<PAGE>
<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 2, 1999
REGISTRATION NO. 333- AND 333- -01
________________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM F-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
AT&T CAPITAL CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
DELAWARE 22-3211453
(STATE OR OTHER JURISDICTION OF INCORPORATION OR ORGANIZATION) (I.R.S. EMPLOYER IDENTIFICATION NO.)
</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)
------------------------
NEWCOURT CREDIT GROUP INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
ONTARIO NOT APPLICABLE
(STATE OR OTHER JURISDICTION OF INCORPORATION OR ORGANIZATION) (I.R.S. EMPLOYER IDENTIFICATION NO.)
</TABLE>
BCE PLACE, 181 BAY STREET
SUITE 3500, TORONTO, ONTARIO
M5J 2T3, CANADA
(416) 594-2400
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
SCOTT J. MOORE
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
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 OF ALL COMMUNICATIONS TO:
<TABLE>
<S> <C>
STEVEN L. CLARK JAMES D. JOHNSON
JONATHAN A. KOFF SIDLEY & AUSTIN
CHAPMAN AND CUTLER 875 THIRD AVENUE
111 WEST MONROE STREET NEW YORK, NEW YORK 10022
CHICAGO, ILLINOIS 60603 (212) 906-2000
(312) 845-3000
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: From time to
time after the effective date of
this registration statement as determined by market conditions.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [x]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act of 1933, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act of 1933, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
(cover continued on following page)
------------------------
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 THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
________________________________________________________________________________
<PAGE>
<PAGE>
(cover continued from previous page)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
<S> <C> <C> <C>
PROPOSED
MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS AMOUNT TO BE OFFERING PRICE AGGREGATE
OF SECURITIES TO BE REGISTERED REGISTERED(1) PER UNIT(2) OFFERING PRICE(1)
<CAPTION>
<S> <C> <C> <C>
Debt Securities..........................................
Debt Warrants............................................
Currency Warrants........................................
Index Warrants...........................................
Interest Rate Warrants...................................
Guarantees(3)............................................
Total............................................... $6,000,000,000 $6,000,000,000
<CAPTION>
TITLE OF EACH CLASS AMOUNT OF
OF SECURITIES TO BE REGISTERED REGISTRATION FEE
<S> <C>
Debt Securities..........................................
Debt Warrants............................................
Currency Warrants........................................
Index Warrants...........................................
Interest Rate Warrants...................................
Guarantees(3)............................................
Total............................................... $1,668,000
</TABLE>
(1) In no event will the aggregate maximum offering price of all securities
issued pursuant to this registration statement exceed $6,000,000,000
(exclusive of accrued interest, if any). Any securities registered hereunder
may be sold separately or as units with other securities registered
hereunder. Any offering of securities denominated in any foreign currency or
foreign currency units will be treated as the equivalent in U.S. dollars
based on the exchange rate applicable to the purchase of such securities.
(2) The proposed maximum offering price per unit (a) has been omitted pursuant
to Instruction II.C. of Form F-3 and (b) will be determined, from time to
time, in connection with the issuance of the securities registered
hereunder.
(3) No separate consideration will be received for the Guarantees. Pursuant to
Rule 457(n) under the Securities Act of 1933, no separate fee is payable for
the Guarantees.
<PAGE>
<PAGE>
SUBJECT TO COMPLETION
MARCH 2, 1999
PROSPECTUS SUPPLEMENT
(TO PROSPECTUS DATED MARCH , 1999)
U.S. $6,000,000,000
[LOGO]
MEDIUM-TERM NOTES, SERIES G
GUARANTEED AS TO PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, AND INTEREST BY
[LOGO]
- ----------------------------------------------------------
The following terms may apply to the Notes which AT&T Capital Corporation, a
subsidiary of Newcourt Credit Group Inc., may sell at one or more times. The
final terms for each Note will be included in a pricing supplement. AT&T Capital
will receive between $5,997,000,000 and $5,955,000,000 of the proceeds from the
sale of the Notes, after paying the agents commissions of between $3,000,000 and
$45,000,000.
Unless the applicable pricing supplement states otherwise, the Notes will have
the following terms:
The Notes will mature in 9 months or more from the date of issue.
The Notes will bear interest at either a fixed or a floating rate. Floating
rate interest will be based on one or more of the following rates:
CD Rate
CMT Rate
Commercial Paper Rate
Federal Funds Rate
LIBOR
Prime Rate
Treasury Rate
Any other rate or interest rate formula defined in the applicable pricing
supplement
Any of the above may be further adjusted by a spread and/or spread
multiplier
Interest on Fixed Rate Notes will be payable on May 15 and November 15 of
each year.
Interest on Floating Rate Notes will be payable on the dates stated in the
applicable pricing supplement.
A Note may be issued as an indexed note, which means that the principal
amount, premium or interest payable on such Note will be determined by
reference to a designated index or formula.
The Notes will be held in global form by The Depository Trust Company.
The Notes may not be redeemed at the option of AT&T Capital or repaid at
the option of the holder prior to the maturity date thereof.
The Notes will be unconditionally guaranteed as to payment of principal,
premium, if any, and interest by Newcourt. The 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.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THE NOTES OR PASSED UPON THE ADEQUACY
OF THIS PROSPECTUS SUPPLEMENT OR THE ACCOMPANYING PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
This prospectus supplement is dated March , 1999.
<PAGE>
<PAGE>
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. IN THIS PROSPECTUS SUPPLEMENT, THE TERM 'DOCUMENT'
REFERS TO ANY PRICING SUPPLEMENT, THE PROSPECTUS SUPPLEMENT AND THE PROSPECTUS.
-----------------------------
S-2
<PAGE>
<PAGE>
In this prospectus supplement, the 'company,' 'we,' 'us' and 'our' refer to
AT&T Capital and 'Newcourt' refers to Newcourt Credit Group Inc. References to
'U.S. Dollars' or 'U.S.$' or '$' are to the currency of the United States of
America. The 'Notes' refer to our Medium-Term Notes, Series G.
IMPORTANT CURRENCY EXCHANGE INFORMATION
You are required to pay for the Notes in the currency specified in the
pricing supplement. You will receive payments of principal, premium, if any, and
any interest on, such Notes in the currency specified in the pricing supplement.
Currently, there are limited facilities in the United States for you to convert
U.S. dollars into foreign currencies and vice versa, and a limited number of
banks located in the United States offer non-U.S. dollar denominated checking or
savings accounts. However, if we offer non-U.S. dollar denominated Notes, you
may ask the Agent offering the Notes to you to arrange to convert your payment
of the purchase price from U.S. dollars to the currency specified for the Notes.
You must request such conversion on or before the third Business Day (as defined
below) preceding the date the Notes are delivered to you or by such other date
as the Agent selects. The Agent will select the terms, conditions, limits and
charges imposed on such conversion. You will bear the cost of such conversion.
DESCRIPTION OF MEDIUM-TERM NOTES, SERIES G
We provide information to you about our Notes in three separate documents
that progressively provide more detail: (1) the prospectus, (2) the prospectus
supplement and (3) the pricing supplement. Because the specific terms of our
Notes may differ from the general information we have provided, you should rely
on the information in the pricing supplement over different information in this
prospectus supplement and the prospectus, and rely on information in this
prospectus supplement over different information in the prospectus. The
following summary of the terms of our Notes does not contain all the information
that may be important to you. In addition to reading the pricing supplement,
this prospectus supplement and the prospectus, you should read carefully the
indenture.
GENERAL
Our Notes have been registered with the Securities and Exchange Commission
under Registration Statement No. 333- and 333- -01. Under the
Registration Statement, we have registered debt securities and warrants having
an aggregate purchase price of U.S. $6,000,000,000, or its equivalent in other
currencies or currency units. We will issue the Notes under an Indenture dated
as of March 1, 1999, among the company, Newcourt and The Chase Manhattan Bank,
as trustee. The Notes constitute a single series of securities under the
indenture. The indenture does not limit the amount of debt securities which may
be issued under it. The indenture provides that the company may issue debt
securities in one or more series up to the aggregate principal amount for such
series as authorized from time to time by the company. We may, from time to
time, without your consent, issue additional Notes or other debt securities
under the indenture. The indenture is more fully described in the prospectus.
We may issue Notes with an aggregate offering price of up to U.S.
$6,000,000,000, or its equivalent in other currencies or currency units. This
amount may be reduced if we issue any other securities pursuant to the
Registration Statement. See 'Plan of Distribution.' Our Notes will be offered on
a continuous basis and will mature on any day 9 months or more from date of
issue, as specified in the pricing supplement.
The pricing supplement for each Note will describe the following terms:
(1) the specified currency for the Note (and, if such currency is
other than U.S. dollars, certain other terms relating to the Note);
(2) whether the Note is a Fixed Rate Note, an Amortizing Note or a
Floating Rate Note;
(3) whether the Note is an Original Issue Discount Note;
S-3
<PAGE>
<PAGE>
(4) whether the Note is an Indexed Note and, if so, its special terms;
(5) if other than 100%, the price (generally expressed as a percentage
of its aggregate principal amount) at which the Note will be issued;
(6) the date on which the Note will be issued;
(7) the date on which the Note will mature;
(8) if the Note is a Fixed Rate Note, the annual interest rate payable
on such Note;
(9) if the Note is a Floating Rate Note, the Base Rate, the initial
interest rate, the Interest Reset Dates, the Interest Payment Dates, the
Index Maturity, the Maximum and Minimum Interest Rates, if any, and the
Spread or Spread Multiplier, if any, and any other terms relating to the
method of calculating interest on the Note;
(10) if the Note is an Amortizing Note, whether payments of principal
and interest will be made quarterly or semiannually, and the repayment
information for the Note;
(11) any terms for redemption at the option of the company, repayment
at the option of the holder, or amortization of principal of the Notes; and
(12) any other terms of the Note.
Our Notes will be issued in fully registered form. Each Note will initially
be represented by either a global security, referred to as a Book-Entry Note,
registered in the name of a nominee of The Depository Trust Company, as
depositary, or a certificate issued in definitive form. Except as discussed
under ' -- Book-Entry System' below, Book-Entry Notes will not be issued in
certificated form.
Unless the pricing supplement states otherwise, Notes denominated in U.S.
dollars will be issued in increments of U.S. $1,000.
Unless the pricing supplement states otherwise, Notes denominated in a
currency other than U.S. dollars will be issued in increments of such currency
approximately equal to U.S. $1,000 based upon the noon buying rate in New York
City for cable transfers of such currency, as determined by the Federal Reserve
Bank of New York on the Business Day immediately preceding the trade date for
such Notes, rounded to the nearest increment of 1,000 units of such currency. In
the case of Euros, unless the pricing supplement states otherwise, the currency
equivalent will be based upon the rate of exchange determined by the Commission
of the European Communities, or any successor, as published in the Official
Journal of the European Communities, or any successor publication, on the
Business Day immediately preceding the trade date for such Notes, rounded to the
nearest increment of 1,000 units of such currency.
The Notes are unsecured and will rank equally with all other unsecured and
unsubordinated indebtedness of the company. Unless the pricing supplement states
otherwise, we will not have the option to redeem the Notes and the holders of
the Notes will not have the option to request repayment of the Notes prior to
maturity. Unless the pricing supplement states otherwise, the Notes will not be
subject to any sinking fund.
We may change interest rates and interest rate formulas, but we cannot
change any Note already issued or as to which we have accepted an offer to
purchase, except with the consent of all holders of such Note. The interest
rates we offer may differ depending upon, among other things, the aggregate
principal amount of the Notes purchased in any single transaction.
When we use 'Business Day' in this prospectus supplement, we mean:
for Notes denominated in U.S. dollars, any day, other than a Saturday or
Sunday, that is not a legal holiday or a day on which banking institutions
in New York City are authorized or required by law or regulation,
including any executive order, to close;
for Notes denominated in a currency other than U.S. dollars or Euros, any
day, other than a Saturday or Sunday, that is not a legal holiday or a day
on which banking institutions are authorized or required by law or
regulation, including any executive order, to close in either New York
City or the Principal Financial Center of the country of such currency;
S-4
<PAGE>
<PAGE>
for Notes denominated in Euros, any day, other than a Saturday or Sunday,
that is not a legal holiday or a day on which banking institutions are
authorized or required by law or regulation, including any executive
order, to close in either New York City or Brussels, Belgium; and
for LIBOR Notes, any day, other than a Saturday or Sunday, that is not a
legal holiday or a day on which banking institutions are authorized or
required by law or regulation, including any executive order, to close in
New York City and that is also a London Banking Day. A 'London Banking
Day' means any day on which dealings in deposits in the Index Currency are
transacted in the London interbank market. See ' -- Payments of Principal
and Interest -- Floating Rate Notes -- LIBOR Notes.'
'Principal Financial Center' of a country means the principal financial
center of such country, which is generally its capital city, except that if the
currency is U.S. dollars or Deutsche marks, the Principal Financial Center means
New York City and Frankfurt, respectively.
THE REGISTRAR; THE PAYING AGENT; THE AUTHENTICATING AGENT
We have initially designated The Chase Manhattan Bank, acting through its
principal corporate trust office in New York, New York, as the registrar and
transfer agent, the paying agent and the authenticating agent for the Notes.
PAYMENT CURRENCY
Unless the pricing supplement states otherwise, we will make payments of
principal, premium, if any, and interest on any Note in the currency in which
such Note is denominated.
If the principal of, premium, if any, or interest on, any Note is payable
in a currency other than U.S. dollars and such currency is not available to us
due to the imposition of exchange controls or other circumstances beyond our
control, we are entitled to satisfy our obligations to holders of such Notes by
making payments in U.S. dollars. We will base the amount of such payment on the
noon buying rate in New York City for cable transfers of such currency as
determined by the Federal Reserve Bank of New York (the 'Market Exchange Rate')
on the date of such payment, or if such rate of exchange is not then available,
on the basis of the Market Exchange Rate as of the most recent date used to
determine the holder entitled to such payment. Payments on the Notes in U.S.
dollars as described above will not constitute an event of default under the
indenture.
Effective January 1, 1999, 11 of the 15 member countries of the European
Economic and Monetary Union (Austria, Belgium, Denmark, Finland, France,
Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain,
Sweden and the United Kingdom) established fixed conversion rates between their
existing currencies (legacy currencies) and one common currency -- the Euro. The
Euro is now trading on currency exchanges and may be used as a non-cash
transactional currency. The conversion to the Euro eliminates currency exchange
rate risk between the participating member countries. Beginning in 2002, new
Euro-denominated bills and coins will be issued, and legacy currencies will be
withdrawn from circulation. If all or some of the currencies of the member
states are replaced by the Euro or by an alternative single European currency
that becomes the exclusive currency of such member state or states, we will make
payments of principal, premium, if any, or interest on any Notes denominated in
each such currency, unless the pricing supplement states otherwise, in Euros or
such alternative European currency in compliance with such treaty; however, such
currency so replaced shall not be deemed to be unavailable to the company for
purposes of the immediately preceding paragraph.
PAYMENT OF PRINCIPAL AND INTEREST
GENERAL
In this prospectus supplement, we refer to Notes that bear interest at a
floating rate determined by reference to the rates or interest rate formulas
described below as 'Floating Rate
S-5
<PAGE>
<PAGE>
Notes.' We refer to Notes that bear interest at a fixed rate, which may be zero,
as 'Fixed Rate Notes.'
For Notes which provide for payment of interest in installments, we will
pay interest on each Interest Payment Date specified in the applicable Note and
at maturity or, if applicable, upon redemption or repayment. We will pay
interest to the person in whose name a Note is registered at the close of
business on the record date for such interest payment. In the case of Book-Entry
Notes represented by a global security, we will pay interest to a nominee of the
depositary; provided, however, that interest payable at maturity, even if the
maturity date is also an interest payment date, will be paid to the person to
whom principal is paid. If the original issue date of a Note is between a record
date and an interest payment date, the initial interest payment will be made on
the interest payment date following the next record date to the registered
holder on such next record date. Unless the pricing supplement states otherwise,
the 'record date' for any interest payment date shall be fifteen calendar days
prior to such interest payment date, whether or not such date is a Business Day.
Unless the pricing supplement states otherwise, payments of interest on
Notes will include the amount of interest accrued to, but excluding, the
interest payment date, maturity date or redemption date, as the case may be.
In the case of Notes denominated in, and for which principal, premium, if
any, and interest payments are in, U.S. dollars, payments will be made, and the
Notes will be transferable, at the office of the paying agent, The Chase
Manhattan Bank, 450 West 33rd Street, New York, New York, or at such other place
or places as may be designated pursuant to the indenture; provided that the
company, at its option, may pay interest other than interest due at maturity by
check mailed to registered holders. In the case of Book-Entry Notes represented
by a global security, payments will be made to a nominee of the depositary.
Unless the pricing supplement states otherwise, interest on Notes, except
for interest due at maturity, payable in a currency other than U.S. dollars will
be paid by mailing a check or draft in such currency drawn on an account at a
bank outside of the United States. If any Notes are denominated in a currency
other than U.S. dollars or if the principal of, premium, if any, or interest on,
any Notes is payable in a currency other than U.S. dollars, the pricing
supplement will provide additional information pertaining to the terms of such
Notes. The principal and accrued interest payable at maturity of a Note will be
paid in immediately available funds upon surrender of the Note at the office of
the Trustee at the above address or at such other place or places as may be
designated pursuant to the indenture.
FIXED RATE NOTES
Unless the pricing supplement states otherwise, payments of interest on
Fixed Rate Notes (other than an Amortizing Note) will be made on (1) May 15 and
November 15 of each year, except as provided above with respect to Notes issued
between a record date and an interest payment date, and (2) at maturity. Unless
the pricing supplement states otherwise, payments of principal and interest on
each Amortizing Note will be made semi-annually each May 15 and November 15. See
also ' -- Amortizing Notes' below.
If any interest payment date or the maturity date of a Fixed Rate Note
falls on a day that is not a Business Day, the payment will be made on the next
Business Day as if it were made on the date such payment was due, and no
additional interest will accrue as a result of such delayed payment.
Unless the pricing supplement states otherwise, Fixed Rate Notes will bear
interest from the date of issue. Interest will be calculated on the basis of a
year of twelve thirty-day months.
FLOATING RATE NOTES
Except as provided below or if the pricing supplement states otherwise,
interest on Floating Rate Notes will be payable at maturity and:
S-6
<PAGE>
<PAGE>
for Notes with a daily, weekly or monthly Interest Reset Date, on the
third Wednesday of each month or on the third Wednesday of February, May,
August and November, as specified in the pricing supplement;
for Notes with a quarterly Interest Reset Date, on the third Wednesday of
February, May, August and November;
for Notes with a semi-annual Interest Reset Date, on the third Wednesday
of the two months specified in the pricing supplement; and
for Notes with an annual Interest Reset Date, on the third Wednesday of
the month specified in the pricing supplement.
If any interest payment date for any Floating Rate Note (other than the
maturity date) falls on a day that is not a Business Day, such interest payment
date will be postponed to the next Business Day, except that in the case of a
LIBOR Note, if such Business Day falls in the next succeeding calendar month,
such Interest Payment Date will be the immediately preceding Business Day. If
the maturity date of a Floating Rate Note falls on a day that is not a Business
Day, the required payment of principal, premium, if any, and interest will be
made on the next Business Day as if it were made on the date such payment was
due, and no interest shall accrue as a result of such delayed payment.
Unless the pricing supplement states otherwise, the interest rate on each
Floating Rate Note will be calculated by reference to a 'Base Rate' (1) plus or
minus the Spread, if any, and/or (2) multiplied by the Spread Multiplier, if
any. The pricing supplement will designate one or more of the following Base
Rates as applicable to each Floating Rate Note:
the Commercial Paper Rate (a 'Commercial Paper Rate Note');
the Federal Funds Rate (a 'Federal Funds Rate Note');
the Certificate of Deposit Rate (a 'CD Rate Note');
LIBOR (a 'LIBOR Note');
the Treasury Rate (a 'Treasury Rate Note');
the Prime Rate (a 'Prime Rate Note');
the Constant Maturity Treasury Rate (a 'CMT Rate Note'); or
such other Base Rate or interest rate formula as is set forth in such
pricing supplement and in such Floating Rate Note.
The 'Spread' is the number of basis points (one one-hundredth of a
percentage point) specified in the pricing supplement as being applicable to the
interest rate for such Floating Rate Note. The 'Spread Multiplier' is the
percentage specified in the pricing supplement as being applicable to the
interest rate for such Floating Rate Note. The 'Index Maturity' for any Floating
Rate Note is the period of maturity of the instrument or obligation from which
the Base Rate is calculated and will be specified in the pricing supplement.
A Floating Rate Note may also have either or both of the following: (1) a
maximum limit, or ceiling, on the rate of interest that may accrue during any
interest period (a 'Maximum Interest Rate'); and (2) a minimum limit, or floor,
on the rate of interest that may accrue during any interest period (a 'Minimum
Interest Rate'). The applicable pricing supplement will indicate the Maximum
Interest Rate and Minimum Interest Rate, if any. In addition to any Maximum
Interest Rate which may be applicable to any Floating Rate Note, the interest
rate on a Floating Rate Note will not exceed the maximum rate permitted by New
York law, as the same may be modified by United States law of general
application.
The rate of interest on each Floating Rate Note will be reset daily,
weekly, monthly, quarterly, semi-annually or annually (such period being the
'Interest Reset Period' for such Note and the first date of each Interest Reset
Period, on which such interest rate becomes effective, being an 'Interest Reset
Date'), as specified in the pricing supplement. Unless the pricing supplement
states otherwise, the Interest Reset Date will be:
S-7
<PAGE>
<PAGE>
for Floating Rate Notes which reset daily, each Business Day;
for Floating Rate Notes (other than Treasury Rate Notes) which reset
weekly, the Wednesday of each week;
for Treasury Rate Notes which reset weekly, the Tuesday of each week;
for Floating Rate Notes which reset monthly, the third Wednesday of each
month;
for Floating Rate Notes which reset quarterly, the third Wednesday of
February, May, August and November;
for Floating Rate Notes which reset semi-annually, the third Wednesday of
two months of each year, as specified in the pricing supplement; and
for Floating Rate Notes which reset annually, the third Wednesday of one
month of each year, as specified in the pricing supplement.
The interest rate in effect from the date of issue to the first Interest
Reset Date will be the Initial Interest Rate in the pricing supplement. If any
Interest Reset Date for any Floating Rate Note is not a Business Day, such
Interest Reset Date shall be postponed to the next Business Day, except that in
the case of a LIBOR Note, if such Business Day is in the next calendar month,
such Interest Reset Date shall be the preceding Business Day. Each adjusted rate
shall be applicable on and after the Interest Reset Date to which it relates,
to, but not including, the next Interest Reset Date or the maturity date or the
date of redemption, as the case may be.
We will calculate accrued interest on a Floating Rate Note by multiplying
the principal amount of such Floating Rate Note by an accrued interest factor.
We will compute such accrued interest factor by adding the interest factors
calculated for each day in the Interest Reset Period or from the last date from
which accrued interest is being calculated. If a Floating Rate Note is an
Indexed Note, we will calculate accrued interest by multiplying the Face Amount
of such Indexed Note by the accrued interest factor. Unless the pricing
supplement states otherwise, we will compute the interest factor for each day by
dividing the interest rate applicable to such day by 360, for Commercial Paper
Rate Notes, Federal Funds Rate Notes, CD Rate Notes, LIBOR Notes and Prime Rate
Notes, or by the actual number of days in the year for Treasury Rate Notes and
CMT Rate Notes. The interest rate applicable on an Interest Reset Date is the
applicable rate as reset on such date. The interest rate applicable to any day
that is not an Interest Reset Date is the interest rate for the immediately
preceding Interest Reset Date or, if none, the initial interest rate, as
specified in the pricing supplement.
Unless the pricing supplement states otherwise, The Chase Manhattan Bank
will be the calculation agent (the 'Calculation Agent') for any issue of
Floating Rate Notes. Upon the request of the holder of any Floating Rate Note,
the Calculation Agent will provide the interest rate then in effect and, if
determined, the interest rate which will be in effect on the next Interest Reset
Date for such Floating Rate Note.
All percentages resulting from any calculation of the interest rate on a
Floating Rate Note will be rounded, if necessary, to the nearest
one-hundred-thousandth of a percentage point (.0000001), with five
one-millionths of a percentage point rounded upward. All dollar amounts used in
or resulting from such calculation on Floating Rate Notes will be rounded to the
nearest cent (with one-half cent rounded upward).
Unless the pricing supplement states otherwise, the 'Calculation Date' for
any Commercial Paper Interest Determination Date, Federal Funds Interest
Determination Date, CD Interest Determination Date, Treasury Rate Determination
Date, Prime Rate Interest Determination Date and CMT Rate Interest Determination
Date (each as defined below) will be the earlier of (1) the tenth calendar day
after such date, or, if such tenth day is not a Business Day, the next Business
Day and (2) the Business Day preceding the applicable Interest Payment Date or
date of maturity, as the case may be.
The pricing supplement will specify the initial interest rate in effect
with respect to a Floating Rate Note from the Issue Date to the first Interest
Reset Date. The interest rate for each subsequent Interest Reset Date will be
determined by the Calculation Agent as follows:
S-8
<PAGE>
<PAGE>
COMMERCIAL PAPER RATE NOTES. Commercial Paper Rate Notes are Floating Rate
Notes that bear interest at an interest rate which is calculated by referring to
the Commercial Paper Rate and the Spread and Spread Multiplier, if any,
specified in such Notes and in the applicable pricing supplement.
The 'Commercial Paper Interest Determination Date' relating to an Interest
Reset Date will be the second Business Day preceding such Interest Reset Date.
Unless the pricing supplement states otherwise, on the Calculation Date, the
Calculation Agent will determine the Commercial Paper Rate as of the Commercial
Paper Interest Determination Date and that rate will be effective on the related
Interest Reset Date. Such 'Commercial Paper Rate' shall be the Money Market
Yield (as defined below) of the rate on such Commercial Paper Interest
Determination Date for commercial paper having the Index Maturity specified in
the pricing supplement, as such rate shall be published by the Board of
Governors of the Federal Reserve System in 'Statistical Release H.15(519),
Selected Interest Rates,' or any successor publication ('H.15(519)'), under the
heading 'Commercial Paper -- Financial.'
The following procedures will be followed if the Commercial Paper Rate
cannot be determined as described above:
In the event that the above rate is not published prior to 9:00 A.M.,
New York City time, on the Calculation Date, then the Commercial Paper Rate
shall be the Money Market Yield on such Commercial Paper Interest
Determination Date of the rate for commercial paper of the specified Index
Maturity as published by the Federal Reserve Bank of New York in its daily
statistical release 'Composite 3:30 P.M. Quotations for U.S. Government
Securities' ('Composite Quotations') under the heading 'Commercial Paper';
If by 3:00 P.M., New York City time, on such Calculation Date such
rate is not yet published in either H.15(519) or Composite Quotations, the
Calculation Agent will calculate the Commercial Paper Rate as a rate equal
to the Money Market Yield of the arithmetic mean (each as rounded to the
nearest one-hundred-thousandth of a percentage point) of the offered rates
as of 11:00 A.M., New York City time, on such Commercial Paper Interest
Determination Date of three leading dealers of commercial paper in New York
City selected by the Calculation Agent for commercial paper of the
specified Index Maturity, placed for an industrial issuer whose bond rating
is 'Aa' or the equivalent from a nationally recognized rating agency; and
If the dealers selected by the Calculation Agent are not quoting
offered rates as mentioned in the above sentence, the rate of interest
determined as of such Commercial Paper Interest Determination Date will be
the rate of interest then in effect on such Commercial Paper Interest
Determination Date.
'Money Market Yield' shall be a yield (expressed as a percentage rounded to
the nearest one hundred-thousandth of a percentage point) calculated in
accordance with the following formula:
Money Market Yield = D X 360 X 100
_____________
360 - (D X M)
where 'D' refers to the applicable per annum rate for commercial paper quoted on
a bank discount basis and expressed as a decimal, and 'M' refers to the actual
number of days in the period for which interest is being calculated.
FEDERAL FUNDS RATE NOTES. Federal Funds Rate Notes are Floating Rate Notes
that bear interest at an interest rate calculated with reference to the Federal
Funds Rate and the Spread and Spread Multiplier, if any, specified in such Notes
and in the applicable pricing supplement.
The 'Federal Funds Interest Determination Date' relating to an Interest
Reset Date will be the second Business Day preceding such Interest Reset Date.
Unless the pricing supplement states otherwise, on the Calculation Date, the
Calculation Agent will determine the Federal Funds Rate as of the Federal Funds
Interest Determination Date and that rate will be effective on the related
Interest Reset Date. Such 'Federal Funds Rate' shall be the effective rate for
Federal Funds on
S-9
<PAGE>
<PAGE>
such Federal Funds Interest Determination Date as published in H.15(519) under
the heading 'Federal Funds (Effective).'
The following procedures will be followed if the Federal Funds Rate cannot
be determined as described above:
In the event that the above rate is not so published by 9:00 A.M., New
York City time, on the Calculation Date, then the Federal Funds Rate will
be the interest rate on such Federal Funds Interest Determination Date as
published by the Federal Reserve Bank of New York in Composite Quotations
under the heading 'Federal Funds/Effective Rate.'
If such rate is not yet published by 3:00 P.M., New York City time, on
the Calculation Date, the Calculation Agent will calculate the Federal
Funds Rate as a rate equal to the arithmetic mean of the rates for the last
transaction in overnight United States dollar federal funds arranged by
three leading brokers of federal funds transactions in New York City (which
may include an Agent or its affiliates) selected by the Calculation Agent
prior to 9:00 A.M., New York City time, on such Federal Funds Interest
Determination Date.
If the brokers so selected by the Calculation Agent are not quoting as
mentioned in the above sentence, the Federal Funds Rate determined as of
such Federal Funds Interest Determination Date will be the rate of interest
then in effect on such Federal Funds Interest Determination Date.
CD RATE NOTES. CD Rate Notes are Floating Rate Notes that bear interest at
an interest rate calculated with reference to the CD Rate and the Spread and
Spread Multiplier, if any, specified in such Notes and in the applicable pricing
supplement.
The 'CD Interest Determination Date' relating to an Interest Reset Date
will be the second Business Day preceding such Interest Reset Date. Unless the
pricing supplement states otherwise, on the Calculation Date, the Calculation
Agent will determine the CD Rate as of the CD Interest Determination Date and
that rate will be effective on the related Interest Reset Date. Such 'CD Rate'
shall be the rate for negotiable certificates of deposit having the Index
Maturity designated in the pricing supplement on such CD Interest Determination
Date, as such rate shall be published in H.15(519) under the heading 'CDs
(Secondary Market).'
The following procedures will be followed if the CD Rate cannot be
determined as described above:
In the event the above rate is not so published by 9:00 A.M., New York
City time, on the Calculation Date, the CD Rate will be the rate on such CD
Interest Determination Date for negotiable certificates of deposit of the
Index Maturity specified in the pricing supplement as published by the
Federal Reserve Bank of New York in Composite Quotations under the heading
'Certificates of Deposit.'
If by 3:00 P.M., New York City time, on such Calculation Date such
rate is not yet published in Composite Quotations, the Calculation Agent
will calculate the CD Rate as a rate equal to the arithmetic mean of the
secondary market offered rates as of 10:00 A.M., New York City time, on
such CD Interest Determination Date of three leading nonbank dealers in
negotiable U.S. dollar certificates of deposit in New York City selected by
the Calculation Agent for negotiable certificates of deposit of major
United States money center banks (in the market for negotiable certificates
of deposit) with a remaining maturity closest to the Index Maturity
specified in the pricing supplement in the denomination of $5,000,000.
If the dealers so selected by the Calculation Agent are not so quoting
such rates, the CD Rate determined as of such CD Interest Determination
Date will be the rate of interest then in effect on such CD Interest
Determination Date.
LIBOR NOTES. LIBOR Notes are Floating Rate Notes that bear interest at an
interest rate calculated with reference to LIBOR and the Spread and Spread
Multiplier, if any, specified in such Notes and in the applicable pricing
supplement.
The 'LIBOR Determination Date' relating to an Interest Reset Date will be
the second London Banking Day preceding such Interest Reset Date. Unless the
pricing supplement states
S-10
<PAGE>
<PAGE>
otherwise, LIBOR with respect to any Interest Reset Date will be determined by
the Calculation Agent in accordance with the following provisions:
If 'LIBOR Reuters' is specified as the reporting service in the
pricing supplement, LIBOR will be the arithmetic mean of the offered rates
for deposits in the Index Currency (as defined below) having the Index
Maturity designated in the pricing supplement, commencing on such Interest
Reset Date, that appear on the Designated LIBOR Page (as defined below) as
of 11:00 A.M., London time, on that LIBOR Determination Date, if at least
two such offered rates appear; provided, however that if the specified
Designated LIBOR Page by its terms provides only for a single rate then
such single rate will be used.
If 'LIBOR Telerate' is specified as the reporting service in the
pricing supplement, LIBOR will be the rate for deposits in the Index
Currency having the Index Maturity designated in the pricing supplement,
commencing on such Interest Reset Date, that appears on the Designated
LIBOR Page as of 11:00 A.M., London time, on that LIBOR Determination Date.
If fewer than two offered rates appear, or no rate appears, as
applicable, LIBOR in respect of the related LIBOR Determination Date will
be determined as follows:
The Calculation Agent will request the principal London offices of
each of four major reference banks in the London interbank market, as
selected by the Calculation Agent, to provide the Calculation Agent with
its offered quotation for deposits in the Index Currency for the period of
the Index Maturity designated in the pricing supplement, commencing on such
Interest Reset Date, to prime banks in the London interbank market at
approximately 11:00 A.M., London time, on such LIBOR Determination Date and
in a principal amount of not less than $1,000,000 (or the equivalent in the
Index Currency, if the Index Currency is not the U.S. dollar) that is
representative for a single transaction in such Index Currency in such
market at such time.
If at least two such quotations are provided, LIBOR determined on such
LIBOR Determination Date will be the arithmetic mean of such quotations.
If fewer than two quotations are provided, LIBOR determined on such
LIBOR Determination Date will be the arithmetic mean of the rates quoted at
approximately 11:00 A.M. (or such other time specified in the pricing
supplement), in the applicable Principal Financial Center for the country
of the Index Currency on such LIBOR Determination Date, by three major
banks in such Principal Financial Center selected by the Calculation Agent
for loans in the Index Currency to leading European banks, having the Index
Maturity designated in the pricing supplement and in a principal amount of
not less than $1,000,000 (or the equivalent in the Index Currency, if the
Index Currency is not the U.S. dollar) that is representative for a single
transaction in such Index Currency in such market at such time.
If the banks so selected by the Calculation Agent are not quoting as
mentioned in the above sentence, the rate of interest determined on such
LIBOR Determination Date will be the rate of interest then in effect on
such LIBOR Determination Date.
'Index Currency' means the currency (including composite currencies)
specified in the pricing supplement as the currency for which LIBOR shall be
calculated. If no such currency is specified in the applicable pricing
supplement, the Index Currency shall be U.S. dollars.
'Designated LIBOR Page' means either (a) if 'LIBOR Reuters' is designated
in the pricing supplement, the display designated as page 'LIBO' with respect to
the applicable Index Currency on the Reuters Monitor Money Rates Service (or
such other page as may replace page 'LIBO' on such service for the purpose of
displaying the London interbank rates of major banks for the applicable Index
Currency), or (b) if 'LIBOR Telerate' is designated in the pricing supplement,
the display designated as page '3750' with respect to the applicable Index
Currency on Bridge Telerate, Inc. (or such other page as may replace page '3750'
on such service or such other service as may be nominated by the British
Bankers' Association for the purpose of displaying the London interbank rates of
major banks for the applicable Index Currency). If neither LIBOR Reuters nor
LIBOR Telerate is specified in the pricing supplement, LIBOR for the applicable
S-11
<PAGE>
<PAGE>
Index Currency will be determined as if LIBOR Telerate (and, if the U.S. dollar
is the Index Currency, Page 3750) had been specified.
TREASURY RATE NOTES. Treasury Rate Notes are Floating Rate Notes that bear
interest at an interest rate calculated with reference to the Treasury Rate and
the Spread and Spread Multiplier, if any, specified in such Notes and in the
applicable pricing supplement.
The 'Treasury Rate Determination Date' pertaining to an Interest Reset Date
will be the day of the week in which such Interest Reset Date falls on which
Treasury bills would normally be auctioned. Treasury bills are normally sold at
auction on Monday of each week. If Monday is a legal holiday, then such auction
is normally held on the following Tuesday, except that such auction may be held
on the preceding Friday. If, as the result of a legal holiday, an auction is so
held on the preceding Friday, such Friday will be the Treasury Rate
Determination Date pertaining to the Interest Reset Date occurring in the next
succeeding week. If an auction date shall fall on any day that would otherwise
be an Interest Reset Date for a Treasury Rate Note, then such Interest Reset
Date shall instead be the Business Day immediately following such auction date.
Unless the pricing supplement states otherwise, on the Calculation Date,
the Calculation Agent will determine the Treasury Rate as of the Treasury Rate
Determination Date and that rate will be effective on the related Interest Reset
Date. Such 'Treasury Rate' shall be the rate for the auction held on such
Treasury Rate Determination Date of direct obligations of the United States
('Treasury bills') having the Index Maturity designated in the pricing
supplement, as published in H.15(519) under the heading 'U.S. Government
Securities -- Treasury bills -- auction average (investment).'
The following procedures will be followed if the Treasury Rate cannot be
determined as described above:
In the event the above rate is not so published by 9:00 A.M., New York
City time, on the Calculation Date pertaining to such Treasury Rate
Determination Date, the Treasury Rate will be the auction average rate
(expressed as a bond equivalent, on the basis of a year of 365 or 366 days,
as applicable, and applied on a daily basis) as otherwise announced by the
United States Department of the Treasury.
In the event that the results of the auction of Treasury bills having
the Index Maturity designated in the pricing supplement are not published
or reported as provided above by 3:00 P.M., New York City time, on such
Calculation Date or if no such auction is held on such Treasury Rate
Determination Date, then the Calculation Agent will calculate the Treasury
Rate to be a yield to maturity (expressed as a bond equivalent, on the
basis of a year of 365 or 366 days, as applicable, and applied on a daily
basis) of the arithmetic mean of the secondary market bid rates, as of
approximately 3:30 P.M., New York City time, on such Treasury Rate
Determination Date, of three leading primary United States government
securities dealers selected by the Calculation Agent for the issue of
Treasury bills with a remaining maturity closest to the Index Maturity
designated in the pricing supplement.
If the dealers selected as aforesaid by the Calculation Agent are not
quoting bid rates as mentioned in the above sentence, the rate of interest
determined as of such Treasury Rate Determination Date will be the rate of
interest then in effect on such Treasury Rate Determination Date.
PRIME RATE NOTES. Prime Rate Notes are Floating Rate Notes that bear
interest at an interest rate calculated with reference to the Prime Rate and the
Spread and Spread Multiplier, if any, specified in such Notes and in the
applicable pricing supplement.
The 'Prime Rate Interest Determination Date' relating to an Interest Reset
Date will be the second Business Day preceding such Interest Reset Date. Unless
the pricing supplement states otherwise, on the Calculation Date, the
Calculation Agent will determine the Prime Rate as of the Prime Rate Interest
Determination Date and that rate will be effective on the related Interest Reset
Date. Such 'Prime Rate' shall be the rate on such Prime Rate Interest
Determination Date as published in H.15(519) under the heading 'Prime Bank
Loan.'
S-12
<PAGE>
<PAGE>
The following procedures will be followed if the Prime Rate cannot be
determined as described above:
In the event that such rate is not published by 9:00 A.M., New York
City time, on the Calculation Date pertaining to such Prime Rate Interest
Determination Date, the Calculation Agent will calculate the Prime Rate to
be the arithmetic mean of the rates of interest publicly announced by each
bank named on the 'Reuters Screen USPRIME1' (as defined below) as such
bank's prime rate or base lending rate as in effect for such Prime Rate
Interest Determination Date. 'Reuters Screen USPRIME1' means the display
designated as page 'USPRIME1' on the Reuters Monitor Money Rates Service
(such term to include such other page as may replace the page USPRIME1 on
that Service for the purpose of displaying prime rates or base lending
rates of major United States banks).
If fewer than four such rates appear on the 'Reuters Screen USPRIME1'
for such Prime Rate Interest Determination Date, the Calculation Agent will
calculate the Prime Rate to be the arithmetic mean of the prime rates
quoted on the basis of the actual number of days elapsed divided by 360 as
of the close of business on such Prime Rate Interest Determination Date by
at least two major money center banks in New York City selected by the
Calculation Agent from a list of at least three such banks approved by the
company.
If fewer than two such rates are quoted by the banks selected in
accordance with the above sentence, the Calculation Agent will calculate
the Prime Rate to be the arithmetic mean of the prime rates furnished in
New York City by an appropriate number (in the judgment of the Calculation
Agent) of substitute banks or trust companies organized and doing business
under the laws of the United States, or any State thereof, in each case
having total equity capital of at least U.S.$500,000,000 and being subject
to supervision or examination by federal or state authority, selected by
the Calculation Agent from a list approved by the company to provide such
rate or rates.
If the banks or trust companies selected by the Calculation Agent in
accordance with the above sentence are not quoting as mentioned in the
above sentence, the rate of interest determined as of such Prime Rate
Interest Determination Date will be the rate of interest then in effect on
such Prime Rate Interest Determination Date.
CMT RATE NOTES. CMT Rate Notes are Floating Rate Notes that bear interest
at an interest rate calculated with reference to the CMT Rate and the Spread and
Spread Multiplier, if any, specified in such Notes and the applicable pricing
supplement.
The 'CMT Rate Interest Determination Date' relating to an Interest Reset
Date will be the second Business Day prior to such Interest Reset Date. Unless
the pricing supplement states otherwise, on the Calculation Date, the
Calculation Agent will determine the CMT Rate as of the CMT Rate Interest
Determination Date and that rate will be effective on the related Interest Reset
Date. Such 'CMT Rate' will be the rate displayed on the Designated CMT Telerate
Page (as defined below) under the caption ' . . . Treasury Constant
Maturities . . . Federal Reserve Board Release H.15 . . . Mondays Approximately
3:45 P.M.,' under the column for the Designated CMT Maturity Index (as defined
below) for:
If the Designated CMT Telerate Page is 7055, such CMT Rate Interest
Determination Date.
If the Designated CMT Telerate Page is 7052, the week, or the month,
as set forth in the pricing supplement, ended immediately preceding the
week in which the related CMT Rate Interest Determination Date occurs.
The following procedures will be followed if the CMT Rate cannot be
determined as described above:
In the event such rate is no longer displayed on the relevant page, or
if not displayed by 3:00 P.M., New York City time, on the related
Calculation Date, then the CMT Rate for such CMT Rate Interest
Determination Date will be such Treasury Constant Maturity rate for the
Designated CMT Maturity Index as published in H.15(519) for such date.
S-13
<PAGE>
<PAGE>
If such rate is no longer published, or if not published by 3:00 P.M.,
New York City time, on the related Calculation Date, then the CMT Rate will
be such Treasury Constant Maturity rate for the Designated CMT Maturity
Index (or other United States Treasury rate for the Designated CMT Maturity
Index) for such CMT Rate Interest Determination Date as may then be
published by either the Board of Governors of the Federal Reserve System or
the United States Department of the Treasury that the Calculation Agent
determines to be comparable to the rate formerly displayed on the
Designated CMT Telerate Page and published in H.15(519).
If the information described in the above sentence is not provided by
3:00 P.M., New York City time, then the Calculation Agent will calculate
the CMT Rate to be a yield to maturity, based on the arithmetic mean of the
secondary market offer side prices as of approximately 3:30 P.M., New York
City time, on the CMT Rate Interest Determination Date reported, according
to their written records, by three leading primary United States government
securities dealers (each, a 'Reference Dealer') in New York City selected
by the Calculation Agent. The three Reference Dealers shall be selected
from five such Reference Dealers selected by the Calculation Agent by
eliminating the highest quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event of equality, one of the
lowest)), for the most recently issued direct noncallable fixed rate
obligations of the United States ('Treasury Notes') with an original
maturity of approximately the Designated CMT Maturity Index and a remaining
term to maturity of not less than such Designated CMT Maturity Index minus
one year.
If the Calculation Agent cannot obtain three such Treasury Note
quotations, the Calculation Agent will determine the CMT Rate to be a yield
to maturity based on the arithmetic mean of the secondary market offer side
prices as of approximately 3:30 P.M. (New York City time) on the CMT Rate
Interest Determination Date of three Reference Dealers in New York City.
The three Reference Dealers shall be selected from five such Reference
Dealers selected by the Calculation Agent and eliminating the highest
quotation (or, in the event of equality, one of the highest) and the lowest
quotation (or, in the event of equality, one of the lowest), for Treasury
Notes with an original maturity of the number of years that is the next
highest to the Designated CMT Maturity Index and a remaining term to
maturity closest to the Designated CMT Maturity Index and in an amount of
at least $100 million. If two such Treasury Notes have remaining terms to
maturity equally close to the Designated CMT Maturity Index, the quotes for
the Treasury Note with the shorter remaining term to maturity will be used.
If three or four (and not five) of such Reference Dealers are quoting
as described above, then the CMT Rate will be based on the arithmetic mean
of the offer prices obtained and neither the highest nor lowest of such
quotes will be eliminated.
If fewer than three Reference Dealers selected by the Calculation
Agent are quoting as described herein, the rate of interest determined as
of such CMT Rate Interest Determination Date will be the rate of interest
then in effect on such CMT Rate Interest Determination Date.
'Designated CMT Telerate Page' means the display on Bridge Telerate, Inc.
on the page designated in the pricing supplement (or any other page as may
replace such page on that service for the purpose of displaying Treasury
Constant Maturities as reported in H.15(519)), for the purpose of displaying
Treasury Constant Maturities as reported in H.15(519). If no such page is
specified in the pricing supplement, the Designated CMT Telerate Page shall be
7052, for the most recent week.
'Designated CMT Maturity Index' means the original period to maturity of
the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20, or 30 years)
specified in the pricing supplement with respect to which the CMT Rate will be
calculated. If no such maturity is specified in the pricing supplement, the
Designated CMT Maturity Index shall be 2 years.
S-14
<PAGE>
<PAGE>
AMORTIZING NOTES
We may from time to time offer Notes for which payments of principal and
interest are made in installments over the life of the Note ('Amortizing
Notes'). Interest on each Amortizing Note will be computed as set forth in the
applicable pricing supplement or in the Book-Entry Note representing such
Amortizing Note. Unless otherwise provided in such pricing supplement or in such
Book-Entry Note, payments with respect to Amortizing Notes will be applied first
to interest due and payable on such Amortizing Note and then to the reduction of
the unpaid principal amount of such Amortizing Note. A table setting forth
repayment information with respect to each Amortizing Note will be provided to
the original purchaser of such Note and will be available upon request to the
subsequent holders of such Note.
INDEXED NOTES
We may from time to time offer Indexed Notes for which the principal amount
payable at maturity, or premium or interest on which, is determined by reference
to a measure (the 'Index'). The Index will be:
(1) the rate of exchange between the specified currency for such Note
and another currency or composite currency (the 'Indexed Currency')
specified in the pricing supplement (such Indexed Notes, 'Currency Indexed
Notes');
(2) the difference in the price of a specified commodity (the 'Indexed
Commodity') on specified dates;
(3) the difference in the level of a specified stock index (the 'Stock
Index'), which may be based on U.S. or foreign stocks, on specified dates;
or
(4) such other objective price or economic measures as are described
in the pricing supplement.
The pricing supplement will set forth the manner of determining the
principal amount payable at maturity, and interest and premium, if any, on an
Indexed Note, and historical and other information concerning the Indexed
Currency, Indexed Commodity, Stock Index or other price or economic measures
used in such determination, together with information concerning tax
consequences to the holders of such Indexed Notes.
If the determination of the principal amount payable at maturity, and
interest and premium, if any, on an Indexed Note is based on an Index calculated
or announced by a third party and such third party either suspends the
calculation or announcement of such Index or changes the basis upon which such
Index is calculated (other than changes consistent with policies in effect at
the time such Indexed Note was issued and permitted changes described in the
pricing supplement), then such Index shall be calculated by an independent
calculation agent named in the pricing supplement on the same basis, and subject
to the same conditions and controls, as applied to the original third party. If
for any reason such Index cannot be calculated on the same basis and subject to
the same conditions and controls as applied to the original third party, then
the principal amount payable at maturity for such Indexed Note shall be
calculated in the manner set forth in the pricing supplement. Any determination
of such independent calculation agent shall in the absence of manifest error be
binding on all parties.
Unless the pricing supplement states otherwise, we will pay interest on an
Indexed Note based on the amount designated in the pricing supplement as the
'Face Amount' of such Indexed Note. The pricing supplement will describe whether
the principal amount of the related Indexed Note that would be payable upon
redemption or repayment prior to maturity will be:
(1) the Face Amount of such Indexed Note,
(2) the principal amount of such Indexed Note determined by referring
to the Index at the time of redemption or repayment, or
(3) another amount described in such pricing supplement.
S-15
<PAGE>
<PAGE>
DISCOUNT NOTES
We may issue a Note as a zero coupon Note or at a price which is at a
substantial discount from its principal amount (a 'Discount Note'). Upon
redemption or repayment prior to maturity or acceleration of maturity of a
Discount Note, an amount less than the principal amount of such Note shall
become due and payable. If a bankruptcy proceeding is commenced in respect of
the company, the claim of the holders of Discount Notes may be limited under
section 502(b) of Title 11 of the United States Code to the initial public
offering price of such Discount Notes, plus that portion of the original issue
discount that is amortized from the date of issue to the commencement of the
bankruptcy proceeding plus accrued interest. Accordingly, the holders of
Discount Notes under such circumstances may receive a lesser amount than they
would be entitled to under the express terms of such Discount Notes.
Unless the pricing supplement states otherwise, if a Note is a Discount
Note, the amount payable on such Note in the event of redemption or repayment
prior to its maturity shall be the Amortized Face Amount of such Note as of the
date of redemption or the date of repayment, as the case may be. The 'Amortized
Face Amount' of a Discount Note shall be the amount equal to:
(1) the issue price set forth in the pricing supplement plus
(2) the portion of the difference between the issue price and the
principal amount of such Note that has accrued at the yield to maturity set
forth in the pricing supplement (computed in accordance with generally
accepted United States bond yield computation principles) to such date of
redemption or repayment;
but in no event shall the Amortized Face Amount of a Discount Note exceed its
principal amount.
REDEMPTION AND REPURCHASE
Unless the pricing supplement states otherwise, a Note cannot be redeemed
prior to maturity. If any Note will be redeemable at the option of the company,
the applicable pricing supplement will indicate the date or dates for redemption
prior to such maturity and the price or prices payable upon such redemption,
together with accrued interest to the date of redemption. The company may redeem
any of the Notes that are redeemable and remain outstanding either in whole or
from time to time in part, upon not less than 30 nor more than 60 days' notice.
If less than all Notes with like tenor and terms are to be redeemed, the Notes
to be redeemed shall be selected by the Trustee by such method as the Trustee
shall deem fair and appropriate. Unless the pricing supplement states otherwise,
the Notes will not be subject to any sinking fund.
The company may at any time purchase Notes at any price in the open market
or otherwise. The company may, at its discretion, hold, resell or surrender such
Notes to the Trustee for cancellation.
REPAYMENT AT OPTION OF THE HOLDER
Unless the pricing supplement states otherwise, you will not have the right
to require the company to repay a Note prior to maturity. If the pricing
supplement states that you will have the right to require such repayment, the
pricing supplement will indicate the date or dates for repayment prior to
maturity, and the price or prices, together with accrued interest to the date of
repayment, payable upon such repayment.
In order for you to exercise any repayment option applicable to a Note, you
must deliver to the Trustee at least 30 days (but no more than 45 days prior to
the repayment date):
(1) the Note with the form entitled 'Option to Elect Repayment' on the
reverse of the Note duly completed or
(2) a telegram, telex, facsimile transmission or a letter from a
member of a national securities exchange or the National Association of
Securities Dealers, Inc. or a commercial bank or trust company in the
United States ('Transmittal Guarantor') setting forth the name
S-16
<PAGE>
<PAGE>
of the holder of the Note, the principal amount of the Note, the principal
amount of the Note to be repaid, the certificate number or a description of
the tenor and terms of the Note. Such communication must also contain a
statement that you are exercising the option to elect repayment and
guarantee from the Transmittal Guarantor that you will deliver the Note to
be repaid with the form entitled 'Option to Elect Repayment' on the reverse
of the Note duly completed to the Trustee not later than three Business
Days after the date of such telegram, telex, facsimile transmission or
letter. Additionally, such Note and form duly completed must be received by
the Trustee by such third Business Day.
You may exercise a repayment option for less than the entire principal amount of
the Note, provided that the principal amount of the Note remaining outstanding
after repayment is an authorized denomination.
BOOK-ENTRY SYSTEM
Upon issuance, all Book-Entry Notes which are:
Fixed Rate Notes that have the same issue date, maturity date, redemption
or repayment provisions, interest payment dates, interest rate and
amortization schedule will be represented by a single global security;
Floating Rate Notes that have the same issue date, maturity date,
redemption or repayment provisions, interest payment dates, Base Rate,
Initial Interest Rate, Interest Payment Dates, Index Maturity, Interest
Reset Dates, Spread or Spread Multiplier, if any, Minimum Interest Rate,
if any, and Maximum Interest Rate, if any, will be represented by a single
global security; and
Notes other than Fixed Rate Notes and Floating Rate Notes that have the
same issue date, maturity date, redemption or repayment provisions, and
interest payment dates will be represented by a single global security
(each such global security, a 'Global Security').
Each Global Security representing Book-Entry Notes will be deposited with,
or on behalf of, the depositary and registered in the name of a nominee of the
depositary. Except under circumstances described below, Book-Entry Notes will
not be exchangeable for Notes in certificated form 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 Securities Exchange Act of 1934, as amended.
The depositary holds securities that its participants deposit with the
depositary. The depositary also facilitates the settlement among its
participants of securities transactions, such as transfers and pledges, in
deposited securities through electronic computerized book-entry changes in its
participants' accounts. By doing so, the depositary eliminates the need for
physical movement of securities. The depositary's participants include
securities brokers and dealers (including the Agents), banks, trust companies,
clearing corporations, and certain other organizations, some which own the
depositary. The depositary is also owned by the New York Stock Exchange, Inc.,
the American Stock Exchange, Inc., and the National Association of Securities
Dealers, Inc. 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 participant, either directly or
indirectly. Persons who are not participants may beneficially own securities
held by the depositary only through participants. The rules applicable to the
depositary and its participants are on file with the Securities and Exchange
Commission.
S-17
<PAGE>
<PAGE>
The depositary's management 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 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.
BOOK-ENTRY FORMAT. Upon the issuance of a Global Security, the depositary
will credit its participants' account on its book-entry registration and
transfer system their respective principal amounts of the Notes represented by
such Global Security. The Agent designates which participants' accounts will be
credited, but if the Notes are offered and sold directly by us, then we will
designate such accounts. The only persons who may own beneficial interests in a
Global Security will be the depositary's participants or persons that hold
interests through such participants. Ownership of beneficial interests in such
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 its participants) and on the records of its participants
(with respect to interests of persons other than such participants). The laws of
some states may require that certain purchasers of securities take physical
delivery of such securities in definitive form. Such limits and laws may impair
your ability to transfer your interest in a Book-Entry Note.
So long as the depositary or its nominee is the registered owner of a
Global Security, the depositary or such nominee, as the case may be, will be
considered the sole owner or holder of the Notes represented by such Global
Security for all purposes under the indenture. Except as provided below or as we
may otherwise agree in our sole discretion, owners of beneficial interests in a
Global Security will not be entitled to have Notes represented by such Global
Security registered in their names, will not receive or be entitled to receive
physical delivery of Notes in definitive form and will not be considered the
owners or holders thereof under the indenture.
Principal, premium, if any, and interest payments on Notes registered in
the name of the depositary or its nominee will be made to the depositary or its
nominee, as the case may be, as the registered owner of the Global Security
representing such Notes. None of the company, the Trustee, any paying agent or
the registrar for such Notes will have any responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial
interests in such Global Security for such Notes or for maintaining, supervising
or reviewing any records relating to such beneficial interests.
We expect that the depositary for the 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 such Notes as shown on the records of the depositary or its nominee. We also
expect that payments by such participants to owners of beneficial interest in
such Global Security held through such participants will be governed by standing
instructions and customary practices, as is now the case with securities held
for the accounts of customers in bearer form or registered in
S-18
<PAGE>
<PAGE>
'street name' (i.e., the name of a securities broker or dealer). Such payments
will be the responsibility of such 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 Notes in definitive form in
exchange for the entire Global Security representing such Notes. In addition, we
may at any time, and in our sole discretion, determine not to have the Notes
represented by Global Securities and, in such event, will issue Notes in
definitive form in exchange for the Global Securities representing such Notes.
In any such instance, an owner of a beneficial interest in a Global Security
will be entitled to physical delivery in definitive form of Notes represented by
such Global Security equal in principal amount to such beneficial interest and
to have such Notes registered in its name. Notes so issued in definitive form
will be issued as registered Notes in denominations that are integral multiples
of $1,000 (or the appropriate increment of the specified currency, as the case
may be), unless otherwise specified by us.
DESCRIPTION OF GUARANTEE
Newcourt will unconditionally guarantee the due and punctual payment of the
principal, premium, if any, and interest on the Notes when and as the same shall
become due and payable, whether at maturity, upon redemption, or otherwise. The
Guarantee will rank equally with all other unsecured and unsubordinated
obligations of Newcourt. The right of Newcourt and, hence, the right of
creditors of Newcourt (including holders of the Notes, as beneficiaries of the
Guarantee) to participate in any distribution of the assets of any subsidiary of
Newcourt, whether upon liquidation, reorganization, or otherwise, is subject to
prior claims of creditors of each such subsidiary, except to the extent that
claims of Newcourt itself as a creditor of a subsidiary may be allowed.
FOREIGN CURRENCY AND INDEXED NOTE RISKS
FOREIGN CURRENCY RISKS
GENERAL. You should note that if you invest in Notes that are denominated
in a currency other than United States dollars, you will be assuming significant
risks that are not associated with a similar investment in a security
denominated in United States dollars. We have summarized some, but not all, of
such risks in this prospectus supplement. Such risks include the possibility
that the rates of exchange between the United States dollar and the various
foreign currencies will change significantly and the possibility that the United
States or any foreign government will impose or modify foreign exchange
controls. Such risks generally depend on economic and political events over
which we have no control. In recent years, rates of exchange between United
States dollars and certain foreign currencies have been highly volatile and such
volatility may be expected to continue in the future. Fluctuations in any
particular exchange rate that have occurred in the past are not necessarily
indicative, however, of fluctuations in such rate that may occur during the term
of any Note. Depreciation of the currency specified in a Note against the United
States dollar would result in a decrease in the effective yield of such Note
below its coupon rate, and under certain circumstances could result in a loss to
you on a United States dollar basis.
THIS PROSPECTUS SUPPLEMENT, ANY PRICING SUPPLEMENT AND THE ATTACHED
PROSPECTUS DO NOT DESCRIBE ALL THE RISKS OF AN INVESTMENT IN NOTES DENOMINATED
IN A FOREIGN CURRENCY OR A CURRENCY UNIT AND WE DISCLAIM ANY RESPONSIBILITY TO
ADVISE YOU OF SUCH RISKS AS THEY EXIST AT THE DATE OF THIS PROSPECTUS SUPPLEMENT
OR AS SUCH RISKS MAY CHANGE FROM TIME TO TIME. YOU SHOULD CONSULT YOUR OWN
FINANCIAL AND LEGAL ADVISORS AS TO THE RISKS OF INVESTING IN NOTES DENOMINATED
IN CURRENCIES OTHER THAN UNITED STATES DOLLARS. SUCH NOTES ARE NOT AN
APPROPRIATE INVESTMENT FOR INVESTORS WHO ARE UNSOPHISTICATED WITH RESPECT TO
FOREIGN CURRENCY TRANSACTIONS.
Notes denominated in foreign currencies other than Euros will generally not
be sold in, or to residents of, the country of the currency in which such Notes
are denominated.
The information set forth in this prospectus supplement is directed to
prospective purchasers who are United States residents, and we disclaim any
responsibility to advise prospective
S-19
<PAGE>
<PAGE>
purchasers who are residents of countries other than the United States with
respect to any matters that may affect the purchase, holding or receipt of
payments of principal of and premium and interest, if any, on the Notes. Such
persons should consult their own financial and legal advisors with regard to
such matters.
GOVERNING LAW AND JUDGMENTS. Our Notes will be governed by and construed in
accordance with the laws of the State of New York. In the event an action based
on Notes denominated in a currency other than United States dollars were
commenced in a New York court, it is likely that the court would grant judgment
only in United States dollars. It is not clear, however, whether in granting
that judgment, the court would use the rate of conversion into United States
dollars that would be in effect on the date of default, the date the judgment
was rendered, or some other date.
EXCHANGE CONTROLS AND AVAILABILITY OF SPECIFIED CURRENCY. Governments have
imposed from time to time, and may in the future impose, exchange controls which
could affect exchange rates as well as the availability of United States dollars
or foreign currencies at the time of payment of principal of, and premium, if
any, or interest on a Note. In the case of any Note issued in a currency that is
not currently subject to exchange controls, there can be no assurance that the
absence of exchange controls will continue to exist. Even if there are no actual
exchange controls, it is possible that the specified currency for any particular
Note would not be available at such Note's maturity. In that event, we would
make required payments in United States dollars on the basis of the Market
Exchange Rate on the date of such payment, or if such rate of exchange is not
then available, on the basis of the Market Exchange Rate as of the most recent
record date.
Information concerning exchange rates for a currency specified for any
particular Note, if other than United States dollars, in which principal of,
premium, if any, and interest on such Note is payable, as against the United
States dollar at selected times during the last five years, as well as any
exchange controls affecting such currencies, will be set forth in the pricing
supplement.
INDEXED NOTE RISKS
You should note that if you invest in Notes indexed, as to principal or
interest or both, to one or more values of currencies (including exchange rates
between currencies), commodities or interest rate indices, you will be assuming
significant risks that are not associated with similar investments in a
conventional debt security. During the time while you own an Indexed Note, it
may have an interest rate that is less than that payable on a conventional debt
security issued at the same time, and it is possible that no interest will paid
to you. Furthermore, the terms of an Indexed Note may permit the principal
amount payable at maturity to be less than the original purchase price of such
Indexed Note, and it is possible that no principal will be paid to you. The
secondary market for such Indexed Notes will be affected by a number of factors,
independent of the creditworthiness of the company and the value of the
applicable currency, commodity or interest rate index, including the volatility
of the applicable currency, commodity or interest rate index, the time remaining
to the maturity of such Indexed Notes, the amount outstanding of such Indexed
Notes and market interest rates. The value of the applicable currency, commodity
or interest rate index depends on a number of interrelated factors, including
economic, financial and political events, over which we have no control.
Additionally, if the formula used to determine the principal amount or interest
payable with respect to such Indexed Notes contains a multiple or leverage
factor, the effect of any change in the applicable currency, commodity or
interest rate index may be increased. You should not assume that the historical
experience of the relevant currencies, commodities or interest rate indices can
serve as predictors of future performance of such currencies, commodities or
interest rate indices during the term of any Note. ACCORDINGLY, YOU SHOULD
CONSULT YOUR OWN FINANCIAL AND LEGAL ADVISORS AS TO THE RISKS OF INVESTING IN
INDEXED NOTES AND THE SUITABILITY OF SUCH NOTES IN LIGHT OF YOUR PARTICULAR
CIRCUMSTANCES.
MATERIAL FEDERAL INCOME TAX CONSEQUENCES
The following summary of the material United States federal income tax
consequences of the purchase, ownership and disposition of Notes constitutes the
opinion of Sidley & Austin, special tax counsel to the company. This summary is
based on the Internal Revenue Code of 1986, as
S-20
<PAGE>
<PAGE>
amended to the date hereof (the 'Code'), administrative pronouncements, judicial
decisions and existing and proposed Treasury Regulations, changes to any of
which subsequent to the date of this prospectus supplement may affect the tax
consequences described herein, possibly with retroactive effect.
This summary of material federal income tax consequences has been prepared
in compliance with the directive of the SEC that 'plain English' be used. As a
result, certain of the complex technical rules which may apply to some investors
have not been included. Also, the descriptions of the relevant tax rules are
intended to explain the general application of the rules. This summary does not
attempt to explain fully every relevant technical aspect of the applicable tax
provisions.
The first part of this summary, captioned 'General Tax Consequences,'
describes the tax consequences for what is expected to be the typical investment
situation. Following the description of General Tax Consequences, under the
heading 'Special Tax Rules,' are summaries of various special federal tax
provisions which may apply in certain circumstances or to certain investors but
should not be relevant to the typical investment situation. The description of
General Tax Consequences provides a summary of federal income tax consequences
for investors who are citizens or residents of the United States and who
purchase U.S. dollar denominated Notes for investment (rather than acting as a
dealer in securities) at the initial offering price of the Notes (plus accrued
interest, if any). Other investors, including investors who are foreign persons
or who purchase Notes at a price which is higher or lower than the Note's
initial offering price, should review the summaries of the Special Tax Rules.
The description of General Tax Consequences assumes that the Notes provide for
the payment of interest at a fixed rate or at a variable rate which is tied to
LIBOR, U.S. Treasury rates, bank prime rates or similar benchmark rates.
Interest payable pursuant to those types of fixed and variable rates is referred
to for certain federal income tax purposes as qualified stated interest. If a
Note provides for interest other than qualified stated interest, the tax
consequences to an investor may differ from those described in this summary.
This summary also assumes that the Notes have a fixed maturity date of more than
one year. EACH PROSPECTIVE INVESTOR SHOULD CONSULT A TAX ADVISOR TO DETERMINE
WHETHER ANY OF THE SPECIAL TAX RULES ARE APPLICABLE TO ITS PARTICULAR SITUATION.
GENERAL TAX CONSEQUENCES
PAYMENTS OF INTEREST. An investor will be taxed on the amount of payments
of interest on a Note as ordinary interest income at the time it accrues or is
received in accordance with the investor's regular method of accounting for
United States federal income tax purposes.
SALE OR OTHER DISPOSITION OF A NOTE. An investor who disposes of a Note,
whether by sale, exchange for other property, or payment by the company, will
recognize taxable gain or loss equal to the difference between the amount
realized on the sale or other disposition (not including any amount attributable
to accrued but unpaid interest) and the investor's adjusted tax basis in the
Note. In general, an investor's adjusted tax basis in a Note will be equal to
the initial purchase price. Any gain or loss recognized upon the sale or other
disposition of a Note will be capital gain or loss. For non-corporate investors,
capital gain recognized on the sale or other disposition of a Note held by the
investor for more than one year will be taxed at a maximum rate of 20%. Capital
gain for a Note held for one year or less is taxed at the rates applicable to
ordinary income (i.e., up to 39.6%). Taxpayers must aggregate capital gains and
losses for each taxable year. In the event a taxpayer realizes a net capital
loss for any year there are limits on the amount of such capital losses which
can be deducted.
INFORMATION REPORTING AND BACKUP WITHHOLDING. The company (or an agent
acting on its behalf) will be required to report annually to the Internal
Revenue Service, and to each non-corporate Noteholder, the amount of interest
paid on the Notes for each calendar year. Each non-corporate Noteholder (other
than Noteholders who are not subject to the reporting requirements) will be
required to provide, under penalties of perjury, a certificate (Form W-9)
containing the Noteholder's name, address, correct federal taxpayer
identification number and a statement that the Noteholder is not subject to
backup withholding. Should a non-exempt Noteholder fail to provide the required
certification, the company will be required to withhold (or cause to be
withheld) 31%
S-21
<PAGE>
<PAGE>
of the interest otherwise payable to the Noteholder and remit the withheld
amounts to the Internal Revenue Service as a credit against the Noteholder's
federal income tax liability.
SPECIAL TAX RULES
SPECIAL TYPES OF INVESTORS. The reference to United States citizens or
residents in the description of General Tax Consequences set forth above applies
not only to individuals but also to any investor who is: (1) a corporation or
partnership created or organized in or under the laws of the United States or of
any political subdivision thereof, (2) an estate the income of which is subject
to United States federal income taxation regardless of its source, or (3) a
trust if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more United States
persons have the authority to control all substantial decisions of the trust.
Any investor which is not a United States citizen or resident should review the
summary below for investment in Notes by foreign persons. This summary of
Material Federal Income Tax Consequences does not describe tax consequences to
special classes of investors, including investors who are dealers in securities
or currencies, persons holding Notes as a part of a hedging transaction, certain
financial institutions or insurance companies.
PURCHASE AT A DISCOUNT. An investor who purchases a Note as part of the
initial offering by the company for an issue price that is less than its 'stated
redemption price at maturity' will generally be considered to have purchased the
Note at an original issue discount for United States federal income tax purposes
unless the original issue discount is de minimis. In general, the stated
redemption price at maturity for a Note is equal to the principal amount plus
all other amounts payable in respect of the Note other than qualified stated
interest. If a Note is acquired with original issue discount the investor will
be required to include in income each year, taxable as ordinary income in the
same manner as cash interest payments, a portion of the original issue discount.
For cash basis investors, such as individuals, the requirement that original
issue discount be accrued as income each year means the investor recognizes
taxable income even though the investor does not receive cash corresponding to
that income. In general, the amount of original issue discount accrued as income
each year is based upon a formula which looks at the constant yield on the Notes
and the term to maturity. Under these rules, investors generally will be
required to include in income increasingly greater amounts of original issue
discount in successive accrual periods.
In determining whether a Note has original issue discount, the issue price
of the Note may not necessarily equal the investor's purchase price (although
they generally should be the same). The issue price of a Note will equal the
initial offering price to the public (not including bond houses, brokers or
similar persons or organizations acting in the capacity of underwriters or
wholesalers) at which price a substantial amount of the Notes is sold.
If an investor acquires a Note in a secondary market transaction for a
purchase price which is less than the principal amount or other amount payable
at maturity of the Note, the difference is referred to for tax purposes as
market discount. Similarly to original issue discount, an investor must accrue a
portion of the market discount each year. The amount of market discount which
accrues annually will be calculated on a straight-line basis over the remaining
term to maturity of the Note unless the investor elects to accrue market
discount using the constant yield method (i.e., the original issue discount
method). Unlike original issue discount, however, an investor does not include
accrued market discount in ordinary income each year. Rather, the aggregate
amount of accrued market discount is included in income when an investor sells
or otherwise disposes of the Note. At that time, the portion of the amount
realized by the investor on the sale or other disposition of the Note equal to
accrued market discount is taxed as ordinary income (maximum tax rate of 39.6%)
rather than long term capital gain (maximum tax rate of 20%).
If an investor would prefer to be taxed on the annual accrual of market
discount each year rather than being taxed on the aggregate amount of all
accrued market discount when the Note is sold or otherwise disposed of, the
investor can file an election to do so. Such an election would apply to all of
the investor's debt investments acquired in or after the taxable year in which
the Notes are acquired and not just to the Notes.
S-22
<PAGE>
<PAGE>
An investor's adjusted basis in a Note is increased by the amount of
original issue discount or market discount accrued and included in income and is
decreased by the amount of payments (other than qualified stated interest). As a
result, the investor would recognize a lower capital gain (or greater capital
loss) on the sale or other disposition of the Note.
In general, if the amount of original issue discount or market discount
would be less than 1/4th of one percent of the Note's stated redemption price at
maturity multiplied by the number of complete years to maturity, the original
issue discount or market discount is treated as de minimis and the investor can
disregard the original issue discount or market discount rules.
PURCHASE AT A PREMIUM. If an investor purchases a Note for a price that
exceeds the principal amount or other amount payable at maturity, the investor
will be considered to have an amortizable bond premium. An investor can elect to
accrue a portion of the premium each year as an offset to interest income on the
corresponding Note. The amount of premium which can be amortized each year is
calculated using a constant yield method over the remaining term to maturity of
the Note. Amortizable bond premium is available only to offset interest income
on the corresponding Note; it cannot be used as a deduction to the extent it
exceeds taxable interest on the Note. The adjusted tax basis which an investor
has in a Note must be reduced by the amount of premium which is an offset to
interest income. Because the basis is reduced, the investor would recognize a
larger taxable capital gain (or a smaller capital loss) on the sale or other
disposition of the Note. If an investor elects to amortize bond premium, the
election will apply to all of the investor's debt investments and not just to
the Notes.
FOREIGN CURRENCY NOTES. The description of General Tax Consequences assumes
the Notes are denominated in U.S. dollars. Special rules apply to Notes which
are denominated in or determined by reference to the value of currency units
other than the U.S. dollar.
An interest payment on a foreign currency Note will be includible in income
by a cash basis investor based on the U.S. dollar value of the foreign currency
payment determined on the date the payment is received, regardless of whether
the payment is in fact converted to U.S. dollars at that time.
In the case of interest income on a foreign currency Note that is required
to be included in income by the investor prior to receipt of payment (e.g.,
original issue discount accrual) the investor will be required to include in
income the U.S. dollar value of the amount of interest income that has accrued.
Unless the investor makes the election discussed in the next paragraph, the U.S.
dollar value of such accrued income will be determined by translating such
income at the average rate of exchange for the accrual period. Subsequently,
when the investor actually receives cash corresponding to the accrued income,
the investor will recognize, as ordinary gain or loss, foreign currency exchange
gain or loss reflecting fluctuations in currency exchange rates between the last
day of the relevant accrual period and the date of payment.
Under the so-called 'spot rate convention election,' an investor may elect
to translate accrued interest income into U.S. dollars at the exchange rate in
effect on the last day of the relevant accrual period. Additionally, if a
payment of such income is actually received within five business days of the
last day of the accrual period or taxable year, an electing investor may instead
translate such income into U.S. dollars at the exchange rate in effect on the
day of actual receipt. Any such election will apply to all debt instruments held
by the investor at the beginning of the first taxable year to which the election
applies or thereafter acquired by the investor.
In order for an investor to calculate the amount of gain or loss recognized
on the sale or other disposition of a Note denominated in (or by reference to) a
foreign currency, the investor must know the adjusted tax basis in U.S. dollars.
In general, if an investor pays for a Note with foreign currency, the investor's
basis in the Note is equal to the U.S. dollar value of the foreign currency on
the purchase date. An investor that purchases a foreign currency Note with
previously owned foreign currency will recognize ordinary income or loss in an
amount equal to the difference, if any, between the investor's tax basis in the
foreign currency and the U.S. dollar value of the foreign currency Note on the
date of purchase.
For purposes of determining the amount of any gain or loss recognized by
the investor on the sale or other disposition of a foreign currency Note, the
amount realized by the investor from the
S-23
<PAGE>
<PAGE>
sale or other disposition generally will be the U.S. dollar value of the foreign
currency received determined on the date of disposition in the case of an
accrual basis investor and on the date payment is received in the case of a cash
basis investor.
The portion of any gain or loss realized upon the sale or other disposition
of a foreign currency Note that is attributable to fluctuations in currency
exchange rates will be ordinary income or loss. Such portion will equal the
difference between (1) the U.S. dollar value of the foreign currency principal
amount of the Note determined on the date the Note is disposed of and (2) the
U.S. dollar value of the foreign currency principal amount of the Note
determined on the date the investor acquired such Note. Such foreign currency
gain or loss will be recognized only to the extent of the total gain or loss
realized by an investor on the sale or other disposition of the foreign currency
Note. Any gain or loss recognized in excess of such foreign currency gain or
loss will be capital gain or loss.
Discount and premium calculations with respect to a foreign currency Note
are determined in the relevant foreign currency. The amount of discount or
premium that is included in or reduces income currently is determined for any
accrual period in the relevant foreign currency and then translated into U.S.
dollars on the basis of the average exchange rate in effect during such accrual
period or with reference to the spot rate convention election as described
above. Exchange gain or loss realized with respect to such accrued discount or
premium is determined and recognized in accordance with the rules described
above.
FOREIGN INVESTORS. Special tax rules apply to the purchase of Notes by
foreign persons. For U.S. tax purposes, foreign investors include any person who
is not (1) a citizen or resident of the United States, (2) a corporation,
partnership or other entity organized in or under the laws of the United States
or any political subdivision thereof, (3) an estate the income of which is
includible in gross income for U.S. federal income tax purposes regardless of
its source, or (4) a trust if a court within the United States is able to
exercise primary supervision over the administration of the trust and one or
more United States persons have the authority to control all substantial
decisions of the trust.
Interest paid or accrued to a foreign investor that is not effectively
connected with the conduct of a trade or business within the United States by
the investor will generally be considered 'portfolio interest' and generally
will not be subject to United States federal income tax or withholding tax as
long as the foreign investor (1) is not actually or constructively a 10%
shareholder of the company or a controlled foreign corporation related to the
company through stock ownership and (2) provides (or has a financial institution
provide on its behalf) an appropriate statement (Form W-8 BEN) to the company or
paying agent that is signed under penalties of perjury, certifying that the
beneficial owner of the Note is a foreign person and providing that foreign
person's name and address. If the information provided in this statement
changes, the foreign investor must provide a new Form W-8 BEN within 30 days.
The Form W-8 BEN is generally effective for three years unless the Form W-8 BEN
includes a federal taxpayer identification number, in which case the form is
effective until the information contained on the Form W-8 BEN changes. If a
foreign investor were to fail to satisfy these requirements so that interest on
the investor's Notes were not portfolio interest, interest payments would be
subject to United States federal income and withholding tax at a rate of 30%
unless reduced or eliminated pursuant to an applicable income tax treaty. To
qualify for any reduction as the result of an income tax treaty, the foreign
investor must provide the paying agent with Form W-8 BEN, which, as of January
1, 2000, will require a foreign investor to provide a federal taxpayer
identification number.
Any capital gain realized on the sale or other taxable disposition of a
Note by a foreign investor will be exempt from United States federal income and
withholding tax, provided that (1) the gain is not effectively connected with
the conduct of a trade or business in the United States by the investor and (2)
in the case of an individual foreign investor, the investor is not present in
the United States for 183 days or more during the taxable year. If an individual
foreign investor is present in the U.S. for 183 days or more during the taxable
year, the gain on the sale
S-24
<PAGE>
<PAGE>
or other disposition of the Notes could be subject to a 30% withholding tax
unless reduced by an applicable income tax treaty.
If the interest, gain or income on a Note held by a foreign investor is
effectively connected with the conduct of a trade or business in the United
States by the investor, the foreign investor (although exempt from the
withholding tax previously discussed if an appropriate statement (Form W-8 ECI)
is furnished to the paying agent) generally will be subject to United States
federal income tax on the interest, gain or income at regular federal income tax
rates. Form W-8 ECI is effective for three calendar years. In addition, if the
foreign investor is a foreign corporation, it may be subject to a branch profits
tax equal to 30% of its 'effectively connected earnings and profits' for the
taxable year, as adjusted for certain items, unless it qualifies for a lower
rate under an applicable income tax treaty.
If a foreign investor fails to provide necessary documentation to the
company or its paying agent regarding the investor's taxpayer identification
number or certification of exempt status, a 31% backup withholding tax may be
applied to Note payments to that investor. Any amounts withheld under the backup
withholding rules will be allowed as a refund or a credit against the foreign
investor's U.S. federal income tax liability provided the required information
is furnished to the Internal Revenue Service.
STATE AND LOCAL TAX CONSEQUENCES
Because of the differences in state and local tax laws and their
applicability to different investors, it is not possible to summarize the
potential state and local tax consequences of purchasing, holding or disposing
of the Notes. ACCORDINGLY, PURCHASERS OF NOTES SHOULD CONSULT THEIR OWN TAX
ADVISERS REGARDING THE STATE AND LOCAL TAX CONSEQUENCES OF THE PURCHASE,
OWNERSHIP AND DISPOSITION OF NOTES.
PLAN OF DISTRIBUTION
Unless the pricing supplement states otherwise, we will offer the Notes on
a continual basis through investment banking firms, or 'Agents,' who have agreed
to use their reasonable best efforts to solicit purchases of the Notes. We will
pay an Agent a commission, in the form of a discount ranging from .050% to .750%
of the principal amount of the Note sold through it as agent, depending upon
maturity of the Note, except that the commission payable by us to the Agents
with respect to Notes with maturities of greater than thirty years will be
negotiated at the time we issue such Notes.
We also may sell the Notes to any Agent, acting as principal, or to a group
of underwriters for whom one or more Agents are acting as representatives, at a
discount to be agreed upon at the time of sale (or if no compensation is
indicated, in accordance with the schedule of commissions applicable to a sale
of Notes on an agency basis), for resale to investors or dealers at varying
prices related to prevailing market prices at the time of resale, to be
determined by the Agents or, if so agreed, at a fixed public offering price. The
Agent, acting as principal, may sell Notes it has purchased from us to other
dealers for resale to investors and other purchasers, and may allow any portion
of the discount received in connection with such purchase from us to such
dealers. After the initial public offering of Notes, the public offering price
(in the case of Notes to be resold at a fixed public offering price), the
concession and the discount may be changed.
In addition, we may arrange for the Notes to be sold through other agents,
dealers or underwriters under terms comparable to those described above, or we
may sell the Notes directly to investors on our own behalf in those
jurisdictions where we are authorized to do so. In the case of sales made
directly by us, no commission will be payable.
We have the sole right to accept offers to purchase Notes and may reject
any proposed purchase of Notes in whole or in part. The Agents will have the
right, in their reasonable discretion, to reject any offer to purchase Notes
received by them in whole or in part.
The company and Newcourt have agreed to indemnify the Agents against
certain liabilities, including liabilities under the Securities Act of 1933, as
amended, or to contribute to payments
S-25
<PAGE>
<PAGE>
they may be required to make in respect thereof. The Agents may be deemed to be
'underwriters' within the meaning of the Securities Act.
We may offer an additional series of our medium-term notes outside the
United States to prospective foreign investors. Such other series of medium-term
notes may have terms substantially similar to the terms of the Notes offered
hereby (but will constitute a separate series for purposes of the indenture),
and will be offered in bearer form only. Such other series of medium-term notes
will reduce correspondingly the principal amount of Notes which we may offer by
this prospectus supplement and the prospectus. In addition, the amount of Notes
which we may offer will be reduced by the aggregate principal amount of any
other securities and the purchase price of any warrants issued by us inside or
outside the United States under the Registration Statement.
No Note will have an established trading market when issued. Each of the
Agents may from time to time purchase and sell Notes in the secondary market,
but is not obligated to do so, and there can be no assurance that there will be
a secondary market for the Notes or liquidity in the secondary market if one
develops. From time to time, each of the Agents may make a market in the Notes.
S-26
<PAGE>
<PAGE>
SUBJECT TO COMPLETION, MARCH 2, 1999
PROSPECTUS
U.S. $6,000,000,000
[LOGO]
By This Prospectus, We May Offer --
DEBT SECURITIES, DEBT WARRANTS, CURRENCY WARRANTS,
INDEX WARRANTS AND INTEREST RATE WARRANTS
FULLY AND UNCONDITIONALLY GUARANTEED, AS DESCRIBED HEREIN, BY
[LOGO]
------------------------
AT&T Capital Corporation, an indirect wholly-owned subsidiary of Newcourt
Credit Group Inc., may offer and sell the securities listed above with an
aggregate offering price of up to U.S. $6,000,000,000, or its equivalent in one
or more foreign currencies or currency units.
We will provide specific terms of these securities in supplements to this
prospectus. You should read this prospectus, the applicable prospectus
supplement and the related pricing supplement, if any, before you invest.
This prospectus may not be used to offer and sell securities unless
accompanied by a prospectus supplement and, in some cases, a pricing supplement.
The securities are not guaranteed or supported in any way by AT&T Corp.
AT&T Capital Corporation is not owned by, or an affiliate of, AT&T Corp.
------------------------
SEE 'RISK FACTORS' ON PAGE 4 FOR CERTAIN CONSIDERATIONS RELEVANT
TO AN INVESTMENT IN THESE SECURITIES.
------------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THE SECURITIES OFFERED BY THIS
PROSPECTUS OR PASSED UPON THE ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------
This prospectus is dated March , 1999.
<PAGE>
<PAGE>
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement (including any
amendments and exhibits, the 'Registration Statement') that AT&T Capital and
Newcourt filed with the Securities and Exchange Commission utilizing a 'shelf'
registration process. Under this shelf process, we may sell any combination of
the securities described in this prospectus in one or more offerings up to a
total dollar amount of U.S. $6,000,000,000. This prospectus provides you with a
general description of the securities that we may offer. Each time we sell
securities, we will provide a prospectus supplement that will contain specific
information about the terms of that offering. If the prospectus supplement
specifies, we may also provide information in a pricing supplement. The
prospectus supplement and any accompanying pricing supplement may also add,
update or change information contained in this prospectus. You should read both
this prospectus and the applicable prospectus supplement and any accompanying
pricing supplement together with the additional information described under the
heading 'Where You Can Find More Information' prior to purchasing any of the
securities offered by this prospectus.
In this prospectus, we refer to:
AT&T Capital Corporation as the 'company' or 'AT&T Capital';
Newcourt Credit Group Inc. as the 'guarantor' or 'Newcourt'; and
the Debt Securities, Debt Warrants, Currency Warrants, Index Warrants and
Interest Rate Warrants that AT&T Capital may offer by this prospectus as
the 'Securities.'
WHERE YOU CAN FIND MORE INFORMATION
The company and Newcourt have filed with the Securities and Exchange
Commission a Registration Statement on Form F-3, pursuant to 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 Commission's offices, or obtain copies of
these documents from the Commission's Public Reference Section by paying the
copying fees.
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 Commission. You may read these reports and other
information filed by Newcourt, without charge, or obtain copies for a fee, from
the Commission's Public Reference Section. Please call the Commission at
1-800-SEC-0330 for more information on the public reference rooms. You can also
find many of these documents on the Commission's Web site at http://www.sec.gov.
The company was previously subject to the information and reporting
requirements of the Exchange Act. However, the company is no longer required to
file such 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.
Statements made in this prospectus concerning the provisions of any
contract, agreement or other document referred to are not necessarily complete.
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 propectus.
Both the company and Newcourt have elected to 'incorporate by reference'
into this prospectus other documents filed with the Commission by each of them.
As allowed by the Commission, the documents incorporated by reference into this
document are considered part of this document. The company and Newcourt can
disclose important information to you in this document by referring to these
other documents.
The company incorporates by reference the following documents previously
filed with the Commission (File No. 001-11237):
the company's Annual Report on Form 10-K for the year ended December 31,
1997;
2
<PAGE>
<PAGE>
the company's Quarterly Reports on Forms 10-Q for the quarters ended
March 31, 1998 and June 30, 1998; and
the company's Current Reports on Form 8-K dated October 2, 1998,
September 1, 1998, March 9, 1998, March 4, 1998, February 20, 1998,
February 9, 1998, January 12, 1998, January 5, 1998 and November 19, 1997,
respectively and the company's Current Reports on Form 8-K/A dated March
17, 1998 (amending the Report on Form 8-K dated January 12, 1998),
February 18, 1998 (amending the Report on Form 8-K dated February 9, 1998)
and February 11, 1998 (amending the Report on Form 8-K dated November 19,
1997).
Newcourt incorporates by reference the following documents previously filed
with the Commission (File No. 001-14604) and any future filings it will make
with the Commission 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,
1997;
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; and
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.
Information in this prospectus supersedes information incorporated by
reference that the company or Newcourt filed with the Commission before the date
of this prospectus. Information the company or Newcourt files later with the
Commission will automatically update and, in some cases, supersede this
information.
Copies of the above documents of the company or Newcourt may be obtained
upon request without charge from Newcourt Credit Group Inc., BCE Place, 181 Bay
Street, Suite 3500, P.O. Box 827, Toronto, Ontario, Canada M5J 2T3 (Telephone
Number 416-777-6066), Attention: Communications Department.
FINANCIAL INFORMATION
Dollar amounts included in this prospectus or incorporated by reference
into this prospectus are in either United States dollars ('U.S.$' or '$') or
Canadian dollars ('C$').
The consolidated financial statements of Newcourt included in this
prospectus and in Newcourt's 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 the
financial statements of Newcourt are explained in a note to the audited
consolidated financial statements of Newcourt incorporated by reference into
this prospectus. Beginning with the quarter ending March 31, 1999, Newcourt will
begin reporting its financial results in U.S. dollars.
3
<PAGE>
<PAGE>
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 and no assurance can be given that actual results will not differ
materially.
THE COMPANY AND NEWCOURT REQUIRE SUBSTANTIAL CASH TO FUND OPERATIONS AND SERVICE
DEBT
Each of Newcourt's and the company's business requires substantial amounts
of cash to support growth and operations. Their ability to obtain funds and the
cost of such funds could be affected by their credit ratings and restrictions
contained in existing or future debt instruments and by other events beyond
their control, such as interest rates, general economic conditions and the
perception of their business, results of operations, leverage, financial
condition and business prospects. While Newcourt and the company continue to
obtain new sources of funding, there can be no assurance that the total required
financing will be available.
THE COMPANY AND NEWCOURT DEPEND ON SECURITIZATION PROGRAMS TO PROVIDE FINANCING
Newcourt and the company each sell financial assets ('securitizations') and
retain an interest in such finance assets. These transactions allow each of
Newcourt and the company to manage its 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 the company's
leverage and net income to be adversely effected.
THE COMPANY AND NEWCOURT HAVE GUARANTEED EACH OTHERS' SECURITIES
NEWCOURT GUARANTEE. Newcourt has fully and unconditionally guaranteed (the
'Newcourt Guarantee') the payment, whether at stated maturity or otherwise, of
present and future principal, interest or premium payable with respect to any
indebtedness for borrowed money incurred by AT&T Capital and any present and
future indebtedness for borrowed money of any person to another person assumed
or guaranteed by AT&T Capital, including the Debt Securities offered by this
prospectus (collectively, the 'AT&T Capital Debt'), except for (1) any
indebtedness for borrowed money whose terms provide that such indebtedness is
not entitled to the benefit of the Newcourt Guarantee; and (2) any indebtedness
for borrowed money secured by liens on, or payable solely from the income and
proceeds of, any property of AT&T Capital or any of its subsidiaries and which
indebtedness is not a general obligation of AT&T Capital. Newcourt's liability
under the Newcourt Guarantee is unlimited in amount and absolute and
unconditional irrespective of any conditions or circumstances that might
otherwise constitute a defense available to Newcourt, including any defense
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. 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
aggregate 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.$9.3 billion (C$14.4 billion) as of December 31,
1998.
AT&T CAPITAL GUARANTEE. In connection with Newcourt's acquisition of the
company, the company guaranteed the payment of certain indebtedness and
liquidity facilities issued, guaranteed or entered into by
Newcourt -- collectively, the 'Newcourt Debt Securities' -- for the benefit of
the holders of the Newcourt Debt Securities.
The amount of Newcourt Debt Securities covered by the company's guarantee
was U.S.$1.3 billion (C$2.0 billion) at December 31, 1998. In addition, on
February 16, 1999, the company guaranteed an additional U.S.$1.0 billion of
Newcourt's debt securities. Because the company's
4
<PAGE>
<PAGE>
guarantee covers future indebtedness of Newcourt in addition to the current
Newcourt Debt Securities, the aggregate outstanding principal amount of the
Newcourt Debt Securities to be covered by the company's guarantee is expected to
increase in the future.
The liability of the company under the company's guarantee is unlimited in
amount and absolute and unconditional irrespective of any conditions or
circumstances that might otherwise constitute a defense available to the company
or Newcourt, including any defense based on the lack of validity or the
unenforceability of the Newcourt Debt Securities or any defense or counterclaim
available to Newcourt.
CHANGES IN RELATIONSHIPS WITH MAJOR VENDORS COULD ADVERSELY AFFECT RESULTS OF
OPERATIONS
A significant portion of the company's and/or Newcourt'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.
The company's and Newcourt's commercial relationships with these and other
major vendors are governed by certain agreements. Although the company and
Newcourt intend to seek to maintain and improve their existing relationships
with these and other major vendors, no assurance can be given that any agreement
with these and other major vendors will be extended beyond their respective
termination dates or, if extended, that the terms and conditions thereof will
not be modified in a manner adverse to the company and Newcourt. Failure to
renew any of these agreements or changes in the terms of any such agreements
could have a material adverse effect on the company and Newcourt. In addition,
these agreements may contain provisions which allow these vendors to terminate
the respective agreement. For example, the agreement with Lucent contains
provisions which allow Lucent to terminate the agreement under certain
circumstances. If any such agreement is terminated, the results of operations of
the company and Newcourt could be materially adversely affected.
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 the company are subject to the risk that the
allowance for credit losses may not prove adequate to cover ultimate losses. If
the allowance is not adequate to cover credit losses actually incurred,
Newcourt's and the company'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 the
company. If the company and/or Newcourt fail to realize the estimated residual
values, their results of operations and financial condition may be materially
adversely affected.
SENSITIVITY TO CHANGES IN DEBT RATINGS
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, a division of The McGraw Hill
Companies, respectively. No assurance can be given that any or all of such
rating organizations will not at any future time or from time to time establish
different ratings on the company's senior unsecured short-term or long-term
debt. To the extent that any of such rating organizations assigns a lower rating
than the existing ratings, such downgrading would result in relatively higher
borrowing costs for the company, reduce its access to its traditional funding
sources and reduce its competitiveness, particularly if any such assigned rating
is in a generic rating category that signifies that the relevant debt of the
company is less than investment grade. In addition, if the company's debt
ratings are downgraded to ratings below
5
<PAGE>
<PAGE>
investment grade, such downgrading could result in the termination of the
company's agreements with certain major vendors. Any such downgrading could have
a negative impact on the value of the Securities offered by this prospectus and
a material adverse effect on the company. This risk is also applicable to
Newcourt.
THE COMPANY AND NEWCOURT OPERATE IN A HIGHLY COMPETITIVE INDUSTRY
The equipment leasing and finance industry in which Newcourt and the
company operate is highly competitive and is undergoing a process of
consolidation. As a result, certain competitors' relative cost bases have been
reduced. Participants in the industry compete through price (including the
ability to control costs), risk management, innovation and customer services.
Principal cost factors include the cost of funds, the cost of selling to or
obtaining new end-user customers and vendors and the cost of managing
portfolios. 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, Newcourt and the company 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 either the company or
Newcourt may otherwise finance. Many of the competitors are large companies that
have substantial capital, technological and marketing resources; some of these
competitors are significantly larger than either Newcourt or the company and
have access to debt at a lower cost. In addition, Newcourt may not have, in the
immediate future, access to sufficient U.S. federal tax capacity to pursue
efficiently U.S. tax based lease financing.
RISKS RELATED TO INTEGRATION OF RECENTLY ACQUIRED BUSINESSES
Newcourt's growth has been facilitated by strategic acquisitions during the
last three years. Most recently, on January 12, 1998, Newcourt acquired all of
the issued and outstanding shares of AT&T Capital. See
'Newcourt -- Acquisitions' below. Integration of Newcourt and AT&T Capital has
required a significant amount of management's time. Continued diversion of
management attention from Newcourt's existing business may have a material
adverse impact on its revenues and operating results.
CONTINUITY OF MANAGEMENT
Newcourt's success depends to a significant extent upon the continued
services of its management. There is no assurance that any of Newcourt's
existing officers and key employees will remain in their current positions for
any period of time following the date hereof. The unavailability of the
continued services of such persons could have a material adverse effect on
Newcourt's business.
READINESS FOR YEAR 2000
Newcourt is addressing the Year 2000 issue from a global perspective. In
early 1998, Newcourt established a global Year 2000 Program Office to provide
oversight from both a business and technical perspective. The program will
coordinate vendors, consultants and regional Year 2000 resources. Newcourt has
converted its critical systems at year end 1998 and plans to complete the
conversion of remaining systems and compliance testing and certification in
1999. Newcourt plans to consolidate its operations onto a limited set of
identified Year 2000 compliant systems in order to achieve operational
efficiencies and to minimize the Year 2000 exposures and costs. Newcourt does
not anticipate that the total cost of these Year 2000 compliance activities will
be material to its financial position or results of operations in any given
year. Newcourt estimates that the total costs of making its systems Year 2000
compliant will not exceed $16.1 million of which $9.7 million has been incurred
prior to 1999. However, the inability of Newcourt or significant vendor
interfaces
6
<PAGE>
<PAGE>
of Newcourt to adequately address the Year 2000 issue could result in a
disruption of the company's and Newcourt's business operations and have a
material adverse impact on the company's and Newcourt's financial position or
results of operations. Newcourt is developing contingency plans to address any
disruption that may result from Year 2000 issues.
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
Securities offered by this prospectus.
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.
On November 17, 1997, Newcourt agreed to acquire all of the issued and
outstanding common shares of the company. On January 12, 1998, Newcourt
completed the acquisition of the shares of the company and the company became an
indirect wholly-owned subsidiary of Newcourt. Newcourt paid an aggregate
purchase price of approximately $1.7 billion (C$2.4 billion). Of this amount,
approximately $1.15 billion (C$1.6 billion) was paid in cash and the remaining
approximately $0.6 billion (C$0.8 billion) was satisfied by the issuance of
approximately 17.6 million common shares of Newcourt to an entity indirectly
owned by Nomura International plc and which owned 97.4% of the outstanding
shares of the company. This entity has agreed, subject to certain exceptions,
not to sell, transfer or otherwise dispose of one third of such initial 17.6
million Newcourt common shares until eighteen months following the acquisition
closing.
The combination of Newcourt and AT&T Capital created one of the largest
providers of vendor finance in the world, and one of the world's largest
non-bank commercial asset finance companies.
NEWCOURT
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 approximately C$36.2 billion (U.S.$23.3 billion)
of owned and managed assets and C$4.7 billion (U.S.$3.0 billion) shareholders'
equity at December 31, 1998.
Newcourt's international origination and servicing capabilities span 26
countries around the globe. Newcourt serves clients in Canada, the United
States, the United Kingdom, the Asia/Pacific region, Europe, Mexico and South
America.
7
<PAGE>
<PAGE>
Newcourt's principal executive offices are located at: BCE Place, 181 Bay
Street, Suite 3500, P.O. Box 827, Toronto, Ontario M5J 2T3, telephone number
(416) 594-2400.
ACQUISITIONS
During the fiscal year ended December 31, 1997, in addition to the growth
and expansion of its existing business and the continued diversification of its
loan origination, Newcourt completed several major acquisitions in the
commercial finance segment of the asset-based finance market. In August, 1997,
Newcourt acquired all of the issued and outstanding shares of Commcorp Financial
Services Inc., a Canadian asset finance and associated management service
company. In September 1997, Newcourt acquired the Business Technology Finance
division of Lloyds Bowmaker Limited, an asset finance company based in the
United Kingdom. Also in September 1997, Newcourt acquired the micro-balance
origination and financing division of Lease Finance Group of Chicago, Illinois.
In October 1997, Newcourt acquired the small-balance loan processing
capabilities of Omni Financial Services of America, Inc. In January 1998,
Newcourt consummated the acquisition of AT&T Capital.
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 and provides focused client services and
complementary product offerings.
Newcourt has organized its activities and operations around three core
businesses: (1) Newcourt Capital; (2) Newcourt Financial; and (3) Newcourt
Services. In addition, Newcourt has established an Integration Office which is
responsible for integrating Newcourt, AT&T Capital and the other businesses
acquired by Newcourt in 1997. Newcourt Financial, the commercial finance
business, provides asset-based financing for a variety of equipment to vendors
and customers. Newcourt Capital, the corporate finance business, provides
structured corporate finance to a growing list of international clients,
including major corporations, governments and agencies. Finally, Newcourt
Services, the control, growth and support services, is responsible for the
underwriting, funding, administration and risk management needs of Newcourt
Financial and Newcourt Capital.
Newcourt Financial offers its asset-based sales and inventory financing
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 a
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; 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.
8
<PAGE>
<PAGE>
Newcourt Capital is the corporate finance business which provides asset
based financing for high value assets and related advisory services to equipment
manufacturers, corporate clients, governments and public sector agencies.
Newcourt Capital focuses on the following sectors:
Aerospace Finance -- 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 structured financing services in Canada,
the United States and Europe, including cross-border leases, single
investor leases, synthetic leases and off-balance sheet financings;
Media and Communications Finance -- provides debt financing services to
the communications market and various media sectors in North America;
Principal 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 is the service business responsible for providing cost
effective control and support services to Newcourt Financial and Newcourt
Capital. Newcourt Services consists of the following corporate functions:
Treasury, Credit and Risk Management, Financial Reporting and Administration,
Human Resources, Communications & Marketing, Tax Planning and Compliance,
Systems Development, and Quality Assurance.
USE OF PROCEEDS
The proceeds from the sale of the Securities will be used primarily to
finance installment sale and lease agreements with respect to direct financing
programs and to repay debts of the company, its subsidiaries and its affiliated
entities as they become due and for other general corporate purposes. Ongoing
purchases of finance receivables and installment sale and lease agreements,
direct financing programs and any future financing arrangements will be financed
from various sources, including the issuance of commercial paper and the sale of
Securities. The amount and timing of the sales of the Securities will depend on
the timing of asset purchases, market conditions and the availability of other
funds to the company.
The debt to be repaid with the proceeds from such sales consists generally
of medium-term notes and commercial paper. Such debt has various maturities and
bears interest at various fixed rates. At December 31, 1998, the aggregate
principal amount of the company's outstanding medium-term notes was
approximately $7.5 billion, and the company had approximately $1.2 billion in
principal amount of commercial paper outstanding at such date. The range of
interest rates relating to such medium-term notes and the weighted average
interest rate of such commercial paper at December 31, 1998 was 5.52% to 8.25%
and approximately 6.39%, respectively. The net proceeds of all the outstanding
medium-term notes and commercial paper issued or incurred by the company within
the last year to be repaid with net proceeds from the sale of Securities have
been used by the company as working capital for general corporate purposes or to
repay previously outstanding commercial paper or medium-term notes.
9
<PAGE>
<PAGE>
RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth the historical ratios of earnings to fixed
charges for the company for the years ended December 31, 1994 through 1998.
<TABLE>
<CAPTION>
HISTORICAL(1)
YEAR ENDED
DECEMBER 31,
------------------------------------
1998 1997 1996 1995 1994
---- ---- ---- ---- ----
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges............................................ 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.
------------------------
The following table sets forth the historical ratios of earnings to fixed
charges for Newcourt for the years ended December 31, 1994 through 1998.
<TABLE>
<CAPTION>
HISTORICAL(1)
YEAR ENDED
DECEMBER 31,
------------------------------------
1998 1997 1996 1995 1994
---- ---- ---- ---- ----
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges............................................ 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.
10
<PAGE>
<PAGE>
DESCRIPTION OF THE DEBT SECURITIES
The Debt Securities are to be issued under the indenture dated as of March
1, 1999, among the company, Newcourt and The Chase Manhattan Bank, as Trustee. A
copy of the indenture is filed as an exhibit to the Registration Statement. The
following summaries of certain provisions of the indenture do not purport to be
complete and are subject to, and are qualified in their entirety by reference
to, all the provisions of the indenture, including the definitions therein of
certain terms. Section references are to sections of the indenture, and wherever
particular provisions are referred to, such provisions are incorporated by
reference as part of the statement made, and the statement is qualified in its
entirety by such reference.
The Debt Securities are not guaranteed or supported in any way by AT&T
Corp.
GENERAL
The indenture does not limit the aggregate principal amount of Debt
Securities that may be issued thereunder and provides that the Debt Securities
may be issued from time to time in one or more series. Reference is made to the
prospectus supplement which accompanies this prospectus for a description of the
Debt Securities being offered thereby, including:
(1) the title of the series of the Debt Securities;
(2) the aggregate principal amount of the Debt Securities;
(3) the percentage of their principal amount at which the Debt
Securities will be sold;
(4) the date(s) on which the Debt Securities will mature, or whether
the Debt Securities are payable on demand;
(5) the rate(s) per annum at which the Debt Securities will bear
interest, if any, or the method of calculating the rate or rates of
interest;
(6) the times at which such interest, if any, will be payable;
(7) the terms for redemption, early repayment or amortization, if any;
(8) the denominations in which the Debt Securities are authorized to
be issued;
(9) the coin or currency in which the Debt Securities are denominated,
which may be a Euro;
(10) any provision permitting payments of the principal of or any
premium or interest on the Debt Securities in a coin or currency other than
the currency in which the Debt Securities are denominated, including a
non-U.S. dollar denominated currency;
(11) the manner in which the amount of payments of principal of and
any premium or interest on the Debt Securities is to be determined if such
determination is to be made with reference to one or more indices (which
will be based on one or more U.S. or foreign stocks, bonds or other
securities, one or more U.S. or foreign interest rates, one or more
currencies or currency units, one or more commodities, or one or more
equipment leases, third-party loans, tax receipts, real property values,
SWAP receivables, reinsurance contracts, pooled receivables, or any
combination of the foregoing);
(12) whether the Debt Securities are issuable in registered form
('registered Debt Securities') or bearer form (with or without interest
coupons) ('bearer Debt Securities') or both, and whether the Debt
Securities will be uncertificated;
(13) whether any series of Debt Securities will be represented by one
or more temporary or permanent global Debt Securities ('global Debt
Securities') and, if so, whether any such global Debt Securities will be in
registered or bearer form, the identity of the depositary for such global
Debt Security or Securities and the method of transferring beneficial
interests in such global Debt Security or Securities;
(14) if a temporary global Debt Security is to be issued with respect
to a series, the terms upon which interests in such temporary global Debt
Security may be exchanged for interests in a permanent global Debt Security
or for definitive Debt Securities of the series and the
11
<PAGE>
<PAGE>
terms upon which interest in a permanent global Debt Security, if any, may
be exchanged for definitive Debt Securities of the series;
(15) information with respect to book-entry procedures, if any;
(16) whether and under what circumstances the company will pay
additional amounts on any Debt Securities held by any person in respect of
taxes or similar charges withheld and, if so, whether the company will have
the option to redeem the Debt Securities rather than pay such additional
amounts; and
(17) any other terms, including any terms which may be required by or
advisable under United States laws and regulations or advisable in
connection with the marketing of the Debt Securities of such series, which
will not be inconsistent with the provisions of the indenture.
Debt Securities of any series may be registered Debt Securities or bearer
Debt Securities or both as specified in the terms of the series. Additionally,
Debt Securities of any series may be represented by one or more global Debt
Securities registered in the name of a depositary's nominee and, if so
represented, beneficial interests in such a global Debt Security will be shown
on, and transfers thereof will be effected only through, records maintained by a
designated depositary and its participants. Debt Securities of any series may
also be uncertificated. Unless otherwise indicated in the prospectus supplement,
no bearer Debt Securities (including Debt Securities in permanent global bearer
form) will be offered, sold, resold or delivered to any United States person (as
defined under 'Limitations on Issuance of Bearer Debt Securities' below) in
connection with their original issuance or their exchange for a portion of a
temporary or permanent global Debt Security.
Unless otherwise indicated in the prospectus supplement, principal and
interest, if any, will be payable at the office of one or more paying agents as
specified in the prospectus supplement; provided that, in the case of registered
Debt Securities, payment of interest may be made at the option of the company by
check mailed to the address of the person entitled thereto as it appears in the
register of the Debt Securities. To the extent set forth in the prospectus
supplement, except in special circumstances set forth in the indenture,
interest, if any, on bearer Debt Securities will be payable only against
presentation and surrender of the coupons for the interest installments
evidenced thereby as they mature at the office of a paying agent of the company
located outside of the United States and its possessions. The company will
maintain one or more such agents for a period of two years after the principal
of such bearer Debt Securities has become due and payable. During any period
thereafter for which it is necessary in order to conform to United States tax
laws or regulations, the company will maintain a paying agent outside of the
United States and its possessions to which the bearer Debt Securities and
coupons related thereto may be presented for payment and will provide the
necessary funds therefor to such paying agent upon reasonable notice. No payment
with respect to any bearer Debt Security will be made at any office or agency of
the company in the United States or by check mailed to any address in the United
States or by transfer to an account maintained with a bank located in the United
States. Notwithstanding the foregoing, payment of principal of (and premium, if
any) and interest on bearer Debt Securities denominated and payable in U.S.
dollars will be made at the office of the company's paying agent in the Borough
of Manhattan, New York City if, and only if, payment of the full amount thereof
in U.S. dollars at all offices or agencies outside the United States is illegal
or effectively precluded by exchange controls or other similar restrictions.
In connection with any sale during the 'restricted period' as defined in
Section 1.163-5(c)(2)(i)(D)(7) of the United States Treasury Regulations
(generally, the first 40 days after the closing date and, with respect to unsold
allotments, until sold), no bearer Debt Security shall be mailed or otherwise
delivered to any location in the United States (as defined under 'Limitations on
Issuance of Bearer Debt Securities' below). A bearer Debt Security in definitive
form (including interests in a permanent global security) may be delivered only
if the person entitled to receive such bearer Debt Security furnishes written
certification, in the form required by the indenture, to the effect that such
bearer Debt Security is not owned by or on behalf of a United States person (as
defined under 'Limitations on Issuance of Bearer Debt Securities' below), or, if
a beneficial interest in such bearer Debt Security is owned by or on behalf of a
12
<PAGE>
<PAGE>
United States person, that such United States person (1) acquired and holds the
bearer Debt Security through a foreign branch of a United States financial
institution, (2) is a foreign branch of a United States financial institution
purchasing for its own account or resale (and in either case (1) or (2) such
financial institution agrees to comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as amended (the
'Code'), and the regulations thereunder) or (3) is a financial institution
purchasing for resale during the restricted period only to non-United States
persons outside the United States. See 'Limitations on Issuance of Bearer Debt
Securities' below and 'Global Securities -- Bearer Debt Securities.'
Bearer Debt Securities and the coupons related thereto will be transferable
by delivery. Unless otherwise indicated in the prospectus supplement, registered
Debt Securities will be transferable at the office of one or more registrars as
specified in the prospectus supplement.
The Debt Securities will be unsecured obligations of the company and will
rank pari passu (equal in right of payment) with all other unsecured and
unsubordinated indebtedness of the company. At December 31, 1998, the company's
consolidated indebtedness (all of which is unsecured and unsubordinated) was
approximately $9.3 billion (C$14.4 billion). The Debt Securities will, however,
be effectively subordinate (with respect to the assets of the company's
subsidiaries) to the indebtedness and other liabilities of such subsidiaries. At
December 31, 1998, such indebtedness and other liabilities aggregated
approximately $1.2 billion (C$1.9 billion).
Newcourt's guarantee of the Debt Securities will be an unsecured obligation
of Newcourt and will rank pari passu with all other unsecured and unsubordinated
indebtedness of Newcourt. At December 31, 1998, Newcourt's consolidated
indebtedness was approximately $11.6 billion (C$18.0 billion). The guarantee
will, however, be effectively subordinate (with respect to the assets of
Newcourt's subsidiaries) to the indebtedness and other liabilities of such
subsidiaries other than AT&T Capital. At December 31, 1998, such indebtedness
and other liabilities (including those of AT&T Capital) aggregated approximately
$10.7 billion (C$16.7 billion).
Unless otherwise indicated in the prospectus supplement, the Debt
Securities denominated in U.S. dollars will be issued only in denominations that
are integral multiples of $1,000. No service charge will be made for any
transfer or exchange of the Debt Securities, but the company may require payment
of a sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
Debt Securities may be issued as original issue discount Debt Securities
(bearing no interest or interest at a rate which at the time of issuance is
below market rates) to be sold at a substantial discount below their stated
principal amount. United States federal income tax consequences and other
special considerations applicable to any such original issue discount Debt
Securities will be described in the prospectus supplement relating thereto.
Registered Debt Securities may be exchanged for an equal aggregate
principal amount of registered Debt Securities of the same series, date of
maturity, interest rate and original issue date in authorized denominations as
may be requested upon surrender of the registered Debt Securities to the
registrar or a paying agent of the company as specified in the prospectus
supplement and upon fulfillment of all other requirements of such agent.
To the extent permitted by the terms of a series of Debt Securities
authorized to be issued in registered form and bearer form, bearer Debt
Securities may be exchanged for an equal aggregate principal amount of
registered or bearer Debt Securities of the same series, date of maturity,
interest rate and original issue date in such authorized denominations as may be
requested upon delivery of the bearer Debt Securities with all unpaid coupons
relating thereto to the registrar or a paying agent of the company as specified
in the prospectus supplement and upon fulfillment of all other requirements of
such agent. Registered Debt Securities will not be exchangeable for bearer Debt
Securities.
COVENANTS
Set forth below is a description of the principal covenants of the company
and Newcourt contained in the indenture. The indenture does not restrict the
company or Newcourt, other than
13
<PAGE>
<PAGE>
as set forth below, from engaging in any highly leveraged transaction,
reorganization, restructuring, merger or similar transaction, or from incurring
additional indebtedness or causing its subsidiaries to incur additional
indebtedness, any of which transactions could have a material adverse effect on
the holders of the Debt Securities.
CONSOLIDATION, MERGER, SALE OR CONVEYANCE OF ASSETS OF AT&T CAPITAL OR
NEWCOURT. In the indenture, each of the company and Newcourt has agreed 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 a sale or conveyance
to a Subsidiary (as defined below) of the company or the guarantor or any
successor thereto (such a sale or conveyance being called an 'Asset
Drop-Down')), unless:
(1) either the company or the guarantor is the continuing person or
the successor person which acquires by sale or conveyance substantially all
the assets of the company or the guarantor (if other than the company or
the guarantor) expressly assumes the due and punctual payment of the
principal of 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 and the guarantee to be performed or observed by the
company or the guarantor, by supplemental indenture in form satisfactory to
the Trustee, executed and delivered to the Trustee by such person and, if
applicable, execution and delivery of a guaranty substantially in the form
of the guarantee; and
(2) the company, the guarantor or such successor person, as the case
may be, is not, immediately after such merger or consolidation, or such
sale or conveyance, in default in the performance of any such covenant or
condition.
In the case of any such consolidation, merger, sale or conveyance, and
following such an assumption by the successor person, such person will succeed
to and be substituted for the company or the guarantor, as applicable, with the
same effect as if it had been named in the indenture or the guarantee, as
applicable, and, in the case of any such sale or conveyance (other than a
conveyance by way of lease), the company or the guarantor, as applicable, will
be released and discharged from all obligations and covenants under the
indenture and the Debt Securities or the guarantee, as applicable.
In the event of any Asset Drop-Down after the date of the indenture, any
subsequent sale or conveyance of assets by the Subsidiary of the company or the
guarantor, as applicable, to which assets were transferred in such Asset
Drop-Down (the 'Drop-Down Subsidiary') will be deemed to be a sale or conveyance
of assets by the company or the guarantor for purposes of the covenant described
above. (Sections 5.01 and 5.02)
The term 'all or substantially all,' which appears in the foregoing
covenant, is not defined in the indenture, and it does not have a precise
established definition under applicable law. The application of the covenant may
depend on the facts and circumstances of a particular transaction, including the
qualitative as well as the quantitative aspects of such transaction.
Accordingly, there may be uncertainty in connection with any particular
transaction as to whether a sale or conveyance of all or substantially all of
the assets of the company or the guarantor has occurred and thus as to whether
the company or the guarantor has complied with this covenant. Because New York
law governs the indenture, New York law will govern the interpretation of such
term.
LIMITATIONS ON LIENS. The indenture provides that the guarantor will not,
nor will it permit any Restricted Subsidiary (as defined below) to, create or
incur, or suffer to be incurred or to exist, any Lien (as defined below) on its
or their property or assets, whether owned as of the date of the indenture or
acquired afterward, or upon any income or profits therefrom, or transfer any
property for the purpose of subjecting the same to the payment of 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 concurrently securing the due and punctual payment of the principal of,
premium, if any, and the interest on all Debt Securities outstanding under the
indenture 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 guarantor covenants that
14
<PAGE>
<PAGE>
if and when any such Lien is created, the Debt Securities outstanding under the
indenture will be so secured thereby.
The above provision does not, however, limit the right of the guarantor or
any Restricted Subsidiary to create or incur, or suffer to be incurred or to
exist, any one or more of the following Liens:
(1) 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 guarantor or any Restricted
Subsidiary on a timely basis in good faith and in appropriate proceedings,
and the guarantor or such Restricted Subsidiary has established adequate
reserves therefor in accordance with GAAP on the books of the guarantor 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 guarantor 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 guarantor and its
Restricted Subsidiaries taken as a whole;
(2) 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 guarantor 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;
(3) 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;
(4) 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
guarantor 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 the guarantor and the Restricted Subsidiaries;
(5) Liens securing Debt (as defined below) of a Restricted Subsidiary
to the guarantor or to another Restricted Subsidiary;
(6) 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 (as defined below)) useful and intended to be
used in carrying on the business of the guarantor or a Restricted
Subsidiary, including Liens existing on such assets at the time of
acquisition by the guarantor 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 guarantor or a
Restricted Subsidiary shall not exceed an amount equal to the lesser of the
15
<PAGE>
<PAGE>
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.
(7) Liens on Acquired Financing Assets to secure Secured Subordinated
Debt (as defined below) of the guarantor or the Restricted Subsidiaries
arising in connection with the acquisition of such Acquired Financing
Assets;
(8) Liens securing Non-Recourse Debt of the guarantor or the
Restricted Subsidiaries;
(9) 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:
the fair market value of the Substitute Property shall not exceed the
fair market value of the Released Property by more than 110%;
the character and use of the Substitute Property shall be
substantially equivalent to the character and use of the Released
Property; and
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;
(10) Liens on property of, or on any shares of stock, other equity
interests, or debt of, any corporation existing at the time such
corporation becomes a Restricted Subsidiary;
(11) Liens on property, shares of stock, other equity interests, or
debt existing at the time of acquisition or repossession thereof by the
guarantor or any Restricted Subsidiary;
(12) 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 guarantor 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;
(13) Liens on Accounts Receivable of the guarantor or any Restricted
Subsidiary arising from or in connection with transactions entered into by
the guarantor or such Restricted Subsidiary after December 15, 1998, or on
Accounts Receivable acquired by the guarantor 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:
as a result of any guarantee, repurchase or other contingent (direct
or indirect) or recourse obligation of the guarantor or such
Restricted Subsidiary in connection with the discounting, sale,
assignment, transfer or other disposition of such Accounts Receivable
or any interest therein; or
to secure or provide for the payment of all or any part of the
investment of the guarantor 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;
(14) any extension, renewal, or replacement of any Lien permitted by
subsections (6), (7), (9), (10), (11), (12) and (13) above in respect of
the same property theretofore subject to such
16
<PAGE>
<PAGE>
Lien in connection with the extension, renewal or refinancing of the Debt
secured thereby; provided that:
such Lien shall be attached solely to the same such property or
Substitute Property; and
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.
(15) Any other Liens (other than the Liens described in clauses
(1)-(14)) which in the aggregate relate to Debt the aggregate amount of
which does not exceed 10% of Consolidated Net Tangible Assets; and
(16) any Lien approved by the Debt Security holders holding a majority
in principal amount of the outstanding Debt Securities of each series.
(Section 4.03)
As used in the indenture:
'Accounts Receivable' mean:
(1) 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;
(2) any proceeds of any of the foregoing; and
(3) 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 (1) 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 the guarantor's 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 means 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 the consolidated balance sheet
of the guarantor and its Restricted Subsidiaries as at the end of the most
recent fiscal quarter of the guarantor for which such balance sheet is
available, prepared in accordance with generally accepted accounting
principles, less:
(1) all current liabilities (obligations whose liquidation is
reasonably expected to occur within twelve months);
(2) investments in and advances to Subsidiaries other than
Restricted Subsidiaries or other entities accounted for on the equity
method of accounting; and
(3) Intangible Assets (as defined below). (Section 1.01)
'Debt' of any person means 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 (1) Capitalized Rentals and (2)
guaranties of obligations of others of the character referred to in this
definition. (Section 1.01)
17
<PAGE>
<PAGE>
'GAAP' means generally accepted accounting principles in Canada or the
U.S., as applicable.
'guaranties' by any person means 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:
(1) to purchase such Indebtedness or obligation or any property or
assets constituting security therefor;
(2) 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;
(3) 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
(4) 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 under the 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)
'Indebtedness' of any person means 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:
(1) all obligations of such person for borrowed money or which has
been incurred in connection with the acquisition of property or assets;
(2) all 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;
(3) all 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;
(4) the face amount of all letters of credit issued for the account
of such person and all drafts drawn thereunder;
(5) Capitalized Rentals; and
(6) guaranties of obligations of others of the character referred
to in this definition. (Section 1.01)
'Intangible Assets' means the value (net of any applicable reserves),
as shown on or reflected in the guarantor's balance sheet, of: (1) all
trade names, trademarks, licenses, patents, copyrights and goodwill; (2)
organization and development costs; (3) deferred charges (other than
prepaid items such as insurance, taxes, interest, commissions, rents and
similar items and tangible assets being amortized); and (4) 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 lien arising from
18
<PAGE>
<PAGE>
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 guarantor 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 the guarantor or any Restricted Subsidiary
means any Debt of the guarantor 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 guarantor or such Restricted Subsidiary, as the
case may be, and which is not a general obligation of the guarantor or such
Restricted Subsidiary, as the case may be. (Section 1.01)
'Rentals' means 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 guarantor 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 guarantor 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. (Section
1.01)
'Restricted Subsidiary' means the company and each Subsidiary (as
defined below) of the guarantor 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 shall be a Restricted
Subsidiary. (Section 1.01).
'Secured Subordinated Debt' means Subordinated Debt of any person
which is secured by a Lien. (Section 1.01)
'Subordinated Debt' means 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. (Section 1.01)
'Subsidiary' means any corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by any person
and/or by one or more other Subsidiaries (including the company). '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)
'Unsecured Subordinated Debt' means all Subordinated Debt of any
person other than Secured Subordinated Debt.
EVENTS OF DEFAULT, NOTICE AND WAIVER
The indenture provides that, if an Event of Default specified therein in
respect of any series of Debt Securities shall have occurred and be continuing,
either the Trustee or the holders of not less than 25% in aggregate principal
amount of the outstanding Debt Securities of such series may declare the
principal of all the securities of such series to be due and payable. (Section
6.01)
19
<PAGE>
<PAGE>
Events of Default in respect of the Debt Securities of any series are
defined in the indenture as being: default for 90 days in payment of any
interest installment when due; unless otherwise specified in the prospectus
supplement with respect to the Debt Securities of any series, default in payment
of principal of or premium, if any, on Debt Securities of such series when due;
default for 90 days after written notice to the company by the Trustee or by the
holders of not less than 25% in aggregate principal amount of the outstanding
Debt Securities of such series in the performance of any other agreement in the
Debt Securities or indenture in respect of such series; and certain events of
bankruptcy, insolvency and reorganization of the company or the guarantor.
(Section 6.01)
The indenture provides that the company will, within 120 days after the
close of each fiscal year, commencing with the first fiscal year following the
issuance of any series of Debt Securities, file with the Trustee a certificate
stating whether or not the company has complied with all conditions and
covenants on its part contained in the indenture and, if not, specifying each
default (without regard to any grace period or requirement of notice under the
indenture) and the nature thereof. (Section 4.04)
The indenture provides that the Trustee will, within 90 days after the
occurrence of a default in respect of any series of Debt Securities, if such
default is known to the Trustee, give to the holders of such series notice of
all defaults known to it; provided that, except in the case of default in
payment on any of the Debt Securities of such series, the Trustee will be
protected in withholding such notice if it in good faith determines that the
withholding of such notice is in the interest of the holders of such series. The
term 'default' for the purpose of this provision means any event which is, or
after notice or passage of time or both would be, an Event of Default. (Section
7.05)
The indenture contains provisions entitling the Trustee, subject to the
duty of the Trustee during an Event of Default in respect of any series of Debt
Securities to act with the required standard of care, to refuse to perform any
duty or exercise any right or power unless it receives indemnity satisfactory to
it. (Section 7.01)
The indenture provides that the holders of a majority in aggregate
principal amount of the outstanding securities of any series affected (with each
series voting as a separate class) may direct the time, method and place of
conducting proceedings for remedies available to the Trustee, or exercising any
trust or power conferred on the Trustee, in respect of such series. (Section
6.06)
In certain cases, the holders of a majority in principal amount of the
outstanding Debt Securities of a series may on behalf of the holders of all Debt
Securities of such series waive any past default or Event of Default, or
compliance with certain provisions of the indenture, except, among other things,
a default in payment of the principal of, premium, if any, or interest on, any
of the Debt Securities of such series. (Sections 6.01 and 6.06)
DISCHARGE AND DEFEASANCE
Under terms satisfactory to the Trustee, the company may discharge certain
obligations to holders of any series of Debt Securities issued under the
indenture which have not already been delivered to the Trustee for cancellation
and which have either become due and payable or are by their terms due and
payable within one year (or scheduled for redemption within one year) by
irrevocably depositing with the Trustee as trust funds an amount in cash
sufficient to pay at maturity (or upon redemption) the principal of and interest
on such Debt Securities. (Section 8.01)
In the case of any series of Debt Securities with respect to which the
exact amounts (including the currency of payment) of principal of and interest
due on such series can be determined at the time of making the deposit referred
to below (which include Debt Securities with a floating or variable rate of
interest that cannot exceed a specified or determinable maximum rate), the
company at its option may also (1) discharge any and all of its obligations to
holders of such series of Debt Securities ('defeasance') on the 91st day after
the conditions set forth below have been satisfied, but may not thereby avoid
its duty to register the transfer or exchange of such series of Debt Securities,
to replace any temporary, mutilated, destroyed, lost or
20
<PAGE>
<PAGE>
stolen Debt Securities of such series or to maintain an office or agency in
respect of such series of Debt Securities, or (2) be released with respect to
such series of Debt Securities from the obligations imposed by the covenants
described under 'Covenants' above ('covenant defeasance'). Defeasance and
covenant defeasance may be effected only if, among other things, (1) the company
irrevocably deposits with the Trustee as trust funds (a) money in an amount,
(b) in the case of Debt Securities payable only in U.S. Dollars, U.S.
Governmental Obligations (as defined in the indenture) which through the payment
of interest and principal in respect thereof will provide money in an amount, or
(c) a combination of (a) and (b), certified by a nationally recognized firm of
independent public accountants to be sufficient to pay each installment of
principal of and interest on all outstanding Debt Securities of such series on
the dates such installments of principal and interest are due; and (2) the
company delivers to the Trustee an opinion of independent counsel to the effect
that the holders of such series of Debt Securities will not recognize income,
gain or loss for United States federal income tax purposes as a result of such
defeasance or covenant defeasance and will be subject to United States federal
income tax on the same amount and in the same manner and at the same time as
would have been the case if such defeasance or covenant defeasance had not
occurred (which opinion may include or be based on a ruling to that effect
received from or published by the Internal Revenue Service). (Section 8.02)
MODIFICATION OF THE INDENTURE
The indenture contains provisions permitting the company, the guarantor and
the Trustee, with the consent of the holders of a majority in principal amount
of the outstanding Debt Securities of each series affected thereby (with such
series voting as a separate class), to execute supplemental indentures adding
any provisions to or changing or eliminating any of the provisions of the
indenture or modifying the rights of the holders of Debt Securities of each such
series, except that no such supplemental indenture may, without the consent of
each holder affected, among other things, change the maturity of any Debt
Securities, or change the principal amount thereof or change the rate or change
the time of payment of interest thereon, make any Debt Security payable in money
other than that stated in the Debt Security, or reduce the aforesaid percentage
of outstanding Debt Securities required to approve any such supplemental
indenture. (Section 9.02)
CONCERNING THE TRUSTEE
The company may from time to time maintain lines of credit, and have other
customary banking relationships, with The Chase Manhattan Bank, the Trustee
under the indenture. In addition, The Chase Manhattan Bank is the trustee under
the indentures dated as of April 9, 1990, and as of June 1, 1992, each as
amended, among the company, AT&T Corp., AT&T Capital Holdings, Inc., a
wholly-owned subsidiary of AT&T Corp., and The Chase Manhattan Bank, pursuant to
which the company assumed and AT&T Corp. guaranteed certain medium and long-term
debt issued by AT&T Capital Holdings, Inc. As of December 31, 1998, the
aggregate outstanding principal amount of such medium and long-term debt was
approximately U.S.$0.1 billion. Furthermore, The Chase Manhattan Bank is the
trustee under the indenture dated as of July 1, 1993, between the company and
The Chase Manhattan Bank pursuant to which the company has issued U.S.$11.4
billion aggregate principal amount of medium-term notes, the trustee under the
indenture dated as of April 1, 1998, among the company, Newcourt and The Chase
Manhattan Bank pursuant to which the company 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 and the trustee under the indenture dated as of February 15,
1999, among the company, Newcourt and The Chase Manhattan Bank pursuant to which
Newcourt has issued U.S.$1.0 billion aggregate principal amount of notes.
LIMITATIONS ON ISSUANCE OF BEARER DEBT SECURITIES
In compliance with United States federal tax laws and regulations, bearer
Debt Securities may not be offered or sold during the restricted period (as
defined under 'General' above), or delivered in definitive form in connection
with a sale during the restricted period, in the United
21
<PAGE>
<PAGE>
States or to United States persons other than to (a) the United States office of
(1) an international organization (as defined in Section 7701(a)(18) of the Code
and the regulations thereunder), (2) a foreign central bank (as defined in
Section 895 of the Code and the regulations thereunder), or (3) any underwriter,
agent, or dealer offering or selling bearer Debt Securities during the
restricted period (a 'Distributor') pursuant to a written contract with the
issuer or with another Distributor, that purchases bearer Debt Securities for
resale or for its own account and agrees to comply with the requirements of
Section 165(j)(3)(A), (B), or (C) of the Code, or (b) the foreign branch of a
United States financial institution purchasing for its own account or for
resale, which institution agrees to comply with the requirements of Section 165
(j)(3)(A), (B), or (C) of the Code. In addition, a sale of a bearer Debt
Security may be made during the restricted period to a United States person who
acquired and holds the bearer Debt Security on the Certification Date through a
foreign branch of a United States financial institution that agrees to comply
with the requirements of Section 165(j)(3)(A), (B) or (C) of the Code. Any
Distributor (including an affiliate of a Distributor) offering or selling bearer
Debt Securities during the restricted period must agree not to offer or sell
bearer Debt Securities in the United States or to United States persons (except
as discussed above) and must employ procedures reasonably designed to ensure
that its employees or agents directly engaged in selling bearer Debt Securities
are aware of these restrictions.
Bearer Debt Securities and their interest coupons will bear the following
legend: 'Any United States person who holds this obligation will be subject to
limitations under the United States income tax laws, including the limitations
provided in Sections 165(j) and 1287(a) of the Internal Revenue Code.'
Purchasers of bearer Debt Securities may be affected by certain limitations
under United States tax laws. See the applicable prospectus supplement for a
summary of material U.S. federal income tax consequences to United States
persons investing in bearer Debt Securities.
As used herein, 'United States person' means a citizen or resident of the
United States, a corporation, partnership or other entity created or organized
in or under the laws of the United States, an estate the income of which is
subject to United States federal income taxation regardless of its source and a
trust if (i) a court within the United States is able to exercise primary
supervision over the administration of the trust and (ii) one or more United
States persons have the authority to control all substantial decisions of the
Trust, and 'United States' means the United States of America (including the
States and the District of Columbia) and its possessions including Puerto Rico,
the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern
Mariana Islands.
22
<PAGE>
<PAGE>
DESCRIPTION OF THE WARRANTS
The Debt Warrants, Currency Warrants, Index Warrants and Interest Rate
Warrants are to be issued under separate warrant agreements (each a 'Warrant
Agreement' and respectively a 'Debt Warrant Agreement,' a 'Currency Warrant
Agreement,' an 'Index Warrant Agreement' and an 'Interest Rate Warrant
Agreement') to be entered into between the company and one or more banks or
trust companies, as warrant agent (each a 'Warrant Agent' and respectively a
'Debt Warrant Agent,' a 'Currency Warrant Agent,' an 'Index Warrant Agent' and
an 'Interest Rate Warrant Agent'), all as shall be set forth in the prospectus
supplement relating to the Warrants being offered thereby. A form of each type
of Warrant Agreement, including a form of warrant certificate representing each
type of Warrant (each a 'Warrant Certificate' and respectively a 'Debt Warrant
Certificate,' a 'Currency Warrant Certificate,' an 'Index Warrant Certificate'
and an 'Interest Rate Warrant Certificate'), reflecting the alternative
provisions that may be included in the Warrant Agreements to be entered into
with respect to particular offerings of Warrants, are herein incorporated by
reference to exhibits to the Registration Statement of which this prospectus is
a part. The descriptions contained herein of the Warrant Agreements and the
Warrant Certificates and summaries of certain provisions of the Warrant
Agreements and the Warrant Certificates do not purport to be complete and are
subject to, and are qualified in their entirety by reference to, all the
provisions of the applicable Warrant Agreements and the Warrant Certificates,
including the definitions therein of certain terms not otherwise defined in this
prospectus. Wherever particular sections of, or terms defined in, the Warrant
Agreements are referred to, such sections or defined terms are incorporated
herein by reference.
The particular terms of each issue of Warrants, as well as any
modifications or additions to the general terms of the applicable Warrant
Agreement or Warrant Certificate, will be described in the prospectus supplement
relating to such Warrants. Accordingly, for a description of the terms of a
particular issue of Warrants, reference must be made to the prospectus
supplement relating thereto and to the descriptions set forth below.
DEBT WARRANTS
The company may issue, together with Debt Securities, Currency Warrants,
Index Warrants or Interest Rate Warrants, or separately, Debt Warrants for the
purchase of Debt Securities. If any of the Debt Warrants are sold for foreign
currencies or foreign currency units or if any series of Debt Warrants is
exercisable in foreign currencies or foreign currency units, the restrictions,
elections, tax consequences, specific terms and other information with respect
to such issue of Debt Warrants and such currencies or currency units will be set
forth in the prospectus supplement relating thereto.
If so specified in the prospectus supplement, the Debt Warrants may, in
certain circumstances, be cancelled by the company prior to their expiration
date and the holders thereof will be entitled to receive only the applicable
Cancellation Amount. The Cancellation Amount may be either a fixed amount or an
amount that varies during the term of the Debt Warrants in accordance with a
schedule or formula.
GENERAL
The prospectus supplement will describe the terms of any Debt Warrants
offered thereby, the Debt Warrant Agreement relating to such Debt Warrants and
the Debt Warrant Certificates representing such Debt Warrants, including the
following:
(1) the title of such Debt Warrants;
(2) the aggregate amount of such Debt Warrants;
(3) the initial offering price of such Debt Warrants;
(4) the exercise price;
(5) the currency or currency unit in which the initial offering price
and/or the exercise price of such Debt Warrants is payable;
23
<PAGE>
<PAGE>
(6) whether the Debt Warrants are to be issuable in registered or
bearer form or both, and if in bearer form whether such Debt Warrants may
be exchanged for Debt Warrants in registered form and the circumstances and
places for such exchange, if permitted;
(7) if applicable, the title and terms of related Debt Securities with
which such Debt Warrants are issued, the number of such Debt Warrants
issued with each such Debt Security and the date, if any, on and after
which such Debt Warrants and such Debt Securities will be separately
transferable;
(8) the title, aggregate principal amount and terms of the Debt
Securities purchasable upon exercise of all such Debt Warrants;
(9) the principal amount of Debt Securities purchasable upon exercise
of each Debt Warrant and the price at which such principal amount of Debt
Securities may be purchased upon such exercise;
(10) the date on which the right to exercise such Debt Warrants shall
commence and the date (the 'Debt Warrant Expiration Date') on which such
right shall expire;
(11) any minimum number of Debt Warrants which must be exercised at
any one time, other than upon automatic exercise;
(12) the maximum number, if any, of such Debt Warrants that may,
subject to election by the company, be exercised by all owners (or by any
person or entity) on any day;
(13) any provisions for the automatic exercise of such Debt Warrants;
(14) whether and under which circumstances such Debt Warrants may be
cancelled by the company prior to expiration;
(15) any other procedures and conditions relating to the exercise of
such Debt Warrants;
(16) the identity of the Debt Warrant Agent;
(17) any national securities exchange on which such Debt Warrants will
be listed;
(18) provisions, if any, for issuing such Debt Warrants in
certificated form;
(19) if applicable, a discussion of certain United States federal
income tax, accounting or other special considerations applicable thereto;
and
(20) any other terms of the Debt Warrants.
Debt Warrant Certificates will be exchangeable for new Debt Warrant
Certificates of different denominations and, if in registered form, may be
presented for registration of transfer and Debt Warrants may be exercised at the
corporate trust office of the Debt Warrant Agent or any other office indicated
in the prospectus supplement relating thereto (Section 3.1). Prior to the
exercise of Debt Warrants, holders of Debt Warrants will not be entitled to
payments of principal of (or premium, if any) or interest, if any, on the Debt
Securities purchasable upon such exercise, or to enforce any of the covenants in
the indenture (Section 4.1).
EXERCISE OF DEBT WARRANTS
Unless otherwise provided in the prospectus supplement, each Debt Warrant
will entitle the holder thereof to purchase for cash such principal amount of
Debt Securities at such exercise price as shall in each case be set forth in, or
be determinable as set forth in, the prospectus supplement relating to the Debt
Warrants offered thereby (Section 2.1). Debt Warrants may be exercised at any
time up to the close of business on the Debt Warrant Expiration Date specified
in the prospectus supplement relating to the Debt Warrants offered thereby.
After the close of business on the Debt Warrant Expiration Date (or such later
date to which such Debt Warrant Expiration Date may be extended by the company),
unexercised Debt Warrants will become void (Section 2.2).
Debt Warrants may be exercised as set forth in the prospectus supplement
relating to the Debt Warrants offered thereby. Upon receipt of payment and the
Debt Warrant Certificate properly completed and duly executed at the corporate
trust office of the Debt Warrant Agent or
24
<PAGE>
<PAGE>
any other office indicated in the prospectus supplement, the company will, as
soon as practicable, forward to the person entitled thereto the Debt Securities
purchasable upon such exercise. If fewer than all the Debt Warrants represented
by such Debt Warrant Certificate are exercised, a new Debt Warrant Certificate
will be issued for the remaining amount of Debt Warrants (Section 2.3).
OTHER INFORMATION
Other important information concerning Debt Warrants is set forth below
under 'Certain Items Applicable to All Warrants -- Modifications,' ' -- Merger,
Consolidation, Sale or Other Disposition' and ' -- Enforceability of Rights by
Beneficial Owner; Governing Law.'
CURRENCY WARRANTS
The company may issue, together with Debt Securities, Debt Warrants, Index
Warrants or Interest Rate Warrants, or separately, Currency Warrants
(a) in the form of Currency Put Warrants, entitling the owners thereof
to receive from the company the Currency Warrant Cash Settlement Value (as
shall be defined in the prospectus supplement) of the right to sell a
specified amount of one currency (whether U.S. dollars or a foreign
currency or foreign currency unit) (a 'Base Currency') for a specified
amount of a different currency (whether U.S. dollars or a foreign currency
or foreign currency unit) (a 'Reference Currency'),
(b) in the form of Currency Call Warrants, entitling the owners
thereof to receive from the company the Currency Warrant Cash Settlement
Value of the right to purchase a specified amount of a Base Currency for a
specified amount of a Reference Currency, or
(c) in such other form as shall be specified in the related prospectus
supplement. The prospectus supplement for an issue of Currency Warrants
will set forth the formula pursuant to which the Currency Warrant Cash
Settlement Value will be determined, including any multipliers, if
applicable.
The prospectus supplement will describe the terms of any Currency Warrants
offered thereby, the Currency Warrant Agreement relating to such Currency
Warrants and the Currency Warrant Certificates representing such Currency
Warrants, including the following:
(1) the title of such Currency Warrants;
(2) the aggregate amount of such Currency Warrants;
(3) the initial offering price of such Currency Warrants;
(4) the exercise price, if any;
(5) the currency or currency unit in which the initial offering price,
the exercise price, if any, and the Currency Warrant Cash Settlement Value
of such Currency Warrants is payable;
(6) the Base Currency and the Reference Currency for such Currency
Warrants;
(7) whether such Currency Warrants shall be Currency Put Warrants,
Currency Call Warrants or otherwise;
(8) the formula for determining the Currency Warrant Cash Settlement
Value, if applicable, of each Currency Warrant;
(9) whether and under what circumstances a minimum and/or maximum
expiration value is applicable upon the expiration or exercise of such
Currency Warrants;
(10) the effect or effects, if any, of the occurrence of a Market
Disruption Event or Force Majeure Event (each as defined in the Currency
Warrant Agreement);
(11) the date on which the right to exercise such Currency Warrants
shall commence and the date (the 'Currency Warrant Expiration Date') on
which such right shall expire;
(12) any minimum number (or maximum number) of Currency Warrants which
must be exercised at any one time, other than upon automatic exercise;
25
<PAGE>
<PAGE>
(13) the maximum number, if any, of such Currency Warrants that may,
subject to election by the company, be exercised by all owners (or by any
person or entity) on any day;
(14) any provisions for the automatic exercise of such Currency
Warrants other than at expiration;
(15) whether and under what circumstances such Currency Warrants may
be cancelled by the company prior to their expiration date;
(16) any provisions permitting a Holder to condition any notice of
exercise on the absence of certain specified changes in the Spot Rate (as
defined in the Currency Warrant Agreement);
(17) any other procedures and conditions relating to the exercise of
such Currency Warrants;
(18) the identity of the Currency Warrant Agent;
(19) any national securities exchange on which such Currency Warrants
will be listed;
(20) provisions, if any, for issuing such Currency Warrants in
certificated form;
(21) if such Currency Warrants are not issued in book-entry form, the
place or places at which payments in respect of such Currency Warrants are
to be made by the company;
(22) if applicable, a discussion of certain United States federal
income tax, accounting or other special considerations applicable thereto;
and
(23) any other terms of such Currency Warrants.
Other important information concerning Currency Warrants is set forth below
under 'Certain Items Applicable to All Warrants -- Modifications,' ' -- Merger,
Consolidation, Sale or Other Disposition' and ' -- Enforceability of Rights by
Beneficial Owner; Governing Law' and 'Certain Items Applicable to Currency
Warrants, Index Warrants and Interest Rate Warrants -- Exercise of Warrants,'
' -- Market Disruption and Force Majeure Events,' ' -- Settlement Currency' and
' -- Listing.'
INDEX WARRANTS
The company may issue, together with Debt Securities, Debt Warrants,
Currency Warrants or Interest Rate Warrants, or separately, Index Warrants
(a) in the form of Index Put Warrants, entitling the owners thereof to
receive from the company the Index Cash Settlement Value (as shall be
defined in the prospectus supplement) in cash, which amount will be
determined by reference to the amount, if any, by which the Fixed Amount
(as shall be defined in the prospectus supplement) at the time of exercise
exceeds the Index Value (as shall be defined in the prospectus supplement),
(b) in the form of Index Call Warrants, entitling the owners thereof
to receive from the company the Index Cash Settlement Value in cash, which
amount will be determined by reference to the amount, if any, by which the
Index Value at the time of exercise exceeds the Fixed Amount,
(c) in the form of Index Spread Warrants, entitling the owners thereof
to receive from the company the Index Cash Settlement Value in cash, which
amount will be determined by reference to the amount, if any, by which the
Reference Index Value (as shall be defined in the prospectus supplement) at
the time of exercise exceeds the Base Index Value (as shall be defined in
the prospectus supplement) or
(d) in such other form as shall be specified in the related prospectus
supplement. The prospectus supplement for an issue of Index Warrants will
set forth the formula pursuant to which the Index Cash Settlement Value
will be determined, including any multipliers, if applicable.
26
<PAGE>
<PAGE>
The prospectus supplement will describe the terms of Index Warrants offered
thereby, the Index Warrant Agreement relating to such Index Warrants and the
Index Warrant Certificate representing such Index Warrants, including the
following:
(1) the title of such Index Warrants;
(2) the aggregate amount of such Index Warrants;
(3) the initial offering price of such Index Warrants;
(4) the exercise price, if any;
(5) the currency or currency unit in which the initial offering price,
the exercise price, if any, and the Index Cash Settlement Value of the
Index Warrants is payable;
(6) the Index or Indices for such Index Warrants, which may be based
on one or more U.S. or foreign stocks, bonds, or other securities, one or
more U.S. or foreign interest rates, one or more currencies or currency
units, or any combination of the foregoing, and may be a preexisting U.S.
or foreign index compiled and published by a third party or an index based
on one or more securities, interest rates or currencies selected by the
company solely in connection with the issuance of such Index Warrants, and
certain information regarding such Index or Indices and the underlying
securities, interest rates or currencies or currency units (including, to
the extent possible, the policies of the publisher of the Index with
respect to additions, deletions and substitutions of such securities,
interests rates or currencies or currency units);
(7) whether such Index Warrants shall be Index Put Warrants, Index
Call Warrants, Index Spread Warrants or otherwise;
(8) the method of providing for a substitute Index or Indices or
otherwise determining the amount payable in connection with the exercise of
such Index Warrants if any Index changes or ceases to be made available by
its publisher, which determination will be made by an independent expert;
(9) the formula for determining the Index Cash Settlement Value, if
applicable, of each Index Warrant;
(10) whether and under what circumstances a minimum and/or maximum
expiration value is applicable upon the expiration or exercise of such
Index Warrants;
(11) the effect or effects, if any, of the occurrence of a Market
Disruption Event or Force Majeure event (each as defined in the Index
Warrant Agreement);
(12) the date on which the right to exercise such Index Warrants shall
commence and the date (the 'Index Warrant Expiration Date') on which such
right shall expire;
(13) any minimum number of Index Warrants which must be exercised at
any one time, other than upon automatic exercise;
(14) the maximum number if any, of such Index Warrants that may,
subject to election by the company, be exercised by all owners (or by any
person or entity) on any day;
(15) any provisions for the automatic exercise of such Index Warrants
other than at expiration;
(16) whether and under what circumstances such Index Warrants may be
cancelled by the company prior to their expiration date;
(17) any provisions permitting a Holder to condition any notice of
exercise on the absence of certain specified changes in the Index Value,
the Base Index Value or the Referenced Index Value after the date of
exercise;
(18) any other procedures and conditions relating to the exercise of
such Index Warrants;
(19) the identity of the Index Warrant Agent;
(20) any national securities exchange on which such Index Warrants
will be listed;
(21) provisions, if any, for issuing such Index Warrants in
certificated form;
27
<PAGE>
<PAGE>
(22) if such Index Warrants are not issued in book-entry form, the
place or places at which payments in respect of such Index Warrants are to
be made by the company;
(23) if applicable, a discussion of certain United States federal
income tax, accounting or other special considerations applicable thereto;
and
(24) any other terms of such Index Warrants.
Other important information concerning Index Warrants is set forth below
under 'Certain Items Applicable to All Warrants -- Modifications,' ' -- Merger,
Consolidation, Sale or Other Disposition' and ' -- Enforceability of Rights by
Beneficial Owner; Governing Law' and 'Certain Items Applicable to Currency
Warrants, Index Warrants and Interest Rate Warrants -- Exercise of Warrants,'
' -- Market Disruption and Force Majeure Events,' ' -- Settlement Currency' and
' -- Listing.'
INTEREST RATE WARRANTS
The company may issue, together with Debt Securities, Debt Warrants,
Currency Warrants or Index Warrants, or separately, Interest Rate Warrants
(a) in the form of Interest Rate Put Warrants, entitling the owners
thereof to receive from the company the Interest Rate Cash Settlement Value
(as shall be defined in the prospectus supplement) in cash, which amount
will be determined by reference to the amount, if any, by which the Spot
Amount (as shall be defined in the prospectus supplement) is less than the
Strike Amount (as shall be defined in the prospectus supplement) on the
applicable valuation date following exercise,
(b) in the form of Interest Rate Call Warrants, entitling the owners
thereof to receive from the company the Interest Rate Cash Settlement Value
in cash, which amount will be determined by reference to the amount, if
any, by which the Spot Amount on the applicable valuation date following
exercise exceeds the Strike Amount or
(c) in such other form as shall be specified in the related prospectus
supplement. The prospectus supplement for an issue of Interest Rate
Warrants will set forth the formula pursuant to which the Interest Rate
Cash Settlement Value will be determined, including any multipliers, if
applicable. The Strike Amount may either be a fixed yield, price or rate of
a Sovereign Debt Instrument, a Rate or any combination of Sovereign Debt
Instruments and/or Rates or a yield, price or rate that varies during the
term of the Interest Rate Warrants in accordance with a schedule or
formula. The Sovereign Debt Instrument will be one or more instruments
specified in the applicable prospectus supplement issued either by the
United States government or by a foreign government. The Rate will be one
or more interest rates or interest rate swap rates established from time to
time by one or more financial institutions specified in the applicable
prospectus supplement.
The prospectus supplement will describe the terms of Interest Rate Warrants
offered thereby, the Interest Rate Warrant Agreement relating to such Interest
Rate Warrants and the Interest Rate Warrant Certificate representing such
Interest Rate Warrants, including the following:
(1) the title of such Interest Rate Warrants;
(2) the aggregate amount of such Interest Rate Warrants;
(3) the initial offering price of such Interest Rate Warrants;
(4) the exercise price, if any;
(5) the currency or currency unit in which the initial offering price,
the exercise price, if any, and the Interest Rate Cash Settlement Value of
such Interest Rate Warrants is payable;
(6) the Sovereign Debt Instrument (which may be one or more debt
instruments issued either by the United States government or by a foreign
government), the Rate (which may be one or more interest rates or interest
rate swap rates established from time to time by one or more specified
financial institutions) or the other yield, price or rate utilized for such
Interest
28
<PAGE>
<PAGE>
Rate Warrants, and certain information regarding such Sovereign Debt
Instrument, Rate or such other yield, price or rate;
(7) whether such Interest Rate Warrants shall be Interest Rate Put
Warrants, Interest Rate Call Warrants or otherwise;
(8) the Strike Amount, the method of determining the Spot Amount and
the method of expressing movements in the yield or closing price of the
Sovereign Debt Instrument or in the level of the Rate or such other yield,
price or rate as a cash amount in the currency in which the Interest Rate
Cash Settlement Value of such Warrants is payable;
(9) the formula for determining the Interest Rate Cash Settlement
Value, if applicable, of each Interest Rate Warrant;
(10) whether and under what circumstances a minimum and/or maximum
expiration value is applicable upon the expiration or exercise of such
Interest Rate Warrants;
(11) the effect or effects, if any, of the occurrence of a Market
Disruption Event or Force Majeure Event (each as defined in the Interest
Rate Warrant Agreement);
(12) the date on which the right to exercise such Interest Rate
Warrants shall commence and the date (the 'Interest Rate Warrant Expiration
Date') on which such right shall expire;
(13) any minimum number of Interest Rate Warrants which must be
exercised at any one time, other than upon automatic exercise;
(14) the maximum number, if any, of such Interest Rate Warrants that
may, subject to elections by the company, be exercised by all owners (or by
any person or entity) on any day;
(15) any provisions for the automatic exercise of such Interest Rate
Warrants other than at expiration;
(16) whether and under what circumstances such Interest Rate Warrants
may be cancelled by the company prior to their expiration date;
(17) any provisions permitting a Holder to condition any notice of
exercise on the absence of certain specified changes in the Spot Amount
after the date of exercise;
(18) any other procedures and conditions relating to the exercise of
such Interest Rate Warrants;
(19) the identity of the Interest Rate Warrant Agent;
(20) any national securities exchange on which such Interest Rate
Warrants will be listed;
(21) provisions, if any, for issuing such Interest Rate Warrants in
certificated form;
(22) if such Interest Rate Warrants are not issued in book-entry form,
the place or places at which payments in respect of such Interest Rate
Warrants are to be made by the company;
(23) if applicable, a discussion of certain United States federal
income tax, accounting or other special considerations applicable thereto;
and;
(24) any other terms of such Interest Rate Warrants.
Other important information concerning Interest Rate Warrants is set forth
below under 'Certain Items Applicable to All Warrants -- Modifications,'
' -- Merger, Consolidation, Sale or Other Disposition' and ' -- Enforceability
of Rights by Beneficial Owner; Governing Law' and 'Certain Items Applicable to
Currency Warrants, Index Warrants and Interest Rate Warrants -- Exercise of
Warrants,' ' -- Market Disruption and Force Majeure Events,' ' -- Settlement
Currency' and ' -- Listing.'
CERTAIN ITEMS APPLICABLE TO ALL WARRANTS
MODIFICATIONS. Each Warrant Agreement and the terms of each issue of
Warrants may be amended by the company and the applicable Warrant Agent, without
the consent of the beneficial owners or the registered holders, for the purpose
of curing any ambiguity, or of curing, correcting or supplementing any defective
or inconsistent provision contained therein, or in any other manner
29
<PAGE>
<PAGE>
which the company may deem necessary or desirable and which will not materially
adversely affect the interests of the beneficial owners of the then outstanding
unexercised Warrants (Section 6.1).
The company and the applicable Warrant Agent may also modify or amend the
applicable Warrant Agreement and the terms of the related Warrants, with the
consent of the beneficial owners of not less than a majority in number of the
then outstanding unexercised Warrants affected, provided that no such
modification or amendment that reduces the amount receivable upon exercise,
shortens the period of time during which the Warrants may be exercised,
increases the minimum or decreases the maximum number of Warrants that may be
exercised by or on behalf of any one beneficial owner at any one time, changes
the formula for determining the Cash Settlement Value or otherwise materially
and adversely affects the exercise rights of the owners or reduces the number of
outstanding Warrants the consent of whose beneficial owners is required for
modification or amendment of the applicable Warrant Agreement or the terms of
the Warrants may be made without the consent of each beneficial owner affected
thereby (Section 6.1).
MERGER, CONSOLIDATION, SALE OR OTHER DISPOSITION. The company will covenant
in the Warrant Agreements that it will not merge or consolidate with any other
corporation or sell or convey all or substantially all its assets to any person
(other than an Asset Drop-Down (as defined under 'Description of the Debt
Securities -- Covenants -- Consolidation, Merger, Sale or Conveyance of Assets
of the company')), unless (1) either the company is the continuing corporation
or the successor corporation or the person which acquires substantially all the
assets of the company (if other than the company) expressly assumes the due and
punctual performance and observance of all the covenants and conditions of each
Warrant Agreement to be performed or observed by the company, by amendment to
the Warrant Agreements satisfactory to the respective Warrant Agents, executed
and delivered to the Warrant Agents by such corporation, and (2) the company or
such successor corporation, as the case may be, is not, immediately after such
merger or consolidation, or such sale or conveyance, in default in the
performance of any such covenant or condition. In the case of any such
consolidation, merger, sale or conveyance, and following such an assumption by
the successor corporation, such successor corporation will succeed to and be
substituted for the company, with the same effect as if it had been named in the
Warrant Agreements, and, in the case of any such sale or conveyance, the company
will be released and discharged from all obligations and covenants under the
Warrant Agreements and the Warrants. In the event of any Asset Drop-Down after
the date of any Warrant Agreement, any subsequent sale or conveyance of assets
by the Drop-Down Subsidiary will be deemed to be a sale or conveyance of assets
by the company for purposes of the covenant described in this paragraph. The
term 'substantially all,' which appears in the foregoing covenant, is not
defined in the Warrant Agreements and a precise explanation of such term is not
feasible. The company will interpret such term in any particular situation in
light of all then existing facts and circumstances.
ENFORCEABILITY OF RIGHTS BY BENEFICIAL OWNER; GOVERNING LAW. Each Warrant
Agent will act solely as an agent of the company in connection with the issuance
and exercise of the applicable Warrants and will not assume any obligation or
relationship of agency or trust for or with any owner of a beneficial interest
in any Warrant or with the registered holder thereof (Sections 5.2). A Warrant
Agent shall have no duty or responsibility in the case of any default by the
company in the performance of its covenants or agreements under the applicable
Warrant Agreement or Warrant Certificate, except as provided in the applicable
Debt Warrant Agreement, including, without limitation, any duty or
responsibility to initiate any proceedings at law or otherwise or to make any
demand upon the company (Section 5.2). Beneficial owners may, without the
consent of the applicable Warrant Agent, enforce by appropriate legal action, on
their own behalf, their right to exercise their Warrants, to receive Debt
Securities, in the case of Debt Warrants, and to receive payment, if any, for
their Warrants, in the case of Currency Warrants, Index Warrants or Interest
Rate Warrants (Section 3.3 of the Debt Warrant Agreement and Section 3.1 of each
other Warrant Agreement).
Except as may otherwise be provided in the prospectus supplement relating
thereto, each issue of Warrants and the applicable Warrant Agreement will be
governed by and construed in
30
<PAGE>
<PAGE>
accordance with the law of the State of New York (Section 6.7 of the Debt
Warrant Agreement and Section 6.5 of each other Warrant Agreement).
CERTAIN ITEMS APPLICABLE TO CURRENCY WARRANTS, INDEX WARRANTS AND INTEREST RATE
WARRANTS
EXERCISE OF WARRANTS. Except as may otherwise be provided in the applicable
prospectus supplement relating thereto, (a) each Currency Warrant, Index Warrant
and Interest Rate Warrant will entitle the owner, upon payment of the exercise
price, if any, to the applicable Cash Settlement Value of such Warrant, on the
applicable Exercise Date, in each case as such terms will further be defined in
the applicable prospectus supplement relating thereto (Sections 1.1 and 2.2) and
(b) if not exercised prior to 1:30 p.m., New York City time, on the Business Day
preceding the applicable Warrant Expiration Date, the Warrants will be deemed
automatically exercised on such Warrant Expiration Date (Section 2.3). As
described below, Currency Warrants, Index Warrants and Interest Rate Warrants
may also be deemed to be automatically exercised if they are delisted.
Procedures for exercise of the Currency Warrants, Index Warrants and Interest
Rate Warrants will be set forth in the applicable prospectus supplement.
MARKET DISRUPTION AND FORCE MAJEURE EVENTS. If so specified in the
applicable prospectus supplement, following the occurrence of a Market
Disruption Event or Force Majeure Event (as each term shall be defined therein),
the Cash Settlement Value of a Currency Warrant, an Index Warrant or an Interest
Rate Warrant may be determined on a different basis than under normal exercise
of a Warrant or the determination of the applicable Cash Settlement Value. In
addition, if so specified in the applicable prospectus supplement, Currency
Warrants, Index Warrants and Interest Rate Warrants may, in certain
circumstances, be cancelled by the company prior to the expiration date and the
holders thereof will be entitled to receive only the applicable Cancellation
Amount. The Cancellation Amount may be either a fixed amount or an amount that
varies during the term of the Warrants in accordance with a schedule or formula.
SETTLEMENT CURRENCY. Currency Warrants, Index Warrants and Interest Rate
Warrants will be settled only in U.S. dollars (unless settlement in a foreign
currency is specified in the applicable prospectus supplement and is permissible
under securities exchange rules approved by the Commission) and accordingly will
not require or entitle an owner to sell, deliver, purchase, or take delivery of
the currency, security or other instrument underlying such Warrants. If any of
the Currency Warrants, Index Warrants or Interest Rate Warrants are sold for, or
if the exercise price, if any, is payable in, foreign currencies or foreign
currency units or if the amount payable by the company in respect of any series
of Currency Warrants, Index Warrants or Interest Rate Warrants is payable in
foreign currencies or foreign currency units, the restrictions, elections, tax
consequences, specific terms and other information with respect to such issue of
Warrants and such currencies or currency units will be set forth in the
prospectus supplement relating thereto.
LISTING. Unless otherwise provided in the prospectus supplement, each issue
of Currency Warrants, Index Warrants and Interest Warrants will be listed on a
national securities exchange, as specified in the applicable prospectus
supplement, subject only to official notice of issuance, as a pre-condition to
the sale of any such Warrants. It may be necessary in certain circumstances for
such national securities exchange to obtain the approval of the Commission in
connection with any such listing. In the event that such Warrants are delisted
from, or permanently suspended from trading on, such exchange, and at or prior
to such delisting or suspension, such Warrants shall not have been listed on
another national securities exchange, any such Warrants not previously exercised
will be deemed automatically exercised on the date such delisting or permanent
trading suspension becomes effective (Sections 2.3). The applicable Cash
Settlement Value to be paid in such event will be as set forth in the applicable
prospectus supplement. The company will notify holders of such Warrants as soon
as practicable of such delisting or permanent trading suspension. The applicable
Warrant Agreement will contain a covenant of the company not to seek delisting
of such Warrants from or permanent suspension of their trading on, such exchange
(Section 2.4 of the Currency Warrant Agreement and the Interest Rate Warrant
Agreement and Section 2.5 of the Index Warrant Agreement).
31
<PAGE>
<PAGE>
DESCRIPTION OF THE GUARANTEES
Newcourt will provide an irrevocable unconditional guarantee of payment of
principal, premium, if any, and interest on the Debt Securities. Newcourt will
also provide an irrevocable unconditional guarantee of payment of all
obligations of the company under the terms of the Warrants. Such guarantees will
be unsecured obligations of Newcourt and will rank pari passu (equal in right of
payment) with all other unsecured and unsubordinated indebtedness of Newcourt.
At December 31, 1998, Newcourt's consolidated indebtedness was approximately
$11.6 billion (C$18.0 billion). Such guarantee will, however, be effectively
subordinate (with respect to the assets of Newcourt's subsidiaries) to the
indebtedness and other liabilities of such subsidiaries other than AT&T Capital.
At December 31, 1998, such indebtedness and other liabilities (including those
of AT&T Capital) aggregated approximately $10.7 billion (C$16.7 billion).
GLOBAL SECURITIES
The Securities of a series may be issued in whole or in part in the form of
one or more global Securities that will be deposited with or on behalf of a
depositary identified in the prospectus supplement relating to such series.
Global Securities representing Debt Securities or Debt Warrants may be issued in
either registered or bearer form. Global Securities representing Currency
Warrants, Index Warrants or Interest Rate Warrants will be issued in registered
form only. Global Securities may be issued in either temporary or permanent
form.
The specific terms of the depositary arrangement with respect to any
Securities of a series will be described in the prospectus supplement relating
to such series. The company anticipates that the following provisions will apply
to all depositary arrangements.
Unless otherwise specified in the prospectus supplement, Securities which
are to be represented by a global Security in registered form to be deposited
with or on behalf of a depositary will be registered in the name of such
depositary or its nominee. Upon the issuance of a global Security in registered
form, the depositary for such global Security will credit the respective
principal amounts, in the case of Debt Securities, and the respective number of
warrants, in the case of Warrants represented by such global Security, to the
accounts of institutions that have accounts with such depositary or its nominee
('participants'). The accounts to be credited shall be designated by the
underwriters or agents of such Securities, or by the company if such Securities
are offered and sold directly by the company. Ownership of beneficial interests
in such global Securities will be limited to participants or persons that may
hold interests through participants. Ownership of beneficial interests by
participants in such global Securities will be shown on, and the transfer of
that ownership interest will be effected only through, records maintained by the
depositary or its nominee for such global Security. Ownership of beneficial
interests in global Securities by persons that hold through participants will be
shown on, and the transfer of that ownership interest within such participant
will be effected only through, records maintained by such participant.
The laws of some jurisdictions require that certain purchasers of
securities take physical delivery of such securities in definitive form. Such
limits and such laws may impair the ability to transfer beneficial interests in
a global Security.
So long as the depositary for a global Security in registered form, or its
nominee, is the registered owner of such global Security, such depositary or
such nominee, as the case may be, will be considered the sole owner or holder of
the Securities represented by such global Security for all purposes under the
indenture, in the case of Debt Securities, or under the applicable Warrant
Agreement, in the case of Warrants, governing such Securities. Except as set
forth below or as the company may otherwise agree in its sole discretion, owners
of beneficial interests in such global Security will not be entitled to have
Securities of the series represented by such global Security registered in their
names, will not receive or be entitled to receive physical delivery of
Securities of such series in definitive form and will not be considered the
owners or holders thereof under the indenture, in the case of Debt Securities,
or under the applicable Warrant Agreement, in the case of Warrants.
32
<PAGE>
<PAGE>
Payments in respect of Securities registered in the name of or held by a
depositary or its nominee will be made to the depositary or its nominee, as the
case may be, as the registered owner or the holder of the global Security. None
of the company, the Trustee or applicable Warrant Agent, any Paying Agent or any
Security Registrar (the 'Security Registrar') for such Securities will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in a global Security
or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interest.
The company expects that the depositary for a permanent global Security in
registered form, upon receipt of any payment in respect of a permanent global
Security, will credit immediately participants' accounts with payments in
amounts proportionate to their respective beneficial interests in such global
Security as shown on the records of such depositary. The company also expects
that payments by participants to owners of beneficial interests in such global
Security held through such participants will be governed by standing
instructions and customary practices, as is now the case with securities held
for the accounts of customers in bearer form or registered in 'street name,' and
will be the responsibility of such participants.
A global Security in registered form may not be transferred except as a
whole by the depositary for such global Security to a nominee of such depositary
or by a nominee of such depositary to such depositary or another nominee of such
depositary or by such depositary or any such nominee to a successor of such
depositary or nominee or a nominee of such successor. If a depositary for a
permanent global Security in registered form is at any time unwilling or unable
to continue as depositary and a successor depositary is not appointed by the
company within 90 days, the company will issue Securities in definitive
registered form in exchange for the global Security representing such
Securities. In addition, the company may at any time and in its sole discretion
determine not to have any Securities of a series in registered form represented
by one or more global Securities and, in such event, will issue Securities of
such series in definitive form in exchange for all the global Securities
representing such Series. Further, if the company so specifies with respect to
the Securities of a series or otherwise consents in its sole discretion, an
owner of a beneficial interest in a global Security representing Securities of
such series may, on terms acceptable to the company and the depositary for such
global Security, receive Securities of such series in definitive form. In any
such instance, an owner of a beneficial interest in a global Security will be
entitled to physical delivery in definitive form of Securities of the series
represented by such global Security equal in principal amount, in the case of
Debt Securities, or number, in the case of Warrants, to such beneficial interest
and to have such Securities registered in its name (if the Securities of such
series are issuable as registered securities). Unless otherwise specified by the
company, Securities of such series so issued in definitive form will be issued
either as registered or bearer securities (if the Securities of such series are
issuable in such form) and in authorized denominations, in the case of Debt
Securities, or in authorized numbers, in the case of Warrants, as specified in
the applicable prospectus supplement. See, however, 'Description of the Debt
Securities -- Limitations on Issuance of Bearer Debt Securities' for a
description of certain restrictions on the issuance of a bearer Debt Security in
definitive form in exchange for an interest in a global Security.
BEARER DEBT SECURITIES
If so specified in the prospectus supplement, pending the availability of a
permanent global Security, all or any portion of the Debt Securities of a series
which may be issuable as bearer Debt Securities will initially be represented by
one or more temporary global Securities, without interest coupons, to be
deposited with a common depositary in London for Morgan Guaranty Trust company
of New York, Brussels Office, as operator of the Euroclear System ('Euroclear')
and Cedel Bank, societe anonyme ('Cedel Bank') for credit to the designated
accounts. The interests of the beneficial owner or owners in such a temporary
global Security in bearer form will be exchangeable for definitive bearer Debt
Securities (including interests in a permanent global Security in bearer form),
representing Debt Securities having the same interest rate and stated maturity,
but only upon written certification in the form and to the effect described
under
33
<PAGE>
<PAGE>
'Description of the Debt Securities -- General' unless such certification has
been provided on an earlier interest payment date. The beneficial owner of a
Debt Security represented by a temporary global Security in bearer form or a
permanent global Security in bearer form may, on or after the applicable
exchange date and upon 30 days' notice to the Trustee given through Euroclear or
Cedel Bank, exchange its interest for definitive bearer Debt Securities or, if
specified in the prospectus supplement, definitive registered Debt Securities of
any authorized denomination. No bearer Debt Security delivered in exchange for a
temporary global Security or a permanent global Security shall be mailed or
otherwise delivered to any location in the United States in connection with such
exchange.
Unless otherwise specified in the prospectus supplement, interest in
respect of any portion of such a temporary global Security in bearer form
payable in respect of an Interest Payment Date occurring prior to the issuance
of a permanent global Security in bearer form will be paid to each of Euroclear
and Cedel Bank with respect to the portion of the temporary global Security in
bearer form held for its account. Each of Euroclear and Cedel Bank will
undertake in such circumstances to credit such interest received by it in
respect of a temporary global Security in bearer form to the respective accounts
for which it holds such temporary global Security in bearer form as of the
relevant Interest Payment Date, but only upon receipt in each case of written
certification, in the form and to the effect described under 'Description of
Debt Securities -- General.'
MATERIAL FEDERAL INCOME TAX CONSEQUENCES
A summary of the material United States federal income tax consequences to
persons investing in Securities will be set forth in the prospectus supplement.
This summary in the prospectus supplement will be presented for information
purposes only, however, and will not be intended as legal or tax advice to
prospective purchasers. Prospective purchasers of Securities are urged to
consult their own tax advisors prior to any acquisition of Securities.
PLAN OF DISTRIBUTION
We may sell any of the Securities in three ways: (1) directly to
purchasers, (2) through agents, and (3) through dealers or underwriters in a
public offering by them.
We may distribute the Securities from time to time in one or more
transactions at a fixed price or prices, which may be changed, at market prices
prevailing at the time of sale, at prices related to such prevailing market
prices or at negotiated prices.
The prospectus supplement with respect to an offering of Securities will
set forth the terms of the Securities offered, including the name or names of
any underwriters, dealer or agents; the purchase price of the Securities offered
and the proceeds to us from such sale; the place and time of delivery for the
Securities offered; and any underwriting discounts or concessions allowed or
reallowed or paid to dealers and any securities exchange on which such offered
Securities may be listed. Any initial public offering price, discounts or
concessions allowed or reallowed or paid to dealers may be changed from time to
time.
Offers to purchase the Securities may be solicited directly by us or by
agents designated by us from time to time. The prospectus supplement for the
offer or sale of the Securities in respect of which this prospectus is delivered
will name any such agent and any commissions payable by us to such agent. Unless
the prospectus supplement states otherwise, any such agent will be acting on a
reasonable best efforts basis for the period of its appointment. Agents may be
deemed to be an underwriter as that term is defined in the Securities Act for
any Securities so offered and sold.
If a dealer is utilized in the sale of the Securities in respect of which
this prospectus is delivered, we will sell such Securities to the dealer, as
principal. The dealer may then resell such Securities to the public at varying
prices to be determined by such dealer at the time of resale. Any such dealer
may be deemed to be an underwriter as that term is defined in the Securities Act
for any Securities so offered and sold.
34
<PAGE>
<PAGE>
If the sale is accomplished by means of an underwritten offering, we will
enter into an underwriting agreement with an underwriter or underwriters at the
time of sale to them, and the names of the underwriters and the terms of the
transaction will be set forth in the prospectus supplement, which, together with
this prospectus, will be used by the underwriters to make resales of the
Securities. Securities offered in an underwritten offering may be offered to the
public either through underwriting syndicates represented by managing
underwriters or directly by the managing underwriters. Unless the prospectus
supplement states otherwise, the underwriting agreement will provide that the
obligations of the underwriters are subject to certain conditions precedent and
that the underwriters with respect to a sale of offered Securities will be
obligated to purchase all such offered Securities if any are purchased.
Agents, dealers or underwriters may be entitled under agreements with us to
be indemnified by us against certain civil liabilities, including liabilities
under the Securities Act.
If so stated in the prospectus supplement, we will authorize agents and
underwriters to solicit offers by certain institutions to purchase Securities
from us pursuant to delayed delivery contracts providing for payment and
delivery on a specified future date. Institutions with which such contracts,
when authorized, may be made include commercial and savings banks, insurance
companies, pension funds, educational and charitable institutions, and other
institutions, but shall in all cases be subject to our approval. Except as
otherwise provided in the prospectus supplement, such contracts will not be
subject to any conditions except that the purchase by an institution of the
Securities covered by such contracts shall not at the time of delivery be
prohibited under the laws of any jurisdiction in the United States to which such
institution is subject. The prospectus supplement will state the commission that
we will pay to agents and underwriters for soliciting purchases of the
Securities pursuant to such contracts we have accepted.
Agents, dealers or underwriters may be customers of, engage in other
transactions with or perform other services for us in the ordinary course of
business.
VALIDITY OF SECURITIES
The validity of the Securities will be passed upon for the company by
Wilentz, Goldman & Spitzer, P.A., Woodbridge, New Jersey, for Newcourt by John
P. Stevenson, Corporate Secretary, and/or one or more of its Assistant General
Counsels, and for any agent, dealer or underwriter by Chapman and Cutler,
Chicago, Illinois. Such opinions will be conditioned upon, and subject to
certain assumptions regarding, future action required to be taken by Newcourt,
the company and the Trustee in connection with the issuance and sale of any
particular Security, the specific terms of Securities and other matters which
may affect the validity of Securities but which cannot be ascertained on the
date of such opinions. From time to time, Chapman and Cutler provides certain
services to Newcourt and its subsidiaries.
EXPERTS
The consolidated financial statements for Newcourt incorporated by
reference in this prospectus and elsewhere in the Registration Statement, 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.
The consolidated financial statements for the company as of December 31,
1997 and for the year then ended incorporated by reference in the prospectus and
elsewhere in the Registration Statement have been audited by Arthur Andersen
LLP, independent public accountants, as indicated in their report with respect
thereto and is incorporated by reference in reliance upon the authority of said
firm as experts in giving said report.
The company's consolidated balance sheet as of December 31, 1996 and the
consolidated statements of income, changes in shareowners' equity, and cash
flows for each of the two years in the period ended December 31, 1996,
incorporated by reference in this prospectus, have been incorporated by
reference in reliance on the report of PricewaterhouseCoopers LLP, independent
auditors, given on the authority of that firm as experts in accounting and
auditing.
35
<PAGE>
<PAGE>
[Logo]
[Logo]
<PAGE>
<PAGE>
PART II TO FORM F-3
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION*
<TABLE>
<S> <C>
Securities and Exchange Commission Filing Fee....................................................... $1,668,000
Rating Agency Fees.................................................................................. 665,000
Fees and Expenses of Trustee........................................................................ 30,000
Printing and Distributing Registration Statement, Prospectus, Indenture and Miscellaneous
Material.......................................................................................... 150,000
Accountants' Fees................................................................................... 150,000
Legal Fees and Expenses............................................................................. 100,000
Blue Sky Fees and Expenses.......................................................................... 40,000
Miscellaneous Expenses.............................................................................. 27,000
----------
Total.......................................................................................... $2,830,000
----------
----------
</TABLE>
- ------------
* Estimated, except for filing fee.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
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 Restated
Certificate of Incorporation and By-Laws provide for indemnity of directors and
officers to the fullest extent permitted by law.
The directors and officers of 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.
Any agents, dealers or underwriters who execute any of the agreements filed
as Exhibit 1A or 1B to this registration statement will agree to indemnify AT&T
Capital and its directors and its officers who signed the registration statement
against certain liabilities which might arise under the Securities Act of 1933,
as amended, from information furnished to AT&T Capital by or on behalf of any
such indemnifying party.
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
corporate 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
II-1
<PAGE>
<PAGE>
(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 he 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:
(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.
Any agents, dealers or underwriters who execute any of the agreements filed
as Exhibit 1A or 1B to the registration statement will agree to indemnify
Newcourt and Newcourt's directors and its officers who signed the registration
statement against certain liabilities which might arise under the Securities Act
of 1933, as amended, from information furnished to Newcourt by or on behalf of
any such indemnifying party.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended, may be permitted to directors, officers or persons
controlling 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.
II-2
<PAGE>
<PAGE>
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
- ------
<C> <S>
1A -- Form of Underwriting Agreement
1B -- Form of Distribution Agreement
4A -- Form of Indenture dated as of March 1, 1999 (the 'Indenture'), among AT&T Capital, Newcourt and The Chase
Manhattan Bank, as Trustee
4B -- Form of Medium-Term Global Fixed Rate Note
4C -- Form of Medium-Term Certificated Fixed Rate Note
4D -- Form of Medium-Term Global Floating Rate Note
4E -- Form of Medium-Term Certificated Floating Rate Note
4F -- Form of Debt Warrant Agreement*
4G -- Form of Currency Warrant Agreement**
4H -- Form of Index Warrant Agreement**
4I -- Form of Interest Rate Warrant Agreement**
4J -- Form of Guarantee relating to the Notes
4K -- Form of Guarantee relating to the Warrants
5A -- Opinion of Wilentz, Goldman & Spitzer, P.A., counsel to AT&T Capital, as to the legality of the securities
being registered
5B -- Opinion of John P. Stevenson, Corporate Secretary and Counsel of Newcourt, as to the legality of the
Guarantees being registered
8 -- Opinion of Sidley and Austin as to certain tax matters
12A -- Computation of Ratios of Earnings to Fixed Charges for AT&T Capital
12B -- Computation of Ratios of Earnings to Fixed Charges for Newcourt
23A -- Consent of PricewaterhouseCoopers LLP
23B -- Consent of Wilentz, Goldman & Spitzer, P.A., counsel to AT&T Capital (included in Exhibit 5A)
23C -- Consent of John P. Stevenson, Corporate Secretary and Counsel of Newcourt (included in Exhibit 5B)
23D -- Consent of Arthur Andersen LLP
23E -- Consent of Ernst & Young LLP
23F -- Consent of Sidley and Austin (included in Exhibit 8)
24 -- Powers of Attorney executed by the directors and officers who signed the registration statement (included
on pages II-5, II-6 and II-7 hereof)
25 -- Statement of Eligibility of the Trustee on Form T-1
</TABLE>
- ------------
* Previously filed as the corresponding exhibit to Registration Statement No.
333-48415
** Previously filed as the corresponding exhibit to Registration Statement No.
33-54359
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;
II-3
<PAGE>
<PAGE>
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 of 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.
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 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) or 497(h)
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>
<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-3 and has duly caused
this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the Town of Parsippany, State of New Jersey, on
the 2nd day of March, 1999.
AT&T CAPITAL CORPORATION
By: /s/ SCOTT J. MOORE
...................................
SCOTT J. MOORE
SENIOR VICE PRESIDENT,
GENERAL COUNSEL AND SECRETARY
We, the undersigned officers and directors of AT&T Capital Corporation,
hereby severally constitute and appoint Scott J. Moore and Glenn A. Votek and
each of them singly, our true and lawful attorneys-in-fact and agents, to sign
for us and in our names in the capacities indicated below, the registration
statement on Form F-3 filed herewith and any and all pre-effective and
post-effective amendments to said registration statement, and any additional
registration statement that may be filed pursuant to Rule 462 under the
Securities Act of 1933, as amended, and generally to do all things in our names
and on our behalf in our capacities as officers and directors to enable AT&T
Capital Corporation to comply with the provisions of the Securities Act of 1933,
as amended, and all requirements of the Securities and Exchange Commission,
hereby ratifying and confirming our signatures as they may be signed by our said
attorneys-in-fact, or either of them, to said registration statement and any and
all amendments thereto and any additional registration statement that may be
filed pursuant to said Rule 462.
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 CAPACITY DATE
- ------------------------------------------ ---------------------------------------------- ------------------
<C> <S> <C>
/s/ STEVEN K. HUDSON Principal Executive Officer -- Chief March 2, 1999
......................................... Executive Officer and Director
(STEVEN K. HUDSON)
/s/ DANIEL A. JAUERNIG Principal Financial Officer -- Chief Financial March 2, 1999
......................................... Officer and Director
(DANIEL A. JAUERNIG)
Principal Accounting Officer -- Vice President March 2, 1999
......................................... and Controller
(THOMAS G. ADAMS)
/s/ DAVID F. BANKS Director March 2, 1999
.........................................
(DAVID F. BANKS)
/s/ BRADLEY D. NULLMEYER Group President and Director
.........................................
(BRADLEY D. NULLMEYER)
</TABLE>
II-5
<PAGE>
<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-3 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 2nd day of March, 1999.
NEWCOURT CREDIT GROUP INC.
By: /S/ BORDEN D. ROSIAK
.................................
NAME: BORDEN D. ROSIAK
TITLE: EXECUTIVE VICE PRESIDENT
We, the undersigned officers and directors of Newcourt Credit Group Inc.,
hereby severally constitute and appoint Steven K. Hudson and Borden D. Rosiak
and each of them singly, our true and lawful attorneys-in-fact and agents, to
sign for us and in our names in the capacities indicated below, the registration
statement on Form F-3 filed herewith and any and all pre-effective and
post-effective amendments to said registration statement, and any additional
registration statement that may be filed pursuant to Rule 462 under the
Securities Act of 1933, as amended, and generally to do all things in our names
and on our behalf in our capacities as officers and directors to enable Newcourt
Credit Group Inc. to comply with the provisions of the Securities Act of 1933,
as amended, and all requirements of the Securities and Exchange Commission,
hereby ratifying and confirming our signatures as they may be signed by our said
attorneys-in-fact, or either of them, to said registration statement and any and
all amendments thereto and any additional registration statement that may be
filed pursuant to said Rule 462.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------ ---------------------------------------------- ------------------
<C> <S> <C>
/s/ STEVEN K. HUDSON Chief Executive Officer and Director March 2, 1999
.........................................
(STEVEN K. HUDSON)
/s/ BORDEN D. ROSIAK Executive Vice President March 2, 1999
.........................................
(BORDEN D. ROSIAK)
/s/ DANIEL A. JAUERNIG Chief Financial Officer March 2, 1999
.........................................
(DANIEL A. JAUERNIG)
/s/ DAVID F. BANKS Chairman of the Board and Director March 2, 1999
.........................................
(DAVID F. BANKS)
/s/ THOMAS S. AXWORTHY Director March 2, 1999
.........................................
(THOMAS S. AXWORTHY)
/s/ GERALD E. BEASLEY Director March 2, 1999
.........................................
(GERALD E. BEASLEY)
/s/ WILLIAM A. FARLINGER Director March 2, 1999
.........................................
(WILLIAM A. FARLINGER)
Director March 2, 1999
.........................................
(GUY HANDS)
</TABLE>
II-6
<PAGE>
<PAGE>
<TABLE>
<C> <S> <C>
/s/ ROBERT F. KILIMNIK Director March 2, 1999
.........................................
(ROBERT F. KILIMNIK)
Director March 2, 1999
.........................................
(DAVID A. MACINTOSH)
/s/ DAVID D. MCKERROLL Director March 2, 1999
.........................................
(DAVID D. MCKERROLL)
/s/ RONALD A. MCKINLAY Director March 2, 1999
.........................................
(RONALD A. MCKINLAY)
/s/ PAUL G. MORTON Director March 2, 1999
.........................................
(PAUL G. MORTON)
/s/ BRADLEY D. NULLMEYER Director March 2, 1999
.........................................
(BRADLEY D. NULLMEYER)
/s/ BRUCE I. ROBERTSON Director March 2, 1999
.........................................
(BRUCE I. ROBERTSON)
/s/ DAVID J. SHARPLESS Director March 2, 1999
.........................................
(DAVID J. SHARPLESS)
Director March 2, 1999
.........................................
(TAKUMI SHIBATA)
/s/ DR. STEVEN C. SMALL Director March 2, 1999
.........................................
(DR. STEVEN C. SMALL)
/s/ RICHARD E. VENN Director March 2, 1999
.........................................
(RICHARD E. VENN)
/s/ WILLIAM D. WALSH Director March 2, 1999
.........................................
(WILLIAM D. WALSH)
AT&T Capital Corporation Authorized Representative in the United States March 2, 1999
By: /s/ SCOTT J. MOORE
.........................................
(SCOTT J. MOORE)
</TABLE>
II-7
<PAGE>
<PAGE>
EXHIBIT INDEX
The exhibits marked with an asterisk below, on file with the Commission,
are incorporated by reference as exhibits hereto.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
- ------
<C> <S>
1A -- Form of Underwriting Agreement
1B -- Form of Distribution Agreement
4A -- Form of Indenture dated as of March 1, 1999 (the 'Indenture'), among AT&T Capital, Newcourt and The Chase
Manhattan Bank, as Trustee
4B -- Form of Medium-Term Global Fixed Rate Note
4C -- Form of Medium-Term Certificated Fixed Rate Note
4D -- Form of Medium-Term Global Floating Rate Note
4E -- Form of Medium-Term Certificated Floating Rate Note
4F -- Form of Debt Warrant Agreement*
4G -- Form of Currency Warrant Agreement**
4H -- Form of Index Warrant Agreement**
4I -- Form of Interest Rate Warrant Agreement**
4J -- Form of Guarantee relating to the Notes
4K -- Form of Guarantee relating to the Warrants
5A -- Opinion of Wilentz, Goldman & Spitzer, P.A., counsel to AT&T Capital, as to the legality of the securities
being registered
5B -- Opinion of John P. Stevenson, Corporate Secretary and Counsel of Newcourt, as to the legality of the
Guarantees being registered
8 -- Opinion of Sidley and Austin as to certain tax matters
12A -- Computation of Ratios of Earnings to Fixed Charges for AT&T Capital
12B -- Computation of Ratios of Earnings to Fixed Charges for Newcourt
23A -- Consent of PricewaterhouseCoopers LLP
23B -- Consent of Wilentz, Goldman & Spitzer, P.A., counsel to AT&T Capital (included in Exhibit 5A)
23C -- Consent of John P. Stevenson, Corporate Secretary and Counsel of Newcourt (included in Exhibit 5B)
23D -- Consent of Arthur Andersen LLP
23E -- Consent of Ernst & Young LLP
23F -- Consent of Sidley and Austin (included in Exhibit 8)
24 -- Powers of Attorney executed by the directors and officers who signed the registration statement (included
on pages II-5, II-6 and II-7 hereof)
25 -- Statement of Eligibility of the Trustee on Form T-1
</TABLE>
- ------------
* Previously filed as the corresponding exhibit to Registration Statement No.
333-48415
** Previously filed as the corresponding exhibit to Registration Statement No.
33-54359
<PAGE>
<PAGE>
AT&T CAPITAL CORPORATION
FORM OF NOTE UNDERWRITING AGREEMENT
_____________, 1999
[Underwriter]
As Representative of the Several Underwriters
Ladies and Gentlemen:
Each of the undersigned, AT&T Capital Corporation (the "Company") and
Newcourt Credit Group Inc. ("Newcourt"), hereby confirms its agreement with the
several Underwriters named in Schedule I hereof, as follows:
1. Underwriters and Representatives. The term "Underwriters" as used
herein shall mean the several persons, firms and corporations named in Schedule
I hereof, and the term "Underwriter" shall mean any one of such persons, firms
or corporations. The terms "Underwriters," "persons," "firms" and "corporations"
as used herein shall include the singular of such terms as well as the plural.
The term "Representative" shall mean the representative to whom this Agreement
is addressed, who, by signing this Agreement, represents that it has been
authorized by each Underwriter to execute this Agreement on behalf of such
Underwriter and to act for such Underwriter in the manner herein provided. All
obligations of the Underwriters hereunder are several and not joint.
2. Description of Notes. The Company proposes to issue $_____________
principal amount of its Notes due ________________, 20__ (the "Notes"), under an
Indenture dated as of March 1, 1999 (as amended, restated or supplemented
from time to time, the "Indenture"), among the Company, Newcourt and The Chase
Manhattan Bank, Trustee (the "Trustee"). The Notes will be guaranteed as to
payment of principal, premium, if any, and interest pursuant to the guarantee
dated as of March 1, 1999 made by Newcourt to the Trustee (the "Guarantee").
The Notes and the Guarantee are more fully described in the Registration
Statement.
The term "Registration Statement" means the joint registration statement
on Form F-3 (File No. 333-________, 333-________-01) relating to the Notes and
the Guarantee (including a prospectus and prospectus supplement, each as amended
to the date hereof, relating to the Notes and the Guarantee) which has become
effective under the Securities Act of 1933 (the "Act"). The term "Basic
Prospectus" means the prospectus included in the Registration Statement. The
term "Prospectus" means the Basic Prospectus together with the prospectus
supplement
<PAGE>
<PAGE>
specifically relating to the Notes and Guarantee, as filed with, or delivered
for filing to, the Securities and Exchange Commission (the "Commission")
pursuant to Rule 424 under the Act. The term "preliminary prospectus" means any
preliminary prospectus supplement (inclusive of a pricing supplement, if any)
specifically relating to the Notes and Guarantee together with the Basic
Prospectus. As used herein, Registration Statement, Basic Prospectus,
Prospectus, and preliminary prospectus shall include in each case the material,
if any, incorporated by reference therein.
3. Representations and Warranties of the Company and Newcourt. The
Company and Newcourt jointly and severally represent and warrant to the several
Underwriters that:
(a) The Company and Newcourt have filed with the Commission the
Registration Statement, which has become effective under the Act, and
the Company and Newcourt have filed or will file with, or have delivered
or will deliver for filing to, the Commission a prospectus supplement
specifically relating to the Notes and Guarantee pursuant to Rule 424
under the Act. Each of the Company and Newcourt meets the requirements
for use of Form F-3 under the Act.
(b)(i) Each part of the Registration Statement (including the
material incorporated by reference therein) when such part became
effective (or, if later, at the time of Newcourt's filing of an annual
report pursuant to the Exchange Act (as defined below)), did not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, (ii) each preliminary prospectus, if any,
relating to the Notes and the Guarantee, filed pursuant to Rule 424
under the Act, complied when so filed in all material respects with the
Act and the Trust Indenture Act of 1939 (the "Trust Indenture Act") and
the applicable rules and regulations of the Commission thereunder, (iii)
the Registration Statement and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects with
the Act and the Trust Indenture Act and the applicable rules and
regulations of the Commission thereunder and (iv) the Registration
Statement and the Prospectus do not and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that neither the Company nor Newcourt
makes any representations or warranties as to the information contained
in or omitted from the Registration Statement, any preliminary
prospectus or the Prospectus in reliance upon information furnished in
writing to the Company by an Underwriter through the Representative
specifically for inclusion therein (which information is limited to the
information provided in [stabilization related provisions],
collectively, the "Provided Information") or as to any statements in or
omissions from the Statement of Eligibility and Qualification of the
Trustee under the Indenture.
(c) Each document or portion thereof incorporated by reference in
the Prospectus complied when filed with the Commission in all material
respects with the provisions of the Securities Exchange Act of 1934 (the
"Exchange Act"), together with
2
<PAGE>
<PAGE>
the applicable instructions, rules and regulations of the Commission
thereunder, and each document, if any, hereafter filed under the
Exchange Act and so incorporated by reference in the Prospectus will
comply when so filed in all material respects with the requirements of
such Exchange Act and such applicable instructions, rules and
regulations.
(d) The accountants who have certified or shall certify the
financial statements filed and to be filed with the Commission as parts
of the Registration Statement are public or certified accountants,
independent with respect to the Company and Newcourt, as required by the
Act and the rules and regulations of the Commission thereunder.
(e) The financial statements, and the related notes thereto,
included or incorporated by reference in the Registration Statement
present fairly the consolidated financial position of the Company and
Newcourt and their respective consolidated subsidiaries as of the dates
indicated and the results of their operations and the changes in their
consolidated cash flows for the periods specified; said financial
statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis, and the supporting
schedules included or incorporated by reference in the Registration
Statement present fairly the information required to be stated therein;
and the pro forma financial information and the related notes thereto,
included or incorporated by reference in the Registration Statement,
have been prepared in accordance with the applicable requirements of the
Act and Exchange Act, as applicable, and are based upon good faith
estimates and assumptions believed by the Company and Newcourt to be
reasonable.
(f) Since the respective dates as of which information is given
in the Registration Statement, there has not been any change in the
capital stock or long-term debt of the Company or Newcourt or any of
their respective subsidiaries, or any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, business, prospects, management,
financial position, stockholders' equity or results of operations of the
Company or Newcourt and their respective subsidiaries, taken as a whole,
otherwise than as set forth or contemplated in the Prospectus; and
except as set forth or contemplated in the Prospectus neither the
Company, Newcourt nor any of their respective subsidiaries has entered
into any transaction or agreement (whether or not in the ordinary course
of business) that would have a "Material Adverse Effect." The term
"Material Adverse Effect" shall mean 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, Newcourt and their respective subsidiaries taken as a
whole.
(g) The Indenture has been duly authorized, executed and
delivered by the Company and Newcourt and constitutes the valid and
binding agreement of the Company and Newcourt, enforceable in accordance
with its terms (except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium and other laws
relating to or affecting creditors' rights generally and by general
equity principles); (ii) the Notes have been validly authorized and,
when duly executed, authenticated and
3
<PAGE>
<PAGE>
delivered as provided in the Indenture, will be validly issued and
outstanding, and will constitute valid and binding agreements of the
Company entitled to the benefits of the Indenture and enforceable in
accordance with their terms (except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium and other
laws relating to or affecting creditors' rights generally and by general
equity principles); and (iii) the Notes and the Indenture conform to the
descriptions thereof contained in the Prospectus.
(h) The Guarantee has been duly authorized, executed and
delivered by Newcourt and constitutes the valid and binding agreement of
Newcourt, enforceable in accordance with its terms (except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or affecting
creditors' rights generally and by general equity principles); and (ii)
the Guarantee conforms to the descriptions thereof contained in the
Prospectus.
(i) Each of the Company, Newcourt and their respective
subsidiaries 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 Prospectus.
(j) Neither the Company, Newcourt nor any of their respective
subsidiaries is in violation of its corporate charter or by-laws or in
default under any agreement, indenture or instrument, the effect of
which violation or default would have a Material Adverse Effect.
(k) This Agreement has been duly authorized, executed and
delivered by the Company and Newcourt. The execution, delivery and
performance of this Agreement and the Indenture by the Company and
Newcourt and the execution, delivery and performance by Newcourt of the
Guarantee and the consummation of the transactions contemplated hereby
and thereby will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company, Newcourt or any of their respective
subsidiaries is a party or by which the Company, Newcourt or any of
their respective subsidiaries is bound or to which any of the property
or assets of the Company, Newcourt or any of their respective
subsidiaries is subject, nor will such actions result in any violation
of the provisions of the charter or by-laws of the Company, Newcourt or
any of their respective subsidiaries or any statute or any order, rule
or regulation of any court or governmental agency or body having
jurisdiction over the Company, Newcourt or any of their respective
subsidiaries or any of their properties or assets, the effect of which
breach, violation or default would have a Material Adverse Effect; and
except for the registration of the Notes and the Guarantee
4
<PAGE>
<PAGE>
under the Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under the Exchange
Act and applicable state securities laws in connection with the purchase
and distribution of the Notes and the Guarantee by the Underwriters, no
consent, approval, authorization or order of, or filing or registration
with, any such court or governmental agency or body is required for the
execution and delivery by the Company and Newcourt of, compliance by the
Company and Newcourt with the provisions of, or consummation of the
transactions contemplated by, this Agreement, except to the extent that
the effect of the failure to obtain such consent, approval,
authorization or order or to make such filing or registration would not
would have a Material Adverse Effect.
4. Purchase and Sale of Notes. On the basis of the representations and
warranties and on the terms and subject to the conditions herein set forth, each
of the Underwriters agrees to purchase from the Company, severally and not
jointly, and on the terms and subject to the conditions herein set forth the
Company agrees to sell to each of the Underwriters, severally and not jointly,
the principal amount of Notes set forth opposite its name in Schedule I, at
_______% of the principal amount of the Notes.
The terms of the public offering of the Notes are as set forth in the
Prospectus.
5. Closing. Delivery of, and payment of the purchase price for, the
Notes which the Underwriters severally agree to purchase shall be made at the
office of Chapman and Cutler, Chicago, Illinois, at 10:00 a.m.(1) on
______________, [1999] [2000] or at other such other place or time on the same
or such other day as shall be agreed upon by the Company and the Representative.
The time and date for such payment and delivery are herein referred to as the
"time of closing". At the time of closing, the Company will deliver the Notes,
registered in such names and in such authorized denominations as the
Representative shall have specified not less than two business days prior to the
day of closing, against payment therefor as provided in Section 6 hereof, to the
Representative for the respective accounts of the Underwriters.
The Company agrees to make the Notes available to the Representative for
examination on behalf of the Underwriters at such place as may be specified by
the Representative in New York, New York, not later than 2:00 p.m. on the
business day next preceding the day of closing.
If, for any reason (other than termination of this Agreement in
accordance with the provisions of Section 8, 9 or 10 hereof), one or more of the
Underwriters shall fail or refuse to pay for the Notes it has or they have
agreed to purchase (any such Underwriter being hereinafter referred to as a
"defaulting Underwriter"), and the aggregate principal amount of the Notes which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase is not more than one-tenth of the aggregate principal amount of the
Notes, the remaining Underwriters shall be obligated severally in the proportion
which the amounts of Notes set forth opposite their names in Schedule I of this
Agreement bear to the aggregate principal amount of the Notes set forth opposite
the names of all such non-defaulting Underwriters (or in such other
- ----------
(1) Times mentioned herein are New York time.
5
<PAGE>
<PAGE>
proportion as the Representative shall specify) to purchase the Notes which the
defaulting Underwriter or Underwriters agreed but failed or refused to purchase;
provided that in no event shall the principal amount of Notes that any
Underwriter 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 Underwriter. In the event that any
Underwriter or Underwriters shall fail or refuse to purchase the Notes and the
aggregate principal amount of the Notes with respect to which such default
occurs is more than one-tenth of the aggregate principal amount of the Notes,
and arrangements satisfactory to the Representative and the Company for the
purchase of all such Notes are not made within forty-eight (48) hours after such
default, this Agreement will terminate without liability on the part of any of
the non-defaulting Underwriters or of the Company. In the event that the
non-defaulting Underwriters agree to purchase, in accordance with this
paragraph, all the Notes which the defaulting Underwriter or Underwriters 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 Registration Statement or in any
other documents or arrangements may be effected. Except to the extent provided
in subparagraphs (d) and (g) of Section 7 hereof, termination of this Agreement
pursuant to this Section 5 shall be without any liability on the part of the
Company or any Underwriter other than a defaulting Underwriter. Any action taken
under this Section shall not relieve any defaulting Underwriter from liability
in respect of any default of such Underwriter under this Agreement.
6. Payment. At the time of closing, the Company will cause the Notes to
be delivered to the Representative for the account of each Underwriter against
payment of the purchase price of such Notes by wire transfer of same-day funds
to an account specified by the Company at least two business days prior to the
time of closing or by certified or official bank check or checks payable to the
order of the Company in same-day funds.
7. Covenants of the Company and Newcourt. The Company and Newcourt
jointly and severally agree as follows:
(a) Prior to the end of the period specified in Section 7(h),
neither the Company nor Newcourt will file any amendment or supplement
to the Registration Statement or the Prospectus of which the
Representative shall not previously have been advised or which shall be
disapproved by Chapman and Cutler, which firm is acting as counsel for
the Underwriters, and will not file any document pursuant to the
Exchange Act which is deemed to be incorporated by reference in the
Prospectus of which Chapman and Cutler shall not previously have been
advised.
(b) The Company or Newcourt will deliver to the Representative a
reasonable number of copies of the Registration Statement as originally
filed (including documents incorporated by reference therein) and of all
amendments thereto up to the time of closing. Promptly upon the filing
with the Commission of any amendment to the Registration Statement or of
any supplement to or amendment of the Prospectus, the Company or
Newcourt will deliver to the Representative a reasonable number of
copies thereof. The terms "supplement" and "amendment" or "amend," as
used in this Agreement, shall include all documents filed by the Company
or Newcourt with the
6
<PAGE>
<PAGE>
Commission subsequent to the date of the Basic Prospectus, pursuant to
the Exchange Act, which are deemed to be incorporated by reference in
the Prospectus.
(c) The Company or Newcourt will advise the Representative
promptly (confirming such advice in writing) of any official request
made by the Commission for an amendment to the Registration Statement or
Prospectus or for additional information with respect thereto and of any
official notice of the institution of proceedings for, or of the entry
of, a stop order suspending the effectiveness of the Registration
Statement. Each of the Company and Newcourt will use its best efforts to
prevent the issuance of any such stop order and, if such a stop order
should be entered, the Company and Newcourt will make every reasonable
effort to obtain the lifting or removal thereof as soon as possible.
(d) The Company or Newcourt will pay all expenses in connection
with the preparation and filing of the Registration Statement, the
preparation of the Indenture and Guarantee, the rating of the Notes, the
issuance and delivery of the Notes and the printing of the copies of any
preliminary prospectus and of the Prospectus to be furnished as provided
in the first sentence of subparagraph (h) below; and will pay any taxes
on the issuance of the Notes, but will not pay any transfer taxes. The
Company and Newcourt will not be required to pay any amount for any
expenses of the Representative or any of the Underwriters, except the
cost of mailing to Underwriters copies of the Registration Statement and
all amendments thereto (including documents incorporated by reference),
the preliminary prospectuses and the Prospectus, and except as provided
by subparagraph (g) below, and provided that if no Notes are delivered
to and purchased by the Underwriters hereunder for any reason other than
a default by one or more of the Underwriters or the occurrence of any of
the events referred to in Section 10 hereof, the Company, in addition to
any payment provided for by subparagraph (g) of this Section 7, will
reimburse the Representative for the reasonable out-of-pocket expenses
of the Underwriters, not exceeding $50,000, and for the fees and
disbursements of Chapman and Cutler, the Underwriters agreeing to pay
such expenses, fees and disbursements in any other event. Neither the
Company nor Newcourt will in any event be liable to any of the several
Underwriters for damages on account of loss of anticipated profits.
(e) The Company and Newcourt will apply the proceeds from the
sale of the Notes as set forth under the heading "Use of Proceeds"
appearing in the Prospectus.
(f) So long as any of the Notes shall remain outstanding, the
Company or Newcourt will furnish to the Representative, upon request and
in reasonable quantities for distribution to the Underwriters, copies of
such documents, reports and other information as may be required to be
furnished to noteholders under the Indenture.
(g) Each of the Company and Newcourt will use its best efforts to
qualify the Notes, or to assist in the qualification of the Notes by or
on behalf of the Representative, for offer and sale under the securities
or Blue Sky laws of such jurisdictions as the Representative may
designate, and will pay or reimburse the Representative for counsel
fees, filing fees and out-of-pocket expenses in connection with such
qualification;
7
<PAGE>
<PAGE>
provided that neither the Company nor Newcourt shall be required to
qualify as a foreign corporation or to file a general consent to service
of process in any jurisdiction or to pay, or to incur, or to reimburse
the Representative for, any such expenses if no Notes are delivered to
and purchased by the Underwriters hereunder because of a default by one
or more of the Underwriters or the termination of this Agreement
pursuant to Section 10 hereof.
(h) The Company will furnish to the Representative, upon request
and in reasonable quantities for distribution to the Underwriters, as
many copies of the Prospectus as the Representative may reasonably
request for the purposes contemplated by the Act. If, during such period
after the first date of the public offering of the Notes as, in the
opinion of the counsel for the Underwriters, the Prospectus is required
by law to be delivered, any event shall occur which should be set forth
in a supplement to or an amendment of the Prospectus in order to make
the Prospectus not misleading, the Company or Newcourt, as applicable,
will, upon the occurrence of each such event, forthwith at its expense,
either (i) prepare and furnish to the Representative, upon request and
in reasonable quantities for distribution to the Underwriters, as many
copies as the Representative may reasonably request for the purposes
contemplated by the Act of a supplement to or amendment of the
Prospectus which will supplement or amend the Prospectus or (ii) file
with the Commission documents deemed incorporated by reference in the
Prospectus, in either case so that as supplemented or amended, the
Prospectus will not at the date of such supplement or amendment contain
any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein not misleading.
For the purpose of this subparagraph (h), each of the Company and
Newcourt will furnish such reasonable information with respect to itself
as the Representative may from time to time request. Notwithstanding any
of the other provisions of this subparagraph (h), neither the Company
nor Newcourt shall be under any obligation to furnish any supplement to
or amendment of the Prospectus on account of any change in, or to
include in any amended prospectus any change in, the information
furnished to the Company or Newcourt by any Underwriter or Underwriters
or by the Representative on its or their behalf for use in the
Prospectus, unless the Representative has advised the Company and
Newcourt in writing of such change and has requested the Company or
Newcourt at the expense of such Underwriter or Underwriters to prepare a
supplement to or amendment of the Prospectus to reflect such change or
to include such change in an amended prospectus.
(i) The Company and Newcourt will cause to be made generally
available to its security holders as soon as practicable an earnings
statement which shall meet the requirements of Section 11(a) of the Act
and Rule 158 promulgated thereunder.
(j) Until the business day following the time of closing, the
Company will not, without the consent of the Representative, offer, sell
or contract to sell, or announce the offering of, any debt securities
covered by the Registration Statement or any other registration
statement filed under the Act.
8
<PAGE>
<PAGE>
8. Conditions of the Obligations of the Underwriters. The obligations of
the Underwriters to purchase and pay for the Notes shall be subject to the
following additional conditions:
(a) At the time of closing, the Indenture shall be qualified
under the Trust Indenture Act, the Prospectus shall have been filed or
delivered for filing to the Commission not later than 5:00 p.m. on the
second business day following the date hereof, no stop order suspending
the effectiveness of the Registration Statement, as amended from time to
time, shall be in effect and no proceedings for that purpose shall be
pending before or threatened by the Commission, and the Representative
shall have received a certificate dated the day of the closing and
signed by the President, a Vice President or the Treasurer of each of
the Company and Newcourt to the effect that no such stop order is in
effect and, to the knowledge of the Company and Newcourt, no proceedings
for such purpose are pending before, or threatened by, the Commission.
(b) At or prior to the time of closing, the Representative shall
have received from counsel for the Company and Newcourt, an opinion,
satisfactory to Chapman and Cutler, to the effect that --
(i) The Company has been duly incorporated and is validly
existing and in good standing under the laws of the State of
Delaware and Newcourt has been duly incorporated and is validly
existing and in good standing under the laws of the Province of
Ontario, Canada; each of the Company and Newcourt is duly
qualified to do business and in good standing as a foreign
corporation in all jurisdictions in which its ownership or
leasing of properties or the conduct of its businesses requires
such qualification (except where the failure to so qualify or be
in good standing would not have a Material Adverse Effect), and
has all power and authority necessary to own its respective
properties and conduct the businesses in which it is engaged, as
described in the Prospectus;
(ii) The issue and sale of the Notes by the Company and
the compliance by the Company with all the provisions of this
Agreement, and the Indenture, and the consummation of the
transactions contemplated hereby and thereby will not conflict
with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which the Company or any of
its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets
of the Company or any of its subsidiaries is subject, nor will
such actions result in any violation of the provisions of the
charter or by-laws of the Company or any of its subsidiaries or
any statute or any order, rule or regulation known to such
counsel of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any
of their properties or assets (except for such conflicts,
breaches, violations and defaults as would not have a Material
Adverse Effect); and, except for the registration of the Notes
under the Act and such consents, approvals, authorizations,
registrations or qualifications as may be
9
<PAGE>
<PAGE>
required under the Exchange Act and applicable state securities
laws in connection with the purchase and distribution of the
Notes by the Underwriters, no consent, approval, authorization,
qualification or order of, or filing or registration with, any
such court or governmental agency or body is required for the
execution and delivery by the Company of, compliance by the
Company with the provisions of, or the consummation of the
transactions contemplated by this Agreement, 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 or affect
the enforceability of the Notes;
(iii) The issue of the Guarantee by Newcourt and the
compliance by Newcourt with all the provisions of this Agreement,
the Guarantee and the Indenture, and the consummation of the
transactions contemplated hereby and thereby will not conflict
with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which Newcourt or any of its
subsidiaries is a party or by which Newcourt or any of its
subsidiaries is bound or to which any of the property or assets
of Newcourt or any of its subsidiaries is subject, nor will such
actions result in any violation of the provisions of the charter
or by-laws of Newcourt or any of its subsidiaries or any statute
or any order, rule or regulation known to such counsel of any
court or governmental agency or body having jurisdiction over
Newcourt or any of its subsidiaries or any of their properties or
assets (except for such conflicts, breaches, violations and
defaults as would not have a Material Adverse Effect); and,
except for the registration of the Notes and the Guarantee under
the Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under the
Exchange Act and applicable state securities laws in connection
with the purchase and distribution of the Notes by the
Underwriters, no consent, approval, authorization, qualification
or order of, or filing or registration with, any such court or
governmental agency or body is required for the execution and
delivery by Newcourt of, compliance by Newcourt with the
provisions of, or the consummation of the transactions
contemplated by this Agreement, except to the extent that the
effect of the failure to obtain such consent, approval,
authorization, qualification or order or to make such filing or
registration would not have a Material Adverse Effect or affect
the enforceability of the Guarantee;
(iv) The Indenture has been duly authorized, executed and
delivered by the Company, Newcourt and the Trustee and duly
qualified under the Trust Indenture Act and is a valid and
binding agreement of the Company and Newcourt enforceable in
accordance with its terms (except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium and
other laws relating to or affecting creditors' rights generally
and by general equity principles);
10
<PAGE>
<PAGE>
(v) The Notes have been duly authorized by the Company
and, when duly executed and authenticated as provided in the
Indenture and delivered against payment therefor in accordance
with this Agreement, will be duly and validly issued and
outstanding, and will constitute valid and binding agreements of
the Company enforceable in accordance with their terms (except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally and subject to general
equitable principles), and entitled to the benefits of the
Indenture;
(vi) The Guarantee has been duly authorized, executed and
delivered by Newcourt and is a valid and binding agreement of
Newcourt enforceable in accordance with its terms (except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally and subject to general
equitable principles);
(vii) The Registration Statement has become effective under
the Act and, to the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has
been issued and no proceeding for that purpose is pending or
threatened by the Commission;
(viii) The statements made in the Prospectus under the
captions "Description of the Debt Securities," "Description of
the Guarantee" and "Plan of Distribution," insofar as such
statements constitute summaries of the legal matters, documents
or proceedings specifically referred to therein, fairly present
the information called for with respect to such legal matters,
documents and proceedings and fairly summarize the matters
referred to therein;
(ix) This Agreement has been duly authorized, executed and
delivered by the Company and Newcourt;
(x) Except as to financial statements and schedules
contained therein, as to which such counsel is not called upon to
express any opinion or belief, (A) each document or portion
thereof incorporated by reference in the Registration Statement
complied when filed with the Commission as to form in all
material respects with the requirements of the Exchange Act,
together with the applicable instructions, rules and regulations
of the Commission thereunder, (B) each part of the Registration
Statement when it became effective complied as to form in all
material respects with the requirements of the Act and the
applicable instructions, rules and regulations of the Commission
thereunder, (C) the Registration Statement and the Prospectus, as
amended or supplemented, if applicable, comply, and at the date
thereof complied, as to form in all material respects with the
requirements of the Act and the applicable instructions, rules
and regulations of the Commission thereunder, (D) the
Registration Statement, as
11
<PAGE>
<PAGE>
of its effective date (or, if later, at the time of Newcourt's
filing of an annual report in accordance with the Exchange Act),
did not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and (E)
the Prospectus, as of its date and as of the date of such
opinion, did not or does not, as the case may be, contain any
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which
they were or are 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 (iv), (v), (vii), (viii), (ix) (solely, in each case, with
respect to the Company), and (x) (B), (C) and (E) therein; provided
however, with respect to clause (E) the opinion will not apply to any
statistical or financial information contained in the Prospectus).
(d) At or prior to the time of closing, the Representative shall
have received from Sidley & Austin, special tax counsel to the Company,
an opinion that its opinions expressed or referred to under the caption
"Material Federal Income Tax Consequences" in the Prospectus are
confirmed as correct in all material respects.
(e) At each of the dates hereof and at or prior to the time of
closing, the Representative shall have received an executed copy of a
letter from Arthur Andersen LLP and an executed copy of a letter
from Ernst & Young LLP, addressed to the Company or Newcourt, as
applicable, and to the Representative, to the effect that
(i) they are independent public accountants as required by the Act and
the applicable published rules and regulations of the Commission
thereunder; (ii) the audited financial statements contained or
incorporated by reference in the Registration Statement, as amended or
supplemented from time to time, comply as to form in all material
respects with the applicable accounting requirements of the Exchange Act
and the applicable published rules and regulations of the Commission
thereunder; (iii) nothing has come to their attention as the result of
specified procedures not constituting an audit that caused them to
believe (A) that the unaudited financial statements, if any, contained
in or incorporated by reference as aforesaid, do not so comply and are
not fairly presented in conformity with generally accepted accounting
principles applied on a basis substantially consistent with that of the
audited financial statements contained as aforesaid, (B) that there was
any change in the capital stock or long or intermediate term debt of the
Company or Newcourt, or any decrease in net assets, from the date of the
latest balance sheet which is contained in or incorporated by reference
as aforesaid, to a date not more than five days prior to the date of
such letter or (C) that there were any decreases, as compared with the
corresponding period in the preceding year, in total revenues, income
before interest deductions or net income from the date of the latest
figures for such items contained in the Registration Statement to the
date of the latest available financial statements of the Company or
Newcourt; and (iv) they have carried out specified procedures which have
been agreed to by the Agents, with respect to certain information
included in the Registration Statement (including with respect to any
pro forma financial information), and, on the basis of such procedures,
they have found such information to
12
<PAGE>
<PAGE>
be in agreement with the general accounting records of the Company and
Newcourt; provided that, with respect to any of the items specified in
clause (iii), such letter may contain an exception for matters which the
Registration Statement discloses have occurred or may occur; and
provided, further, that the letter may vary from the requirements
specified in this subparagraph in such manner as the Representative in
its sole discretion may determine to be immaterial or in such manner as
may be acceptable to the Representative.
(f) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus, there shall not have
been, at the time of closing, any material adverse change in or
affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company or Newcourt
and their respective subsidiaries, otherwise than as set forth or
contemplated in the Registration Statement and the Prospectus; the
representations and warranties of the Company and Newcourt herein shall
be true at the time of closing; neither the Company nor Newcourt shall
have failed, at or prior to the time of closing, to have performed all
agreements herein contained which should have been performed by it at or
prior to such time; and the Representative shall have received, at the
time of closing, a certificate to the foregoing effect dated the day of
the closing and signed by the President, a Vice President or the
Treasurer of each of the Company and Newcourt.
(g) Subsequent to the execution and delivery of this Agreement
(i) no downgrading shall have occurred in the rating accorded the
Company's or Newcourt's debt securities by any "nationally recognized
statistical rating organization," as that term is defined by the
Commission for purposes of Rule 436(g) (2) under the Act and (ii) no
such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating
of either the Company's or Newcourt's debt securities.
(h) Prior to the time of closing, each of the Company and
Newcourt shall have furnished to the Representative such further
information, certificates and documents as the Representative may
reasonably request.
In case any of the conditions specified above in this Section 8 shall
not have been fulfilled, this Agreement may be terminated by the Representative
by delivering written notice of termination to the Company. Any such termination
shall be without liability of any party to any other party except to the extent
provided in subparagraphs (d) and (g) of Section 7 hereof.
9. Conditions of the Company's Obligation. The obligation of the Company
to deliver the Notes upon payment therefor shall be subject to the following
conditions:
At the time of closing, the Indenture and the Guarantee shall be
qualified under the Trust Indenture Act, the Prospectus shall have been filed or
delivered for filing to the Commission not later than 5:00 p.m. on the second
business day following the date hereof and no stop order suspending the
effectiveness of the Registration Statement, as amended from time to time, shall
13
<PAGE>
<PAGE>
be in effect and no proceedings for that purpose shall then be pending before,
or threatened by, the Commission.
In case any of the conditions specified above in this Section shall not
have been fulfilled, this Agreement may be terminated by the Company by
delivering written notice of termination to the Representative. Any such
termination shall be without liability of any party to any other party except to
the extent provided in subparagraphs (d) and (g) of Section 7 hereof.
10. Termination of Agreement. This Agreement may be terminated by
delivering written notice of termination to the Company at any time prior to the
time of closing, by the Representative with the consent of Underwriters which,
together with the Representative, have agreed to purchase 50% or more of the
aggregate principal amount of the Notes, if after the signing of this Agreement
(i) trading in securities generally on the New York Stock Exchange or the
American Stock Exchange or in the over-the-counter market, or trading in any
securities of the Company or Newcourt 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
Prospectus.
A termination of this Agreement pursuant to this Section shall be
without liability of any party to any other party.
11. Indemnification and Contribution. (a) The Company and Newcourt shall,
jointly and severally, indemnify and hold each Underwriter harmless from and
against any and all losses, claims, damages, and liabilities, joint or several,
to which such Underwriter may become subject, under the Act or otherwise,
insofar as such losses, claims, damages, liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or the
Prospectus, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such action or claim as such expenses are incurred; provided, however, that the
Company and Newcourt shall not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
the Provided Information in the Registration Statement or any such amendment or
supplement.
(b) Each Underwriter will indemnify and hold harmless the Company and
Newcourt against any losses, claims, damages or liabilities to which the Company
or Newcourt may become subject, under the Act or otherwise, insofar as such
losses, claims, damages, liabilities
14
<PAGE>
<PAGE>
(or actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, or any amendment or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission was
made in the Provided Information in the Registration Statement or any such
amendment or supplement; and will reimburse the Company and Newcourt for any
legal or other expenses reasonably incurred by the Company and Newcourt in
connection with investigating or defending any such action or claim as such
expenses are incurred.
(c) The Company, Newcourt and each Underwriter agree that upon the
commencement of any action against it, its directors, its officers who sign the
Registration Statement, or any person controlling it as set forth 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 party or parties will reimburse such indemnified party
or parties for the reasonable fees and expenses of any counsel retained by them.
In the event that the parties to any such action (including impleaded parties)
include the Company, Newcourt and one or more Underwriters and either (i) the
indemnifying party or parties and indemnified party or parties mutually agree or
(ii) representation of both the indemnifying party or parties and the
indemnified party or parties by the same counsel is inappropriate under
applicable standards of professional conduct due to actual or potential
differing interests between them, then the indemnifying party or parties shall
not have the right to assume the defense of such action on behalf of such
indemnified party or parties and will reimburse such indemnified party or
parties for the reasonable fees and expenses of any counsel retained by them and
satisfactory to the indemnifying party or parties, it being understood that the
indemnifying party or parties shall not, in connection with any one action or
separate but similar or related actions arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys (in addition to local counsel) for all
such indemnified parties, which shall be designated in writing by the
Representative in the case of an action in which one or more Underwriters or
controlling persons are indemnified parties and by the Company or Newcourt in
the case of an action in which the Company or Newcourt or any of their
respective directors, officers or controlling persons are indemnified parties.
The indemnifying party or parties shall not be liable under this Agreement with
respect to any settlement made by any
15
<PAGE>
<PAGE>
indemnified party or parties without prior written consent by the indemnifying
party or parties to such settlement.
(d) If the indemnification provided for in subparagraph (a) or (b) of
this Section 11 is unavailable to an indemnified party in respect of any losses,
claims, damages, or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party under such paragraph, shall contribute to
the amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and Newcourt on the one hand and the Underwriters on the other from the
offering of the Notes. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required under subparagraph (c) above, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company and Newcourt on one
hand and the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company and Newcourt on
one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Notes purchased
under this Agreement (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by the Underwriters
with respect to the Notes purchased under this Agreement, in each case as set
forth in the table on the cover page of the Prospectus. The relative fault of
the Company and Newcourt and of the Underwriters shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or Newcourt on one hand or by the
Underwriters on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company, Newcourt and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this subparagraph (d) were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this subparagraph (d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in this subparagraph (d) shall be
deemed to include, subject to the limitations set forth above in this Section
11, any legal or other expenses reasonably incurred by such indemnified party in
connection with defending any such action or claim. Notwithstanding the
provisions of this subparagraph (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Notes underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which Underwriter has been required to
pay by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations in this subparagraph (d) to contribute are several in proportion to
their respective underwriting obligations as set forth in Schedule I hereto
(including an increase pursuant to Section 5) and not joint.
16
<PAGE>
<PAGE>
(e) The obligations of the Company and Newcourt under this Section 11
shall be in addition to any liability which the Company and Newcourt may
otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Underwriter within the meaning of the Act; and
the obligations of the Underwriters under this Section 11 shall be in addition
to any liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each officer who signs the
Registration Statement and each director of the Company or Newcourt and to each
person, if any, who controls the Company or Newcourt within the meaning of the
Act.
12. Miscellaneous. This Agreement shall inure to the benefit of the
Company and Newcourt, their respective directors and their officers who sign the
Registration Statement, the several Underwriters and each controlling person
referred to in Section 11 hereof and their respective successors. Nothing in
this Agreement is intended or shall be construed to give to any other person,
firm or corporation any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. The term
"successor" as used in this Agreement shall not include any purchaser, as such
purchaser, of any of the Notes from any of the several Underwriters.
13. Notices. All communications hereunder shall be in writing, and if to
the Underwriters, unless otherwise provided, shall be mailed or delivered to the
Representative at ____________________, New York, New York ______ and if to the
Company, unless otherwise provided, shall be mailed or delivered to the Company
at 2 Gatehall Drive, Parsippany, New Jersey 07054.
14. Governing Law. The validity and interpretation of this Agreement
shall be governed by the laws of the State of New York.
15. Survival Clause. Except with respect to any Underwriter who is in
default within the meaning of Section 5 hereof, the indemnity and contribution
agreement contained in Section 11 hereof and the representations and warranties
of the Company and Newcourt set forth in this Agreement or in any certificate
furnished pursuant hereto shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any investigation made
by or on behalf of any Underwriter or any person controlling any Underwriter, or
(iii) acceptance of and payment for the Notes.
17
<PAGE>
<PAGE>
Please sign and return to us the enclosed duplicate of this letter,
whereupon this letter will become a binding agreement between the Company,
Newcourt and the several Underwriters, in accordance with its terms.
Very truly yours,
AT&T CAPITAL CORPORATION
By_______________________________
Printed Name:
Title:
By_______________________________
Printed Name:
Title:
NEWCOURT CREDIT GROUP INC.
By_______________________________
Printed Name:
Title:
By_______________________________
Printed Name:
Title:
18
<PAGE>
<PAGE>
The foregoing Agreement is hereby confirmed and accepted as of the date
first above written.
[REPRESENTATIVE]
By_______________________________
Printed Name:
Title:
Acting severally on behalf of
itself and the several
Underwriters named herein.
19
<PAGE>
<PAGE>
SCHEDULE I
PRINCIPAL AMOUNT
NAME OF NOTES
<PAGE>
<PAGE>
AT&T CAPITAL CORPORATION
MEDIUM-TERM NOTES, SERIES G
DISTRIBUTION AGREEMENT
March ___, 1999
[Agents]
Ladies and Gentlemen:
AT&T Capital Corporation, a Delaware corporation (the "Company"), proposes
to issue and sell from time to time up to U.S. $6,000,000,000 (or the equivalent
thereof in other currencies or currency units) aggregate principal amount of its
Medium-Term Notes, Series G (the "Notes"), as such amount shall be reduced by
the aggregate principal amount of any other debt securities and the aggregate
purchase price of any warrants issued by the Company, whether within or without
the United States (the "Other Securities"), pursuant to the Registration
Statement discussed in Section II hereof, or otherwise. The Notes are to be
issued under an Indenture dated as of March 1, 1999, as amended (the
"Indenture") among the Company, Newcourt Credit Group Inc. ("Newcourt") and The
Chase Manhattan Bank, as Trustee (the "Trustee"). The Notes will be guaranteed
as to the payment of principal, premium, if any, and interest pursuant to the
Guarantee dated as of March 1, 1999 made by Newcourt to the Trustee (the
"Guarantee"). The Notes will be represented by either a global security
registered in the name of a nominee of The Depository Trust Company (the
"Depositary"), as Depositary (a "Book-Entry Note"), or a certificate issued in
definitive form (a "Certificated Note"), as selected by the purchaser and agreed
to by the Company and specified in the applicable pricing supplement. Beneficial
interests in Book-Entry Notes will be shown on, and transfers thereof will be
effected only through, records maintained by the Depositary and its
participants. Book-Entry Notes will not be issuable in definitive form, except
under the circumstances described in the applicable prospectus supplement. The
Notes shall be issued in the currency or currency unit (the "Specified
Currency") and shall have the maturity ranges, annual interest rate (whether
fixed or floating), redemption provisions, repayment provisions and other terms
set forth in the Prospectus referred to below as it may be supplemented from
time to time, including by any applicable pricing supplement (the "Pricing
Supplement").
SECTION I.
Subject to the terms and conditions stated herein and subject to the
reservation by the Company of the right to sell Notes (a) directly to investors
on its own behalf or (b) through other agents, dealers or underwriters, the
Company hereby (i) appoints [Insert Agents] (each, an "Agent," and collectively,
the "Agents") to act as its agents to solicit orders for, and to sell, all
<PAGE>
<PAGE>
or part of the Notes during a period beginning on the date hereof and ending
when the Notes have been sold, or such other time as the Company may specify to
you in writing, and (ii) agrees that whenever the Company determines to sell
Notes directly to any of the Agents as principal for resale to others it will
enter into a Terms Agreement relating to such sale in accordance with the
provisions of Section I(b) hereof.
(a) Solicitations as Agent. On the basis of the representations and
warranties herein contained, but subject to the terms and conditions herein set
forth, each Agent, severally and not jointly, will use its reasonable best
efforts to solicit offers to purchase the Notes upon the terms and conditions
set forth in the Prospectus as then amended or supplemented.
The Company reserves the right, in its sole discretion, to instruct the
Agents to suspend at any time, for any period of time or permanently, the
solicitation of offers to purchase the Notes. As soon as practicable, but in any
event not later than one business day after receipt of notice from the Company,
the Agents will suspend solicitation of offers to purchase Notes from the
Company until such time as the Company has advised them that such solicitation
may be resumed.
Unless otherwise agreed between the Company and the Agents, the Company
agrees to pay each Agent, as consideration for soliciting the sale of any Notes,
a commission in the form of a discount equal to the following percentage of the
principal amount of each Note sold by such Agent:
<TABLE>
<CAPTION>
TERM COMMISSION RATE
<S> <C>
From 9 months to 12 months .050%
More than 12 months to 18 months .150%
More than 18 months to 2 years .200%
More than 2 years to 3 years .250%
More than 3 years to 4 years .350%
More than 4 years to 5 years .450%
More than 5 years to 6 years .500%
More than 6 years to 7 years .550%
More than 7 years to 10 years .600%
More than 10 years to 15 years .625%
More than 15 years to 20 years .700%
More than 20 years to 30 years .750%
</TABLE>
The commission payable by the Company to the Agents with respect to Notes
with maturities greater than 30 years will be negotiated at the time the Company
issues such Notes. Each Agent is authorized to solicit offers to purchase Notes
only in principal amounts that are integral multiples of U.S. $1,000 or, if
denominated in a Specified Currency other than U.S. dollars, then in principal
amounts that are integral multiples of 1,000 units of such Specified Currency.
Each Agent shall communicate to the Company, orally or in writing, each
reasonable
-2-
<PAGE>
<PAGE>
offer received by it to purchase Notes. The Company shall have the sole right to
accept offers to purchase Notes and may reject any such offer in whole or in
part. Each Agent shall have the right to reject, in its discretion reasonably
exercised, any offer received by it to purchase the Notes in whole or in part,
and any such rejection shall not be deemed a breach of its agreements contained
herein.
(b) Purchases as Principal. Each sale of Notes to an Agent, as principal,
shall be made in accordance with the terms of this Agreement and a separate
agreement which will provide for the sale of such Notes to, and the purchase and
reoffering thereof by, such Agent. Each such separate agreement (which shall be
either (i) substantially in the form of Exhibit A hereto and may take the form
of an exchange of any standard form of written telecommunication between such
Agent and the Company or (ii) an oral agreement) is herein referred to as a
"Terms Agreement." Any oral agreement entered into pursuant to the preceding
sentence shall be confirmed promptly in writing. Any written confirmation
containing the terms of such an oral agreement delivered or transmitted by the
Agent to the Company shall constitute an agreement between such Agent and the
Company unless the Company objects thereto in writing within one business day.
An Agent's commitment to purchase Notes pursuant to any Terms Agreement shall be
deemed to have been made on the basis of the representations and warranties of
the Company and Newcourt herein contained and shall be subject to the terms and
conditions herein set forth. Each Terms Agreement shall specify the principal
amount of Notes to be purchased by such Agent pursuant thereto, the price to be
paid to the Company for such Notes, the Specified Currency in which such Notes
shall be denominated, on which interest is to be paid and in which the
redemption or repayment price, if any, is to be paid, the rate and with respect
to floating rate Notes, the time at which interest will be paid on the Notes,
whether such rate of interest shall be fixed or floating and the time and place
of delivery of any payment for such Notes (the "Settlement Date"). Such Terms
Agreement shall also specify any requirements for opinions of counsel and
letters from the Company's and Newcourt's independent accountants pursuant to
Section III hereof and may also contain additional provisions relating to
defaults by underwriters and other provisions relating to termination as may be
agreed at the time between the Company and the applicable Agent. The Company
agrees that if an Agent purchases Notes as principal for resale, such Agent
shall receive in the form of a discount or otherwise, as shall be indicated in
the applicable Terms Agreement or, if no compensation is indicated therein, a
commission in accordance with the schedule forth in subsection (a) of this
Section I.
(c) Procedures. Each Agent and the Company agree to perform the respective
duties and obligations specifically provided to be performed by them in the
Medium-Term Notes, Series G, Administrative Procedures (attached hereto as
Exhibit B) (the "Procedures"), as amended from time to time. The Procedures may
be amended only by written agreement of the Company and the Agents.
(d) Delivery. The documents required to be delivered by Section III of this
Agreement shall be delivered on the date hereof or at such other time as you and
the Company may agree upon in writing (each a "time of closing").
(e) Other Securities. The Company agrees to notify each Agent of sales by
the Company of the Other Securities.
-3-
<PAGE>
<PAGE>
SECTION II.
The Company and Newcourt jointly and severally represent and warrant to
each Agent as of each date on which the Company accepts an offer to purchase
Notes (including any purchase by an Agent as principal pursuant to a Terms
Agreement), as of each date the Company issues and sells Notes and as of each
date the Registration Statement or Prospectus is amended or supplemented that:
(a) The Company and Newcourt have jointly filed with the Securities
and Exchange Commission (the "Commission") a registration statement on Form
F-3 (File No. 333-_______, 333-_______-01) relating to the Notes and the
Guarantee including a prospectus and prospectus supplement relating to debt
securities and warrants of the Company, including the Notes, and the
Guarantee which has become effective under the Securities Act of 1933 (the
"Act"), and has filed or will file with, or has delivered or will deliver
for filing to, the Commission a prospectus supplement specifically relating
to the Notes and Guarantee pursuant to Rule 424 under the Act. Each of the
Company and Newcourt meets the requirements for use of Form F-3 under the
Act. The term "Registration Statement" means such registration statement as
amended or supplemented from time to time, together with any prospectus
supplement or any prospectus or preliminary prospectus filed with the
Commission pursuant to Rule 424 under the Securities Act. The term "Basic
Prospectus" means the prospectus, as amended, included in the Registration
Statement and any preliminary prospectus. The term "Prospectus" means the
Basic Prospectus together with the prospectus supplement or supplements
specifically relating to the Notes and the Guarantee, as filed with, or
delivered for filing to, the Commission pursuant to Rule 424. The term
"preliminary prospectus" means any preliminary prospectus supplement
specifically relating to the Notes and Guarantee together with the Basic
Prospectus. As used herein, Registration Statement, Basic Prospectus,
Prospectus, and preliminary prospectus shall include in each case the
material, if any, incorporated by reference therein at the particular time.
(b) (i) Each part of the Registration Statement, filed with the
Commission pursuant to the Act, when such part became effective (or, if
later, at the time of Newcourt's filing of an annual report pursuant to the
Exchange Act (as defined below)), did not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, (ii)
each Prospectus, if any, relating to any Notes and the Guarantee, filed
pursuant to Rule 424 under the Act, complied when so filed in all material
respects with the Act and the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), and the applicable rules and regulations of the
Commission thereunder, (iii) the Registration Statement and the Prospectus
comply and, as amended or supplemented, if applicable, will comply in all
material respects with the Act and the Trust Indenture Act and the
applicable instructions, rules and regulations of the Commission thereunder
and (iv) the Registration Statement and the Prospectus do not and, as
amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that the
-4-
<PAGE>
<PAGE>
Company and Newcourt make no representations or warranties as to the
information contained in or omitted from the Registration Statement, any
preliminary prospectus or the Prospectus in reliance upon written
information furnished to the Company by or on behalf of any Agent
specifically for inclusion therein which information is limited to the
information provided in [Stabilization Language] (the "Provided
Information") or as to any statements in or omissions from the Statement of
Eligibility and Qualification of the Trustee under the Indenture.
(c) Each document or portion thereof incorporated by reference in the
Prospectus complied when filed with the Commission in all material respects
with the provisions of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), together with the applicable instructions, rules and
regulations of the Commission thereunder, and each document, if any,
hereafter filed under the Exchange Act and so incorporated by reference in
the Prospectus will comply when so filed in all material respects with the
requirements of such Exchange Act, instructions, rules and regulations.
(d) The accountants who have certified or shall certify the financial
statements filed and to be filed with the Commission as parts of the
Registration Statement and the Prospectus are public or certified
accountants, independent with respect to the Company and Newcourt, as
required by the Act and the rules and regulations of the Commission
thereunder.
(e) The financial statements, and the related notes thereto, included
or incorporated by reference in the Registration Statement and the
Prospectus present fairly the consolidated financial position of the
Company and Newcourt and their respective consolidated subsidiaries as of
the dates indicated and the results of their operations and the changes in
their consolidated cash flows for the periods specified; said financial
statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis, and the supporting
schedules included or incorporated by reference in the Registration
Statement and the Prospectus present fairly the information required to be
stated therein; and the pro forma financial information and the related
notes thereto, included or incorporated by reference in the Registration
Statement and the Prospectus, have been prepared in accordance with the
applicable requirements of the Act and Exchange Act, as applicable, and is
based upon good faith estimates and assumptions believed by the Company and
Newcourt to be reasonable.
(f) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any material
adverse change in the capital stock or long-term debt of the Company or
Newcourt or any of their respective subsidiaries, or any material adverse
change, or any development involving a prospective material adverse change,
in or affecting the general affairs, business, prospects, management,
financial position, stockholders' equity or results of operations of the
Company or Newcourt and their respective subsidiaries, taken as a whole,
otherwise than as set forth or contemplated in the Prospectus; and except
as set forth or contemplated in the Prospectus neither the Company,
Newcourt nor any of their respective subsidiaries has entered into any
transaction or agreement (whether or not in
-5-
<PAGE>
<PAGE>
the ordinary course of business) material to the Company and its
subsidiaries and Newcourt and its subsidiaries, each taken as a whole.
(g) This Agreement and any applicable Terms Agreement have been duly
authorized, executed and delivered by the Company and Newcourt (to the
extent applicable).
(h) (i) The Indenture has been duly authorized, executed and delivered
by the Company and Newcourt and constitutes the valid and binding agreement
of the Company and Newcourt, enforceable in accordance with its terms
(except as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or affecting
creditors' rights generally and by general equity principles); (ii) the
Notes have been validly authorized for issuance and sale pursuant to this
Agreement and, when the terms of a particular Note and of its issuance and
sale have been duly established in accordance with the Indenture and this
Agreement, and when such Note has been duly executed, authenticated,
delivered and paid therefor as provided in this Agreement and the
Indenture, such Note will be validly issued and outstanding, and will
constitute the valid and binding agreement of the Company entitled to the
benefits of the Indenture and enforceable in accordance with its terms
(except as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or affecting
creditors' rights generally and by general equity principles), and (iii)
the Notes and the Indenture conform to the descriptions thereof contained
in the Prospectus.
(i) The Guarantee has been duly authorized, executed and delivered by
Newcourt and constitutes the valid and binding agreement of Newcourt,
enforceable in accordance with its terms (except as enforcement thereof may
be limited by bankruptcy, insolvency, reorganization, moratorium and other
laws relating to or affecting creditors' rights generally and by general
equity principles); and (ii) the Guarantee conforms to the descriptions
thereof contained in the Prospectus.
(j) Each of the Company, Newcourt 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 on Newcourt and the Company and their
respective subsidiaries, taken as a whole), and has the power and authority
necessary to own or hold its respective properties and to conduct the
businesses in which it is engaged, as described in the Prospectus.
(k) Neither the Company, Newcourt nor any of their respective
subsidiaries is in violation of its corporate charter or bylaws or in
default under any agreement, indenture or instrument, the effect of which
violation or default would be material to the Company, Newcourt and their
respective subsidiaries taken as a whole.
-6-
<PAGE>
<PAGE>
(l) The execution, delivery and performance of this Agreement by the
Company and Newcourt and any applicable Terms Agreement by the Company and
Newcourt 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, Newcourt or any of their respective subsidiaries is a
party or by which the Company, Newcourt or any of their respective
subsidiaries is bound or to which any of the property or assets of the
Company, Newcourt or any of their respective subsidiaries is subject, nor
will such actions result in any violation of the provisions of the charter
or by-laws of the Company, Newcourt or any of their respective subsidiaries
or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company, Newcourt
or any of their respective subsidiaries or any of their properties or
assets, the effect of which breach, violation or default would be material
to the Company, Newcourt and their subsidiaries taken as a whole, and
except for the registration of the Notes and the Guarantee under the Act
and such consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act and applicable
state securities laws in connection with the purchase or distribution of
the Notes and the Guarantee by the Agents, no consent, approval,
authorization or order of, or filing or registration with, any such court
or governmental agency or body is required for the execution and delivery
by the Company and Newcourt of, compliance by the Company and Newcourt with
the provisions of, or consummation of the transactions contemplated by,
this Agreement and any Terms Agreement, except to the extent that the
effect of the failure to obtain such consent, approval, authorization or
order or to make such filing or registration would not be material to the
Company, Newcourt and their subsidiaries taken as a whole.
(m) Neither the Company nor Newcourt is and, after giving effect to
the offering and sale of the Notes and the application of the proceeds
thereof as described in the Prospectus, will be an "investment company" as
defined in the Investment Company Act of 1940, as amended.
SECTION III.
The obligations of each Agent hereunder and under any Terms Agreement are
subject to the following conditions:
(a) At the time of closing, at each Settlement Date with respect to
any Terms Agreement and at any time any offer to sell any Note hereunder is
made, the Indenture shall be qualified under the Trust Indenture Act and no
stop order suspending the effectiveness of the Registration Statement as
amended from time to time, shall be in effect, no proceedings for that
purpose shall be pending before, or threatened by, the Commission, and at
the time of closing each Agent shall have received, and at each Settlement
Date with respect to any Terms Agreement, if called for by such Terms
Agreement, the Agent which is a party thereto shall have received, a
certificate, dated the time of closing or such applicable Settlement Date
and signed by the President, a Vice President or the Treasurer of each of
the Company and Newcourt to the effect that no
-7-
<PAGE>
<PAGE>
such stop order is in effect and, to the knowledge of the Company and
Newcourt, no proceedings for such purpose are pending before, or threatened
by, the Commission.
(b) At or prior to the time of closing each Agent shall have received,
and at each Settlement Date with respect to any Terms Agreement, if called
for by such Terms Agreement, the Agent which is a party thereto shall have
received, from counsel for the Company and Newcourt, an opinion to the
effect that
(i) The Company has been duly incorporated and is validly
existing and in good standing under the laws of the State of Delaware,
is duly qualified to do business and in good standing as a foreign
corporation in all jurisdictions in which its ownership or leasing of
properties or the conduct of its businesses requires such
qualification (except where the failure to so qualify or be in good
standing would not have a material adverse effect upon the Company and
its subsidiaries taken as a whole), and has all power and authority
necessary to own its respective properties and conduct the businesses
in which it is engaged, as described in the Prospectus;
(ii) Newcourt has been duly incorporated and is validly existing
and in good standing under the laws of the Province of Ontario,
Canada, is duly qualified to do business and in good standing as a
foreign corporation in all jurisdictions in which its ownership or
leasing of properties or the conduct of its businesses requires such
qualification (except where the failure to so qualify or be in good
standing would not have a material adverse effect upon Newcourt and
its subsidiaries taken as a whole), and has all power and authority
necessary to own its respective properties and conduct the businesses
in which it is engaged, as described in the Prospectus;
(iii) The issue and sale of the Notes by the Company and the
compliance by the Company with all the provisions of this Agreement,
(and, if the opinion is being given on account of the Company having
entered into a Terms Agreement, the applicable Terms Agreement) and
the Indenture, and the consummation of the transactions contemplated
hereby and thereby will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument known to such counsel to which the
Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject, nor will
such actions result in any violation of the provisions of the charter
or by-laws of the Company or any of its subsidiaries or any statute or
any order, rule or regulation known to such counsel of any court or
governmental agency or body having jurisdiction over the Company or
any of its subsidiaries or any of their properties or assets (except
for such conflicts, breaches, violations and defaults as would not
have a material adverse effect on the Company and its subsidiaries
taken as a whole); and, except for the registrations or qualifications
as may be required under the Exchange Act and
-8-
<PAGE>
<PAGE>
applicable state securities laws in connection with the purchase or
distribution of the Notes by the Agents, no consent, approval,
authorization or order of, or filing or registration with, any such
court or governmental agency or body is required for the execution and
delivery by the Company of, compliance by the Company with the
provisions of, or the consummation of the transactions contemplated by
the Indenture, this Agreement and any applicable Terms Agreement,
except to the extent that the effect of the failure to obtain such
consent, approval, authorization, qualification or order or to make
such filing or registration would not be material to the Company and
its subsidiaries taken as a whole or affect the enforceability of the
Notes;
(iv) The issuance of the Guarantee by Newcourt and the compliance
by Newcourt with all the provisions of this Agreement, the Guaranty
and the Indenture, and the consummation of the transactions
contemplated hereby and thereby will not conflict with or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument known to such counsel
to which Newcourt or any of its subsidiaries is a party or by which
Newcourt or any of its subsidiaries is bound or to which any of the
property or assets of Newcourt or any of its subsidiaries is subject,
nor will such actions result in any violation of the provisions of the
charter or by-laws of Newcourt or any of its subsidiaries or any
statute or any order, rule or regulation known to such counsel of any
court or governmental agency or body having jurisdiction over Newcourt
or any of its subsidiaries or any of their properties or assets
(except for such conflicts, breaches, violations and defaults as would
not have a material adverse effect on Newcourt and its subsidiaries
taken as a whole); and, except for the registrations or qualifications
as may be required under the Exchange Act and applicable state
securities laws in connection with the purchase or distribution of the
Notes by the Agents, no consent, approval, authorization or order of,
or filing or registration with, any such court or governmental agency
or body is required for the execution and delivery by Newcourt of,
compliance by Newcourt with the provisions of, or the consummation of
the transactions contemplated by the Guarantee, this Agreement and any
applicable Terms Agreement, except to the extent that the effect of
the failure to obtain such consent, approval, authorization,
qualification or order or to make such filing or registration would
not be material to Newcourt and its subsidiaries taken as a whole or
affect the enforceability of the Guarantee;
(v) The Indenture has been duly authorized, executed and
delivered by the Company and Newcourt and duly qualified under the
Trust Indenture Act and is a valid and binding agreement of the
Company and Newcourt enforceable in accordance with its terms (except
as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or affecting
creditors' rights generally and by general equity principles);
(vi) The Notes are in a form contemplated by the Indenture and
have been duly authorized by all necessary corporate action and (other
than in the case
-9-
<PAGE>
<PAGE>
of an opinion delivered at a Settlement Date) when the terms of a
particular Note and of its issuance and sale have been duly
established in accordance with the Indenture and this Agreement so as
not to violate any applicable law or agreement or instrument then
binding on the Company or Newcourt, and when such Note has been duly
executed and authenticated as specified in the Indenture and delivered
against payment therefor in accordance with this Agreement, such Note
will be a valid and binding agreement of the Company enforceable in
accordance with its terms (except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights
generally and by general equity principles), and entitled to the
benefits of the Indenture;
(vii) The Guarantee has been duly authorized, executed and
delivered by Newcourt and duly qualified under the Trust Indenture Act
and constitutes the valid and binding agreement of Newcourt,
enforceable in accordance with its terms (except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium and other laws relating to or affecting creditors' rights
generally and by general equity principles);
(viii) The Registration Statement has become effective under the Act
and, to the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose is pending or threatened by the
Commission;
(ix) The statements made in the Prospectus under the captions
"Description of the Debt Securities," "Description of Medium-Term
Notes, Series G," "Description of the Guarantee" and "Plan of
Distribution," insofar as such statements constitute summaries of the
legal matters, documents or proceedings specifically referred to
therein, fairly present the information called for with respect to
such legal matters, documents and proceedings and fairly summarize the
matters referred to therein;
(x) This Agreement (and, if the opinion is being given on account
of the Company having entered into a Terms Agreement, the applicable
Terms Agreement) has been duly authorized, executed and delivered on
behalf of the Company and Newcourt; and
(xi) Except as to financial statements and schedules contained
therein, as to which such counsel is not called upon to express any
opinion or belief, (A) each document or portion thereof incorporated
by reference in the Registration Statement and the Prospectus complied
when filed with the Commission as to form in all material respects
with the requirements of the Exchange Act and the applicable rules and
regulations of the Commission thereunder, (B) each part of the
Registration Statement filed with the Commission, when it became
effective, complied as to form in all material respects with the
requirements of the Act and the applicable rules and regulations
-10-
<PAGE>
<PAGE>
of the Commission thereunder, (C) the Registration Statement and the
Prospectus, as amended or supplemented, comply, and at the date of
this Agreement complied, as to form in all material respects with the
requirements of the Act and the applicable rules and regulations
of the Commission thereunder, (D) the Registration Statement, as of
its effective date (or, if later, at the time of Newcourt's filing of
an annual report in accordance with the Exchange Act), did not contain
any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading, and (E) the Prospectus does not contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
(c) At or prior to the time of closing each Agent shall have received,
and at each Settlement Date with respect to any Terms Agreement, if called
for by such Terms Agreement, the Agent which is a party thereto shall have
received, from Sidley & Austin, special tax counsel to the Company, an
opinion confirming as correct in all material respects the opinion of such
counsel expressed or referred to under "Material Federal Income Tax
Consequences" in the Prospectus.
(d) At or prior to the time of closing each Agent shall have received,
and at each Settlement Date with respect to any Terms Agreement, if called
for by such Terms Agreement, the Agent which is a party thereto shall have
received, from Chapman and Cutler, counsel to the Agents, an opinion or
opinions with respect to the incorporation of the Company, the validity of
the Notes, the Registration Statement, the Prospectus and other related
matters as the Agents or such Agent may require, and the Company shall have
furnished to such counsel such documents as it requests for the purpose of
enabling such counsel to pass upon such matters.
(e) (i) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, as amended and supplemented
to the time of closing, and as of the date of acceptance by the Company of
an offer to purchase Notes or the date of a Terms Agreement, as the case
may be, there shall not have been (1) any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company or Newcourt
and their respective subsidiaries, otherwise than as set forth or
contemplated in the Registration Statement and the Prospectus, as amended
and supplemented to such time of closing, date of acceptance by the Company
or date of such Terms Agreement, or (2) any downgrading in the rating
accorded the Company's or Newcourt's debt securities by any "nationally
recognized statistical rating organization," as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Act or any public
announcement that any such organization has under surveillance or review,
with possible negative implications, its rating of any of the Company's or
Newcourt's debt securities; (ii) the representations and warranties of the
Company and Newcourt herein shall be true at the time of closing, each date
of acceptance by the Company of an offer to purchase Notes and at each
Settlement
-11-
<PAGE>
<PAGE>
Date with respect to any Terms Agreement; (iii) neither the Company nor
Newcourt shall have failed, at or prior to the time of closing, such date
of acceptance by the Company of an offer to purchase Notes or such
applicable Settlement Date, to have performed all agreements herein
contained which should have been performed by it at or prior to such time;
(iv)(A) trading generally shall not have been suspended or materially
limited on or by, as the case may be, any of the New York Stock Exchange,
the American Stock Exchange, the National Association of Securities
Dealers, Inc., the Chicago Board Options Exchange, the Chicago Mercantile
Exchange or the Chicago Board of Trade, (B) trading of any securities of or
guaranteed by the Company or Newcourt shall not have been suspended on any
exchange or in any over-the-counter market, or (C) a general moratorium on
commercial banking activities in New York shall not have been declared by
either Federal or New York State authorities; and (v) each Agent shall have
received at the time of closing, and the Agent which is a party to any
Terms Agreement shall have received at each Settlement Date with respect to
any such Terms Agreement, a certificate to the foregoing effect dated the
day of the closing and signed by the President, a Vice President or the
Treasurer of each of the Company and Newcourt.
(f) At or prior to the time of closing each Agent shall have received,
and at each Settlement Date with respect to any Terms Agreement, if called
for by such Terms Agreement, the Agent which is party thereto shall have
received, executed copies of a letter from the Company's or Newcourt's
independent accountants, as applicable, addressed to the Company or
Newcourt, as applicable, and to each Agent, if delivered at the time of
closing, or to the Company or Newcourt and the applicable Agent if
delivered in connection with any Terms Agreement, dated as of the closing
date or the Settlement Date, as appropriate, to the effect that (i) they
are independent public accountants as required by the Act and the
applicable published rules and regulations of the Commission thereunder;
(ii) the audited financial statements contained in or incorporated by
reference in the Registration Statement comply as to form in all material
respects with the applicable accounting requirements of the Exchange Act
and the applicable published rules and regulations of the Commission
thereunder; (iii) nothing has come to their attention as the result of
specified procedures not constituting an audit that caused them to believe
(A) that the unaudited financial statements, if any, contained in or
incorporated by reference as aforesaid, do not so comply and are not fairly
presented in conformity with generally accepted accounting principles
applied on a basis substantially consistent with that of the audited
financial statements contained as aforesaid, (B) that there was any change
in the capital stock or long or intermediate term debt of the Company or
Newcourt (as applicable), or any decrease in net assets, from the date of
the latest balance sheet which is contained in or incorporated by reference
in the Registration Statement as aforesaid to a date not more than five
days prior to the date of such letter or (C) that there were any decreases,
as compared with the corresponding period in the preceding year, in total
revenues, income before interest deductions or net income from the date of
the latest figures for such items contained in the Registration Statement
to the date of the latest available financial statements of the Company or
Newcourt (as applicable); and (iv) they have carried out specified
procedures, which have been agreed to by the Agents, with respect to
certain information included in the Registration Statement (including with
respect to any pro forma financial information), and, on the basis of such
procedures,
-12-
<PAGE>
<PAGE>
they have found such information to be in agreement with the general
accounting records of the Company and Newcourt, provided that with respect
to any of the items specified in clause (iii), such letter may contain an
exception for matters which the Registration Statement discloses have
occurred or may occur; and provided further, that the letter may vary from
the requirements specified in this subparagraph in such manner as may be
acceptable to each Agent if delivered at the time of closing or the
applicable Agent if delivered in connection with a Terms Agreement. If such
letter is provided pursuant to this Section III(f), the Agents to whom such
letter is addressed shall provide a letter addressed to such accountants to
the effect that they have performed their due diligence or the Agents and
the Company's independent accountants shall receive an opinion from Agents'
counsel to the effect that in the event an action were maintained against
an Agent under Section 11(a) of the Act, in respect of sales of the Notes
made by or through such Agent pursuant to the Distribution Agreement, such
Agent is entitled to assert a "due diligence" defense under Section
11(b)(3)(A) of the Act.
In case, at the time of closing, and at each Settlement Date with respect
to any Terms Agreement, any of the conditions specified above in this Section
III shall not have been fulfilled, this Distribution Agreement may be terminated
by the Agents, if such failure occurs at the time of closing, or such Terms
Agreement may be terminated by the applicable Agent, if such failure occurs at a
Settlement Date with respect to such Terms Agreement, in each case by delivering
written notice of termination to the Company. Any such termination shall be
without liability of any party to any other party.
SECTION IV.
The obligation of the Company to deliver the Notes upon payment therefor
shall be subject to the following conditions: at the time of closing, and at
each Settlement Date with respect to any Terms Agreement, the Indenture and the
Guarantee shall be qualified under the Trust Indenture Act and no stop order
suspending the effectiveness of the Registration Statement, as amended from time
to time, shall be in effect in effect and no proceedings for this purpose shall
then be pending before, or threatened by, the Commission.
In case the conditions specified above in this Section IV shall not have
been fulfilled, this Agreement may be terminated by the Company and Newcourt by
delivering written notice of termination to the Agents, if such failure occurs
at the time of closing, or such Terms Agreement may be terminated by the Company
by delivering written notice of termination to the applicable Agent, if such
failure occurs at a Settlement Date with respect to such Terms Agreement.
Any such termination shall be without liability of any party to any other
party.
SECTION V.
In further consideration of your agreements herein contained with respect
to any Notes, the Company and Newcourt each covenants and agrees as follows:
-13-
<PAGE>
<PAGE>
(a) To furnish each of you, without charge, a copy of the Registration
Statement, including exhibits and materials, if any, incorporated by
reference therein and, during the period mentioned in paragraph (d) below,
as many copies of the Prospectus, relating to such Notes and the Guarantee,
any documents incorporated by reference therein and any supplements and
amendments thereto as you may reasonably request. The terms "supplement,"
and "amendment" or "amend" as used in this Agreement shall include all
documents filed by the Company or Newcourt with the Commission subsequent
to the date of the Basic Prospectus pursuant to the Exchange Act which are
deemed to be incorporated by reference in the Prospectus.
(b) To advise each of you promptly (confirming such advice in writing)
of any official request made by the Commission for an amendment to the
Registration Statement or Prospectus or for additional information with
respect thereto and of any official notice of the institution of
proceedings for, or of the entry of, a stop order suspending the
effectiveness of the Registration Statement. The Company and Newcourt will
use their best efforts to prevent the issuance of any such stop order, and,
if such a stop order should be entered, the Company and Newcourt will make
every reasonable effort to obtain the lifting or removal thereof as soon as
possible.
(c) Not to file any amendment or supplement to the Registration
Statement or the Prospectus with respect to the Notes or the Guarantee of
which you shall not previously have been advised or which shall be
disapproved by Chapman and Cutler, your counsel, and not to file any
document pursuant to the Exchange Act which is deemed to be incorporated by
reference in the Prospectus of which Chapman and Cutler shall not
previously have been advised.
(d) If, during such period after the first date of the public offering
of such Notes as in the opinion of Chapman and Cutler, your counsel, the
Prospectus relating to such Notes is required by law to be delivered, any
event shall occur as a result of which it is necessary to amend or
supplement such Prospectus in order to make the statements therein, in the
light of the circumstances when such Prospectus is delivered to a
purchaser, not misleading, or if it is necessary to amend or supplement
such Prospectus to comply with law, forthwith to prepare and furnish, at
its own expense, to each of you, either amendments or supplements to such
Prospectus so that the statements in such Prospectus as so amended or
supplemented will not, in the light of the circumstances when such
Prospectus is delivered to a purchaser, be misleading or so that such
Prospectus will comply with law.
(e) To use its best efforts to qualify the Notes, or to assist in the
qualification of the Notes by or on behalf of each of you, for offer and
sale under the securities or Blue Sky laws of such jurisdictions as each of
you may reasonably request, and to pay all expenses with respect thereto
(including counsel fees), provided that neither the Company nor Newcourt
shall be required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction, or to incur or to pay
any such expenses if no Notes are delivered to and purchased by any Agent
by reason of an Agent's default in making payment for the Notes.
-14-
<PAGE>
<PAGE>
(f) To cause to be made generally available to its security holders as
soon as practicable an earning statement or statements which shall meet the
requirements of Section 11(a) of the Act and Rule 158 promulgated
thereunder covering a period of twelve months which shall begin not later
than the closing date of the Company's and Newcourt's fiscal quarter next
following the "effective date" (as defined in Rule 158 under the Act) of
the Registration Statement with respect to each sale of Notes.
(g) To apply the proceeds from the sale of the Notes as set forth
under the heading "Use of Proceeds" appearing in the Prospectus.
(h) Each acceptance by the Company of an offer for the purchase of
Notes, and each sale of Notes to the applicable Agent pursuant to a Terms
Agreement, shall be deemed to be an affirmation that the representations
and warranties of the Company and Newcourt contained in this Agreement and
in any certificate theretofore delivered to you pursuant hereto are true
and correct at the time of such acceptance or sale, as the case may be, and
an undertaking that such representations and warranties will be true and
correct at the time of delivery to the purchaser or his agent, or the
applicable Agent, of the Notes relating to such acceptance or sale, as the
case may be, as though made at and as of each such time (and it is
understood that such representations and warranties shall relate to the
Registration Statement and the Prospectus as amended and supplemented to
each such time).
(i) Each time the Registration Statement or the Prospectus is amended
or supplemented (other than by an amendment or supplement providing solely
for a change in the interest rates (excluding any change in the formula by
which such interest rate may be determined) or maturities offered on the
Notes or for a change deemed immaterial in the reasonable opinion of the
Agents.), or if the Company sells Notes to an Agent pursuant to a Terms
Agreement, and if so indicated in the applicable Terms Agreement, the
Company and Newcourt will deliver or cause to be delivered forthwith to
each Agent or, in the case of a sale of Notes pursuant to a Terms
Agreement, to the applicable Agent, a certificate of the Company and
Newcourt signed by the President, a Vice President or the Treasurer of the
Company and Newcourt, dated the date of the effectiveness of such amendment
or filing or supplement or sale, as the case may be, in form reasonably
satisfactory to such Agent, to the effect that the statements contained in
the certificates referred to in Sections III(a) and (e) that were last
furnished to the Agent (either pursuant to Sections III(a) and (e) or
pursuant to this Section V(i)) are true and correct as though made at and
as of such time (except that such statements shall be deemed to relate to
the Registration Statement and the Prospectus as amended and supplemented
to such time) or, in lieu of such certificates, certificates of the same
tenor as the certificates referred to in Sections III(a) and (e) relating
to the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such certificates.
(j) Each time the Registration Statement or the Prospectus is amended
or supplemented, or if so indicated in the applicable Terms Agreement, the
Company sells Notes to an Agent pursuant to a Terms Agreement, the Company
shall furnish or cause to be furnished forthwith to each Agent, or, in the
case of a sale of Notes pursuant to a
-15-
<PAGE>
<PAGE>
Terms Agreement, to the applicable Agent, written opinions of counsel and
special tax counsel to the Company satisfactory to such Agent; provided,
however, that such opinions need not be furnished with respect to an
amendment or supplement (i) providing solely for a change in the interest
rates offered on the Notes (other than a change in the formula by which
such interest rate may be determined) or for a change deemed immaterial in
the reasonable opinion of such Agent, or (ii) setting forth or
incorporating by reference financial statements or other information as of
and for a fiscal quarter, unless, in the case of clause (ii) above, in the
reasonable judgment of such Agent, such financial statements or other
information are of such a nature that an opinion of counsel should be
furnished; provided, further that such counsel need not provide opinions
regarding the content of such financial statements. Any such opinion shall
be dated the date of such amendment or supplement, in form satisfactory to
the Agent to whom such opinions will be delivered, and shall be of the same
tenor as the opinion referred to in Sections III(b) and (c) but modified to
relate to the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such opinion. In lieu of such
opinion, counsel last furnishing such an opinion to such Agent may furnish
to such Agent a letter to the effect that such Agent may rely on such last
opinion to the same extent as though it were dated the date of such letter
authorizing reliance on such last opinion (except that statements in such
last opinion will be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of such
letter authorizing reliance).
(k) Each time that the Registration Statement or the Prospectus is
amended or supplemented to set forth amended or supplemental financial
information or such amended or supplemental information is incorporated by
reference in the Registration Statement or the Prospectus, or if so
indicated in the applicable Terms Agreement, the Company sells Notes to an
Agent pursuant to a Terms Agreement, the Company or Newcourt, as
applicable, shall cause the Company's or Newcourt's, as applicable,
independent accountants forthwith to furnish each Agent or, in the case of
a sale of Notes pursuant to a Terms Agreement, to the applicable Agent, a
letter, dated the date of the effectiveness of such amendment or the date
of filing of such supplement, or the date of such sale, as the case may be,
in form satisfactory to the Agents, of the same tenor as the letter
referred to in Section III (f) with regard to the amended or supplemented
financial information included or incorporated by reference in the
Registration Statement and the Prospectus, as amended or supplemented to
the date of such letter.
(l) Between the date of any Terms Agreement and the next Business Day
after the Settlement Date with respect to such Terms Agreement, neither the
Company nor Newcourt will, without your prior consent, offer or sell, or
enter into any agreement to sell, in the United States any debt securities
of the Company or Newcourt substantially similar to the Notes (other than
the Notes that are to be sold pursuant to such Terms Agreement and
commercial paper in the ordinary course of business), except as may
otherwise be provided in any such Terms Agreement. As used herein "Business
Day" shall mean a day on which the New York Stock Exchange is open for
trading and on which banks in New York are open for business and not
permitted by law or executive order to be closed.
-16-
<PAGE>
<PAGE>
(m) The Company will pay all expenses incident to the performance of
its obligations under this Agreement and any applicable Terms Agreement,
including: (i) the preparation and filing of the Registration Statement and
all amendments thereto, (ii) the preparation, issuance and delivery of the
Notes, (iii) the fees and disbursements of the Company's accountants and
Newcourt's accountants, the Company's special tax counsel and of the
Trustee and its counsel, (iv) the qualification of the Notes under
securities laws in accordance with the provisions of Section V(e),
including filing fees and the reasonable fees and disbursements of your
counsel in connection therewith and in connection with the preparation of
any Blue Sky Memorandum and any Legal Investment Memorandum, (v) the
printing and delivery to you in quantities as herein above stated of copies
of the Registration Statement and all amendments thereto, and of the
Prospectus and any amendments or supplements thereto, (vi) the printing and
delivery to you of copies of the Indenture and any Blue Sky Memorandum and
any Legal Investment Memorandum, (vii) any fees charged by rating agencies
for the rating of the Notes, (viii) any advertising and other out-of-pocket
expenses incurred with the approval of the Company, provided, however, that
the expenses of any tombstone advertisement shall be paid by the Agents,
and (ix) the fees and expenses, if any, incurred with respect to any filing
with the National Association of Securities Dealers, Inc.
The Company shall also reimburse each Agent promptly upon receipt of an
invoice from such Agent for the reasonable fees of counsel for such Agent
incurred in connection with the offering and sale of the Notes (including the
reasonable fees and expenses of special counsel in any state in the event it
should become necessary to obtain opinions of such counsel as to usury or other
matters of local law in order to obtain or maintain the qualifications referred
to in Section V(e) hereof).
SECTION VI.
The parties hereto agree that:
(a) The Company and Newcourt shall, jointly and severally, indemnify
and hold each Agent harmless from and against any and all losses, claims,
damages, and liabilities, joint or several, to which such Agent may become
subject, under the Act or otherwise, insofar as such losses, claims,
damages, liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Agent for any legal or other expenses
reasonably incurred by such Agent in connection with investigating or
defending any such action or claim as such expenses are incurred; provided,
however, that the Company and Newcourt shall not be liable in any such case
to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in the Provided Information in the
Registration Statement or Prospectus or any such amendment or supplement.
-17-
<PAGE>
<PAGE>
(b) Each Agent will severally indemnify and hold harmless the Company
and Newcourt against any losses, claims, damages or liabilities to which
the Company or Newcourt may become subject, under the Act or otherwise,
insofar as such losses, claims, damages, liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
or Prospectus, or any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or
alleged omission by such Agent was made in the Provided Information in the
Registration Statement or Prospectus or any such amendment or supplement,
and will reimburse the Company and Newcourt for any legal or other expenses
reasonably incurred by the Company and Newcourt in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(c) The Company, Newcourt and each Agent agree that upon the
commencement of any action against it, its directors, its officers who sign
the Registration Statement, or any person controlling it as aforesaid in
respect of which indemnity may be sought on account of any indemnity
agreement contained herein, it will promptly give written notice of the
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 or shall fail to appoint counsel satisfactory to the indemnified
party or parties, such indemnifying party or parties will reimburse such
indemnified party or parties for the reasonable fees and expenses of any
counsel retained by them. In the event that the parties to any such action
(including impleaded parties) include the Company, Newcourt and one or more
Agents 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
-18-
<PAGE>
<PAGE>
firm of attorneys (in addition to local counsel) for all such indemnified
parties, which shall be designated in writing by the Agents in the case of
an action in which one or more Agents or controlling persons are
indemnified parties and by the Company or Newcourt in the case of an action
in which the Company or Newcourt or any of their respective directors,
officers or controlling persons are indemnified parties The indemnifying
party or parties shall not be liable under this Agreement with respect to
any settlement made by any indemnified party or parties without prior
written consent by the indemnifying party or parties to such settlement.
(d) If the indemnification provided for in VI(a) or VI(b) 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 Newcourt on the one hand and
the Agents 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 VI(c) above, then each indemnifying party shall contribute
to such amount paid or payable by such indemnified party in proportion as
is appropriate to reflect not only such relative benefits but also the
relative fault of the Company and Newcourt on one hand and the Agents on
the other in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company and Newcourt on one hand and the
Agents 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 and any Terms Agreement (before deducting expenses) received by
the Company bear to the total commissions received by the Agents with
respect to the Notes purchased under this Agreement and any Terms
Agreement. The relative fault of the Company and Newcourt and of the Agents
shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company or Newcourt on one hand or by the Agents on the other and the
parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission, The Company, Newcourt and
the Agents agree that it would not be just and equitable if contributions
pursuant to this Section VI(d) were determined by pro rata allocation (even
if the Agents were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable
considerations referred to above in this Section VI(d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages
or liabilities referred to in this Section VI(d) shall be deemed to
include, 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 Section VI(d), no Agent shall be
required to contribute any amount in excess of the amount by which the
total price at which the Notes distributed to the public by it pursuant to
this Agreement or any Terms Agreement exceeds the amount of any damages
which such Agent has been required to pay by
-19-
<PAGE>
<PAGE>
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Agents' obligations in this Section VI(d) to contribute are several in
proportion to their respective obligations under this Agreement and any
Terms Agreement and not joint.
The obligations of the Company and Newcourt under this Section VI shall be
in addition to any liability which the Company and Newcourt may otherwise have
and shall extend, upon the same terms and conditions, to each person, if any,
who controls any Agent within the meaning of the Act, and the obligations of the
Agent under this Section VI shall be in addition to any liability which the
respective Agents may otherwise have and shall extend, upon the same terms and
conditions to each officer of the Company or Newcourt who signs the Registration
Statement, each director of the Company or Newcourt and to each person, if any,
who controls the Company or Newcourt within the meaning of the Act.
The indemnity and contribution agreements contained in this Section VI and
the representations and warranties of the Company and Newcourt in this Agreement
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement or of any Terms Agreement hereunder, (ii) any
investigation made by any Agent or on its behalf or any person controlling any
Agent or by or on behalf of the Company, Newcourt, their respective directors or
officers or any person controlling the Company or Newcourt and (iii) acceptance
of and payment for any of the Notes.
SECTION VII.
This Agreement and any Terms Agreement hereunder shall inure to the benefit
of the Company, Newcourt, their respective directors, their respective officers
who sign the Registration Statement, each Agent, or in the case of any such
Terms Agreement, the applicable Agent and each controlling person referred to in
Section VI hereof and their respective successors. Nothing in this Agreement or
in any Terms Agreement hereunder is intended or shall be construed to give to
any other person, firm or corporation any legal or equitable right, remedy or
claim under or in respect of this Agreement or any Terms Agreement hereunder or
any provision herein or therein contained. The term "successor" as used in this
Agreement or any Terms Agreement hereunder shall not include any purchaser, as
such purchaser, of any of the Notes from an Agent.
The provisions of this Agreement relating to the solicitation of offers to
purchase Notes from the Company may be suspended or terminated at any time by
the Company as to any Agent or by any Agent insofar as this Agreement relates to
such Agent upon the giving of written notice of such suspension or termination
to such Agent or the Company, as the case may be. In the event of such
suspension or termination with respect to any Agent, (x) this Agreement shall
remain in full force and effect with respect to any Agent as to which such
suspension or termination has not occurred (y) this Agreement shall remain in
full force and effect with respect to the rights and obligations of any party
which have previously accrued or which relate to Notes already issued, agreed to
be issued or the subject of a pending offer at the time of such
-20-
<PAGE>
<PAGE>
suspension or termination and (z), in any event, this Agreement shall remain in
full force and effect insofar as the third paragraph of Section I(a), Section
V(f), Section V(m) and Section VI are concerned.
[Signature Page Follows]
-21-
<PAGE>
<PAGE>
This Agreement and any Terms Agreement may be executed in any number of
counterparts each of which shall be an original, with the same effect as of the
signatures thereto and hereto were upon the same instrument.
This Agreement and any Terms Agreement hereunder shall be governed by and
construed in accordance with the laws of the State of New York.
Very truly yours,
AT&T CAPITAL CORPORATION
By______________________________
Printed Name:_________________
Title:________________________
By______________________________
Printed Name:_________________
Title:________________________
NEWCOURT CREDIT GROUP INC.
By______________________________
Printed Name:_________________
Title:________________________
By______________________________
Printed Name:_________________
Title:________________________
-22-
<PAGE>
<PAGE>
ACCEPTED:
By____________________________
Printed Name:______________
Title:_____________________
By____________________________
Printed Name:______________
Title:_____________________
By____________________________
Printed Name:______________
Title:_____________________
By____________________________
Printed Name:______________
Title:_____________________
By____________________________
Printed Name:______________
Title:_____________________
By____________________________
Printed Name:______________
Title:_____________________
-23-
<PAGE>
<PAGE>
EXHIBIT A
AT&T CAPITAL CORPORATION
MEDIUM-TERM NOTES, SERIES G
TERMS AGREEMENT
_____________, 1999
AT&T Capital Corporation
2 Gatehall Drive
Parsippany, New Jersey 07054
Attention: __________________
Re: Distribution Agreement dated March ___, 1999
(the "Distribution Agreement")
Subject in all respects to the terms and conditions of the Distribution
Agreement, the undersigned agrees to purchase the following principal amount of
your Medium-Term Notes, Series G:
Specified Currency as to:
Principal:
Interest:
Aggregate Principal Amount: [U.S. $] [other]
Price to Public:
[Provisions relating to redemption, if any:]
[Provisions relating to repayment, if any:]
If Fixed Rate Notes:
Interest Rate:
Maturity:
Amortization Schedule:
If Floating Rate Notes:
Base Rate:
Initial Interest Date:
Interest Determination Date:
Interest Reset Date:
Interest Reset Period:
Record Date:
<PAGE>
<PAGE>
Interest Payment Dates:
Index Maturity:
Maturity:
Maximum Interest Rate:
Minimum Interest Rate:
Spread:
Spread Multiplier:
Indexed Currency or Currencies (if any):
Settlement Date and Time:
Place of Delivery:
Calculation Agent:
Form of Note (Book-Entry or Certificated):
Purchase Price:
Commission, if other than through discount:
Method of and Specified Funds for Payment of Purchase Price: [By certified
or official bank check or checks, payable to the order of the Company,
in [New York] Clearing House] [immediately available] funds [By wire
transfer to a bank account specified by the Company in [next day]
[immediately available] funds]
Provisions relating to underwriter default, if any:
Other termination provisions, if any:
[The certificates referred to in Section V(i) of the Distribution
Agreement, the opinions referred to in Section V(k) of the Distribution
Agreement and the accountants' letters referred to in Section V(i) of the
Distribution Agreement will be required.]
[ ]
-------------------------------
By______________________________
Printed Name:_________________
Title:________________________
ACCEPTED:
AT&T CAPITAL CORPORATION
By____________________________
Printed Name:______________
Title:_____________________
-2-
<PAGE>
<PAGE>
EXHIBIT B
AT&T CAPITAL CORPORATION
Medium-Term Notes, Series G, Administrative Procedures
Medium-Term Notes, Series G (the "Notes") are to be offered on a continuous
basis by AT&T Capital Corporation (the "Company"). [ ] (each,
an "Agent", and, collectively, the "Agents"), have agreed to solicit
purchases of the Notes. The Agents will not be obligated to purchase Notes for
their own accounts. The Notes are being sold pursuant to a Distribution
Agreement among the Company, Newcourt Capital Group Inc. ("Newcourt") and each
Agent dated March ___, 1999 (the "Distribution Agreement"). The Notes will
rank equally with all other unsecured and unsubordinated debt of the Company
and have been registered with the Securities and Exchange Commission (the
"Commission"). The Chase Manhattan Bank ("CMB") is the trustee (the "Trustee")
under the Indenture covering the Notes (the "Indenture").
Notes will bear interest at either fixed rates ("Fixed Rate Notes") or
floating rates ("Floating Rate Notes"). Fixed Rate Notes may pay a level amount
in respect of both interest and principal amortized over the life of the Notes
("Amortizing Notes"). Each Note will be represented by either a Global Security
(as defined hereinafter) delivered to CMB as agent for The Depository Trust
Company ("DTC"), and recorded in the book-entry system maintained by DTC (a
"Book-Entry Note") or a certificate delivered to the Holder thereof or a Person
designated by such Holder (a "Certificated Note"). Except in certain limited
circumstances or unless otherwise determined by the Company, an owner of a
Book-Entry Note will not be entitled to receive a certificate representing such
a Note.
CMB will act as paying agent ("Paying Agent") for the payment of principal
of and premium, if any, and interest on the Notes and will perform, as Paying
Agent, unless otherwise specified, the other duties specified herein. Book-Entry
Notes will be issued in accordance with the administrative procedures set forth
in Parts I and II hereof, and Certificated Notes will be issued in accordance
with the administrative procedures set forth in Parts I and III hereof. Unless
otherwise defined herein, terms defined in the Indenture shall be used herein as
therein defined.
Administrative procedures and specific terms of the offerings are explained
below.
PART I: ADMINISTRATIVE PROCEDURES FOR ALL NOTES
Maturities: Each Note will have a maturity from date of issue
of not less than nine months.
B-1
<PAGE>
<PAGE>
Price to Public: Each Note will be issued at 100% of principal
amount unless otherwise specified in the
applicable pricing supplement.
Acceptance of Orders: The Company will have the sole right to
accept offers to purchase Notes. Each Agent
will promptly advise the Company of each
reasonable offer to purchase Notes received
by it, and, if the Company has not posted
rates, the proposed rate of interest on such
Notes. The Company may reject an offer in
whole or in part. Each Agent may reject, in
its discretion reasonably exercised, any
offer received by it in whole or in part.
If the Company accepts an offer to purchase a
Note, it will prepare a pricing supplement
reflecting the terms of such Note and will,
so long as it is a participant in the
Commission's EDGAR program, electronically
submit a version of such pricing supplement
complying with the rules of the Commission
relating to such program, or, if the Company
is no longer a participant in such program,
arrange to have ten copies of such pricing
supplement filed with, or mailed for filing
to, the Commission, in each case no later
than the second business day following the
date such offer is accepted.
One copy of such filed document will be sent
by telecopy, overnight, express or special
delivery (for delivery as soon as practicable
following the trade, but in no event later
than 11:00 a.m. on the Business Day following
the applicable trade date), to the selling
Agent and the Trustee at the following
applicable address:
if to ___________________________________
___________________________________
___________________________________
___________________________________
___________________________________
if to _____________________ at __________
if to ___________________________________
___________________________________
B-2
<PAGE>
<PAGE>
___________________________________
___________________________________
___________________________________
if to ___________________________________
___________________________________
if to ___________________________________
___________________________________
___________________________________
___________________________________
___________________________________
if to ___________________________________
___________________________________
___________________________________
___________________________________
if to the Trustee at The Chase Manhattan
Bank, Corporate Trust Administration, 450
West 33rd Street, New York, New York
10001 Attn: Larry O'Brien (212) 946-8566,
telecopier: (212) 946-8159
Outdated Pricing Supplements and the
supplemented Prospectuses to which they are
attached (other than those retained for
files) will be destroyed.
Procedure for Rate Change The Company and the Agent will discuss from
time to time the aggregate principal amount
of, the issuance price of, and the interest
rates to be borne by, Notes that may be sold
as a result of the solicitation of orders by
the Agents. When a decision has been reached
to change the interest rates of Notes being
sold by the Company, the Company will
promptly inform each Agent. Each Agent will
advise the Company with respect to the
changed rates. See "Acceptance of Orders,"
above.
Suspension of Solicitation;
Amendment or Supplement: The Company may instruct the Agents to
suspend solicitation of purchases at any
time. Upon receipt of such instructions, the
Agents will forthwith suspend solicitation
until such time as the Company
B-3
<PAGE>
<PAGE>
has advised them that solicitation of
purchases may be resumed.
If the Company decides to amend or supplement
the Registration Statement or the Prospectus
relating to the Notes, it will promptly
advise the Agents and the Trustee, and will
furnish the Agents and the Trustee with the
proposed amendment or supplement in
accordance with the terms of the Distribution
Agreement. The Company will file with the
Commission any supplement to the Prospectus
relating to the Notes, including any
supplement which provides solely for a change
in the interest rates offered on the Notes,
provide the Agents with sufficient quantities
of copies of any supplement within a
reasonable time prior to the earlier of the
delivery of written confirmation of the sale
of Notes or the delivery of Notes to any
purchaser thereof, and confirm to the Agents
that such supplement has been filed with the
Commission. In the event that at the time the
Company suspends solicitation of purchases
there shall be any orders outstanding for
settlement, the Company will promptly advise
the Agents and the Trustee whether such
orders may be settled and whether copies of
the Prospectus as in effect at the time of
the suspension may be delivered in connection
with the settlement of such orders. The
Company will have the sole responsibility for
such decisions and for any arrangements which
may be made in the event that the Company
determines that such orders may not be
settled or that copies of such Prospectus may
not be so delivered.
Delivery of Prospectus: Each Agent shall, for each Note order
received by it, deliver a copy of the
Prospectus as most recently amended or
supplemented (including the pricing
supplement relating to such Note) with the
earlier of the delivery or the confirmation
or sale of the Note to a purchaser or such
purchaser's agent.
Payment of Selling
Commission and Expenses: The selling commission on each sale of Notes
will be calculated by the applicable Agent
and the applicable Agent will deduct, for its
own account, the selling commission from the
proceeds of each
B-4
<PAGE>
<PAGE>
such sale of Notes. Each Agent will forward,
from time to time at its discretion, an
itemized statement setting forth the
aggregate amount of out-of-pocket expenses
incurred by it in connection with the
offering and sale of the Notes, which are
reimbursable to it pursuant to the terms of
the Distribution Agreement. The Company will
promptly remit payment to such Agent.
Advertising: The Company will determine with each Agent
the form, substance and amount of advertising
that may be appropriate in offering the
Notes. Advertising expenses will be paid by
the Company or reimbursed to the Agents by
the Company, provided, however, that the
expenses of any tombstone advertisement shall
be paid by the Agents.
PART II: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, CMB will perform the
custodial, document control and administrative functions described below, in
accordance with its respective obligations under a Letter of Representations
from the Company and CMB to DTC dated as of the date hereof, and a Medium Term
Note Certificate Agreement between CMB and DTC, dated as of December 2, 1988,
and its obligations as a participant in DTC, including DTC's Same-Day Funds
Settlement System ("SDFS").
Issuance: On any date of Settlement (as defined under
"Sett1ement" below) for one or more
Book-Entry Notes, the Company will issue a
global security in fully registered form
without coupons (a "Global Security")
representing up to $200,000,000 principal
amount of all such Notes that have the same
stated maturity, redemption or repayment
provisions, interest payment dates, interest
payment period and original issue date, and,
in the case of Fixed Rate Notes, interest
rate and amortization schedule (if any), or
in the case of Floating Rate Notes, initial
interest rate, base rate, interest payment
dates, index maturity, interest reset period,
interest reset dates, spread or spread
multiplier, minimum interest rate (if any),
and maximum interest rate (if any)
(collectively, "Terms"). Each Global Security
will be dated and issued as of the date of
its authentication by the Trustee, acting as
B-5
<PAGE>
<PAGE>
Authenticating Agent. No Global Security will
represent (i) both Fixed Rate and Floating
Rate Book-Entry Notes or (ii) any
Certificated Note.
Identification Numbers: The Company has arranged with the CUSIP
Service Bureau of Standard & Poor's
Corporation (the "CUSIP Service Bureau") for
the reservation of a series of CUSIP numbers
(including tranche numbers), which series
consists of approximately 900 CUSIP numbers
and relates to Global Securities representing
the Book-Entry Notes. The Company has
obtained from the CUSIP Service Bureau a
written list of such series of reserved CUSIP
numbers and has delivered to CMB and DTC a
written list of such reserved CUSIP numbers
of such series. The Company will assign CUSIP
numbers to Global Securities as described
below under "Settlement Procedure (b)". DTC
will notify the CUSIP Service Bureau
periodically of the CUSIP numbers that the
Company has assigned to Global Securities. At
any time when fewer than 100 of the reserved
CUSIP numbers of the series remain unassigned
to Global Securities, and, if it deems
necessary, the Company will reserve
additional CUSIP numbers for assignment to
Global Securities. Upon obtaining such
additional CUSIP numbers, the Company shall
deliver a list of such additional CUSIP
numbers to CMB and DTC.
Registration: Global Securities will be issued only in
fully registered form without coupons. Each
Global Security will be registered in the
name of CEDE & Co., as nominee for DTC, on
the security register maintained under the
Indenture by CMB as Registrar. The beneficial
owner of a Book-Entry Note (or one or more
indirect participants in DTC designated by
such owner) will designate one or more
participants in DTC (with respect to such
Note, the "Participants") to act as agent or
agents for such owner in connection with the
book-entry system maintained by DTC, and DTC
will record in book-entry form, in accordance
with instructions provided by such
Participants, a credit balance with respect
to such beneficial owner in such Note in the
account of such Participants. The ownership
interest of such beneficial owner in such
Note will
B-6
<PAGE>
<PAGE>
be recorded through the records of such
Participants or through the separate records
of such Participants and one or more indirect
participants in DTC.
Transfers: Transfers of a Book-Entry Note will be
accompanied by book entries made by DTC and,
in turn, by Participants (and, in certain
cases, one or more indirect participants in
DTC) acting on behalf of beneficial
transferors and transferees of such Note.
Exchanges: CMB may deliver to DTC and the CUSIP Service
Bureau at any time a written notice of
consolidation specifying (i) the CUSIP
numbers of two or more Outstanding Global
Securities that represent (A) Fixed Rate
Book-Entry Notes having the same Terms and
for which interest has been paid to the same
date, or (B) Floating Rate Book-Entry Notes
having the same Terms and for which interest
has been paid to the same date, (ii) a date,
occurring at least 30 days after such
written notice is delivered and at least
30 days before the next interest payment
date for such Book-Entry Notes, on which such
Global Securities shall be exchanged for a
single replacement Global Security and (iii)
a new CUSIP number, obtained from the
Company, to be assigned to such replacement
Global Security. Upon receipt of such a
notice, DTC will send to its participants
(including CMB) a written reorganization
notice to the effect that such exchange will
occur on such date. Prior to the specified
exchange date, CMB will deliver to the CUSIP
Service Bureau a written notice setting forth
such exchange date and the new CUSIP number
and stating that, as of such exchange date,
the CUSIP numbers of the Global Securities to
be exchanged will no longer be valid. On the
specified exchange date, CMB will exchange
such Global Securities for a single Global
Security bearing the new CUSIP number and the
CUSIP numbers of the exchanged Global
Securities will, in accordance with CUSIP
Service Bureau procedures, be cancelled and
not immediately reassigned. Notwithstanding
the foregoing, if the Global Securities to be
exchanged exceed $200,000,000 in aggregate
principal amount, one Global Security will be
authenticated and
B-7
<PAGE>
<PAGE>
issued to represent each $200,000,000 of
principal amount of the exchanged Global
Security and an additional Global Security
will be authenticated and issued to represent
any remaining principal amount of such Global
Securities (see "Denominations" below).
Denominations: Unless otherwise specified in the applicable
Pricing Supplement, Book-Entry Notes
denominated in U.S. dollars will be issued in
principal amounts that are integral multiples
of $1,000. Unless otherwise specified in the
applicable Pricing Supplement, Book-Entry
Notes denominated in a currency other than
U.S. dollars will be issued in increments of
such currency approximately equal to
U.S.$1,000 based upon the noon buying rate in
New York City for cable transfers of such
currency, as determined by the Federal
Reserve Bank of New York on the Business
Day immediately preceding the trade date for
such Notes, rounded to the nearest
increment of 1,000 units of such currency.
In the case of Euros, unless otherwise
specified in the applicable Pricing
Supplement, the currency equivalent will be
based upon the rate of exchange determined
by the Commission of the European
Communities, or any successor, as published
in the Official Journal of the European
Communities, or any successor publication,
on the Business Day immediately preceding
the trade date for such Notes rounded to
the nearest increment of 1,000 units of such
currency. Global Securities will be
denominated in principal amounts not in
excess of $200,000,000. If one or more
Book-Entry Notes having an aggregate
principal amount in excess of $200,000,000
would, but for the preceding sentence, be
represented by a single Global Security, then
one Global Security will be issued to
represent each $200,000,000 principal amount
of such Book-Entry Note or Notes and an
additional Global Security will be issued to
represent any remaining principal amount of
such Book-Entry Note or Notes. In such a
case, each of the Global Securities
representing such Book-Entry Note or Notes
shall be assigned the same CUSIP number.
Interest: General. Interest on each Book-Entry Note
will accrue from the original issue date or
the last date to which interest has been
paid, if any, on the Global Security
representing such Note. Unless otherwise
specified therein, each payment of interest
on a Book-Entry Note will include interest
accrued to but excluding the interest payment
date (provided that in the case of Floating
Rate Notes which reset daily or weekly,
interest payments will include interest
accrued to and including the record date
immediately preceding the interest payment
date) or maturity date. Interest payable at
the maturity of a Book-Entry Note will be
payable to the person to whom the principal
of such Note is payable. Standard & Poor's
Corporation will use the information received
in the pending deposit message described
under Settlement Procedure "(c)" below in
order to include the amount of any interest
payable and certain other information
regarding the related Global Security in the
B-8
<PAGE>
<PAGE>
appropriate weekly bond report published by
Standard & Poor's Corporation.
Record Date. The Record Date with respect to
any interest payment date shall be the date
fifteen calendar days prior to such interest
payment date, whether or not such date shall
be a Business Day.
Fixed Rate Book-Entry Notes. Unless otherwise
specified in the applicable Pricing
Supplement, interest payments on Fixed Rate
Book-Entry Notes (other than Amortizing
Notes) will be made semiannually on May 15
and November 15 of each year and at maturity,
and, unless otherwise specified in the
applicable Pricing Supplement, principal and
interest payments on Book-Entry Amortizing
Notes will be made semiannually on May 15 and
November 15 of each year, or quarterly on
February 15, May 15, August 15 and November
15 of each year and at maturity; provided,
however, that in the case of a Fixed Rate
Book-Entry Note issued between a Record Date
and an interest payment date or on an
interest payment date, the first interest
payment will be made on the interest payment
date following the next succeeding Record
Date to the registered holder on such next
succeeding Record Date of such Fixed Rate
Book-Entry Note, provided further, that if
any interest payment date falls on a day that
is not a Business Day, the required payment
of principal, premium, if any, and/or
interest will be made on the next succeeding
Business Day as if made on the date such
payment was due, and no interest will accrue
on such payment for the period from and after
such interest payment date to the date of
such payment on the next succeeding Business
Day.
Floating Rate Book-Entry Notes. Unless
otherwise specified in the applicable Pricing
Supplement, interest payments will be made on
Floating Rate Book-Entry Notes monthly,
quarterly, semi-annually, or annually. Unless
otherwise agreed upon, interest will be
payable, in the case of Floating Rate
Book-Entry Notes with a monthly interest
payment period, on the third Wednesday of
each month; with a quarterly interest payment
B-9
<PAGE>
<PAGE>
period, on the third Wednesday of February,
May, August and November of each year, with a
semi-annual interest payment period on the
third Wednesday of the two months specified
pursuant to Settlement Procedure "(a)" below;
and with an annual interest payment period,
on the third Wednesday of the month specified
pursuant to Settlement Procedure "(a)" below;
provided, however, that if an interest
payment date for a floating Rate Book-Entry
Note (other than the maturity date) would
otherwise be a day that is not a Business Day
such interest payment date will be postponed
to the next succeeding day that is a Business
Day, except that in the case of a LIBOR Note,
if such Business Day falls in the next
succeeding calendar month, such interest
payment date will be the immediately
preceding Business Day. If the maturity date
of a Floating Rate Book-Entry Note falls on a
day that is not a Business Day, the required
payment of principal, premium, if any, and/or
interest will be made on the next succeeding
Business Day as if made on the date such
payment was due, and no interest shall accrue
in such payment for the period from and after
the Maturity Date to the date of such payment
on the next succeeding Business Day. In the
case of a Floating Rate Book-Entry Note
issued between a Record Date and an interest
payment date, the first interest payment will
be made on the interest payment date
following the next succeeding Record Date to
the registered holder on such next succeeding
Record Date of such Floating Rate Book-Entry
Note.
Notice of Interest Payment and Record Dates.
On the first Business Day of March, June,
September and December of each year, CMB will
deliver to the Company, the Trustee and DTC a
written list of Record Dates and interest
payment dates that will occur with respect to
Book-Entry Notes during the six-month period
beginning on such first Business Day.
Calculation of Interest: Fixed Rate Book-Entry Notes. Interest on
Fixed Rate Book-Entry Notes (including
interest for partial periods) will be
calculated on the basis of a
B-10
<PAGE>
<PAGE>
year of twelve thirty-day months. (Examples
of interest calculations are as follows: The
period from May 15, 1998, to November 15,
1999, equals 6 months and 0 days, or 180
days; the interest payable equals 180/360
times the annual rate of interest times the
principal amount of the Note. The period from
September 17, 1998, to February 15, 1999,
equals 4 months and 28 days, or 148 days, the
interest payable equals 148/360 times the
annual rate of interest times the principal
amount of the Note.)
Floating Rate Book-Entry Notes. Interest
rates on floating Rate Book-Entry Notes will
be determined as set forth in the form of
Notes. Interest on Floating Rate Book-Entry
Notes will be calculated on the basis of
actual days elapsed and a year of 360 days
except that in the case of Treasury Rate
Notes, interest will be calculated on the
basis of the actual number of days in the
year.
Payments of Principal and
Interest: Payment of Interest Only. Promptly after each
Record Date, CMB will deliver to the Company,
the Trustee and DTC a written notice
specifying by CUSIP number the amount of
interest to be paid on each Global Security
(other than an Amortizing Note) on the
following interest payment date (other than
an interest payment date coinciding with
maturity) and the total of such amounts. DTC
will confirm the amount payable on each
Global Security on such Interest Payment Date
by reference to the appropriate (daily or
weekly) bond reports published by Standard &
Poor's Corporation. In the case of Amortizing
Notes, CMB will provide separate written
notice to the Company and to DTC of the
principal and or interest due on such
security prior to each Interest Payment Date
at the time and in the manner set forth in
the Letter of Representations. The Company
will pay to the Paying Agent the total amount
of interest due on such Interest Payment Date
(and, in the case of an Amortizing Note,
principal and interest) (other than at
maturity), and the Paying Agent will pay such
amount to DTC at
B-11
<PAGE>
<PAGE>
the times and in the manner set forth below
under "Manner of Payment."
Payments at Maturity and on Redemption or
Repayment. On or about the first Business Day
of each month, the Paying Agent will deliver
to the Company, the Trustee and DTC a written
list of principal and interest to be paid on
each Global Security (other than an
Amortizing Note) maturing either at stated
maturity or on a redemption or repayment date
in the following month. The Paying Agent, the
Company and DTC will confirm the amounts of
such principal and interest payments with
respect to each such Global Security on or
about the fifth Business Day preceding the
maturity of such Global Security. In the case
of Amortizing Notes, the Paying Agent will
provide separate written notice of the
principal and interest due on such date to
the Company and to DTC prior to the date of
maturity and any redemption or repayment
date, as the case may be, at the times and in
the manner set forth in the Letter of
Representations. The Company will pay to the
Paying Agent, the principal amount of such
Global Security, together with interest due
at such maturity. The Paying Agent will pay
such amounts to DTC at the times and in the
manner set forth below under "Manner of
Payment." If any stated maturity of a Global
Security representing Book-Entry Notes is not
a Business Day, the payment due on such day
shall be made on the next succeeding Business
Day and no interest shall accrue on such
payment for the period from and after such
maturity. Promptly after payment to DTC of
the principal and interest due at the
maturity of such Global Security, the Paying
Agent shall deliver such Global Security to
the Trustee which shall cancel such Global
Security in accordance with the terms of the
Indenture and so advise the Company. On the
first Business Day of each month, the Paying
Agent will deliver to the Trustee a written
statement indicating the total principal
amount of outstanding Global Securities as of
the preceding Business Day.
Manner of Payment. The total amount of any
principal and interest due on Global
Securities on
B-12
<PAGE>
<PAGE>
any interest payment date or at maturity
shall be paid by the Company to the Paying
Agent in immediately available funds as of
9:30 A.M. (New York City time) on such date.
The Company will make such payment on such
Global Securities by wire transfer to the
Paying Agent or by instructing the Paying
Agent to withdraw funds from an account
maintained by the Company as Paying Agent.
The Company will confirm such instructions in
writing to Paying Agent. Prior to 10:00 A.M.
(New York City time) on each maturity date,
redemption or repayment, or as soon as
possible thereafter, following receipt of
such funds from the Company, the Paying Agent
will pay by separate wire transfer (using
Fed-wire message entry instructions in a form
previously specified by DTC) to an account at
the Federal Reserve Bank of New York
previously specified by DTC, in funds
available for immediate use by DTC, each
payment of principal (together with interest
thereon) due on a Global Security on such
date. On each interest payment date (other
than at maturity), interest payments and, in
the case of Amortizing Notes, interest and
principal payments shall be made to DTC in
funds available for immediate use by DTC, in
accordance with existing arrangements between
the Paying Agent and DTC. On each such date,
DTC will pay, in accordance with its SDFS
operating procedures then in effect, such
amounts in funds available for immediate use
to the respective Participants in whose names
the Book-Entry Notes represented by such
Global Securities are recorded in the
book-entry system maintained by DTC. Neither
the Company (as issuer or as Paying Agent),
nor the Paying Agent shall have any direct
responsibility or liability for the payment
by DTC to such Participants of the principal
or interest on the Book-Entry Notes.
Withholding Taxes. The amount of any taxes
required under applicable law to be withheld
from any interest payment on a Book-Entry
Note will be determined and withheld by the
Participant, indirect participant in DTC or
other person responsible for forwarding
payments and materials directly to the
beneficial owner of such Note.
B-13
<PAGE>
<PAGE>
Settlement: The receipt by the Company of immediately
available funds in payment for a Book-Entry
Note and the authentication and issuance of
the Global Security representing such Note
shall constitute "Settlement" with respect to
such Note. All orders accepted by the Company
will be settled on the third Business Day
pursuant to the timetable for Settlement set
forth below unless the Company and the
purchaser agree to Settlement on another day
which shall be no earlier than the next
Business Day following the date of sale.
Settlement Procedures: Settlement Procedures with regard to each
Book-Entry Note sold by the Company through
an Agent, as agent, shall be as follows:
(a) Such Agent will advise the Company by
telephone (and will confirm in writing on the
same date) of the following settlement
information:
(i) Principal amount.
(ii) Stated maturity.
(iii) In the case of a Fixed Rate Book-Entry
Note, the interest rate and if such Note
is an Amortizing Note, the interest rate
and Amortization Schedule, or in the
case of Floating Rate Book-Entry Note,
the initial interest rate (if known at
such time), base rate, index maturity,
interest reset period, interest reset
dates, spread or spread multiplier (if
any); minimum interest rate (if any) and
maximum interest rate (if any), interest
payment period and interest payment
dates and any other information
necessary to complete such Note.
(iv) Redemption provisions, if any.
(v) Repayment provisions, if any.
(vi) Settlement date.
(vii) Sale date.
B-14
<PAGE>
<PAGE>
(viii) Price.
(ix) Agent's Commission, determined as
provided in Section I(a) of the
Distribution Agreement among the
Company, the Guarantor and such Agent.
(x) Whether the Note is an original issue
discount note, and if it is an original
issue discount note, the total amount of
original issue discount ("OID"), the
yield to maturity and the initial
accrual period OID.
(xi) Net Proceeds to the Company.
(b) The Company will assign a CUSIP number to
the Global Security representing such Note
and then advise CMB by telephone or
electronic transmission (confirmed in writing
at any time on the same date) of the
information set forth in Settlement Procedure
"(a)" above, such CUSIP number and the name
of such Agent. The Company will also notify
the Agent of such CUSIP number by telephone
as soon as practicable. Each such
communication by the Company shall constitute
a representation and warranty by the Company
to CMB and each Agent that (i) such Note is
then, and at the time of issuance and sale
thereof will be, duly authorized for issuance
and sale by the Company, (ii) such Note, and
the Global Security representing such Note,
will conform with the terms of the Indenture
pursuant to which such Note and Global
Security are issued and (iii) upon
authentication and delivery of such Global
Security, the aggregate initial offering
price of all securities sold pursuant to the
Registration Statement (as defined in the
Distribution Agreement) (including the Notes)
will not exceed $6 billion or the equivalent
thereof in one or more currencies (except for
securities represented by, authenticated and
delivered in exchange for or in lieu of
securities pursuant to Sections 2.08 and 2.09
of the Indenture).
(c) CMB will enter a pending deposit message
through DTC's Participant Terminal System,
providing the
B-15
<PAGE>
<PAGE>
following settlement information to DTC, such
Agent and Standard & Poor's Corporation:
(i) The information set forth in Settlement
Procedure "(a)".
(ii) Identification as a Fixed Rate
Book-Entry Note and whether such Note is
an Amortizing Note (by an appropriate
notation in the comments field of DTC's
Participant Terminal System) or a
Floating Rate Book-Entry Note.
(iii) Initial interest payment date for such
Note, number of days by which such date
succeeds the related Record Date (which,
in the case of Floating Rate Notes which
reset daily or weekly, shall for DTC
purposes be the date five calendar days
immediately preceding the applicable
Interest Payment Date and, in the case
of all other Notes, shall be the Record
Date as defined in the Note), and, if
known, the amount of interest payable on
such Interest Payment Date.
(iv) The interest payment period.
(v) CUSIP number of the Global Security
representing such Note.
(vi) The Participant account numbers
maintained by DTC on behalf of the
Agents and CMB.
(d) CMB will complete such Note, stamp the
appropriate legend as instructed by the
Company in accordance with DTC procedures, if
not already set forth thereon, and
authenticate the Global Security representing
such Note.
(e) DTC will credit such Note to CMB's
participant account at DTC.
(f) CMB will enter an SDFS deliver order
through DTC's Participant Terminal System
instructing DTC to (i) debit such Note to
CMB's participant account and credit such
Note to such Agent's
B-16
<PAGE>
<PAGE>
participant account and (ii) debit such
Agent's settlement account and credit CMB's
settlement account for an amount equal to the
price of such Note less such Agent's
commission. The entry of such a deliver order
shall constitute a representation and
warranty by CMB to DTC that (a) the Global
Security representing such Book-Entry Note
has been issued and authenticated and (b) CMB
is holding such Global Security pursuant to
the Medium Term Note Certificate Agreement
between CMB and DTC.
(g) Such Agent will enter an SDFS deliver
order through DTC's Participant Terminal
System instructing DTC (i) to debit such Note
to such Agent's participant account and
credit such Note to the participant accounts
of the Participants with respect to such Note
and (ii) to debit the settlement account of
such Participant and credit the settlement
account of such Agent for an amount equal to
the price of such Note.
(h) Transfers of funds in accordance with
SDFS deliver orders described in Settlement
Procedures "(f)" and "(g)" will be settled in
accordance with SDFS operating procedures in
effect on the settlement date.
(i) CMB, upon confirming receipt of such
funds, will credit or wire transfer to the
account of the Company maintained at The
Chase Manhattan Bank, New York, New York, in
funds available for immediate use in the
amount transferred to CMB in accordance with
Settlement Procedure.
(j) The Agent will confirm the purchase of
such Note to the purchaser either by
transmitting to the Participants with respect
to such Note a confirmation order or orders
through DTC's institutional delivery system
or by mailing a written confirmation to such
purchaser.
Settlement Procedures
Timetable: For orders of Book-Entry Notes solicited by
an Agent, as agent, and accepted by the
Company for Settlement on the first Business
Day after the sale
B-17
<PAGE>
<PAGE>
date, Settlement Procedures "(a)" through
"(j)" set forth above shall be completed as
soon as possible but no later than the
respective times (New York City time) set
forth below:
Settlement Procedure: Time
(a) 11:00 A.M. on the sale date
(b) 12:00 Noon on the sale date
(c) 2:00 P.M. on the sale date
(d) 9:00 A.M. on settlement date
(e) 10:00 A.M. on settlement date
(f)-(g) 2:00 P.M. on settlement date
(h) 4:45 P.M. on settlement date
(i)-(j) 5:00 P.M. on settlement date
If a sale is to be settled more than one
Business Day after the sale date, Settlement
Procedures "(a)", "(b)" and "(c)" shall be
completed as soon as practicable but no later
than 11:00 A.M., 12 Noon and 2:00 P.M.,
respectively, on the first Business Day after
the sale date. If the initial interest rate
for a Floating Rate Book-Entry Note has not
been determined at the time that Settlement
Procedure "(a)" is completed, Settlement
Procedures "(b)" and "(c)" shall be completed
as soon as such rate has been determined but
no later than 12 Noon and 2:00 P.M.,
respectively, on the second Business day
following the trade date. Settlement
Procedure "(h)" is subject to extension in
accordance with any extension of Fedwire
closing deadlines and in the other events
specified in the SDFS operating procedures in
effect on the settlement date.
If Settlement of a Book-Entry Note is
rescheduled or cancelled, by no later than
2:00 P.M. on the Business Day preceding the
settlement date, the Company will instruct
CMB to deliver to DTC, through DTC's
Participant Terminal System, a cancellation
message to such effect. (CMB will enter such
message by no later than 4:00 P.M. on such
Business Day.)
B-18
<PAGE>
<PAGE>
Failure to Settle: If CMB fails to enter an SDFS deliver order
with respect to a Book-Entry Note pursuant to
Settlement Procedure "(f)", CMB may deliver
to DTC, through DTC's Participant Terminal
System, as soon as practicable a withdrawal
message instructing DTC to debit such Note to
CMB's participant account. DTC will process
the withdrawal message, provided that CMB's
participant account contains a principal
amount of the Global Security representing
such Note that is at least equal to the
principal amount to be debited. If a
withdrawal message is processed with respect
to all the Book-Entry Notes represented by a
Global Security, the Trustee will mark such
Global Security "cancelled" and make
appropriate entries in the Trustee's records.
The CUSIP number assigned to such Global
Security shall, in accordance with CUSIP
Service Bureau procedures, be cancelled and
not immediately reassigned. If a withdrawal
message is processed with respect to less
than the entire principal amount of a Global
Security, CMB will exchange such Global
Security for two Global Securities, one of
which shall represent the principal amount of
such Global Security to which the withdrawal
message relates and shall be cancelled
immediately after issuance and the other of
which shall represent the remaining principal
amount previously represented by the
surrendered Global Security and shall bear
the CUSIP number of the surrendered Global
Security.
If the purchase price for any Book-Entry Note
is not timely paid to the Participants with
respect to such Note by the beneficial
purchaser thereof (or a person, including an
indirect participant in DTC, acting on behalf
of such purchaser), such Participants and, in
turn, the Agent for such Note may enter SDFS
deliver orders through DTC's Participant
Terminal System reversing the orders entered
pursuant to Settlement Procedures "(f)" and
"(g)", respectively. Thereafter, the Company
will return to CMB the funds transferred in
accordance with Settlement Procedure "(i)"
and will instruct CMB to deliver the
withdrawal message and take
B-19
<PAGE>
<PAGE>
the related actions described in the
preceding paragraph.
Notwithstanding the foregoing, upon any
failure to settle with respect to a
Book-Entry Note, DTC may take any actions in
accordance with its SDFS operating procedures
then in effect. In the event of a failure to
settle with respect to less than the entire
principal amount of a Global Security, the
Trustee will provide, in accordance with
Settlement Procedure "(d)", for the
authentication and issuance of a Global
Security representing the remaining principal
amount to have been represented by such
Global Security and will make appropriate
entries in its records.
PART III: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
Currencies: Certificated Notes will be denominated in
U.S. dollars or in such other currency or
currency unit as specified in the Prospectus
(thc "Specified Currency").
Denominations: Unless otherwise specified in the applicable
Pricing Supplement, the denomination of any
Certified Notes denominated in U.S. dollars
will be an integral multiple of $1,000.
Unless otherwise specified in the
applicable Pricing Supplement, Certificated
Notes denominated in a currency other than
U.S. dollars will be issued in increments of
such currency approximately equal to
U.S.$1,000 based upon the noon buying rate in
New York City for cable transfers of such
currency, as determined by the Federal
Reserve Bank of New York on the Business
Day immediately preceding the trade date for
such Notes, rounded to the nearest
increment of 1,000 units of such currency.
In the case of Euros, unless otherwise
specified in the applicable Pricing
Supplement, the currency equivalent will be
based upon the rate of exchange determined
by the Commission of the European
Communities, or any successor, as published
in the Official Journal of the European
Communities, or any successor publication,
on the Business Day immediately preceding
the trade date for such Notes rounded to
the nearest increment of 1,000 units of such
currency.
Registration: Certificated Notes will be issued in fully
registered form.
Interest Payments: Each Certificated Note which is a Fixed Rate
Note will bear interest or, in the case of
Certificated Amortizing Notes, principal and
interest, from the date of issue at the
annual rate stated on the face thereof,
payable unless otherwise specified in the
applicable Pricing Supplement semi-annually
on May 15 and November 15 of each year, and
at maturity or, in the case of Certificated
Amortizing Notes, unless otherwise specified
in the applicable Pricing Supplement,
semi-annually on May 15 and November 15 of
each year, or quarterly on February 15, May
15, August 15 and November 15 of each year
and at maturity subject to certain
exceptions, and each Certificated Note which
is a
B-20
<PAGE>
<PAGE>
Floating Rate Note will bear interest as
determined in the manner set forth on the
face thereof, payable on the date or dates
set forth on the face thereof and will have
the record dates as set forth in the Note.
Interest or, in the case of a Certificated
Amortizing Note, principal and interest, will
be payable to the person in whose name the
Certificated Note is registered at the close
of business on the record date next preceding
the interest payment date; provided, however,
that (i) interest payable at maturity
(whether or not the maturity date is an
interest payment date) will be payable to the
person to whom principal shall be payable,
and (ii) the first payment of interest on any
Certificated Note originally issued between a
record date and an interest payment date will
be made on the interest payment date
following the next succeeding Record Date to
the registered holder on such next succeeding
Record Date of such Certificated Note.
The date of issue of each Certificated Note
will be the date of its authentication, as
provided in the Indenture. The date of
authentication of each Certificated Note will
be the settlement date. Unless otherwise
specified in the applicable Pricing
Supplement, interest (including payments for
partial periods) on Fixed Rate Certificated
Notes will be calculated on the basis of a
360-day year of twelve 30-day months and
interest on Floating Rate Certificated Notes
will be determined by the Company and the
Purchaser thereof in accordance with the
provisions of the Prospectus. Except as
otherwise set forth in the Prospectus, all
interest payments and in the case of a
Certificated Amortizing Note, principal and
interest payments (excluding interest
payments made on a date of maturity) will be
made by check and mailed to the person
entitled thereto as provided above.
On the fifth business day immediately
preceding each interest payment date, the
Paying Agent will advise the Company of the
aggregate amount of interest to be paid on
the Certificated Notes (other than
Certificated Amortizing Notes) theretofore
issued on such interest payment date and the
B-21
<PAGE>
<PAGE>
currency or currency units in which such
interest payments are to be made. The Paying
Agent will provide separate written notice to
the Company specifying the aggregate amount
of principal and interest to be paid on the
Certificated Amortizing Notes on the
following interest payment date (other than
at maturity or earlier redemption or
repayment). The Paying Agent will provide
monthly to the Company's Treasury Department
a list of the principal and interest to the
extent ascertainable to be paid on the Notes
(including Amortizing Notes) maturing in the
next succeeding month.
Settlement: The receipt of immediately available funds by
the Company in payment for a Certificated
Note and the authentication and issuance of
such Certificated Note shall, with respect to
such Certificated Note, constitute
"Settlement." All orders accepted by the
Company will be settled on the next business
day pursuant to the timetable for Settlement
set forth below unless the Company and the
purchaser agree to Settlement on a later
date; provided, however, that in the case of
a delayed Settlement the Company will notify
CMB at least 24 hours prior to the time of
Settlement.
Settlement Procedures: Settlement Procedures with regard to each
Certificated Note sold by an Agent as agent
shall be as follows:
(a) Such Agent will advise the Company by
telephone or facsimile of the following
settlement information:
(i) Exact name in which Certificated
Note is to be registered.
(ii) Exact address of the registered
owner and address for payment of
principal and interest.
(iii) Taxpayer identification number of
the registered owner.
(iv) Principal amount of the
Certificated Note.
B-22
<PAGE>
<PAGE>
(v) Currency or currency unit.
(vi) Interest rate and, in the case of a
Fixed Rate Certificated Note,
whether such Note is an Amortizing
Note, and, if so, the Amortization
Schedule.
(vii) Base Rate.
(viii) Index maturity.
(ix) Initial interest rate.
(x) Interest Reset Period.
(xi) Interest Reset Dates.
(xii) Interest Payment Periods.
(xiii) Interest Payment Dates.
(xiv) Redemption provisions, if any.
(xv) Repayment provisions, if any.
(xvi) Whether the Note is an original
issue discount note and if it is an
original issue discount note, the
total amount of original issue
discount ("OID"), the yield to
maturity and the initial accrual
period OID.
(xvii) Maximum interest rate.
(xviii) Minimum interest rate.
(xix) Spread or spread multiplier.
(xx) Date of Certificated Note.
(xxi) Settlement date.
(xxii) Maturity date.
(xxiii) Agent's commission.
(xxiv) Net proceeds to the Company.
(xxv) Minimum denominations including the
U.S. dollar equivalent thereof if
denominated in other than U.S.
dollars.
(xxvi) Calculation Agent.
(xxvii) All other items to be specified in
any Note.
B-23
<PAGE>
<PAGE>
(b) The Company will provide CMB with the
information listed in (a) (which, if
provided orally, will be promptly
confirmed in writing).
(c) CMB will complete and distribute the
preprinted 4-ply Certificated Note
packet containing the following
documents in forms approved by the
Company, the Agents and the Trustee:
(i) Note with customer confirmation.
(ii) Stub 1 - For Agent.
(iii) Stub 2 - For Company.
(iv) Stub 3 - For CMB.
(d) CMB will deliver the Certificated Note
(with the confirmation) and Stub 1 to
the Agent or the Agent's agent.
(e) The Agent will make payment to the
Company in immediately available funds
equal to the principal amount of the
Certificated Note less any applicable
commission or discount.
(f) The Agent or the Agent's agent will
deliver the Certificated Note (with
confirmation) to the customer against
payment in immediately available funds.
(g) The Agent or the Agent's agent will
obtain the acknowledgment of receipt of
the Certificated Note by the customer
through completion of Stub 1.
(h) CMB will send by first class mail Stub 2
to the Company. Periodically, CMB will
also send to the Company and the Trustee
a statement setting forth the principal
amount of the Certificated Notes
outstanding as of that date after giving
effect to such transaction and all other
orders of which the Company has advised
CMB but which have not yet been settled.
B-24
<PAGE>
<PAGE>
Settlement Procedures
Timetable: For offers accepted by the Company,
Settlement Procedures "(a)" through "(h)" set
forth above shall be completed on or before
the respective times to the extent possible
(New York City time) set forth below:
Settlement Procedure: Time
(a) (i-iii) 11:00 A.M. on day prior to settlement.
(a) (iv-xx) 5:00 P.M. on day of order
(b) 1:00 P.M. on day prior to settlement.
(c)-(d) 12:00 P.M. on day of settlement
(e)-(f) 3:00 P.M. on day of settlement
(g)-(h) 4:30 P.M. on day of settlement
Fails: For orders received by an Agent, in the event
that a purchaser shall fail to accept
delivery of and make payment for a
Certificated Note, such Agent will notify
CMB, and the Company, by telephone, confirmed
in writing, and return the Certificated Note
to CMB. Upon receipt of the Certificated Note
by CMB, the Company will immediately credit
an account designated by such Agent in an
amount of immediately available funds equal
to the amount previously credited in respect
of the Note. Such credits will be made on the
settlement date, if possible, and in any
event not later than the business day
following the settlement date. The Agent
shall deliver such Certificated Note to CMB
as soon as practicable. If such fail shall
have occurred for any reason other than the
failure of the Agent to provide the necessary
information to the Company as described above
for Settlement or to provide a confirmation
to the purchaser within a reasonable period
of time as described above, the Company will
reimburse the Agent on an equitable basis for
its loss of the use of funds during the
period when such funds were credited to the
account of the Company.
Immediately upon receipt of the Certificated
Note in respect of which the fail occurred,
CMB will make appropriate entries in their
records and CMB will deliver such
Certificated Notes to the Trustee for
cancellation in accordance with the
Indenture.
B-25
<PAGE>
<PAGE>
Maturity: At maturity, the principal amount of each
Certificated Note together with any accrued,
but unpaid, interest will be payable in
immediately available funds provided that the
Paying Agent receives the Certificated Note,
and appropriate information in time to make
payments in such funds in accordance with its
normal procedures. Certificated Notes
presented to the Paying Agent or the Trustee
will be cancelled and disposed of by the
Trustee.
Manner of Payment: The total amount of any principal and
interest due on Certificated Notes on any
interest payment date or at maturity shall be
paid by the Company to the Paying Agent in
immediately available funds as of 9:30 A.M.
(New York City time) on such date. The
Company will make such payment on such
Certificated Notes by wire transfer to the
Paying Agent or by instructing the Paying
Agent to withdraw funds from an account
maintained by the Company at the Paying
Agent. The Company will confirm such
instructions in writing to the Paying Agent.
Authenticity of Signature The Agents will have no obligation or
liability to the Company or the Trustee in
respect of the authenticity of the signature
of any officer, employee or agent of the
Company or the Trustee on any Certificated
Note.
Calculation of Interest: The provisions
set forth under "Calculation of Interest" in
Part II of these Administrative Procedures
shall apply mutatis mutandi with respect to
Certificated Notes.
B-26
<PAGE>
<PAGE>
FORM OF INDENTURE
================================================================================
AT&T CAPITAL CORPORATION,
NEWCOURT CREDIT GROUP INC.
AND
THE CHASE MANHATTAN BANK,
AS TRUSTEE
INDENTURE
DATED AS OF MARCH 1, 1999
================================================================================
<PAGE>
<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............9
Section 1.04 Rules of Construction........................................9
ARTICLE II THE SECURITIES..............................................10
Section 2.01 Issuable in Series..........................................10
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.......................................15
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 Rep1acement Securities .....................................17
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.................................22
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....................25
Section 4.03 Limitations on Liens........................................26
Section 4.04 Statement as to Compliance; Notice of Certain Events of
Default................................ ...............29
</TABLE>
-i-
<PAGE>
<PAGE>
<TABLE>
<S> <C> <C>
ARTICLE V CONSOLIDATION, MERGER, SALE OR CONVEYANCE...................29
Section 5.01 Consolidation or Merger, etc., on Certain Terms.............29
Section 5.02 Successsor Substituted .....................................30
Section 5.03 Opinion of Counsel to Trustee...............................30
ARTICLE VI REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON
EVENT OF DEFAULT............................................31
Section 6.01 Events of Default; Acceleration of Maturity; Waiver of
Default................................................31
Section 6.02 Collection of Indebtedness by Trustee; Trustee May Prove
Debt...................................................33
Section 6.03 Application of Proceeds.....................................35
Section 6.04 Limitation on Suits by Securityholders......................36
Section 6.05 Powers and Remedies Cumulative; Delay or Omission Not
Waiver of Default......................................36
Section 6.06 Control by Securityholders; Waiver of Defaults..............37
Section 6.07 Right of Court to Require Filing of Undertaking to Pay
Costs..................................................37
ARTICLE VII TRUSTEE.....................................................38
Section 7.01 Duties of Trustee...........................................38
Section 7.02 Rights of Trustee...........................................39
Section 7.03 Individual Rights of Trustee................................39
Section 7.04 Trustee Disclaimer .........................................39
Section 7.05 Notice of Default...........................................39
Section 7.06 Reports by Trustee to Holders...............................39
Section 7.07 Compensation and Indemnity..................................40
Section 7.08 Replacement of Trustee......................................40
Section 7.09 Successor Trustee, Agents by Merger, etc....................42
Section 7.10 Eligibility; Disqualification ..............................42
Section 7.11 Preferential Collection of Claims Against Company...........42
Section 7.12 Authenticating Agent .......................................42
ARTICLE VIII SATISFACTION AND DISCHARGE OF INDENTURE;
DEFEASANCE; UNCLAIMED MONIES................................44
Section 8.01 Satisfaction and Discharge of Indenture.....................44
Section 8.02 Defeasance upon Deposit of Moneys or U.S. Government
Obligations............................................45
Section 8.03 Application of Moneys Deposited.............................46
Section 8.04 Repayment of Moneys Held....................................46
Section 8.05 Return of Moneys Unclaimed for Two Years; Return of
Additional Monies and U.S. Government Obligations......47
Section 8.06 Indemnity for Government Obligations........................47
</TABLE>
-ii-
<PAGE>
<PAGE>
<TABLE>
<S> <C> <C>
ARTICLE IX AMENDMENTS AND WAIVERS......................................48
Section 9.01 Without Consent of Holders..................................48
Section 9.02 With Consent of Holders.....................................48
Section 9.03 Compliance with Trust Indenture Act.........................49
Section 9.04 Revocation and Effect of Consents...........................49
Section 9.05 Notation on or Exchange of Securities.......................49
Section 9.06 Trustee Protected ..........................................49
ARTICLE X MISCELLANEOUS...............................................50
Section 10.01 Trust Indenture Act Controls................................50
Section 10.02 Notices.....................................................50
Section 10.03 Communication by Holders with Other Holders.................51
Section 10.04 Certificate and Opinion as to Conditions Precedent..........51
Section 10.05 Statements Required in Certificate or Opinion...............51
Section 10.06 Legal Holidays..............................................52
Section 10.07 Governing Law ..............................................52
Section 10.08 No Adverse Interpretation of Other Agreements...............52
Section 10.09 No Recourse Against Others..................................52
Section 10.10 When Treasury Securities Disregarded........................52
Section 10.11 Rules by Trustee, Paying Agent, Registrar, Record Dates.....52
Section 10.12 Execution in Counterparts...................................52
Section 10.13 Securities in a Foreign Currency............................53
Section 10.14 Judgment Currency...........................................53
Section 10.15 Forum Selection and Consent to Jurisdiction.................54
SIGNATURE.......................................................................55
</TABLE>
EXHIBIT A -- FORM OF PARENT GUARANTEE
-iii-
<PAGE>
<PAGE>
THIS INDENTURE, dated as of March 1, 1999, is entered into by and among
AT&T Capital Corporation, a corporation duly organized and validly existing
under the laws of the State of Delaware (together with its successors and
assigns, the "Company"), Newcourt Credit Group Inc., a corporation duly
organized and validly existing under the laws of Ontario, Canada (together with
its successors and assigns, the "Guarantor") and The Chase Manhattan Bank, a
corporation duly organized and validly existing under the laws of the State of
New York (together with its successors and assigns, the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness ("Securities") as herein
provided.
The Guarantor has duly authorized the execution and delivery of this
Indenture to provide for its Parent Guarantee relating to the Securities.
All things necessary to make this Indenture a valid agreement of the
Company and the Guarantor, in accordance with its terms, have been done.
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed as follows for the
equal and ratable benefit of the Holders of the Securities:
ARTICLE 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 Guarantor's credit policies and procedures manual
approved from time to time by the Board of Directors of the Guarantor.
<PAGE>
<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 AT&T Capital Corporation 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>
<PAGE>
"Consolidated Net Tangible Assets" means, at the date of any determination,
the total assets appearing on the consolidated balance sheet of the Guarantor
and its Restricted Subsidiaries as at the end of the most recent fiscal quarter
of the Guarantor for which such balance sheet is available, prepared in
accordance with generally accepted accounting principles, less (a) all current
liabilities (obligations whose liquidation is reasonably expected to occur
within twelve months), (b) investments in and advances to Subsidiaries 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 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>
<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 Newcourt Credit Group Inc. 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 Guarantor'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>
<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
Guarantor 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 Guarantor or any Restricted Subsidiary means any
Debt of the Guarantor 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
Guarantor or such Restricted Subsidiary, as the case may be, and which is not a
general obligation of the Guarantor 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 Guarantor, the Company or the Trustee.
-5-
<PAGE>
<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.
"Parent Guarantee" means the agreement of the Guarantor in the form
attached hereto as Exhibit A.
"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 Guarantor or a Restricted Subsidiary,
including Liens existing on such assets at the time of acquisition by the
Guarantor 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 Guarantor
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 Guarantor 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 Guarantor 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
-6-
<PAGE>
<PAGE>
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.
"Restricted Subsidiary" means the Company and each Subsidiary of the
Guarantor 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 Company). For purposes of such
definition, "voting stock" means stock ordinarily having voting power for the
election of directors, whether at all times or only so long as no senior class
of stock has such voting power by reason of any contingency.
"TIA" means the Trust Indenture Act of 1939.
"Trust Indenture Act of 1939" means (except as herein otherwise expressly
provided) the Trust Indenture Act of 1939 (15 U.S.C. "SS""SS" 7aaa-7bbbb), as
amended, as in force at the date of this Indenture as originally executed.
"Trustee" means the party named as such in this Indenture until a successor
replaces it and thereafter means the successor and if, at any time, there is
more than one Trustee, "Trustee"
-7-
<PAGE>
<PAGE>
as used with respect to the Securities of any Series shall mean the Trustee with
respect to that Series.
"Uncertificated Security" or "Uncertificated Securities" means any Security
or Securities which is or are not a Certificated Security or Securities.
"Unregistered Security" means any Security issued hereunder which is not a
Registered Security.
"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.
"U.S. Person" means a citizen, national or resident of the United States, a
corporation, partnership or other entity created or organized in or under the
laws of the United States or any political subdivision thereof, or an estate
whose income from sources without the United States is includible in gross
income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States or a
trust if (i) a court within the United States is able to exercise primary
jurisdiction over the administration of the trust and (ii) one or more United
States persons have the authority to control all substantial decisions of the
trust.
"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>
-8-
<PAGE>
<PAGE>
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.
"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 Guarantor or any entity organized
under the laws of Canada, and in the United States with respect to the
Company 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.
-9-
<PAGE>
<PAGE>
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.
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;
-10-
<PAGE>
<PAGE>
(7) the obligation, if any, of the Company to redeem or purchase
Securities of the Series pursuant to any sinking fund or analogous
provisions or upon the happening of a specified event or at the option of a
Holder thereof and the period or periods within which, the price or prices
at which, and the terms and conditions upon which, Securities of the Series
shall be redeemed or purchased, in whole or in part, pursuant to such
obligation;
(8) if in other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the Series shall be
issuable;
(9) if other than the principal amount thereof, the portion of the
principal amount of Securities of the Series which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section
6.01;
(10) whether Securities of the Series shall be issuable as Registered
Securities or Unregistered Securities (with or without interest coupons),
or both, whether if such Security is a Registered Security such Security
shall be a Certificated Security 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 a person who is
not a U.S. Person in respect of taxes or similar charges withheld or
deducted and, if so, whether the Company will have the option to redeem
such Securities rather than pay such additional amounts;
(12) the form of the Securities (or forms thereof if Unregistered and
Registered Securities shall be issuable in such Series, including such
legends as may be required by United States laws or regulations, the form
of any coupons or temporary global Security which may be issued and the
forms of any certificates which may be required hereunder or under United
States laws or regulations in 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;
-11-
<PAGE>
<PAGE>
(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 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.
-12-
<PAGE>
<PAGE>
(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 delivered hereunder, the form thereof and
the legality, validity, binding effect and enforceability thereof.
If the form and terms 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) the Parent Guarantee 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.
-13-
<PAGE>
<PAGE>
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.
(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 Parent Guarantee on Certificated Securities shall not affect or
impair validity or enforceability of the Parent 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
possessions 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
-14-
<PAGE>
<PAGE>
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 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
-15-
<PAGE>
<PAGE>
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.
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 Guarantor 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
-16-
<PAGE>
<PAGE>
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.
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
-17-
<PAGE>
<PAGE>
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 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.
-18-
<PAGE>
<PAGE>
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.
(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
-19-
<PAGE>
<PAGE>
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 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
-20-
<PAGE>
<PAGE>
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 sixty days advance notice to the Trustee
before the redemption date or such lesser notice as shall be satisfactory to the
Trustee.
Section 3.02. Selection of Securities to be Redeemed. Upon notice that less
than all the Securities of a Series are to be redeemed, the Trustee shall
thereupon select the Securities of the Series to be redeemed in such manner as
the Trustee shall deem fair and appropriate, such selection to be made from
Securities of the Series that are outstanding and that have not previously been
called for redemption. Securities of the Series and portions of them selected by
the Trustee shall be in amounts of $1,000 or integral multiples of $1,000 or,
with respect to Securities of any Series issuable in other denominations
pursuant to Section 2.02(a)(8), in amounts equal to the minimum principal
denomination for each such Series and integral multiples thereof. Provisions of
the Indenture that apply to Securities of a Series called for redemption also
apply to portions of Securities of that Series called for redemption. The
Trustee shall promptly notify the Company in writing of the Securities selected
for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
Section 3.03. Notice of Redemption. (a) At least 30 days but not more than
90 days before a redemption date, the Company shall mail a notice of redemption
by first-class mail to each Holder of Registered Securities that are to be
redeemed.
(b) If Unregistered Securities are to be redeemed, notice of redemption
shall be published in an Authorized Newspaper in the City of New York, and if
such Securities to be redeemed are listed on the London Stock Exchange, London,
and, if such Securities to be redeemed are listed on the Luxembourg Stock
Exchange, Luxembourg, once in each of four
-21-
<PAGE>
<PAGE>
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).
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.
-22-
<PAGE>
<PAGE>
Upon surrender of a Certificated Security that is redeemed in part, the
Company shall issue and the Trustee shall authenticate for the Holder of that
Security a new Security or Securities of the same Series, the same form and the
same date of maturity, interest rate, and original issue date in authorized
denominations equal in aggregate principal amount to the unredeemed portion of
the Security surrendered.
Section 3.06. Mandatory and Optional Sinking Funds. The minimum amount of
any sinking fund payment provided for by the terms of any Series of Securities
is herein referred to as a "mandatory sinking fund payment," and any payment in
excess of such minimum amount provided for by the terms of any Series of
Securities is herein referred to as an "optional sinking fund payment." The date
on which a sinking fund payment is to be made is herein referred to as the
"sinking fund payment date."
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any Series of Securities in cash, the Company may at its option
(a) deliver to the Trustee Securities of such Series theretofore purchased or
otherwise acquired (except upon redemption pursuant to the mandatory sinking
fund) by the Company or receive credit for Securities of such Series (not
previously so credited) theretofore purchased or otherwise acquired (except as
aforesaid) by the Company and delivered to the Trustee for cancellation pursuant
to Section 2.12, (b) receive credit for optional sinking fund payments (not
previously so credited) made pursuant to this Section, or (c) receive credit for
Securities of such Series (not previously so credited) redeemed by the Company
through any optional redemption provision contained in the terms of such Series.
Securities so delivered or credited shall be received or credited by the Trustee
at the sinking fund redemption price specified in such Securities.
On or before the sixtieth day next preceding each sinking fund payment date
for any Series, the Company will deliver to the Trustee a written statement
signed by an authorized Officer of the Company (a) specifying the portion of the
mandatory sinking fund payment to be satisfied by payment of cash and the
portion to be satisfied by credit of Securities of such Series, (b) stating that
none of the Securities of such Series has theretofore been so credited, (c)
stating that no defaults in the payment of interest or Events of Default with
respect to such Series have occurred (which have not been waived or cured) and
are continuing, (d) stating whether or not the Company intends to exercise its
right to make an optional sinking fund payment with respect to such Series and,
if so, specifying the amount of such optional sinking fund payment which the
Company intends to pay on or before the next succeeding sinking fund payment
date, and (e) specifying such sinking fund payment date. Any Securities of such
Series to be credited and required to be delivered to the Trustee in order for
the Company to be entitled to credit therefor as aforesaid which have not
theretofore been delivered to the Trustee shall be delivered for cancellation
pursuant to Section 2.12 to the Trustee with such written statement (or
reasonably promptly thereafter if acceptable to the Trustee). Such written
statement shall be irrevocable and upon its receipt by the Trustee the Company
shall become unconditionally obligated to make all the cash payments or payments
therein referred to, if any, on or before the next succeeding sinking fund
payment date. Failure of the Company, on or before any such sixtieth day, to
deliver such written statement and Securities specified in this paragraph, if
any, shall not constitute a default but shall constitute, on and as of such
date, the irrevocable election of the Company (i) that the mandatory sinking
fund payment for such Series due on the next
-23-
<PAGE>
<PAGE>
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.
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
-24-
<PAGE>
<PAGE>
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 who are not
U.S. Persons without withholding for or on account of any tax, assessment or
other governmental charge described in the Securities of the Series. If any such
withholding shall be required, then such 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. 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 Guarantor is
required to file the same with the SEC copies of the annual reports and of
the information, documents and other reports (or copies of such portions of
any of the
-25-
<PAGE>
<PAGE>
foregoing as the SEC may from time to time by rules and regulations
prescribe) which the Guarantor may be required to file with the SEC
pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934, as amended; or, if the 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 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, in accordance with the rules and regulations
prescribed from time to time by the SEC, 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
(d) in the case of Uncertificated Securities for which the Trustee
does not act as Registrar, to file with the Trustee at the time it files
the annual or quarterly reports required to be filed pursuant to paragraph
(a) hereof or at such other times as the Trustee may reasonably request, a
statement of the aggregate amount of such Uncertificated Securities issued
and outstanding hereunder.
Section 4.03. Limitations on Liens. The Guarantor 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 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 Guarantor covenants that if and when any such Lien is created,
the Securities of each Series will be so secured
-26-
<PAGE>
<PAGE>
thereby. Notwithstanding the foregoing, this Section shall neither limit nor be
deemed or construed as limiting the right of the Guarantor 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 Guarantor or any Restricted
Subsidiary on a timely basis in good faith and in appropriate proceedings,
and the Guarantor or such Restricted Subsidiary has established adequate
reserves therefor in accordance with GAAP on the books of the Guarantor 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 Guarantor 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 Guarantor 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 Guarantor 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
Guarantor 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 the Guarantor and the Restricted Subsidiaries;
(e) Liens securing Debt of a Restricted Subsidiary to the Guarantor or
to another Restricted Subsidiary;
(f) Purchase Money Obligations;
-27-
<PAGE>
<PAGE>
(g) Liens on Acquired Financing Assets to secure Secured Subordinated
Debt of the Guarantor or the Restricted Subsidiaries arising in connection
with the acquisition of such Acquired Financing Assets;
(h) Liens securing Non-Recourse Debt of the Guarantor 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
Guarantor 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 Guarantor 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;
(m) Liens on Accounts Receivable of the Guarantor or any Restricted
Subsidiary arising from or in connection with transactions entered into by
the Guarantor or such Restricted Subsidiary after December 15, 1998 or on
Accounts Receivable acquired by the Guarantor 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 Guarantor or such Restricted Subsidiary in
connection with the discounting, sale, assignment, transfer or other
disposition of such
-28-
<PAGE>
<PAGE>
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 Guarantor 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.
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
-29-
<PAGE>
<PAGE>
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 Person or the successor 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 the Parent 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 Person, and, if applicable, execution and delivery of a Guaranty
substantially in the form of the Parent Guarantee, and (ii) the Company, the
Guarantor or such successor 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 successor 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 the Parent 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.
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
-30-
<PAGE>
<PAGE>
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 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,
-31-
<PAGE>
<PAGE>
custodian, trustee, sequestrator (or similar official) of the Company or
the Guarantor or for all or substantially all of its property or make any
general assignment for the benefit of creditors; or the Company or the
Guarantor shall admit in writing its inability to pay its debts generally
as they become due; or
(f) any other Event of Default provided in the applicable resolution
of the Board of Directors or in the supplemental indenture under which such
Series of Securities is issued, as the case may be, as contemplated by
Section 2.02;
then and in each and every such case, unless the principal of all the Securities
of that Series shall have already become due and payable, either the Trustee or
the Holders of not less than twenty-five percent in aggregate principal amount
of the Securities of that Series then outstanding hereunder, by notice in
writing to the Company and the Guarantor (and to the Trustee if given by
Securityholders), may declare the principal (or, if the Securities of that
Series are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of that Series) of all the Securities of
that Series to be due and payable immediately, and upon any such declaration the
same (or, in the case of Original Issue Discount Securities, such specified
amount) shall become and shall be immediately due and payable, anything in this
Indenture, in any supplemental indenture under which the Securities of that
Series have been issued or in the Securities of that Series contained to the
contrary notwithstanding. This provision, however, is subject to the condition
that if, at any time after the principal of the Securities of that Series (or,
if the Securities of that Series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of that Series)
shall have been so declared due and payable, and before any judgment or decree
for the payment of the moneys due shall have been obtained or entered as
hereinafter provided, the Company or the Guarantor shall pay, or shall deposit
with the Trustee a sum sufficient to pay, all matured installments of interest
upon all the Securities of that Series and the principal of any and all
Securities of that Series which shall have become due otherwise than by
declaration, with interest upon such principal and (to the extent that payment
of such interest is enforceable under applicable law) upon any overdue
installments of interest at the same rate of interest or Yield to Maturity (in
the case of Original Issue Discount Securities) specified in the Securities of
that Series, to the date of such payment or deposit, and such amount as shall be
sufficient to cover reasonable compensation to the Trustee, its agents and
counsel, and all other expenses and liabilities incurred, and all advances made,
by the Trustee except as a result of its negligence or bad faith, and if any and
all defaults under this Indenture with respect to the Securities of that Series,
other than the nonpayment of the principal of and interest on the Securities of
that Series which shall have become due by declaration, shall have been
remedied; then and in every such case the Holders of a majority in aggregate
principal amount of the Securities of that Series then outstanding by written
notice to the Company, the Guarantor and to the Trustee may waive all defaults
and rescind and annul such declaration and its consequences; but no such waiver
or 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
-32-
<PAGE>
<PAGE>
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
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
-33-
<PAGE>
<PAGE>
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 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
-34-
<PAGE>
<PAGE>
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 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.
-35-
<PAGE>
<PAGE>
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 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
-36-
<PAGE>
<PAGE>
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 forbearances 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 forbearances are unduly
prejudicial to such Holders. Nothing in this Indenture shall impair the right of
the Trustee in its discretion to take any action deemed proper by the Trustee
and which is not inconsistent with such direction or directions by
Securityholders. Prior to the declaration of the maturity of the Securities of
any Series as provided in Section 6.01, the Holders of a majority in aggregate
principal amount of the Securities of such Series at the time outstanding may on
behalf of the Holders of all the Securities of such Series waive any past
default hereunder with respect to such Series and its consequences, except a
default in the payment of the principal of or interest on any of the Securities
of such Series. In the case of any such waiver, the Company, the Guarantor, the
Trustee and the holders of the Securities of such Series shall be restored to
their former positions and rights hereunder, respectively; but no such waiver
shall extend to any subsequent or other default or impair any right consequent
thereon.
Section 6.07. Right of Court to Require Filing of Undertaking to Pay Costs.
All parties to this Indenture agree, and each Holder of any Security or coupon
appertaining thereto, by such Holder's acceptance thereof shall be deemed to
have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken or omitted by it as Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section 6.07 shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Securityholder, or
group of Securityholders of any Series, holding in the aggregate more than ten
percent in principal amount of the Securities of such Series outstanding, or to
any suit instituted by any Securityholder for the enforcement of the payment of
the principal of or interest on any Security on or after the due date expressed
in such Security.
-37-
<PAGE>
<PAGE>
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.
(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.
-38-
<PAGE>
<PAGE>
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 Section 7.10 and 7.11.
Section 7.04. Trustee Disclaimer. The Trustee makes no representation as to
the validity or adequacy of this Indenture, the Securities or the Parent
Guarantee. It shall not be accountable for the Company's use of the proceeds
from the Securities or for moneys paid over to the Company pursuant to this
Indenture, and it shall not be responsible for any statement in the Securities
other than its certificate of authentication.
Section 7.05. Notice of Default. If a Default occurs and is continuing with
respect to the Securities of any Series and it is known to the Trustee, the
Trustee shall mail to each Holder of a Security of that Series entitled to
receive reports pursuant to Section 4.02(c) (and, if Unregistered Securities of
that Series are outstanding, shall cause to be published at least once in an
Authorized Newspaper in The City of New York, and if such Securities are listed
on the London Stock Exchange, London, and, if such Securities are listed on The
Luxembourg Stock Exchange, Luxembourg) notice of the Default within 90 days
after it occurs. Except in the case of a Default in payment on the Securities of
any Series, the Trustee may withhold the notice if and so long as its Corporate
Trust Committee or a committee of its Responsible Officers in good faith
determines that withholding such notice is in the interests of Securityholders
of that Series.
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""SS" 313(a) (but if no event described in TIA ss. 313(a) has occurred
within the twelve
-39-
<PAGE>
<PAGE>
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.
(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:
-40-
<PAGE>
<PAGE>
(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).
(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
-41-
<PAGE>
<PAGE>
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 Company and The Chase Manhattan Bank (formerly
known as Chemical Bank), as Trustee, the Indenture dated as of June 1, 1992,
as amended between the Company and The Chase Manhattan Bank (formerly known as
Chemical Bank), as Trustee the Indenture dated as of July 1, 1993, as amended,
between the Company 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, the Indenture dated as
of December 15, 1998 among the Guarantor and The Chase Manhattan Bank, as
Trustee and the Indenture dated as of February 15, 1999 among the Company, the
Guarantor 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.
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
-42-
<PAGE>
<PAGE>
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.
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:
-43-
<PAGE>
<PAGE>
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 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
-44-
<PAGE>
<PAGE>
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;
(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
-45-
<PAGE>
<PAGE>
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
Parent Guarantee relating thereto and to have satisfied all the obligations
under this Indenture relating to the Securities of such Series and coupons
appertaining thereto (and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging the same), except (A) the rights of
holders of the Securities of such Series and coupons appertaining thereto to
receive, from the trust fund described in clause (1) above, payment of the
principal of and the interest on such Securities of such Series and coupons when
such payments are due; (B) the Company's obligations with respect to such
Securities of such Series under Sections 2.04, 2.08, 2.09, 2.11 and 8.03; and
(C) the rights, powers, trusts, duties and immunities of the Trustee hereunder.
This Indenture may be Discharged pursuant to this Section 8.02 with respect
to Securities of a Series which have a floating or variable rate of interest
that cannot exceed a specified or determinable maximum rate of interest by
deposit, in accordance with clause (1) of this Section 8.02, with respect to the
interest payments required to be made on the outstanding Securities of such
Series of money and/or U.S. Government Obligations sufficient (determined in
accordance with clause (1) of this Section 8.02) to pay and discharge each
installment of interest on the outstanding Securities of such Series at the
applicable specified or determined maximum rate of interest thereon on the dates
such installments of interest are due and the satisfaction of all other
requirements of this Section 8.02.
Section 8.03. Application of Moneys Deposited. All moneys deposited with
the Trustee pursuant to Section 8.01 or 8.02 shall be held in trust and applied
by it to the payment, either directly or through any Paying Agent (including the
Company acting as its own Paying Agent), to the Holders of the particular
Securities of such Series and of coupons appertaining thereto for the payment or
redemption of which such moneys have been deposited with the Trustee, of all
sums due, and to become due thereon for principal and interest.
Section 8.04. Repayment of Moneys Held. In connection with the satisfaction
and discharge of this Indenture with respect to the Securities of any Series,
all moneys then held by
-46-
<PAGE>
<PAGE>
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.
-47-
<PAGE>
<PAGE>
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;
(2) change the rate of or change the time for payment of interest on
any Security;
-48-
<PAGE>
<PAGE>
(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.
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.
-49-
<PAGE>
<PAGE>
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: AT&T Capital Corporation
2 Gatehall Drive
Parsippany, New Jersey 07054
if to the Trustee to: The Chase Manhattan Bank
450 West 33rd Street
New York, New York 10001
Attention: Capital Markets Fiduciary Services
if to the Guarantor to: Newcourt Credit Group Inc.
BCE Place, 181 Bay Street
Suite 3500
Toronto, Ontario, Canada M5J 2T3
(b) The Company, the Guarantor or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
(c) Any notice or communication to Holders of Securities entitled to
received reports pursuant to Section 4.02(c) shall be mailed by first-class mail
to the addresses for Holders of Registered Securities shown on the register kept
by the Registrar and to addresses filed with the Trustee for other Holders.
Failure to so mail a notice or communication or any defect in such notice or
communication shall not affect its sufficiency with respect to other Holders of
Securities of that or any other Series entitled to receive notice.
(d) If a notice or communication is mailed in the manner provided above
within the time prescribed, it is conclusively presumed to have been duly given,
whether or not the addressee receives it.
(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.
-50-
<PAGE>
<PAGE>
(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
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
Section 10.05. Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture (other than statements delivered pursuant to
Section 4.04) shall include:
(1) a statement that the person making such certificate or opinion has
read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such person he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether or not, in the opinion of such person,
such condition or covenant has been complied with.
-51-
<PAGE>
<PAGE>
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 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.
-52-
<PAGE>
<PAGE>
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 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
-53-
<PAGE>
<PAGE>
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.
-54-
<PAGE>
<PAGE>
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
_______________________________________
-55-
<PAGE>
<PAGE>
STATE OF NEW JERSEY )
) SS: Parsippany, NJ
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>
<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 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>
<PAGE>
STATE OF NEW JERSEY )
) SS: Parsippany, NJ
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>
<PAGE>
EXHIBIT A
FORM OF PARENT GUARANTEE
See Exhibit 4J
to the Registration Statement
<PAGE>
<PAGE>
EXHIBIT 4B
[FORM OF MEDIUM-TERM GLOBAL FIXED RATE NOTE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF the DEPOSITORY TRUST COMPANY AND
ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
EXCEPT AS OTHERWISE PROVIDED IN SECTION 2.11 OF THE INDENTURE DESCRIBED
HEREIN, THIS SECURITY MAY BE TRANSFERRED, IN WHOLE BUT NOT IN PART, ONLY TO
THE DEPOSITARY, ANOTHER NOMINEE OF THE DEPOSITARY OR TO A SUCCESSOR DEPOSITARY
OR TO A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
<TABLE>
<S> <C>
REGISTERED REGISTERED
NO. FXR-__________________ CUSIP NO.________________________
</TABLE>
AT&T CAPITAL CORPORATION
MEDIUM-TERM NOTE, SERIES G
(FIXED RATE)
<TABLE>
<S> <C>
Original Issue Date: Initial Optional Redemption Date:
Issue Price: Optional Redemption Price:
Interest Rate: Annual Redemption Price Reduction:
Maturity Date: Optional Repayment Date(s):
Principal Amount: Other Terms:
</TABLE>
AT&T Capital Corporation, a Delaware corporation (herein referred to as
the "Company"), for value received, hereby promises to pay to CEDE & Co. or
registered assigns the principal sum of ____________________________________
Dollars ($__________) 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 [semi-annually on May
15 and November 15] [quarterly on February 15, May 15, August 15 and November
15] (each an "Interest Payment Date") commencing with the Interest Payment Date
immediately following the Original Issue Date shown above (except as provided
below) and on the Maturity Date shown above. 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
<PAGE>
<PAGE>
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 which shall be the [April 30 or October 31] [January 31, April
30, July 31 or October 31] (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, and, if
the Original Issue Date of this Note is between a Record Date and the
corresponding Interest Payment Date, the first payment of interest will be made
on the Interest Payment Date following the next succeeding Record Date to the
person in whose name this Note is registered at the close of business on such
Record Date. 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 by Newcourt
Credit Group Inc. (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>
<PAGE>
IN WITNESS WHEREOF, AT&T Capital Corporation has caused this instrument
to be duly executed.
AT&T CAPITAL CORPORATION
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
-3-
<PAGE>
<PAGE>
[FORM OF 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 March 1, 1999, as
amended (the "Indenture"), among the Company, the Guarantor and The Chase
Manhattan Bank, as Trustee (herein referred to as 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 Holder
(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 Medium-Term Notes, Series G (herein referred to as the "Notes").
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 Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and 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
may 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 office or
agency of the Company referred to above and in the manner and subject to the
limitations provided in the Indenture, Notes may be exchanged
-4-
<PAGE>
<PAGE>
without service charge for a like aggregate principal amount of Notes having the
same maturity, interest rate, redemption provisions, repayment provisions, and
Original Issue Date of other authorized denominations.
Unless the face of this Note indicates that an Optional Redemption Price
is applicable to this Note, this Note may not be redeemed prior to the Maturity
Date. If the face of this Note indicates that an Optional Redemption Price is
applicable to this Note, then this Note may be redeemed at the option of the
Company as a whole, or from time to time in part, on or after the Initial
Optional Redemption Date specified on the face hereof and prior to the Maturity
Date, at the Optional Redemption Price specified on the face hereof (expressed
as a percentage of the principal amount) (subject to reduction as hereinafter
provided), together in each case with accrued interest to the date fixed for
redemption; provided that if the face of this Note indicates that this Note is
subject to an "Annual Redemption Price Reduction," then the Optional Redemption
Price shall decline at each anniversary of the Initial Optional Redemption Date
by the Annual Redemption Price Reduction until the Optional Redemption Price is
100% of such principal amount. Notice of redemption shall be mailed to the
registered Holders of the Notes designated for redemption at their last
registered address not less than 30 nor more than 60 days prior to the date
fixed for redemption, all as provided in the Indenture. In the event of
redemption of this Note in part only, a new Note or Notes for the amount of the
unredeemed portion hereof shall be issued in the name of the Holder hereof upon
the presentation and cancellation hereof.
Unless an Optional Repayment Date or Dates is indicated on the face of
this Note, this Note shall not be subject to repayment at the option of the
Holder prior to the Maturity Date. If an Optional Repayment Date or Dates is
indicated on the face of this Note, this Note may be subject to repayment at the
option of the Holder on the Optional Repayment Date or Dates specified on the
face hereof on the terms set forth herein. On any Optional Repayment Date, this
Note will be repayable in whole or in part in increments of U.S. $1,000 at the
option of the Holder hereof at a price equal to 100% of the principal amount to
be repaid, together with interest hereon payable to the date of repayment. For
this Note to be repaid in whole or in part at the option of the Holder hereof,
the Company must receive at the corporate trust office of the Trustee in the
Borough of Manhattan, The City of New York, at least 30 calendar days but not
more than 45 calendar days prior to the date of repayment, (i) this Note with
the form entitled "Option to Elect Repayment" below duly completed or (ii) a
telegram, telex, facsimile transmission or a letter from a member of a national
securities exchange, the National Association of Securities Dealers, Inc. or a
commercial bank or trust company in the United States setting forth the name of
the Holder of this Note, the principal amount of this Note, the principal amount
of this Note to be repaid, the certificate number or description of the tenor
and terms of this Note, a statement that the option to elect repayment is being
exercised thereby and a guarantee that this Note to be repaid, together with the
duly completed form entitled "Option to Elect Repayment" below, will be received
by the Trustee not later than the third Business Day after the date of such
telegram, telex, facsimile transmission or letter, and this Note and form duly
completed must be received by the Trustee by such third Business Day.
Upon due presentment for registration of transfer of this Note at the
above-mentioned office or agency of the Company, a new Note or Notes having the
same maturity, interest rate,
-5-
<PAGE>
<PAGE>
redemption provisions, repayment provisions and Original Issue Date 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
thereto.
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 hereon) 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 nor 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 in 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
corporation, either directly or through the Company, the Guarantor or any
successor corporation 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.
-6-
<PAGE>
<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
UNIF GIFT MIN ACT - ________________Custodian ________________(Minor)
(Cust)
Under Uniform Gifts to Minors Act _______________________
(State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
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.
Date: ____________
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.
-7-
<PAGE>
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Company to repay the within Note (or portion thereof specified below) pursuant
to its terms at a price equal to the principal amount thereof, together with
interest to the Optional Repayment Date, to the undersigned at
- --------------------------------------------------------------------------------
(Please print or typewrite name and address of the undersigned)
If less than the entire principal amount of the within Note is to be
repaid, specify the portion thereof (which shall be increments of U.S. $1,000)
which the Holder elects to have repaid: __________________________; and specify
the denomination or denominations (which shall be increments of U.S. $1,000) of
the Notes to be issued to the Holder for the portion of the within Note not
being repaid (in the absence of any such specification, one such Note will be
issued for the portion not being repaid):
----------------------------------------------------
Date: ____________ ____________________________________________________
NOTICE: The signature on this Option to Elect
Repayment must correspond with the name as
written upon the face of the within
instrument in every particular without
alteration or enlargement or any change
whatsoever.
-8-
<PAGE>
<PAGE>
EXHIBIT 4C
[FORM OF MEDIUM-TERM CERTIFICATED FIXED RATE NOTE]
No. FXR-_________________ CUSIP No.___________________
AT&T CAPITAL CORPORATION
MEDIUM-TERM NOTE, SERIES G
(FIXED RATE)
<TABLE>
<S> <C>
Original Issue Date: Initial Optional Redemption Date:
Issue Price: Optional Redemption Price:
Interest Rate: Annual Redemption Price Reduction:
Maturity Date: Optional Repayment Date(s):
Principal Amount: Other Terms:
AT&T Capital Corporation, a Delaware corporation (herein referred to as
the "Company"), for value received, hereby promises to pay to___________________
or registered assigns, the principal sum of _________________________________
Dollars ($________) on the Maturity Date shown above and to pay interest thereon
at the rate per annum shown above until principal hereof is paid or made
available for payment. The Company will pay interest [semiannually on May 15 and
November 15] [quarterly on February 15, May 15, August 15 and November 15] (each
an "Interest Payment Date"), commencing with the Interest Payment Date
immediately following the Original Issue Date shown above (except as provided
below), and on the Maturity Date shown above. 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 which shall be the [April 30 or
October 31] [January 31, April 30, July 31 or October 31] (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, and, if the Original Issue Date of this Note is
between a Record Date and the corresponding Interest Payment Date, the first
payment of the interest will be made on the Interest Payment Date following the
next succeeding Record Date to the person in whose name this Note is registered
at the close of business on such Record Date. 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
<PAGE>
<PAGE>
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 by Newcourt Credit Group
Inc. (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>
<PAGE>
IN WITNESS WHEREOF, AT&T Capital Corporation has caused this instrument
to be duly executed.
AT&T CAPITAL CORPORATION
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
-3-
<PAGE>
<PAGE>
[FORM OF 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 March 1, 1999, as
amended (the "Indenture"), among the Company, 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 Holder (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 Medium-Term Notes,
Series G (herein referred to as the "Notes").
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 Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and 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
may 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 here for 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 office or
agency of the Company referred to above and in the manner and subject to the
limitations provided in the Indenture, Notes may be exchanged
-4-
<PAGE>
<PAGE>
without service charge for a like aggregate principal amount of Notes having the
same maturity, interest rate, redemption provisions, repayment provisions, and
Original Issue Date of other authorized denominations.
Unless the face of this Note indicates that an Optional Redemption Price
is applicable to this Note, this Note may not be redeemed prior to the Maturity
Date. If the face of this Note indicates that an Optional Redemption Price is
applicable to this Note, then this Note may be redeemed at the option of the
Company as a whole, or from time to time in part, on or after the Initial
Optional Redemption Date specified on the face hereof and prior to the Maturity
Date, at the Optional Redemption Price specified on the face hereof (expressed
as a percentage of the principal amount) (subject to reduction as hereinafter
provided), together in each case with accrued interest to the date fixed for
redemption; provided that if the face of this Note indicates that this Note is
subject to an "Annual Redemption Price Reduction," then the Optional Redemption
Price shall decline at each anniversary of the Initial Optional Redemption Date
by the Annual Redemption Price Reduction until the Optional Redemption Price is
100% of such principal amount. Notice of redemption shall be mailed to the
registered Holders of the Notes designated for redemption at their last
registered address not less than 30 nor more than 60 days prior to the date
fixed for redemption, all as provided in the Indenture. In the event of
redemption of this Note in part only, a new Note or Notes for the amount of the
unredeemed portion hereof shall be issued in the name of the Holder hereof upon
the presentation and cancellation hereof.
Unless an Optional Repayment Date or Dates is indicated on the face of
this Note, this Note shall not be subject to repayment at the option of the
Holder prior to the Maturity Date. If an Optional Repayment Date or Dates is
indicated on the face of this Note, this Note may be subject to repayment at the
option of the Holder on the Optional Repayment Date or Dates specified on the
face hereof on the terms set forth herein. On any Optional Repayment Date, this
Note will be repayable in whole or in part in increments of U.S. $1,000 at the
option of the Holder hereof at a price equal to 100% of the principal amount to
be repaid, together with interest hereon payable to the date of repayment. For
this Note to be repaid in whole or in part of the option of the Holder hereof,
the Company must receive at the corporate trust office of the Trustee in the
Borough of Manhattan, The City of New York, at least 30 calendar days but not
more than 45 calendar days prior to the date of repayment, (i) this Note with
the form entitled "Option to Elect Repayment" below duly completed or (ii) a
telegram, telex, facsimile transmission or a letter from a member of a national
securities exchange, the National Association of Securities Dealers, Inc. or a
commercial bank or trust company in the United States setting forth the name of
the Holder of this Note, the principal amount of this Note, the principal amount
of this Note to be repaid, the certificate number or description of the tenor
and terms of this Note, a statement that the option to elect repayment is being
exercised thereby and a guarantee that this Note to be repaid, together with the
duly completed form entitled "Option to Elect Repayment" below, will be received
by the Trustee not later than the third Business Day after the date of such
telegram, telex, facsimile transmission or letter, and this Note and form duly
completed must be received by the Trustee by such third Business Day.
Upon due presentment for registration of transfer of this Note at the
above-mentioned office or agency of the Company, a new Note or Notes having the
same maturity, interest rate,
-5-
<PAGE>
<PAGE>
redemption provisions, repayment provisions and Original Issue Date 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
thereto.
The Company, the Trustee, the Guarantor 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 other
purposes, and neither the Company nor 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
corporation, either directly or through the Company, the Guarantor or any
successor corporation, 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.
-6-
<PAGE>
<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>
<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
UNIF GIFT MIN ACT - ________________Custodian ________________(Minor)
(Cust)
Under Uniform Gifts to Minors Act _______________________
(State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
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.
Dated:__________________ ___________________________________
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.
-7-
<PAGE>
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Company to repay the within Note (or portion thereof specified below) pursuant
to its terms at a price equal to the principal amount thereof, together with
interest to the Optional Repayment Date, to the undersigned at
- --------------------------------------------------------------------------------
(Please print or typewrite name and address of the undersigned)
If less than the entire principal amount of the within Note is to be
repaid, specify the portion thereof (which shall be increments of U.S. $1,000)
which the Holder elects to have repaid: ___________________; and specify the
denomination or denominations (which shall be increments of U.S. $1,000) of the
Notes to be issued to the Holder for the portion of the within Note not being
repaid (in the absence of any such specification, one such Note will be issued
for the portion not being repaid):
---------------------------------------------------
Date: ____________ ___________________________________________________
NOTICE: The signature on this Option to Elect
Repayment must correspond with the name as
written upon the face of the within
instrument in every particular without
alteration or enlargement or any change
whatsoever.
-8-
<PAGE>
<PAGE>
EXHIBIT 4D
[FORM OF MEDIUM-TERM GLOBAL FLOATING RATE NOTE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND
ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
EXCEPT AS OTHERWISE PROVIDED IN SECTION 2.11 OF THE INDENTURE DESCRIBED
HEREIN, THIS SECURITY MAY BE TRANSFERRED, IN WHOLE BUT NOT IN PART, ONLY TO
THE DEPOSITARY, ANOTHER NOMINEE OF THE DEPOSITARY OR TO A SUCCESSOR DEPOSITARY
OR TO A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
REGISTERED REGISTERED
No. FLR- CUSIP NO.
AT&T CAPITAL CORPORATION
MEDIUM-TERM NOTE, SERIES G
(FLOATING RATE)
<TABLE>
<S> <C>
Principal Amount: Base Rate:
Initial Interest Rate: Maturity Date:
Original Issue Date: Spread:
Index Maturity: Spread Multiplier: %
Index Currency: Maximum Interest Rate:
Interest Payment Period: Minimum Interest Rate:
Interest Reset Period: Calculation Dates:
Interest Payment Dates: Calculation Agent:
Initial Interest Reset Date: Optional Repayment Date(s):
Interest Reset Dates: Initial Optional Redemption:
Interest Determination Dates: Price: %
Initial Optional Redemption Date: Reporting Service:
Premium Reduction Amount: Designated CMT Telerate Page:
Other Terms: Designated CMT Maturity Index:
</TABLE>
AT&T Capital Corporation, a corporation duly organized and existing
under the laws of the State of Delaware (herein referred to as the "Company"),
for value received hereby promises to pay to CEDE & Co. or registered assigns,
the principal sum stated above, on the Maturity Date set forth above (except to
the extent redeemed or repaid prior to the Maturity Date), and to pay interest
thereon from the Original Issue Date set forth above, or from the most recent
Interest
<PAGE>
<PAGE>
Payment Date set forth above, to which interest has been paid or duly provided
for on the Interest Payment Dates set forth above, commencing on the first
Interest Payment Date following the Original Issue Date at the rate per annum
equal to the Initial Interest Rate stated above until the Initial Interest Reset
Date stated above and thereafter at the rate per annum determined in accordance
with the provisions on the reverse hereof under the heading or headings
"Determination of Commercial Paper Rates," "Determination of Federal Fund
Rates," "Determination of CD Rates," "Determination of LIBOR," "Determination of
Treasury Rates," "Determination of Prime Rates," and "Determination of CMT
Rates" depending on the Base Rate specified above, as adjusted by the Spread
and/or Spread Multiplier, if any, specified above, until the principal hereof is
paid or made available for payment; provided, however, that if the Original
Issue Date shown above is less than 15 calendar days before an Interest Payment
Date, interest payments will commence on the next succeeding Interest Payment
Date. The interest payable on any Interest Payment Date will, subject to certain
exceptions provided in the Indenture, be paid to the person in whose name this
Note is registered at the close of business on each Record Date, as defined on
the reverse hereof. Payments of principal and interest due at the Maturity Date
or upon redemption or repayment, if applicable, will be made in immediately
available funds, and interest payable at the Maturity Date or upon redemption or
repayment, if applicable, will be payable to the person to whom principal is
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 or upon redemption or repayment may be made by check mailed to the
address of the person entitled thereto as such address shall appear in the
Security Register. This Note is guaranteed as to payment of principal, premium,
if any, and interest by Newcourt Credit Group Inc. (the "Guarantor").
If an Initial Optional Redemption Date is specified above, this Note may
be redeemed in accordance with the terms specified on the reverse hereof, at any
time on or after such Initial Optional Redemption Date at an Initial Optional
Redemption Price specified above (expressed as a percentage of the outstanding
principal amount hereof), such Initial Optional Redemption Price to be decreased
annually on the anniversary of the Initial Optional Redemption Date specified
above by the Premium Reduction Amount specified above (expressed as a percentage
of the outstanding principal amount hereof) until the Redemption Price equals
100% of the outstanding principal amount hereof; provided, that if no such
Initial Optional Redemption Date is shown, the Note is not redeemable.
If an Optional Repayment Date or Dates is indicated on the face of this
Note, this Note may be subject to repayment at the option of the Holder on the
Optional Repayment Date or Dates specified on the face hereof on the terms set
forth on the reverse hereof. On any Optional Repayment Date, this Note will be
repayable in whole or in part in increments of U.S. $1,000 (provided that any
remaining principal amount hereof shall not be less than the minimum authorized
denomination hereof) at the option of the Holder hereof at a price equal to 100%
of the principal amount to be repaid, together with interest hereon payable to
the date of repayment; provided, that if no such Optional Repayment Date is
shown, the Note is not subject to repayment at the option of the Holder prior to
the Maturity Date.
-2-
<PAGE>
<PAGE>
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET
FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL HAVE THE SAME EFFECT
AS THOUGH FULLY SET FORTH AT THIS PLACE.
This Note shall not be entitled to any benefits under the Indenture
referred to on the reverse hereof, or be valid or become obligatory for any
purpose until the certificate of authentication hereon shall have been manually
signed by or on behalf of the Trustee specified on the reverse hereof under the
Indenture.
IN WITNESS WHEREOF, AT&T Capital Corporation has caused this instrument
to be duly executed.
Date:
AT&T CAPITAL CORPORATION
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
-3-
<PAGE>
<PAGE>
[FORM OF 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 March 1, 1999, as
amended (the "Indenture"), among the Company, the Guarantor and The Chase
Manhattan Bank, as Trustee (the "Trustee"), to which Indenture and all other
indentures supplemental thereto, reference is hereby made for a description of
the rights, limitations of rights, obligations, duties and immunities of the
Trustee, the Company, the Guarantors and the Holders of the Securities, and the
terms upon which the Securities are to be authenticated and delivered. This Note
is one of a series of Securities designated as the Medium-Term Notes, Series G
(herein referred to as the "Notes").
Unless otherwise indicated on the face of this Note, this Note may not
be redeemed prior to the Maturity Date. Notice of redemption shall be mailed to
the registered Holders of the Notes designated for redemption at their last
registered addresses not less than 30 nor more than 60 days prior to the date of
redemption, subject to all the conditions and provisions of the Indenture. In
the event of redemption of this Note in part only, a new Note or Notes for the
amount of the unredeemed portion hereof shall be issued in the name of the
Holder hereof upon the presentation and cancellation hereof.
Unless an Optional Repayment Date or Dates is indicated on the face of
this Note, this Note shall not be subject to repayment at the option of the
Holder prior to the Maturity Date. For this Note to be repaid in whole or in
part at the option of the Holder hereof, the Company must receive at the
corporate trust office of the Trustee in the Borough of Manhattan, The City of
New York, at least 30 calendar days but not more than 45 calendar days prior to
the date of repayment, (i) this Note with the form entitled "Option to Elect
Repayment" below duly completed or (ii) a telegram, telex, facsimile
transmission or a letter from a member of a national securities exchange, the
National Association of Securities Dealers, Inc. or a commercial bank or trust
company in the United States setting forth the name of the Holder of this Note,
the principal amount of this Note, the principal amount of this Note to be
repaid, the certificate number or a description of the tenor and terms of this
Note, a statement that the option to elect repayment is being exercised thereby
and a guarantee that this Note to be repaid, together with the duly completed
form entitled "Option to Elect Repayment," will be received by the Trustee not
later than the third Business Day after the date of such telegram, telex,
facsimile transmission or letter; provided, that such telegram, telex, facsimile
transmission or letter shall be effective only if this Note and form duly
completed are received by the Trustee by such third Business Day.
Commencing with the Initial Interest Reset Date specified on the face
hereof following the Original Issue Date, the rate at which interest on this
Note is payable shall be reset daily, weekly, monthly, quarterly, semi-annually
or annually as shown on the face hereof under "Interest Reset Period;" provided,
however, that the interest rate in effect from the Original Issue Date to the
Initial Interest Reset Date specified on the face hereof will be the Initial
Interest Rate. Each such adjusted rate shall be applicable on and after the
Interest Reset Date to which it relates to but not including the next succeeding
Interest Reset Date or until maturity, or redemption or repayment, as the case
may be. If any Interest Reset Date specified on the face hereof would otherwise
be a day that is not a Business Day, such Interest Reset Date shall be postponed
to the
-4-
<PAGE>
<PAGE>
next day that is a Business Day, except that if (i) the rate of interest on this
Note shall be determined in accordance with the provisions of the heading
"Determination of LIBOR" below, and (ii) such Business Day is in the next
succeeding calendar month, such Interest Reset Date shall be the immediately
preceding Business Day. Subject to applicable provisions of law and except as
specified herein, on each Interest Reset Date, the rate of interest on this Note
shall be the rate determined in accordance with the provisions of the applicable
heading below.
Determination of Commercial Paper Rates. If the Base Rate on this Note
is the Commercial Paper Rate (a "Commercial Paper Rate Note"), the interest rate
with respect to this Note shall equal the Commercial Paper Rate (calculated as
described below) plus or minus the Spread, if any, specified on the face hereof
and/or multiplied by the Spread Multiplier, if any, specified on the face
hereof. The Commercial Paper Rate for each Interest Reset Date shall be
determined on the Calculation Date (as defined below) by the Calculation Agent
as of the second Business Day prior to such Interest Reset Date (a "Commercial
Paper Interest Determination Date") and shall be the Money Market Yield (as
defined below) on such Commercial Paper Interest Determination Date of the rate
for commercial paper having the Index Maturity designated on the face hereof, as
such rate is published by the Board of Governors of the Federal Reserve System
in "Statistical Release H.15(519), Selected Interest Rates," or any successor
publication ("H.15(519)"), under the heading "Commercial Paper--Financial." In
the event such rate is not published prior to 9:00 A.M., New York City time, on
the Calculation Date (defined below) pertaining to such Commercial Paper
Interest Determination Rate, then the Commercial Paper Rate shall be the Money
Market Yield (calculated as described below) on such Commercial Paper Interest
Determination Date of the rate for commercial paper of the specified Index
Maturity as published by the Federal Reserve Bank of New York in its daily
statistical release, "Composite 3:30 P.M. Quotations for U.S. Government
Securities" ("Composite Quotations") under the heading "Commercial Paper." If by
3:00 P.M., New York City time, on such Calculation Date (defined below) such
rate is not yet published in either H.15(519) or Composite Quotations, then the
Commercial Paper Rate shall be the Money Market Yield of the arithmetic mean,
each as rounded to the nearest one hundred-thousandth of a percentage point of
the offered rates as of 11:00 A.M., New York City time, on such Commercial Paper
Interest Determination Date of three leading dealers of commercial paper in The
City of New York selected by the Calculation Agent for the commercial paper of
the Index Maturity designated on the face hereof, placed for an industrial
issuer whose bond rating is "Aa" or the equivalent from a nationally recognized
rating agency; provided, however, that if the dealers selected as aforesaid by
the Calculation Agent are not quoting offered rates as mentioned in this
sentence, the rate of interest determined as of such Commercial Paper Interest
Determination Date will be the rate of interest in effect on such Commercial
Paper Interest Determination Date.
"Money Market Yield" shall be a yield (expressed as a percentage rounded
to the nearest one hundred-thousandth of a percentage point) calculated in
accordance with the following formula:
Money Market Yield = D x 360
_____________ x 100
360 - (D x M)
-5-
<PAGE>
<PAGE>
where "D" refers to the applicable per annum rate for commercial paper quoted on
a bank discount basis and expressed as a decimal, and "M" refers to the actual
number of days in the period for which interest is being calculated.
Determination of Federal Funds Rates. If the Base Rate on this Note is
the Federal Funds Rate (a "Federal Funds Rate Note"), the interest rate with
respect to this Note shall equal the Federal Funds Rate (calculated as described
below) plus or minus the Spread, if any, specified on the face hereof and/or
multiplied by the Spread Multiplier, if any, specified on the face hereof. The
Federal Funds Rate for each Interest Reset Date shall be determined on the
Calculation Date by the Calculation Agent as of the second Business Day prior to
such Interest Reset Date (a "Federal Funds Interest Determination Date") and
shall be the effective rate for Federal Funds on such Federal Funds Interest
Determination Date as published in H.15(519) under the heading "Federal Funds
(Effective)" or, if not so published by 9:00 A.M., New York City time, on the
Calculation Date (defined below) pertaining to such Federal Funds Interest
Determination Date, the Federal Funds Rate will be the interest rate on such
Federal Funds Interest Determination Date as published in Composite Quotations
under the heading "Federal Funds/Effective Rate." If such rate is not yet
published by 3:00 P.M., New York City time, on the Calculation Date (defined
below) pertaining to such Federal Funds Interest Determination Date, the Federal
Funds Rate for such Federal Funds Interest Determination Date will be calculated
by the Calculation Agent and will be the arithmetic mean of the rates for the
last transaction in overnight United States dollar federal funds arranged by
three leading brokers of federal funds transactions in The City of New York
(which may include the Agent or its affiliates) selected by the Calculation
Agent prior to 9:00 A.M., New York City time, on such Federal Funds Rate
Interest Determination Date; provided, however, that if the brokers so selected
by the Calculation Agent are not quoting as mentioned in this sentence, the rate
of interest determined as such Federal Funds Interest Determination Date will be
the rate of interest in effect on such Federal Funds Interest Determination
Date.
Determination of CD Rates. If the Base Rate on this Note is the CD Rate
(a "CD Rate Note"), the interest rate with respect to this Note shall equal the
CD Rate (calculated as described below) plus or minus the Spread, if any,
specified on the face hereof and/or multiplied by the Spread Multiplier, if any,
specified on the face hereof. The CD Rate for each Interest Reset Date shall be
determined on the Calculation Date by the Calculation Agent as of the second
Business Day prior to the Interest Reset Date (a "CD Interest Determination
Date") and shall be the rate for negotiable certificates of deposit having the
Index Maturity specified on the face hereof on such CD Interest Determination
Date, as such rate is published in H.15(519) under the heading "CDs (Secondary
Market)." If such rate is not so published by 9:00 A.M., New York City time, on
the Calculation Date (defined below) pertaining to such CD Interest
Determination Date, the CD Rate will be the rate on such CD Interest
Determination Date for negotiable certificates of deposit of the Index Maturity
specified on the face hereof as published in Composite Quotations under the
heading "Certificates of Deposit." If by 3:00 P.M., New York City time, on such
Calculation Date (defined below), such rate is not yet published in Composite
Quotations, the CD Rate for such CD Interest Determination Date will be
calculated by the Calculating Agent and will be the arithmetic mean of the
secondary market offered rates as of 10:00 A.M., New York City time, on such CD
Interest Determination Date of three leading nonbank dealers in negotiable U.S.
dollar certificates of deposit in The City of New York
-6-
<PAGE>
<PAGE>
selected by the Calculation Agent for negotiable certificates of deposit of
major United States money center banks (in the market for negotiable
certificates of deposit) with a remaining maturity closest to the Index Maturity
specified on the face hereof in the denomination of $5,000,000. However, if such
dealers are not so quoting such rates, the rate of interest determined as of
such CD Interest Determination Date will be the rate of interest in effect on
such CD Interest Determination Date.
Determination of LIBOR. If the Base Rate on this Note is LIBOR (a "LIBOR
Note"), the interest rate with respect to this Note shall be equal to LIBOR
(calculated as described below) plus or minus the Spread, if any, specified on
the face hereof and/or multiplied by the Spread Multiplier, if any, specified on
the face hereof. LIBOR for each Interest Reset Date shall be determined by the
Calculation Agent as follows:
(i) With respect to the second London Banking Day prior to such
Interest Reset Date (a "LIBOR Determination Date"), LIBOR will be
either: (a) if "LIBOR Reuters" is specified as the Reporting Service on
the face hereof, the arithmetic mean of the offered rates (unless the
specified Designated LIBOR Page (as defined below) by its terms provides
only for a single rate, in which case such single rate shall be used)
for deposits in the Index Currency specified on the face hereof having
the Index Maturity specified on the face hereof, commencing on such
Interest Reset Date, that appear on the Designated LIBOR Page as of
11:00 A.M., London time, on that LIBOR Determination Date, if at least
two such offered rates appear (unless, as aforesaid, only a single rate
is required) on such Designated LIBOR Page, or (b) if "LIBOR Telerate"
is specified as the Reporting Service on the face hereof, the rate for
deposits in the Index Currency having the Index Maturity commencing on
such Interest Reset Date, that appears on the Designated LIBOR Page as
of 11:00 A.M., London time, on that LIBOR Determination Date. If fewer
than two offered rates appear, or no rate appears, as applicable, LIBOR
in respect of the related LIBOR Determination Date will be determined as
if the parties had specified the rate described in clause (ii) below.
(ii) With respect to a LIBOR Determination Date on which fewer
than two offered rates appear (unless, as aforesaid, only a single rate
is required), or no rate appears, as the case may be, on the applicable
Designated LIBOR Page as specified in clause (i) above, the Calculation
Agent will request the principal London offices of each of four major
reference banks in the London interbank market, as selected by the
Calculation Agent, to provide the Calculation Agent with its offered
quotation for deposits in the Index Currency for the period of the Index
Maturity, commencing on such Interest Reset Date, to prime banks in the
London interbank market at approximately 11:00 A.M., London time, on
such LIBOR Determination Date and in a principal amount of not less than
$1,000,000 (or the equivalent in the Index Currency, if the Index
Currency is not the U.S. dollar) that is representative for a single
transaction in such Index Currency in such market at such time. If at
least two such quotations are provided, LIBOR determined on such LIBOR
Determination Date will be the arithmetic mean of such quotations. If
fewer than two quotations are provided, LIBOR determined on such LIBOR
Determination Date will be the arithmetic mean of the rates quoted at
approximately 11:00 A.M., in the applicable Principal Financial Center
(as defined
-7-
<PAGE>
<PAGE>
below) for the country of the Index Currency on such LIBOR Determination
Date, by three major banks in such Principal Financial Center selected
by the Calculation Agent for loans in the Index Currency to leading
European banks, having the Index Maturity and in a principal amount of
not less than $1,000,000 (or the equivalent in the Index Currency, if
the Index Currency is not the U.S. dollar) that is representative for a
single transaction in such Index Currency in such market at such time;
provided, however, that if the banks so selected by the Calculation
Agent are not quoting as mentioned in this sentence, the rate of
interest determined on such LIBOR Determination Date will be the rate of
interest otherwise in effect on such LIBOR Determination Date.
If no Index Currency is specified on the face hereof, the Index Currency
shall be U.S. Dollars.
"Designated LIBOR Page" means either (a) if "LIBOR Reuters" is
designated as the Reporting Service on the face hereof, the display designated
as page "LIBO" with respect to the applicable Index Currency on the Reuters
Monitor Money Rates Service (or such other page as may replace page "LIBO" on
such service for the purpose of displaying the London interbank rates of major
banks for the applicable Index Currency), or (b) if "LIBOR Telerate" is
designated as the Reporting Service on the face hereof, the display designated
as page "3750" with respect to the applicable Index Currency on Bridge
Telerate, Inc. (or such other page as may replace page "3750" on such service
or such other service as may be nominated by the British Bankers' Association
for the purpose of displaying the London interbank rates of major banks for the
applicable Index Currency). If neither LIBOR Reuters nor LIBOR Telerate is
specified as the Reporting Service on the face hereof, LIBOR for the applicable
Index Currency will be determined as if LIBOR Telerate (and, if the U.S. dollar
is the Index Currency, page 3750) had been specified.
"Principal Financial Center" will be, for the purposes of clause (ii)
above, the principal financial center of the country of the specified Index
Currency, which is generally the capital city of such country, except that with
respect to U.S. dollars and Deutsche marks, the Principal Financial Center
shall be The City of New York and Frankfurt, respectively.
As used herein, "London Banking Day" means any day on which dealings in
deposits in U.S. dollars are transacted in the London interbank market.
Determination of Treasury Rates. If the Base Rate on this Note is the
Treasury Rate (a "Treasury Rate Note") the interest rate with respect to this
Note shall equal the Treasury Rate (calculated as described below) plus or minus
the Spread, if any, specified on the face hereof and/or multiplied by the Spread
Multiplier, if any, specified on the face hereof. The Treasury Rate with respect
to an Interest Reset Date shall be the rate for the auction held on the Treasury
Rate Determination Date (as defined below) pertaining to such Interest Reset
Date of direct obligations of the United States ("Treasury Bills") having the
Index Maturity specified above as published in H.15 (519) under the heading
"U.S. Government Securities-Treasury Bills-auction average (investment)," or, if
not so published by 9:00 A.M., New York City time, on the Calculation Date (as
defined below) pertaining to such Treasury Rate Determination Date (as defined
below), the auction average rate (expressed as a bond equivalent on the basis of
a year of
-8-
<PAGE>
<PAGE>
365 or 366 days, as applicable, and applied on a daily basis) as otherwise
announced by the United States Department of the Treasury. In the event that the
results of the auction of Treasury Bills having the Index Maturity specified
above are not published or reported as provided above by 3:00 P.M., New York
City time, on such Calculation Date or if no such auction is held on such
Treasury Rate Determination Date, then the Treasury Rate shall be calculated by
the Calculation Agent and shall be a yield to maturity (expressed as a bond
equivalent on the basis of a year of 365 or 366 days, as applicable, and applied
on a daily basis) of the arithmetic mean of the secondary market bid rates, as
of approximately 3:30 P.M., New York City time, on such Treasury Rate
Determination Date (as defined below), of three leading primary United States
government securities dealers selected by the Calculation Agent for the issue of
Treasury Bills with a remaining maturity closest to the Index Maturity specified
above; provided, however, that if the dealers selected as aforesaid by the
Calculation Agent are not quoting bid rates as mentioned in this sentence, the
rate of interest for such Interest Reset Date will be the rate of interest in
effect on such Interest Reset Date.
The "Treasury Rate Determination Date" pertaining to an Interest Reset
Date will be the day of the week in which such Interest Reset Date falls on
which Treasury Bills would normally be auctioned. Treasury Bills are normally
sold at auction on Monday of each week, unless that day is a legal holiday, in
which case the auction is normally held on the following Tuesday, except that
such auction may be held on the preceding Friday. If, as a result of a legal
holiday, an auction is so held on the preceding Friday, such Friday will be the
Treasury Rate Determination Date pertaining to the Interest Reset Date occurring
in the next succeeding week. If an auction date shall fall on any day that would
otherwise be an Interest Reset Date for a Treasury Rate Note, then such Interest
Reset Date shall instead be the Business Day immediately following such auction
date.
Determination of Prime Rates. If the Base Rate on this Note is the Prime
Rate (a "Prime Rate Note"), the interest rate with respect to this Note shall
equal the Prime Rate (calculated as described below) plus or minus the Spread,
if any, specified on the face hereof and/or multiplied by the Spread Multiplier,
if any, specified on the face hereof. The Prime Rate with respect to any
interest Reset Date shall be determined on the Calculation Date by the
Calculation Agent as of the second Business Day prior to such Interest Reset
Date (a "Prime Rate Interest Determination Date") and shall be the rate on such
date as published in H.15(519) under the heading "Bank Prime Loan." If such rate
is not published by 9:00 A.M., New York City time, on the Calculation Date
pertaining to such Prime Rate Interest Determination Date, the Prime Rate will
be determined by the Calculation Agent and will be the arithmetic mean of the
rates of interest publicly announced by each bank named on the "Reuters Screen
USPRIME1 Page" (as defined below) as such bank's prime rate or base lending rate
as in effect for such Prime Rate Interest Determination Date. "Reuters Screen
USPRIME1 Page" means the display designated as page "USPRIME1" on the Reuters
Monitor Money Rates Service (such term to include such other page as may replace
the USPRIME1 page on that Service for the purpose of displaying prime rates or
base lending rates of major United States banks). If fewer than four such rates
appear on the Reuters Screen USPRIME1 Page for such Prime Rate Interest
Determination Date, the Prime Rate will be determined by the Calculation Agent
and will be the arithmetic mean of the prime rates quoted on the basis of the
actual number of days elapsed divided by 360 as of the close of business on such
Prime Rate Interest Determination Date by at least two major money
-9-
<PAGE>
<PAGE>
center banks in The City of New York selected by the Calculation Agent from a
list of at least three such banks approved by the Company. If fewer than two
such rates are quoted as aforesaid the Prime Rate will be calculated by the
Calculation Agent and will be determined as the arithmetic mean of the prime
rates furnished in The City of New York by an appropriate number (in the
judgment of the Calculation Agent) of substitute banks or trust companies
organized and doing business under the laws of the United States, or any State
thereof, in each case having total equity capital of at least U.S. $500,000,000
and being subject to supervision or examination by federal or state authority,
selected by the Calculation Agent from a list approved by the Company to provide
such rate or rates; provided that if the banks or trust companies selected as
aforesaid by the Calculation Agent from a list approved by the Company are not
quoting as mentioned in this sentence, the rate of interest determined as of
such Prime Rate Interest Determination Date will be the rate of interest in
effect on such Prime Rate Interest Determination Date.
Determination of CMT Rates. If the Base Rate on this Note is the CMT
Rate (a "CMT Rate Note"), the interest rate with respect to this Note shall
equal the CMT Rate (calculated as described below) plus or minus the Spread, if
any, specified on the face hereof and/or multiplied by the Spread Multiplier, if
any, specified on the face hereof. The CMT Rate for any Interest Reset Date
shall be determined on the Calculation Date by the Calculation Agent as of the
related CMT Rate Interest Determination Date (as defined below) and shall be the
rate displayed on the Designated CMT Telerate Page (as defined below) under the
caption ". . . Treasury Constant Maturities . . . Federal Reserve Board Release
H.15 . . . Mondays Approximately 3:45 P.M.," under the column for the Designated
CMT Maturity Index (as defined below) for (i) if the Designated CMT Telerate
Page is 7055, such CMT Rate interest Determination Date and (ii) if the
Designated CMT Telerate Page is 7052 the (week) (month) ended immediately
preceding the week in which the related CMT Rate Interest Determination Date
occurs. If such rate is no longer displayed on the relevant page, or if not
displayed by 3:00 P.M., New York City time, on the related Calculation Date,
then the CMT Rate for such CMT Rate Interest Determination Date will be such
Treasury Constant Maturity rate for the Designated CMT Maturity Index as
published in H.15(519) for such date. If such rate is no longer published, or if
not published by 3:00 P.M., New York City time, on the related Calculation Date,
then the CMT Rate for such CMT Rate Interest Determination Date will be such
Treasury Constant Maturity rate for the Designated CMT Maturity Index (or other
United States Treasury rate for the Designated CMT Maturity Index) for such CMT
Rate Interest Determination Date as may then be published by either the Board of
Governors of the Federal Reserve System or the United States Department of the
Treasury that the Calculation Agent determines to be comparable to the rate
formerly displayed on the Designated CMT Telerate Page and published in
H.15(519). If such information is not provided by 3:00 P.M., New York City time,
on the related Calculation Date, then the CMT Rate for the CMT Rate Interest
Determination Date will be calculated by the Calculation Agent and will be a
yield to maturity, based on the arithmetic mean of the secondary market offer
side prices as of approximately 3:30 P.M. (New York City time) on the CMT Rate
Interest Determination Date reported, according to their written records, by
three leading primary United States government securities dealers (each, a
"Reference Dealer") in The City of New York selected by the Calculation Agent
from five such Reference Dealers selected by the Calculation Agent and
eliminating the highest quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event of equality, one of the
lowest), for the most recently issued direct noncallable fixed rate obligations
of the United States ("Treasury Notes")
-10-
<PAGE>
<PAGE>
with an original maturity of approximately the Designated CMT Maturity Index and
a remaining term to maturity of not less than such Designated CMT Maturity Index
minus one year. If the Calculation Agent cannot obtain three such Treasury Note
quotations, the CMT Rate for such CMT Rate Interest Determination Date will be
calculated by the Calculation Agent and will be a yield to maturity based on the
arithmetic mean of the secondary market offer side prices as of approximately
3:30 P.M. (New York City time) on the CMT Rate Interest Determination Date of
three Reference Dealers in the City of New York (from five such Reference
Dealers selected by the Calculation Agent and eliminating the highest quotation
(or, in the event of equality, one of the highest) and the lowest quotation (or,
in the event of equality, one of the lowest), for Treasury Notes with an
original maturity of the number of years that is the next highest to the
Designated CMT Maturity Index and a remaining term to maturity closest to the
Designated CMT Maturity Index and in an amount of at least $100 million. If
three or four (and not five) of such Reference Dealers are quoting as described
above, the CMT Rate will be based on the arithmetic mean of the offer prices
obtained and neither the highest nor lowest of such quotes will be eliminated;
provided, however, that if fewer than three Reference Dealers selected by the
Calculation Agent are quoting as described herein, the rate of interest
determined as of such CMT Rate Interest Determination Date will be the rate of
interest in effect on such CMT Rate Interest Determination Date. If two Treasury
Notes with an original maturity as described in the second preceding sentence
have remaining terms to maturity equally close to the Designated CMT Maturity
Index, the quotes for the CMT Rate Note with the shorter remaining term to
maturity will be used.
"Designated CMT Telerate Page" means the display on Bridge Telerate,
Inc. on the page designated on the face hereof (or any other page as may
replace such page on that service for the purpose of displaying Treasury
Constant Maturities as reported in H.15(519)), for the purpose of displaying
Treasury Constant Maturities as reported in H.15(519). If no such page is
specified on the face hereof, the Designated CMT Telerate Page shall be 7052,
for the most recent week.
"Designated CMT Maturity Index" means the original period to maturity of
the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20, or 30 years)
specified on the face hereof with respect to which the CMT Rate will be
calculated. If no such maturity is specified on the face hereof, the Designated
CMT Maturity Index shall be 2 years.
The "CMT Rate Interest Determination Date" pertaining to an Interest
Reset Date for CMT Rate Notes will be the second Business Day prior to such
Interest Reset Date.
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, shown on the face hereof. The Calculation Agent shall
calculate the interest rate on this Note in accordance with the foregoing on or
before each Calculation Date (defined below). The interest rate on this Note
will in no event higher than the maximum rate permitted by New York law as the
same may be modified by United States law of general applicability.
-11-
<PAGE>
<PAGE>
The Calculation Agent will, upon the request of the Holder of this Note,
provide to such Holder the interest rate hereon then in effect and, if
determined, the interest rate which will become effective on the next Interest
Reset Date with respect to this Note.
The "Calculation Date," if applicable, pertaining to any Commercial
Paper Interest Determination Date, Federal Funds Interest Determination Date, CD
Interest Determination Date, Treasury Rate Determination Date, Prime Rate
Interest Determination Date or CMT Rate Interest Determination Date (an
"Interest Determination Date") shall be the date(s) specified on the face hereof
or, if no such date is specified, the earlier of (i) the tenth calendar day
after such Interest Determination Date, or, if such tenth day is not a Business
Day, the next succeeding Business Day and (ii) the Business Day preceding the
applicable Interest Payment Date or date of maturity, as the case may be.
Each date on which interest is payable on this Note is referred to
herein as an "Interest Payment Date." If any Interest Payment Date specified on
the face hereof (other than the Maturity Date) would otherwise be a day that is
not a Business Day, such Interest Payment Date will be postponed to the next
succeeding day that is a Business Day, except that in the case of a LIBOR Note,
if such Business Day falls in the next succeeding calendar month, such Interest
Payment Date will be the immediately preceding Business Day. If the Maturity
Date specified on the face hereof 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 such payment for the period from and after the
Maturity Date to the date of such payment on the next succeeding Business Day.
"Business Day" means any day, other than a Saturday or Sunday, that is neither a
legal holiday nor a day on which banking institutions are authorized or required
by law or regulation to close in The City of New York and, with respect to LIBOR
Notes, that is also a London Banking Day. "London Banking Day" means any day on
which dealings in deposits in the Index Currency are transacted in the London
interbank market.
The "Record Date" with respect to any Interest Payment Date shall be the
date 15 calendar days prior to such Interest Payment Date, whether or not such
date shall be a Business Day.
Interest payments for this Note will be the amount of interest accrued
from, and including, the Original Issue Date 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. Accrued interest shall be calculated by
multiplying the face amount hereof by an accrued interest factor. Such accrued
interest factor shall be computed by adding the interest factors calculated for
each day in the Interest Reset Period or from the last date from which accrued
interest is being calculated. The interest factor (expressed as a decimal
rounded upward to the nearest one hundred-thousandth of a percentage point) for
each such day shall be computed by dividing the interest rate (expressed as a
decimal, rounded to the nearest one hundred-thousandth of a percentage point,
with five one-millionths of a percentage point rounded upward) applicable to
such day by 360, in the case of LIBOR Notes, Federal Funds Rate Notes, CD Rate
Notes, Prime Rate Notes or Commercial Paper Rate Notes, or by the actual number
of days in the year in the case of the Treasury Rate Notes or CMT Rate Notes.
-12-
<PAGE>
<PAGE>
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 Indenture permits, with certain exceptions as herein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the Guarantor and 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 the
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
may 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 the registration of transfer
hereof or in exchange therefor 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 rates and in the coin or currency
herein prescribed.
The Notes are issuable as registered Notes without coupons in the
denominations that are integral multiples of U.S. $1,000. At the office or
agency of the Company referred to on the face hereof and in the manner and
subject to the limitations provided in the Indenture, Notes may be exchanged
without a service charge for a like aggregate principal amount of Notes or other
authorized denominations having the same maturity, interest rate, optional
redemption or repayment provisions and original issue date.
Upon due presentment for registration of transfer of this Note at the
above-mentioned office or agency of the Company a new Note or Notes having the
same maturity, interest rate, optional redemption or repayment provisions and
original issue date 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 thereto.
-13-
<PAGE>
<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 hereon) 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 other
purposes, and neither the Company nor 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
corporation, either directly or through the Company, the Guarantor or any
successor corporation, 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.
-14-
<PAGE>
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Company to repay the within Note (or portion thereof specified below) pursuant
to its terms at a price equal to the principal amount thereof, together with
interest to the Optional Repayment Date, to the undersigned at
- --------------------------------------------------------------------------------
(Please print or typewrite name and address of the undersigned)
If less than the entire principal amount of the within Note is to be
repaid, specify the portion thereof (which shall be increments of U.S. $1,000)
which the Holder elects to have repaid: ____________________; and specify the
denomination or denominations (which shall not be less than the minimum
authorized denomination) of the Notes to be issued to the Holder for the portion
of the within Note not being repaid (in the absence of any such specification,
one such Note will be issued for the portion not being repaid): _______________.
____________________________________
Date:______________ ____________________________________
____________________________________
NOTICE: The signature on this Option
to Elect Repayment must correspond
with the name as written upon the
face of the within instrument in
every particular without alteration
or enlargement or any change
whatsoever.
-15-
<PAGE>
<PAGE>
EXHIBIT 4E
[FORM OF MEDIUM-TERM CERTIFICATED FLOATING RATE NOTE]
NO. FLR - ______________ CUSIP NO.____________________
AT&T CAPITAL CORPORATION
MEDIUM-TERM NOTE, SERIES G
(FLOATING RATE)
<TABLE>
<S> <C>
Principal Amount: Base Rate:
Initial Interest Rate: Maturity Date:
Original Issue Date: Spread:
Index Maturity: Spread Multiplier: %
Index Currency: Maximum Interest Rate:
Interest Payment Period: Minimum Interest Rate:
Interest Reset Period: Calculation Dates:
Interest Payment Dates: Calculation Agent:
Initial Interest Reset Date: Optional Repayment Date(s):
Interest Reset Dates: Initial Optional Redemption:
Interest Determination Dates: Price: %
Initial Optional Redemption Date: Reporting Service:
Premium Reduction Amount: Designated CMT Telerate Page:
Other Terms: Designated CMT Maturity Index:
</TABLE>
AT&T Capital Corporation, a corporation duly organized and existing
under the laws of the State of Delaware (herein referred to as the "Company"),
for value received hereby promises to pay to ______________________ or
registered assigns, the principal sum stated above, on the Maturity Date set
forth above (except to the extent redeemed or repaid prior to the Maturity
Date), and to pay interest thereon from the Original Issue Date set forth above,
or from the most recent Interest Payment Date set forth above, to which interest
has been paid or duly provided for on the Interest Payment Dates set forth
above, commencing on the first Interest Payment Date following the Original
Issue Date at the rate per annum equal to the Initial Interest Rate stated above
until the Initial Interest Reset Date stated above and thereafter at the rate
per annum determined in accordance with the provisions on the reverse hereof
under the heading or headings "Determination of Commercial Paper Rates,"
"Determination of Federal Fund Rates," "Determination of CD Rates,"
"Determination of LIBOR," "Determination of Treasury Rates," "Determination of
Prime Rates," and "Determination of CMT Rates" depending on the Base Rate
specified above, as adjusted by the Spread and/or Spread Multiplier, if any,
specified above, until the principal hereof is paid or made available for
payment; provided, however, that if the Original Issue Date shown above is less
than 15 calendar days before an Interest Payment Date, interest payments will
commence on the next succeeding Interest Payment Date. The interest payable on
any Interest Payment Date will, subject to certain exceptions provided in the
Indenture, be paid to the person in whose name this Note is registered at the
close of business of each Record Date, as defined on the reverse hereof.
Payments of principal and interest due at the Maturity Date or upon redemption
or repayment, if applicable, will be made in immediately
<PAGE>
<PAGE>
available funds, and interest payable at the Maturity Date or upon redemption or
repayment, if applicable, will be payable to the person to whom principal is
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 or upon redemption or repayment may be made by check mailed to the
address of the person entitled thereto as such address shall appear in the
Security Register. The Notes guaranteed as to payment of principal, premium, if
any, and interest by Newcourt Credit Corp. Inc. (the "Guarantor").
If an Initial Optional Redemption Date is specified above, this Note may
be redeemed in accordance with the terms specified on the reverse hereof, at any
time on or after such Initial Optional Redemption Date at an Initial Optional
Redemption Price specified above (expressed as a percentage of the outstanding
principal amount hereof), such Initial Optional Redemption Price to be decreased
annually on the anniversary of the Initial Optional Redemption Date specified
above by the Premium Redemption Amount specified above (expressed as a
percentage of the outstanding principal amount hereof) until the Redemption
Price equals 100% of the outstanding principal amounts hereof; provided, that if
no such Initial Optional Redemption Date is shown, the Note is not redeemable.
If an Optional Repayment Date or Dates is indicated on the face of this
Note, this Note may be subject to repayment at the option of the Holder on the
Optional Repayment Date or Dates specified on the face hereof on the terms set
forth on the reverse hereof. On any Optional Repayment Date, this Note will be
repayable in whole or in part in increments of U.S. $1,000 (provided that any
remaining principal amount hereof shall not be less than the minimum authorized
denomination hereof) at the option of the Holder hereof at a price equal to 100%
of the principal amount to be repaid, together with interest hereon payable to
the date of repayment; provided, that if no such Optional Repayment Date is
shown, the Note is not subject to repayment at the option of the Holder prior to
the Maturity Date.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET
FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL HAVE THE SAME EFFECT
AS THOUGH FULLY SET FORTH AT THIS PLACE.
This Note shall not be entitled to any benefits under the Indenture
referred to on the reverse hereof, or be valid or become obligatory for any
purpose until the certificate of authentication hereon shall have been manually
signed by or on behalf of the Trustee specified on the reverse hereof under the
Indenture.
-1-
<PAGE>
<PAGE>
IN WITNESS WHEREOF, AT&T Capital Corporation has caused this instrument
to be duly executed.
Date:____________________ AT&T CAPITAL CORPORATION
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
-2-
<PAGE>
<PAGE>
[FORM OF 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 March 1, 1999, as
amended (the "Indenture"), among the Company, the Guarantor and The Chase
Manhattan Bank, as Trustee (the "Trustee"), to which Indenture and all other
indentures supplemental thereto reference is hereby made for a description of
the rights, limitations of rights, obligations, duties and immunities of the
Trustee, the Company, the Guarantor and the Holders of the Securities, and the
terms upon which the Securities are to be authenticated and delivered. This Note
is one of a series of Securities designated as the Medium-Term Notes, Series G
(herein referred to as the "Notes").
Unless otherwise indicated on the face of this Note, this Note may not
be redeemed prior to the Maturity Date. Notice of redemption shall be mailed to
the registered Holders of the Notes designated for redemption at their last
registered addresses not less than 30 nor more than 60 days prior to the date of
redemption, subject to all the conditions and provisions of the Indenture. In
the event of redemption of this Note in part only, a new Note or Notes for the
amount of the unredeemed portion hereof shall be issued in the name of the
Holder hereof upon the presentation and cancellation hereof.
Unless an Optional Repayment Date or Dates is indicated on the face of
this Note, this Note shall not be subject to repayment at the option of the
Holder prior to the Maturity Date. For this Note to be repaid in whole or in
part at the option of the Holder hereof, the Company must receive at the
corporate trust office of the Trustee in the Borough of Manhattan, The City of
New York, at least 30 calendar days but not more than 45 calendar days prior to
the date of repayment, (i) this Note with the form entitled "Option to Elect
Repayment" below duly completed or (ii) a telegram, telex, facsimile
transmission or a letter from a member of a national securities exchange, the
National Association of Securities Dealers, Inc. or a commercial bank or trust
company in the United States setting forth the name of the Holder of this Note,
the principal amount of this Note, the principal amount of this Note to be
repaid, the certificate number or a description of the tenor and terms of this
Note, a statement that the option to elect repayment is being exercised thereby
and a guarantee that this Note to be repaid, together with the duly completed
form entitled "Option to Elect Repayment," will be received by the Trustee not
later than the third Business Day after the date of such telegram, telex,
facsimile transmission or letter; provided, that such telegram, telex, facsimile
transmission or letter shall be effective only if this Note and form duly
completed are received by the Trustee by such third Business Day.
Commencing with the Initial Interest Reset Date specified on the face
hereof following the Original Issue Date, the rate at which interest on this
Note is payable shall be reset daily, weekly, monthly, quarterly, semiannually
or annually as shown on the face hereof under "Interest Reset Period;" provided,
however, that the interest rate in effect from the Original Issue Date to the
Initial Interest Reset Date specified on the face hereof will be the Initial
Interest Rate. Each such adjusted rate shall be applicable on and after the
Interest Reset Date to which it relates to but not including the next succeeding
Interest Reset Date or until maturity, or redemption or repayment, as the case
may be. If any Interest Reset Date specified on the face hereof would
-3-
<PAGE>
<PAGE>
otherwise be a day that is not a Business Day, such Interest Reset Date shall be
postponed to the next day that is a Business Day, except that if (i) the rate of
interest on this Note shall be determined in accordance with the provisions of
the heading "Determination of LIBOR" below, and (ii) such Business Day is in the
next succeeding calendar month, such Interest Reset Date shall be the
immediately preceding Business Day. Subject to applicable provisions of law and
except as specified herein, on each Interest Reset Date, the rate of interest on
this Note shall be the rate determined in accordance with the provisions of the
applicable heading below.
Determination of Commercial Paper Rates. If the Base Rate on this Note
is the Commercial Paper Rate (a "Commercial Paper Rate Note"), the interest rate
with respect to this Note shall equal the Commercial Paper Rate (calculated as
described below) plus or minus the Spread, if any, specified on the face hereof
and/or multiplied by the Spread Multiplier, if any, specified on the face
hereof. The Commercial Paper Rate for each Interest Reset Date shall be
determined on the Calculation Date (as defined below) by the Calculation Agent
as of the second Business Day prior to such Interest Reset Date (a "Commercial
Paper Interest Determination Date") and shall be the Money Market Yield (as
defined below) on such Commercial Paper Interest Determination Date of the rate
for commercial paper having the Index Maturity designated on the face hereof, as
such rate is published by the Board of Governors of the Federal Reserve System
in "Statistical Release H.15(519), Selected Interest Rates," or any successor
publication ("H.15(519)"), under the heading "Commercial Paper--Financial." In
the event such rate is not published prior to 9:00 A.M., New York City time, on
the Calculation Date (defined below) pertaining to such Commercial Paper
Interest Determination Date, then the Commercial Paper Rate shall be the Money
Market Yield (calculated as described below) on such Commercial Paper Interest
Determination Date of the rate for commercial paper of the specified Index
Maturity as published by the Federal Reserve Bank of New York in its daily
statistical release, "Composite 3:30 P.M. Quotations for U.S. Government
Securities" ("Composite Quotations") under the heading "Commercial Paper." If by
3:00 P.M., New York City time, on such Calculation Date (defined below) such
rate is not yet published in either H.15(519) or Composite Quotations, then the
Commercial Paper Rate shall be the Money Market Yield of the arithmetic mean
(each as rounded to the nearest one hundred-thousandth of a percentage point) of
the offered rates as of 11:00 A.M., New York City time, on such Commercial Paper
Interest Determination Date of three leading dealers of commercial paper in The
City of New York selected by the Calculation Agent for the commercial paper of
the Index Maturity designated on the face hereof, placed for an industrial
issuer whose bond rating is "Aa" or the equivalent from a nationally recognized
rating agency; provided, however, that if the dealers selected as aforesaid by
the Calculation Agent are not quoting offered rates as mentioned in this
sentence, the rate of interest determined as of such Commercial Paper Interest
Determination Date will be the rate of interest in effect on such Commercial
Paper Interest Determination Date.
"Money Market Yield" shall be a yield (expressed as a percentage rounded
to the nearest one hundred-thousandth of a percentage point) calculated in
accordance with the following formula:
Money Market Yield = D x 360
______________ x 100
360 - (D x M)
-4-
<PAGE>
<PAGE>
where "D" refers to the applicable per annum rate for commercial paper quoted on
a bank discount basis and expressed as a decimal, and "M" refers to the actual
number of days in the period for which interest is being calculated.
Determination of Federal Funds Rates. If the Base Rate on this Note is
the Federal Funds Rate (a "Federal Funds Rate Note"), the interest rate with
respect to this Note shall equal the Federal Funds Rate (calculated as described
below) plus or minus the Spread, if any, specified on the face hereof and/or
multiplied by the Spread Multiplier, if any, specified on the face hereof. The
Federal Funds Rate for each Interest Reset Date shall be determined on the
Calculation Date by the Calculation Agent as of the second Business Day prior to
such Interest Reset Date (a "Federal Funds Interest Determination Date") and
shall be the effective rate for Federal Funds on such Federal Funds Interest
Determination Date as published in H.15(519) under the heading "Federal Funds
(Effective)" or, if not so published by 9:00 A.M., New York City time, on the
Calculation Date (defined below) pertaining to such Federal Funds Interest
Determination Date, the Federal Funds Rate will be the interest rate on such
Federal Funds Interest Determination Date as published in Composite Quotations
under the heading "Federal Funds/Effective Rate." If such rate is not yet
published by 3:00 P.M., New York City time, on the Calculation Date (defined
below) pertaining to such Federal Funds Interest Determination Date, the Federal
Funds Rate for such Federal Funds Interest Determination Date will be calculated
by the Calculation Agent and will be the arithmetic mean of the rates for the
last transaction in overnight United States dollar federal funds arranged by
three leading brokers of federal funds transactions in The City of New York
(which may include the Agent or its affiliates) selected by the Calculation
Agent prior to 9:00 A.M., New York City time, on such Federal Funds Rate
Interest Determination Date; provided, however, that if the brokers so selected
by the Calculation Agent are not quoting as mentioned in this sentence, the rate
of interest determined as of such Federal Funds Interest Determination Date will
be the rate of interest in effect on such Federal Funds Interest Determination
Date.
Determination of CD Rates. If the Base Rate on this Note is the CD Rate
(a "CD Rate Note"), the interest rate with respect to this Note shall equal the
CD Rate (calculated as described below) plus or minus the Spread, if any,
specified on the face hereof and/or multiplied by the Spread Multiplier, if any,
specified on the face hereof. The CD Rate for each Interest Reset Date shall be
determined on the Calculation Date by the Calculation Agent as of the second
Business Day prior to the Interest Reset Date (a "CD Interest Determination
Date") and shall be the rate for negotiable certificates of deposit having the
Index Maturity specified on the face hereof on such CD Interest Determination
Date, as such rate is published in H.15(519) under the heading "CDs (Secondary
Market)." If such rate is not so published by 9:00 A.M., New York City time, on
the Calculation Date (defined below) pertaining to such CD Interest
Determination Date, the CD Rate will be the rate on such CD Interest
Determination Date for negotiable certificates of deposit of the Index Maturity
specified on the face hereof as published in Composite Quotations under the
heading "Certificates of Deposit." If by 3:00 P.M., New York City time, on such
Calculation Date (defined below), such rate is not yet published in Composite
Quotations, the CD Rate for such CD Interest Determination Date will be
calculated by the Calculation Agent and will be the arithmetic mean of the
secondary market offered rates as of 10:00 A.M., New York City time, on such CD
Interest Determination Date of three leading nonbank dealers in negotiable U.S.
dollar certificates of deposit in The City of New York
-5-
<PAGE>
<PAGE>
selected by the Calculation Agent for negotiable certificates of deposit of
major United States money center banks (in the market for negotiable
certificates of deposit) with a remaining maturity closest to the Index Maturity
specified on the face hereof in the denomination of $5,000,000. However, if such
dealers are not so quoting such rates, the rate of interest determined as of
such CD Interest Determination Date will be the rate of interest in effect on
such CD Interest Determination Date.
Determination of LIBOR. If the Base Rate on this Note is LIBOR (a "LIBOR
Note"), the interest rate with respect to this Note shall be equal to LIBOR
(calculated as described below) plus or minus the Spread, if any, specified on
the face hereof and/or multiplied by the Spread Multiplier, if any, specified on
the face hereof. LIBOR for each Interest Reset Date shall be determined by the
Calculation Agent as follows:
(i) With respect to the second London Banking Day prior to such
Interest Reset Date (a "LIBOR Determination Date"), LIBOR will be
either: (a) if "LIBOR Reuters" is specified as the Reporting Service on
the face hereof, the arithmetic mean of the offered rates (unless the
specified Designated LIBOR Page (as defined below) by its terms provides
only for a single rate, in which case such single rate shall be used)
for deposits in the Index Currency specified on the face hereof having
the Index Maturity specified on the face hereof, commencing on such
Interest Reset Date, that appear on the Designated LIBOR Page as of
11:00 A.M., London time, on that LIBOR Determination Date, if at least
two such offered rates appear (unless, as aforesaid, only a single rate
is required) on such Designated LIBOR Page, or (b) if "LIBOR Telerate"
is specified as the Reporting Service on the face hereof, the rate for
deposits in the Index Currency having the Index Maturity commencing on
such Interest Reset Date, that appears on the Designated LIBOR Page as
of 11:00 A.M., London time, on that LIBOR Determination Date. If fewer
than two offered rates appear, or no rate appears, as applicable, LIBOR
in respect of the related LIBOR Determination Date will be determined as
if the parties had specified the rate described in clause (ii) below.
(ii) With respect to a LIBOR Determination Date on which fewer
than two offered rates appear (unless, as aforesaid, only a single rate
is required) or no rate appears, as the case may be, on the applicable
Designated LIBOR Page as specified in clause (i) above, the Calculation
Agent will request the principal London offices of each of four major
reference banks in the London interbank market, as selected by the
Calculation Agent, to provide the Calculation Agent with its offered
quotation for deposits in the Index Currency for the period of the Index
Maturity, commencing on such Interest Reset Date, to prime banks in the
London interbank market at approximately 11:00 A.M., London time, on
such LIBOR Determination Date and in a principal amount of not less than
$1,000,000 (or the equivalent in the Index Currency, if the Index
Currency is not the U.S. dollar) that is representative for a single
transaction in such Index Currency in such market at such time. If at
least two such quotations are provided, LIBOR determined on such LIBOR
Determination Date will be the arithmetic mean of such quotations. If
fewer than two quotations are provided, LIBOR determined on such LIBOR
Determination Date will be the arithmetic mean of the rates quoted at
approximately 11:00 A.M., in the applicable Principal Financial Center
(as defined
-6-
<PAGE>
<PAGE>
below) for the country of the Index Currency on such LIBOR
Determination Date, by three major banks in such Principal Financial
Center selected by the Calculation Agent for loans in the Index
Currency to leading European banks, having the Index Maturity and in a
principal amount of not less than $1,000,000 (or the equivalent in the
Index Currency, if the Index Currency is not the U.S. dollar) that is
representative for a single transaction in such Index Currency in such
market at such time; provided, however, that if the banks so selected
by the Calculation Agent are not quoting as mentioned in this sentence,
the rate of interest determined on such LIBOR Determination Date will
be the rate of interest otherwise in effect in such LIBOR Determination
Date.
If no Index Currency is specified on the face hereof, the Index Currency
shall be U.S. Dollars.
"Designated LIBOR Page" means either (a) if "LIBOR Reuters" is
designated as the Reporting Service on the face hereof, the display designated
as page "LIBO" with respect to the applicable Index Currency on the Reuters
Monitor Money Rates Service (or such other page as may replace page "LIBO" on
such service for the purpose of displaying the London interbank rates of major
banks for the applicable Index Currency), or (b) if "LIBOR Telerate" is
designated as the Reporting Service on the face hereof, the display designated
as page "3750" with respect to the applicable Index Currency on Bridge
Telerate, Inc. (or such other page as may replace page "3750" on such service
or such other service as may be nominated by the British Bankers' Association
for the purpose of displaying the London interbank rates of major banks for the
applicable Index Currency). If neither LIBOR Reuters nor LIBOR Telerate is
specified as the Reporting Service on the face hereof, LIBOR for the applicable
Index Currency will be determined as if LIBOR Telerate (and, if the U.S.
dollar is the Index Currency, page 3750) had been specified.
"Principal Financial Center" will be, for the purposes of clause (ii)
above, the principal financial center of the country of the specified Index
Currency, which generally will be the capital city of such country, except that
with respect to U.S. dollars and Deutsche marks, the Principal Financial
Center shall be The City of New York and Frankfurt, respectively.
As used herein, "London Banking Day" means any day on which dealings in
deposits in U.S. dollars are transacted in the London interbank market.
Determination of Treasury Rates. If the Base Rate on this Note is the
Treasury Rate (a "Treasury Rate Note") the interest rate with respect to this
Note shall equal the Treasury Rate (calculated as described below) plus or minus
the Spread, if any, specified on the face hereof and/or multiplied by the Spread
Multiplier, if any, specified on the face hereof. The Treasury Rate with respect
to an Interest Reset Date shall be the rate for the auction held on the Treasury
Rate Determination Date (as defined below) pertaining to such interest Reset
Date of direct obligations of the United States ("Treasury Bills") having the
Index Maturity specified above as published in H.15(519) under the heading "U.S.
Government Securities-Treasury Bills-auction average (investment)," or, if not
so published by 9:00 A.M., New York City time, on the Calculation Date (as
defined below) pertaining to such Treasury Rate Determination Date (as
-7-
<PAGE>
<PAGE>
defined below), the auction average rate (expressed as a bond equivalent on the
basis of a year of 365 or 366 days, as applicable, and applied on a daily basis)
as otherwise announced by the United States Department of the Treasury. In the
event that the results of the auction of Treasury Bills having the Index
Maturity specified above are not published or reported as provided above by 3:00
P.M., New York City time, on such Calculation Date or if no such auction is held
on such Treasury Rate Determination Date, then the Treasury Rate shall be
calculated by the Calculation Agent and shall be a yield to maturity (expressed
as a bond equivalent on the basis of a year of 365 or 366 days, as applicable,
and applied on a daily basis) of the arithmetic mean of the secondary market bid
rates, as of approximately 3:30 P.M., New York City time, on such Treasury Rate
Determination Date, of three leading primary United States government securities
dealers selected by the Calculation Agent for the issue of Treasury Bills with a
remaining maturity closest to the Index Maturity specified above; provided,
however, that if the dealers selected as aforesaid by the Calculation Agent are
not quoting bid rates as mentioned in this sentence, the rate of interest for
such Interest Reset Date will be the rate of interest in effect on such Interest
Reset Date.
The "Treasury Rate Determination Date" pertaining to an Interest Reset
Date will be the day of the week in which such Interest Reset Date falls on
which Treasury Bills would normally be auctioned. Treasury Bills are normally
sold at auction on Monday of each week, unless that day is a legal holiday, in
which case the auction is normally held on the following Tuesday, except that
such auction may be held on the preceding Friday. If, as a result of a legal
holiday, an auction is so held on the preceding Friday, such Friday will be the
Treasury Rate Determination Date pertaining to the Interest Reset Date occurring
in the next succeeding week. If an auction date shall fall on any day that would
otherwise be an Interest Reset Date for a Treasury Rate Note, then such Interest
Reset Date shall instead be the Business Day immediately following such auction
date.
Determination of Prime Rates. If the Base Rate on this Note is the Prime
Rate (a "Prime Rate Note"), the interest rate with respect to this Note shall
equal the Prime Rate (calculated as described below) plus or minus the Spread,
if any, specified on the face hereof and/or multiplied by the Spread Multiplier,
if any, specified on the face hereof. The Prime Rate with respect to any
Interest Reset Date shall be determined on the Calculation Date by the
Calculation Agent as of the second Business Day prior to such Interest Reset
Date (a "Prime Rate Interest Determination Date") and shall be the rate on such
date as published in H.15(519) under the heading "Bank Prime Loan." If such rate
is not published by 9:00 A.M., New York City time, on the Calculation Date
pertaining to such Prime Rate Interest Determination Date, the Prime Rate will
be determined by the Calculation Agent and will be the arithmetic mean of the
rates of interest publicly announced by each bank named on the "Reuters Screen
USPRIME1 Page" (as defined below) as such bank's prime rate or base lending rate
as in effect for such Prime Rate Interest Determination Date. "Reuters Screen
USPRIME1 Page" means the display designated as page "USPRIME1" on the Reuters
Monitor Money Rates Service (such term to include such other page as may replace
the USPRIME1 page on that Service for the purpose of displaying prime rates or
base lending rates of major United States banks). If fewer than four such rates
appear on the Reuters Screen USPRIME1 Page for such Prime Rate Interest
Determination Date, the Prime Rate will be determined by the Calculation Agent
and will be the arithmetic mean of the prime rates quoted on the basis of the
actual number of days elapsed divided by 360 as of the
-8-
<PAGE>
<PAGE>
close of business on such Prime Rate Interest Determination Date by at least two
major money center banks in The City of New York selected by the Calculation
Agent from a list of at least three such banks approved by the Company. If fewer
than two such rates are quoted as aforesaid, the Prime Rate will be calculated
by the Calculation Agent and will be determined as the arithmetic mean of the
prime rates furnished in The City of New York by an appropriate number (in the
judgment of the Calculation Agent) of substitute banks or trust companies
organized and doing business under the laws of the United States, or any State
thereof, in each case having total equity capital of at least U.S. $500,000,000
and being subject to supervision or examination by federal or state authority,
selected by the Calculation Agent from a list approved by the Company to provide
such rate or rates; provided that if the banks or trust companies selected as
aforesaid by the Calculation Agent from a list approved by the Company are not
quoting as mentioned in this sentence, the rate of interest determined as of
such Prime Rate Interest Determination Date will be the rate of interest in
effect on such Prime Rate Interest Determination Date.
Determination of CMT Rates. If the Base Rate on this Note is the CMT
Rate (a "CMT Rate Note"), the interest rate with respect to this Note shall
equal the CMT Rate (calculated as described below) plus or minus the Spread, if
any, specified on the face hereof and/or multiplied by the Spread Multiplier, if
any, specified on the face hereof. The CMT Rate for any Interest Reset Date
shall be determined on the Calculation Date by the Calculation Agent as of the
related CMT Rate Interest Determination Date (as defined below) and shall be the
rate displayed on the Designated CMT Telerate Page (as defined below) under the
caption " . . . Treasury Constant Maturities . . . Federal Reserve Board Release
H.15 . . . Mondays Approximately 3:45 P.M.," under the column for the Designated
CMT Maturity Index (as defined below) for (i) if the Designated CMT Telerate
Page is 7055, such CMT Rate interest Determination Date and (ii) if the
Designated CMT Telerate Page is 7052, the (week) (month) ended immediately
preceding the week in which the related CMT Rate Interest Determination Date
occurs. If such rate is no longer displayed on the relevant page, or if not
displayed by 3:00 P.M., New York City time, on the related Calculation Date,
then the CMT Rate for such CMT Rate Interest Determination Date will be such
Treasury Constant Maturity rate for the Designated CMT Maturity Index as
published in H.15(519) for such date. If such rate is no longer published, or if
not published by 3:00 P.M., New York City time, on the related Calculation Date,
then the CMT Rate for such CMT Rate Interest Determination Date will be such
Treasury Constant Maturity rate for the Designated CMT Maturity Index (or other
United States Treasury rate for the Designated CMT Maturity Index) for such CMT
Rate Interest Determination Date as may then be published by either the Board of
Governors of the Federal Reserve System or the United States Department of the
Treasury that the Calculation Agent determines to be comparable to the rate
formerly displayed on the Designated CMT Telerate Page and published in
H.15(519). If such information is not provided by 3:00 P.M., New York City time,
on the related Calculation Date, then the CMT Rate for the CMT Rate Interest
Determination Date will be calculated by the Calculation Agent and will be a
yield to maturity, based on the arithmetic mean of the secondary market offer
side prices as of approximately 3:30 P.M. (New York City time) on the CMT Rate
Interest Determination Date reported, according to their written records, by
three leading primary United States government securities dealers (each, a
"Reference Dealer") in The City of New York selected by the Calculation Agent
(from five such Reference Dealers selected by the Calculation Agent and
eliminating the highest quotation (or, in the event of equality, one of the
-9-
<PAGE>
<PAGE>
highest) and the lowest quotation (or, in the event of equality, one of the
lowest), for the most recently issued direct noncallable fixed rate obligations
of the United States ("Treasury Notes") with an original maturity of
approximately the Designated CMT Maturity Index and a remaining term to maturity
of not less than such Designated CMT Maturity Index minus one year. If the
Calculation Agent cannot obtain three such Treasury Note quotations, the CMT
Rate for such CMT Rate Interest Determination Date will be calculated by the
Calculation Agent and will be a yield to maturity based on the arithmetic mean
of the secondary market offer side prices as of approximately 3:30 P.M. (New
York City time) on the CMT Rate Interest Determination Date of three Reference
Dealers in the City of New York (from five such Reference Dealers selected by
the Calculation Agent and eliminating the highest quotation (or, in the event of
equality, one of the highest) and the lowest quotation (or, in the event of
equality, one of the lowest), for Treasury Notes with an original maturity of
the number of years that is the next highest to the Designated CMT Maturity
Index and a remaining term to maturity closest to the Designated CMT Maturity
Index and in an amount of at least $100 million. If three or four (and not five)
of such Reference Dealers are quoting as described above, the CMT Rate will be
based on the arithmetic mean of the offer prices obtained and neither the
highest nor lowest of such quotes will be eliminated; provided, however, that if
fewer than three Reference Dealers selected by the Calculation Agent are quoting
as described herein, the rate of interest determined as of such CMT Rate
Interest Determination Date will be the rate of interest in effect on such CMT
Rate Interest Determination Date. If two Treasury Notes with an original
maturity as described in the second preceding sentence have remaining terms to
maturity equally close to the Designated CMT Maturity Index, the quotes for the
CMT Rate Note with the shorter remaining term to maturity will be used.
"Designated CMT Telerate Page" means the display on Bridge Telerate,
Inc. on the page designated on the face hereof (or any other page as may
replace such page on that service for the purpose of displaying Treasury
Constant Maturities as reported in H.15(519)), for the purpose of displaying
Treasury Constant Maturities as reported in 5.15(519). If no such page is
specified on the face hereof, the Designated CMT Telerate Page shall be 7052,
for the most recent week.
"Designated CMT Maturity Index" means the original period to maturity of
the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20, or 30 years)
specified on the face hereof with respect to which the CMT Rate will be
calculated. If no such maturity is specified on the face hereof, the Designated
CMT Maturity Index shall be 2 years.
The "CMT Rate Interest Determination Date" pertaining to an Interest
Reset Date for CMT Rate Notes will be the second Business Day prior to such
Interest Reset Date.
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, shown on the face hereof. The Calculation Agent shall
calculate the interest rate on this Note in accordance with the foregoing on or
before each Calculation Date (defined below). The interest rate on this Note
will in no event be higher than the maximum rate permitted by New York law as
the same may be modified by United States law of general applicability.
-10-
<PAGE>
<PAGE>
The Calculation Agent will, upon the request of the Holder of this Note,
provide to such Holder the interest rate hereon then in effect and, if
determined, the interest rate which will become effective on the next Interest
Rate Date with respect to this Note.
The "Calculation Date," if applicable, pertaining to any Commercial
Paper Interest Determination Date, Federal Funds Interest Determination Date, CD
Interest Determination Date, Treasury Rate Determination Date, Prime Rate
Interest Determination Date or CMT Rate Interest Determination Date (an
"Interest Determination Date") shall be the date(s) specified on the face hereof
or, if no such date is specified, the earlier of (i) the tenth calendar day
after such Interest Determination Date, or, if such tenth day is not a Business
Day, the next succeeding Business Day and (ii) the Business Day preceding the
applicable Interest Payment Date or date of maturity, as the case may be.
Each date on which interest is payable on this Note is referred to
herein as an "Interest Payment Date." If any Interest Payment Date specified on
the face hereof (other than the Maturity Date) would otherwise be a day that is
not a Business Day, such Interest Payment Date will be postponed to the next
succeeding day that is a Business Day, except that in the case of a LIBOR Note,
if such Business Day falls in the next succeeding calendar month, such Interest
Payment Date will be the immediately preceding Business Day. If the Maturity
Date specified on the face hereof 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 such payment for the period from and after the
Maturity Date to the date of such payment on the next succeeding Business Day.
"Business Day" means any day, other than a Saturday or Sunday, that is neither a
legal holiday nor a way on which banking institutions are authorized or required
by law or regulation to close in The City of New York and, with respect to LIBOR
Notes, that is also a London Banking Day. "London Banking Day" means any day on
which dealings in deposits in the Index Currency are transacted in the London
interbank market.
The "Record Date" with respect to any Interest Payment Date shall be the
date 15 calendar days prior to such Interest Payment Date, whether or not such
date shall be a Business Day.
Interest payments for this Note will be the amount of interest accrued
from, and including, the Original Issue Date 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. Accrued interest shall be calculated by
multiplying the face amount hereof by an accrued interest factor. Such accrued
interest factor shall be computed by adding the interest factors calculated for
each day in the Interest Reset Period or from the last date from which accrued
interest is being calculated. The interest factor (expressed as a decimal
rounded upward to the nearest one hundred-thousandth of a percentage point) for
each such day shall be computed by dividing the interest rate (expressed as a
decimal, rounded to the nearest one hundred-thousandth of a percentage point,
with five one millionths of a percentage point rounded upward) applicable to
such day by 360, in the case of LIBOR Notes, Federal Funds Rate Notes, CD Rate
Notes, Prime Rate Notes or Commercial Paper Rate Notes, or by the actual number
of days in the year in the case of the Treasury Rate Notes or CMT Rate Notes.
-11-
<PAGE>
<PAGE>
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 Indenture permits, with certain exceptions as herein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and 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 the 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 may 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 the 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 rates and in the coin or currency
herein prescribed.
The Notes are issuable as registered Notes without coupons in the
denominations that are integral multiples of U.S. $1,000. At the office or
agency of the Company referred to on the face hereof and in the manner and
subject to the limitations provided in the Indenture, Notes may be exchanged
without a service charge for a like aggregate principal amount of Notes or other
authorized denominations having the same maturity, interest rate, optional
redemption or repayment provisions and original issue date.
Upon due presentment for registration of transfer of this Note at the
above-mentioned office or agency of the Company a new Note or Notes having the
same maturity, interest rate, optional redemption or repayment provisions and
original issue date 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 thereto.
-12-
<PAGE>
<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 hereon) 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 other
purposes, and neither the Company nor 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
corporation, either directly or through the Company, the Guarantor or any
successor corporation, 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.
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
JT TEN-as joint tenants
TEN ENT-as tenants by the entireties with right of survivorship and not
as tenants in common
UNIF GIFT MIN ACT __________________Custodian ___________________
(Cust) (Minor)
Under Uniform Gifts to Minors Act _____________________
(State)
Additional abbreviations may also be used though not in the above list.
-13-
<PAGE>
<PAGE>
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 at the
Company, with full power of substitution in the premises.
Dated:___________________ ______________________________
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.
-14-
<PAGE>
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Company to repay the within Note (or portion thereof specified below) pursuant
to its terms at a price equal to the principal amount thereof, together with
interest to the Optional Repayment Date, to the undersigned at
________________________________________________________________________________
(Please print or typewrite name and address of the undersigned)
If less than the entire principal amount of the within Note is to be
repaid, specify the portion thereof (which shall be increments of U.S. $1,000)
which the holder elects to have repaid: _________________________; and specify
the denomination or denominations (which shall be increments of U.S. $1000) of
the Notes to be issued to the holder for the portion of the within Note not
being repaid (in the absence of any such specification, one such Note will be
issued for the portion not being repaid): _________________________.
____________________________________________
Date:______________ ____________________________________________
NOTICE: The signature on this Option to
Elect Repayment must correspond with the
name as written upon the face of the within
instrument in every particular without
alteration or enlargement or any change
whatsoever.
-15-
<PAGE>
<PAGE>
FORM OF DEBT SECURITIES GUARANTEE
Guarantee dated as of March 1, 1999 (this "Guarantee"), made by
Newcourt Credit Group Inc. (together with its successors and assigns, the
"Guarantor"), a corporation incorporated under the laws of the Province of
Ontario, to and in favor of The Chase Manhattan Bank, as Trustee (together with
its successors and assigns, the "Trustee"), for the benefit of the registered
holders of the Securities (as such term is herein defined) (collectively, the
"Holders").
WHEREAS, the Guarantor is the indirect parent and owner of all the
issued and outstanding capital stock of AT&T Capital Corporation (the
"Company");
AND WHEREAS, the Company will issue from time to time debentures, notes
and other obligations, which are issuable in one or more series (the
"Securities"), pursuant to the Indenture dated as of March 1, 1999 by and
among the Guarantor, the Company and the Trustee (the "Indenture").
NOW THEREFORE, in consideration of the foregoing premises, and other
good and valuable consideration given by the Holders and the Company to the
Guarantor, the receipt and sufficiency of which are hereby acknowledged, the
Guarantor hereby agrees as follows (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 each Holder 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 (the obligations set forth in
this Section 1 being herein called the "Guaranteed Obligations").
Section 2. Absolute Liability. The Guarantor hereby guarantees that the
Guaranteed Obligations will be paid to the Holders strictly in accordance with
the terms and conditions hereof, and that the liability of the Guarantor under
this Guarantee shall be absolute and unconditional irrespective of:
(a) the validity or enforceability of the 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;
<PAGE>
<PAGE>
(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 Guarantor's
obligations hereunder.
Section 4. Payment on Demand. The Guarantor shall make payment of the
amount of the Guaranteed Obligations and all other amounts payable by it to the
Holders hereunder forthwith after demand therefor is made in writing to it and
such demand shall be deemed to have been effectively made when either an
envelope containing such demand, addressed to it c/o Newcourt Credit Group Inc.,
2 Gatehall Drive, 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 Guarantor, for the attention of the Treasurer,
at the following fax number: (973) 355-7021.
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
-2-
<PAGE>
<PAGE>
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 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
-3-
<PAGE>
<PAGE>
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 of each Series (with each Series voting as
a class), 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 each such Series under this Guarantee. 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 Guarantor with any provision of this
Guarantee; 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 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.
Section 11. Interest Act (CANADA). The Guarantor acknowledges that, for
the purposes of the Interest Act (Canada), (i) whenever any interest or fee
applicable to the Guaranteed Obligations is calculated using a rate based on a
year of 360 days or 365 days, such rate determined pursuant to such calculation,
when expressed as an annual rate, is equivalent to (x) the applicable rate based
on a year of 360 days or 365 days, as the case may be (y) multiplied by the
actual number of days in the calendar year in which the period for which such
interest or fee is payable (or compounded) ends, and (z) divided by 360 or 365
as the case may be; (ii) the
-4-
<PAGE>
<PAGE>
principle of deemed reinvestment of interest does not apply to any interest
calculation in respect of the Guaranteed Obligations; and (iii) the rates of
interest stipulated in respect of the Guaranteed Obligations are intended to be
nominal rates and not effective rates or yields.
Section 12. Successors of the Company. Any change or changes in the name
of the Company or reorganization (whether by way of reconstruction,
consolidation, amalgamation, merger, transfer, sale, lease or otherwise) of the
Company or its business or any change in the ownership of any shares of the
capital stock of the Company shall not affect or in any way limit or lessen the
liability of the Guarantor hereunder.
Section 13. 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 14. Representations and Warranties. The Guarantor represents and
warrants that:
(a) Organization and Qualification. It is a corporation duly incorporated
and validly existing under the laws of the Province of Ontario.
(b) Corporate Power. It has full corporate right, power and authority to
own its property and assets and to carry on its business as now conducted and as
contemplated to be conducted and to enter into and perform this Guarantee.
(c) Conflict with Other Instruments. Neither the execution and delivery
of this Guarantee nor the consummation of the transactions herein contemplated
nor compliance with the terms, conditions and provisions hereof (i) conflicts
with or results in a breach of any of the terms, conditions or provisions of (A)
its charter documents or by-laws; (B) any law, rule or regulation having the
force of law; (C) any material contractual restriction binding on or affecting
it or its properties; or (D) any writ, judgment, injunction, determination or
award which is binding on it; or (ii) results in, or requires the creation or
imposition of any lien upon or security interest in or with respect to the
properties now owned or hereafter acquired by it under any contractual provision
binding on or affecting it.
(d) Authorization, Governmental Approvals, etc. The execution and
delivery of this Guarantee and the consummation by it of the transactions herein
contemplated have been duly authorized by all necessary corporate action and no
authorization, consent, approval, license or exemption under any applicable law,
rule or regulation having the force of law, and no registration, qualification,
designation, declaration, recording, or filing with any official body, is or was
necessary therefor or to perfect the same or to preserve the benefit thereof to
the Holders, except such as are in full force and effect, unamended, at the date
hereof.
-5-
<PAGE>
<PAGE>
(e) Execution and Binding Obligation. This Guarantee has been duly
executed and delivered by it, and constitutes the legal, valid and binding
obligation of it enforceable against it in accordance with its terms, subject to
the effect of any applicable bankruptcy, fraudulent conveyance, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights 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 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 Guarantor, through a subsidiary of which it is the
registered and beneficial holder of 100% of the issued and outstanding shares of
the capital stock, is the registered and beneficial holder of 100% of the issued
and outstanding shares of the capital stock of the Company.
Section 15. Payment of Taxes and Other Taxes.
(a) The Guarantor hereby agrees to obtain any necessary exchange control
approvals, consents or authorizations which may at any time and from time to
time be required by the laws of the Province of Ontario or any state in the
United States in connection with the making of payments hereunder. Any and all
payments by the Guarantor hereunder shall be made and shall be free and clear of
and without set-off or counterclaim and without deduction for or on account of,
or withholding for any and all present or future income or other taxes, levies,
imposts, dues, charges, fees, deductions, withholdings or restrictions or
conditions of any nature whatever now or hereafter imposed, levied, collected or
withheld or assessed by any country (or by any political subdivision or taxing
authority thereof or therein), and all liabilities with respect thereto (all
such taxes, levies, imposts, duties, charges, fees, deductions, withholdings and
liabilities being hereinafter referred to as "Taxes") unless such Taxes are
required by law or the administration thereof to be deducted or withheld. If the
Guarantor shall be required by law to deduct or withhold any Taxes from or in
respect of any amount payable hereunder, subject as provided in the next
following sentence, (i) the sum payable shall be increased as may be necessary
so that after making all required deductions or withholdings (including
deduction or witholding 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.
-6-
<PAGE>
<PAGE>
(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
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 16. Governing Law.
(a) This Guarantee shall be governed by and construed in accordance with
the laws of the State of New York applicable therein and shall be treated in all
respects as a New York contract.
(b) The Guarantor hereby (i) irrevocably submits to the jurisdiction of
any court sitting in the State of New York over any suit, action or proceeding
arising out of or relating to this Guarantee or the Indenture; (ii) irrevocably
agrees that all claims in respect of any such action or proceeding may be heard
and determined in such court; (iii) irrevocably waives, to the fullest extent
permitted by law, any objection which it may have or hereafter have to the
laying of the venue of any such suit, action or proceeding brought in such a
court and any claim that any such suit, action or proceeding brought in such a
court has been brought in an inconvenient forum; and (iv) irrevocably appoints
Newcourt Credit Group USA Inc. (the "Process Agent"), with an office at the date
hereof at 2 Gatehall Drive, Parsippany, NJ 07054 (Fax No. (973) 355-7059), its
authorized agent to accept and acknowledge service of any and all process which
may be served in any suit, action or proceeding. Such service may be made by
delivering a copy of such process to the Guarantor in care of the Process Agent
at the Process Agent's above address and the Guarantor hereby irrevocably
authorizes and directs the Process Agent to accept such service on its behalf.
As an alternative method of service, the Guarantor also irrevocably consents to
the service of any and all process in any such action or proceeding by the
delivery of copies of such process to the Guarantor to: BCE Place, 181 Bay
Street, P.O. Box 827, Toronto, Canada M5J 2T3 for the attention of the
President. The Guarantor agrees that a final judgment in any such action or
proceeding may be enforced in any other manner provided by law. Nothing in this
Section shall affect the right of the Holders to serve process in any manner
permitted by law or limit the rights of the Trustee or the Holders to bring
proceedings against the Guarantor in the courts of any other jurisdiction.
(c) Subject to Section 16(e), the Guarantor hereby consents in respect of
any legal action or proceedings arising out of or in connection with this
Guarantee for the payment and performance hereof to the giving of any relief or
the issue of any process in connection with such action or proceedings,
including, without limitation, the making, enforcement or execution against any
property whatsoever (irrespective of its use or intended use) of any order or
judgment which may be made or given in such action or proceedings.
-7-
<PAGE>
<PAGE>
(d) To the extent that the Guarantor has or hereafter may acquire any
immunity from the jurisdiction of any court or from any legal process (whether
service of notice, attachment prior to judgment, attachment in the aid of
execution, execution or otherwise) with respect to itself or its property, the
Guarantor hereby irrevocably waives, to the fullest extent permitted by law,
such immunity in respect of its obligations under this guarantee and any
security for the payment and performance hereof.
(e) Nothing in this Section shall constitute a waiver by the Guarantor of
any right to (i) appeal any order or judgment referred to herein; (ii) seek any
stay or reconsideration or review of any such order or judgment, or (iii) seek
any stay of execution or levy pending any appeal from, or suit, action or
proceeding for reconsideration or review of, any such order or judgment.
(f) The Guarantor agrees that the Trustee or the Holders shall have the
right to proceed against the Guarantor or its property in a court in any
location to enable such person to (i) obtain personal jurisdiction over the
Guarantor, or (ii) to enforce a judgment or other court order entered in favor
of such person. The Guarantor agrees that it will not assert any permissive
counterclaims in any proceeding brought by such person to enforce a judgment or
other court order in favor of such person. The Guarantor waives any objection
that it may have to the location of the court in which such person has commenced
a proceeding described in this subsection.
Section 17. 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 18. 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 19. 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. The Guarantee is assignable by the Holders to the
extent and in the same proportion that any 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]
-8-
<PAGE>
<PAGE>
IN WITNESS WHEREOF, the Guarantor has duly executed this Guarantee as of
the day and year first above written.
NEWCOURT CREDIT GROUP INC.
By:______________________________
Name:
Title:
-9-
<PAGE>
<PAGE>
FORM OF WARRANT GUARANTEE
Guarantee dated as of March 1, 1999, made by Newcourt Credit Group
Inc. (the "Guarantor"), a corporation incorporated under the laws of the
Province of Ontario, to and in favor of _______________________________ for the
benefit of the holders of the Securities (as defined herein) (collectively, the
"Holders").
WHEREAS the Guarantor is the owner of all the issued and outstanding
capital stock of AT&T Capital Corporation (the "Company");
AND WHEREAS the Company will issue from time to time (i) warrants to
purchase the Debt Securities ("Debt Warrants") pursuant to a Debt Warrant
Agreement substantially in the form attached hereto as Exhibit A (the "Debt
Warrant Agreement"); (ii) warrants entitling the holder thereof to receive from
the Company, upon exercise, an amount in cash equal to the cash value of the
right to purchase or to sell a certain amount of one currency for a certain
amount of a different currency ("Currency Warrants") pursuant to a Currency
Warrant Agreement substantially in the form attached hereto as Exhibit B (the
"Currency Warrant Agreement"); (iii) warrants entitling the holders thereof to
receive from the Company, upon exercise, an amount in cash determined by
reference to decreases or increases in the level of a specified index or
determined by reference between two specified indices ("Index Warrants")
pursuant to an Index Warrant Agreement substantially in the form attached hereto
as Exhibit C (the "Index Warrant Agreement"); and (iv) warrants entitling the
holders thereof to receive from the Company, upon exercise, an amount in cash
determined by reference to decreases or increases in the yield or closing price
of one or more specified debt instruments issued by either the United States
government or by a foreign government, in the interest rate or interest swap
rate established from time to time by one or more specified financial
institutions or in any specified combination thereof ("Interest Rate Warrants"
and together with the Debt Warrants, Currency Warrants and the Index Warrants,
the "Securities") pursuant to an Interest Rate Warrant Agreement substantially
in the form attached hereto as Exhibit D (the "Interest Rate Warrant Agreement"
and together with the Debt Warrant Agreement, Currency Warrant Agreement and
Index Warrant Agreement, the "Warrant Agreements").
NOW THEREFORE, in consideration of the foregoing premises, and other
good and valuable consideration given by the Holders and the Company to the
Guarantor, the receipt and sufficiency of which are hereby acknowledged, the
Guarantor hereby agrees as follows:
Section 1. Guarantee. The Guarantor hereby irrevocably and
unconditionally guarantees (as a guarantor and not as a surety) (a) to each
holder of Currency Warrants, Index Warrants and Interest Rate Warrants the due
and punctual payment of all obligations of the Company when and as the same
shall become due and payable, whether upon exercise or otherwise, according to
the terms of the applicable Warrant Agreements; and (b) to the holders of the
Debt Warrants the punctual performance of the obligations of the Company
according to the terms of the Debt Warrant Agreement (the obligations set forth
in clauses (a)-(b) being herein called the "Guaranteed Obligations").
<PAGE>
<PAGE>
Section 2. Absolute Liability. The Guarantor hereby guarantees that the
Guaranteed Obligations will be paid to the Holders strictly in accordance with
the terms and conditions hereof, and that the liability of the Guarantor under
this Guarantee shall be absolute and unconditional irrespective of:
(a) the validity or enforceability of the Securities or the
Warrant Agreements;
(b) any contest by the Company or any other person as to the
amount of the Guaranteed Obligations or the validity or enforceability
of the Securities or the Warrant Agreements;
(c) any defense, counter-claim or right of set-off available to
the Company;
(d) any extension of the time or times for payment of the
Guaranteed Obligations or any other indulgences which the Holders may
grant to the Company or any amendment to or alteration of the Warrant
Agreements or the Securities;
(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 guarantees set forth in Section 1(a) constitute
present and continuing guarantees of payment and performance and not of
collection. The guarantee set forth in Section 1(b) constitutes a present and
continuing guarantee of performance. The Guarantor agrees that its obligations
hereunder shall be joint and several with any and all other guarantees given in
connection with the Guaranteed Obligations from time to time. The Guarantor
agrees that the Holders shall not be bound to exhaust their recourse against the
Company or any other person or to realize on any security they may hold in
respect of the Guaranteed Obligations before being entitled to payment or
performance hereunder. The Guarantor hereby waives the right to require the
Holders to join the Company in any action brought hereunder or to commence any
action against or obtain any judgment against the Company or to pursue any other
remedy or enforce any other right. The Guarantor further agrees that nothing
contained herein or otherwise shall prevent the Holders from pursuing
concurrently or successively all rights and remedies available to them at law
and/or in equity or under the Warrant Agreements, and the exercise of any of
their rights or the completion of any of their remedies shall not constitute a
discharge of any of Guarantor's obligations hereunder.
Section 4. Payment on Demand. The Guarantor shall make payment of the
amount of the Guaranteed Obligations and all other amounts payable by it (or
performance with respect to the Debt Warrants) to the Holders hereunder
forthwith after demand therefor is made in writing to it and such demand shall
be deemed to have been effectively made when either an envelope
-2-
<PAGE>
<PAGE>
containing such demand, addressed to it c/o Newcourt Credit Group Inc., 2
Gatehall Drive, 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.
Section 5. Subrogation. Upon receipt by the Holders of any payment or
payments (or performance with respect to the Debt Warrants) on account of
liability under this Guarantee, the Guarantor shall not be entitled to claim
repayment against the Company until the claims of the Holders against the
Company in respect of the Guaranteed Obligations have been repaid (or performed
with respect to the Debt Warrants) in full; and in the case of the liquidation,
winding-up or bankruptcy of the Company (whether voluntary or compulsory) or in
the event that the Company shall make a bulk sale of any of the Company's assets
within the provisions of any bulk sales legislation or makes an assignment for
the benefit of creditors or the assets of the Company are distributed to
creditors for any other reason, the Holders shall have the right to rank in
priority to the Guarantor for their full claims in respect of the Guaranteed
Obligations and receive all distributions and other payments in respect thereof
until their claims in respect of the Guaranteed Obligations have been paid in
full, and the Guarantor shall continue to be liable, less any payments made by
or on behalf of the Guarantor, for any balance which may be owing to the Holders
by the Company. If any amount shall be paid to the Guarantor on account of any
subrogation rights at any time when all the Guaranteed Obligations shall not
have been paid in full, such amount shall be held in trust for the benefit of
the Holders and shall forthwith be paid to the Holders.
Section 6. Subordination. All obligations, liabilities and indebtedness
of the Company to the Guarantor of any nature whatsoever (the "Corporate
Indebtedness") shall be subordinated to the payment in full of all obligations
owing by the Company to the Holders. The Guarantor shall not assign the
Corporate Indebtedness nor any part thereof to any person other than to a
subsidiary of the Company which has provided a guarantee to the Holders in
respect of the Guaranteed Obligations in the form and substance of this
Guarantee, without the prior written consent of the Holders.
Section 7. Suspension of Guarantor Rights. The Guarantor agrees that so
long as any obligations remain outstanding hereunder, whether present or future,
direct or indirect, absolute or contingent, matured or not, the Guarantor shall
not exercise any rights which the Guarantor may at any time have by reason of
the performance of any of its obligations hereunder:
(i) to be indemnified by the Company;
(ii) to claim contribution from any other guarantor of the debts,
liabilities or obligations of the Company; or
(iii) to take the benefit (in whole or in part and whether by way
of subrogation or otherwise) of any rights of the Holders under the
Warrant Agreements.
Section 8. Waivers. The Guarantor hereby waives, to the extent permitted
by applicable law, any and all defenses available to guarantors, sureties and
other secondary parties
-3-
<PAGE>
<PAGE>
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 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 applicable Warrant Agreement,
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 to inform the
Guarantor of any facts the Holders may now or hereafter know about the Company,
the Securities or the transactions contemplated by the Warrant Agreements, it
being understood and agreed that the Holders have no duty to so inform 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 marshalling of assets of the
Company or any other action by any court or governmental body with respect
thereto. No modification or waiver of any of the provisions of this Guarantee
shall be binding upon the Holders except as expressly set forth in a writing
duly signed and delivered on behalf of the Holders; provided, however, the
Company, the Guarantor and [_________________] may amend this Guarantee to cure
any ambiguity, defect or inconsistency herein, provided no such action shall
adversely affect the rights of any Holder.
Section 9. Continuing Guarantee. The guarantee herein shall be a
continuing guarantee and shall extend to all present and future Guaranteed
Obligations and shall be binding as a continuing obligation of the Guarantor
until the earlier of (i) the Holders release the Guarantor from any further
obligation hereunder; and (ii) the date on which the Company or the Guarantor
shall have performed and satisfied in full the Guaranteed Obligations. This
Guarantee shall continue to be effective or be reinstated, as the case may be,
if at any time any payment (or performance with respect to the Debt Warrants) of
any of the Guaranteed Obligations is rescinded or must otherwise be refunded by
the Holders upon the insolvency, bankruptcy or reorganization of the Company or
otherwise, regardless of whether the Holders contested the order requiring the
return of such payment, all as though such payment had not been made.
Section 10. Interest Act (Canada). The Guarantor acknowledges that, for
the purposes of the Interest Act (Canada), (i) whenever any interest or fee
applicable to the Guaranteed Obligations is calculated using a rate based on a
year of 360 days or 365 days, such rate determined pursuant to such calculation,
when expressed as an annual rate, is equivalent to (x) the applicable rate based
on a year of 360 days or 365 days, as the case may be, (y) multiplied by the
actual number of days in the calendar year in which the period for which such
interest or fee is payable (or compounded) ends, and (z) divided by 360 or 365
as the case may be; (ii) the principle of deemed reinvestment of interest does
not apply to any interest calculation in respect of the Guaranteed Obligations;
and (ii) the rates of interest stipulated in respect of the Guaranteed
Obligations are intended to be nominal rates and not effective rates or yields.
Section 11. Successors of the Company. Any change or changes in the name
of the Company or reorganization (whether by way of reconstruction,
consolidation, amalgamation,
-4-
<PAGE>
<PAGE>
merger, transfer, sale, lease or otherwise) of the Company or its
business or any change in the ownership of any shares of the capital stock
of the Company shall not affect or in any way limit or lessen the liability
of the Guarantor hereunder and this Guarantee shall extend to any person,
firm or company which acquires the Company or its business.
Section 12. Consolidation or Merger, etc., on Certain Terms. (a) The
Guarantor covenants that it will not merge or consolidate with any other
individual, partnership, limited liability company, corporation, trust, joint
venture, joint stock company, association, unincorporated organization or
other entity (a "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
(as defined below) or any successor thereto (such a sale or conveyance being
called an "Asset Drop-Down")), unless (i) the Guarantor shall be the continuing
corporation or the successor corporation or the Person which acquires by sale
or conveyance substantially all the assets of the Guarantor shall expressly
assume the due and punctual performance and observance of all of the covenants
and conditions of this Guarantee to be performed or observed by the Guarantor,
by execution and delivery of a Guaranty relating to the Guaranteed Obligations,
substantially in the form of this Guarantee, and (ii) 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 Guarantee, 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 Guarantor for purposes of this Section 12(a). "Subsidiary" means any
corporation more than 50% of the outstanding voting stock of which is owned,
directly or indirectly, by any Person and/or by one or more other Subsidiaries
(including the Company). For purposes of such definition, "voting stock" means
stock ordinarily having voting power for the election of directors, whether at
all times or only so long as no senior class of stock has such voting power by
reason of any contingency.
(b) In case of any such consolidation, merger, sale or conveyance, and
following such an assumption by the successor Person, such successor Person
shall succeed to and be substituted for the Guarantor, with the same effect as
if it had been named herein.
In the event of any such sale or conveyance (other than a conveyance by
way of lease), the Guarantor or any successor Person which shall theretofore
have become such in the manner described in this Section 12 shall be released
and discharged from all obligations and covenants under this Guarantee.
Section 13. 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 14. Representations and Warranties. The Guarantor represents and
warrants that:
(a) Organization and Qualification. It is a corporation duly
incorporated and validly existing under the laws of the Province of
Ontario.
(b) Corporate Power. It has full corporate right, power and
authority to own its property and assets and to carry on its business as
now conducted and as contemplated to be conducted and to enter into and
perform this Guarantee.
(c) Conflict with Other Instruments. Neither the execution and
delivery of this Guarantee nor the consummation of the transactions
herein contemplated nor compliance with the terms, conditions and
provisions hereof (i) conflicts with or results in a breach of any of
the terms, conditions or provisions of (A) its charter documents or
by-laws; (B) any law, rule or regulation having the force of law; (C)
any material contractual restriction binding on or affecting it or its
properties; or (D) any writ, judgment, injunction, determination or
award which is binding on it; or (ii) results in, or requires the
creation or imposition of any lien upon or security interest in or with
respect to the properties now owned or hereafter acquired by it under
any contractual provision binding on or affecting it.
(d) Authorization, Governmental Approvals Etc. The execution and
delivery of this Guarantee and the consummation by it of the
transactions herein contemplated have been duly authorized by all
necessary corporate action and no authorization, consent, approval,
license or exemption under any applicable law, rule or regulation having
the force of law, and no registration, qualification, designation,
declaration, recording, or filing with any official body, is or was
necessary therefor or to perfect the same or to preserve the benefit
thereof to the Holders, except such as are in full force and effect,
unamended, at the date hereof.
(e) Execution and Binding Obligation. This Guarantee has been
duly executed and delivered by it, and constitutes the legal, valid and
binding obligation of it enforceable against it in accordance with its
terms, subject to the effect of any applicable bankruptcy, fraudulent
conveyance, insolvency, reorganization, moratorium or similar
-5-
<PAGE>
<PAGE>
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 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 Guarantor, through a subsidiary of which it is
the registered and beneficial holder of 100% of the issued and
outstanding shares of the capital stock, is the registered and
beneficial holder of 100% of the issued and outstanding shares of the
capital stock of the Company.
Section 15. Payment of Taxes and Other Taxes. (a) The Guarantor hereby
agrees to obtain any necessary exchange control approvals, consents or
authorizations which may at any time and from time to time be required by the
laws of the Province of Ontario or any state in the United States in connection
with the making of payments hereunder. Any and all payments by the Guarantor
hereunder shall be made and shall be free and clear of and without set-off or
counterclaim and without deduction for or on account of, or withholding for any
and all present or future income or other taxes, levies, imposts, dues, charges,
fees, deductions, withholdings or restrictions or conditions of any nature
whatever now or hereafter imposed, levied, collected or withheld or assessed by
any country (or by any political subdivision or taxing authority thereof or
therein), and all liabilities with respect thereto (all such taxes, levies,
imposts, duties, charges, fees, deductions, withholdings and liabilities being
hereinafter referred to as "Taxes") unless such Taxes are required by law or the
administration thereof to be deducted or withheld. If the Guarantor shall be
required by law to deduct or withhold any Taxes from or in respect of any amount
payable hereunder, subject as provided in the next following sentence, (i) the
sum payable shall be increased as may be necessary so that after making all
required deductions or withholdings (including deduction or withholding
applicable to additional amounts paid under this Section), the Holders receive
an amount equal to the sum they would have received if no deduction or
withholding had been made, (ii) the Guarantor shall make such deductions or
withholdings, and (iii) the Guarantor shall pay the full amount deducted or
withheld to the relevant taxation or other authority in accordance with
applicable law.
(b) The Guarantor shall pay any present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies (all such
taxes, charges and levies being hereinafter referred to as "Other Taxes") which
arise from any payment made hereunder or from the execution, delivery or
registration of, or otherwise with respect to, this Guarantee.
(c) The Guarantor shall indemnify the Holders for the full amount of
Taxes or Other Taxes (including, without limitation, any Taxes or Other Taxes
imposed by any jurisdiction on amounts payable under this Section) paid by the
Holders and any liability (including penalties, interest and expenses) arising
therefrom or with respect thereto, whether or not such Taxes or
-6-
<PAGE>
<PAGE>
Other Taxes were correctly or legally asserted. Payment under this
indemnification shall be made within 30 days from the date the Holders make
written demand therefor. A certificate as to the amount of such Taxes or Other
Taxes submitted to the Guarantor by the Holders and evidence of payment thereof
shall, in the absence of manifest error, be prima facie evidence of the amount
due by the Guarantor to the Holders.
Section 16. Governing Law. (a) This Guarantee shall be governed by and
construed in accordance with the laws of the State of New York applicable
therein and shall be treated in all respects as a New York contract.
(b) The Guarantor hereby (i) irrevocably submits to the jurisdiction of
any court sitting in the State of New York over any suit, action or proceeding
arising out of or relating to this Guarantee or the Warrant Agreements; (ii)
irrevocably agrees that all claims in respect of any such action or proceeding
may be heard and determined in such court; (iii) irrevocably waives, to the
fullest extent permitted by law, any objection which it may have or hereafter
have to the laying of the venue of any such suit, action or proceeding brought
in such a court and any claim that any such suit, action or proceeding brought
in such a court has been brought in an inconvenient forum; and (iv) irrevocably
appoints Newcourt Credit Group USA Inc. (the "Process Agent"), with an office at
the date hereof at 2 Gatehall Drive, Parsippany, NJ 07054 (Fax No. (973)
355-7059), its authorized agent to accept and acknowledge service of any and all
process which may be served in any suit, action or proceeding. Such service may
be made by delivering a copy of such process to the Guarantor in care of the
Process Agent at the Process Agent's above address and the Guarantor hereby
irrevocably authorizes and directs the Process Agent to accept such service on
its behalf. As an alternative method of service, the Guarantor also irrevocably
consents to the service of any and all process in any such action or proceeding
by the delivery of copies of such process to the Guarantor to: BCE Place, 181
Bay Street, P.O. Box 827, Toronto, Canada M5J 2T3 for the attention of the
President. The Guarantor agrees that a final judgment in any such action or
proceeding may be enforced in any other manner provided by law. Nothing in this
Section shall affect the right of the Holders to serve process in any manner
permitted by law or limit the rights of the Holders to bring proceedings against
the Guarantor in the courts of any other jurisdiction.
(c) Subject to Section 15(e), the Guarantor hereby consents in respect of
any legal action or proceedings arising out of or in connection with this
Guarantee for the payment and performance hereof to the giving of any relief or
the issue of any process in connection with such action or proceedings,
including, without limitation, the making, enforcement or execution against any
property whatsoever (irrespective of its use or intended use) of any order or
judgment which may be made or given in such action or proceedings.
(d) To the extent that the Guarantor has or hereafter may acquire any
immunity from the jurisdiction of any court or from any legal process (whether
service of notice, attachment prior to judgment, attachment in the aid of
execution, execution or otherwise) with respect to itself or its property, the
Guarantor hereby irrevocably waives, to the fullest extent permitted by law,
such immunity in respect of its obligations under this Guarantee and any
security for the payment and performance hereof.
-7-
<PAGE>
<PAGE>
(e) Nothing in this Section shall constitute a waiver by the Guarantor of
any right to (i) appeal any order or judgment referred to herein; (ii) seek any
stay or reconsideration or review of any such order or judgment, or (iii) seek
any stay of execution or levy pending any appeal from, or suit, action or
proceeding for reconsideration or review of, any such order or judgment.
(f) The Guarantor agrees that the Holders shall have the right to proceed
against the Guarantor or its property in a court in any location to enable such
person to (i) obtain personal jurisdiction over the Guarantor, or (ii) to
enforce a judgment or other court order entered in favor of such person. The
Guarantor agrees that it will not assert any permissive counterclaims in any
proceeding brought by such person to enforce a judgment or other court order in
favor of such person. The Guarantor waives any objection that it may have to the
location of the court in which such person has commenced a proceeding described
in this subsection.
Section 17. Amendment.
(a) This Guaranty may be amended only with the written consent of
each Holder affected by such amendment; provided that no such Holder may
consent to such amendment unless such consent is given in accordance
with the provisions of the Security held by such Holder.
(b) Notwithstanding the provisions of Section 17(a), the
Guarantor and [___________] 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.
Section 18. 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 19. 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 20. Successors and Assigns. This Guarantee shall extend to and
inure to the benefit of [_________________] 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 underlying interest in the Securities
and applicable Warrant Agreements has been assigned.
-8-
<PAGE>
<PAGE>
IN WITNESS WHEREOF, the Guarantor has duly executed this Guarantee and
affixed its corporate seal under the hand of its proper officer(s) duly
authorized in that behalf as of the day and year first above written.
NEWCOURT CREDIT GROUP INC.
By_______________________________
Name:
Title:
-9-
<PAGE>
<PAGE>
March 2, 1999
AT&T Capital Corporation
2 Gatehall Drive
Parsippany, New Jersey 07054
Newcourt Credit Group Inc.
BCE Place, 181 Bay Street, Suite 3500
Toronto, Ontario Canada M5J 2T3
Ladies and Gentlemen:
We hereby refer to the joint Registration Statement on Form F-3 (the
"Registration Statement") filed by AT&T Capital Corporation, a Delaware
corporation (the "Company"), and Newcourt Credit Group Inc., an Ontario
corporation ("Newcourt"), with the Securities and Exchange Commission under the
Securities Act of 1933, as amended (the "Securities Act"), relating to the
registration by the Company of one or more series of debt securities (the "Debt
Securities") under the Indenture to be dated as of March 1, 1999 (the
"Indenture") among the Company, Newcourt and The Chase Manhattan Bank, as
trustee (the "Trustee"), and warrants to purchase Debt Securities, currency
warrants, index warrants and interest rate warrants (collectively, the
"Warrants") and the registration by Newcourt of guarantees of the Debt
Securities ("Debt Securities Guarantees") and the Warrants ("Warrant Guarantees"
and collectively, the "Guarantees").
This opinion is being delivered to you pursuant to the requirements of
Item 601(b) (5) of Regulation S-K under the Securities Act.
We have reviewed the forms of Indenture, Debt Securities Guarantee,
Warrant Guarantee, Debt Warrant Agreement, Index Warrant Agreement, Currency
Warrant Agreement and Interest Rate Warrant Agreement that have been filed as
Exhibits to the Registration Statement with respect to the proposed issuance and
delivery of the Debt Securities and Warrants and have examined such questions of
law, as we have considered relevant and necessary as a basis for this opinion.
In our examination, we have assumed the legal capacity of all natural
persons. In rendering this opinion, we have assumed that all the parties to
execute the documents reviewed by us as well as the Debt Securities 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, and due execution and delivery by such parties of such documents and
Debt Securities and, except as specifically provided for herein, the validity
and binding effect thereof. As to any facts material to the opinions expressed
herein which we did not independently establish or verify, we have relied upon
the
<PAGE>
<PAGE>
AT&T Captital Corporation
Newcourt Credit Group Inc.
March 2, 1999
Page 2
accuracy and completeness of the representations of the Company and Newcourt
contained in the documents reviewed by us. Additionally, we have assumed that
the Registration Statement, as finally amended, has been declared effective
under the Securities Act and no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that purpose has
been initiated or threatened by the Securities and Exchange Commission and any
prospectus or prospectus supplement required to be delivered to a purchaser
thereof pursuant to the Securities Act shall have been duly delivered.
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 on the foregoing, and assuming that the terms of each series of
Debt Securities, Warrants and Guarantees are otherwise in compliance with
applicable law at the time of issuance of such securities, we are of the opinion
that:
1. When the Indenture, substantially in the form reviewed by us,
has been duly authorized, executed and delivered by the parties thereto
and shall have been qualified under the Trust Indenture Act of 1939, as
amended and, with respect to each series of Debt Securities, when (a)
the amount, price, interest rate and other principal terms of the Debt
Securities relating to such series of Debt Securities have been duly
approved by all requisite corporate action; (b) such Debt Securities
shall have been duly authorized, executed and authenticated as provided
in, and in compliance with the terms of, the Indenture and shall have
been duly paid for and delivered, such Debt Securities will constitute
legally valid and binding obligations of the Company enforceable in
accordance with, and subject to, their terms and entitled to the
benefits of the Indenture; and
2. With respect to each issue of Warrants, when (a) the
principal terms of the Warrants to be issued shall have been duly
approved by all requisite corporate action; (b) the applicable Debt
Warrant Agreement, Currency Warrant Agreement, Index Warrant Agreement
and/or Interest Rate Warrant Agreement, substantially in the forms
reviewed by us (collectively, the "Warrant Agreements") have been duly
authorized and executed by the parties thereto; and (c) the Warrants
shall have been duly authorized and executed by the Company and
countersigned as provided in the Warrant Agreements and shall have been
duly paid for and delivered pursuant to a prospectus and a prospectus
supplement relating to such sale, such Warrants will constitute legally
valid and binding obligations of the Company enforceable in accordance
with, and subject to, their terms and the terms of the Warrant
Agreements.
3. Assuming that the Debt Securities Guarantees have been
authorized by Newcourt in accordance with Canadian Law (as hereinafter
defined) and that Canadian Law to the extent applicable to the issuance,
offer and/or sale of the Debt Securities Guarantees has been duly
complied with, when (a) the principal terms of each of the Debt
Securities Guarantees to be
<PAGE>
<PAGE>
AT&T Captital Corporation
Newcourt Credit Group Inc.
March 2, 1999
Page 3
issued shall have been duly approved by all requisite corporate action;
(b) the applicable Debt Securities Guarantee, substantially in the form
reviewed by us ("Debt Securities Guarantee Agreement"), has been duly
authorized and executed by the parties thereto; and (c) such Debt
Securities Guarantee shall have been duly delivered, the Debt Securities
Guarantees will constitute legally valid and binding obligations of
Newcourt enforceable in accordance with, and subject to, their terms;
and
4. Assuming that the Warrant Guarantees have been authorized by
Newcourt in accordance with Canadian Law and that Canadian Law to the
extent applicable to the issuance, offer and/or sale of the Warrant
Guarantees has been duly complied with, when (a) the principal terms of
each of the Warrant Guarantees to be issued shall have been duly
approved by all requisite corporate action; (b) the applicable Warrant
Guarantee, substantially in the form reviewed by us ("Warrant Guarantee
Agreement"), has been duly authorized and executed by the parties
thereto; and (c) such Warrant Guarantee shall have been duly delivered,
the Warrant Guarantees will constitute legally valid and binding
obligations of Newcourt enforceable in accordance with, and subject to,
their terms.
The opinions expressed herein are qualified to the extent that (i) the
enforceability of the Debt Securities and the Warrants and the obligations of
the Company thereunder and the availability of certain rights and remedial
provisions provided for in the Indenture and the applicable Warrant Agreements
and (ii) the enforceability of the Debt Securities Guarantee Agreement and the
Warrant Guarantee Agreement and the obligations of Newcourt thereunder and the
availability of certain rights and remedial provisions provided for in such
agreements, are subject to the effects 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.
This opinion is limited to the laws of the United States of America and
the State of New York, and we express no opinion with respect to the laws of any
other state or jurisdiction. 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 United States federal securities laws, including the
Securities Act, applicable to the issuance, offer and/or sale of any of the Debt
Securities, Warrants and/or Guarantees and (iii) the application of the
securities or blue sky laws of the various states to the issuance, offer and/or
sale of the Debt Securities, Warrants or the Guarantees or compliance by any
party therewith.
<PAGE>
<PAGE>
AT&T Captital Corporation
Newcourt Credit Group Inc.
March 2, 1999
Page 4
The opinions set forth in this letter are based on the facts in
existence and the laws in effect on the date hereof, and we expressly disclaim
any obligation to update the opinions herein, regardless of whether changes in
such facts or laws come to our attention after the delivery hereof.
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement and to all references to this firm relating to 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.
Very truly yours,
Wilentz, Goldman & Spitzer
<PAGE>
<PAGE>
March 2, 1999
AT&T Capital Corporation
2 Gatehall Drive
Parsippany, New Jersey 07054
Newcourt Credit Group Inc.
BCE Place, 181 Bay Street, Suite 3500
Toronto, Ontario Canada M5J 2T3
Ladies and Gentlemen:
I have acted as counsel for Newcourt Credit Group Inc., an Ontario
corporation ("Newcourt"), in connection with the joint Registration Statement on
Form F-3 (the "Registration Statement") filed by AT&T Capital Corporation, a
Delaware corporation (the "Company"), and Newcourt with the Securities and
Exchange Commission under the Securities Act of 1933, as amended (the
"Securities Act"), relating to the registration by the Company of one or more
series of debt securities (the "Debt Securities") under the Indenture to be
dated as of March 1, 1999 (the "Indenture") among the Company, Newcourt and
The Chase Manhattan Bank, as trustee (the "Trustee") and warrants to purchase
Debt Securities, currency warrants, index warrants and interest rate warrants
(collectively, the "Warrants") and the registration by Newcourt of guarantees of
the Debt Securities ("Debt Securities Guaranty") and the Warrants ("Warrant
Guarantees" and collectively with the Debt Securities Guaranty, the
"Guarantees").
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 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.
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, 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. As to any facts
material to the opinions expressed herein which I did not independently
establish or verify,
<PAGE>
<PAGE>
AT&T Capital Corporation
Newcourt Credit Group Inc.
March 2, 1999
Page 2
I have relied upon oral and written statements and representations of officers
and other representatives of Newcourt and others. In addition, I have also
relied upon the accuracy and completeness of all certificates and other
statements, representations, documents, records, financial statements and papers
reviewed by me, and the accuracy and completeness of all representations,
warranties, schedules and exhibits contained in such documents, with respect to
the factual matters set forth therein. Additionally, I have assumed that the
Registration Statement, as finally amended, has been declared effective under
the Securities Act and no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that purpose has
been initiated or threatened by the Securities and Exchange Commission.
Based on the foregoing, and assuming that the terms of the Guarantees are
otherwise in compliance with applicable law at the time of issuance of such
securities, I am of the opinion that:
1. The Debt Securities Guaranty, in the form filed as an exhibit to
the Registration Statement, when duly executed by Newcourt will constitute
the legally valid and binding obligation of Newcourt enforceable in
accordance with its terms; and
2. The Warrant Guarantees, in the forms filed as an exhibit to the
Registration Statement, when duly executed by Newcourt will constitute the
legally valid and binding obligation of Newcourt enforceable in accordance
with their terms.
The opinions expressed herein are qualified to the extent that the
enforceability of the Debt Securities Guaranty and the Warrant Guarantees and
the obligations of Newcourt thereunder and the availability of certain rights
and remedial provisions provided for in such agreements are subject to the
effect of bankruptcy, fraudulent conveyance or transfer, insolvency,
reorganization, arrangement, liquidation, conservatorship and moratorium laws
and subject to the limitations imposed by other laws and judicial decisions
relating to or affecting the rights of creditors generally, to general
principles of equity, regardless of whether enforcement is considered in
proceedings in equity or at law, and to an implied covenant of good faith and
fair dealing. I express no opinion herein as to the binding effect of the
Debt Securites Guaranty or the Warrant Guarantee on any person not a party
to such Guarantee.
This opinion is limited to matters of law in the Province of Ontario and
the laws of Canada. I express no opinion with respect to the laws of any other
country, state or jurisdiction.
The opinions set forth in this letter are based on the facts in existence
and the laws in effect on the date hereof and I expressly disclaim any
obligation to update the opinions herein, regardless of whether changes in such
facts or laws come to my attention after the delivery hereof.
<PAGE>
<PAGE>
AT&T Capital Corporation
Newcourt Credit Group Inc.
March 2, 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 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/ John P. Stevenson
<PAGE>
<PAGE>
[LETTERHEAD OF SIDLEY & AUSTIN]
March 1, 1999
AT&T Capital Corporation
2 Gatehall Drive
Parsippany, New Jersey 07054
Newcourt Credit Group Inc.
BCE Place, 181 Bay Street, Suite 3500
Toronto, Ontario Canada M5J 2T3
Dear Ladies and Gentlemen:
We hereby refer to the joint Registration Statement on Form F-3
(the "Registration Statement") filed by AT&T Capital Corporation, a Delaware
corporation (the "Company"), and Newcourt Credit Group Inc., an Ontario
corporation ("Newcourt"), with the Securities and Exchange Commission under the
Securities Act of 1933, as amended (the "Securities Act"), relating to the
registration by the Company of one or more series of debt securities (the "Debt
Securities") under the Indenture to be dated as of March 1, 1999 (the
"Indenture") among the Company, Newcourt and The Chase Manhattan Bank, as
trustee (the "Trustee"), and warrants to purchase Debt Securities, currency
warrants, index warrants and interest rate warrants (collectively, the
"Warrants") and the registration by Newcourt of guarantees of the Debt
Securities and the Warrants. All capitalized terms used and not otherwise
defined herein shall have the respective meanings set forth in the Registration
Statement.
We have acted as special United States federal income tax counsel
to the Company and Newcourt in connection with the Registration Statement. In
that connection, we have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records and other
instruments as we have deemed necessary for the purposes of this opinion. In our
examination, we have assumed the following: (a) the genuineness of all
signatures; (b) the legal capacity of natural persons; (c) the authenticity of
all documents submitted to us as originals; (d) the conformity to original
documents of all documents submitted to us as certified or photostatic copies
and the authenticity of the originals of such documents; and (e) the truth,
accuracy and completeness of the information, representations and warranties
contained in the records, documents, instruments and certificates that we have
reviewed. As to any facts material to the opinion expressed herein which were
not known to us, we have relied upon certificates, statements and
representations of officers and other representatives of the Company and others.
Based on current United States federal income tax laws and
regulations and on current authorization interpretations, we are of the opinion
that the statement contained in the section of the Prospectus Supplement titled
"Material Federal Income Tax Consequences", to the extent that they concern
matters of United States federal income tax law, are correct in all material
respects.
<PAGE>
<PAGE>
SIDLEY & AUSTIN NEW YORK
AT&T Capital Corporation
Newcourt Credit Group Inc.
March 1, 1999
Page 2
We hereby consent to the filing of this opinion letter as an
exhibit to the Registration Statement and to the use of our name under the
heading "Material Federal Income Tax Consequences" in the Prospectus Supplement.
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,
Sidley & Austin
<PAGE>
<PAGE>
AT&T CAPITAL CORPORATION
COMPUTATION OF RATIO OF EARNINGS TO
FIXED CHARGES
(In Thousands of U.S. Dollars)
<TABLE>
<CAPTION>
Year Ended December 31,
-------------------------------------------------------------
1998 1997 1996 1995 1994
- --------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Earnings from continuing
operations:
Income from continuing
operations before
income taxes $173,848 $ 32,036 $ 278,602 $ 208,239 $173,614
Deduct undistributed
earnings on equity
investments, net of loss -- -- -- -- --
Add fixed charges
included in income
before income taxes
and cumulative effect
of accounting change 497,805 460,221 465,121 418,624 277,913
- --------------------------------------------------------------------------------------
Total earnings from
continuing
operations, as
adjusted $671,653 $492,257 $743,723 $626,863 $451,527
- --------------------------------------------------------------------------------------
Total fixed charges(1) $497,805 $460,221 $465,121 $418,624 $277,913
Ratio of earnings
to fixed charges 1.35 1.07 1.60 1.50 1.62
- --------------------------------------------------------------------------------------
</TABLE>
(1) 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 AT&T Capital
Corporation's subsidiaries. Prior to October 1, 1996, a portion of AT&T
Capital Corporation's indebtedness to AT&T Corp. did not bear interest.
<PAGE>
<PAGE>
NEWCOURT CREDIT GROUP INC.
COMPUTATION OF RATIO OF EARNINGS TO
FIXED CHARGES
(In Thousands of Canadian Dollars)
<TABLE>
<CAPTION>
Year Ended
December 31,
----------------------------------------------------------
1998 1997 1996 1995 1994
- ------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Earnings from continuing
operations:
Income from continuing
operations before
income taxes $ 472,093 $ 16,074 $ 64,150 $ 34,582 $ 22,621
Deduct undistributed
earnings on equity
investments, net of -- -- -- -- --
losses
Add fixed charges
included in income
before income taxes
and cumulative effect
of accounting change 995,374 148,463 106,457 65,681 40,778
- ----------------------------------------------------------------------------------------
Total earnings from
continuing
operations, as
adjusted $1,467,467 $164,537 $170,607 $100,263 $ 63,399
- ----------------------------------------------------------------------------------------
Total fixed charges(1) $ 995,374 $148,463 $106,457 $ 65,681 $ 40,778
Ratio of earnings
to fixed charges 1.47 1.11 1.60 1.53 1.55
- ----------------------------------------------------------------------------------------
</TABLE>
(1) 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.
<PAGE>
<PAGE>
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the inclusion in this joint registration statement of AT&T
Capital Corporation and Newcourt Credit Group Inc. on Form F-3 of our report
dated March 6, 1997, on our audits of the consolidated financial statements of
AT&T Capital Corporation at December 31, 1996, and for the years ended
December 31, 1996 and 1995, which report is incorporated by reference in this
joint registration statement. We also consent to the reference to our firm
under the caption "Experts".
PricewaterhouseCoopers LLP
New York, New York
March 1, 1999
<PAGE>
<PAGE>
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANT
As independent public accountants, we hereby consent to the incorporation
by reference in AT&T Capital Corporation's and Newcourt Credit Group Inc.'s
joint registration statement on Form F-3 filed on March 2, 1999, of our
report dated March 11, 1998 (except with respect to the matter discussed in
Note 7, as to which the date is March 20, 1998) included in AT&T Capital
Corporation's Form 10-K for the year ended December 31, 1997 and to all
references to our Firm included in this registration statement.
Arthur Andersen LLP
New York, New York
March 1, 1999
<PAGE>
<PAGE>
Consent of Independent Auditors
We consent to the reference to our Firm under the caption "Experts" in the joint
Registration Statement on Form F-3 of AT&T Capital Corporation and Newcourt
Credit Group Inc. ("Newcourt") and the related prospectus dated March 2, 1999
for the registration of $6,000,000,000 Debt Securities, Debt Warrants, Currency
Warrants, Index Warrants and Interest Rate Warrants and to the incorporation by
reference therein of our report dated February 4, 1998 on the consolidated
financial statements of Newcourt as at December 31, 1997 and 1996 and for the
years then ended included in Newcourt's Annual Report on Form 40-F; and our
report dated February 22, 1999 on 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, both of which have been filed with the
Securities and Exchange Commission.
Toronto, Canada
March 1, 1999 Ernst & Young LLP
<PAGE>
<PAGE>
-------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
<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)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
---------------------------------------------
AT&T CAPITAL CORPORATION
(Exact name of obligor as specified in its charter)
DELAWARE 22-3211453
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
2 GATEHALL DRIVE
PARSIPPANY, NEW JERSEY 07054
(Address of principal executive offices) (Zip Code)
NEWCOURT CREDIT GROUP INC.
(Exact name of obligor as specified in its charter)
ONTARIO NOT APPLICABLE
(Province or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
BCE PLACE
181 BAY STREET, SUITE 3500
TORONTO, ONTARIO M5J 2T3, CANADA
(Address of principal executive offices)
</TABLE>
-------------------------------------------
DEBT SECURITIES
(Title of the indenture securities)
-----------------------------------------------------
<PAGE>
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
New York State Banking Department, State House, Albany,
New York 12110.
Board of Governors of the Federal Reserve System,
Washington, D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33
Liberty Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C.,
20429.
(b) Whether it is authorized to exercise corporate trust
powers.
Yes.
Item 2. Affiliations with the Obligors.
If an obligor is affiliated of the trustee, describe each such affiliation.
None.
- 2 -
<PAGE>
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of Eligibility.
1. A copy of the Articles of Association of the Trustee as now in effect,
including the Organization Certificate and the Certificates of Amendment dated
February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being contained
in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form
T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act (see
Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
(On July 14, 1996, in connection with the merger of Chemical Bank and The Chase
Manhattan Bank (National Association), Chemical Bank, the surviving corporation,
was renamed The Chase Manhattan Bank).
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 1st day of March, 1999.
THE CHASE MANHATTAN BANK
By /s/ L. O'Brien
------------------------------
L. O'Brien
Vice President
- 3 -
<PAGE>
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business September 30, 1998, 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.......................................... $ 11,951
Interest-bearing balances.................................. 4,551
Securities:...................................................
Held to maturity securities................................... 1,740
Available for sale securities................................. 48,537
Federal funds sold and securities purchased under
agreements to resell....................................... 29,730
Loans and lease financing receivables:
Loans and leases, net of unearned income......... $127,379
Less: Allowance for loan and lease losses........ 2,719
Less: Allocated transfer risk reserve ........... 0
Loans and leases, net of unearned income,
allowance, and reserve.................................... 124,660
Trading Assets............................................... 51,549
Premises and fixed assets (including capitalized leases)..... 3,009
Other real estate owned...................................... 272
Investments in unconsolidated subsidiaries and associated
companies................................................. 300
Customers' liability to this bank on acceptances
outstanding............................................... 1,329
Intangible assets............................................ 1,429
Other assets................................................. 13,563
--------
TOTAL ASSETS................................................. $292,620
========
</TABLE>
- 4 -
<PAGE>
<PAGE>
<TABLE>
<CAPTION>
LIABILITIES
<S> <C> <C>
Deposits
In domestic offices...................................... $ 98,760
Noninterest-bearing ............................. $39,071
Interest-bearing ................................ 59,689
-------
In foreign offices, Edge and Agreement,
subsidiaries and IBF's................................... 75,403
Noninterest-bearing ............................ $ 3,877
Interest-bearing ............................... 71,526
Federal funds purchased and securities sold under agreements
to repurchase.............................................. 34,471
Demand notes issued to the U.S. Treasury ..................... 1,000
Trading liabilities........................................... 41,589
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less ............. 3,781
With a remaining maturity of more than one year
through three years..................................... 213
With a remaining maturity of more than three years......... 104
Bank's liability on acceptances executed and outstanding...... 1,329
Subordinated notes and debentures............................. 5,408
Other liabilities............................................. 12,041
TOTAL LIABILITIES............................................. 274,099
--------
EQUITY CAPITAL
Perpetual preferred stock and related surplus 0
Common stock.................................................. 1,211
Surplus (exclude all surplus related to preferred stock)...... 10,441
Undivided profits and capital reserves........................ 6,287
Net unrealized holding gains (losses) on available-for-sale
securities................................................. 566
Cumulative foreign currency translation adjustments........... 16
TOTAL EQUITY CAPITAL.......................................... 18,521
--------
TOTAL LIABILITIES AND EQUITY CAPITAL.......................... $292,620
========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE )DIRECTORS
WILLIAM B. HARRISON, JR.)
-5-
STATEMENT OF DIFFERENCES
------------------------
The section symbol shall be expressed as............................... 'SS'
<PAGE>
