basis, and any supporting
schedules incorporated by reference in the Memorandum present
fairly the information required to be stated therein; and the
pro forma financial information and the related notes thereto,
incorporated by reference in the Memorandum, have been
prepared in accordance with Article 11 of Regulation S-X under
the Securities Act and Exchange Act, as applicable, and are
based upon good faith estimates and assumptions believed by
Newcourt and AT&T Capital to be reasonable.
(e) Since the respective dates as of which
information is given in the Memorandum through the date
hereof, there has not been any change in the capital stock or
long-term debt of Newcourt or AT&T Capital 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,
-2-
<PAGE>
prospects, management, financial position, stockholders'
equity or results of operations of Newcourt or AT&T Capital
and their respective subsidiaries, taken as a whole, otherwise
than as set forth or contemplated in the Memorandum; and
except as set forth or contemplated in the Memorandum neither
Newcourt, AT&T Capital nor any of their respective
subsidiaries has entered into any transaction or agreement
(whether or not in the ordinary course of business) that would
have a Material Adverse Effect.
(f) (i) The Indenture has been duly authorized,
executed and delivered by the Company and AT&T Capital and
constitutes the valid and binding agreement of the Company and
AT&T Capital, respectively, 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
Memorandum.
(g) (i) The Guarantee has been duly authorized,
executed and delivered by AT&T Capital and constitutes the
valid and binding agreement of AT&T Capital, 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 description thereof contained in
the Memorandum.
(h) Each of the Company, AT&T Capital and their
respective 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) 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
Memorandum.
(i) Neither the Company, AT&T Capital 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 have a Material Adverse Effect.
-3-
<PAGE>
(j) The execution, delivery and performance of this
Agreement, the Indenture and the Registration Rights Agreement
by the Company and AT&T Capital, and the execution, delivery
and performance by AT&T Capital 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 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, AT&T Capital or any of their respective subsidiaries
is a party or by which the Company, AT&T Capital or any of
their respective subsidiaries is bound or to which any of the
property or assets of the Company, AT&T Capital 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, AT&T Capital 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, AT&T Capital or any of
their respective subsidiaries or any of their properties or
assets, the effect of which breach, violation or default would
have a Material Adverse Effect; and except for such consents,
approvals, authorizations, registrations or qualifications as
may be required under applicable state securities laws in
connection with the purchase and distribution of the Notes and
the Guarantee by any Initial Purchaser, 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 AT&T Capital of,
compliance by the Company and AT&T Capital 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 have a Material
Adverse Effect.
(k) This Agreement and the Registration Rights
Agreement have been duly authorized, executed and delivered by
the Company and AT&T Capital.
(l) Neither Newcourt nor AT&T Capital nor any of
their respective affiliates (as defined in Rule 501(b) of
Regulation D under the Securities Act, an "Affiliate") has
directly, or through any agent, (i) sold, offered for sale,
solicited offers to buy or otherwise negotiated in respect of,
any security (as defined in the Securities Act) which is or
will be integrated with the sale of the Notes in any manner
that would require the registration under the Securities Act
of the Notes or (ii) engaged in any form of general
solicitation or general advertising in connection with the
offering of the Notes (as those terms are used in Regulation D
under the Securities Act), or in any manner involving a public
offering of the Notes within the meaning of Section 4(2) of
the Securities Act.
(m) Neither the Company, AT&T Capital nor any of
their respective Significant Subsidiaries is an "investment
company" within the meaning of such term under the Investment
Company Act of 1940, as amended, and the rules and regulations
of the Commission thereunder.
-4-
<PAGE>
(n) There are no legal or governmental proceedings
pending to which the Company, AT&T Capital or any of their
respective subsidiaries is a party or of which any property or
asset of the Company, AT&T Capital or any of their respective
subsidiaries is the subject which, if determined adversely to
the Company, AT&T Capital or any of their respective
subsidiaries, might have a Material Adverse Effect, and the
Company has not been advised that any such proceedings are
threatened or contemplated by governmental authorities or
threatened by others that are required to be disclosed in the
Memorandum which are not so disclosed.
3. Purchase of Notes by the Initial Purchasers. (a) On the
basis of the representations and warranties and on the terms and
subject to the conditions herein set forth, each of the Initial
Purchasers agrees to purchase from Newcourt, severally and not jointly,
and on the terms and subject to the conditions herein set forth,
Newcourt agrees to sell to each of the Initial Purchasers, severally
and not jointly, the principal amount of Notes set forth opposite its
name in Schedule I at a purchase price equal to 99.061% of the
principal amount of such Notes.
(b) If, for any reason (other than termination of this
Agreement in accordance with the provisions of Section 7 or 8 hereof),
one or more of the Initial Purchasers shall fail or refuse to pay for
the Notes it has or they have agreed to purchase (any such Initial
Purchaser being hereinafter referred to as a "defaulting Initial
Purchaser"), and the aggregate principal amount of the Notes which such
defaulting Initial Purchaser or Initial Purchasers agreed but failed or
refused to purchase is not more than one-tenth of the aggregate
principal amount of the Notes, the remaining Initial Purchasers 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 as set forth opposite the names
of all such non-defaulting Initial Purchasers (or in such other
proportion as the Representative shall specify) to purchase the Notes
which the defaulting Initial Purchaser or Initial Purchasers agreed but
failed or refused to purchase; provided that in no event shall the
principal amount of Notes that any Initial Purchaser is purchasing be
increased pursuant to the provisions of this paragraph in an amount in
excess of one-tenth of such principal amount of such Notes without the
written consent of such Initial Purchaser. In the event that any
Initial Purchaser or Initial Purchasers 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 forty-eight (48) hours after such default,
this Agreement will terminate without liability on the part of any of
the non-defaulting Initial Purchasers or of the Company. In the event
that the non-defaulting Initial Purchasers agree to purchase, in
accordance with this paragraph, all the Notes which the defaulting
Initial Purchaser or Initial Purchasers fail or refuse to purchase, the
Representative or the Company shall have the right to postpone the time
of closing, but in no event for longer than seven days, in order that
the required changes, if any, in the Memorandum or in any other
documents or arrangements may be affected. Except to the extent
provided in subparagraphs (c) and (f) of Section 6 hereof, termination
of this
-5-
<PAGE>
Agreement pursuant to this Section 3 shall be without any
liability on the part of the Company or any Initial Purchaser other
than the defaulting Initial Purchaser. Any action taken under this
Section shall not relieve any defaulting Initial Purchaser from
liability in respect of any default of such Initial Purchaser under
this Agreement.
4. Sale and Resale of the Notes by the Initial Purchasers.
Each of the Initial Purchasers hereby advises Newcourt and AT&T Capital
that it proposes to offer the Notes for resale upon the terms and
conditions set forth in this Agreement and in the Memorandum. Each of
the Initial Purchasers hereby represents and warrants to, and agrees
with, Newcourt and AT&T Capital that, assuming the accuracy of the
Company's and AT&T Capital's representations herein, the Initial
Purchaser (i) is purchasing the Notes pursuant to a private sale exempt
from registration under the Securities Act, (ii) will not solicit
offers for, or offer to sell, the Notes by means of any form of general
solicitation or general advertising or in any manner involving a public
offering within the meaning of Section 4(2) of the Securities Act and
(iii) will solicit offers for the Notes only from, and will offer, sell
or deliver the Notes, as part of their initial offering, only to,
persons in the United States whom the Initial Purchaser reasonably
believes to be (A) qualified institutional buyers ("Qualified
Institutional Buyers") as defined in Rule 144A under the Securities
Act, as such rule may be amended from time to time ("Rule 144A"), or,
if any such person is buying for one or more institutional accounts for
which such person is acting as a fiduciary or agent, only when such
person has represented to the Initial Purchaser that each such account
is a Qualified Institutional Buyer, to whom notice has been given that
such sale or delivery is being made in reliance on Rule 144A or (B)
institutional accredited investors ("Accredited Investors") as defined
in Rule 501(1), (2), (3) or (7) of Regulation D under the Securities
Act who execute letters of representation in private sales exempt from
registration under the Securities Act.
5. Delivery of and Payment for the Notes. (a) Delivery of,
and payment of the purchase price for, the Notes which the Initial
Purchasers severally agree to purchase shall be made at the office of
Chapman and Cutler, Chicago, Illinois, at 10:00 a.m. (New York time) on
February 16, 1999 or at such other place or time on the same or such
other day as shall be agreed upon by the Company and the Representative
(such date and time of payment and delivery being herein called the
"Closing Date").
(b) On the Closing Date, payment shall be made to the Company
in immediately available funds by wire transfer of same-day funds to
such account or accounts as the Company shall specify prior to the
Closing Date or by such means as the parties hereto shall agree prior
to the Closing Date against delivery to the Representative for the
account of each Initial Purchaser of the certificates evidencing the
Notes. Upon delivery, the Notes shall be registered in such names and
in such denominations as the Representative shall request in writing
not less than two full business days prior to the Closing Date. The
Company agrees to make the Notes available to the Representative for
inspection on behalf of the Initial Purchasers at such place in New
York, New York as the Representative may specify, not later than 2:00
p.m. (New York time) on the business day next preceding the Closing
Date.
-6-
<PAGE>
6. Covenants of the Company and AT&T Capital. The Company
and AT&T Capital jointly and severally agree as follows:
(a) Prior to making any amendment or supplement to
the Memorandum other than by filing documents under the
Exchange Act which are incorporated by reference therein, the
Company or AT&T Capital, as applicable, shall furnish a copy
thereof to the Representative and counsel to the Initial
Purchasers and will not effect any such amendment or
supplement to which the Representative shall reasonably object
by notice to the Company after a reasonable period to review,
which shall not in any case be longer than three business days
after receipt of such copy.
(b) The Company will deliver to the Representative a
reasonable number of copies of the Memorandum and any
supplements and amendments thereto.
(c) The Company will pay all reasonable expenses in
connection with the preparation of the Indenture and
Guarantee, the rating of the Notes, the issuance and delivery
of the Notes and the preparation and printing of the copies of
the Memorandum to be furnished as provided in subparagraph (b)
above; and will pay any taxes on the issuance of the Notes,
but will not pay any transfer taxes. The Company will not be
required to pay any amount for any expenses of the
Representative or any of the Initial Purchasers, except the
cost of mailing to the Initial Purchasers copies of the
Memorandum and all amendments and supplements thereto
(including documents incorporated by reference), and except as
provided by subparagraph (f) below, and provided that if no
Notes are delivered to and purchased by the Initial Purchasers
as a result of a default by the Company or AT&T Capital or the
occurrence of any of the events referred to in Section 8
hereof, the Company, in addition to any payment provided for
by subparagraph (f) of this Section 6, will reimburse the
Representative for the reasonable out-of-pocket expenses of
the Initial Purchasers, not exceeding $15,000, and for the
fees and disbursements of Chapman and Cutler, the Initial
Purchasers agreeing to pay such expenses, fees and
disbursements in any other event. Neither the Company nor AT&T
Capital will in any event be liable to any of the several
Initial Purchasers for damages on account of loss of
anticipated profits.
(d) The Company and AT&T Capital will apply the
proceeds from the sale of the Notes as set forth under the
heading "Use of Proceeds" appearing in the Memorandum.
(e) So long as any of the Notes shall remain
outstanding, the Company or AT&T Capital will furnish to the
Representative, upon request and in reasonable quantities for
distribution to the Initial Purchasers, copies of such
documents, reports and other information as may be required to
be furnished to noteholders under the Indenture.
-7-
<PAGE>
(f) The Company and AT&T Capital will use their
reasonable 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 AT&T Capital 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 Initial Purchasers
hereunder because of a default by one or more of the Initial
Purchasers or the termination of this Agreement pursuant to
Section 8 hereof.
(g) If, at any time prior to completion of the offer
and sale of the Notes by the Initial Purchasers, in the
opinion of the counsel for the Initial Purchasers and counsel
to the Company, any event shall occur which should be set
forth in an amendment of or a supplement to the Memorandum in
order that the Memorandum will not include an untrue statement
of a material fact or omit to state a material fact necessary
in order to make the statements therein not misleading, in
light of the circumstances existing at the time it is
delivered to a purchaser, or if it is necessary to amend or
supplement the Memorandum to comply with applicable law, the
Company and AT&T Capital will, upon the occurrence of each
such event, forthwith at their expense, prepare and furnish to
the Representative, in reasonable quantities for distribution
to the Initial Purchasers, as many copies as the
Representative may reasonably request of such amendment or
supplement. For the purpose of this subparagraph (g), the
Company and AT&T Capital will furnish such due diligence
information customary for transactions of the type
contemplated by this Agreement as the Representative may from
time to time request. Notwithstanding any of the other
provisions of this subparagraph (g), neither the Company nor
AT&T Capital shall be under any obligation to furnish any
supplement to or amendment of the Memorandum on account of any
change in, or to include in any amended Memorandum any change
in, the information furnished to the Company or AT&T Capital
by any Initial Purchaser for use in the Memorandum, unless the
Representative, on behalf of such Initial Purchaser, has
advised the Company in writing of such change and has
requested the Company at the expense of such Initial Purchaser
to prepare a supplement to or amendment of the Memorandum to
reflect such change or to include such change in an amended
Memorandum.
(h) None of the Company, AT&T Capital or any of
their respective affiliates (as defined in the Securities Act)
will, either directly or indirectly, sell, offer for sale or
solicit offers to buy or otherwise negotiate in respect of any
security (as defined in the Securities Act) in a transaction
that could be integrated with the sale of the Notes in a
manner that would require the registration under the
Securities Act of the Notes.
-8-
<PAGE>
(i) So long as the Notes are outstanding and are
"restricted securities" within the meaning of Rule 144(a)(3)
under the Securities Act, the Company will either (i) file
reports and other information with the Commission under
Section 13 or 15(d) of the Exchange Act, or (ii) in the event
that it is not subject to Section 13 or 15(d) of the Exchange
Act, make available to holders of the Notes and prospective
purchasers of the Notes designated by such holders, upon
request of prospective purchasers, the information required to
be delivered pursuant to Rule 144A(d)(4) under the Securities
Act to permit compliance with Rule 144A in connection with
resales of the Notes.
(j) Each of the Notes will bear a legend
substantially in the form contained in "Transfer Restrictions"
in the Memorandum and upon the other terms contained therein,
except after such Notes are resold or exchanged pursuant to a
registration statement effective under the Securities Act.
(k) The Company and AT&T Capital will take such
steps as shall be reasonably necessary to ensure that neither
the Company, AT&T Capital nor any of their respective
Significant Subsidiaries shall become an "investment company"
within the meaning of such term under the Investment Company
Act of 1940 and the rules and regulations of the Commission
thereunder.
7. Conditions of the Obligations of the Initial Purchasers.
The obligations of the Initial Purchasers to purchase and pay for the
Notes shall be subject to the following additional conditions:
(a) The Initial Purchasers shall not have discovered
and disclosed to the Company or AT&T Capital on or prior to
the Closing Date that the Memorandum or any amendment or
supplement thereto contains any untrue statement of a fact
which in the reasonable opinion of Chapman and Cutler, counsel
for the Initial Purchasers, is material or omits to state any
fact which, in the opinion of such counsel, is material and is
required to be stated therein or is necessary to make the
statements therein not misleading.
(b) At or prior to the time of closing, the
Representative shall have received from counsel for the
Company and AT&T Capital, an opinion, satisfactory to Chapman
and Cutler, to the effect that -
(i) Newcourt has been duly incorporated and
is validly existing and in good standing under the
laws of the Province of Ontario, Canada and AT&T
Capital has been duly incorporated and is validly
existing and in good standing under the laws of the
State of Delaware; each of Newcourt and AT&T Capital
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),
and has all power and authority necessary
-9-
<PAGE>
to own its respective properties and conduct the
businesses in which it is engaged, as described in
the Memorandum;
(ii) The issue and sale of the Notes by
Newcourt and the compliance by Newcourt with all the
provisions of this Agreement, the Registration Rights
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 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); and, except for such
consents, approvals, authorizations, registrations or
qualifications as may be required under applicable
state securities laws in connection with the purchase
and distribution of the Notes by the Initial
Purchasers and compliance with the Securities Act
with respect to the Registration Rights Agreement, 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, the Registration Rights Agreement and
the Indenture 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 have a Material
Adverse Effect;
(iii) The issue of the Guarantee by AT&T
Capital and the compliance by AT&T Capital with all
the provisions of this Agreement, the Registration
Rights Agreement, the Indenture and 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 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 AT&T Capital or any of its subsidiaries is a
party or by which AT&T Capital or any of its
subsidiaries is bound or to which any of the property
or assets of AT&T Capital 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 AT&T Capital or any of its subsidiaries or any
statute or any order, rule or regulation known to
such counsel of any court or
-10-
<PAGE>
governmental agency or body having jurisdiction over
AT&T Capital 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); and, except for
such consents, approvals, authorizations,
registrations or qualifications as may be required
under applicable state securities laws in connection
with the purchase and distribution of the Notes and
Guarantee by the Initial Purchasers and compliance
with the Securities Act with respect to the
Registration Rights Agreement, 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 AT&T Capital of, compliance by AT&T
Capital with the provisions of, or the consummation
of the transactions contemplated by this Agreement,
the Registration Rights Agreement, the Indenture and
the Guarantee 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 have a Material
Adverse Effect;
(iv) The Indenture has (A) been duly
authorized, executed and delivered by Newcourt and
(B) 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 laws
relating to or affecting creditors' rights generally
and by general equity principles);
(v) The Notes (A) have been duly authorized
by Newcourt and, when duly executed and authenticated
as provided in the Indenture and delivered against
payment therefor in accordance with this Agreement,
(B) will be duly and validly issued and outstanding,
and (C) will constitute valid and binding agreements
of Newcourt 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 and the Indenture have
been duly authorized, executed and delivered by AT&T
Capital and are valid and binding agreements of AT&T
Capital 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);
(vii) The statements made in the Memorandum
under the captions "Description of the Notes,"
"Description of the Guarantee" and "Exchange Offer;
Registration Rights; Liquidated Damages," insofar as
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<PAGE>
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
maters referred to therein;
(viii) This Agreement and the Registration
Rights Agreement have been duly authorized, executed
and delivered by (A) Newcourt and (B) AT&T Capital;
and
(ix) Except as to financial statements and
schedules contained therein, as to which such counsel
is not called upon to express any opinion or belief,
the Memorandum, and each document or portion thereof
incorporated by reference in the Memorandum, as of
the Closing 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, in 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 Chapman and Cutler an opinion to the effect
specified in clauses (b)(iv)(B), (b)(v)(B), (b)(vi), (b)(vii),
(b(viii)(B) and (b)(ix), which opinions may rely on the opinion
referred to in clauses (b) and (d).
(d) At or prior to the time of closing, the Representative
shall have received from (i) Sidley & Austin, special tax counsel to
the Company, an opinion that its opinions expressed or referred to
under the caption "Material United States Income Tax Consequences" and
(ii) Blake, Cassels & Graydon, special tax counsel to the Company, an
opinion that its opinions expressed or referred to under the caption
"Canadian Federal Income Tax Considerations" in the Memorandum are
correct in all material respects.
(e) At each of the date hereof and at or prior to the time of
closing, the Representative shall have received an executed copy of a
letter from Ernst & Young LLP, addressed to Newcourt, AT&T Capital and
the Representative, in form and substance satisfactory to the
Representative containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters
with respect to financial statements and certain financial information,
including the financial information contained or incorporated by
reference in the Memorandum as identified by the Representative.
(f) Since the respective dates as of which information is
given in the Memorandum there shall not have been, at the time of
closing, any material adverse change in or affecting the general
affairs, management, financial position, stockholders' equity or
results of operations of Newcourt or AT&T Capital and their respective
subsidiaries, otherwise than as set forth or contemplated in the
Memorandum; the representations and warranties of Newcourt and AT&T
Capital herein shall be true at the Closing Date; neither Newcourt nor
AT&T Capital shall have failed, at or prior to the
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<PAGE>
Closing Date 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 Closing Date, a certificate
to the foregoing effect dated the day of the closing and signed by the
President, a Vice President or the Treasurer of each of Newcourt and
AT&T Capital.
(g) Subsequent to the execution and delivery of this
Agreement (i) no downgrading shall have occurred in the rating accorded
Newcourt's or AT&T Capital'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 Securities 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 Newcourt's or AT&T Capital's debt securities.
(h) Newcourt and AT&T Capital shall have executed and
delivered the Registration Rights Agreement.
(i) Prior to the time of closing, Newcourt shall have
furnished to the Representative such further due diligence information
customary for transactions of the type contemplated by this Agreement,
certificates and documents as the Representative may reasonably
request.
In case any of the conditions specified above in this Section 7 shall
not have been fulfilled, this Agreement may be terminated by the Representative
by delivering written notice of termination to Newcourt. Any such termination
shall be without liability of any party to any other party except to the extent
provided in subparagraphs (c) and (f) of Section 6 hereof.
8. 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 the Initial
Purchasers 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 Company or AT&T Capital 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 so 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
Memorandum.
A termination of this Agreement pursuant to this Section shall be
without liability of any party to any other party.
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<PAGE>
9. Indemnification and Contribution. (a) The Company and AT&T Capital
shall, jointly and severally, indemnify and hold each Initial Purchaser harmless
from and against any and all losses, claims, damages, and liabilities, joint or
several, to which such Initial Purchaser may become subject, under the
Securities 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
Memorandum, 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 Initial Purchaser for any legal or other expenses
reasonably incurred by such Initial Purchaser in connection with investigating
or defending any such action or claim as such expenses are incurred; provided,
however, that the Company and AT&T Capital 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 information contained in or omitted from the Memorandum in reliance
on Provided Information.
(b) Each Initial Purchaser severally will indemnify and hold harmless
the Company and AT&T Capital against any losses, claims, damages or liabilities
to which the Company or AT&T Capital may become subject, under the Securities
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 Memorandum, 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 provided by such Initial Purchaser through the
Representative specifically for use therein; and will reimburse the Company and
AT&T Capital for any legal or other expenses reasonably incurred by the Company
and AT&T Capital in connection with investigating or defending any such action
or claim as such expenses are incurred.
(c) The Company, AT&T Capital and each Initial Purchaser agree that
upon the commencement of any action against it, its directors, its officers, or
any person controlling it as specified below 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 parties 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, AT&T Capital
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<PAGE>
and one or more of the Initial Purchasers 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 Initial Purchasers or controlling persons are indemnified parties
and by the Company or AT&T Capital in the case of an action in which the Company
or AT&T Capital 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 9 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,
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 AT&T on the one hand and the Initial Purchasers 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 such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company and AT&T Capital on one hand and the Initial Purchasers 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 AT&T Capital on one hand and the Initial Purchasers 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 discounts and commissions received by
the Initial Purchasers with respect to the Notes purchased under this Agreement,
in each case as set forth in the Memorandum. The relative fault of the Company
and AT&T Capital and of the Initial Purchasers 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 AT&T Capital on one hand or by
the Initial Purchasers on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omissions. The Company, AT&T Capital and the Initial Purchasers agree that it
would not be just and equitable if contributions pursuant to this subparagraph
(d) were determined by pro rata allocation or by any other method of allocation
which does not take
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<PAGE>
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 9, 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 Initial Purchaser shall be required to
contribute any amount in excess of the amount by which the total price at which
the Notes sold and distributed by it were offered to the purchasers exceeds the
amount of any damages which the Initial Purchaser 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 Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The Initial
Purchasers' obligations in this subparagraph (d) to contribute are several in
proportion to their respective purchase obligations as set forth in Schedule I
hereto (including an increase pursuant to Section 3(b)) and not joint.
(e) The obligations of the Company and AT&T Capital under this Section
9 shall be in addition to any liability which the Company and AT&T Capital may
otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Initial Purchaser within the meaning of the
Securities Act; and the obligations of the Initial Purchasers under this Section
9 shall be in addition to any liability which the Initial Purchasers may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company or AT&T Capital and to each person, if any,
who controls the Company or AT&T Capital within the meaning of the Securities
Act.
10. Definition of Certain Terms. (a) The term "business day" means any
day on which the New York Stock Exchange is open for trading.
(b) The term "Significant Subsidiary" has the meaning set forth in Rule
1-02 of Regulation S-X.
(c) The term "Material Adverse Effect" means a material adverse change
in, or material adverse effect on, the consolidated financial position,
stockholders' equity, results of operations, business or prospects of the
Company, AT&T Capital and their respective subsidiaries taken as a whole.
11. Initial Purchasers and the Representative. The term "Initial
Purchasers" as used herein shall mean the several persons, firms and
corporations named in Schedule I hereof, and the term "Initial Purchaser" shall
mean any one of such persons, firms, or corporations. The term "Representative"
shall mean the representative to whom this Agreement is addressed, who, by
executing this Agreement, represents that it has been authorized by each Initial
Purchaser to execute this Agreement on behalf of such Initial Purchaser and to
act for such Initial Purchaser in the manner herein provided. All obligations of
the Initial Purchasers hereunder are several and not joint.
12. Miscellaneous. This Agreement shall inure to the benefit of the
Company and AT&T Capital, the several Initial Purchasers and their respective
directors and officers and each
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<PAGE>
controlling person referred to in Section 9 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 Initial
Purchasers.
13. Notices. All communications hereunder shall be in writing, and if
to the Initial Purchasers, unless otherwise provided, shall be mailed or
delivered to the Representative at Three World Financial Center, New York, New
York 10285 and if to the Company or AT&T Capital unless otherwise provided,
shall be mailed or delivered to the Company at 2 Gatehall Drive, Parsippany, New
Jersey 07054, Attn: Treasurer with a copy to the General Counsel.
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 Initial Purchaser who
is in default within the meaning of Section 3 hereof, the indemnity and
contribution agreement contained in Section 9 hereof and the representations and
warranties of the Company and AT&T Capital 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 Initial Purchaser or any person
controlling any Initial Purchaser or (iii) acceptance of and payment for the
Notes.
16. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
17. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
[signature page follows]
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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 among the Company, AT&T
Capital and the Initial Purchasers, in accordance with its terms.
Very truly yours,
NEWCOURT CREDIT GROUP INC.
By
Printed Name:_________________________
Title:________________________________
AT&T CAPITAL CORPORATION
By
Printed Name:_________________________
Title:________________________________
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
LEHMAN BROTHERS INC.,
as Representative of the several Initial Purchasers
By __________________________________
Printed Name: ____________________
Title: ___________________________
<PAGE>
SCHEDULE I
INITIAL PURCHASERS
<TABLE>
<S> <C>
Lehman Brothers Inc. $500,000,000
Chase Securities Inc. $250,000,000
Salomon Smith Barney Inc. $130,000,000
Credit Suisse First Boston Corporation $60,000,000
J.P. Morgan Securities Inc. $60,000,000
--------------
TOTAL $1,000,000,000
===============
</TABLE>
<PAGE>
SCHEDULE II
NEWCOURT CREDIT GROUP INC.
ISSUE TERMS:
<TABLE>
- ----------------------------------------- -------------------------------------------
<S> <C>
Issuer: Newcourt Credit Group Inc.
- ----------------------------------------- -------------------------------------------
Guarantor: AT&T Capital Corporation
- ----------------------------------------- -------------------------------------------
Issue Type: 144A with Registration Rights
- ----------------------------------------- -------------------------------------------
Principal Amount: $1,000,000,000
- ----------------------------------------- -------------------------------------------
Trade Date: February 10, 1999
- ----------------------------------------- -------------------------------------------
Settlement Date: February 16, 1999
- ----------------------------------------- -------------------------------------------
Final Maturity Date: February 16, 2005
- ----------------------------------------- -------------------------------------------
Interest Payment Dates: February 16 and August 16
- ----------------------------------------- -------------------------------------------
Initial Interest Payment Date: August 16, 1999
- ----------------------------------------- -------------------------------------------
Coupon: 6.875%
- ----------------------------------------- -------------------------------------------
Issue Price: 99.661%
- ----------------------------------------- -------------------------------------------
Ratings: Baa3/BBB
- ----------------------------------------- -------------------------------------------
Price to Issuer: 99.061%
- ----------------------------------------- -------------------------------------------
Net Proceeds: $990,610,000
- ----------------------------------------- -------------------------------------------
Initial Purchasers: See Schedule I
- ----------------------------------------- -------------------------------------------
</TABLE>
<PAGE>
EXHIBIT 12A
NEWCOURT CREDIT GROUP INC.
COMPUTATION OF RATIO OF EARNINGS TO
FIXED CHARGES
(DOLLARS IN U.S. THOUSANDS)
<TABLE>
<CAPTION>
PERIOD ENDED DECEMBER 31,
June 30, --------------------------------------------------------
1999 1998 1997 1996 1995 1994
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Earnings from continuing operations:
Income before income taxes and
extraordinary loss $162,885 $304,170 $ 10,356 $ 41,332 $22,281 $14,575
Deduct undistributed earnings on
equity investments, net of losses -- -- -- -- -- --
Add fixed charges included in
income before income taxes $416,636 $641,319 $ 95,654 $ 68,590 $42,318 $26,273
- -----------------------------------------------------------------------------------------------------------------
Total earnings from continuing
operations, as adjusted $579,521 $945,489 $106,011 $109,922 $64,599 $40,848
- -----------------------------------------------------------------------------------------------------------------
Total fixed charges* $416,636 $641,319 $ 95,654 $ 68,590 $42,318 $26,273
Ratio of earnings to fixed charges 1.39 1.47 1.11 1.60 1.53 1.55
- -----------------------------------------------------------------------------------------------------------------
</TABLE>
* Fixed charges include interest on indebtedness and the portion of rentals
representative of the interest factor.
<PAGE>
EXHIBIT 12B
AT&T CAPITAL CORPORATION
COMPUTATION OF RATIO OF EARNINGS TO
FIXED CHARGES
(Dollars in U.S. Thousands)
<TABLE>
<CAPTION>
December 31,
June 30, -------------------------------------------------
Period Ended 1999 1998 1997 1996 1995 1994
- ---------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Earnings from continuing
operations:
Income before
income taxes
and extraordinary
loss $ 80,012 $173,848 $ 32,036 $278,602 $208,239 $173,614
Deduct undistributed
earnings on equity
investments, net of
losses - - - - - -
Add fixed charges
included in income
before income taxes
and cumulative effect
of accounting change $310,113 $497,805 $460,221 $465,121 $418,624 $277,913
- -----------------------------------------------------------------------------------------
Total earnings from
continuing
operations, as
adjusted $390,125 $671,653 $492,257 $743,723 $626,863 $451,527
- -----------------------------------------------------------------------------------------
Total fixed charges* $310,113 $497,805 $460,221 $465,121 $418,624 $277,913
Ratio of earnings
to fixed charges 1.26 1.35 1.07 1.60 1.50 1.62
- -----------------------------------------------------------------------------------------
</TABLE>
* Fixed charges include interest on indebtedness and the portion of rentals
representative of the interest factor. Fixed charges do not include
distributions on Company-obligated preferred securities of the Company's
subsidiaries. Prior to October 1, 1996, a portion of the company's indebtedness
to AT&T Corp. did not bear interest.
<PAGE>
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our Firm under the caption "Experts" in the
Registration Statement on Form F-4 and related prospectus of Newcourt Credit
Group Inc. ("Newcourt") for the Offer to Exchange all $1,000,000,000 6.875%
Notes, Series B due February 16, 2005 for $1,000,000,000 6.875% Exchange Notes,
Series B due February 16, 2005 and to the incorporation by reference therein of
our report dated February 22, 1999, with respect to the consolidated financial
statements of Newcourt as at December 31, 1998 and 1997 and for the years then
ended included in Newcourt's Current Report on Form 6-K dated February 26, 1999
and in Newcourt's Annual Report on Form 40-F for the year ended December 31,
1998, both of which have been filed with the Securities and Exchange Commission.
Toronto, Canada Ernst & Young LLP
October 15, 1999 Chartered Accountants
<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)
<TABLE>
<S> <C>
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)
</TABLE>
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)
--------------------------------------------
NEWCOURT CREDIT GROUP INC.
(Exact name of obligor as specified in its charter)
<TABLE>
<S> <C>
ONTARIO NOT APPLICABLE
(Province or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
</TABLE>
NEWCOURT CENTRE
207 QUEENS QUAY WEST
TORONTO, ONTARIO M5J 1A7, CANADA
(Address of principal executive offices)
AT&T CAPITAL CORPORATION
(Exact name of obligor as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 22-3211453
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
2 GATEHALL DRIVE
PARSIPPANY, NEW JERSEY 07054
(Address of principal executive offices) (Zip Code)
</TABLE>
---------------------------------------------------
6.875% EXCHANGE NOTES, SERIES B
(Title of the indenture securities)
---------------------------------------------------
<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.
<PAGE>
- 3 -
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. 333-76439, 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.
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 15th day of October, 1999.
THE CHASE MANHATTAN BANK
By /s/ L. O'Brien
------------------------------------
/s/ L. O'Brien
Vice President
<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 June 30, 1999,
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 .......................................................$ 13,119
Interest-bearing balances ............................................... 6,761
Securities: .................................................................
Held to maturity securities................................................... 892
Available for sale securities................................................. 42,965
Federal funds sold and securities purchased under
agreements to resell ..................................................... 32,277
Loans and lease financing receivables:
Loans and leases, net of unearned income $130,602
Less: Allowance for loan and lease losses 2,551
Less: Allocated transfer risk reserve ......... 0
--------
Loans and leases, net of unearned income,
allowance, and reserve .................................................. 128,051
Trading Assets ............................................................... 41,426
Premises and fixed assets (including capitalized
leases).................................................................. 3,190
Other real estate owned ...................................................... 28
Investments in unconsolidated subsidiaries and
associated companies..................................................... 182
Customers' liability to this bank on acceptances
outstanding ............................................................. 901
Intangible assets ............................................................ 2,010
Other assets ................................................................. 14,567
--------
TOTAL ASSETS ................................................................. $286,369
========
</TABLE>
-4-
<PAGE>
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits
In domestic offices ..................................................... $101,979
Noninterest-bearing ..................................... $42,241
Interest-bearing ........................................ 59,738
-------
In foreign offices, Edge and Agreement
subsidiaries and IBF's .................................................. 76,395
Noninterest-bearing ... ............................... $ 4,645
Interest-bearing ...................................... 71,750
Federal funds purchased and securities sold under agree-
ments to repurchase .......................................................... 36,604
Demand notes issued to the U.S. Treasury ..................................... 1,001
Trading liabilities .......................................................... 30,287
Other borrowed money (includes mortgage indebtedness and obligations under
capitalized leases):
With a remaining maturity of one year or less ........................... 3,606
With a remaining maturity of more than one year through three years...... 14
With a remaining maturity of more than three years....................... 91
Bank's liability on acceptances executed and outstanding...................... 901
Subordinated notes and debentures ............................................ 5,427
Other liabilities ............................................................ 11,247
TOTAL LIABILITIES ............................................................ 267,552
-------
EQUITY CAPITAL
Perpetual preferred stock and related surplus 0
Common stock ................................................................. 1,211
Surplus (exclude all surplus related to preferred stock)..................... 11,016
Undivided profits and capital reserves ....................................... 7,317
Net unrealized holding gains (losses)
on available-for-sale securities ............................................. (743)
Accumulated net gains (losses) on cash flow hedges............................ 0
Cumulative foreign currency translation adjustments .......................... 16
TOTAL EQUITY CAPITAL ......................................................... 18,817
--------
TOTAL LIABILITIES AND EQUITY CAPITAL ......................................... $286,369
========
</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 )
WILLIAM B. HARRISON, JR. ) DIRECTORS
FRANK A. BENNACK, JR. )
-5-
<PAGE>
LETTER OF TRANSMITTAL
NEWCOURT CREDIT GROUP INC.
OFFER FOR ALL OUTSTANDING
6.875% NOTES, SERIES B DUE FEBRUARY 16, 2005
IN EXCHANGE FOR
6.875% EXCHANGE NOTES, SERIES B DUE FEBRUARY 16, 2005,
PURSUANT TO THE PROSPECTUS, DATED OCTOBER 15, 1999
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M. NEW YORK CITY
TIME, ON WEDNESDAY, NOVEMBER 17, 1999, UNLESS EXTENDED (THE
'EXPIRATION DATE'). TENDERS MAY BE WITHDRAWN PRIOR TO
5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE.
Delivery To: The Chase Manhattan Bank, Exchange Agent
By Mail, Overnight Courier, Hand Delivery or Facsimile:
The Chase Manhattan Bank
55 Water Street
New York, New York 10041
Attention: Carlos Esteves
Phone: (212) 638-0828
Fax: (212) 638-7380
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE, OR
TRANSMISSION THEREOF VIA FACSIMILE OTHER THAN AS SET FORTH ABOVE, WILL NOT
CONSTITUTE A VALID DELIVERY.
The undersigned acknowledges that he or she has received and reviewed the
Prospectus, dated October 15, 1999 (the 'Prospectus'), of Newcourt Credit Group
(the 'Company'), and this Letter of Transmittal (the 'Letter'), which together
constitute the Company's offer (the 'Exchange Offer') to exchange an aggregate
principal amount of up to $1,000,000,000 of its 6.875% Exchange Notes, Series B
Due February 16, 2005, which have been registered under the Securities Act of
1933, as amended (the 'New Notes'), of the Company for a like principal amount
of the issued and outstanding 6.875% Notes, Series B Due February 16, 2005 (the
'Old Notes') of the Company from the holders thereof.
For each Old Note accepted for exchange, the holder of such Old Note will
receive a New Note having a principal amount equal to that of the surrendered
Old Note. The New Notes will bear interest from the most recent date to which
interest has been paid on the Old Notes or, if no interest has been paid on the
Old Notes, from February 15, 1999. Accordingly, if the relevant record date for
interest payment occurs after the consummation of the Exchange Offer registered
holders of New Notes on such record date will receive interest accruing from the
most recent date to which interest has been paid or, if no interest has been
paid, from February 15, 1999. If however, the relevant record date for interest
payment occurs prior to the consummation of the Exchange Offer registered
holders of Old Notes on such record date will receive interest from the most
recent date to which interest has been paid or, if no interest has been paid,
from February 15, 1999. Old Notes accepted for exchange will cease to accrue
interest from and after the date of consummation of the Exchange Offer, except
as set forth in the immediately preceding sentence. Holders of Old Notes whose
Old Notes are accepted for exchange will not receive any payment in respect of
interest on such Old Notes otherwise payable on any interest payment date the
record date for which occurs on or after consummation of the Exchange Offer.
This Letter is to be completed by a holder of Old Notes either if
certificates are to be forwarded herewith or if a tender of certificates for Old
Notes, if available, is to be made by book-entry transfer to the account
maintained by the Exchange Agent at The Depository Trust Company (the
'Book-Entry Transfer Facility') pursuant to the procedures set forth in 'The
Exchange Offer -- Book-Entry Transfer' section of the Prospectus, unless an
agent's message is transmitted in lieu hereof. Holders of Old Notes whose
certificates are not immediately available, or
<PAGE>
who are unable to deliver their certificates or confirmation of the book-entry
tender of their Old Notes into the Exchange Agent's account at the Book-Entry
Transfer Facility (a 'Book-Entry Confirmation') and all other documents required
by this Letter to the Exchange Agent on or prior to the Expiration Date, must
tender their Old Notes according to the guaranteed delivery procedures set forth
in 'The Exchange Offer -- Guaranteed Delivery Procedures' section of the
Prospectus. See Instruction 1. Delivery of documents to the Book-Entry Transfer
Facility does not constitute delivery to the Exchange Agent.
The undersigned has completed the appropriate boxes below and signed this
Letter to indicate the action the undersigned desires to take with respect to
the Exchange Offer. The undersigned further agrees and acknowledges that
acceptance of any Old Notes by the Company and the issuance of New Notes in
exchange thereof shall constitute full performance by the Company of its
obligations under the registration rights agreement and that the Company shall
have no further obligations or liabilities under that agreement (except in
certain limited circumstances).
List below the Old Notes to which this Letter relates. If the space
provided below is inadequate, the certificate numbers and principal amount of
Old Notes should be listed on a separate signed schedule affixed hereto.
<TABLE>
- ------------------------------------------------------------------------------------------------------
DESCRIPTION OF OLD NOTES 1 2 3
- ------------------------------------------------------------------------------------------------------
AGGREGATE
PRINCIPAL PRINCIPAL
NAME(S) AND ADDRESS(ES) OF REGISTERED HOLDER(S) CERTIFICATE AMOUNT OF AMOUNT
(PLEASE FILL IN, IF BLANK) NUMBER(S)* OLD NOTE(S) TENDERED**
- ------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
----------------------------------------
----------------------------------------
----------------------------------------
TOTAL
- ------------------------------------------------------------------------------------------------------
*Need not be completed if Old Notes are being tendered by book-entry transfer.
**Unless otherwise indicated in this column, a holder will be deemed to have tendered ALL of the Old
Notes represented by the Old Notes indicated in column 2. See Instruction 2. Old Notes tendered
hereby must be in denominations of principal amount of $1,000 and any integral multiple thereof.
See Instruction 1.
</TABLE>
[ ] CHECK HERE IF TENDERED OLD NOTES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER
MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH THE BOOK-ENTRY
TRANSFER FACILITY AND COMPLETE THE FOLLOWING:
Name of Tendering Institution .............................................
Account Number .............. Transaction Code Number ..............
[ ] CHECK HERE IF TENDERED OLD NOTES ARE BEING DELIVERED PURSUANT TO A NOTICE OF
GUARANTEED DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND COMPLETE THE
FOLLOWING:
Name(s) of Registered Holder(s) ...........................................
Window Ticket Number (if any) .............................................
Date of Execution of Notice of Guaranteed Delivery ........................
Name of Institution which guaranteed delivery .............................
If Delivered by Book-Entry Transfer, Complete the Following:
Account Number .............. Transaction Code Number ..............
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS
THERETO.
Name: .....................................................................
Address: ..................................................................
<PAGE>
If the undersigned is not a broker-dealer, the undersigned represents that
it is not engaged in, and does not intend to engage in, a distribution of New
Notes. If the undersigned is a broker-dealer that will receive New Notes for its
own account in exchange for Old Notes, it represents that the Old Notes to be
exchanged for New Notes were acquired by it as a result of market-making or
other trading activities and acknowledges that it will deliver a prospectus in
connection with any resale of such New Notes; however, by so acknowledging and
by delivering a prospectus in connection with any resale of such New Notes, the
undersigned will not be deemed to admit that it is an 'underwriter' within the
meaning of the Securities Act of 1933, as amended.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
LADIES AND GENTLEMEN:
Upon the terms and subject to the conditions of the Exchange Offer, the
undersigned hereby tenders to the Company the aggregate principal amount of Old
Notes indicated above. Subject to, and effective upon, the acceptance for
exchange of Old Notes tendered hereby, the undersigned hereby sells, assigns and
transfers to, or upon the order of, the Company all right, title and interest in
and to such Old Notes as are being tendered hereby.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to tender, sell, assign and transfer the Old Notes
tendered hereby and that the Company will acquire good and unencumbered title
thereto, free and clear of all liens, restrictions, charges and encumbrances and
not subject to any adverse claim when the same are accepted by the Company. The
undersigned hereby further represents that any New Notes acquired in exchange
for Old Notes tendered hereby will have been acquired in the ordinary course of
business of the person receiving such New Notes, whether or not such person is
the undersigned, that neither the holder of such Old Notes nor any such other
person has an arrangement or understanding with any person to participate in the
distribution of such New Notes and that neither the holder of such Old Notes nor
any such other person is an 'affiliate,' as defined in Rule 405 under the
Securities Act of 1933, as amended (the 'Securities Act'), of the Company or
AT&T Capital Corporation.
The undersigned also acknowledges that this Exchange Offer is being made in
reliance on interpretations by the staff of the Securities and Exchange
Commission (the 'SEC'), as set forth in no-action letters issued to third
parties, that New Notes issued in exchange for Old Notes pursuant to the
Exchange Offer may be offered for resale, resold and otherwise transferred by
holders thereof (other than any such holder that is an 'affiliate' of the
Company or AT&T Capital Corporation within the meaning of Rule 405 under the
Securities Act), without compliance with the registration and prospectus
delivery provisions of the Securities Act, provided that such New Notes are
acquired in the ordinary course of such holders' business and such holders have
no arrangement with any person to participate in the distribution of such New
Notes. However, the Company does not intend to request the SEC to consider, and
the SEC has not considered the Exchange Offer in the context of a no-action
letter and there can be no assurance that the staff of the SEC would make a
similar determination with respect to the Exchange Offer as in other
circumstances. If the undersigned is not a broker-dealer, the undersigned
represents that it is not engaged in, and does not intend to engage in, a
distribution of New Notes and has no arrangement or understanding to participate
in a distribution of New Notes. If any holder is an affiliate of the Company or
AT&T Capital Corporation, is engaged in or intends to engage in or has any
arrangement or understanding with respect to the distribution of New Notes to be
acquired pursuant to the Exchange Offer, such holder (i) could not rely on the
applicable interpretations of the staff of the SEC and (ii) must comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with any resale transaction. If the undersigned is a broker-dealer
that will receive New Notes for its own account in exchange for Old Notes, it
represents that the Old Notes to be exchanged for the New Notes were acquired by
it as a result of market-making or other trading activities and acknowledges
that it will deliver a prospectus in connection with any resale of such New
Notes; however, by so acknowledging and by delivering a prospectus, the
undersigned will not be deemed to admit that it is an 'underwriter' within the
meaning of the Securities Act.
The undersigned will, upon request, execute and deliver any additional
documents deemed by the Company to be necessary or desirable to complete the
sale, assignment and transfer of the Old Notes tendered hereby. All authority
conferred or agreed to be conferred in this Letter and every obligation of the
undersigned hereunder shall be binding upon the successors, assigns, heirs,
executors, administrators, trustees in bankruptcy and legal representatives of
the undersigned and shall not be affected by, and shall survive, the death or
incapacity of the undersigned. This tender may be withdrawn only in accordance
with the procedures set forth in 'The Exchange Offer -- Withdrawal Rights'
section of the Prospectus.
<PAGE>
Unless otherwise indicated herein in the box entitled 'Special Issuance
Instructions' below, please deliver the New Notes (and, if applicable,
substitute certificates representing Old Notes for any Old Notes not exchanged)
in the name of the undersigned or, in the case of a book-entry delivery of Old
Notes, please credit the account indicated above maintained at the Book-Entry
Transfer Facility. Similarly, unless otherwise indicated under the box entitled
'Special Delivery Instructions' below, please send the New Notes (and, if
applicable, substitute certificates representing Old Notes for any Old Notes not
exchanged) to the undersigned at the address shown above in the box entitled
'Description of Old Notes.'
THE UNDERSIGNED, BY COMPLETING THE BOX ENTITLED 'DESCRIPTION OF OLD NOTES'
ABOVE AND SIGNING THIS LETTER, WILL BE DEEMED TO HAVE TENDERED THE OLD NOTES AS
SET FORTH IN SUCH BOX ABOVE.
SPECIAL ISSUANCE INSTRUCTIONS
(SEE INSTRUCTIONS 3 AND 4)
To be completed ONLY if certificates for Old Notes not exchanged
and/or New Notes are to be issued in the name of and sent to someone other
than the person or persons whose signature(s) appear(s) on this Letter
above, or if Old Notes delivered by book-entry transfer which are not
accepted for exchange are to be returned by credit to an account
maintained at the Book-Entry Transfer Facility other than the account
indicated above.
Issue: New Notes and/or Old Notes to:
Name(s) .................................................................
(PLEASE TYPE OR PRINT)
.........................................................................
(PLEASE TYPE OR PRINT)
Address: ................................................................
.........................................................................
(ZIP CODE)
(COMPLETE SUBSTITUTE FORM W-9)
[ ] Credit unexchanged Old Notes delivered by book-entry transfer to the
Book-Entry Transfer Facility account set forth below.
(Book-Entry Transfer Facility
Account Number, if applicable)
.........................................................................
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 3 AND 4)
To be completed ONLY if certificates for Old Notes not exchanged and/or
New Notes are to be sent to someone other than the person or persons who
signature(s) appear(s) on this Letter above or to such person or persons
at any address other than shown in the box entitled 'Description of Old
Notes' on this Letter above.
Mail: New Notes and/or Old Notes to:
Name(s) .................................................................
(PLEASE TYPE OR PRINT)
.........................................................................
(PLEASE TYPE OR PRINT)
Address: ................................................................
.........................................................................
(ZIP CODE)
IMPORTANT: THIS LETTER OR A FACSIMILE HEREOF OR AN AGENT'S MESSAGE IN LIEU
THEREOF (TOGETHER WITH THE CERTIFICATES FOR OLD NOTES OR A BOOK-ENTRY
CONFIRMATION AND ALL OTHER REQUIRED DOCUMENTS OR THE NOTICE OF GUARANTEED
DELIVERY) MUST BE RECEIVED BY THE EXCHANGE AGENT PRIOR TO 5:00 P.M., NEW YORK
CITY TIME, ON THE EXPIRATION DATE.
PLEASE READ THIS ENTIRE LETTER OF TRANSMITTAL
CAREFULLY BEFORE COMPLETING ANY BOX ABOVE.
<PAGE>
PLEASE SIGN HERE
(TO BE COMPLETED BY ALL TENDERING HOLDERS)
(COMPLETE ACCOMPANYING SUBSTITUTE FORM W-9 ON REVERSE SIDE)
Date: ................................................................... , 1999
x ............................... ............................... , 1999
x ............................... ............................... , 1999
SIGNATURE(S) OF OWNER DATE
Area Code and Telephone Number .................................................
If a holder is tendering any Old Notes, this Letter must be signed by the
registered holder(s) as the name(s) appear(s) on the certificate(s) for the Old
Notes or by any person(s) authorized to become registered holder(s) by
endorsements and documents transmitted herewith or by a person whose name
appears on a security position listing as a holder of Old Notes provided by the
Book-Entry Transfer Facility (such persons to be deemed 'registered holders' or
'holders' for purposes of the Exchange Offer). If signature is by a trustee,
executor, administrator, guardian, officer or other person acting in a fiduciary
or representative capacity, please set forth full title. See Instruction 3.
Name(s): ......................................................................
...............................................................................
(PLEASE TYPE OR PRINT)
Capacity: .....................................................................
Address: ......................................................................
...............................................................................
(INCLUDING ZIP CODE)
SIGNATURE GUARANTEE
(IF REQUIRED BY INSTRUCTION 3)
Signature(s) Guaranteed by
an Eligible Institution: ......................................................
(AUTHORIZED SIGNATURE)
...............................................................................
(TITLE)
...............................................................................
(NAME AND FIRM)
Dated: ................................................................. , 1999
<PAGE>
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER FOR THE
6.875% NOTES, SERIES B DUE FEBRUARY 16, 2005 IN EXCHANGE FOR THE
6.875% EXCHANGE NOTES, SERIES B DUE FEBRUARY 16, 2005
OF
NEWCOURT CREDIT GROUP INC.
1. Delivery of this Letter and Notes; Guaranteed Delivery Procedures. This
letter is to be completed by noteholders either if certificates are to be
forwarded herewith or if tenders are to be made pursuant to the procedures for
delivery by book-entry transfer set forth in 'The Exchange Offer -- Delivery of
Notes to The Exchange Agent Through The Depository Trust Company' section of the
Prospectus unless an agent's message in transmitted in lieu hereof. Certificates
for all physically tendered Old Notes, or Book-Entry Confirmations, as the case
may be, as well as a properly completed and duly executed Letter (or manually
signed facsimile hereof) (or an agent's message in lieu hereof) and any other
documents required by this Letter, must be received by the Exchange Agent at the
address set forth herein prior to 5:00 p.m., New York City time, on the
Expiration Date, or the tendering holder must comply with the guaranteed
delivery procedures set forth below. Old Notes tendered hereby must be in
denominations of principal amount of $1,000 and any integral multiple thereof.
Noteholders whose certificates for Old Notes are not immediately available
or who cannot deliver their certificates and all other required documents to the
Exchange Agent on or prior to the Expiration Date, or who cannot complete the
procedure for book-entry transfer on a timely basis, may tender their Old Notes
pursuant to the guaranteed delivery procedures set forth in 'The Exchange
Offer -- Facsimile and Guaranteed Delivery Procedures' section of the
Prospectus. Pursuant to such procedures, (i) such tender must be made through an
Eligible Institution (as defined herein), (ii) prior to the Expiration Date, the
Exchange Agent must receive from such Eligible Institution a properly completed
and duly executed Letter (or a facsimile thereof) and Notice of Guaranteed
Delivery, substantially in the form provided by the Company (by telegram, telex,
facsimile transmission, mail or hand delivery), setting forth the name and
address of the holder of Old Notes and the amount of Old Notes tendered, stating
that the tender is being made thereby and guaranteeing that within three New
York Stock Exchange ('NYSE') trading days after the date of execution of the
Notice of Guaranteed Delivery, the certificates for all physically tendered Old
Notes, or a book-entry confirmation, and any other documents required by the
Letter will be deposited by the Eligible Institution with the Exchange Agent,
and (iii) the certificates for all physically tendered Old Notes, in proper form
of transfer, or book-entry confirmation, as the case may be, and all other
documents required by this Letter, are received by the Exchange Agent within
three NYSE trading days after the date of execution of the Notice of Guaranteed
Delivery.
The method of delivery of this Letter, the Old Notes and all other required
documents is at the election and risk of the tendering holders, but the delivery
will be deemed made only when actually received or confirmed by the Exchange
Agent. If Old Notes are sent by mail, it is suggested that the mailing be made
sufficiently in advance of the Expiration Date to permit delivery to the
Exchange Agent prior to 5:00 p.m., New York City time, on the Expiration Date.
See 'The Exchange Offer' section of the Prospectus.
2. Partial Tenders (not applicable to noteholders who tender by book-entry
transfer). If less than all of the Old Notes evidenced by a submitted
certificate are to be tendered, the tendering holder(s) should fill in the
aggregate principal amount of Old Notes to be tendered in the box above entitled
'Description of Old Notes -- Principal Amount Tendered.' A reissued certificate
representing the balance of nontendered Old Notes will be sent to such tendering
holder, unless otherwise provided in the appropriate box on this Letter,
promptly after the Expiration Date. ALL OF THE OLD NOTES DELIVERED TO THE
EXCHANGE AGENT WILL BE DEEMED TO HAVE BEEN TENDERED UNLESS OTHERWISE INDICATED.
3. Signatures on this Letter; Bond Powers and Endorsements; Guarantee of
Signatures. If this Letter is signed by the registered holder of the Old Notes
tendered hereby, the signature must correspond exactly with the name as written
on the face of the Certificates or on a security position listing without any
change whatsoever.
If any tendered Old Notes are owned of record by two or more joint owners,
all of such owners must sign this Letter.
<PAGE>
If any tendered Old Notes are registered in different names on several
certificates, it will be necessary to complete, sign and submit as many separate
copies of this Letter as there are different registrations of certificates.
When this Letter is signed by the registered holder or holders of the Old
Notes specified herein and tendered hereby, no endorsements of certificates or
separate bond powers are required. If, however, the New Notes are to be issued,
or any untendered Old Notes are to be reissued, to a person other than the
registered holder, then endorsements of any certificates transmitted hereby or
separate bond powers are required. Signatures on such certificate(s) must be
guaranteed by an Eligible Institution.
If this Letter is signed by a person other than the registered holder or
holders of any certificate(s) specified herein, such certificate(s) must be
endorsed or accompanied by appropriate bond powers, in either case signed
exactly as the name or names of the registered holder or holders appear(s) on
the certificate(s) and signatures on such certificate(s) must be guaranteed by
an Eligible Institution.
If this Letter or any certificates or bond powers are signed by trustees,
executors, administrators, guardians, attorneys-in-fact, officers of
corporations or others acting in a fiduciary or representative capacity, such
persons should so indicate when signing, and, unless waived by the Company,
proper evidence satisfactory to the Company of their authority to so act must be
submitted.
ENDORSEMENTS ON CERTIFICATES FOR OLD NOTES OR SIGNATURES ON BOND POWERS
REQUIRED BY THIS INSTRUCTION 3 MUST BE GUARANTEED BY A FIRM WHICH IS A MEMBER OF
A REGISTERED NATIONAL SECURITIES EXCHANGE OR A MEMBER OF THE NATIONAL
ASSOCIATION OF SECURITIES DEALERS, INC. OR BY A COMMERCIAL BANK OR TRUST COMPANY
HAVING AN OFFICE OR CORRESPONDENT IN THE UNITED STATES (AN 'ELIGIBLE
INSTITUTION').
SIGNATURES ON THIS LETTER NEED NOT BE GUARANTEED BY AN ELIGIBLE
INSTITUTION, PROVIDED THE OLD NOTES ARE TENDERED: (I) BY A REGISTERED HOLDER OF
OLD NOTES (WHICH TERM, FOR PURPOSES OF THE EXCHANGE OFFER, INCLUDES ANY
PARTICIPANT IN THE BOOK-ENTRY TRANSFER FACILITY SYSTEM WHOSE NAME APPEARS ON A
SECURITY POSITION LISTING AS THE HOLDER OF SUCH OLD NOTES) WHO HAS NOT COMPLETED
THE BOX ENTITLED 'SPECIAL ISSUANCE INSTRUCTIONS' OR 'SPECIAL DELIVERY
INSTRUCTIONS' ON THIS LETTER, OR (II) FOR THE ACCOUNT OF AN ELIGIBLE
INSTITUTION.
4. Special Issuance and Delivery Instructions. Tendering holders of Old
Notes should indicate in the applicable box the name and address to which New
Notes issued pursuant to the Exchange Offer and/or substitute certificates
evidencing Old Notes not exchanged are to be issued or sent, if different from
the name or address of the person signing this Letter. In the case of issuance
in a different name, the employer identification or social security number of
the person named must also be indicated. Holders tendering Old Notes by
book-entry transfer may request that Old Notes not exchanged be credited to such
account maintained at the book-entry transfer facility as such noteholder may
designate hereon. If no such instructions are given, such New Notes and Old
Notes not exchanged will be returned to the name or address of the person
signing this Letter.
5. Tax Identification Number. Federal income tax law generally requires
that a tendering holder whose Old Notes are accepted for exchange must provide
the Company (as payor) with such holder's correct Taxpayer Identification Number
('TIN') on Substitute Form W-9 below, which in the case of a tendering holder
who is an individual, is his or her social security number. If the Company is
not provided with the current TIN or an adequate basis for an exemption, such
tendering holder may be subject to a $50 penalty imposed by the Internal Revenue
Service. In addition, delivery to such tendering holder of New Notes may be
subject to backup withholding in an amount equal to 31% of all reportable
payments made after the exchange. If withholding results in an overpayment of
taxes, a refund may be obtained.
Exempt holders of Old Notes (including, among others, all corporations and
certain foreign individuals) are not subject to these backup withholding and
reporting requirements. See the enclosed Guidelines of Certification of Taxpayer
Identification Number on Substitute Form W-9 (the 'W-9 Guidelines') for
additional instructions.
To prevent backup withholding, each tendering holder of Old Notes must
provide its correct TIN by completing the Substitute Form W-9 set forth below,
certifying that the TIN provided is correct (or that such holder is awaiting a
TIN) and that (i) the holder is exempt from backup withholding, or (ii) the
holder has not been notified by the Internal Revenue Service that such holder is
subject to backup withholding as a result of a failure to report all interest or
dividends or (iii) the Internal Revenue Service has notified the holder that
such holder is no longer subject to backup withholding. If the tendering holder
of Old Notes is a nonresident alien or foreign entity not subject to backup
withholding, such holder must give the Company a completed Form W-8, Certificate
of Foreign Status. These forms may be obtained from the Exchange Agent. If the
Old Notes are in more than one name or are not in the name of the actual owner,
such holder should consult the W-9 Guidelines for information on which TIN to
report. If such holder does not have a TIN, such holder should consult the W-9
Guidelines for instructions on applying for a TIN, check the box in Part 2 of
the Substitute Form W-9 and write
<PAGE>
'applied for' in lieu of its TIN. Note: Checking this box and writing 'applied
for' on the form means that such holder has already applied for a TIN or that
such holder intends to apply for one in the near future. If such holder does not
provide its TIN to the Company within 60 days, backup withholding will begin and
continue until such holder furnishes its TIN to the Company.
6. Transfer Taxes. The Company will pay all transfer taxes, if any,
applicable to the transfer of Old Notes to it or its order pursuant to the
Exchange Offer. If however, New Notes and/or substitute Old Notes not exchanged
are to be delivered to, or are to be registered or issued in the name of, any
person other than the registered holder of the Old Notes tendered hereby, or if
tendered Old Notes are registered in the name of any person other than the
person signing this Letter, or if a transfer tax is imposed for any reason other
than the transfer of Old Notes to the Company or its order pursuant to the
Exchange Offer, the amount of any such transfer taxes (whether imposed on the
registered holder or any other persons) will be payable by the tendering holder.
If satisfactory evidence of payment of such taxes or exemption therefrom is not
submitted herewith, the amount of such transfer taxes will be billed directly to
such tendering holder.
EXCEPT AS PROVIDED IN THIS INSTRUCTION 6, IT WILL NOT BE NECESSARY FOR
TRANSFER TAX STAMPS TO BE AFFIXED TO THE OLD NOTES SPECIFIED IN THIS LETTER.
7. Waiver of Conditions. The Company reserves the absolute right to waive
satisfaction of any or all conditions enumerated in the Prospectus.
8. No Conditional Tenders. No alternative, conditional, irregular or
contingent tenders will be accepted. All tendering holders of Old Notes, by
execution of this Letter or transmission of an agent's message in lieu thereof,
shall waive any right to receive notice of the acceptance of their Old Notes for
exchange.
Neither the Company, the Exchange Agent nor any other person is obligated
to give notice of any defect or irregularity with respect to any tender of Old
Notes nor shall any of them incur any liability for failure to give any such
notice.
9. Mutilated, Lost, Stolen or Destroyed Old Notes. Any holder whose Old
Notes have been mutilated, lost, stolen or destroyed should contact the Exchange
Agent at the address indicated above for further instructions.
10. Requests for Assistance or Additional Copies. Questions relating to the
procedure for tendering, as well as requests for additional copies of the
Prospectus and this Letter, may be directed to the Exchange Agent, at the
address and telephone number indicated above.
<PAGE>
TO BE COMPLETED BY ALL TENDERING HOLDERS
(SEE INSTRUCTION 5)
<TABLE>
<S> <C> <C>
PAYOR'S NAME: NEWCOURT CREDIT GROUP INC.
PART 1 -- PLEASE PROVIDE YOUR TIN IN TIN: ..............................
SUBSTITUTE THE BOX AT RIGHT AND CERTIFY BY Social Security Number or
FORM W-9 SIGNING AND DATING BELOW. Employer Identification Number
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
PAYOR'S REQUEST FOR
TAXPAYER IDENTIFICATION
NUMBER ('TIN') AND
CERTIFICATION
PART 2 -- TIN Applied For [ ]
CERTIFICATION: UNDER THE PENALTIES OF PERJURY, I CERTIFY THAT:
(1) the number shown on this form is my correct Taxpayer Identification
Number (or I am waiting for a number to be issued to me).
(2) I am not subject to backup withholding either because: (a) I am exempt
from backup withholding, or (b) I have not been notified by the Internal
Revenue Service (the 'IRS') that I am subject to backup withholding as a
result of a failure to report all interest or dividends, or (c) the IRS
has notified me that I am no longer subject to backup withholding, and
(3) any other information provided on this form is true and correct.
SIGNATURE ............................. DATE .............................
You must cross out item (2) of the above certification if you have been notified by the IRS that you are subject to
backup withholding because of underreporting of interest or dividends on your tax return and you have not been
notified by the IRS that you are no longer subject to backup withholding.
</TABLE>
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED
THE BOX IN PART 2 OF SUBSTITUTE FORM W-9
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number has
not been issued to me, and either (a) I have mailed or delivered an application
to receive a taxpayer identification number to the appropriate Internal Revenue
Service Center or Social Security Administration Office or (b) I intend to mail
or deliver an application in the near future. I understand that if I do not
provide a taxpayer identification number by the time of the exchange, thirty-one
(31%) percent of all reportable payments made to me thereafter will be withheld
until I provide a number.
.............................................. ...............................
Signature Date
<PAGE>
NOTICE OF GUARANTEED DELIVERY FOR
NEWCOURT CREDIT GROUP INC.
6.875% NOTES, SERIES B DUE FEBRUARY 16, 2005
This form or one substantially equivalent hereto must be used to accept the
Exchange Offer of Newcourt Credit Group Inc. (the 'Company') made pursuant to
the Prospectus, dated October 15, 1999 (the 'Prospectus'), if certificates for
the outstanding 6.875% Notes, Series B Due February 16, 2005 of the Company (the
'Old Notes') are not immediately available or if the procedure for book-entry
transfer cannot be completed on a timely basis or time will not permit all
required documents to reach the Company prior to 5:00 p.m., New York City time,
on the Expiration Date of the Exchange Offer. Such form may be delivered or
transmitted by telegram, telex, facsimile transmission, mail or hand delivery to
The Chase Manhattan Bank (the 'Exchange Agent') as set forth below. In addition,
in order to utilize the guaranteed delivery procedure to tender Old Notes
pursuant to the Exchange Offer, a completed, signed and dated Letter of
Transmittal (or facsimile thereof) must also be received by the Exchange Agent
prior to 5:00 p.m., New York City time, on the Expiration Date. Capitalized
terms not defined herein are defined in the Prospectus.
Delivery To: The Chase Manhattan Bank, Exchange Agent
By Mail, Overnight Courier, Hand Delivery or Facsimile:
The Chase Manhattan Bank
55 Water Street
New York, New York 10041
Attention: Carlos Esteves
Phone: (212) 638-0828
Fax: (212) 638-7380
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE, OR
TRANSMISSION HEREOF VIA FACSIMILE OTHER THAN AS SET FORTH ABOVE, WILL NOT
CONSTITUTE A VALID DELIVERY.
Ladies and Gentlemen:
Upon the terms and conditions set forth in the Prospectus and the
accompanying Letter of Transmittal, the undersigned hereby tenders to the
Company the principal amount of Old Notes set forth below, pursuant to the
guaranteed delivery procedure described in 'The Exchange Offer -- Facsimile and
Guaranteed Delivery Procedures' section of the Prospectus.
<TABLE>
<S> <C>
Principal Amount of Old Notes Tendered:*
$
- ----------------------------------------
Certificate Nos. (if available):
- ----------------------------------------- If Old Notes will be delivered by book-entry
transfer to The Depository Trust Company,
provide account number.
Total Principal Amount Represented by
Old Notes Certificate(s):
$ Account Number
- ---------------------------------------- -------------------------------
</TABLE>
ALL AUTHORITY HEREIN CONFERRED OR AGREED TO BE CONFERRED SHALL SURVIVE THE
DEATH OR INCAPACITY OF THE UNDERSIGNED AND EVERY OBLIGATION OF THE UNDERSIGNED
HEREUNDER SHALL BE BINDING UPON THE HEIRS, PERSONAL REPRESENTATIVES, SUCCESSORS
AND ASSIGNS OF THE UNDERSIGNED.
- ------------------------
* Must be in denominations of principal amount of $1,000 and any integral
multiple thereof.
<PAGE>
PLEASE SIGN HERE
X
- --------------------------------------- -------------------
X
- --------------------------------------- -------------------
Signature(s) of Owner(s) Date
or Authorized Signatory
Area Code and Telephone Number:
---------------------------------------
Must be signed by the holder(s) of Old Notes as their name(s) appear(s) on
certificates for Old Notes or on a security position listing, or by person(s)
authorized to become registered holder(s) by endorsement and documents
transmitted with this Notice of Guaranteed Delivery. If signature is by a
trustee, executor, administrator, guardian, attorney-in-fact, officer or other
person acting in a fiduciary or representative capacity, such person must set
forth his or her full title below.
PLEASE PRINT NAME(S) AND ADDRESS(ES)
Name(s):
----------------------------------------------------------------
----------------------------------------------------------------
Capacity:
----------------------------------------------------------------
----------------------------------------------------------------
Address(es):
----------------------------------------------------------------
----------------------------------------------------------------
2
<PAGE>
GUARANTEE
The undersigned, a member of a registered national securities exchange, or
a member of the National Association of Securities Dealers, Inc., or a
commercial bank or trust company having an office or correspondent in the United
States, hereby guarantees that the certificates representing the principal
amount of Old Notes tendered hereby in proper form for transfer, or timely
confirmation of the book-entry transfer of such Old Notes into the Exchange
Agent's account at The Depository Trust Company pursuant to the procedures set
forth in 'The Exchange Offer -- Facsimile and Guaranteed Delivery Procedures'
section of the Prospectus, together with a properly completed and duly executed
Letter of Transmittal (or a manually signed facsimile thereof or an agent's
message in lieu thereof) with any required signature guarantee and any other
documents required by the Letter of Transmittal, will be received by the
Exchange Agent at the address set forth above, no later than three New York
Stock Exchange trading days after the date of execution hereof.
- ---------------------------------------- -------------------------------------
NAME OF FIRM AUTHORIZED SIGNATURE
- ---------------------------------------- -------------------------------------
ADDRESS TITLE
Name:
- ---------------------------------------- -----------------------------
ZIP CODE (PLEASE TYPE OR PRINT)
Area Code and Tel. No. Dated:
----------------- -----------------------------
NOTE: DO NOT SEND CERTIFICATES FOR OLD NOTES WITH THIS FORM. CERTIFICATES FOR
OLD NOTES SHOULD ONLY BE SENT WITH YOUR LETTER OF TRANSMITTAL.
3
<PAGE>
NEWCOURT CREDIT GROUP INC.
OFFER FOR ALL OUTSTANDING
6.875% NOTES, SERIES B DUE FEBRUARY 16, 2005
IN EXCHANGE FOR
6.875% EXCHANGE NOTES, SERIES B DUE FEBRUARY 16, 2005
To: BROKERS, DEALERS, COMMERCIAL BANKS,
TRUST COMPANIES AND OTHER NOMINEES:
Newcourt Credit Group Inc. (the 'Company') is offering, upon and subject to
the terms and conditions set forth in the Prospectus, dated October 15, 1999
(the 'Prospectus'), and the enclosed Letter of Transmittal (the 'Letter of
Transmittal'), to exchange (the 'Exchange Offer') its 6.875% Exchange Notes,
Series B, Due February 16, 2005, which have been registered under the Securities
Act of 1933, as amended, for its outstanding 6.875% Notes, Series B Due
February 16, 2005 (the 'Old Notes'). The Exchange Offer is being made in order
to satisfy certain obligations of the Company contained in the Registration
Rights Agreement dated February 15, 1999, by and among the Company, AT&T Capital
Corporation and the initial purchasers referred to therein.
We are requesting that you contact your clients for whom you hold Old Notes
regarding the Exchange Offer. For your information and for forwarding to your
clients for whom you hold Old Notes registered in your name or in the name of
your nominee, or who hold Old Notes registered in their own names, we are
enclosing the following documents:
1. The Prospectus dated October 15, 1999;
2. The Letter of Transmittal (including Guidelines for Certification
of Taxpayer Identification Number on Substitute Form W-9) for your use and
for the information of your clients;
3. A Notice of Guaranteed Delivery to be used to accept the Exchange
Offer if certificates for Old Notes are not immediately available or time
will not permit all required documents to reach the Exchange Agent prior to
the Expiration Date (as defined below) or if the procedure for book-entry
transfer cannot be completed on a timely basis;
4. A form of letter which may be sent to your clients for whose
account you hold Old Notes registered in your name or the name of your
nominee, with space provided for obtaining such clients' instructions with
regard to the Exchange Offer; and
5. A return envelope addressed to The Chase Manhattan Bank, the
Exchange Agent for the Old Notes.
YOUR PROMPT ACTION IS REQUESTED. THE EXCHANGE OFFER WILL EXPIRE AT 5:00
P.M., NEW YORK CITY TIME, ON WEDNESDAY, NOVEMBER 17, 1999, UNLESS EXTENDED BY
THE COMPANY (THE 'EXPIRATION DATE'). OLD NOTES TENDERED PURSUANT TO THE EXCHANGE
OFFER MAY BE WITHDRAWN AT ANY TIME BEFORE THE EXPIRATION DATE.
To participate in the Exchange Offer, a duly executed and properly
completed Letter of Transmittal (or facsimile thereof or an agent's message in
lieu thereof), with any required signature guarantees and any other required
documents, should be sent to the Exchange Agent and certificates representing
the Old Notes or a book-entry confirmation should be delivered to the Exchange
Agent, all in accordance with the instructions set forth in the Letter of
Transmittal and the Prospectus.
If holders of Old Notes wish to tender, but it is impracticable for them to
forward their certificates for Old Notes prior to the expiration of the Exchange
Offer or to comply with the book-entry transfer procedures on a timely basis, a
tender may be effected by following the guaranteed delivery procedures
<PAGE>
described in the Prospectus under 'The Exchange Offer -- Facsimile and
Guaranteed Delivery Procedures.'
The Company will, upon request, reimburse brokers, dealers, commercial
banks and trust companies for reasonable and necessary costs and expenses
incurred by them in forwarding the Prospectus and the related documents to the
beneficial owners of Old Notes held by them as nominee or in a fiduciary
capacity. The Company will pay or cause to be paid all stock transfer taxes
applicable to the exchange of Old Notes pursuant to the Exchange Offer, except
as set forth in Instruction 6 of the Letter of Transmittal.
Any inquiries you may have with respect to the Exchange Offer, or requests
for additional copies of the enclosed materials, should be directed to The Chase
Manhattan Bank, the Exchange Agent for the Old Notes, at its address and
telephone number set forth on the front of the Letter of Transmittal.
Very truly yours,
NEWCOURT CREDIT GROUP INC.
NOTHING HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU OR ANY
PERSON AS AN AGENT OF THE COMPANY OR THE EXCHANGE AGENT, OR AUTHORIZE YOU OR ANY
OTHER PERSON TO USE ANY DOCUMENT OR MAKE ANY STATEMENTS ON BEHALF OF EITHER OF
THEM WITH RESPECT TO THE EXCHANGE OFFER, EXCEPT FOR STATEMENTS EXPRESSLY MADE IN
THE PROSPECTUS OR THE LETTER OF TRANSMITTAL.
Enclosures
2
<PAGE>
NEWCOURT CREDIT GROUP INC.
OFFER FOR ALL OUTSTANDING
6.875% NOTES, SERIES B DUE FEBRUARY 16, 2005
IN EXCHANGE FOR
6.875% EXCHANGE NOTES, SERIES B DUE FEBRUARY 16, 2005
TO OUR CLIENTS:
Enclosed for your consideration is a Prospectus, dated October 15, 1999
(the 'Prospectus'), and the related Letter of Transmittal (the 'Letter of
Transmittal'), relating to the offer (the 'Exchange Offer') of Newcourt Credit
Group Inc. (the 'Company') to exchange its 6.875% Exchange Notes, Series B Due
February 16, 2005, which have been registered under the Securities Act of 1933,
as amended (the 'New Notes'), for its outstanding 6.875% Notes, Series B Due
February 16, 2005 (the 'Old Notes'), upon the terms and subject to the
conditions described in the Prospectus and the Letter of Transmittal. The
Exchange Offer is being made in order to satisfy certain obligations of the
Company contained in the Registration Rights Agreement dated February 15, 1999,
by and among the Company, AT&T Capital Corporation and the initial purchasers
referred to therein.
This material is being forwarded to you as the beneficial owner of the Old
Notes carried by us in your account but not registered in your name. A TENDER OF
SUCH OLD NOTES MAY ONLY BE MADE BY US AS THE HOLDER OF RECORD AND PURSUANT TO
YOUR INSTRUCTIONS.
Accordingly, we request instructions as to whether you wish us to tender on
your behalf the Old Notes held by us for your account, pursuant to the terms and
conditions set forth in the enclosed Prospectus and Letter of Transmittal.
Your instructions should be forwarded to us as promptly as possible in
order to permit us to tender the Old Notes on your behalf in accordance with the
provisions of the Exchange Offer. The Exchange Offer will expire at 5:00 p.m.,
New York City time, on Wednesday, November 17, 1999, unless extended by the
Company. Any Old Notes tendered pursuant to the Exchange Offer may be withdrawn
at any time before the Expiration Date.
Your attention is directed to the following:
1. The Exchange Offer is for any and all Old Notes.
2. The Exchange Offer is subject to certain conditions set forth in
the Prospectus in the section captioned 'The Exchange Offer -- Conditions
to the Exchange Offer.'
3. Any transfer taxes incident to the transfer of Old Notes from the
holder to the Company will be paid by the Company, except as otherwise
provided in the Instructions in the Letter of Transmittal.
4. The Exchange Offer expires at 5:00 p.m., New York City time, on
Wednesday, November 17, 1999, unless extended by the Company.
If you wish to have us tender your Old Notes, please so instruct us by
completing, executing and returning to us the instruction form on the back of
this letter. THE LETTER OF TRANSMITTAL IS FURNISHED TO YOU FOR INFORMATION ONLY
AND MAY NOT BE USED DIRECTLY BY YOU TO TENDER OLD NOTES.
<PAGE>
INSTRUCTIONS WITH RESPECT TO
THE EXCHANGE OFFER
The undersigned acknowledge(s) receipt of your letter and the enclosed
material referred to therein relating to the Exchange Offer made by Newcourt
Credit Group Inc. with respect to its Old Notes.
This will instruct you to tender the Old Notes held by you for the account
of the undersigned, upon and subject to the terms and conditions set forth in
the Prospectus and the related Letter of Transmittal.
Please tender the Old Notes held by you for my account as indicated below:
<TABLE>
<CAPTION>
AGGREGATE PRINCIPAL AMOUNT OF OLD NOTES
---------------------------------------
<S> <C>
6.875% Notes, Series B Due February 16,
2005........................................ ........................................
[ ] Please do not tender any Old Notes held
by you for my account.
Date:
---------------------------, 1999 ---------------------------------------
----------------------------------------
SIGNATURE(S)
----------------------------------------
----------------------------------------
----------------------------------------
PLEASE PRINT NAME(S) HERE
----------------------------------------
----------------------------------------
ADDRESS(ES)
----------------------------------------
AREA CODE AND TELEPHONE NUMBER
----------------------------------------
TAX IDENTIFICATION OR SOCIAL SECURITY
NO(S).
</TABLE>
None of the Old Notes held by us for your account will be tendered unless
we receive written instructions from you to do so. Unless a specific contrary
instruction is given in the space provided, your signature(s) hereon shall
constitute an instruction to us to tender all the Old Notes held by us for your
account.
2
