$300,000,000 7.125% NOTES DUE DECEMBER 17, 2003
OF
NEWCOURT CREDIT GROUP INC.
PURCHASE AGREEMENT
December 8, 1998
Lehman Brothers Inc., as Representative of
the Several Initial Purchasers named in Schedule I hereof
Three World Financial Center
New York, New York 10285
Ladies and Gentlemen:
Each of the undersigned, Newcourt Credit Group Inc. ("Newcourt" or the
"Company") and its indirect wholly-owned subsidiary, AT&T Capital Corporation
("AT&T Capital"), hereby confirms its agreement (this "Agreement") with you as
the Representative of the Purchasers named in Schedule 1 hereof (hereinafter
collectively referred to herein as the "Initial Purchasers") concerning the sale
of the Notes as follows:
1. Description of Notes. Newcourt proposes to issue $300,000,000
principal amount of its Notes, Series A due December 17, 2003 (the "Notes")
under an Indenture dated as of December 15, 1998, (as amended, restated or
supplemented from time to time, the "Indenture"), between Newcourt and The Chase
Manhattan Bank, Trustee (the "Trustee"). The Notes will contain the terms set
forth on Schedule II hereto. The Notes will be guaranteed as to payment of
principal, premium, if any, and interest pursuant to the guarantee dated as of
December 15, 1998 made by AT&T Capital to the Trustee (the "Guarantee"). The
Notes will be offered without being registered under the Securities Act of 1933,
as amended (the "Securities Act"), in reliance on exemptions therefrom. The term
"Memorandum" means the final offering memorandum relating to the Notes and the
Guarantee. The Notes and the Guarantee are more fully described in the
Memorandum. On the Closing Date, the parties hereto will execute and deliver the
Registration Rights Agreement (the "Registration Rights Agreement") relating to
the Notes, substantially in the form attached hereto as Exhibit A.
2. Representations and Warranties of the Company. The Company and AT&T
Capital jointly and severally represent and warrant to the several Initial
Purchasers that:
(a) The Memorandum at the Closing Date, will not, contain any untrue
statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except
that the representations and warranties set forth in this Section
2(a) do not apply to statements or omissions in the
Memorandum based upon information furnished to Newcourt or AT&T
Capital in writing by an Initial Purchaser through the
Representative specifically for use therein ("Provided
Information"). Reference herein to the Memorandum shall be deemed to
refer to and include any document filed by Newcourt or AT&T Capital
under the Securities Exchange Act of 1934, as amended (the "Exchange
Act") on or before the Closing Date, which is incorporated in the
Memorandum by reference.
(b) Assuming the offer, issue, sale and delivery of the Notes occurs in
the manner and under the circumstances contemplated in this
Agreement and the Memorandum, the Notes are exempt from the
registration requirements of Section 5 of the Securities Act
pursuant to Section 4(2) of the Act, and it is not required by
applicable law or regulation to qualify the Indenture in respect of
the Notes under the Trust Indenture Act of 1939, as amended.
(c) Ernst & Young and Arthur Andersen LLP, who have certified or shall
certify certain financial statements of Newcourt and AT&T Capital,
whose reports are incorporated by reference through the date hereof
in the Memorandum are independent public accountants as required by
the Securities Act and the rules and regulations of the Securities
and Exchange Commission (the "Commission") thereunder.
(d) The financial statements, and the related notes thereto, included or
incorporated by reference in the Memorandum present fairly the
consolidated financial position of Newcourt and its consolidated
subsidiaries as of the dates indicated and the results of their
operations and the changes in their consolidated cash flows for the
periods specified; the financial statements, and related notes
incorporated by reference in the Memorandum present fairly the
consolidated financial position of AT&T Capital and its consolidated
subsidiaries as of December 31, 1997, March 31, 1998 and June 30,
1998 and the results of their operations and the changes in their
consolidated cash flows for such periods; said financial statements
have been prepared in conformity with generally accepted accounting
principles in Canada or the United States as applicable, applied on
a consistent basis, and the supporting schedules included or
incorporated by reference in the Memorandum present fairly the
information required to be stated therein; and the pro forma
financial information and the related notes thereto, included or
incorporated by reference in the Memorandum, have been prepared in
accordance with the applicable requirements of the Securities Act
and Exchange Act, as applicable, and is based upon good faith
estimates and assumptions believed by Newcourt and AT&T Capital to
be reasonable.
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(e) Since the respective dates as of which information is given in the
Memorandum through the date hereof, there has not been any change in
the capital stock (other than transfers of stock (i) among the
Company and its subsidiaries relating to restructuring transactions
or (ii) existing owners of the stock through either private or
public market transactions) or long-term debt of Newcourt or AT&T
Capital or any of their respective subsidiaries, or any material
adverse change, or any development involving a prospective material
adverse change, in or affecting the general affairs, business,
prospects, management, financial position, stockholders' equity or
results of operations of Newcourt or AT&T Capital and their
respective subsidiaries, taken as a whole, otherwise than as set
forth or contemplated in the Memorandum; and except as set forth or
contemplated in the Memorandum neither Newcourt, AT&T Capital nor
any of their respective subsidiaries has entered into any
transaction or agreement (whether or not in the ordinary course of
business) that would have a Material Adverse Effect.
(f) The Indenture has been duly authorized, executed and delivered by
the Company and constitutes the valid and binding agreement of the
Company, enforceable in accordance with its terms (except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or affecting
creditors' rights generally and by general equity principles); (ii)
the Notes have been validly authorized and, when duly executed,
authenticated and delivered as provided in the Indenture, will be
validly issued and outstanding, and will constitute valid and
binding agreements of the Company entitled to the benefits of the
Indenture and enforceable in accordance with their terms (except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or affecting
creditors' rights generally and by general equity principles); and
(iii) the Notes and the Indenture conform to the descriptions
thereof contained in the Memorandum.
(g) The Guarantee has been duly authorized, executed and delivered by
AT&T Capital and constitutes the valid and binding agreement of AT&T
Capital, enforceable in accordance with its terms (except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or affecting
creditors' rights generally and by general equity principles); and
(ii) the Guarantee conforms to the description thereof contained in
the Memorandum.
(h) Each of the Company, AT&T Capital and their respective subsidiaries
has been duly incorporated, is validly existing and in good standing
under the laws of its respective jurisdiction of incorporation, is
duly qualified to do business and in good standing as a foreign
corporation in each jurisdiction in which its
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respective ownership of properties or the conduct of its respective
businesses requires such qualification (except to the extent that
the failure to be so qualified or be in good standing would not have
a Material Adverse Effect, and has the power and authority necessary
to own or hold its respective properties and to conduct the
businesses in which it is engaged, as described in the Memorandum.
(i) Neither the Company, AT&T Capital nor any of their respective
subsidiaries is in violation of its corporate charter or by-laws or
in default under any agreement, indenture or instrument, the effect
of which violation or default would have a Material Adverse Effect.
(j) The execution, delivery and performance of this Agreement by the
Company and AT&T Capital and the execution, delivery and performance
by AT&T Capital of the Guarantee and the consummation of the
transactions contemplated hereby and thereby will not conflict with
or result in a breach or violation of any of the terms or provisions
of, or constitute a default under, any material indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to
which the Company, AT&T Capital or any of their respective
subsidiaries is a party or by which the Company, AT&T Capital or any
of their respective subsidiaries is bound or to which any of the
property or assets of the Company, AT&T Capital or any of their
respective subsidiaries is subject, nor will such actions result in
any violation of the provisions of the charter or by-laws of the
Company, AT&T Capital or any of their respective subsidiaries or any
statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company,
AT&T Capital or any of their respective subsidiaries or any of their
properties or assets, the effect of which breach, violation or
default would have a Material Adverse Effect; and except for such
consents, approvals, authorizations, registrations or qualifications
as may be required under applicable state securities laws in
connection with the purchase and distribution of the Notes and the
Guarantee by any Initial Purchaser, no consent, approval,
authorization or order of, or filing or registration with, any such
court or governmental agency or body is required for the execution
and delivery by the Company and AT&T Capital of, compliance by the
Company and AT&T Capital with the provisions of, or consummation of
the transactions contemplated by, this Agreement, except to the
extent that the effect of the failure to obtain such consent,
approval, authorization or order or to make such filing or
registration would not have a Material Adverse Effect.
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(k) This Agreement has been duly authorized, executed and delivered by
the Company and AT&T Capital and constitutes the valid and binding
agreement of the Company and AT&T Capital, 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).
(l) Neither the Newcourt nor any of its affiliates does business with
the government of Cuba or with any person or affiliate located in
Cuba within the meaning of Section 517.075, Florida Statutes;
(m) Neither Newcourt nor AT&T Capital nor any of their respective
affiliates (as defined in Rule 501(b) of Regulation D under the
Securities Act, an "Affiliate") has directly, or through any agent,
(i) sold, offered for sale, solicited offers to buy or otherwise
negotiated in respect of, any security (as defined in the Securities
Act) which is or will be integrated with the sale of the Notes in
any manner that would require the registration under the Securities
Act of the Notes or (ii) engaged in any form of general solicitation
or general advertising in connection with the offering of the Notes
(as those terms are used in Regulation D under the Securities Act),
or in any manner involving a public offering of the Notes within the
meaning of Section 4(2) of the Securities Act.
(n) Neither the Company, AT&T Capital nor any of their respective
Significant Subsidiaries is an "investment company" within the
meaning of such term under the Investment Company Act of 1940, as
amended, and the rules and regulations of the Securities and
Exchange Commission (the "Commission") thereunder.
(o) There are no legal or governmental proceedings pending to which the
Company, AT&T Capital or any of their respective Significant
Subsidiaries is a party or of which any property or asset of the
Company, AT&T Capital or any of their respective Significant
Subsidiaries is the subject which, if determined adversely to the
Company, AT&T Capital or any of their respective Significant
Subsidiaries, might have a Material Adverse Effect; and to the best
of the Company has not been advised that any such proceedings are
threatened or contemplated by governmental authorities or threatened
by others that is required to be disclosed in the Memorandum which
is not so disclosed.
3. Purchase of Notes by the Initial Purchasers. (a) On the basis of the
representations and warranties and on the terms and subject to the conditions
herein set forth, each of the Initial Purchasers agrees to purchase from
Newcourt, severally and not jointly, and on the terms and subject
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to the conditions herein set forth Newcourt agrees to sell to each of the
Initial Purchasers, severally and not jointly, the principal amount of Notes set
forth opposite its name in Schedule I at a purchase price equal to 99.139% of
the principal amount of such Notes.
(b) If, for any reason (other than termination of this Agreement in
accordance with the provisions of Section 7 or 8 hereof), one or more of the
Initial Purchasers shall fail or refuse to pay for the Notes it has or they have
agreed to purchase (any such Initial Purchaser being hereinafter referred to as
a "defaulting Initial Purchaser"), and the aggregate principal amount of the
Notes which such defaulting Initial Purchaser or Initial Purchasers agreed but
failed or refused to purchase is not more than one-tenth of the aggregate
principal amount of the Notes, the remaining Initial Purchasers shall be
obligated severally in the proportion which the amounts of Notes set forth
opposite their names in Schedule I of this Agreement bear to the aggregate
principal amount of the Notes set forth opposite the names of all such
non-defaulting Initial Purchasers (or in such other proportion as the
Representative shall specify) to purchase the Notes which the defaulting Initial
Purchaser or Initial Purchasers agreed but failed or refused to purchase;
provided that in no event shall the principal amount of Notes that any Initial
Purchaser is purchasing be increased pursuant to the provisions of this
paragraph in an amount in excess of one-tenth of such principal amount of such
Notes without the written consent of such Initial Purchaser. In the event that
any Initial Purchaser or Initial Purchasers shall fail or refuse to purchase the
Notes and the aggregate principal amount of the Notes with respect to which such
default occurs is more than one-tenth of the aggregate principal amount of the
Notes, and arrangements satisfactory to the Representative and the Company for
the purchase of all such Notes are not made within forty-eight (48) hours after
such default, this Agreement will terminate without liability on the part of any
of the non-defaulting Initial Purchasers or of the Company. In the event that
the non-defaulting Initial Purchasers agree to purchase, in accordance with this
paragraph, all the Notes which the defaulting Initial Purchaser or Initial
Purchasers fail or refuse to purchase, the Representative or the Company shall
have the right to postpone the time of closing, but in no event for longer than
seven days, in order that the required changes, if any, in the Memorandum or in
any other documents or arrangements may be effected. Except to the extent
provided in subparagraphs (c) and (f) of Section 6 hereof, termination of this
Agreement pursuant to this Section 3 shall be without any liability on the part
of the Company or any Initial Purchaser other than a defaulting Initial
Purchaser. Any action taken under this Section shall not relieve any defaulting
Initial Purchaser from liability in respect of any default of such Initial
Purchaser under this Agreement.
4. Sale and Resale of the Notes by the Initial Purchasers. Each of the
Initial Purchasers has advised Newcourt that it proposes to offer the Notes for
resale upon the terms and conditions set forth in this Agreement and in the
Memorandum. Each of the Initial Purchasers hereby represents and warrants to,
and agrees with, Newcourt that the Initial Purchaser (i) is purchasing the Notes
pursuant to a private sale exempt from registration under the Securities Act,
(ii) will not solicit offers for, or offer to sell, the Notes by means of any
form of general solicitation or general advertising or in any manner involving a
public offering within the meaning of Section 4(2) of the Securities Act and
(iii) will solicit offers for the Notes only from, and will offer, sell or
deliver the Notes, as part of their initial offering, only to, persons in the
United States whom the Initial Purchaser reasonably believes
6
to be (A) qualified institutional buyers ("Qualified Institutional Buyers") as
defined in Rule 144A under the Securities Act, as such rule may be amended from
time to time ("Rule 144A") or, if any such person is buying for one or more
institutional accounts for which such person is acting as a fiduciary or agent,
only when such person has represented to the Initial Purchaser that each such
account is a Qualified Institutional Buyer, to whom notice has been given that
such sale or delivery is being made in reliance on Rule 144A or (B)
institutional accredited investors ("Accredited Investors") as defined in Rule
501(1), (20, (3) or (7) under Regulation D under the Securities Act who execute
letters of representations in the form included as Appendix A to the Memorandum
in private sales exempt from registration under the Securities Act.
5. Delivery of and Payment for the Notes. (a) Delivery of, and payment
of the purchase price for, the Notes which the Initial Purchasers severally
agree to purchase shall be made at the office of Winston & Strawn, New York, New
York, at 10:00 a.m. (New York time) on December 15, 1998 or at such other place
or time on the same or such other day as shall be agreed upon by the Company and
the Representative (such date and time of payment and delivery being herein
called the "Closing Date").
(b) On the Closing Date, payment shall be made to the Company in
immediately available funds by wire transfer of same-day funds to such account
or accounts as the Company shall specify prior to the Closing Date or by such
means as the parties hereto shall agree prior to the Closing Date against
delivery to the Representative for the account of each Initial Purchaser of the
certificates, if any, evidencing the Notes. Upon delivery, the Notes shall be
registered in such names and in such denominations as the Representative shall
request in writing not less than two full business days prior to the Closing
Date. The Company agrees to make the Notes available to the Representative for
inspection on behalf of the Initial Purchasers at the office of Winston &
Strawn, New York, New York, not later than 2:00 p.m. (New York time) on the
business day next preceding the Closing Date.
6. Covenants of the Company and AT&T Capital. The Company and AT&T
Capital jointly and severally agree as follows:
(a) Prior to making any amendment or supplement to the Memorandum other
than by filing documents under the Exchange Act which are
incorporated by reference therein, the Company or AT&T Capital, as
applicable, shall furnish a copy thereof to the Representative and
counsel to the Representative and will not effect any such amendment
or supplement to which the Representative shall reasonably object by
notice to the Company after a reasonable period to review, which
shall not in any case be longer than three business days after
receipt of such copy.
(b) The Company will deliver to the Representative a reasonable number
of copies of the Memorandum and any supplements and amendments
thereto.
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(c) The Company will pay all reasonable expenses in connection with the
preparation of the Indenture and Guarantee, the rating of the Notes,
the issuance and delivery of the Notes and the preparation and
printing of the copies of the Memorandum to be furnished as provided
in subparagraph (b) above; and will pay any taxes on the issuance of
the Notes, but will not pay any transfer taxes. The Company will not
be required to pay any amount for any expenses of the Representative
or any of the Initial Purchasers, except the cost of mailing to the
Initial Purchasers copies of the Memorandum and all amendments and
supplements thereto (including documents incorporated by reference),
and except as provided by subparagraph (f) below, and provided that
if no Notes are delivered to and purchased by the Initial Purchasers
as a result of a default by the Company or AT&T Capital or the
occurrence of any of the events referred to in Section 8 hereof, the
Company, in addition to any payment provided for by subparagraph (f)
of this Section 6, will reimburse the Representative for the
reasonable out-of-pocket expenses of the Initial Purchasers, not
exceeding $15,000, and for the fees and disbursements of Winston &
Strawn, the Initial Purchasers agreeing to pay such expenses, fees
and disbursements in any other event. Neither the Company nor AT&T
Capital will in any event be liable to any of the several Initial
Purchasers for damages on account of loss of anticipated profits.
(d) The Company and AT&T Capital will apply the proceeds from the sale
of the Notes as set forth under the heading "Use of Proceeds"
appearing in the Memorandum.
(e) So long as any of the Notes shall remain outstanding, the Company or
AT&T Capital will furnish to the Representative, upon request and in
reasonable quantities for distribution to the Initial Purchasers,
copies of such documents, reports and other information as may be
required to be furnished to noteholders under the Indenture.
(f) The Company and AT&T Capital will use their reasonable best efforts
to qualify the Notes, or to assist in the qualification of the Notes
by or on behalf of the Representative, for offer and sale under the
securities or Blue Sky laws of such jurisdictions as the
Representative may designate, and will pay or reimburse the
Representative for counsel fees, filing fees and out-of-pocket
expenses in connection with such qualification; provided that
neither the Company nor AT&T Capital shall be required to qualify as
a foreign corporation or to file a general consent to service of
process in any jurisdiction or to pay, or to incur, or to reimburse
the Initial Purchaser for, any such expenses if no Notes are
delivered to and purchased by the Initial Purchasers hereunder
because of a default by one or more of the Initial Purchasers or the
termination of this Agreement pursuant to Section 8 hereof.
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(g) If, at any time prior to completion of the distribution of the Notes
by the Initial Purchasers to purchasers, in the opinion of the
counsel for the Initial Purchasers and counsel to the Company, any
event shall occur which should be set forth in an amendment of or a
supplement to the Memorandum in order that the Memorandum will not
include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein not
misleading in light of the circumstances existing at the time it is
delivered to a purchaser, or if it is necessary to amend or
supplement the Memorandum to comply with applicable law, the Company
or AT&T Capital, as applicable, will, upon the occurrence of each
such event, forthwith at its expense, prepare and furnish to the
Representative, in reasonable quantities for distribution to the
Initial Purchasers, as many copies as the Representative may
reasonably request of such amendment or supplement. For the purpose
of this subparagraph (g), the Company and AT&T Capital will furnish
such due diligence information customary for transactions of the
type contemplated by this Agreement as the Representative may from
time to time request. Notwithstanding any of the other provisions of
this subparagraph (g), neither the Company nor AT&T Capital shall be
under any obligation to furnish any supplement to or amendment of
the Memorandum on account of any change in, or to include in any
amended Memorandum any change in, the information furnished to the
Company or AT&T Capital by any Initial Purchaser for use in the
Memorandum, unless the Representative, on behalf of such Initial
Purchaser, has advised the Company in writing of such change and has
requested the Company at the expense of such Initial Purchaser to
prepare a supplement to or amendment of the Memorandum to reflect
such change or to include such change in an amended Memorandum.
(h) None of the Company, AT&T Capital or any of their respective
affiliates (as defined in the Securities Act) will sell, offer for
sale or solicit offers to buy or otherwise negotiate in respect of
any security (as defined in the Securities Act) in a transaction
that could be integrated with the sale of the Notes in a manner that
would require the registration under the Securities Act of the
Notes.
(i) So long as the Notes are outstanding and are "restricted securities"
within the meaning of Rule 144(a)(3) under the Securities Act, the
Company will either (i) file reports and other information with the
Commission under Section 13 or 15(d) of the Exchange Act, or (ii) in
the event that it is not subject to Section 13 or 15(d) of the
Exchange Act, make available to holders of the Notes and prospective
purchasers of the Notes designated by such holders, upon request of
prospective purchasers, the information required to be delivered
pursuant to Rule 144A(d)(4) under the Securities Act to permit
compliance with Rule 144A in connection with resales of the Notes.
9
(j) Each of the Notes will bear the legend contained in "Transfer
Restrictions" in the Memorandum and upon the other terms contained
therein, except after such Notes are resold or exchanged pursuant to
a registration statement effective under the Securities Act.
(k) The Company and AT&T Capital will take such steps as shall be
reasonably necessary to ensure that neither the Company, AT&T
Capital nor any of their respective Significant Subsidiaries shall
become an "investment company" within the meaning of such term under
the Investment Company Act of 1940 and the rules and regulations of
the Commission thereunder.
7. Conditions of the Obligations of the Initial Purchasers. The
obligations of the Initial Purchasers to purchase and pay for the Notes shall be
subject to the following additional conditions:
(a) The Initial Purchasers shall not have discovered and disclosed to
the Company or AT&T Capital on or prior to the Closing Date that the
Memorandum or any amendment or supplement thereto contains any
untrue statement of a fact which, in the reasonable opinion of
Winston & Strawn, counsel for the Initial Purchasers, is material or
omits to state any fact which, in the opinion of the such counsel,
is material and is required to be stated therein or is necessary to
make the statements therein not misleading.
(b) At or prior to the time of closing, the Representative shall have
received from counsel for the Company, an opinion, satisfactory to
Winston & Strawn, to the effect that --
(i) Newcourt has been duly incorporated and is validly existing
and in good standing under the laws of the Province of
Ontario, Canada and AT&T Capital has been duly incorporated
and is validly existing and in good standing under the laws of
the State of Delaware; each of Newcourt and AT&T Capital is
duly qualified to do business and in good standing as a
foreign corporation in all jurisdictions in which its
ownership or leasing of properties or the conduct of its
businesses requires such qualification (except where the
failure to so qualify or be in good standing would not have a
Material Adverse Effect), and has all power and authority
necessary to own its respective properties and conduct the
businesses in which it is engaged, as described in the
Memorandum;
(ii) The issue and sale of the Notes by Newcourt and the compliance
by Newcourt with all the provisions of this Agreement, the
Registration Rights Agreement, and the Indenture, and the
consummation of the transactions contemplated hereby and
thereby will not conflict with or
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result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which Newcourt or any of
its subsidiaries is a party or by which Newcourt or any of its
subsidiaries is bound or to which any of the property or
assets of Newcourt or any of its subsidiaries is subject, nor
will such actions result in any violation of the provisions of
the charter or by-laws of Newcourt or any of its subsidiaries
or any statute or any order, rule or regulation known to such
counsel of any court or governmental agency or body having
jurisdiction over Newcourt or any of its subsidiaries or any
of their properties or assets (except for such conflicts,
breaches, violations and defaults as would not have a Material
Adverse Effect); and, except for such consents, approvals,
authorizations, registrations or qualifications as may be
required under applicable state securities laws in connection
with the purchase and distribution of the Notes by the Initial
Purchasers, no consent, approval, authorization, qualification
or order of, or filing or registration with, any such court or
governmental agency or body is required for the execution and
delivery by Newcourt of, compliance by Newcourt with the
provisions of, or the consummation of the transactions
contemplated by this Agreement, except to the extent that the
effect of the failure to obtain such consent, approval,
authorization, qualification or order or to make such filing
or registration would not have a Material Adverse Effect;
(iii) The issue of the Guarantee by AT&T Capital and the compliance
by AT&T Capital with all the provisions of this Agreement, the
Registration Rights Agreement and the Guarantee and the
consummation of the transactions contemplated hereby and
thereby will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute
a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument known to such
counsel to which AT&T Capital or any of its subsidiaries is a
party or by which AT&T Capital or any of its subsidiaries is
bound or to which any of the property or assets of AT&T
Capital or any of its subsidiaries is subject, nor will such
actions result in any violation of the provisions of the
charter or by-laws of AT&T Capital or any of its subsidiaries
or any statute or any order, rule or regulation known to such
counsel of any court or governmental agency or body having
jurisdiction over AT&T Capital or any of its subsidiaries or
any of their properties or assets (except for such conflicts,
breaches, violations and defaults as would not have a Material
Adverse Effect); and, except for such consents, approvals,
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authorizations, registrations or qualifications as may be
required under applicable state securities laws in connection
with the purchase and distribution of the Notes and Guarantee
by the Initial Purchasers, no consent, approval,
authorization, qualification or order of, or filing or
registration with, any such court or governmental agency or
body is required for the execution and delivery by AT&T
Capital of, compliance by AT&T Capital with the provisions of,
or the consummation of the transactions contemplated by this
Agreement, the Registration Rights Agreement and the Guarantee
except to the extent that the effect of the failure to obtain
such consent, approval, authorization, qualification or order
or to make such filing or registration would not have a
Material Adverse Effect;
(iv) Each of this Agreement, the Indenture and the Registration
Rights Agreement has (A) been duly authorized, executed and
delivered by Newcourt and (B) is a valid and binding agreement
of Newcourt enforceable in accordance with its terms (except
as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium and other laws relating
to or affecting creditors' rights generally and by general
equity principles);
(v) The Notes (A) have been duly authorized by Newcourt and, when
duly executed and authenticated as provided in the Indenture
and delivered against payment therefor in accordance with this
Agreement, (B) will be duly and validly issued and
outstanding, and (C) will constitute valid and binding
agreements of Newcourt enforceable in accordance with their
terms (except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights
generally and subject to general equitable principles), and
entitled to the benefits of the Indenture;
(vi) The Guarantee has been duly authorized, executed and
delivered by AT&T Capital and is a valid and binding agreement
of AT&T Capital enforceable in accordance with its terms
(except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally and
subject to general equitable principles);
(vii) The statements made in the Memorandum under the captions
"Description of the Notes","Description of the Guarantee" and
"Exchange Offer; Registration Rights; Liquidated Damages",
insofar as such statements constitute summaries of the legal
matters,
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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;
(viii) This Agreement has been duly authorized, executed and
delivered on behalf of (A) Newcourt and (B) AT&T Capital and
(C) is valid and binding agreement of Newcourt and AT&T
Capital, enforceable in accordance with its terms (except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or
affecting creditors' rights generally and by general equity
principles); and
(ix) Except as to financial statements and schedules contained
therein, as to which such counsel is not called upon to
express any opinion or belief, the Memorandum, and each
document or portion thereof incorporated by reference in the
Memorandum, as of the Closing Date, did not contain any untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which
they were made, not misleading.
(c) At or prior to the time of closing, the Representative shall have
received from Winston & Strawn an opinion to the effect specified in
clauses (b)(iv)(B), (b)(v)(B), (b)(vi), (b)(vii), (b)(viii)(B) and
(C) and (b)(ix).
(d) At or prior to the time of closing, the Representative shall have
received from (i) Sidley & Austin, special tax counsel to the
Company, an opinion that its opinions expressed or referred to under
the caption "Material United States Income Tax Consequences" and
(ii) Blake, Cassels & Graydon, special tax counsel to the Company,
an opinion that its opinions expressed or referred to under the
caption "Canadian Federal Income Tax Considerations" in the
Memorandum are correct in all material respects.
(e) At each of the dates hereof and at or prior to the time of closing,
the Representative shall have received an executed copy of a letter
from Ernst & Young, addressed to Newcourt and to the Representative,
in form and substance satisfactory to the Representative containing
statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to
financial statements and certain financial information, including
the financial information contained or incorporated by reference in
the Memorandum as identified by the Representative.
13
(f) Since the respective dates as of which information is given in the
Memorandum there shall not have been, at the time of closing, any
material adverse change in or affecting the general affairs,
management, financial position, stockholders' equity or results of
operations of Newcourt or AT&T Capital and their respective
subsidiaries, otherwise than as set forth or contemplated in the
Memorandum; the representations and warranties of Newcourt and AT&T
Capital herein shall be true at the Closing Date; neither Newcourt
nor AT&T Capital shall have failed, at or prior to the Closing Date
to have performed all agreements herein contained which should have
been performed by it at or prior to such time; and the
Representative shall have received, at the Closing Date, a
certificate to the foregoing effect dated the day of the closing and
signed by the President, a Vice President or the Treasurer of each
of Newcourt and AT&T Capital.
(g) Subsequent to the execution and delivery of this Agreement (i) no
downgrading shall have occurred in the rating accorded Newcourt's or
AT&T Capital's debt securities by any "nationally recognized
statistical rating organization", as that term is defined by the
Commission for purposes of rule 436(g) (2) under the Act and (ii) no
such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its
rating of any of Newcourt's or AT&T Capital's debt securities.
(h) Newcourt and AT&T Capital shall have executed and delivered the
Registration Rights Agreement.
(i) Prior to the time of closing, Newcourt shall have furnished to the
Representative such further due diligence information customary for
transactions of the type contemplated by this Agreement,
certificates and documents as the Representative may reasonably
request.
In case any of the conditions specified above in this Section 7 shall
not have been fulfilled, this Agreement may be terminated by the Representative
by delivering written notice of termination to Newcourt. Any such termination
shall be without liability of any party to any other party except to the extent
provided in subparagraphs (c) and (f) of Section 6 hereof.
8. Termination of Agreement. This Agreement may be terminated by
delivering written notice of termination to the Company at any time prior to the
time of closing, by the Representative (with the consent of the Initial
Purchasers which, together with the Representative, have agreed to purchase 50%
or more of the aggregate principal amount of the Notes), if after the signing of
this Agreement (i) trading in securities generally on the New York Stock
Exchange or the American Stock Exchange or in the over-the-counter market, or
trading in any securities of the Company or AT&T Capital on any exchange or in
the over-the-counter market, shall have been suspended or
14
minimum prices shall have been established on any such exchange or such market
by the Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction, (ii) a banking moratorium shall have
been declared by Federal or New York State authorities, or (iii) the United
States shall have become engaged in hostilities, there shall have been an
escalation in hostilities involving the United States or there shall have been a
declaration of a national emergency or war by the United States as to make it,
in the judgment of the Representative, impracticable or inadvisable to proceed
with the offering or delivery of the Notes on the terms and in the manner
contemplated in the Memorandum.
A termination of this Agreement pursuant to this Section shall be
without liability of any party to any other party.
9. Indemnification And Contribution. (a) The Company and AT&T Capital
shall, jointly and severally, indemnify and hold each Initial Purchaser harmless
from and against any and all losses, claims, damages, and liabilities, joint or
several, to which such Initial Purchaser may become subject, under the
Securities Act or otherwise, insofar as such losses, claims, damages,
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in the
Memorandum, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and will reimburse each Initial Purchaser for any legal or other expenses
reasonably incurred by such Initial Purchaser in connection with investigating
or defending any such action or claim as such expenses are incurred; provided,
however, that the Company and AT&T Capital shall not be liable in any such case
to the extent that any such loss, claim, damage or liability arises out of or is
based upon information contained in or omitted from the Memorandum in reliance
on Provided Information.
(b) Each Initial Purchaser severally will indemnify and hold harmless
the Company and AT&T Capital against any losses, claims, damages or liabilities
to which the Company or AT&T Capital may become subject, under the Securities
Act or otherwise, insofar as such losses, claims, damages, liabilities (or
actions in respect thereof) arise out of or are based upon an untrue statement
or alleged untrue statement of a material fact contained in the Memorandum, or
any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in the
Provided Information in the Memorandum or any such amendment or supplement; and
will reimburse the Company and AT&T Capital for any legal or other expenses
reasonably incurred by the Company and AT&T Capital in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(c) The Company, AT&T Capital and each Initial Purchaser agree that upon
the commencement of any action against it, its directors, its officers, or any
person controlling it as 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
15
parties against whom indemnity shall be sought, but the omission so to notify
such indemnifying party or parties of any such action shall not relieve such
indemnifying party or parties from any liability which it or they may have to
the indemnified party or parties otherwise than on account of such indemnity
agreement. In case such notice of any such action shall be so given, such
indemnifying party or parties shall be entitled to participate at its or their
own expense in the defense of such action, or, if it or they so elect, to assume
the defense of such action, and in the latter event such defense shall be
conducted by counsel chosen by such indemnifying party or parties and
satisfactory to the indemnified party or parties who shall be defendant or
defendants in such action, and such defendant or defendants shall bear the fees
and expenses of any additional counsel retained by them; but if the indemnifying
party or parties shall not elect to assume the defense of such action, such
indemnifying party or parties will reimburse such indemnified party or parties
for the reasonable fees and expenses of any counsel retained by them. In the
event that the parties to any such action (including impleaded parties) include
the Company, AT&T Capital and one or more of the Initial Purchasers and either
(i) the indemnifying party or parties and indemnified party or parties mutually
agree or (ii) representation of both the indemnifying party or parties and the
indemnified party or parties by the same counsel is inappropriate under
applicable standards of professional conduct due to actual or potential
differing interests between them, then the indemnifying party or parties shall
not have the right to assume the defense of such action on behalf of such
indemnified party or parties and will reimburse such indemnified party or
parties for the reasonable fees and expenses of any counsel retained by them and
satisfactory to the indemnifying party or parties, it being understood that the
indemnifying party or parties shall not, in connection with any one action or
separate but similar or related actions arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys (in addition to local counsel) for all
such indemnified parties, which shall be designated in writing by the
Representative in the case of an action in which one or more Initial Purchasers
or controlling persons are indemnified parties and by the Company or AT&T
Capital in the case of an action in which the Company or AT&T Capital or any of
their respective directors, officers or controlling persons are indemnified
parties. The indemnifying party or parties shall not be liable under this
Agreement with respect to any settlement made by any indemnified party or
parties without prior written consent by the indemnifying party or parties to
such settlement.
(d) If the indemnification provided for in subparagraph (a) or (b) of
this Section 9 is unavailable to an indemnified party in respect of any losses,
claims, damages, or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party under such paragraph, shall contribute to
the amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and AT&T Capital on the one hand and the Initial Purchasers on the other
from the offering of the Notes. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subparagraph (c)
above, then each indemnifying party shall contribute to such amount paid or
payable by such indemnified party in proportion as is appropriate to reflect not
only such relative benefits but also the relative fault of the Company and AT&T
Capital on one hand and the Initial Purchasers on the other in connection with
the statements or omissions
16
which resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company and AT&T Capital on one hand and the
Initial Purchasers on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering of the Notes purchased under this
Agreement (before deducting expenses) received by the Company bear to the total
discounts and commissions received by the Initial Purchasers with respect to the
Notes purchased under this Agreement, in each case as set forth in the
Memorandum. The relative fault of the Company and AT&T Capital and of the
Initial Purchasers shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or AT&T Capital on one hand or by the Initial Purchasers
on the other and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company,
AT&T Capital and the Initial Purchasers agree that it would not be just and
equitable if contributions pursuant to this subparagraph (d) were determined by
pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above in this subparagraph
(d). The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities referred to in this subparagraph (d)
shall be deemed to include, subject to the limitations set forth above in this
Section 9, any legal or other expenses reasonably incurred by such indemnified
party in connection with defending any such action or claim. Notwithstanding the
provisions of this subparagraph (d), no Initial Purchaser shall be required to
contribute any amount in excess of the amount by which the total price at which
the Notes sold and distributed by it were offered to the purchasers exceeds the
amount of any damages which the Initial Purchaser has been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The Initial
Purchasers' obligations in this subparagraph (d) to contribute are several in
proportion to their respective purchase obligations as set forth in Schedule I
hereto (including an increase pursuant to Section 3(b)) and not joint.
(e) The obligations of the Company and AT&T Capital under this Section 9
shall be in addition to any liability which the Company and AT&T Capital may
otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Initial Purchasers within the meaning of the
Securities Act; and the obligations of the Initial Purchasers under this Section
9 shall be in addition to any liability which the Initial Purchasers may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company or AT&T Capital and to each person, if any,
who controls the Company or AT&T Capital within the meaning of the Securities
Act.
10. Definition of Certain Terms. (a) The term "business day" means any
day on which the New York Stock Exchange is open for trading.
(b) The term "Significant Subsidiary" has the meaning set forth in Rule
1-02 of Regulation S-X.
17
(c) The term "Material Adverse Effect" means a material adverse change
in, or material adverse effect on, the consolidated financial position,
stockholders' equity, results of operations, business or prospects of the
Company, AT&T Capital and their respective Significant Subsidiaries taken as a
whole.
11. Initial Purchasers and the Representative. The term "Initial
Purchasers" as used herein shall mean the several persons, firms and
corporations named in Schedule I hereof, and the term "Initial Purchaser" shall
mean any one of such persons, firms, or corporations. The term "Representative"
shall mean the representative to whom this Agreement is addressed, who, by
executing this Agreement, represents that it has been authorized by each Initial
Purchaser to execute this Agreement on behalf of such Initial Purchaser and to
act for such Initial Purchaser in the manner herein provided. All obligations of
the Initial Purchasers hereunder are several and not joint.
12. Miscellaneous. This Agreement shall inure to the benefit of the
Company and AT&T Capital, the several Initial Purchasers and their respective
directors and officers and each controlling person referred to in Section 9
hereof and their respective successors. Nothing in this Agreement is intended or
shall be construed to give to any other person, firm or corporation any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. The term "successor" as used in this Agreement shall
not include any purchaser, as such purchaser, of any of the Notes from any of
the several Initial Purchasers.
13. Notices. All communications hereunder shall be in writing, and if to
the Initial Purchasers, unless otherwise provided, shall be mailed or delivered
to the Representative at Three World Financial Center, New York, New York 10285
and if to the Company or AT&T Capital unless otherwise provided, shall be mailed
or delivered to the Company at 2 Gatehall Drive, Parsippany, New Jersey 07054,
Attn: Treasurer with a copy to the General Counsel.
14. Governing Law. The validity and interpretation of this Agreement
shall be governed by the laws of the State of New York.
15. Survival Clause. Except with respect to any Initial Purchaser who is
in default within the meaning of Section 3 hereof, the indemnity and
contribution agreement contained in Section 9 hereof and the representations and
warranties of the Company and AT&T Capital set forth in this Agreement or in any
certificate furnished pursuant hereto shall remain operative and in full force
and effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Initial Purchaser or any person
controlling any Initial Purchaser, or (iii) acceptance of and payment for the
Notes.
16. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
18
17. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
[signature page follows]
19
Please sign and return to us the enclosed duplicate of this letter,
whereupon this letter will become a binding agreement between the Company, AT&T
Capital and the Initial Purchasers, in accordance with its terms.
Very truly yours,
NEWCOURT CREDIT GROUP INC.
By: /s/ GLENN VOTEK
---------------------------------
Printed Name: Glenn Votek
-----------------
Title: Executive Vice
President & Treasurer
------------------------
AT&T CAPITAL CORPORATION
By: /s/ GLENN VOTEK
---------------------------------
Printed Name: Glenn Votek
-----------------
Title: Executive Vice
President & Treasurer
------------------------
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written
LEHMAN BROTHERS INC.,
as Representative of the several Initial Purchasers
By:________________________________
Printed Name:___________________
Title:__________________________
Please sign and return to us the enclosed duplicate of this letter,
whereupon this letter will become a binding agreement between the Company, AT&T
Capital and the Initial Purchasers, in accordance with its terms.
Very truly yours,
NEWCOURT CREDIT GROUP INC.
By:
---------------------------------
Printed Name:
-----------------
Title:
------------------------
AT&T CAPITAL CORPORATION
By:
---------------------------------
Printed Name:
-----------------
Title:
------------------------
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written
LEHMAN BROTHERS INC.,
as Representative of the several Initial Purchasers
By: /s/ HERBERT McDADE
--------------------------------
Printed Name: Herbert McDade
-------------------
Title: Managing Director
--------------------------
SCHEDULE I
INITIAL PURCHASERS
Lehman Brothers Inc. $180,000,000
Chase Securities Inc. $37,500,000
J.P. Morgan Securities Inc. $37,500,000
Credit Suisse First Boston Corporation $15,000,000
Merrill Lynch, Pierce, Fenner & Smith Incorporated $15,000,000
Salomon Smith Barney Inc. $15,000,000
------------
Total $300,000,000
SCHEDULE II
NEWCOURT CREDIT GROUP INC.
ISSUE TERMS:
- --------------------------------------------------------------------------------
Issuer: Newcourt Credit Group Inc.
- --------------------------------------------------------------------------------
Guarantor: AT&T Capital Corporation
- --------------------------------------------------------------------------------
Issue Type: 144A with Registration Rights
- --------------------------------------------------------------------------------
Principal Amount: $300,000,000
- --------------------------------------------------------------------------------
Trade Date: December 8, 1998
- --------------------------------------------------------------------------------
Settlement Date: December 15, 1998
- --------------------------------------------------------------------------------
Final Maturity Date: December 17, 2003
- --------------------------------------------------------------------------------
Interest Payment Dates: June 15 and December 15
- --------------------------------------------------------------------------------
Initial Interest Payment Date: June 15, 1999
- --------------------------------------------------------------------------------
Coupon: 7.125%
- --------------------------------------------------------------------------------
Issue Price: 99.739%
- --------------------------------------------------------------------------------
Ratings: Baa3/BBB
- --------------------------------------------------------------------------------
Price to Issuer: 99.139%
- --------------------------------------------------------------------------------
Net Proceeds: $297,417,000
- --------------------------------------------------------------------------------
Initial Purchasers: See Schedule I
- --------------------------------------------------------------------------------
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