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REGISTRATION RIGHTS AGREEMENT
Dated as of February 10, 1999
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
PAGE
SECTION 1. DEFINITIONS............................................................1
SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT...................................3
SECTION 3. REGISTERED EXCHANGE OFFER..............................................3
SECTION 4. SHELF REGISTRATION.....................................................5
SECTION 5. LIQUIDATED DAMAGES.....................................................6
SECTION 6. REGISTRATION PROCEDURES................................................6
SECTION 7. REGISTRATION EXPENSES.................................................13
SECTION 8. INDEMNIFICATION AND CONTRIBUTION......................................13
SECTION 9. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS...........................16
SECTION 10. SELECTION OF UNDERWRITERS.............................................16
SECTION 11. MISCELLANEOUS.........................................................16
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and
entered into as of February 10, 1999 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 of 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 February 10, 1999, among the Company, AT&T Capital and Lehman
Brothers Inc. as representative of the Initial Purchasers (the "Purchase
Agreement"), which provides for the sale by the Company to the Initial
Purchasers of $1,000,000,000 principal amount of the Company's 6.875% Senior
Notes, Series B due February 16, 2005 (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 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 Purchasers to enter into the Purchase Agreement and in
satisfaction of a condition to their obligations thereunder, the Company and
AT&T Capital agree with you, for the benefit of the holders of the Notes
(including the Initial Purchasers) (the "Holders"), as follows:
Section 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 either book-entry or certificated form and issued
pursuant to the Indenture).
Exchange Offer: The registration by the Company and AT&T Capital under
the Securities Act of the Exchange Notes, together with the related Guarantee,
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 Purchasers propose
to sell the Notes to certain "qualified institutional buyers," as such term is
defined in Rule 144A under the Securities Act, and 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 February 15, 1999, 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 Purchasers: 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 and
AT&T Capital 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
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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.
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 under
the Securities Act in which securities of the Company are sold to an underwriter
for reoffering to the public.
Section 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.
Section 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), each of the
Company and AT&T Capital 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, the Guarantee 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,
(A) file all pre-effective amendments to such Registration Statement as may be
necessary in order to cause such Registration Statement to become effective, (B)
file, 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
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Offer, and (iv) unless the Exchange Offer would not be permitted by applicable
law or Commission policy, 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, 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 and AT&T Capital shall use their 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 and AT&T Capital 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" section 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 and AT&T Capital shall use their 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.
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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.
Section 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 been complied
with) then the Company and AT&T Capital shall in lieu of the registration of the
Exchange Notes pursuant to the Exchange Offer Registration Statement, use their
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 and AT&T Capital shall use their reasonable best efforts to keep
such Shelf Registration Statement continuously effective, supplemented and
amended as required by the provisions of Section 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)
the 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 and AT&T Capital all
information required to be disclosed in order to make the information previously
furnished to the Company and AT&T Capital by such Holder not materially
misleading.
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Section 5. Liquidated Damages. (a) If (i) 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, (ii) 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 (ii) 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), (iii) 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 (iv) 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 (i) through (iv), 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 to such Holders. Each obligation to pay
Liquidated Damages shall be deemed to accrue from the applicable date of the
occurrence of the Registration Default.
Section 6. Registration Procedures.
(a) Exchange Offer Registration Statement. In connection with the
Exchange Offer, the Company and AT&T Capital shall comply with all of the
provisions of Section 6(b) below, shall use their reasonable best efforts to
effect such exchange to permit the sale of Transfer Restricted Securities being
sold in accordance with the intended method or methods of distribution thereof,
and shall comply with all of the following provisions:
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(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 and
AT&T Capital, prior to the Consummation thereof, a written
representation to the Company and AT&T Capital (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 and AT&T Capital, (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 and AT&T Capital'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) and 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 and AT&T Capital shall:
(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
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omission or (B) not to be effective and usable for resale of Transfer
Restricted Securities during the period required by this Agreement, the
Company and AT&T Capital 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 their 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 and AT&T Capital 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 Company and AT&T
Capital shall use their best efforts to obtain the withdrawal or lifting
of such order at the earliest possible time;
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(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 and AT&T Capital will not file any
such Registration Statement or Prospectus or any amendment or supplement
to any such Registration Statement or Prospectus (including all
documents incorporated by reference) to which 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 AT&T
Capital and cause the Company's and AT&T Capital'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 thereof each of the Company and AT&T Capital 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 and AT&T Capital shall:
(A) upon request, furnish to the lead underwriter in such
substance and scope as may be mutually agreeable to the lead
underwriter, the Company and AT&T Capital 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 and AT&T Capital, confirming, as of the date
thereof, such matters as shall be mutually agreeable to
the lead underwriter and the Company and AT&T Capital 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 and AT&T Capital, 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 has considered the matters required to be
stated therein and the statements contained therein,
although such counsel has not independently verified the
accuracy, completeness or 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 AT&T Capital 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 statements, 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
qualifications as are customarily taken or made with
respect to such an opinion; and
(3) a customary comfort letter, dated the date of
the effectiveness of the Shelf Registration Statement,
from the Company's and AT&T Capital'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
AT&T Capital and which
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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 and AT&T Capital 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 or
advisable to enable the disposition in such jurisdictions of the
Transfer Restricted Securities covered by the Shelf Registration
Statement; provided, however, that neither the Company nor AT&T Capital
shall be required to register or qualify as a foreign corporation where
it is not now so qualified or to take any action with 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 an Exchange Offer Registration, shall issue,
upon the request of any Holder of Notes covered by the Exchange Offer
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 Holder 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 and AT&T Capital) to
enable the seller or sellers thereof or the underwriter(s), if any, to
consummate the disposition of such Transfer Restricted Securities,
subject to the provision 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 or AT&T Capital'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
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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 and the Guarantee 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 and the Guarantee as may be required for such
Indenture and the Guarantee 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 and AT&T Capital to the extent necessary to cause the Indenture
and the Guarantee 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 or AT&T Capital 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 or AT&T Capital 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 or AT&T Capital,
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 or AT&T Capital shall
give any such notice, the time period regarding the 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.
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Section 7. Registration Expenses. All reasonable expenses incident to the
Company's and AT&T Capital'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 and AT&T Capital (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.
Section 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 (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 omissions 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
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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 or AT&T Capital 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 AT&T Capital 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
of 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 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
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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
reasonable 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, comprise 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 is 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 any hold harmless an indemnified party
from and against any loss or liability by reason of such settlement or
judgement.
(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 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
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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 or 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' obligation to indemnify and contribute as
provided in this Section 8 are several and not joint.
Section 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 and executes all
reasonable questionnaires, powers of attorney, indemnities, underwriting
agreements, lock-up letters and other documents required under the terms of such
underwriting arrangements.
Section 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.
Section 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 and AT&T Capital 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 provision hereof. The rights granted
to the Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the Holders of the Company's and AT&T
Capital's securities under any agreement in effect on the date hereof.
(c) Adjustments Affecting the Notes. The Company and AT&T Capital 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 from
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
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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 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
or to AT&T Capital: 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
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 back, 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 of
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.
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(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 provisions 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 referred 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
Printed Name:
--------------------------
Title:
---------------------------------
AT&T CAPITAL CORPORATION
By
Printed Name:
--------------------------
Title:
---------------------------------
ACCEPTED as of the date thereof
By: LEHMAN BROTHERS INC.
By
------------------------------------
Printed Name:
-----------------------
Title:
------------------------------
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