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
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:
TERM COMMISSION RATE
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%
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
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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.
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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
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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
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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.
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(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
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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
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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
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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
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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
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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-
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:
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(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-
(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-
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-
(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-
(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-
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-
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-
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-
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-
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-
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:
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-
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
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
___________________________________
___________________________________
___________________________________
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
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
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
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
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
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
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
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
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
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
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
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
(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
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
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
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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
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
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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
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
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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
(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.
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(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
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
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