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REGISTRATION RIGHTS AGREEMENT
Dated as of December 15, 1998
among
NEWCOURT CREDIT GROUP INC.,
AT&T CAPITAL CORPORATION
and
LEHMAN BROTHERS INC.
as representative for the Initial Purchasers
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TABLE OF CONTENTS
1. Definitions.................................................1
2. Securities Subject to This Agreement........................3
3. Registered Exchange Offer...................................3
4. Shelf Registration..........................................5
5. Liquidated Damages..........................................6
6. Registration Procedures.....................................7
7. Registration Expenses......................................13
8. Indemnification and Contribution...........................13
9. Participation in Underwritten Registrations................16
10. Selection of Underwriters..................................17
11. Miscellaneous..............................................17
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and
entered into as of December 15, 1998 by and among Newcourt Credit Group Inc.,
formed under the laws of the Province of Ontario, Canada (the "Company"), AT&T
Capital Corporation, a corporation formed under the laws of Delaware ("AT&T
Capital") and Lehman Brothers Inc., as representative for the Initial Purchasers
(as such term is defined in the Purchase Agreement) (Lehman Brothers Inc. and
the Initial Purchasers shall be collectively referred to herein as the "Initial
Purchasers").
This Agreement is entered into in connection with the Purchase
Agreement, dated as of December 8, 1998, between the Company, AT&T Capital and
Lehman Brothers Inc. as representative of the Purchasers (the "Purchase
Agreement"), which provides for the sale by the Company to the Initial
Purchasers of $300,000,000 principal amount of the Company's 7.125% Senior Notes
due December 17, 2003 (the "Notes"). The Notes are general unsecured obligations
of the Company and rank pari passu in right of payment to all existing and
future senior unsecured debt of the Company; the payment of principal and
interest on the Notes will be guaranteed by AT&T Capital Corporation pursuant to
the Guarantee. Capitalized terms used but not specifically defined herein have
the respective meaning ascribed thereto in the Purchase Agreement. As an
inducement to the Initial Purchaser to enter into the Purchase Agreement and in
satisfaction of a condition to your obligations thereunder, the Company agrees
with you, for the benefit of the holders of the Notes (including the Initial
Purchasers) (the "Holders"), as follows:
1. Definitions. As used in this Agreement, the following capitalized
terms shall have the following meanings:
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
Closing Date: The date on which the Notes were sold.
Commission: The Securities and Exchange Commission.
Consummate: A Registered Exchange Offer shall be deemed "Consummated"
for purposes of this Agreement upon the occurrence of (i) the filing and
effectiveness under the Securities Act of the Exchange Offer Registration
Statement relating to the Exchange Notes to be issued in the Exchange Offer,
(ii) the maintenance of such Registration Statement continuously effective and
the keeping of the Exchange Offer open for a period not less than the minimum
period required pursuant to Section 3(b) hereof, and (iii) the delivery by the
Company of the Exchange Notes in the same aggregate principal amount, interest
rate, maturity date and interest payment dates as the Transfer Restricted
Securities that were validly tendered by Holders thereof pursuant to the
Exchange Offer.
Damages Payment Date: With respect to the Notes, each Interest Payment
Date until the earlier of (i) the date on which Liquidated Damages no longer are
payable or (ii) maturity of the Notes.
Effectiveness Target Date: As defined in Section 5.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Notes: The Notes to be issued pursuant to the Indenture in the
Exchange Offer (which shall be in either book-entry or certificated form and
issued pursuant to the Indenture).
Exchange Offer: The registration by the Company under the Securities
Act of the Exchange Notes pursuant to a Registration Statement pursuant to which
the Company offers the Holders of all outstanding Transfer Restricted Securities
the opportunity to exchange all such outstanding Transfer Restricted Securities
held by such Holders for Exchange Notes in an aggregate amount equal to the
aggregate amount of the Transfer Restricted Securities tendered in such exchange
offer by such Holders.
Exchange Offer Registration Statement: The Registration Statement
relating to the Exchange Offer, including the Prospectus which forms a part
thereof.
Exempt Resales: The transactions in which the Initial Purchaser
proposes to sell the Notes to certain "qualified institutional buyers," as such
term is defined in Rule 144A under the Securities Act, to certain institutional
"accredited investors," as such term is defined in Rule 501(a)(1), (2), (3) and
(7) of Regulation D under the Securities Act ("Accredited Institutions").
Holder: As defined in Section 2(b) hereof.
Indenture: The Indenture, dated as of December 15, 1998, between the
Company and The Chase Manhattan Bank, as trustee (the "Trustee"), pursuant to
which the Notes are to be issued, as such Indenture is amended or supplemented
from time to time in accordance with the terms thereof.
Initial Purchaser: As defined in the preamble hereto.
Person: An individual, partnership, corporation, limited liability
company, trust or unincorporated organization, or a government or agency or
political subdivision thereof.
Prospectus: The prospectus included in a Registration Statement, as
amended or supplemented by any prospectus supplement and by all other amendments
thereto, including post-effective amendments, and all material incorporated by
reference therein.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the Company
relating to (a) an offering of Exchange Notes pursuant to an Exchange Offer or
(b) the registration for resale of Transfer Restricted Securities pursuant to
the Shelf Registration Statement, which is filed pursuant to the provisions of
this Agreement, in either case, including the Prospectus included therein, all
amendments and supplements thereto (including post-effective amendments) and all
exhibits and material incorporated by reference therein.
Securities Act: The Securities Act of 1933, as amended.
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Shelf Filing Deadline: As defined in Section 4 hereof.
Shelf Registration Statement: As defined in Section 4 hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb),
as amended.
Transfer Restricted Securities: Each Note, until the earliest to occur
of (a) the date on which such Note has been exchanged by a person other than a
Broker-Dealer for Exchange Notes in the Exchange Offer, (b) following the
exchange by a Broker-Dealer in the Exchange Offer of such Note for one or more
Exchange Notes, the date on which such Exchange Notes are sold to a purchaser
who receives from such Broker-Dealer on or prior to the date of such sale a copy
of the prospectus contained in the Exchange Offer Registration Statement, (c)
the date on which such Notes have been effectively registered under the
Securities Act and disposed of in accordance with the Shelf Registration
Statement or (d) the date on which such Notes are eligible to be distributed to
the public pursuant to Rule 144 under the Securities Act;
Underwritten Registration or Underwritten Offering: A registration in
which securities of the Company are sold to an underwriter for reoffering to the
public.
2. Securities Subject to This Agreement.
(a) Transfer Restricted Securities. The securities entitled to the
benefits of this Agreement are the Transfer Restricted
Securities.
(b) Holders of Transfer Restricted Securities. A Person is deemed
to be a holder of Transfer Restricted Securities (each, a
"Holder") whenever such Person owns Transfer Restricted
Securities.
3. Registered Exchange Offer.
(a) Unless the Exchange Offer shall not be permissible under applicable
law or Commission policy (after the procedures set forth in Section 6(a) below
have been complied with) the Company shall (i) cause to be filed with the
Commission after the Closing Date, but in no event later than five (5) months
after the Closing Date, a Registration Statement under the Securities Act
relating to the Exchange Notes and the Exchange Offer, (ii) use its reasonable
best efforts to cause such Registration Statement to become effective no later
than eight (8) months after the Closing Date, (iii) in connection with the
foregoing, file (A) all pre-effective amendments to such Registration Statement
as may be necessary in order to cause such Registration Statement to become
effective, (B) if applicable, a post-effective amendment to such Registration
Statement pursuant to Rule 430A under the Securities Act and (C) cause all
necessary filings in connection with the registration and qualification of the
Exchange Notes to be made under the Blue Sky laws of such jurisdictions as are
necessary to permit Consummation of the Exchange Offer, and (iv) unless the
Exchange Offer would not be permitted by applicable law or Commission policy,
the Company will commence the Exchange Offer and use its reasonable best efforts
to issue on or prior to 30 business days after the date on which such
Registration Statement was declared effective by the Commission,
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Exchange Notes in exchange for all Transfer Restricted Securities tendered prior
thereto in the Exchange Offer. The Exchange Offer shall be on the appropriate
form permitting registration of the Exchange Notes to be offered in exchange for
the Transfer Restricted Securities and to permit resales of Exchange Notes held
by Broker-Dealers as contemplated by Section 3(c) below.
(b) The Company shall use its reasonable best efforts to cause the
Exchange Offer Registration Statement to be effective continuously and shall
keep the Exchange Offer open for a period of not less than the minimum period
required under applicable federal and state securities laws to Consummate the
Exchange Offer; provided, however, that in no event shall such period be less
than 20 business days. The Company shall cause the Exchange Offer to comply in
all material respects with all applicable federal and state securities laws. No
securities other than the Exchange Notes shall be included in the Exchange Offer
Registration Statement.
(c) The Company shall indicate in a "Plan of Distribution" section
contained in the Prospectus contained in the Exchange Offer Registration
Statement that any Broker-Dealer who holds Notes that are Transfer Restricted
Securities and that were acquired for its own account as a result of
market-making activities or other trading activities (other than Transfer
Restricted Securities acquired directly from the Company), may exchange such
Notes pursuant to the Exchange Offer, however, such Broker-Dealer may be deemed
to be an "underwriter" within the meaning of the Securities Act and must,
therefore, deliver a prospectus meeting the requirements of the Securities Act
in connection with any resales of the Exchange Notes received by such
Broker-Dealer in the Exchange Offer, which prospectus delivery requirement may
be satisfied by the delivery by such Broker-Dealer of the Prospectus contained
in the Exchange Offer Registration Statement. Such "Plan of Distribution"
section shall also contain all other information with respect to such resales by
Broker-Dealers that the Commission may require in order to permit such resales
pursuant thereto, but such "Plan of Distribution" shall not name any such
Broker-Dealer or disclose the amount of Exchange Notes held by any such
Broker-Dealer except to the extent required by the Commission as a result of a
change in policy announced after the date of this Agreement.
The Company shall use its reasonable best efforts to keep the Exchange
Offer Registration Statement continuously effective, supplemented and amended as
required by the provisions of Section 6(b) below to the extent necessary to
ensure that it is available for resales of Exchange Notes acquired by
Broker-Dealers for their own accounts as a result of market-making activities or
other trading activities, and to ensure that it conforms with the requirements
of this Agreement, the Securities Act and the policies, rules and regulations of
the Commission as announced from time to time, for a period of 180 days from the
date on which the Exchange Offer Registration Statement is declared effective.
The Company shall provide sufficient copies of the latest version of
such Prospectus to Broker-Dealers promptly upon request at any time during such
180-day period in order to facilitate such resales.
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4. Shelf Registration.
(a) Shelf Registration. If the Company is not required to file an
Exchange Offer Registration Statement or to consummate the Exchange Offer
because the Exchange Offer is not permitted by applicable law or Commission
policy (after the procedures set forth in Section 6(a) below have ben complied
with) then the Company shall in lieu of the registration of the Exchange Notes
pursuant to the Exchange Offer Registration Statement, use its reasonable best
efforts to:
(x) cause to be filed a shelf registration statement pursuant to
Rule 415 under the Securities Act, which may be an amendment
to the Exchange Offer Registration Statement (in either event,
the "Shelf Registration Statement"), on or prior to the 90th
day after the date on which the Company determines that it is
not required to file the Exchange Offer Registration Statement
(such date being the "Shelf Filing Deadline"), which Shelf
Registration Statement shall provide for resales of all
Transfer Restricted Securities the Holders of which shall have
provided the information required pursuant to Section 4(b)
hereof; and
(y) cause such Shelf Registration Statement to be declared
effective by the Commission on or before the 120th day after
the Shelf Filing Deadline.
The Company shall use its reasonable best efforts to keep such Shelf
Registration Statement continuously effective, supplemented and amended as
required by the provisions of Sections 6(b) hereof to the extent necessary to
ensure that it is available for resales of Notes by the Holders of Transfer
Restricted Securities entitled to the benefit of this Section 4(a), and to
ensure that it conforms with the requirements of this Agreement, the Securities
Act and the policies, rules and regulations of the Commission as announced from
time to time, for a period ending on the earlier to occur of (x) second
anniversary of the Closing Date and (y) the date on which all of the Transfer
Restricted Securities have been exchanged for the Exchange Notes.
(b) Provision by Holders of Certain Information in Connection with the
Shelf Registration Statement. No Holder of Transfer Restricted Securities may
include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Company in writing, within 20 business days after receipt of a request
therefor, such information as the Company may reasonably request for use in
connection with any Shelf Registration Statement or Prospectus or preliminary
Prospectus included therein. No Holder of Transfer Restricted Securities shall
be entitled to Liquidated Damages pursuant to Section 5 hereof unless and until
each Holder shall have used its best efforts to provide all such reasonably
requested information. Each Holder as to which any Shelf Registration Statement
is being effected agrees to furnish promptly to the Company all information
required to be disclosed in order to make the information previously furnished
to the Company by such Holder not materially misleading.
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5. Liquidated Damages.
(a) If (a) any of the Registration Statements required by this
Agreement is not filed with the Commission on or prior to the date specified for
such filing in this Agreement, (b) any of such Registration Statement has not
been declared effective by the Commission on or prior to the date specified for
such effectiveness in this Agreement (the "Effectiveness Target Date") (provided
this clause (b) shall not be applicable in the event the Holders shall not have
provided in a timely manner the information described in Section 4(b) hereof),
(c) the Exchange Offer has not been Consummated within 30 business days after
the Effectiveness Target Date with respect to the Exchange Offer Registration
Statement or (d) any Registration Statement required by this Agreement is filed
and declared effective but shall thereafter cease to be effective or fail to be
usable for its intended purpose without being succeeded within two business days
by a post-effective amendment to such Registration Statement that cures such
failure and that is itself immediately declared effective (each such event
referred to in clauses (a) through (d), a "Registration Default"), additional
cash interest ("Liquidated Damages") shall accrue to each Holder of the notes
commencing upon the occurrence of such Registration Default in an amount equal
to $.05 per week per $1,000 principal amount of Notes held by such Holder. The
amount of Liquidated Damages will increase by an additional $.05 per week per
$1,000 principal amount of Notes with respect to each subsequent 90-day period
until all Registration Defaults have been cured, up to a maximum amount of
Liquidated Damages of $.50 per week per $1,000 principal amount of Notes. All
accrued Liquidated Damages shall be paid to Holders by the Company in the same
manner as interest is made pursuant to the Indenture. Following the cure of all
Registration Defaults relating to any particular Transfer Restricted Securities,
the accrual of Liquidated Damages with respect to such Transfer Restricted
Securities will cease.
All obligations of the Company set forth in the preceding paragraph
that have accrued and are outstanding with respect to any Transfer Restricted
Security at the time such security ceases to be a Transfer Restricted Security
shall survive until such time as all such obligations with respect to such
Transfer Restricted Security shall have been satisfied in full.
(b) The Company shall notify the Trustee within one business day after
each and every date on which an event occurs in respect of which Liquidated
Damages are required to be paid (an "Event Date"). Liquidated Damages shall be
paid by depositing Liquidated Damages with the Trustee, in trust, for the
benefit of the Holders of the Notes, on or before the applicable Interest
Payment Date (whether or not any payment other than Liquidated Damages is
payable on such Notes), in immediately available funds in sums sufficient to pay
the Liquidated Damages then due tosuch Holders. Each obligation to pay
Liquidated Damages shall be deemed to accrue from the applicable date of the
occurrence of the Registration Default.
6. Registration Procedures.
(a) Exchange Offer Registration Statement. In connection with the
Exchange Offer, the Company shall comply with all of the provisions of Section
6(b) below, shall use its reasonable best efforts to effect such exchange to
permit the sale of Transfer Restricted Securities being sold in
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accordance with the intended method or methods of distribution thereof, and
shall comply with all of the following provisions:
(i) As a condition to its participation in the Exchange Offer
pursuant to the terms of this Agreement, each Holder of Transfer
Restricted Securities shall furnish, upon the request of the Company,
prior to the Consummation thereof, a written representation to the
Company (which may be contained in the letter of transmittal
contemplated by the Exchange Offer Registration Statement) to the
effect that (A) it is not an affiliate of the Company, (B) it is not
engaged in, and does not intend to engage in, and has no arrangement or
understanding with any person to participate in, a distribution of the
Exchange Notes to be issued in the Exchange Offer and (C) it is
acquiring the Exchange Notes in its ordinary course of business. In
addition, all such Holders of Transfer Restricted Securities shall
otherwise cooperate in the Company's preparations for the Exchange
Offer. Each Holder hereby acknowledges and agrees that any
Broker-Dealer and any such Holder using the Exchange Offer to
participate in a distribution of the securities to be acquired in the
Exchange Offer (1) could not under Commission policy as in effect on
the date of this Agreement rely on the position of the Commission
enunciated in Morgan Stanley and Co., Inc. (available June 5, 1991) and
Exxon Capital Holdings Corporation (available May 13, 1988), as
interpreted in the Commission's letter to Shearman & Sterling dated
July 2, 1993, and similar no-action letters (including Brown & Wood LLP
(available February 7, 1997), and any no-action letter obtained
pursuant to clause (i) above), and (2) must comply with the
registration and prospectus delivery requirements of the Securities Act
in connection with a secondary resale transaction and that such a
secondary resale transaction should be covered by an effective
registration statement containing the selling security holder
information required by Item 507 or 508, as applicable, of Regulation
S-K if the resales are of Exchange Notes obtained by such Holder in
exchange for Notes acquired by such Holder directly from the Company.
(ii) Prior to the effectiveness of the Exchange Offer
Registration Statement in the event underwriters are not participating,
the Company shall provide a supplemental letter to the Commission (A)
stating that the Company is registering the Exchange Offer in reliance
on the position of the Commission enunciated in Exxon Capital Holdings
Corporation (available May 13, 1988), Morgan Stanley and Co., Inc.
(available June 5, 1991), Brown & Wood, LLP (available February 7,
1997) and (B) including a representation that the Company has not
entered into any arrangement or understanding with any Person to
distribute the Exchange Notes to be received in the Exchange Offer and
that, to the best of the Company's information and belief, each Holder
participating in the Exchange Offer is acquiring the Exchange Notes in
its ordinary course of business and has no arrangement or understanding
with any Person to participate in the distribution of the Exchange
Notes received in the Exchange Offer.
(b) General Provisions. In connection with any Registration Statement
and any Prospectus required by this Agreement to permit the sale or resale of
Transfer Restricted Securities (including, without limitation, any Registration
Statement and the related Prospectus required to permit resales of Notes by
Broker-Dealers), the Company shall:
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(i) upon the occurrence of any event that would cause any such
Registration Statement or the Prospectus contained therein (A) to
contain a material misstatement or omission or (B) not to be effective
and usable for resale of Transfer Restricted Securities during the
period required by this Agreement, the Company shall file promptly an
appropriate amendment to such Registration Statement, in the case of
clause (A), correcting any such misstatement or omission, and, in the
case of either clause (A) or (B), use its reasonable best efforts to
cause such amendment to be declared effective and such Registration
Statement and the related Prospectus to become usable for their
intended purpose(s) as soon as practicable thereafter;
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement as may be
necessary to keep the Registration Statement effective for the
applicable period set forth in Section 3 or 4 hereof, as applicable, or
such shorter period as will terminate when all Transfer Restricted
Securities covered by such Registration Statement have been sold; cause
the Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424
under the Securities Act, and to comply fully with the applicable
provisions of Rules 424 and 430A under the Securities Act in a timely
manner; and comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such
Registration Statement during the applicable period in accordance with
the intended method or methods of distribution by the sellers thereof
set forth in such Registration Statement or supplement to the
Prospectus;
(iii) in the case of a Shelf Registration, advise the lead
underwriter to confirm such advice in writing, (A) when the Prospectus
or any Prospectus supplement or post-effective amendment has been
filed, and, with respect to any Registration Statement or any
post-effective amendment thereto, when the same has become effective,
(B) of any request by the Commission for amendments to the Registration
Statement or amendments or supplements to the Prospectus or for
additional information relating thereto, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement under the Securities Act or of the suspension by
any state securities commission of the qualification of the Transfer
Restricted Securities for offering or sale in any jurisdiction, or the
initiation of any proceeding for any of the preceding purposes, (D) of
the existence of any fact or the happening of any event that makes any
statement of a material fact made in the Registration Statement, the
Prospectus, any amendment or supplement thereto, or any document
incorporated by reference therein untrue, or that requires the making
of any additions to or changes in the Registration Statement or the
Prospectus in order to make the statements therein not misleading;
provided, however, this subclause (D) shall not be construed to require
the Company to amend or supplement the Registration Statement to the
extent such supplemental information is incorporated by reference
pursuant to the Company's Exchange Act filings. If at any time the
Commission shall issue any stop order suspending the effectiveness of
the Registration Statement, or any state securities commission or other
regulatory authority shall issue an order suspending the qualification
or exemption from qualification of the Transfer Restricted Securities
under state securities or Blue Sky laws, the
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Company shall use its best efforts to obtain the withdrawal or
lifting of such order at the earliest possible time;
(iv) in the case of a Shelf Registration, furnish to the lead
underwriter before filing with the Commission, copies of any
Registration Statement or any Prospectus included therein or any
amendments or supplements to any such Registration Statement or
Prospectus (including all documents incorporated by reference after the
initial filing of such Registration Statement), which documents will be
subject to the review of the lead underwriter, for a period of at least
two business days, and the Company will not file any such Registration
Statement or Prospectus or any amendment or supplement to any such
Registration Statement or Prospectus (including all such documents
incorporated by reference) to the lead underwriter shall reasonably
object within two (2) business days after the receipt thereof. The lead
underwriter shall be deemed to have reasonably objected to such filing
if such Registration Statement, amendment, Prospectus or supplement, as
applicable, as proposed to be filed, contains a material misstatement
or omission;
(v) in the case of a Shelf Registration and prior to the
effectiveness of the same, make available at reasonable times for
inspection by the lead underwriter participating in any disposition
pursuant to such Registration Statement, and any attorney or accountant
retained by the lead underwriter, all financial and other records,
pertinent corporate documents and properties of the Company and cause
the Company's officers, directors, managers and employees to supply all
information reasonably requested by the lead underwriter and its
attorney or accountant in connection with customary "due diligence";
(vi) in the case of a Shelf Registration, furnish to the lead
underwriter without charge, at least one copy of the Registration
Statement, as first filed with the Commission, and of each amendment
thereto, and all exhibits thereto (exclusive of any exhibits
incorporated therein by reference);
(vii) in the case of a Shelf Registration, deliver to the lead
underwriter and the Holders without charge, as many copies of the
Prospectus (including each preliminary prospectus) and any amendment or
supplement thereto as such Persons reasonably may request; subject to
the terms hereof the Company hereby consents to the use of the
Prospectus and any amendment or supplement thereto by the
underwriter(s) if any, in connection with the offering and the sale of
the Transfer Restricted Securities covered by the Prospectus or any
amendment or supplement thereto;
(viii) in the case of a Shelf Registration which is
underwritten, the Company shall:
(A) upon request, furnish to the lead underwriter in such
substance and scope as may be mutually agreeable to
the lead underwriter and the Company the following
described items which are customarily provided by
issuers to underwriters in primary underwritten
offerings, upon the date of the effectiveness of the
Shelf Registration Statement:
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(1) a certificate, dated the date of the
effectiveness of the Shelf Registration
Statement, signed by (y) the Chairman of the
Board, its President or a Vice President and
(z) the Chief Financial Officer of the
Company, confirming, as of the date thereof,
such matters as shall be mutually agreeable
to the lead underwriter and the Company and
which are customarily provided by issuers to
underwriters in primary underwritten
offerings;
(2) an opinion, dated the date of the
effectiveness of the Shelf Registration
Statement, of counsel for the Company,
covering such matters as such parties may
reasonably request, and in any event
including a statement to the effect that
such counsel has participated in such
conferences as such counsel shall deem
necessary in connection with the preparation
of such Registration Statement and the
related Prospectus and have considered the
matters required to be stated therein and
the statements contained therein, although
such counsel has not independently verified
the accuracy, completeness of fairness of
such statements; and that such counsel
advises that, on the basis of the foregoing
(relying as to materiality to a large extent
upon facts provided to such counsel by
officers and other representatives of the
Company and without independent check or
verification), no facts came to such
counsel's attention that caused such counsel
to believe that the applicable Registration
Statement, at the time such Registration
Statement or any post-effective amendment
thereto became effective, contained an
untrue statement of a material fact or
omitted to state a material fact required to
be stated therein or necessary to make the
statements therein not misleading, or that
the Prospectus contained in such
Registration Statement as of its date,
contained an untrue statement of a material
fact or omitted to state a material fact
necessary in order to make the statements
therein, in light of the circumstances under
which they were made, not misleading.
Without limiting the foregoing, such counsel
may state further that such counsel assumes
no responsibility for, and has not
independently verified, the accuracy,
completeness or fairness of the financial
statement, notes and schedules and other
financial data included in any Registration
Statement contemplated by this Agreement or
the related Prospectus and shall take such
other exceptions and make such
qualifications as are customarily taken or
made with respect to such an opinion; and
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(3) a customary comfort letter, dated the date
of the effectiveness of the Shelf
Registration Statement, from the Company's
independent accountants, in the customary
form and covering matters of the type
customarily covered in comfort letters by
underwriters in connection with primary
underwritten offerings.
(B) deliver such other documents and certificates as may
be mutually agreeable to the lead underwriter and the
Company and which are customarily provided by issuers
to underwriters in primary underwritten offerings to
evidence compliance with clause (A) above and with
any customary conditions contained in the
underwriting agreement or other agreement entered
into by the Company pursuant to this clause (viii);
if any.
(ix) in the case of a Shelf Registration, prior to any public
offering of Transfer Restricted Securities, cooperate with the lead
underwriter and its counsel in connection with the registration and
qualification of the Transfer Restricted Securities under the
securities or Blue Sky laws of such jurisdictions as the lead
underwriter may reasonably request and do any and all other acts or
things necessary to advisable or enable the disposition in such
jurisdictions of the Transfer Restricted Securities covered by the
Shelf Registration Statement; provided, however, that the Company shall
not be required to register or qualify as a foreign corporation where
it is not now so qualified or to take any action that would subject it
to the service of process in suits or to taxation, other than as to
matters and transactions relating to the Registration Statement, in any
jurisdiction where it is not now so subject;
(x) in the case of a Shelf Registration, shall issue, upon the
request of any Holder of Notes covered by the Shelf Registration
Statement, Exchange Notes in the same amount as the Notes surrendered
to the Company by such Holder in exchange therefor or being sold by
such Holder; such Exchange Notes to be registered in the name of such
Holder or in the name of the purchaser(s) of such Exchange Notes, as
the case may be; in return, the Notes held by such Holder shall be
surrendered to the Company for cancellation;
(xi) in the case of a Shelf Registration, cooperate with the
selling Holders and the lead underwriter to facilitate the timely
preparation and delivery of certificates representing Transfer
Restricted Securities to be sold and not bearing any restrictive
legends; and enable such Transfer Restricted Securities to be in such
denominations and registered in such names as the Holders or the
underwriters may request (subject to the terms and conditions of the
Indenture) at least two business days prior to any sale of Transfer
Restricted Securities made by such underwriter(s);
(xii) use its best efforts to cause the Transfer Restricted
Securities covered by the Registration Statement to be registered with
or approved by such other governmental agencies or authorities as may
be necessary (solely with respect to the Company) to enable
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the seller or sellers thereof or the underwriter(s), if any, to
consummate the disposition of such Transfer Restricted Securities,
subject to the proviso contained in clause (ix) above;
(xiii) if any fact or event contemplated to clause (b)(iii)(D)
above shall exist or have occurred, prepare a supplement or
post-effective amendment to the Registration Statement or related
Prospectus (to the extent such information has not already been
disseminated pursuant to the Company's Exchange Act filings) any
document incorporated therein by reference or file any other required
documents so that, as thereafter delivered to the purchasers of
Transfer Restricted Securities, the Prospectus will not contain an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading;
(xiv) provide CUSIP numbers for all Transfer Restricted
Securities not later than the effective date of the Registration
Statement as well as take such actions consistent with the terms and
conditions of the Indenture to deliver either certificated or
book-entry Notes;
(xv) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make generally
available to its security holders, as soon as practicable such
financial information as is required by the Indenture;
(xvi) cause the Indenture to be qualified under the TIA not
later than the effective date of the first Registration Statement
required by this Agreement, and, in connection therewith, cooperate
with the Trustee and the Holders of Notes to effect such changes to the
Indenture as may be required for such Indenture to be so qualified in
accordance with the terms of the TIA (notwithstanding anything
contained in this clause (xvi) the Holders shall obligate themselves to
cooperate with the Company to the extent necessary to cause the
Indenture to be qualified under the TIA); and execute and use its best
efforts to cause the Trustee to execute all documents that may be
required to effect such changes and all other forms and documents
required to be filed with the Commission to enable such Indenture to be
so qualified in a timely manner; and
(xvii) provide promptly to each Holder upon request each
document filed with the Commission pursuant to the requirements of
Section 13 and Section 15 of the Exchange Act.
Each Holder agrees by acquisition of a Transfer Restricted Security
that, upon receipt of any notice from the Company of the existence of any fact
of the kind described in Section 6(b)(iii)(D) hereof, such Holder will forthwith
discontinue disposition of Transfer Restricted Securities pursuant to the
applicable Registration Statement until such Holder's receipt of the copies of
the supplemented or amended Prospectus contemplated by Section 6(b)(xiii)
hereof, or until it is advised in writing (the "Advice") by the Company that the
use of the Prospectus may be resumed, and has received copies of any additional
or supplemental filings that are incorporated by reference in the Prospectus. If
so directed by the Company, each Holder will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies then in such
Holder's possession, of the Prospectus covering such Transfer Restricted
Securities that was current at the time of receipt of such notice. In the event
the Company shall give any such notice, the time period regarding the
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effectiveness of such Registration Statement set forth in Section 3 or 4 hereof,
as applicable, shall be extended by the number of days during the period from
and including the date of the giving of such notice pursuant to Section
6(b)(iii)(D) hereof to and including the date when each selling Holder covered
by such Registration Statement shall have received the copies of the
supplemented or amended Prospectus contemplated by Section 6(b)(xiii) hereof or
shall have received the Advice.
7. Registration Expenses.
All reasonable expenses incident to the Company's performance of or
compliance with this Agreement will be borne by the Company, regardless of
whether a Registration Statement becomes effective, including without
limitation: (i) all registration and filing fees and expenses; (ii) all fees and
expenses of compliance with federal securities and state Blue Sky or securities
laws; (iii) all expenses of printing (including printing certificates for the
Exchange Notes to be issued in the Exchange Offer and printing of Prospectuses),
and associated messenger and delivery services and telephone; (iv) all fees and
disbursements of counsel for the Company; (v) all application and filing fees in
connection with listing Notes on a national securities exchange or automated
quotation system; and (vi) all fees and disbursements of independent certified
public accountants of the Company (including the expenses of any special audit
and comfort letters required by or incident to such performance).
The Company will, in any event, bear its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expenses of any annual audit and the
fees and expenses of any Person, including special experts, retained by the
Company.
8. Indemnification and Contribution.
(a) In connection with a Shelf Registration Statement or in connection
with any delivery of a Prospectus contained in an Exchange Offer Registration
Statement by any participating Broker- Dealer or Initial Purchaser, as
applicable, who seeks to sell Exchange Notes, the Company and AT&T Capital shall
jointly and severally indemnify and hold harmless each Holder of Transfer
Restricted Securities included within any such Shelf Registration Statement and
each participating Broker-Dealer or Initial Purchaser selling Exchange Notes,
and each person, if any, who controls any such person within the meaning of
Section 15 of the Securities Act (each, a "Participant") from and against any
loss, claim, damage or liability, joint or several, or any action in respect
thereof (including, but not limited to, any loss, claim, damage, liability or
action relating to purchases and sales of Notes) to which such Participant or
controlling person may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in any such Registration Statement or any prospectus forming part
thereof or in any amendment or supplement thereto or (ii) the omission or
alleged omission to state therein in a material fact required to be stated
therein or necessary to make the statements therein not misleading, and shall
reimburse each participant promptly upon demand for any legal or other expenses
reasonably incurred by such Participant in connection with investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action as such expenses are incurred; provided, however, that
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(i) neither the Company nor AT&T Capital shall be liable in any such case to the
extent that any such loss, claim, damage, liability or action arises out of, or
is based upon, any untrue statement or alleged untrue statement or omission or
alleged omission made in any such Registration Statement or any prospectus
forming part thereof or in any such amendment or supplement in reliance upon and
in conformity with written information furnished to the Company or AT&T Capital
by or on behalf of any Participant specifically for inclusion therein; and
provided further that as to any preliminary Prospectus, the indemnity agreement
contained in this Section 8(a) shall not inure to the benefit of any such
Participant or any controlling person of such Participant on account of any
loss, claim, damage, liability or action arising from the sale of the Exchange
Notes to any person by that Participant if (i) that Participant failed to send
or give a copy of the Prospectus, as the same may be amended or supplemented, to
that person within the time required by the Securities Act and (ii) the untrue
statement or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact in such preliminary Prospectus was corrected
in the Prospectus, unless, in each case, such failure resulted from
non-compliance by the Company with Section 6(c). The foregoing indemnity
agreement is in addition to any liability which the Company or AT&T Capital may
otherwise have to any Participant or to any controlling person of that
Participant.
(b) Each Participant, severally and not jointly, shall indemnify and
hold harmless the Company and AT&T Capital, its directors, officers, employees
or agents and each person, if any, who controls the Company within the meaning
of Section 15 of the Securities Act, from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereto, to which the
Company or any such director, officer, employees or agents or controlling person
may become subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action
arises out of, or is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained in any preliminary Prospectus,
Registration Statement or Prospectus or in any amendment or supplement thereto
or (ii) the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, but in each case only to the extent that the untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company or AT&T
Capital by or on behalf of that Participant specifically for inclusion herein,
and shall reimburse the Company and any such director, officer, employees or
agents or controlling person for any legal or other expenses reasonably incurred
by the Company, AT&T Capital or any such director, officer, employees or agents
or controlling person in connection with investigating or defending or preparing
to defend against any such loss, claim, damage, liability or action as such
expenses are incurred. The foregoing indemnity agreement is in addition to any
liability which any Participant may otherwise have to the Company, AT&T Capital
or any such director, officer or controlling person.
(c) Promptly after receipt by an indemnified party under this Section 8
or notice of any claim or the commencement of any action, the indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party in writing of the
claim or the commencement of that action; provided, however, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have under this Section 8 except to the extent it has been materially
prejudiced by such failure and, provided further, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may have to
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an indemnified party otherwise than under this Section 8. If any such claim or
action shall be brought against any indemnified party, and it shall have
notified the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
the indemnified party shall have the right to employ counsel to represent
jointly the indemnified party and those other Participants and its respective
officers, employees and controlling persons who may be subject to liability
arising out of any claim in respect of which indemnity may be sought by the
Participants against the indemnifying party under this Section 8 if, in the
reasonably judgment of the indemnified party it is advisable for the indemnified
party and those Participants, officers, employees and controlling persons to be
jointly represented by separate counsel, and in that event the fees and expenses
of such separate counsel shall be paid by the indemnifying party. In no event
shall the indemnifying parties be liable for the fees and expenses of more than
one counsel (in addition to local counsel where required). Each indemnified
party, as a condition of the indemnity agreements contained in Section 8, shall
use its best efforts to cooperate with the indemnifying party in the defense of
any such action or claim. No indemnifying party shall (i) without the prior
written consent of the indemnified parties (which consent shall not be
unreasonably withheld), settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceedings, or (ii) be liable for
any settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with its written
consent or if there be a final judgment of the plaintiff in any such action, the
indemnifying party agrees to indemnify and hold harmless any indemnified party
from and against any loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall for any
reason be unavailable to or insufficient to hold harmless an indemnified party
under Section 8(a) or 8(b) in respect of any loss, claim, damage or liability,
or any action in respect thereof, referred to therein, then each indemnifying
party shall, in lieu of indemnifying such indemnified party, contribute to the
amount paid or payable by such indemnified party as a result of such loss,
claim, damage or liability, or action on respect thereto, in such proportion as
shall be appropriate to reflect the relative fault of the Company and AT&T
Capital on the one hand and the Participants on the other with respect to the
statements or omissions which resulted in such loss, claim, damage or liability,
or action in respect thereof, as well as any other relevant equitable
considerations. The relative fault shall be determined by reference to whether
the untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the
Company, AT&T Capital or the Participants, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company, AT&T Capital and the Participants agree
that it would not be just and equitable if contributions pursuant
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to this Section 8(d) were to be determined by pro rata allocation (even if the
Participants were treated as one entity for such purposes) or by any other
method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this Section 8(d) shall be deemed to include, for
purposes of this Section 8(d), any reasonable legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this Section 8(d),
no Participant shall be required to contribute any amount in excess of the
amount by which proceeds received by such participant from an offering of the
Notes exceeds the amount of any damages which such Participant has otherwise
paid or become liable to pay by reason of any untrue or alleged untrue statement
or omission or alleged omission.
(e) No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
indemnification or contribution from any person who was not guilty of such
fraudulent misrepresentation. The Participants' obligations to indemnify and
contribute as provided in this Section 8 are several and not joint.
9. Participation in Underwritten Registrations.
No Holder may participate in any Underwritten Registration hereunder
unless such Holder (a) agrees to sell such Holder's Transfer Restricted
Securities on the basis provided in any underwriting arrangements approved by
the Persons entitled hereunder to approve such arrangements and (b) completes
the executes all reasonable questionnaires, powers of attorney, indemnities,
underwriting agreements, lock-up letters and other documents required under the
terms of such underwriting arrangements.
10. Selection of Underwriters.
The Holders of Transfer Restricted Securities covered by the Shelf
Registration Statement who desire to do so may sell such Transfer Restricted
Securities in an Underwritten Offering. In any such Underwritten Offering, the
investment banker or investment bankers and manager or managers that will
administer the offering will be selected by the Company.
11. Miscellaneous.
(a) Remedies. The Company and the Holders agree that monetary damages
(including Liquidated Damages) would not be adequate compensation for any loss
incurred by reason of a breach by either of them of the provisions of this
Agreement and hereby agree to waive the defense in any action for specific
performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company will not on or after the
date of this Agreement enter into any agreement with respect to its securities
that is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not in any way conflict with and are not inconsistent with
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the rights granted to the holders of the Company's securities under any
agreement in effect on the date hereof.
(c) Adjustments Affecting the Notes. The Company will not take any
action, or permit any change to occur, with respect to the terms of the Notes
that would materially and adversely affect the ability of the Holders to
Consummate any Exchange Offer unless such action or change is required by
applicable law.
(d) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to or departures form
the provisions hereof may not be given unless the Company has obtained the
written consent of Holders of a majority of the outstanding principal amount of
Transfer Restricted Securities. Notwithstanding the foregoing, a waiver or
consent to departure from the provisions hereof that relates exclusively to the
rights of Holders whose securities are being tendered pursuant to the Exchange
Offer and that does not affect directly or indirectly the rights of other
Holders whose securities are not being tendered pursuant to such Exchange Offer
may be given by the Holders of a majority of the outstanding principal amount of
transfer Restricted Securities being tendered or registered. In connection with
the determination of whether the requisite number of Holders has consented to
any such amendment, waiver or supplement, the Company may rely on a list of the
names and addresses of such Holders compiled by the Trustee as Registrar and
Paying Agent under the Indenture.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder, at the address of such Holder
maintained by the Registrar under the Indenture; and
(ii) if to the Company:
Glenn A. Votek
EVP, Treasurer
Newcourt Credit Group Inc.
2 Gatehall Drive
Parsippany, New Jersey 07054
Facsimile: (973) 355-7019
with a copy to:
Scott Moore, Esq.
General Counsel
Newcourt Credit Group Inc.
2 Gatehall Drive
Parsippany, New Jersey 07054
Facsimile: (973) 355-7058
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All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when
answered bank, if telexed; when receipt acknowledged, if telecopied, and on the
next business day, if timely delivered to an air courier guaranteeing overnight
delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to the benefit
or and be binding upon the successors and assigns of each of the parties,
including without limitation and without the need for an express assignment,
subsequent Holders of Transfer Restricted Securities; provided, however, that
this Agreement shall not inure to the benefit of or be binding upon a successor
or assign of a Holder unless and to the extent such successor or assign acquired
Transfer Restricted Securities from such Holder.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to the
conflict of law rules thereof.
(j) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(k) Entire Agreement. This Agreement together with the other
transaction documents is intended by the parties as a final expression of their
agreement and intended to be a complete and exclusive statement of the agreement
and understanding of the parties hereto in respect of the subject matter
contained herein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or refereed to herein with respect to
the registration rights granted by the Company with respect to the Transfer
Restricted Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
(l) Required Consents. Whenever the consent or approval of Holders of a
specified percentage of Transfer Restricted Securities is required hereunder,
Transfer Restricted Securities held by the Company or its affiliates (as such
term is defined in Rule 405 under the Securities Act) shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
NEWCOURT CREDIT GROUP INC.
By: /s/ GLENN A. VOTEK
-----------------------------
Printed Name: Glenn A. Votek
----------------
Title: Executive Vice
President & Treasurer
-----------------------
AT&T CAPITAL CORPORATION
By: /s/ GLENN A. VOTEK
-----------------------------
Printed Name: Glenn A. Votek
----------------
Title: Executive Vice
President & Treasurer
-----------------------
Accepted as of the date thereof
By: LEHMAN BROTHERS INC.
By:
-----------------------------
Printed Name:
----------------
Title:
-----------------------
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
NEWCOURT CREDIT GROUP INC.
By:
-----------------------------
Printed Name:
----------------
Title:
-----------------------
AT&T CAPITAL CORPORATION
By:
-----------------------------
Printed Name:
----------------
Title:
-----------------------
Accepted as of the date thereof
By: LEHMAN BROTHERS INC.
By: /s/ HERBERT McDADE
-----------------------------
Printed Name: Herbert McDade
----------------
Title: Managing Director
-----------------------
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