$1,000,000,000 6.875% NOTES, SERIES B
DUE FEBRUARY 16, 2005
OF
NEWCOURT CREDIT GROUP INC.
PURCHASE AGREEMENT
February 10, 1999
Lehman Brothers Inc., as Representative of
the Several Initial Purchasers named in Schedule I hereof
Three World Financial Center
New York, New York 10285
Ladies and Gentlemen:
Each of the undersigned, Newcourt Credit Group Inc. ("Newcourt" or the
"Company") and its indirect wholly-owned subsidiary, AT&T Capital Corporation
("AT&T Capital"), hereby confirms its agreement (this "Agreement") with you as
the Representative of the several Initial Purchasers named in Schedule I hereof
(hereinafter collectively referred to herein as the "Initial Purchasers")
concerning the sale of the Notes as follows:
1. Description of Notes. Newcourt proposes to issue
$1,000,000,000 principal amount of its Notes, Series B, due February
16, 2005 (the "Notes") under an Indenture dated as of February 15,
1999, (as amended, restated or supplemented from time to time, the
"Indenture"), among Newcourt, AT&T Capital and The Chase Manhattan
Bank, Trustee (the "Trustee"). The Notes will contain the terms set
forth on Schedule II hereto. The Notes will be guaranteed as to payment
of principal, premium, if any, and interest pursuant to the guarantee
dated as of February 15, 1999 made by AT&T Capital to the Trustee (the
"Guarantee"). The Notes will be offered without being registered under
the Securities Act of 1933, as amended (the "Securities Act"), in
reliance on exemptions therefrom. The term "Memorandum" means the final
offering memorandum relating to the Notes and the Guarantee. The Notes
and the Guarantee are more fully described in the Memorandum. On the
Closing Date, the parties hereto will execute and deliver the
Registration Rights Agreement (the "Registration Rights Agreement")
relating to the Notes, substantially in the form attached hereto as
Exhibit A.
2. Representations and Warranties of the Company. The
Company and AT&T Capital jointly and severally represent and warrant to
the several Initial Purchasers that:
(a) The Memorandum, as of its date did not and at
the Closing Date will not, contain any untrue statement of a
material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that the
representations and warranties set forth in this Section 2(a)
do not apply to statements or omissions in
the Memorandum based upon information furnished to Newcourt
or AT&T Capital in writing by an Initial Purchaser through
the Representative specifically for use therein ("Provided
Information"). Reference herein to the Memorandum shall be
deemed to refer to and include any document filed by
Newcourt or AT&T Capital under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), on or before the
Closing Date, which is incorporated in the Memorandum by
reference.
(b) Assuming the offer, issue, sale and delivery of
the Notes occurs in the manner and under the circumstances
contemplated in this Agreement and the Memorandum, the issue
and sale of the Notes and the Guarantee are exempt from the
registration requirements of Section 5 of the Securities Act
pursuant to Section 4(2) of the Securities Act, and they are
not required by applicable law or regulation to qualify the
Indenture in respect of the Notes or the Guarantee under the
Trust Indenture Act of 1939, as amended.
(c) Ernst & Young LLP and Arthur Andersen LLP, who
have certified or shall certify certain financial statements
of Newcourt and AT&T Capital, whose reports are incorporated
by reference through the date hereof in the Memorandum, are
independent public accountants as defined in the Securities
Act and the rules and regulations of the Securities and
Exchange Commission (the "Commission") thereunder.
(d) The financial statements, and the related notes
thereto, included or incorporated by reference in the
Memorandum present fairly the consolidated financial position
of Newcourt and its consolidated subsidiaries as of the dates
indicated and the results of their operations and cash flows
for the periods specified; the financial statements, and the
related notes thereto incorporated by reference in the
Memorandum present fairly the consolidated financial position
of AT&T Capital and its consolidated subsidiaries as of the
dates indicated and the results of their operations and cash
flows for the specified periods; said financial statements
have been prepared in conformity with generally accepted
accounting principles in Canada or the United States, as
applicable, applied on a consistent basis, and any supporting
schedules incorporated by reference in the Memorandum present
fairly the information required to be stated therein; and the
pro forma financial information and the related notes thereto,
incorporated by reference in the Memorandum, have been
prepared in accordance with Article 11 of Regulation S-X under
the Securities Act and Exchange Act, as applicable, and are
based upon good faith estimates and assumptions believed by
Newcourt and AT&T Capital to be reasonable.
(e) Since the respective dates as of which
information is given in the Memorandum through the date
hereof, there has not been any change in the capital stock or
long-term debt of Newcourt or AT&T Capital or any of their
respective subsidiaries, or any material adverse change, or
any development involving a prospective material adverse
change, in or affecting the general affairs, business,
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prospects, management, financial position, stockholders'
equity or results of operations of Newcourt or AT&T Capital
and their respective subsidiaries, taken as a whole, otherwise
than as set forth or contemplated in the Memorandum; and
except as set forth or contemplated in the Memorandum neither
Newcourt, AT&T Capital nor any of their respective
subsidiaries has entered into any transaction or agreement
(whether or not in the ordinary course of business) that would
have a Material Adverse Effect.
(f) (i) The Indenture has been duly authorized,
executed and delivered by the Company and AT&T Capital and
constitutes the valid and binding agreement of the Company and
AT&T Capital, respectively, enforceable in accordance with its
terms (except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium and other
laws relating to or affecting creditors' rights generally and
by general equity principles); (ii) the Notes have been
validly authorized and, when duly executed, authenticated and
delivered as provided in the Indenture, will be validly issued
and outstanding, and will constitute valid and binding
agreements of the Company entitled to the benefits of the
Indenture and enforceable in accordance with their terms
(except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium and other laws relating
to or affecting creditors' rights generally and by general
equity principles), and (iii) the Notes and the Indenture
conform to the descriptions thereof contained in the
Memorandum.
(g) (i) The Guarantee has been duly authorized,
executed and delivered by AT&T Capital and constitutes the
valid and binding agreement of AT&T Capital, enforceable in
accordance with its terms (except as enforcement thereof may
be limited by bankruptcy, insolvency, reorganization,
moratorium and other laws relating to or affecting creditors'
rights generally and by general equity principles); and (ii)
the Guarantee conforms to the description thereof contained in
the Memorandum.
(h) Each of the Company, AT&T Capital and their
respective subsidiaries has been duly incorporated, is validly
existing and in good standing under the laws of its respective
jurisdiction of incorporation, is duly qualified to do
business and in good standing as a foreign corporation in each
jurisdiction in which its respective ownership of properties
or the conduct of its respective businesses requires such
qualification (except to the extent that the failure to be so
qualified or be in good standing would not have a Material
Adverse Effect) and has the power and authority necessary to
own or hold its respective properties and to conduct the
businesses in which it is engaged, as described in the
Memorandum.
(i) Neither the Company, AT&T Capital nor any of
their respective subsidiaries is in violation of its corporate
charter or by-laws or in default under any agreement,
indenture or instrument, the effect of which violation or
default would have a Material Adverse Effect.
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(j) The execution, delivery and performance of this
Agreement, the Indenture and the Registration Rights Agreement
by the Company and AT&T Capital, and the execution, delivery
and performance by AT&T Capital of the Guarantee and the
consummation of the transactions contemplated hereby and
thereby will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute
a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the
Company, AT&T Capital or any of their respective subsidiaries
is a party or by which the Company, AT&T Capital or any of
their respective subsidiaries is bound or to which any of the
property or assets of the Company, AT&T Capital or any of
their respective subsidiaries is subject, nor will such
actions result in any violation of the provisions of the
charter or by-laws of the Company, AT&T Capital or any of
their respective subsidiaries or any statute or any order,
rule or regulation of any court or governmental agency or body
having jurisdiction over the Company, AT&T Capital or any of
their respective subsidiaries or any of their properties or
assets, the effect of which breach, violation or default would
have a Material Adverse Effect; and except for such consents,
approvals, authorizations, registrations or qualifications as
may be required under applicable state securities laws in
connection with the purchase and distribution of the Notes and
the Guarantee by any Initial Purchaser, no consent, approval,
authorization or order of, or filing or registration with, any
such court or governmental agency or body is required for the
execution and delivery by the Company and AT&T Capital of,
compliance by the Company and AT&T Capital with the provisions
of, or consummation of the transactions contemplated by, this
Agreement, except to the extent that the effect of the failure
to obtain such consent, approval, authorization or order or to
make such filing or registration would not have a Material
Adverse Effect.
(k) This Agreement and the Registration Rights
Agreement have been duly authorized, executed and delivered by
the Company and AT&T Capital.
(l) Neither Newcourt nor AT&T Capital nor any of
their respective affiliates (as defined in Rule 501(b) of
Regulation D under the Securities Act, an "Affiliate") has
directly, or through any agent, (i) sold, offered for sale,
solicited offers to buy or otherwise negotiated in respect of,
any security (as defined in the Securities Act) which is or
will be integrated with the sale of the Notes in any manner
that would require the registration under the Securities Act
of the Notes or (ii) engaged in any form of general
solicitation or general advertising in connection with the
offering of the Notes (as those terms are used in Regulation D
under the Securities Act), or in any manner involving a public
offering of the Notes within the meaning of Section 4(2) of
the Securities Act.
(m) Neither the Company, AT&T Capital nor any of
their respective Significant Subsidiaries is an "investment
company" within the meaning of such term under the Investment
Company Act of 1940, as amended, and the rules and regulations
of the Commission thereunder.
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(n) There are no legal or governmental proceedings
pending to which the Company, AT&T Capital or any of their
respective subsidiaries is a party or of which any property or
asset of the Company, AT&T Capital or any of their respective
subsidiaries is the subject which, if determined adversely to
the Company, AT&T Capital or any of their respective
subsidiaries, might have a Material Adverse Effect, and the
Company has not been advised that any such proceedings are
threatened or contemplated by governmental authorities or
threatened by others that are required to be disclosed in the
Memorandum which are not so disclosed.
3. Purchase of Notes by the Initial Purchasers. (a) On the
basis of the representations and warranties and on the terms and
subject to the conditions herein set forth, each of the Initial
Purchasers agrees to purchase from Newcourt, severally and not jointly,
and on the terms and subject to the conditions herein set forth,
Newcourt agrees to sell to each of the Initial Purchasers, severally
and not jointly, the principal amount of Notes set forth opposite its
name in Schedule I at a purchase price equal to 99.061% of the
principal amount of such Notes.
(b) If, for any reason (other than termination of this
Agreement in accordance with the provisions of Section 7 or 8 hereof),
one or more of the Initial Purchasers shall fail or refuse to pay for
the Notes it has or they have agreed to purchase (any such Initial
Purchaser being hereinafter referred to as a "defaulting Initial
Purchaser"), and the aggregate principal amount of the Notes which such
defaulting Initial Purchaser or Initial Purchasers agreed but failed or
refused to purchase is not more than one-tenth of the aggregate
principal amount of the Notes, the remaining Initial Purchasers shall
be obligated severally in the proportion which the amounts of Notes set
forth opposite their names in Schedule I of this Agreement bear to the
aggregate principal amount of the Notes as set forth opposite the names
of all such non-defaulting Initial Purchasers (or in such other
proportion as the Representative shall specify) to purchase the Notes
which the defaulting Initial Purchaser or Initial Purchasers agreed but
failed or refused to purchase; provided that in no event shall the
principal amount of Notes that any Initial Purchaser is purchasing be
increased pursuant to the provisions of this paragraph in an amount in
excess of one-tenth of such principal amount of such Notes without the
written consent of such Initial Purchaser. In the event that any
Initial Purchaser or Initial Purchasers shall fail or refuse to
purchase the Notes and the aggregate principal amount of the Notes with
respect to which such default occurs is more than one-tenth of the
aggregate principal amount of the Notes, and arrangements satisfactory
to the Representative and the Company for the purchase of all such
Notes are not made within forty-eight (48) hours after such default,
this Agreement will terminate without liability on the part of any of
the non-defaulting Initial Purchasers or of the Company. In the event
that the non-defaulting Initial Purchasers agree to purchase, in
accordance with this paragraph, all the Notes which the defaulting
Initial Purchaser or Initial Purchasers fail or refuse to purchase, the
Representative or the Company shall have the right to postpone the time
of closing, but in no event for longer than seven days, in order that
the required changes, if any, in the Memorandum or in any other
documents or arrangements may be affected. Except to the extent
provided in subparagraphs (c) and (f) of Section 6 hereof, termination
of this
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Agreement pursuant to this Section 3 shall be without any
liability on the part of the Company or any Initial Purchaser other
than the defaulting Initial Purchaser. Any action taken under this
Section shall not relieve any defaulting Initial Purchaser from
liability in respect of any default of such Initial Purchaser under
this Agreement.
4. Sale and Resale of the Notes by the Initial Purchasers.
Each of the Initial Purchasers hereby advises Newcourt and AT&T Capital
that it proposes to offer the Notes for resale upon the terms and
conditions set forth in this Agreement and in the Memorandum. Each of
the Initial Purchasers hereby represents and warrants to, and agrees
with, Newcourt and AT&T Capital that, assuming the accuracy of the
Company's and AT&T Capital's representations herein, the Initial
Purchaser (i) is purchasing the Notes pursuant to a private sale exempt
from registration under the Securities Act, (ii) will not solicit
offers for, or offer to sell, the Notes by means of any form of general
solicitation or general advertising or in any manner involving a public
offering within the meaning of Section 4(2) of the Securities Act and
(iii) will solicit offers for the Notes only from, and will offer, sell
or deliver the Notes, as part of their initial offering, only to,
persons in the United States whom the Initial Purchaser reasonably
believes to be (A) qualified institutional buyers ("Qualified
Institutional Buyers") as defined in Rule 144A under the Securities
Act, as such rule may be amended from time to time ("Rule 144A"), or,
if any such person is buying for one or more institutional accounts for
which such person is acting as a fiduciary or agent, only when such
person has represented to the Initial Purchaser that each such account
is a Qualified Institutional Buyer, to whom notice has been given that
such sale or delivery is being made in reliance on Rule 144A or (B)
institutional accredited investors ("Accredited Investors") as defined
in Rule 501(1), (2), (3) or (7) of Regulation D under the Securities
Act who execute letters of representation in private sales exempt from
registration under the Securities Act.
5. Delivery of and Payment for the Notes. (a) Delivery of,
and payment of the purchase price for, the Notes which the Initial
Purchasers severally agree to purchase shall be made at the office of
Chapman and Cutler, Chicago, Illinois, at 10:00 a.m. (New York time) on
February 16, 1999 or at such other place or time on the same or such
other day as shall be agreed upon by the Company and the Representative
(such date and time of payment and delivery being herein called the
"Closing Date").
(b) On the Closing Date, payment shall be made to the Company
in immediately available funds by wire transfer of same-day funds to
such account or accounts as the Company shall specify prior to the
Closing Date or by such means as the parties hereto shall agree prior
to the Closing Date against delivery to the Representative for the
account of each Initial Purchaser of the certificates evidencing the
Notes. Upon delivery, the Notes shall be registered in such names and
in such denominations as the Representative shall request in writing
not less than two full business days prior to the Closing Date. The
Company agrees to make the Notes available to the Representative for
inspection on behalf of the Initial Purchasers at such place in New
York, New York as the Representative may specify, not later than 2:00
p.m. (New York time) on the business day next preceding the Closing
Date.
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6. Covenants of the Company and AT&T Capital. The Company
and AT&T Capital jointly and severally agree as follows:
(a) Prior to making any amendment or supplement to
the Memorandum other than by filing documents under the
Exchange Act which are incorporated by reference therein, the
Company or AT&T Capital, as applicable, shall furnish a copy
thereof to the Representative and counsel to the Initial
Purchasers and will not effect any such amendment or
supplement to which the Representative shall reasonably object
by notice to the Company after a reasonable period to review,
which shall not in any case be longer than three business days
after receipt of such copy.
(b) The Company will deliver to the Representative a
reasonable number of copies of the Memorandum and any
supplements and amendments thereto.
(c) The Company will pay all reasonable expenses in
connection with the preparation of the Indenture and
Guarantee, the rating of the Notes, the issuance and delivery
of the Notes and the preparation and printing of the copies of
the Memorandum to be furnished as provided in subparagraph (b)
above; and will pay any taxes on the issuance of the Notes,
but will not pay any transfer taxes. The Company will not be
required to pay any amount for any expenses of the
Representative or any of the Initial Purchasers, except the
cost of mailing to the Initial Purchasers copies of the
Memorandum and all amendments and supplements thereto
(including documents incorporated by reference), and except as
provided by subparagraph (f) below, and provided that if no
Notes are delivered to and purchased by the Initial Purchasers
as a result of a default by the Company or AT&T Capital or the
occurrence of any of the events referred to in Section 8
hereof, the Company, in addition to any payment provided for
by subparagraph (f) of this Section 6, will reimburse the
Representative for the reasonable out-of-pocket expenses of
the Initial Purchasers, not exceeding $15,000, and for the
fees and disbursements of Chapman and Cutler, the Initial
Purchasers agreeing to pay such expenses, fees and
disbursements in any other event. Neither the Company nor AT&T
Capital will in any event be liable to any of the several
Initial Purchasers for damages on account of loss of
anticipated profits.
(d) The Company and AT&T Capital will apply the
proceeds from the sale of the Notes as set forth under the
heading "Use of Proceeds" appearing in the Memorandum.
(e) So long as any of the Notes shall remain
outstanding, the Company or AT&T Capital will furnish to the
Representative, upon request and in reasonable quantities for
distribution to the Initial Purchasers, copies of such
documents, reports and other information as may be required to
be furnished to noteholders under the Indenture.
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(f) The Company and AT&T Capital will use their
reasonable best efforts to qualify the Notes, or to assist in
the qualification of the Notes by or on behalf of the
Representative, for offer and sale under the securities or
Blue Sky laws of such jurisdictions as the Representative may
designate, and will pay or reimburse the Representative for
counsel fees, filing fees and out-of-pocket expenses in
connection with such qualification; provided that neither the
Company nor AT&T Capital shall be required to qualify as a
foreign corporation or to file a general consent to service of
process in any jurisdiction or to pay, or to incur, or to
reimburse the Representative for, any such expenses if no
Notes are delivered to and purchased by the Initial Purchasers
hereunder because of a default by one or more of the Initial
Purchasers or the termination of this Agreement pursuant to
Section 8 hereof.
(g) If, at any time prior to completion of the offer
and sale of the Notes by the Initial Purchasers, in the
opinion of the counsel for the Initial Purchasers and counsel
to the Company, any event shall occur which should be set
forth in an amendment of or a supplement to the Memorandum in
order that the Memorandum will not include an untrue statement
of a material fact or omit to state a material fact necessary
in order to make the statements therein not misleading, in
light of the circumstances existing at the time it is
delivered to a purchaser, or if it is necessary to amend or
supplement the Memorandum to comply with applicable law, the
Company and AT&T Capital will, upon the occurrence of each
such event, forthwith at their expense, prepare and furnish to
the Representative, in reasonable quantities for distribution
to the Initial Purchasers, as many copies as the
Representative may reasonably request of such amendment or
supplement. For the purpose of this subparagraph (g), the
Company and AT&T Capital will furnish such due diligence
information customary for transactions of the type
contemplated by this Agreement as the Representative may from
time to time request. Notwithstanding any of the other
provisions of this subparagraph (g), neither the Company nor
AT&T Capital shall be under any obligation to furnish any
supplement to or amendment of the Memorandum on account of any
change in, or to include in any amended Memorandum any change
in, the information furnished to the Company or AT&T Capital
by any Initial Purchaser for use in the Memorandum, unless the
Representative, on behalf of such Initial Purchaser, has
advised the Company in writing of such change and has
requested the Company at the expense of such Initial Purchaser
to prepare a supplement to or amendment of the Memorandum to
reflect such change or to include such change in an amended
Memorandum.
(h) None of the Company, AT&T Capital or any of
their respective affiliates (as defined in the Securities Act)
will, either directly or indirectly, sell, offer for sale or
solicit offers to buy or otherwise negotiate in respect of any
security (as defined in the Securities Act) in a transaction
that could be integrated with the sale of the Notes in a
manner that would require the registration under the
Securities Act of the Notes.
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(i) So long as the Notes are outstanding and are
"restricted securities" within the meaning of Rule 144(a)(3)
under the Securities Act, the Company will either (i) file
reports and other information with the Commission under
Section 13 or 15(d) of the Exchange Act, or (ii) in the event
that it is not subject to Section 13 or 15(d) of the Exchange
Act, make available to holders of the Notes and prospective
purchasers of the Notes designated by such holders, upon
request of prospective purchasers, the information required to
be delivered pursuant to Rule 144A(d)(4) under the Securities
Act to permit compliance with Rule 144A in connection with
resales of the Notes.
(j) Each of the Notes will bear a legend
substantially in the form contained in "Transfer Restrictions"
in the Memorandum and upon the other terms contained therein,
except after such Notes are resold or exchanged pursuant to a
registration statement effective under the Securities Act.
(k) The Company and AT&T Capital will take such
steps as shall be reasonably necessary to ensure that neither
the Company, AT&T Capital nor any of their respective
Significant Subsidiaries shall become an "investment company"
within the meaning of such term under the Investment Company
Act of 1940 and the rules and regulations of the Commission
thereunder.
7. Conditions of the Obligations of the Initial Purchasers.
The obligations of the Initial Purchasers to purchase and pay for the
Notes shall be subject to the following additional conditions:
(a) The Initial Purchasers shall not have discovered
and disclosed to the Company or AT&T Capital on or prior to
the Closing Date that the Memorandum or any amendment or
supplement thereto contains any untrue statement of a fact
which in the reasonable opinion of Chapman and Cutler, counsel
for the Initial Purchasers, is material or omits to state any
fact which, in the opinion of such counsel, is material and is
required to be stated therein or is necessary to make the
statements therein not misleading.
(b) At or prior to the time of closing, the
Representative shall have received from counsel for the
Company and AT&T Capital, an opinion, satisfactory to Chapman
and Cutler, to the effect that -
(i) Newcourt has been duly incorporated and
is validly existing and in good standing under the
laws of the Province of Ontario, Canada and AT&T
Capital has been duly incorporated and is validly
existing and in good standing under the laws of the
State of Delaware; each of Newcourt and AT&T Capital
is duly qualified to do business and in good standing
as a foreign corporation in all jurisdictions in
which its ownership or leasing of properties or the
conduct of its businesses requires such qualification
(except where the failure to so qualify or be in good
standing would not have a Material Adverse Effect),
and has all power and authority necessary
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to own its respective properties and conduct the
businesses in which it is engaged, as described in
the Memorandum;
(ii) The issue and sale of the Notes by
Newcourt and the compliance by Newcourt with all the
provisions of this Agreement, the Registration Rights
Agreement and the Indenture, and the consummation of
the transactions contemplated hereby and thereby will
not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or
instrument known to such counsel to which Newcourt or
any of its subsidiaries is a party or by which
Newcourt or any of its subsidiaries is bound or to
which any of the property or assets of Newcourt or
any of its subsidiaries is subject, nor will such
actions result in any violation of the provisions of
the charter or by-laws of Newcourt or any of its
subsidiaries or any statute or any order, rule or
regulation known to such counsel of any court or
governmental agency or body having jurisdiction over
Newcourt or any of its subsidiaries or any of their
properties or assets (except for such conflicts,
breaches, violations and defaults as would not have a
Material Adverse Effect); and, except for such
consents, approvals, authorizations, registrations or
qualifications as may be required under applicable
state securities laws in connection with the purchase
and distribution of the Notes by the Initial
Purchasers and compliance with the Securities Act
with respect to the Registration Rights Agreement, no
consent, approval, authorization, qualification or
order of, or filing or registration with, any such
court or governmental agency or body is required for
the execution and delivery by Newcourt of, compliance
by Newcourt with the provisions of, or the
consummation of the transactions contemplated by,
this Agreement, the Registration Rights Agreement and
the Indenture except to the extent that the effect of
the failure to obtain such consent, approval,
authorization, qualification or order or to make such
filing or registration would not have a Material
Adverse Effect;
(iii) The issue of the Guarantee by AT&T
Capital and the compliance by AT&T Capital with all
the provisions of this Agreement, the Registration
Rights Agreement, the Indenture and the Guarantee and
the consummation of the transactions contemplated
hereby and thereby will not conflict with or result
in a breach or violation of any of the terms or
provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument known to such counsel
to which AT&T Capital or any of its subsidiaries is a
party or by which AT&T Capital or any of its
subsidiaries is bound or to which any of the property
or assets of AT&T Capital or any of its subsidiaries
is subject, nor will such actions result in any
violation of the provisions of the charter or by-laws
of AT&T Capital or any of its subsidiaries or any
statute or any order, rule or regulation known to
such counsel of any court or
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governmental agency or body having jurisdiction over
AT&T Capital or any of its subsidiaries or any of
their properties or assets (except for such
conflicts, breaches, violations and defaults as would
not have a Material Adverse Effect); and, except for
such consents, approvals, authorizations,
registrations or qualifications as may be required
under applicable state securities laws in connection
with the purchase and distribution of the Notes and
Guarantee by the Initial Purchasers and compliance
with the Securities Act with respect to the
Registration Rights Agreement, no consent, approval,
authorization, qualification or order of, or filing
or registration with, any such court or governmental
agency or body is required for the execution and
delivery by AT&T Capital of, compliance by AT&T
Capital with the provisions of, or the consummation
of the transactions contemplated by this Agreement,
the Registration Rights Agreement, the Indenture and
the Guarantee except to the extent that the effect of
the failure to obtain such consent, approval,
authorization, qualification or order or to make such
filing or registration would not have a Material
Adverse Effect;
(iv) The Indenture has (A) been duly
authorized, executed and delivered by Newcourt and
(B) is a valid and binding agreement of Newcourt
enforceable in accordance with its terms (except as
enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium and other laws
relating to or affecting creditors' rights generally
and by general equity principles);
(v) The Notes (A) have been duly authorized
by Newcourt and, when duly executed and authenticated
as provided in the Indenture and delivered against
payment therefor in accordance with this Agreement,
(B) will be duly and validly issued and outstanding,
and (C) will constitute valid and binding agreements
of Newcourt enforceable in accordance with their
terms (except as enforcement thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium
and other similar laws relating to or affecting
creditors' rights generally and subject to general
equitable principles), and entitled to the benefits
of the Indenture;
(vi) The Guarantee and the Indenture have
been duly authorized, executed and delivered by AT&T
Capital and are valid and binding agreements of AT&T
Capital enforceable in accordance with their terms
(except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium
and other similar laws relating to or affecting
creditors' rights generally and subject to general
equitable principles);
(vii) The statements made in the Memorandum
under the captions "Description of the Notes,"
"Description of the Guarantee" and "Exchange Offer;
Registration Rights; Liquidated Damages," insofar as
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such statements constitute summaries of the legal
matters, documents or proceedings specifically
referred to therein, fairly present the information
called for with respect to such legal matters,
documents and proceedings and fairly summarize the
maters referred to therein;
(viii) This Agreement and the Registration
Rights Agreement have been duly authorized, executed
and delivered by (A) Newcourt and (B) AT&T Capital;
and
(ix) Except as to financial statements and
schedules contained therein, as to which such counsel
is not called upon to express any opinion or belief,
the Memorandum, and each document or portion thereof
incorporated by reference in the Memorandum, as of
the Closing Date, did not contain any untrue
statement of a material fact or omit to state a
material fact required to be stated therein or
necessary to make the statements therein, in light of
the circumstances under which they were made, not
misleading.
(c) At or prior to the time of closing, the Representative
shall have received from Chapman and Cutler an opinion to the effect
specified in clauses (b)(iv)(B), (b)(v)(B), (b)(vi), (b)(vii),
(b(viii)(B) and (b)(ix), which opinions may rely on the opinion
referred to in clauses (b) and (d).
(d) At or prior to the time of closing, the Representative
shall have received from (i) Sidley & Austin, special tax counsel to
the Company, an opinion that its opinions expressed or referred to
under the caption "Material United States Income Tax Consequences" and
(ii) Blake, Cassels & Graydon, special tax counsel to the Company, an
opinion that its opinions expressed or referred to under the caption
"Canadian Federal Income Tax Considerations" in the Memorandum are
correct in all material respects.
(e) At each of the date hereof and at or prior to the time of
closing, the Representative shall have received an executed copy of a
letter from Ernst & Young LLP, addressed to Newcourt, AT&T Capital and
the Representative, in form and substance satisfactory to the
Representative containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters
with respect to financial statements and certain financial information,
including the financial information contained or incorporated by
reference in the Memorandum as identified by the Representative.
(f) Since the respective dates as of which information is
given in the Memorandum there shall not have been, at the time of
closing, any material adverse change in or affecting the general
affairs, management, financial position, stockholders' equity or
results of operations of Newcourt or AT&T Capital and their respective
subsidiaries, otherwise than as set forth or contemplated in the
Memorandum; the representations and warranties of Newcourt and AT&T
Capital herein shall be true at the Closing Date; neither Newcourt nor
AT&T Capital shall have failed, at or prior to the
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Closing Date to have performed all agreements herein contained which
should have been performed by it at or prior to such time; and the
Representative shall have received, at the Closing Date, a certificate
to the foregoing effect dated the day of the closing and signed by the
President, a Vice President or the Treasurer of each of Newcourt and
AT&T Capital.
(g) Subsequent to the execution and delivery of this
Agreement (i) no downgrading shall have occurred in the rating accorded
Newcourt's or AT&T Capital's debt securities by any "nationally
recognized statistical rating organization," as that term is defined by
the Commission for purposes of rule 436(g)(2) under the Securities Act
and (ii) no such organization shall have publicly announced that it has
under surveillance or review, with possible negative implications, its
rating of any of Newcourt's or AT&T Capital's debt securities.
(h) Newcourt and AT&T Capital shall have executed and
delivered the Registration Rights Agreement.
(i) Prior to the time of closing, Newcourt shall have
furnished to the Representative such further due diligence information
customary for transactions of the type contemplated by this Agreement,
certificates and documents as the Representative may reasonably
request.
In case any of the conditions specified above in this Section 7 shall
not have been fulfilled, this Agreement may be terminated by the Representative
by delivering written notice of termination to Newcourt. Any such termination
shall be without liability of any party to any other party except to the extent
provided in subparagraphs (c) and (f) of Section 6 hereof.
8. Termination of Agreement. This Agreement may be terminated by
delivering written notice of termination to the Company at any time prior to the
time of closing, by the Representative (with the consent of the Initial
Purchasers which, together with the Representative, have agreed to purchase 50%
or more of the aggregate principal amount of the Notes), if after the signing of
this Agreement (i) trading in securities generally on the New York Stock
Exchange or the American Stock Exchange or in the over-the-counter market, or
trading in any securities of the Company or AT&T Capital on any exchange or in
the over-the-counter market, shall have been suspended or minimum prices shall
have been established on any such exchange or such market by the Commission, by
such exchange or by any other regulatory body or governmental authority having
jurisdiction, (ii) a banking moratorium shall have been declared by Federal or
New York State authorities, or (iii) the United States shall have become engaged
in hostilities, there shall have been an escalation in hostilities involving the
United States or there shall have been a declaration of a national emergency or
war by the United States so as to make it, in the judgment of the
Representative, impracticable or inadvisable to proceed with the offering or
delivery of the Notes on the terms and in the manner contemplated in the
Memorandum.
A termination of this Agreement pursuant to this Section shall be
without liability of any party to any other party.
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9. Indemnification and Contribution. (a) The Company and AT&T Capital
shall, jointly and severally, indemnify and hold each Initial Purchaser harmless
from and against any and all losses, claims, damages, and liabilities, joint or
several, to which such Initial Purchaser may become subject, under the
Securities Act or otherwise, insofar as such losses, claims, damages,
liabilities (or actions in respect thereof), arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in the
Memorandum, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and will reimburse each Initial Purchaser for any legal or other expenses
reasonably incurred by such Initial Purchaser in connection with investigating
or defending any such action or claim as such expenses are incurred; provided,
however, that the Company and AT&T Capital shall not be liable in any such case
to the extent that any such loss, claim, damage or liability arises out of or is
based upon information contained in or omitted from the Memorandum in reliance
on Provided Information.
(b) Each Initial Purchaser severally will indemnify and hold harmless
the Company and AT&T Capital against any losses, claims, damages or liabilities
to which the Company or AT&T Capital may become subject, under the Securities
Act or otherwise, insofar as such losses, claims, damages, liabilities (or
actions in respect thereof) arise out of or are based upon an untrue statement
or alleged untrue statement of a material fact contained in the Memorandum, or
any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in the
Provided Information provided by such Initial Purchaser through the
Representative specifically for use therein; and will reimburse the Company and
AT&T Capital for any legal or other expenses reasonably incurred by the Company
and AT&T Capital in connection with investigating or defending any such action
or claim as such expenses are incurred.
(c) The Company, AT&T Capital and each Initial Purchaser agree that
upon the commencement of any action against it, its directors, its officers, or
any person controlling it as specified below in respect of which indemnity may
be sought on account of any indemnity agreement contained herein, it will
promptly give written notice of the commencement thereof to the party or parties
against whom indemnity shall be sought, but the omission so to notify such
indemnifying party or parties of any such action shall not relieve such
indemnifying party or parties from any liability which it or they may have to
the indemnified party or parties otherwise than on account of such indemnity
agreement. In case such notice of any such action shall be so given, such
indemnifying party or parties shall be entitled to participate at its or their
own expense in the defense of such action, or, if it or they so elect, to assume
the defense of such action, and in the latter event such defense shall be
conducted by counsel chosen by such indemnifying party or parties and
satisfactory to the indemnified party or parties who shall be defendant or
defendants in such action, and such defendant or defendants shall bear the fees
and expenses of any additional counsel retained by them; but if the indemnifying
party or parties shall not elect to assume the defense of such action, such
indemnifying parties or parties will reimburse such indemnified party or parties
for the reasonable fees and expenses of any counsel retained by them. In the
event that the parties to any such action (including impleaded parties) include
the Company, AT&T Capital
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and one or more of the Initial Purchasers and either (i) the indemnifying party
or parties and indemnified party or parties mutually agree or (ii)
representation of both the indemnifying party or parties and the indemnified
party or parties by the same counsel is inappropriate under applicable standards
of professional conduct due to actual or potential differing interests between
them, then the indemnifying party or parties shall not have the right to assume
the defense of such action on behalf of such indemnified party or parties and
will reimburse such indemnified party or parties for the reasonable fees and
expenses of any counsel retained by them and satisfactory to the indemnifying
party or parties, it being understood that the indemnifying party or parties
shall not, in connection with any one action or separate but similar or related
actions arising out of the same general allegations or circumstances, be liable
for the reasonable fees and expenses of more than one separate firm of attorneys
(in addition to local counsel) for all such indemnified parties, which shall be
designated in writing by the Representative in the case of an action in which
one or more Initial Purchasers or controlling persons are indemnified parties
and by the Company or AT&T Capital in the case of an action in which the Company
or AT&T Capital or any of their respective directors, officers or controlling
persons are indemnified parties. The indemnifying party or parties shall not be
liable under this Agreement with respect to any settlement made by any
indemnified party or parties without prior written consent by the indemnifying
party or parties to such settlement.
(d) If the indemnification provided for in subparagraph (a) or (b) of
this Section 9 is unavailable to an indemnified party in respect of any losses,
claims, damages, or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party under such paragraph shall contribute to
the amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and AT&T on the one hand and the Initial Purchasers on the other from
the offering of the Notes. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subparagraph (c)
above, then each indemnifying party shall contribute to such amount paid or
payable by such indemnified party in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company and AT&T Capital on one hand and the Initial Purchasers on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Company and AT&T Capital on one hand and the Initial Purchasers on the other
shall be deemed to be in the same proportion as the total net proceeds from the
offering of the Notes purchased under this Agreement (before deducting expenses)
received by the Company bear to the total discounts and commissions received by
the Initial Purchasers with respect to the Notes purchased under this Agreement,
in each case as set forth in the Memorandum. The relative fault of the Company
and AT&T Capital and of the Initial Purchasers shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or AT&T Capital on one hand or by
the Initial Purchasers on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omissions. The Company, AT&T Capital and the Initial Purchasers agree that it
would not be just and equitable if contributions pursuant to this subparagraph
(d) were determined by pro rata allocation or by any other method of allocation
which does not take
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account of the equitable considerations referred to above in this subparagraph
(d). The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities referred to in this subparagraph (d)
shall be deemed to include, subject to the limitations set forth above in this
Section 9, any legal or other expenses reasonably incurred by such indemnified
party in connection with defending any such action or claim. Notwithstanding the
provisions of this subparagraph (d), no Initial Purchaser shall be required to
contribute any amount in excess of the amount by which the total price at which
the Notes sold and distributed by it were offered to the purchasers exceeds the
amount of any damages which the Initial Purchaser has been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The Initial
Purchasers' obligations in this subparagraph (d) to contribute are several in
proportion to their respective purchase obligations as set forth in Schedule I
hereto (including an increase pursuant to Section 3(b)) and not joint.
(e) The obligations of the Company and AT&T Capital under this Section
9 shall be in addition to any liability which the Company and AT&T Capital may
otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Initial Purchaser within the meaning of the
Securities Act; and the obligations of the Initial Purchasers under this Section
9 shall be in addition to any liability which the Initial Purchasers may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company or AT&T Capital and to each person, if any,
who controls the Company or AT&T Capital within the meaning of the Securities
Act.
10. Definition of Certain Terms. (a) The term "business day" means any
day on which the New York Stock Exchange is open for trading.
(b) The term "Significant Subsidiary" has the meaning set forth in Rule
1-02 of Regulation S-X.
(c) The term "Material Adverse Effect" means a material adverse change
in, or material adverse effect on, the consolidated financial position,
stockholders' equity, results of operations, business or prospects of the
Company, AT&T Capital and their respective subsidiaries taken as a whole.
11. Initial Purchasers and the Representative. The term "Initial
Purchasers" as used herein shall mean the several persons, firms and
corporations named in Schedule I hereof, and the term "Initial Purchaser" shall
mean any one of such persons, firms, or corporations. The term "Representative"
shall mean the representative to whom this Agreement is addressed, who, by
executing this Agreement, represents that it has been authorized by each Initial
Purchaser to execute this Agreement on behalf of such Initial Purchaser and to
act for such Initial Purchaser in the manner herein provided. All obligations of
the Initial Purchasers hereunder are several and not joint.
12. Miscellaneous. This Agreement shall inure to the benefit of the
Company and AT&T Capital, the several Initial Purchasers and their respective
directors and officers and each
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controlling person referred to in Section 9 hereof and their respective
successors. Nothing in this Agreement is intended or shall be construed to give
to any other person, firm or corporation any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision herein contained.
The term "successor" as used in this Agreement shall not include any purchaser,
as such purchaser, of any of the Notes from any of the several Initial
Purchasers.
13. Notices. All communications hereunder shall be in writing, and if
to the Initial Purchasers, unless otherwise provided, shall be mailed or
delivered to the Representative at Three World Financial Center, New York, New
York 10285 and if to the Company or AT&T Capital unless otherwise provided,
shall be mailed or delivered to the Company at 2 Gatehall Drive, Parsippany, New
Jersey 07054, Attn: Treasurer with a copy to the General Counsel.
14. Governing Law. The validity and interpretation of this Agreement
shall be governed by the laws of the State of New York.
15. Survival Clause. Except with respect to any Initial Purchaser who
is in default within the meaning of Section 3 hereof, the indemnity and
contribution agreement contained in Section 9 hereof and the representations and
warranties of the Company and AT&T Capital set forth in this Agreement or in any
certificate furnished pursuant hereto shall remain operative and in full force
and effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Initial Purchaser or any person
controlling any Initial Purchaser or (iii) acceptance of and payment for the
Notes.
16. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
17. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
[signature page follows]
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Please sign and return to us the enclosed duplicate of this letter,
whereupon this letter will become a binding agreement among the Company, AT&T
Capital and the Initial Purchasers, in accordance with its terms.
Very truly yours,
NEWCOURT CREDIT GROUP INC.
By
Printed Name:_________________________
Title:________________________________
AT&T CAPITAL CORPORATION
By
Printed Name:_________________________
Title:________________________________
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
LEHMAN BROTHERS INC.,
as Representative of the several Initial Purchasers
By __________________________________
Printed Name: ____________________
Title: ___________________________
SCHEDULE I
INITIAL PURCHASERS
Lehman Brothers Inc. $500,000,000
Chase Securities Inc. $250,000,000
Salomon Smith Barney Inc. $130,000,000
Credit Suisse First Boston Corporation $60,000,000
J.P. Morgan Securities Inc. $60,000,000
--------------
TOTAL $1,000,000,000
===============
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: $1,000,000,000
- ----------------------------------------- -------------------------------------------
Trade Date: February 10, 1999
- ----------------------------------------- -------------------------------------------
Settlement Date: February 16, 1999
- ----------------------------------------- -------------------------------------------
Final Maturity Date: February 16, 2005
- ----------------------------------------- -------------------------------------------
Interest Payment Dates: February 16 and August 16
- ----------------------------------------- -------------------------------------------
Initial Interest Payment Date: August 16, 1999
- ----------------------------------------- -------------------------------------------
Coupon: 6.875%
- ----------------------------------------- -------------------------------------------
Issue Price: 99.661%
- ----------------------------------------- -------------------------------------------
Ratings: Baa3/BBB
- ----------------------------------------- -------------------------------------------
Price to Issuer: 99.061%
- ----------------------------------------- -------------------------------------------
Net Proceeds: $990,610,000
- ----------------------------------------- -------------------------------------------
Initial Purchasers: See Schedule I
- ----------------------------------------- -------------------------------------------